Year: 2016

The right to work has occupied a central place in the human rights discourse. Yet, a vast majority of the world population survives without meaningful employment. This crisis of employment is more acute among vulnerable communities like refugees and asylum-seekers who are often systematically denied access to the labour market and opportunities for self-employment, thus accentuating the trauma of forced migration. From this vantage point, this paper examines the status of the right to work under international law and its applicability to refugees and asylum seekers. It argues that while there are avenues for the right to work of refugees under the Refugee Convention, there are significant limitations and questions hovering over asylum-seekers’ right to work. In contrast, international human rights law envisages a universalist conception of rights and thus extends to both refugees and asylum-seekers. The paper further avers that situating the right to work within the framework of the International Covenant on Economic, Social and Cultural Rights and related international human rights instruments can create new legal space for protection of refugees and asylum-seekers, especially in countries that have not ratified the Refugee Convention.

The judgment in Kesavananda Bharati is considered by many as an attempt to rewrite the Indian Constitution. In arriving at the conclusions, the court propounded the ‘basic structure doctrine’ that identified certain constitutional features as so essential that they could not be altered. In this essay, I recount the development of Kesavananda’s doctrine and the implications that might follow. In particular, I explore the limits of constitutional development in India and sketch out a broader role for constituent power beyond the Constitution. I argue that the ‘basic structure doctrine’, though extremely significant, upsets key philosophical assumptions about constitutive sovereignty and the limits of constitutional authority, largely because of the way it has evolved. I mark the misjudgements that have been woven into the doctrine, a significant time is spent in extricating it out of this mess and my sentiment through the paper is that ‘basic structure doctrine’ can retain its legitimacy only to the extent to which it can adapt itself to a philosophically affluent framework of constitutional democracy, one which respects both the inevitability as well as minimalism of judicial role. My task takes me through landmark decisions in Nagaraj and Coelho and I explain how they herald a new beginning in the right direction. Towards the end, I call for a structural shifting the competing perceptions the doctrine enjoys in the ranks of judiciary and the Parliament in an effort to raise them to the task of constitutional accountability. This is a conversation about the most enduring contribution to Indian constitutionalism.

The link between sex and privacy is not self-evident. The protection of the ‘right to privacy’ is accorded to only those sex acts that have the normative qualities of patriarchal, heterosexual marriage. Additionally, a privacy-focused legal intervention to extend protection and recognition to non-normative sexualities, could have problematic implications for queer politics itself. This article is an assessment of the ‘privacy argument’ as articulated in the Naz Foundation judgment, against the backdrop of this troubled relationship between non-normative sexualities and dominant understandings of privacy. While the court in Naz has moved away from a narrow ‘space-based’ notion of privacy, it continues to view privacy as a negative freedom, the scope of which is rather limited. Additionally, while the exclusivity and ideological dominance of the ‘private’ is busted by dissociating the claim to privacy with heterosexual marriage, the judgment introduces other normative codes for sexual relationships that are protected by privacy. The article notes that the privacy analysis in Naz Foundation has both possibilities, which must be emphasized and limitations, which must be regarded as areas of further struggle. In the final analysis, one must however acknowledge the limited role that any privacy-based intervention can play in counter-heteronormative struggles, since the ideas of ‘natural’ and ‘unnatural’ sexualities are left unexamined, no matter how one may frame the privacy question.

Minimum alternate taxation is a measure to address the growing problem of companies that declare high profits, but pay low or no taxes (‘zero-tax’ companies). Parliament has experimented with its approach to MAT since 1983 and continues to do so in the proposed Direct Tax Code. This paper charts the various changes in the MAT regime made over the years and the interpretational problems that have arisen with provisions for MAT credit, advance payment of MAT and calculation of book profits. It then considers the merits of this taxation regime with reference to the economic effects of the burden of this tax, and the attendant compliance and record-keeping costs. With this in mind, this paper argues that the MAT regime should be modified and puts forth two proposals for reform to make the corporate taxation regime clear and efficient.

It is a privilege to be invited to address a group of young men and women who are at the threshold of their career in the profession of law. This event marks a watershed in the life of those graduating today, but it is only the beginning of an arduous journey of life. I am grateful to the Chancellor and the Vice-Chancellor for the invitation to deliver this convocation address…

Although Article IV of the Outer Space Treaty (OST) prohibits the deployment of nuclear weapons and any other kinds of weapons of mass destruction in the outer space, owing to serious drafting faults and interpretative conundrums, ground-based Anti-Satellite (ASAT) missiles have been left out of its purview. The failure of the states to adopt an agreed definition of ‘peaceful uses’, stipulated under Article IV, has left scope for attributing the colour of legitimacy to ASAT missile testing. This being the situation, the present paper ponders into the question of legality of testing and deployment of ASAT missiles under the present legal framework. It highlights loopholes in Article IV of the OST, which aid states to transgress the barriers of international law. An exclusive treaty to control or prohibit anti-satellite weapons is a far fetched dream given the nonexistence of such political will among concerned nations. This is evident from United States ‘rejection of the proposal of Russia and China for a new treaty regarding this. Hence the paper suggests plausible solutions to this quandary from within existing international legal framework.

By employing a human rights perspective, this paper focuses on Corporate Social Responsibility (‘CSR’) and its impact and relevance in the globalized, commercialized world. The discussion around CSR takes into consideration three important developments: enormous growth of corporate power (without commensurate accountability), a paradigm shift in the nature of development and emerging claims from victims of corporate activities. The paper responds to these considerations by concluding that CSR has been the preferred model for achieving corporate accountability. The right to development against corporations has also impacted the functioning of corporations and the evolving nature of CSR. The paper also discusses recent examples of measures aimed at protecting victims from corporate activities.

The rules of the game of investment in the stock markets have more to it than what meets the eye. The real position and scope of powers enjoyed by a shareholder vis-à-vis the management of the company is nowhere strictly defined. However the developed markets have incorporated rules governing the relationship between a shareholder and the management of the company. Thus, a huge gap seems to exist between the required results that have been obtained by incorporation of such rules in Indian scenario and the one envisaged by the framers. In the Anglo Saxon system, the management has only one objective, namely to act in the financial interests of the shareholders. The management comprises of individual directors and the shareholders are not a part of the decision-making process of the company. In India, the problem of corporate governance though is much different from its European and American counterparts. There seems to be an inherent problem regarding the conflict of interests between the dominant and minority shareholder. This is coupled with the different corporate structures that characterize the Indian market. The role of institutional investor and financial institutions in ensuring a balance between the powers of the dominant and the minority shareholder seem to be negligible. Even the statutory provisions leave enough space for manipulation, which are misused mainly by the family businesses. This article aims at analysing this problem faced by the Indian markets and provide a India Specific model so as not only to protect the interest of the minority shareholder but also ensure better exercise of corporate governance by the companies.

In French law, an award of damages is a means to enforce human rights, such that the breach of such a right urges the payment of compensation. This situation is reinforced by the fact that the European Court of Human Rights alone has the means to ensure the protection of the rights guaranteed by the European Convention. Moreover, a strong debate has occurred on whether to consider the right to obtain compensation in the form of damages as a fundamental right or a human right. This phenomenon, which may be called ‘fundamentalisation’ (in French: ‘fondamentalisation’) of compensation is the primary focus of this article.

The debate surrounding the Indian Judicial System has been deliberating on the means and ways that can be employed to improve its efficiency and functioning. Ina new development, the theme of these debates has focused on the feasibility of having cameras in courtrooms. This proposal can be traced to the United States of America, where camera access to court room proceedings has been in place for the last three decades with the objective of promoting fairness and public awareness about the judicial system. It is envisaged that by adopting a similar approach in India, the justice delivery mechanism would be improved, the masses would be educated about the working of the Indian Judicial System, thereby promoting rule of law in the society. In the United States of America, there exists no Constitutional Right to broadcast courtroom proceedings, and whenever such broadcasts have been made concerns have been voiced regarding their impact on the citizen’s right to a fair trial and due process of law. In India also, there is no constitutional right to televise court proceedings, however the same is not expressly prohibited either. The possibilities arising from this juxtaposition is fertile ground for academic debate, which shall form the subject matter of this paper. Through this paper we seek to do a cost-benefit analysis of introducing cameras in Indian courtrooms and thereby establish that the existing set up would not be able to sustain such an arrangement.