Year: 2016

Amidst strong reactions against the decision of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation, this paper argues that the Court has done all that it is expected to do under the Constitution and the law established under it. The respondents, especially the Union of India, have unsuccessfully asked it to do what the Constitution does not expect it to do. The remedy against § 377 lies with the people through their Parliament, and not in the courts. “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.”

In this paper I evaluate three arguments of the Delhi High Court’s decision in the Naz Foundation case. First is the argument that sexual orientation is analogous to ‘sex’ in Article 15 of the constitution. I term this argument ‘the sex-based’ argument and argue that though it is logically sound , it is not supported by the judgments that the court cites; nor thus the court properly lay out the exact nature of this powerful argument. I further argue that the ‘sex-based argument’ should be employed along with the ‘common thread’ argument which is supported by the text of the judgment and is also desirable in the light of the argument acting as a precedent for interpreting Article 15 of the Constitution. The second argument I examine is that of the right to privacy and autonomy. Here I argue that the decision has enriched the discussions on the right to privacy in India, but at the same time has committed us to pursuing a notion of privacy based on personhood, which at present has very little specific content. I also argue that the court has used the concepts of privacy and autonomy without adequately clarifying their meaning. Instead it grounds them in a concept of human dignity, which again is a highly contested concept, with many accusing it to be a place holder at best. This takes me to the third argument of the court, which is on human dignity. Here I try and briefly demonstrate the problems associated with the use of this concept. In spite of this I argue that the process of reasoning followed by the court is compatible with principles of adjudication which are well founded in legal theory. I focus particularly on the ideas of coherence in adjudication and the nature of judicial law making.

The main focus of the article is on the effectiveness of the criminal sanctions for fraudulent trading as a creditor protection mechanism. The article begins with an examination of the evolution of the duty of directors towards the creditors of the company. Then it seeks to address the main arguments advanced for and against penalising fraudulent trading. This is followed by an analysis of the fraudulent trading provision in India and UK. The study reveals that the provision has failed to achieve its purpose of punishing rogue managers and lax directors. It points out the flaws in the Indian law and proposes some suggestions to overcome the same. The main questions addressed in this article include: Who has a duty to prevent insolvent trading? When is the duty triggered? When can the company be said to be insolvent? And finally what is the scope of the duty to prevent insolvent trading?

India’s higher judiciary has created and overseen the evolution of public interest litigation in India. This paper presents a strong defence for the public interest litigation model as an instrument for the delivery of fair and equitable justice, resistant to governmental apathy as well as economic and social privilege. The first part of the paper provides an account of the evolution of India’s constitutional courts’, and particularly the Supreme Court’s, role prior to the emergence of public interest litigation. It discusses the nomenclature of ‘social action litigation’ and characterizes its evolution as unique and indigenous, distinguishable from the practice of public interest law in
the United States of America. The obstacles faced by this radical new form of preserving social and economic rights are also examined. The paper then addresses the Supreme Court’s approach to increasing access to justice and overcoming these impediments, especially through procedural innovations such as broadened locus standi and non-adversarial, investigative proceedings using court appointed investigative commissions and amicus curiae. Even as it recognizes the possibility of misuse of social action litigation, the paper concludes with a strident defence of judicial activism and of social action litigation as a means for bringing the promise of justice to the
ordinary and disempowered.
‘Blessed are they who hunger and thirst for justice, for they
shall have their fill’.
—The Eight Beatitudes, The Bible

The discretionary power to pardon finds recognition in the Indian Constitution, which confers this power on
the President of India and the Governors of States. This article traces the boundaries of the power stipulated
under the Indian Constitution, as well as the jurisprudence developed by the Supreme Court of India. It commences with an enquiry into the rationale underlying the power to pardon and goes on to engage with a number of issues that the power to pardon has given rise to. One of the issues examined in the article is the doctrine of separation of powers in the context of the prerogative to grant pardon. The constant tussle between the executive and judicial branches of the State is discussed with special reference to the dilemmas posed by the issue of defining the extent of this executive power.

Indian society has tried very hard to sweep the issue of child sexual abuse under the carpet. It starts with the family hushing up instances of sexual abuse of children within the family, resulting in underreporting of the issue and a gross underestimation of the gravity of the problem. In a democracy, unless the society recognizes the need for a law to regulate an issue, the issue is not addressed. But the first step is obviously an acknowledgement of the issue itself. After the investigations into the Nithari killings that unearthed the grotesque sexual crimes against children and women,there was intense clamouring for a Bill to effectively deal with the protection of children from abuse. Therefore the Offences against Children (Prevention) Bill, 2005 was drafted. Although it has dealt with many issues, there are problems with the Bill which need to be highlighted. More importantly, the object of the Bill cannot be attained without the relaxation of the corresponding rules of evidence and procedure. This paper seeks to address some preliminary areas of concern with the substantive and procedural aspects of the law dealing with the issue of child sexual abuse, not only with respect to the Bill, but with that of the overarching scheme of child protection in India.