We are proud to present Volume 10 Issue (2)! This issue contains contemporary and in-depth discussions on topics such as taxation avoidance agreements, caste and justice in the Rawlsian framework, renewable energy subsidies under World Trade Law, environmental justice issues relating to industrial siting, the scope of philosophical research in law, judicial review of money bills, religious freedom, gubernatorial discretion, et al. We would like to thank all of the authors who have contributed to this issue. Both professors and students have contributed to make it a success. The issue can be found at nujslawreview.org/articles-archives/ and is available for everyone to read. We hope you find the new issue engaging. ... See MoreSee Less
AN ANALYSIS OF THE MODERN OFFENCE OF SEDITION by Nivedita Saksena & Siddhartha Srivastava
Madhya Pradesh police recently arrested 15 people and charged them with the offence of sedition for allegedly celebrating Pakistan’s victory in ICC Champions Trophy against India, cheering Pakistani cricketers and bursting crackers. Following condemnation police later dropped the charges against the accused. The misuse of sedition law by governments is not new.
Now, the Law Commission has taken upon itself to review the law of sedition and give recommendations as to whether the offence must be scrapped from the statute books. This is also in pursuance of Lok Sabha MP Shahsi Tharoor’s efforts to replace Section 124(a) of IPC with a less draconian provision via a Private Member’s bill.
In "AN ANALYSIS OF THE MODERN OFFENCE OF SEDITION" by Nivedita Saksena & Siddhartha Srivastava, Volume 7 Issue 2, the authors make a compelling case for repealing the law of sedition. They argue that despite Supreme Court’s intervention by laying down standards for applying sedition, the law remains indeterminate and vague and has no scope for uniform application. The offence dating back to colonial era has no place in the post-independence democratic society of India where other laws exist for dealing with public order disturbances.
Weekly Note on The US exit from Paris Accord: A look into the Unilateral Withdrawal from International Treaties by Ishani Moulik
The US announced its exit from the Paris Accord on June 1 by the US President Donald Trump. The reasons cited were both economic and political undermining of the country in order to pursue environmental protection. The decision was taken regardless of the fact that the US has historically polluted the highest and only next to China considering the contemporary emissions levels. The taxpayers of the US, it has been argued by the decision makers, should not be burdened with such colossal international deals.
Article 28 of the Paris Agreement allows for withdrawal of a country from the Agreement only after the passing of three years following the date on which the Agreement has come on force for that party by giving a notification to the Secretary General of the United Nations. Such a withdrawal shall take effect only after a year of such notification and shall be considered as a withdrawal from the United Nations Framework Convention on Climate Change (UNFCCC) as well, a framework treaty that was entered by countries in 1992.
In US, there are two ways in which it becomes a party to any international agreement. First, is when two-thirds of the Senate has given its consent to its entry as a member, which is referred to as a ‘treaty’ and second if such an agreement is entered into on the constitutional basis excepting the Senate’s consent is referred as an ‘executive agreement’. The Paris Agreement is considered to be of the latter kind, in which case the consent of the Senate will not have to be taken and the President can easily leave the agreement. Some reports also suggest that the Trump administration may be considering withdrawal directly from the UNFCCC, where the withdrawal prohibition ceased way back in 1997. However, UNFCCC being a ‘treaty’, the procedural aspects to withdraw would be elaborate considering it involves the senate’s decision on the matter and therefore might be unfeasible to pursue.
There is no judicial clarity to instate a constitutional position in regard of these matters. Some Congress members have filed lawsuits against the President’s decision to unilaterally withdraw from a treaty (In Goldwater v. Carter and Kucinich v. Bush), but in both the cases the judiciary did not rule on the merits of the question and dismissed the issue as a non-justiciable one.
The fact that the US has to wait for 2020 to fully withdraw from the Paris Agreement means that in case it fails to fulfil its obligations under the agreement till then and especially during the next climate conference at Marrakech, Morocco, would imply breaking the international law. This matter shall be pertinent while the decision of withdrawal is being considered.
According to Vienna Convention on Law of Treaties, if the agreement allows for withdrawal or with the consent of all parties to it, withdrawal is allowed. Therefore, under international law, America’s withdrawal is a valid and legal step. Although some complications may arise on the domestic front as an environment related treaty can be challenged to have core congressional interest so as to review the decision of any such withdrawal. However, on the long run, however, this step has major implications on the world climate as many countries were relying on the funds and technology transfer from the US. In addition, it will be hard to hold US accountable for harm to the world climate. ... See MoreSee Less
THE INDEPENDENT DIRECTOR: HAS IT BEEN INDIANISED ENOUGH? by Madhuryya Arindam
Last week, Securities and Exchange Board of India (SEBI) indicated its desire to take steps to protect the autonomy of independent directors in the industry. It proposes to make fundamental changes in the appointment and removal procedures of independent directors which are likely to impact the corporate governance structure in the country. This is in the wake of recent power struggle witnessed in the Tata group of companies.
The author in THE INDEPENDENT DIRECTOR: HAS IT BEEN INDIANISED ENOUGH? by Madhuryya Arindam, Volume 6 Issue 2, describes how the tool of independent directors borrowed from the US has the potential to adapt to the Indian scenario wherein often there is conflicts between majority and minority shareholders. The recommendations of the author include rethinking the process of removal of independent director, altering the role of independent directors to allow them to act as ‘guardians’ of minority shareholders and regulating the skills required for the job.
Prevention of Cruelty to Animals (Regulation of Livestock Market) Rules, 2017: An Act of Fraud on the Parent Act by Debanga Goswami
On 23rd May, 2017, the Central Government notified the Prevention of Cruelty to Animals (Regulation of Livestock Market) Rules, 2017 (‘the Rules’). As the title indicates, these set of rules were formulated in furtherance of the Prevention of Cruelty Act, 1960 (‘the Act’). Section 38 of this Act entrusts the executive to formulate suitable rules in order to effectively and successfully implement the provisions of the Act. As published by the Ministry of Environment and Forests in a Press note, the objectives of the rules are to prevent trans-border smuggling of cattle and regulate their trade in the institutionalised markets. Among other laudable provisions, the Rules specifically dealing with bovine animals prohibit various commonly prevalent practices which inflict unnecessary pain on them. Surprisingly, the publication of the rules, argued to be formulated with noble objectives, unleashed a series of controversies and widespread discontentment among the common public, a huge chunk of whom were not well-off to carve out time to advocate for a particular political ideology. This discontentment was fuelled by genuine grievances which demands expedient redressal. The Rules prohibited the sale and purchase of cattle in the cattle market for the purpose of slaughter. It is unclear how this will fulfil the above-mentioned objectives, as asserted by the Ministry of Environment and Forests. This discrepancy between the methods and objectives and the new policy poses a question for the present government to justify within the current legal framework? As stated in the content of the Act, the PCA Act, 1860, the purpose of the Act is to prevent infliction of unnecessary pain on the animals. However, it prescribes nothing close to imposition of a ban on slaughter of animals for consumption. Surprisingly, the rules go beyond the scope of the parent Act to ban sale and purchase of cattle for the purpose of slaughter. Moreover, the preservation of livestock is something which vests exclusively on the States vide entry 15, List II of the Seventh schedule of the Constitution of India. Thus, the centre formulating rules on this subject is a case of usurping of legislative powers of the States by the Centre. In light of this, these controversial rules have already been challenged by several courts. In a petition filed before the Kerala High Court, the petitioners arguing the above-mentioned contentions also added that the rules also violated his fundamental right to trade. A single judge Bench of PB Suresh Kumar J., while refusing to put a stay on the provisions of the rules, observed that the contentions of the petitioners contains some serious merit and needs in-depth examination. A petition on similar lines was filed before the Supreme Court and the Vacation Bench has agreed to hear it on the 15th of June. The upcoming Supreme Court decision will have a bearing on the future course of Indian democracy since these rules have put the principle of federalism; and the nature and purpose of rules at serious peril. The Court needs to consider these issues with utmost sincerity and caution- by a thorough examination of relevant case law and the volatile political context in India today. ... See MoreSee Less