Year: 2016

That the judicial prerogative of Constitutional interpretation should not render itself into a zealous imposition of personal values remains a fundamental tenet of representative governance. In a society of diverse, and often conflicting ways of life, and a judiciary that lays claim to widest possible legal creativity, and a polity of consociation, it is nothing but the construction of the provisions of the Constitution that acts as the binding gel between competing claims. The article primarily presents arguments in relation to: firstly, ‘Interpretation For What?’, where it is argued that in the final hermeneutic appreciation, the meaning arrived at should be audience-centred and the interpretation should be reflective of the reasons for belief of the people and not the belief itself, and secondly, ‘Interpretation Of What?’, where it is argued that, ascribing hallowed values to mere textual assurances dangerously borders on misuse of interpretative discretion and as such judicial systems should not only temper the phrasal promises with social demands, but should not move beyond, in the guise of discovering universal humane absolutes. The present article thus seeks to limit the judicial interpretation of the Constitution by appreciating such meanings of the textual expression alone that portray the undercurrents of social existence.

The cause of equality is not one of creating contiguous compartments. Humans are equal not as isolated bits, but as mutually interacting summations of different processes. The paper here argues this same understanding of social cultures and myths as inalienable components of human equality, and the need for orienting our take as one that values hierarchy and difference as much as equal access to material modes of survival. Basing on the idea of psychologism, the argument developed is in opposition to hallowed promises of tomorrow, and their antithesis with the very functions of law as a social instrument.

The Agreement on Trade Related Aspects of Intellectual Property Rights is often said to raise hurdles in the path of developing countries in attaining their public health objectives. One of the concerns has been that the Article 31 of TRIPS is inadequate in allowing issuance of compulsory licenses as a regulatory tool by developing countries for meeting public health requirements. However, a close perusal of the Bilateral Investment Treaties of India, Pakistan and Bangladesh demonstrate how these countries voluntarily accepted more onerous requirements for issuance of compulsory licenses than what exists under the TRIPS agreement. These additional requirements under the Bilateral Investment Treaties have serious and far reaching implications which are not necessarily limited to a bilateral plane.

Unlike almost all legislative creations, the Constitution of a nation is intended to provide an enduring instrument to serve through aeons of time without frequent revision. Yet it is true nonetheless that the very purpose for its formation is to meet the needs of all generations alike, past, present or future. Fulfilment of such lofty goals cannot be dreamt of unless the constitutional text is subjected to modifications designed to meet the needs of the day. Any amendment to the ‘fundamental law of the land’, that is, the Constitution obviously has significant ramifications on the institutional structure of the nation. This article attempts to explore the reach of the amending power, its need thereof, its position vis-à-vis constituent power and the reason why it should be subjected to certain restrictions like the one that the Indian judiciary had attempted through the evolution of the Basic Structure Doctrine.

The evolution of the concept of criminal liability of corporations is characterized by the judiciary’s relentless struggle to overcome the problem of assigning criminal blame to fictional entities. This is particularly relevant in a legal system based on the moral accountability of individuals. This article outlines the broad range of principles governing the law related to corporate criminal liability and the essential elements required to incur such liability in a comparative perspective. A balance is sought to be achieved between the goals of criminal law and the socioeconomic inefficiency resulting from indiscriminate application of criminal liability to corporations. The article also seeks to highlight the dilemma inherent in the contemporary attitude toward the so-called ‘white collar crimes’. A rise in corporate crimes signifies an apparent failure of corporate governance that in turn necessitates more effective law enforcement. The appropriate standard has been suggested to be achievable successful enforcement of behavioral norms within the corporate framework by a combination of internal governance structures and criminal prosecution.

The International Court of Justice, in the Jurisdictional Immunities of the State: Germany v. Italy, had an opportunity to elaborate upon what qualified as an ‘interest of a legal nature’ to permit intervention in a proceeding before the Court. The argument put forth by the party seeking permission to intervene, i.e., Greece, was that a judgment favouring German claims may potentially affect its legal interests and rights. Greece was granted the permission to intervene. Yet, the Court omitted to answer what qualifies as a legal interest, and has left the participants in the international legal order in the dark regarding the preconditions to intervention before the Court.

This paper attempts to delineate the myriad contours of a moratorium on smoking as examined from the point of view of public health and law. In pursuance of the same, it analyzes the topic from the following perspectives: firstly, an identification of the classes of society primarily imperilled by the practise of smoking; secondly, an enunciation of the various arguments present for and against a moratorium on smoking, and thirdly, the current legal position with relation to a ban on smoking, which would include both Indian as well as International strands of opinion. At the same time, it focuses on ancillary issues such as the linkages between smoking and media as evinced by areas as diverse as advertisement and the world of celluloid, the causal relationship between smoking and elements of society such as women, along with an examination of the impact of the practise of smoking on culture as such. By analyzing each of these topics, it attempts to irrefutably demonstrate the importance of such a topic in the public health and law discourse.

Given the need and urgency of a transparency measure in governance in the light of the controversy surrounding the elevation of Justice P. Dinakaran to the Supreme Court ,the present article seeks to examine the accountability-independence continuum in the context of the Indian judiciary .Through the course of this article, we opine that judicial independence and accountability are a necessary concomitant of the process of governance and an isolated evaluation of the two is undesirable for the proper functioning of democracy. If one takes an approach which views accountability to be at loggerheads within dependence, one runs the risk of not appreciating the subtle relationship between corruption and independence. The former, if unchecked, leads to a situation of disrespect of the law and therefore poses a challenge for the judiciary to establish its independence in letter and in spirit. Our central argument is that an independent evaluation of judicial independence and judicial accountability is unwarranted and we seek to suggest the same through an analysis of public accountability debate and the controversy surrounding the recent Judge’s (Declaration of Assets and Liabilities) Bill 2009.