• Articles
  • Editorial Note

    Restricting women’s entry to places of religious worship has become a highly contentious issue of late. Though such practices have been persisting for decades in India, movements across the country have recently espoused these concerns, leading to several petitions being led in High Courts and in the Supreme Court. Demonstrating an encouraging trend, courts have emphatically upheld rights of women to equality and freedom of religion, thus striking down the restrictions imposed. The Bombay High Court, for instance, ruled that the inner sanctum of the Shani Shingnapur temple in Ahmednagar, Maharashtra be opened to women, as it is the fundamental right of women to enter all places of worship that allow entry to men, and the duty of the state to protect such right. The Court relied on the Maharashtra Hindu Places of Public Worship (Entry Authorisation) Act, 1956, which prohibits obstructing a section or class of the Hindu population from entering places of worship…

  • Articles
  • Editorial Note

    India is currently in the throes of developing legislation that would theoretically create simpler frameworks to resolves disputes. In creating and conceptualising these laws, there is a clear need for there to be a comprehensive assessment of all factors that would aid or debilitate the problem-solving at hand. The role of a legislature in a modern-day economy and polity is to ensure that regulatory and governance measures are passed in the country so as to benefit the citizenry, and ensure the smooth functioning of the government at all levels. In India today, legislation is often drafted and developed by think-tanks and policy research organisations who then work closely with prevailing governments and ministries to enact it into law. In many cases, the ministries themselves draft legislation and circulate them for public comments before at- tempting to pass them through Parliament. While these background organisations do much of the leg work that is involved in legislative drafting, it may be time for the country’s overall approach to legislative drafting to take place in a more systematic and structured manner. It is in this light that Regulatory Impact Assessment (‘RIA’) proves to be a useful tool in regulation and governance…

  • Articles
  • Nexavar: The First Market Initiated Compulsory Licence

    This article looks at market-initiated compulsory licences issued under patent regimes, the first of which came into force with the grant of the Nexavar licence in India. By classifying the various types of compulsory licences, this article brings out the differences between government-use and market-initiated licences. I argue that market-initiated licences have many advantages over government-use compulsory licences. Although factors like overcoming capacity barriers of local manufacturers and legislative preparedness of the nation seeking to implement the licences are important for the grant of market-initiated compulsory licences, such licences, when granted, can regulate competition, address non-emergency situations like lack of affordability of life-saving drugs by reducing drug prices, facilitate local production and encourage the practice of price discrimination, while simultaneously resolving antitrust concerns that arise out of a refusal to licence by the patent owner.

  • Articles
  • ‘Tribunalisation’ of India’s Competition Regime

    The 42nd Amendment to the Constitution is often blamed for opening the floodgates for ‘tribunalisation’ in the country. The rapid growth in tribunals following the enactment of this amendment, has been viewed as an attempt by the executive to gain control over judicial functions. This has spurred the judiciary to be cautious in preserving its independence and power of judicial review, and has led it to decide upon the constitutional status of various tribunals. As a result, a rich body of judicial precedents, dealing with the principles of separation of powers and independence of the judiciary, has emerged, which aims at counteracting the use of tribunals by the executive to enfeeble and incapacitate the judiciary. I argue that the latest functionaries that have fallen into the ‘tribunal trap’ are the Competition Commission of India and the Competition Appellate Tribunal. By vesting the Competition Commission of India and the Competition Appellate Tribunal with judicial powers akin to courts under the provisions of the Competition Act, 2002, the legislature necessarily had to also provide for the constitution and functions of the two bodies in a manner akin to courts. By failing to do so, it has infringed upon judicial independence that forms part of the basic structure of our Constitution, and therefore the Competition Act, 2002 is liable to be struck down as unconstitutional.

  • Articles
  • Demosprudence and Socially Responsible/Response-Able Criticism: The NJAC Decision and Beyond

    It is a proud privilege and great pleasure to be invited to deliver this Dr. Durga Das Basu Endowment Lecture at the West Bengal National University of Juridical Sciences (‘WBNUJS’). I deeply thank Professor (Dr.) Ishwara Bhat for inviting me so graciously. He has done an inestimable service by editing Durga Das Basu’s Limited Government and Judicial Review (Tagore Law Lectures) and also in bringing together many past memorial lectures, under the provocative book titled Constitutionalism and Constitutional Pluralism. The WBNUJS is indeed fortunate to have his able, scholarly, and continuing leadership…

  • Articles
  • Brokers and Investment Advisers – Addressing the Question of Fiduciary Standard in a Comparative Context

    With the increasing sophistication witnessed by financial markets, regulatory authorities across the globe have made conscious efforts to reorient their approach towards monitoring transactional activities; yet, they have failed to recognise the changes experienced by brokerage operations. This paper seeks to shed light on the emergence of advisory brokers in the con- temporary context which has exhibited substantial similarity to functions traditionally performed by investment advisers. While advisory relation- ships have been typically classified as fiduciary in the capital market jurisprudence, brokers have continued to evade such responsibility, despite operating in an unauthorised advisory capacity. This paper establishes a legal basis for harmonising rules of conduct governing advisers and brokers in order to respond effectively to the dynamic market practices in influencing broker-investor interactions. Demonstrating sensitivity to the issue of meaningful investor protection, this paper attempts to initiate a debate on questions of liability of advisers and brokers acting as fiduciaries in the Indian context, while culling out specific policy points surrounding the choice of a prescriptive/proscriptive model.

  • Articles
  • The GATT Security Exception: Systemic Safeguards Against Its Misuse

    Distinct from the heavily litigated General Exceptions enshrined in Article XX of the General Agreement on Tariffs and Trade, 1947, the Security Exception under Article XXI presents a unique challenge to the WTO Dispute Settlement Mechanism. As this provision governs a sensitive aspect of State sovereignty, namely, the preservation of national security, there is little consensus on the form or extent of scrutiny that the WTO can place on a member invoking Article XXI. At the outset, arguments can be made to exclude any determination of the invocation of Article XXI from the WTO Panel review altogether. Even if the Panel’s jurisdiction is accepted, Member States would have impenetrable discretion to invoke the exception, if the ambiguously drafted provision is stretched to its widest ambit. This leads to the opening up of dangerous avenues of misuse of the provision, threatening the integrity of the multilateral trading system. In this paper, I will seek to argue that the risk of misuse of this provision is overstated, because of, rather than in spite of, its ambiguity and political complexity, and will establish that the modern WTO regime provides strong systemic safeguards, both direct and indirect, against its misuse.

  • Articles
  • The Future of Asylum in India: Four Principles to Appraise Recent Legislative Proposals

    India has a long history of sheltering refugees. The number of forced migrants who have received protection in India is one of the highest in the world. For a variety of ideological and practical reasons, India has refused to sign the 1951 Refugee Convention and shows little interest in joining the evolving international refugee order. Without a formal asylum regime, the Foreigners Act, 1946, a stringent deportation-oriented law, governs refugees unless they are given special leave to stay in India. In a few unconvincing cases, some courts have given asylum seekers a small measure of due process. Any suggestion that the courts have recognised the principle of non-refoulement is false.

    In late 2015, Shashi Tharoor MP introduced the Asylum Bill, 2015 in the Lok Sabha with the aim of putting India “at the forefront of asylum management in the world.” While the bill is welcome in principle, it has several shortcomings. Future asylum law should be based on four principles which Tharoor’s bill should be measured against. The principles are: (i) asylum is multifaceted requiring different categories of protection; (ii) mixed migratory flows demand flexible processing mechanisms; (iii) mass in influxes call for greater attention than individualised procedures; and, (iv) the goals of legislation are asylum management and refugee governance.

    Asylum is conceptually diverse and predates refugee status but the two are often conflated. India has a sovereign right to grant asylum to a person who does not qualify for refugee status. Protection should be given to persecuted individuals, groups forced to flee, as well as those escaping environmental phenomena. ‘Disguised extraditions’ should be stopped. Mixed migration has only recently captured attention because of events in Europe even though it is an old reality in South Asia. The law should differentiate between various categories of refugees and migrants, assign each a relevant form of protection – if applicable, anticipate secondary movements, and protect the most vulnerable.

    The failure to protect mass in fluxes has damaged the credibility of the international refugee regime. India’s experience calls for promoting the principle of non-refoulement, using differentiated protection procedures, intelligently managing refugee populations, and addressing secondary movements. Refugee situations should be proactively governed. Processing centres should be efficiently located. Evidence-based impacts on home com- munities should determine how refugee communities are hosted. Refugee camps must be demilitarised. The right against statelessness must be actualised. Durable solutions should be strategically pursued. Participatory citizenship models should be developed.

  • Articles
  • Scope for Intersection Between Antitrust Laws and Corporate Governance Principles Vis-À-Vis Cartels Deterrence in India

    Competition law and corporate governance seem to analyse the external and internal operations of a firm respectively. This paper seeks to explore the scope for meaningful interaction between the two with respect to cartels. We believe that understanding the issue of cartel from the context of shareholder interest as an agency problem can help shape antitrust policy regarding the same. First, we propose a ‘carrot and stick’ approach to overhaul the antitrust policy. This involves imposing threat of individual liability through administrative sanctions and improving the predictability of the current antitrust leniency policy. Second, we argue for a shift in approach of CCI in viewing cartels as an agency problem linked to the corporate culture of the rm. Thus, we argue that CCI needs to draw on international experience and incentivise firms to adopt an antitrust compliance policy by promising reduced penalties for companies that implement effective antitrust compliance policy. CCI may also encourage companies to complement the antitrust compliance policy with an internal leniency policy protecting confessors from adverse work related consequences and proving antitrust leniency. Therefore, we believe that an understanding of cartels from corporate governance angle can steer antitrust policy on the track to effective deterrence.

  • Articles
  • Public Trust Doctrine: Implications for Democratisation of Water Governance

    A National Water Framework Law imbued with a thorough understanding of the Public Trust Doctrine has the potential to transform the existing state-centred water regime into a democratised space for people’s participation. However, the existence of two contradictory drafts of the law, both claiming to incorporate the public trust perspective and yet with divergent implications for social equity and ecological sustainability has led to a need for further discussions in the public domain. This article argues that the details of legislation will determine the future trajectory of democratisation of water governance in the country rather than a mere invocation of the Public Trust Doctrine.