Year: 2016

The paper is an exhaustive critique of the Nazareth Foundation judgment – besides a comprehensive evaluation of the Court’s treatment of applicable constitutional rights and doctrines, such as the right to privacy, equality, constitutional morality, severability and many others, it also makes interesting observations on the style in which the judgment has been written, and the Court’s treatment of legal sources, such as legislative history, prior decisions and foreign materials, some of which are characterised as ‘soft’ law. The judgment’s remarks on the statements of the Prime Minister and the health minister on Section 377 and the citation of a webcast reflect a modernizing approach to the treatment of legal sources. On substantive legal aspects, the boldest advance of the judgment is quite clearly its invocation of substantive due process reasoning to test legality under Article 21, which may carry it a step further than Maneka itself. Second, the Court has accepted the possibility of implied desuetude of a statutory provision, which is an interesting point and could therefore be raised more strongly in appeal. Third, the author points out that recourse to a privacy-based argument may well be insufficient to protect the rights of gays in India, as for them the ‘private’ arena is often a shared public place. Fourth, the Court has not made observations on the ‘personal liberty’ aspect of Article 21, a step it could have taken. The author suggests that the Court could have used the ‘new equality’ doctrine of arbitrariness under Article 14, which would be more in line with Indian constitutional jurisprudence, instead of using the more stringent test of strict scrutiny, which may not be legally sustainable. The author concludes that such an elaborate effort by the Delhi High Court affirms its position as one of the most important constitutional courts in the country, which has used innovative methods to push the boundaries of existing jurisprudence.

With the notification of §§43A and 44 of the Competition Act, 2002 the competition law of India comes into full force nearly a decade after its inception. Within this decade of evolution, competition law and policy in India has seen an active interpretational exercise. This paper seeks to summarize the evolution of competition law and policy in India, discusses the main issues involved in this area of law, and opens up issues for discussion in this evolving area of law in the country

This article seeks to assess functioning of the legislative framework for juvenile offenders over the past ten years. It discusses various technical issues under the Juvenile Justice Act, 2000 such as the date of application of the Act, whether it overrides other special Acts in its application to children, methods for determination of age of children and procedural relaxations for raising the plea that the offender is a child, and concludes that significant reform has been achieved in these areas. The absence of an explicit provision for allowing legal representation before the Child Welfare Committee under the Act, interpretative ambiguities in the Commission for Protection of Child Rights Act, 2005 and the lack of establishment of Children’s Courts despite stipulation by the same to that effect are, however, the problems left unsettled under the current legal framework.The concluding remarks are appreciative of the judiciary’s recent decisions that uphold the protection of child rights against some procedural or formalistic hurdles

The Arbitration and Conciliation Act, 1996 was enacted by the Parliament with an objective to minimise intervention by courts in the process of arbitration. However, over a period of time the interpretation adopted by the higher judiciary to various provisions of the Act has been contrary to this objective. With a view to rectify this situation, the Ministry of Law and Justice released a Consultation Paper proposing amendments to the Arbitration and Conciliation Act, 1996. The present paper attempts to summarise and analyse the two most important amendments put forth by the Ministry, i.e. firstly, the application of Part I of the Act to international commercial arbitration, and secondly, appointment of arbitrators under §11 of the Act. It is argued by us that though the intention of the Ministry is to minimise judicial intervention and make arbitration an efficacious alternative remedy, the proposed amendments are not sufficient in rendering India an arbitration friendly jurisdiction. The paper also highlights a few other areas which need to be amended

Poverty can be regarded as the single most universal phenomenon forming an unvarying and uniform thread that transcends all boundaries and nations. A whole gamut of complexities is encompassed by the single word ‘poverty’. India’s plunge into mass poverty manifested during the colonial era and markedly accelerated throughout that phase. A poverty alleviation agenda involves several distinct essentials: first, it is crucial to define poverty for a particular region, which can be done only if the specific causative factors are underlined. Based on this understanding, a mode of measurement needs to be devised to identify the poor. Only when these aspects have crystallized, is it possible to design and implement intervention programmes. It is now realized that a collaborative measure of emphasis on accelerated growth and a direct interventionist-safety net procedure is the proper approach to optimize the control strategies. Lastly, it needs to be ensured that the institutions executing these measures complement the policy stance. India as a welfare state is committed to the development of its people. The constitutional responsibility is reflected via legislations and development policies. During the last five decades, India’s tryst with poverty has met with chequered responses. It would, however, be incorrect to say that all poverty reduction programmes have failed.

The Basic Law of the Federal Republic of Germany was properly put into force as constitution in 1949. It is well known that there has been no death penalty in Germany ever since. Less known is that it is Art.102 of this Basic Law of Germany (GG) that has abolished the death penalty in Germany. This was the result of then convincing considerations after the disaster of the former regime in Germany and its outrageous abuse not only of that sanction of criminal law. Since presently in India there is a discussion if the state should use and apply the death penalty in future1, it might be of interest what arguments would justify nowadays the absence of the death penalty in Germany under its present constitution. This does not relate to any debate of that kind in the country nor is there any motion in that direction, for instance with the intention to abolish Art. 102   GG by amendment and its replacement by inserting a positive clause in the opposite direction. If that ever was the case, the stand would be taken immediately that such an undertaking is not possible.

The initial months of 2010 witnessed a new method, called the French Auction, being used for the pricing of subsequent share issues of several public sector undertakings. This was admittedly brought about with a view to maximizing the divestment proceeds of the undertakings. The method was used in place of the book building method, where the issuer would specify a price band and allocate shares at a specific price within that band, depending on the demand. While competitive bidding in the absence of a price band under the French Auction system is expected to result in a more accurate valuation of the IPO and greater capitalization for the issuer, we point out its shortcomings, which make it unfit for implementation in the Indian markets, as the IPO price is prone to manipulation and argue that it may not result in more accurate pricing than the book building method.

This article seeks to analyse the state of the system of juvenile justice administration in Nigeria against the background of international framework and guidelines. The author finds the Nigerian setup to be inadequate for ensuring juvenile justice because of inconsistencies and ambiguities in municipal legislation – for example, the age of criminal responsibility is different under various statutes, and the bail provisions are capable of being abused. Further, policemen are known to have been brutal in their dealings with juvenile offenders, and lack of specially trained state officials makes the state machinery ill-equipped to facilitate the process of rehabilitative justice. The author then explains that having dedicated juvenile justice courts may be better than the current system where magistrates in charge of ordinary criminal cases handle juvenile justice matters as well. The article concludes with the observation that juvenile custodial institutions have not been efficacious in rehabilitating the juvenile offenders housed there, and makes recommendations to address these shortcomings.

This article seeks to analyse the decision of the Bombay High Court in Lawyers Collective v. Bar Council of India (hereinafter Lawyers’ Collective judgement). The petitioners had challenged the permission granted by the RBI to certain foreign firms to set up liaison offices in India. The Court went on to examine whether non-litigious practice comes within the ambit of ‘practice of law’ under the Advocates Act. In this article, the authors seek to examine the judicial reasoning employed by the Court and then seek to provide alternate reasoning which may possibly have resulted in a different conclusion. It is also suggested that the conclusion of the Court does not in actuality further the objective of regulating non-litigious practice. Expansive reading of the present laws is insufficient for the purpose and specific regulations need to be brought in to do so. Furthermore, the article will read into the potential impact of this judgement on ancillary areas such as ‘best-friends’ agreements and India’s  commitments to the WTO under the GATS.

Intellectual property rights grant a degree of exclusivity to the owners, necessarily restricting access of others to the same. On the other hand, anti-trust law seeks to promote competition and increase access to the market. There is a seemingly inherent conflict between the two. Yet, there is increasing opinion that the two realms can, not only co-exist but also complement each other. This article seeks to trace the shift from divergence of the two areas to their convergence. Thereafter, it aims to show that they have distinct operational areas and their functions can and must be kept independent. The theoretical position adopted above is tested against EU law, where such principles have been applied. The separation of operational areas has ensured minimum conflict in a market economy, where both areas play key roles. The Indian position can be seen to be leaning towards such an understanding and it is likely that eventually cases before the Competition Commission will be decided according to these principles.