Year: 2016

The article proposes to argue a philosophical foundation of legal legitimacy descriptively basing it from Jürgen Habermas’ idea of the discourse theory. It addresses two closely connected questions: firstly,how is legitimacy of law possible? Legitimacy of law is possible through the democratic medium. The second section briefly charts the differing viewpoints of Hobbes, Locke, Rousseau, and Kant on the lines of reconciling individual autonomy and collective autonomy. Further, similarly, justifications of legal legitimacy receive an internal reference of the legal system through its generation of internal norms. Accordingly, the third section of the article critiques Weber and Hart’s ideas of legitimacy on the ground that the internal point of view of law excludes will formation suited for plural and democratic societies. Secondly, it prescribes how legitimacy takes shape? It argues that legitimacy derives from public contestation using the discursive model of democracy. It reasons and defends that law is a product of public conversation which is reflexive and self-correcting. The article argues that the revolutionary potential of law is realized in this emancipatory reconstruction where people are rights bearers. Therefore, law is a system of rights presupposing people as free and equal deliberators.

Copyright law grants certain exclusive rights to the author of a work, aiming to encourage creativity. This article uses jurisprudential theory, particularly the feminist perspective, to bring out the fallacies in the existing copyright regime and advocates in favour of the emerging copyleft regime, which is against granting exclusive rights to the creator of the work. The article argues that copyright law is inadequate in incorporating the varied kinds of works of different and diverse sections of the society and promotes marginalization of oppressed groups. This exclusion flows from the basic fact that copyright is based on a patriarchal structure. On the other hand, the copyleft regime is based on both masculine and feminine values, and therefore, is a better regime to challenge the existing marginalization.

Law as an institution strives to perform both inclusionary and exclusionary functions in any societal structure. In the present paper, the author highlights the exclusionary role performed by law in Pre and Post Independent India with the help of three primary modalities; ‘Criminalization’, ‘Stigmatization’ and finally ‘Invisibilization’, and then proceeds to offer a possible explanation to such societal exclusion along with advancing a critique to the same.

Starting with Thakur, this paper travels through the mediatory role of the courts in resolving serious controversies over reservation; it examines if opposition to reservation has any constitutional basis; and argues that the 93rd Amendment to the Constitution is valid in its entirety. It also argues that a casteless society cannot be read in the Constitution, the fifty-percent limit on reservations is not a binding norm, and that the determination of the validity of laws included in the Ninth Schedule on the ground of breach of the basic structure of the Constitution may remain a myth. In sum, the paper supports the constitutional provisions and parliamentary initiatives for reservation.

The global business environment is increasingly concerned with reducing cost and increasing efficiency and legal process outsourcing (‘LPO’) is proving to be the perfect vehicle to achieve this. India has emerged as the most favourable destination amongst legal outsourcers as its developing economy, convenient time-zone, and large population of English-speaking and common law trained lawyers create unmatched cost incentives. Furthermore, LPO services are no longer restricted to providing administrative and support services as their role has expanded to include research, legislative tracking and analysis, and document drafting. Despite the promising growth exhibited by the LPO sector, this paper seeks to explore the future prospects of the LPO firms, in terms of regulation, due to the host of legal and ethical concerns generated by legal outsourcing.

“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.

The Supreme Court in Suresh Kumar Koushal v. Naz Foundation has missed an opportunity to build on the earlier Delhi High Court decision and shape rights jurisprudence in a creative and rights enhancing manner. Instead it has reverted to a restrictive reading of the law that is full of logical and analytical inconsistencies and the incorrect use of precedent. This demonstrates an unwillingness to appreciate and assess the compelling evidence that was placed before it. In this piece, I will focus on the mass of material that the court did not take into account while arriving at its decision. These include the Attorney General’s submissions, affidavits of parents of Lesbian Gay Bisexual and Transgender persons, and scientific material placed before the Court. I will also examine the arguments in the judgment related to presumption of constitutionality, vagueness of law and the dichotomy between the sexual act and homosexual identity.

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?

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.