NUJS Law Review
Volume 7 – Issue 3-4
Volume 7 – Issue 3-4
The discourse on public trusts in India has been ridden with contradictions. In the absence of any specific laws governing them, trusts, and more importantly, trustees, are more often than not faced with conundrums to which the law may not always have solutions. In this paper, I examine this jurisprudence on the subject of public trusts, and delve into why the Judiciary ought to assume the duties of parens patriae in protecting the rights of a trust. As these rights are not compartmentalised as black or white, it becomes all the more vital for strengthening the role of the Judiciary in this regard.Read More
With the liberalisation of the economy and trade in India, the new competition law – the (Indian) Competition Act, 2002 –modelled after the European law on competition and the UN Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, decriminalised antitrust offences, but enhanced the limits of penalties for certain anti-competitive practices. This paper notes that the Competition Commission of India, which has the responsibility of enforcing the Competition Act, has been meting out heavy penalties. But the CCI has often been criticised by the Competition Appellate Tribunal, for not considering relevant factors while calculating fines and not giving reasons for imposing these penalties. It is noted that the law only fixes ceiling limits of penalties. A suggestion has been made by the bar in an appeal matter before the COMPAT to adopt the European/British guidelines on imposing penalty. Predictably, this has not found unconditional acceptance by COMPAT, which has only accepted the proposition of calculating fines based on ‘relevant turnover’. In this paper, I have examined the legal provisions and relevant case laws from the Supreme Court and competition authorities to map the present procedure for setting fines in competition cases in India. I have also analysed the European law on the subject, and explored how these processes can be adopted in India. Can a procedure be devised to bring transparency and predictability to the procedure for setting fines for antitrust offences in India?Read More
“Implied powers” pose difficult conceptual problems for legal scholars. They are invoked in many contexts and appear to comprise several distinct legal phenomena. Yet there is no clear understanding of what we mean by an “implied power” – apart from the very basic notion that it is not an express power – and of what forms it may take, and no existing theoretical framework that can help us in this respect. This article takes a first step towards creating such a theoretical framework by identifying criteria – the content of the power, the authority holding it, and the nature of the implication involved – that may be used to classify all references to “implied powers” in the positive law. The article focuses on Indian constitutional law to see how the relative paucity of implied powers in the Supreme Court’s jurisprudence on constitutional matters may be analysed using the proposed framework. In this perspective, the paper suggests that the separation of powers and the judicial emphasis on restricting governmental powers vis- à-vis citizens are relevant factors in explaining both the absence of a general implied powers doctrine and its specific use in an intergovernmental context. Read More
Barring a few legitimate exceptions, most non-compete covenants have been frowned upon by the competition regulating agencies worldwide. While reaching a conclusion, the agencies look at, inter alia, the temporal and geographical impact of the clause in the business transfer agreements in a Merger & Acquisition transaction. Any agreement having the ultimate effect of stifling legitimate competition in the relevant domestic market is condoned by regulating agencies worldwide. The European and American position regarding the treatment of a non-compete clause in an M&A transaction has been clear and well-grounded in their respective economic realities. The position of the Indian authorities, until very recently, has been ambiguous and unpredictable, where glaring inconsistencies have been observed. The Competition Commission of India’s decision in the Hospira Healthcare India Private Limited, Orchid Chemicals and Pharmaceutical Limited case goes a long way in deciphering the intention of the Indian agencies vis-à-vis the legitimacy of a non-compete covenant in M&A transactions. This decision has helped India enter the list of nations where competition restraints are judged with utmost precaution.Read More
Orwell’s dystopian masterpiece, 1984, describes a society where the government manipulates the thought process of its subjects by forcing them to communicate in a watered-down version of English called ‘newspeak’, incapable of expressing ideas like ‘liberty’. While a causative function between language and thought process has been debunked in modern-day linguistics, it is a reality that legal systems across the world accord gratuitous value judgments to one of the most primordial facets of human identity in an effort to consolidate artificial constructs of nationalism, often with punitive consequences for those who refuse to conform. At this juncture, with increasingly fervent language right campaigns in Ukraine and Northern Ireland and unprecedented rates of language extinction, what legal mechanisms are in place to bind governments into granting minority linguistic communities the rights they are due and keeping threatened languages from vanishing for posterity? This paper seeks to first analyse the processes that underlie linguistic imperialism, by tracing the history of legally enforced linguistic homogenisation in France, and then to mark out patterns of normative language regimes worldwide, before an analysis of international instruments on minority language rights, limitations thereof, and need for substantive overhaul. This paper is part linguistic research and part legal critique. The title has a quote attributed to Albert Camus which translates to “my fatherland is the French language”.Read More
With the pronouncement of the judgments in Triveniben v. State of Gujarat,Mahendra Nath Das v. Union of India and Shatrughan Chauhan v. Unionof India, the Supreme Court has assumed to itself a ‘post-mercy rejection’ jurisdiction. Within the constitutional framework, on being awarded death penalty, convicts may, after exhausting certain judicial remedies, approach the President or the Governor, who are constitutionally empowered to grant pardons and reprieves. We argue that this right has often been abused by people who exercise it in the hope of delaying their execution and thereafter using such delay as a ground to seek commutation of their sentence. While the courts have taken note of this fact, they have chosen to rule in favour of the convicted persons whose mercy petitions have been rejected by the President. The convicts seek judicial recourse, in form of commutation of their death sentence, on the grounds there has been a delay in rejection of their clemency petition. We reason that the courts must accept certain inherent systemic features, which although cause delay, also prevent the failure of the constitutional machinery. The courts must consider intervention only in light of all the circumstances that lead to a fundamental change in circumstances since the original sentencing decision. The relevance of considering this fundamental change is that in the intervening period after the awarding of the sentence by the courts, the circumstances are now so different that had the judiciary been considering the case at the initial stage it would not have imposed the death penalty to begin with. This proposition, as laid down by the same Court in Triveniben case has over time been diluted. As is seen by the recent cases the judiciary has adopted a very convict-centric approach when considering commutation cases. To carve out an additional ground for clemency even after the convict has been awarded the death penalty by the judiciary and the executive has rejected their mercy petitions, is judicial overreach. In an attempt to conjure novel remedies for convicts from constitutional silences, the judiciary has completely turned a blind eye to justice for the victims, and society as a whole. In the process, it has in essence upset the constitutional scheme and assumed the power of granting mercy to convicts, which hitherto was the sole prerogative of the executive head. Read More
In May 2014, the Supreme Court of India delivered a sensational judgment banning certain bull-fighting practices. The Court, in its analysis, sought to bring animals under the protection of the rights discourse by stating that Article 21 of the Constitution of India could be applied to animal life. The Court stated that the term ‘life’ must be expansively interpreted. As animals form a crucial part of human beings’ environment, their rights must also be protected under Article 21. This paper seeks to address the deeper implications of this judgment by examining the viability of such an approach. It argues that bringing animals within the ambit of rights is not only incompatible with the traditional jurisprudence of rights, but may also be an ineffective method of addressing the larger issue of protecting animals. It recommends a shift to a duty-based approach towards animal welfare which is more likely to succeed in ensuring the safe and humane treatment of animals by humans. Read More
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