Year: 2016

This paper is an appraisal of the interpretation of the law of precedent, international human rights law and morality put forth by the landmark judgment of Naz Foundation in the context of the homosexuals’ right to privacy. First, this paper will summarize the judicial history of the ‘right to privacy’ in India and proceed to argue that the current interpretation of the law as stated by the Supreme Court previously in Kharak Singh’s case is inaccurate. Second, it will examine the validity of certain sources which the Delhi High Court believes reflect India’s obligations under international human rights law. Third, the paper presents a brief overview of the cases from foreign jurisdictions quoted in the Naz Foundation and proceeds to critically examine the relevance of the quotations therein. Finally, the paper attempts to delve into the analysis of ‘public morality’ as distinguished from ‘private/individual morality’, and examine the practical application and consequences of the analysis of these concepts by the High Court. Then, it humbly attempts to further such analysis with the help of certain scholarly opinion evolved in the context of a similar debate in Britain after the publication of the Wolfenden Committee report in 1957.

The universal regime addressing the issues of ship-source oil spill liability and compensation are primarily governed by International Maritime Organization (‘IMO’) conventions. The IMO regime imposes liability on the shipping industry based on the principle that the polluter must pay. The civil liability conventions lay down the principle of strict liability for ship owners and create a system of compulsory liability insurance. Claims for compensation for oil pollution damage (including clean-up costs) may be brought against the owner of the tanker which caused the damage or directly against the owner’s Protection & Indemnity (‘P&I’) insurer. The ship owner is normally entitled to limit his liability to an amount which is linked to the tonnage of his ship. This paper gives an overview of the international liability and compensation regime for oil pollution damage and the modus operandi to deal with the claims for compensation. This article argues that even though the conventions provide for a comparatively straightforward claims’ procedure, claimants are less likely to be able to obtain adequate compensation in the event of a catastrophic oil spill and the oil industry is thus under less pressure to prevent oil spills. However the system set up by IMO met with response to in the international community which is apparent from the adoption of the system is on the increase.

There is considerable dissonance between the text of the Arbitration and Conciliation Act, 1996 and the judicial decisions interpreting it. This discordance has a significant impact on arbitration in India. This paper analyses the possible impact of these discrepancies through eight cases decided by the Supreme Court in the past decade.

The recent decision of the Supreme Court in Santosh Bariyar is a welcome step in India’s death penalty jurisprudence, in that it revisits the case of Bachan Singh as the defining law on the subject. The judgment calls for the prosecution to show by leading evidence that there is no possibility of rehabilitation of the accused and that life imprisonment will serve no purpose. This article essentially seeks to explore the ramifications of this judgment on India’s death penalty jurisprudence. The article begins with an examination of the recent trend towards abolition of the death penalty, to mainly highlight that as the international community’s consensus against the death penalty grows, India is becoming increasingly isolated in its commitment to it. Then it seeks to discuss the changing climate in the body of India’s death penalty jurisprudence, by tracing the transition from ‘the death penalty as the rule and life sentence as the exception’, to the concept of ‘rarest of rare’ dictum. In the light of the above cases, the new standard laid down in the landmark Bariyar case will be examined and critically analyzed in light of the fact that it will have the fundamental effect of restricting the imposition of the death penalty drastically. Lastly, we will seek to answer the question whether the Bariyar judgment marks the end of death penalty in India.

The 15th Conference of the Parties (COP 15) of the United Nations Framework Convention on Climate Change (UNFCCC) in Copenhagen was meant to work out an international response to climate change and develop a cooperative long-term plan to address climate change. The outcome of the summit was a three-page ‘Copenhagen Accord’. Termed by many as the ‘dead deal’, and bitterly criticized by many environmentalists, it fails to map a clear path towards a treaty with binding commitments. India’s stand at the summit was that the focus should be on ‘per capita’ emissions and that future emission targets should take into account the historical ‘wrongs’ of the industrialized countries. In the wake of heightened concerns about rapid climate change and the devastating impacts that it can have on India, the ‘per-capita’ argument is increasingly losing force. This paper is an attempt to evaluate the contours and implications of this stand taken by India, and to probe into the question as to whether India is doing enough to combat climate change. We argue that India should abandon its present stand and negotiate to join a post 2012 International Agreement on Climate Change, provided it can secure a fair deal.

Certainty lies at the heart of taxation law as individuals must be aware of what might be taxable and thus be given the liberty to plan their finances accordingly. It is in this light that the principles of classification in service tax law assume importance as they provide guidance regarding what head a service may be taxable under. So, how are these principles that can now be found in the text of the Finance Act to be interpreted? What happens when principles of classification are incorrectly construed? This paper attempts to answer these questions, studying the decision of the Chennai CESTAT in Future Focus Infotech v. Commissioner of Service Tax. The paper argues that the decision of the CESTAT is incorrect and can have undesirable repercussions as precedent.

Eco warriors and wildlife enthusiasts subscribe to the green credo that, while journeying through wide-open spaces, one should “take nothing but memories and leave behind nothing but footprints”. This is getting harder and harder to do in the electronic frontier. Intimate details of one’s personal life are being captured, copied, accessed and preserved all the time, everywhere, instantly. The corporate greed for capturing personal data, coupled with increasing surveillance by governments, makes privacy a critical theme for public discourse. This paper hopes to provide a broad sweep of key developments on the legislative front, particularly in India and Europe, while placing the big picture concerns in a global context. It hopes to transcend the narrow “privacy as a human right” rhetoric and ex- plain why caring about privacy is as much a corporate concern as a private anxiety. It sets out some of the key drivers for taking it seriously and the rationale for why privacy makes good business sense.

Picking up the debate on cultural relativism of human rights, this paper traces the Indian tradition of human rights, which is found to be fully supportive of the idea of human rights. The state in the Indian tradition did not, however, acquire or wield the kind of monopoly of power in the secular sphere of society as it did in the West. Consequently, in the Indian tradition the state was not perceived as the sole violator of human rights, though it may have ignored or connived in their violation. For this reason the Indian tradition does not construct the idea of human rights as freedom from state only but as an idea of a society in which each and every individual is entitled to be so placed as to be able to attain its best in life. The state is required not only to keep off the individual but also to facilitate the realization of its best. The state is perceived not an adversary but a facilitator of the interests of the individual. The two must, therefore, work together towards the realization of those interests. In case the state fails to perform its role the individual must have and does have the right to invoke the legal process. This is the conception of human rights that lies in the heart of a common Indian and is incorporated in the Constitution of India.

Without making any value judgment or taking sides on the propriety or otherwise of consensual homosexuality between adults, this paper examines the constitutionality of Section 377 of the Indian Penal Code. It concludes that Section 377 does not violate the Constitution. Therefore, the Delhi High Court decision in Naz Foundation cannot be sustained unless the Supreme Court overrules the existing interpretation of the Constitution or reinterprets Section 377.

In July 2009, a Fourteen-Judge Bench of the Supreme Court of Pakistan in Nadeem Ahmed v. Federation of Pakistan, headed by Chief Justice Iftikhar Mohammad Chaudhry, has come out strongly in support of democratic principles hitherto neglected in Pakistan, by issuing a stern and categorical rebuke to the constitutional excesses by the former President and Army Chief, General Pervez Musharraf during his rule. The judgment also facilitates the initiation of the subsequent parliamentary process of prosecution of the General for treason for violating the Constitution, which would ultimately seal the fate of not only the man, his regime and its sympathisers, but also the very future of the melange of constitutional breakdowns and political coups and martial law in Pakistan. Pakistan, born one day before the independence of India, is a namesake democracy where democratic values have remained as elusive as the political stability which successive generations of Pakistani citizens have yearned for. Four political coups, a dominant history of military rule, three wars with India and great internal instability in the form of indigenous terror outfits have distorted the existence and efficacy of democratic institutions in the country. Moreover, the repercussions of the internal political affairs in Pakistan have always had a nefarious influence on the strategically fragile relationships in the Indian subcontinent. In the course of this article we intend to primarily engage in a critical analysis of the landmark judgment in light of the political and legal developments that unfolded in the run-up to the proclamation of Emergency in 2007 and those that ensued in the aftermath of this constitutional breakdown in light of persistent struggle for power and domination that has existed between the judiciary on one side and the legislature, executive and the military on the other since the inception of the State, and which remains unresolved till today.