Arun Thiruvengadam | National Law School of India University (original) (raw)
Papers by Arun Thiruvengadam
Singapore journal of legal studies, 2010
Critical analysis review of 'Administrative Law and Governance in Asia: Comparative Perspecti... more Critical analysis review of 'Administrative Law and Governance in Asia: Comparative Perspectives', by Tom Ginsburg. Review(s) of: Administrative Law and Governance in Asia: Comparative Perspectives, by Tom Ginsburg and Albert H.Y. Chen, eds., Oxon: Routledge, 2009. x + 384 pp. Paperback: US$47.95.
Cambridge University Press eBooks, Aug 2, 2010
Social Science Research Network, Mar 3, 2014
In this article, we explore the barriers to cause lawyering in Singapore. Our paper suggests that... more In this article, we explore the barriers to cause lawyering in Singapore. Our paper suggests that Singapore is a peculiar lawyering space in that lawyers who advocate for causes, especially causes understood to have moral, civil and political dimensions, do so in the context of a specific social memory: that of lawyers who have (in effect) been punished for challenging the state. Our argument is that, as a result of this punitive state response, lawyers who seek to further causes in today’s Singapore tend to operate in very specific ways, that we refer to as masked cause lawyering. Our paper traces a genealogy of cause lawyering in Singapore in an effort to explain the general rule of cause lawyering as either masked or absent. We also focus on the period from 2000 to the present, and chronicle the legal career of the exception highlighted by our title: M. Ravi. In our conclusion, we seek to provide an overview of cause lawyering in Singapore from a historical and contemporary standpoint and offer some speculative thoughts on the future of cause lawyering in Singapore.
Verfassung in Recht und Übersee
In 2016, Azim Premji University, Bangalore launched an LL.M. program with a specialisation in Law... more In 2016, Azim Premji University, Bangalore launched an LL.M. program with a specialisation in Law and Development. A course called ‘Law and Development’ is taught as a mandatory core course in the first semester of the program. Across a period of six years, the two of us have taught this core course either individually or in collaboration with each other. As the LL.M. enters its seventh year, we reflect on the experience of teaching the course, by taking stock of its strengths and weaknesses. In this article, we present an account of the motivations of the program and the course, the challenges we faced, how we engaged with these challenges, and our reflections on the experience of teaching the course. In this recounting, we focus specifically on three aspects: (a) the interdisciplinary character of Law and Development and the consequent difficulty in ascertaining its boundaries, given the vast scope of the subject; (b) building an Indian context to the subject of Law and Developmen...
Social Science Research Network, Feb 7, 2018
The paper is part of the forthcoming volume 'Constitutional Democracy in the European Union a... more The paper is part of the forthcoming volume 'Constitutional Democracy in the European Union and India: Comparing the Law of Demcoracy in Contintental Polities' (Elgar 2021, eds. P. Dann & A. Thiruvengadam). The present chapter reflects on the origins and pathways of Indian and European constitutionalism. With the concept of constitutionalism, the authors make reference to a practical discourse involving both professional actors and laymen regarding the legal foundations of the respective polity – its constitution. Both India and Europe have developed their own brands of constitutionalism, neither of which replicates the blueprints of ‘limited government’ or ‘popular sovereignty’ drawn by the American or French revolutions. The main argument of this chapter concerns the role of judicial institutions. Undisputedly, both the Indian Supreme Court and the European Court of Justice have played a crucial role in shaping their respective constitutional orders. However, the authors c...
Constitutional Interpretation in Singapore, 2016
There is, by now, a small but significant body of literature that has documented how courts in Si... more There is, by now, a small but significant body of literature that has documented how courts in Singapore have engaged (or, to put it more accurately, resisted engaging) with foreign law in constitutional cases. In a previous work published in a volume to mark 40 years of the Singapore Constitution, I documented trends in use of foreign law across the tenures of Singapore’s first three Chief Justices (Chief Justices Wee, Yong and Chan). This analysis showed that while judges in Singapore have generally resisted engaging with foreign law, the trend has varied over time, with some Chief Justices advocating an absolutist position (evident in Chief Justice Yong’s adoption of the ‘four walls’ doctrine) while others adopted a less equivocal position (evident in Chief Justice Wee’s relatively more nuanced resistance, usually backed by a more careful distinguishing of individual foreign cases). In this essay, for a volume that marks the 50th year of the adoption of the Singapore Constitution, I seek to update that analysis, focusing more closely on cases decided in recent years, especially since 2009. In this period, the Singapore courts have had occasion to reference foreign law in several cases, and this has in turn generated a fair amount of scholarly literature. My principal argument is that although the more recent trend shows some marked departures from the way foreign law was engaged earlier, these changes are, ultimately, more superficial than substantial. I argue that judges and courts engaged in constitutional adjudication in Singapore continue to resist the use of foreign and comparative law, to an extent that is quite remarkable, especially given Singapore’s common law heritage and the fact that in other branches of law, the traffic in comparative ideas and law has remained high. This makes the judiciary’s opposition to, and rejection of, comparative law in the arena of constitutional adjudication even more exceptional and striking. To build my argument and spell out its details, I will discuss and engage with the analysis of other scholars of Singapore constitutional law. The structure of this essay is as follows. In Section 2, I analyse the more recent literature on the Singapore judiciary’s use of foreign and international law in constitutional cases. While doing so, I will also outline the contours of my own argument and stance. In Section 3, I focus on two recent cases – Lim Meng Suang v. Attorney General and Yong Vui Kong v. Public Prosecutor – where the Singapore Court of Appeal had to respond to the citation of foreign and comparative law in rights cases. These cases dealt respectively, with a constitutional challenge to Singapore’s anti-sodomy law, Section 377A, and a constitutional challenge to the sentencing practice of caning in Singapore. In both these cases, the Singapore Court of Appeal ultimately resisted applying foreign and international law, showing some of the same tendencies that were on display during the height of the ‘Four Walls’ era. I will argue that the record of the Chan and Menon courts on the use of foreign law, while less absolutist than that of the Yong court, is nevertheless closer to the ‘resistance’ than the ‘engagement’ model articulated by Jackson. In the concluding section, I will offer some speculative thoughts on what might make Singapore judges consider a change in their stance towards foreign law.
The invocation of emergency powers by the state in response to a perceived crisis is the subject ... more The invocation of emergency powers by the state in response to a perceived crisis is the subject of considerable controversy in liberal democracies because these powers appear on their face to pose a direct challenge to the liberal ideal of constitutional government.1 Although emergency powers were the subject of constitutional theory long before the 11 September 2001 terrorist attacks in the United States,2 the 9/11 attacks and their aftermath have reignited debates about how established liberal democracies should respond to terrorist attacks and other sorts of emergency, leading to the development of sophisticated theories of emergency powers.3 Some of these theories defend a prominent, but qualified, role for the courts in checking the use of these powers. Others, mindful of the apparent deference to the executive shown by the courts in times of crisis, prefer to use constitutional or statutory emergency powers provisions to delimit the powers of the executive, often by subjectin...
The paper highlights an often distinctive feature of the regulatory state in the Global South, gi... more The paper highlights an often distinctive feature of the regulatory state in the Global South, given that judiciaries have not traditionally played an important role in the development of the regulatory state in the Global North. It describes the rise of the regulatory state and the ‘judicialisation’ of politics and regulation in Asian states. It focuses on the manner in which the judiciary in India has come to play a pivotal role in the development of the evolving regulatory culture in the Indian telecommunications sector
SSRN Electronic Journal, 2020
SSRN Electronic Journal, 2020
The article is part of the forthcoming volume 'Constitutional Democracy in the European Union... more The article is part of the forthcoming volume 'Constitutional Democracy in the European Union and India: Comparing the Law of Demcoracy in Contintental Polities' (Elgar 2021, eds. P. Dann & A. Thiruvengadam). It compares constitutional structures and historical experiences of federalism and democracy in India and the EU along two guiding questions: What effect does the federal order have on constitutional democracy? And what is the ‘federal quality’ of central level decision-making, i.e. how are the subunits’ interests taken into account, when the centre acts? The article argues that while federal democracy in the two polities was initially organized in two starkly different ways (strongly centralized in India, the opposite in the early EU), the federal order triggered profound democratic questions. These were then addressed in different and as such characteristic ways – through bottom-up, popular agitation and electoral federalism in India, and through executive federalism, top-down attempts of mobilization and a partial parliamentarization in the EU. The chapter juxtaposes the two constitutional experiences, mindful of the historical starting points in both systems that continue to shape them and also looking at the transformations. It ends with observations on the effect of federal structures on democratic constitutionalism and current authoritarian challenges in both polities.
Robert Schuman Centre for Advanced Studies The Robert Schuman Centre for Advanced Studies (RSCAS)... more Robert Schuman Centre for Advanced Studies The Robert Schuman Centre for Advanced Studies (RSCAS), created in 1992 and directed by Professor Brigid Laffan, aims to develop inter-disciplinary and comparative research on the major issues facing the process of European integration, European societies and Europe's place in 21 st century global politics. The Centre is home to a large post-doctoral programme and hosts major research programmes, projects and data sets, in addition to a range of working groups and ad hoc initiatives. The research agenda is organised around a set of core themes and is continuously evolving, reflecting the changing agenda of European integration, the expanding membership of the European Union, developments in Europe's neighbourhood and the wider world.
The Constitution of India
Comparative Constitutionalism in South Asia, 2012
Comparative Constitutionalism in South Asia, 2012
Exploring the Limits of Legality, 2009
Exploring the Limits of Legality, 2009
Singapore journal of legal studies, 2010
Critical analysis review of 'Administrative Law and Governance in Asia: Comparative Perspecti... more Critical analysis review of 'Administrative Law and Governance in Asia: Comparative Perspectives', by Tom Ginsburg. Review(s) of: Administrative Law and Governance in Asia: Comparative Perspectives, by Tom Ginsburg and Albert H.Y. Chen, eds., Oxon: Routledge, 2009. x + 384 pp. Paperback: US$47.95.
Cambridge University Press eBooks, Aug 2, 2010
Social Science Research Network, Mar 3, 2014
In this article, we explore the barriers to cause lawyering in Singapore. Our paper suggests that... more In this article, we explore the barriers to cause lawyering in Singapore. Our paper suggests that Singapore is a peculiar lawyering space in that lawyers who advocate for causes, especially causes understood to have moral, civil and political dimensions, do so in the context of a specific social memory: that of lawyers who have (in effect) been punished for challenging the state. Our argument is that, as a result of this punitive state response, lawyers who seek to further causes in today’s Singapore tend to operate in very specific ways, that we refer to as masked cause lawyering. Our paper traces a genealogy of cause lawyering in Singapore in an effort to explain the general rule of cause lawyering as either masked or absent. We also focus on the period from 2000 to the present, and chronicle the legal career of the exception highlighted by our title: M. Ravi. In our conclusion, we seek to provide an overview of cause lawyering in Singapore from a historical and contemporary standpoint and offer some speculative thoughts on the future of cause lawyering in Singapore.
Verfassung in Recht und Übersee
In 2016, Azim Premji University, Bangalore launched an LL.M. program with a specialisation in Law... more In 2016, Azim Premji University, Bangalore launched an LL.M. program with a specialisation in Law and Development. A course called ‘Law and Development’ is taught as a mandatory core course in the first semester of the program. Across a period of six years, the two of us have taught this core course either individually or in collaboration with each other. As the LL.M. enters its seventh year, we reflect on the experience of teaching the course, by taking stock of its strengths and weaknesses. In this article, we present an account of the motivations of the program and the course, the challenges we faced, how we engaged with these challenges, and our reflections on the experience of teaching the course. In this recounting, we focus specifically on three aspects: (a) the interdisciplinary character of Law and Development and the consequent difficulty in ascertaining its boundaries, given the vast scope of the subject; (b) building an Indian context to the subject of Law and Developmen...
Social Science Research Network, Feb 7, 2018
The paper is part of the forthcoming volume 'Constitutional Democracy in the European Union a... more The paper is part of the forthcoming volume 'Constitutional Democracy in the European Union and India: Comparing the Law of Demcoracy in Contintental Polities' (Elgar 2021, eds. P. Dann & A. Thiruvengadam). The present chapter reflects on the origins and pathways of Indian and European constitutionalism. With the concept of constitutionalism, the authors make reference to a practical discourse involving both professional actors and laymen regarding the legal foundations of the respective polity – its constitution. Both India and Europe have developed their own brands of constitutionalism, neither of which replicates the blueprints of ‘limited government’ or ‘popular sovereignty’ drawn by the American or French revolutions. The main argument of this chapter concerns the role of judicial institutions. Undisputedly, both the Indian Supreme Court and the European Court of Justice have played a crucial role in shaping their respective constitutional orders. However, the authors c...
Constitutional Interpretation in Singapore, 2016
There is, by now, a small but significant body of literature that has documented how courts in Si... more There is, by now, a small but significant body of literature that has documented how courts in Singapore have engaged (or, to put it more accurately, resisted engaging) with foreign law in constitutional cases. In a previous work published in a volume to mark 40 years of the Singapore Constitution, I documented trends in use of foreign law across the tenures of Singapore’s first three Chief Justices (Chief Justices Wee, Yong and Chan). This analysis showed that while judges in Singapore have generally resisted engaging with foreign law, the trend has varied over time, with some Chief Justices advocating an absolutist position (evident in Chief Justice Yong’s adoption of the ‘four walls’ doctrine) while others adopted a less equivocal position (evident in Chief Justice Wee’s relatively more nuanced resistance, usually backed by a more careful distinguishing of individual foreign cases). In this essay, for a volume that marks the 50th year of the adoption of the Singapore Constitution, I seek to update that analysis, focusing more closely on cases decided in recent years, especially since 2009. In this period, the Singapore courts have had occasion to reference foreign law in several cases, and this has in turn generated a fair amount of scholarly literature. My principal argument is that although the more recent trend shows some marked departures from the way foreign law was engaged earlier, these changes are, ultimately, more superficial than substantial. I argue that judges and courts engaged in constitutional adjudication in Singapore continue to resist the use of foreign and comparative law, to an extent that is quite remarkable, especially given Singapore’s common law heritage and the fact that in other branches of law, the traffic in comparative ideas and law has remained high. This makes the judiciary’s opposition to, and rejection of, comparative law in the arena of constitutional adjudication even more exceptional and striking. To build my argument and spell out its details, I will discuss and engage with the analysis of other scholars of Singapore constitutional law. The structure of this essay is as follows. In Section 2, I analyse the more recent literature on the Singapore judiciary’s use of foreign and international law in constitutional cases. While doing so, I will also outline the contours of my own argument and stance. In Section 3, I focus on two recent cases – Lim Meng Suang v. Attorney General and Yong Vui Kong v. Public Prosecutor – where the Singapore Court of Appeal had to respond to the citation of foreign and comparative law in rights cases. These cases dealt respectively, with a constitutional challenge to Singapore’s anti-sodomy law, Section 377A, and a constitutional challenge to the sentencing practice of caning in Singapore. In both these cases, the Singapore Court of Appeal ultimately resisted applying foreign and international law, showing some of the same tendencies that were on display during the height of the ‘Four Walls’ era. I will argue that the record of the Chan and Menon courts on the use of foreign law, while less absolutist than that of the Yong court, is nevertheless closer to the ‘resistance’ than the ‘engagement’ model articulated by Jackson. In the concluding section, I will offer some speculative thoughts on what might make Singapore judges consider a change in their stance towards foreign law.
The invocation of emergency powers by the state in response to a perceived crisis is the subject ... more The invocation of emergency powers by the state in response to a perceived crisis is the subject of considerable controversy in liberal democracies because these powers appear on their face to pose a direct challenge to the liberal ideal of constitutional government.1 Although emergency powers were the subject of constitutional theory long before the 11 September 2001 terrorist attacks in the United States,2 the 9/11 attacks and their aftermath have reignited debates about how established liberal democracies should respond to terrorist attacks and other sorts of emergency, leading to the development of sophisticated theories of emergency powers.3 Some of these theories defend a prominent, but qualified, role for the courts in checking the use of these powers. Others, mindful of the apparent deference to the executive shown by the courts in times of crisis, prefer to use constitutional or statutory emergency powers provisions to delimit the powers of the executive, often by subjectin...
The paper highlights an often distinctive feature of the regulatory state in the Global South, gi... more The paper highlights an often distinctive feature of the regulatory state in the Global South, given that judiciaries have not traditionally played an important role in the development of the regulatory state in the Global North. It describes the rise of the regulatory state and the ‘judicialisation’ of politics and regulation in Asian states. It focuses on the manner in which the judiciary in India has come to play a pivotal role in the development of the evolving regulatory culture in the Indian telecommunications sector
SSRN Electronic Journal, 2020
SSRN Electronic Journal, 2020
The article is part of the forthcoming volume 'Constitutional Democracy in the European Union... more The article is part of the forthcoming volume 'Constitutional Democracy in the European Union and India: Comparing the Law of Demcoracy in Contintental Polities' (Elgar 2021, eds. P. Dann & A. Thiruvengadam). It compares constitutional structures and historical experiences of federalism and democracy in India and the EU along two guiding questions: What effect does the federal order have on constitutional democracy? And what is the ‘federal quality’ of central level decision-making, i.e. how are the subunits’ interests taken into account, when the centre acts? The article argues that while federal democracy in the two polities was initially organized in two starkly different ways (strongly centralized in India, the opposite in the early EU), the federal order triggered profound democratic questions. These were then addressed in different and as such characteristic ways – through bottom-up, popular agitation and electoral federalism in India, and through executive federalism, top-down attempts of mobilization and a partial parliamentarization in the EU. The chapter juxtaposes the two constitutional experiences, mindful of the historical starting points in both systems that continue to shape them and also looking at the transformations. It ends with observations on the effect of federal structures on democratic constitutionalism and current authoritarian challenges in both polities.
Robert Schuman Centre for Advanced Studies The Robert Schuman Centre for Advanced Studies (RSCAS)... more Robert Schuman Centre for Advanced Studies The Robert Schuman Centre for Advanced Studies (RSCAS), created in 1992 and directed by Professor Brigid Laffan, aims to develop inter-disciplinary and comparative research on the major issues facing the process of European integration, European societies and Europe's place in 21 st century global politics. The Centre is home to a large post-doctoral programme and hosts major research programmes, projects and data sets, in addition to a range of working groups and ad hoc initiatives. The research agenda is organised around a set of core themes and is continuously evolving, reflecting the changing agenda of European integration, the expanding membership of the European Union, developments in Europe's neighbourhood and the wider world.
The Constitution of India
Comparative Constitutionalism in South Asia, 2012
Comparative Constitutionalism in South Asia, 2012
Exploring the Limits of Legality, 2009
Exploring the Limits of Legality, 2009