Year: 2016

A book which is intended to be nothing more than a commentary on an area of law is expected to have specific objectives. Firstly, the book should map out the general principles that are a part and parcel of the concerned field of study. Secondly, the book should provide explanatory notes with lucid illustrations, explaining the various situations where the general principles have been applied. Thirdly, the book should give an updated account of case laws, which ought to fall into two categories- the cases should either be such that the decision therein adds a new dimension to the existing understanding of the subject area or they may be such as to reaffirm the existing notions and authorities…

The rights and obligations of the parties involved in an administrative litigation in China are important for realizing the targets, to protect the individuals’ rights and to limit the public powers set up by the Administrative Procedure Law, 1989. According to the law in China, a plaintiff refers to an individual, a legal person or other lawful organizations, whose rights have been directly affected by a defendant, viz. a public authority or its employee exercising public powers. This position has, however, experienced reformation and expansion by the Supreme People’s Court’s interpretation of law and the introduction of public interest litigation. A plaintiff is now guaranteed the right of access to a court, right to counsel, right to motion for conflict out, etc. These rights are to be exercised lawfully and should comply with the rules and instructions laid down by the courts. Since all the parties are equal before law, a defendant or a third person is guaranteed similar rights and also subject to similar obligations. A few differences, however, exist among them as well. In the course of this paper, I will undertake a thorough analysis of this subject to reveal the inconsistency between the norms and the reality, thereby showing that the realization of the rule of law in China still has a long way to go.

Many argue that there are linkages between trade and human rights regimes. The author takes the argument one step further and enquires whether trade regime itself can be termed a form of human right protection. In addition to examining individual WTO Agreements and provisions like Article XX of GATT, the author also argues how the broad principles underpinning the trade regime, like non-discrimination, right of market access and right of participation go on to further human rights. She also addresses some concerns as to how trade and human rights cross roads at times, like the case of liberalisation of essential services.

Power to amend the constitution is distinct from the power to amend any other legislative instrument in view of the fact that the former is a power to alter the most significant instrument in the polity. The apex court of the country has also recognized this distinction while equating the power to amend the constitution with constituent power. In our opinion, this position needs to be reviewed since there is significant difference between the concept of constituent power and the power to amend the constitution. For a clear exposition of the nature and limits of the power to amend the constitution, a proper understanding of it’s distinction from the concept of constituent power is imperative and providing that is the intended objective of the present paper.We conclude that the power to amend the constitution is an aspect of governmental power, distinct from sovereign power, which is fettered by the constitutional form. The constituent power, on the other hand, is an attribute of the sovereign unfettered by any constitutional limits.

Since the release of the report of 2nd National Commission on Labour in 2002, there has been a major apprehension regarding its philosophy among scholars, political parties and general public alike. There has been a general apprehension that this report espouses a philosophy of ‘hire and fire’ and in doing so, it compromises the aspect of labour welfare. In the present paper, we have attempted to understand and analyse the real philosophy espoused by this report and in doing so, provide a proper evaluation of this report. In analysing the report, we have tried to understand whether there was an actual need for having a reform in Indian labour regulation regime and if at all reform was a necessity, whether the present scheme of reform has addressed such needs or not. Finally, by such analysis of the scheme of reform, we have attempted to answer the question as to whether such reform scheme is indeed a compromise with labour welfare.

The author by way of this paper has attempted to argue that disenfranchisement of prisoners often tantamounts to their civil death. In pursuance of the same, the author has attempted to correlate diverse strands of thought such as the principle of universal suffrage, qualifications for voting as well as the comparative poitions in other countries. The author has then attempted to correlate the aforementioned strands of thought to the Indian position and the effect of international instruments on the same in an effort to answer the basic question as to whether prisoner disenfranchisement qualifies as a reasonable restriction to universal suffrage

Paragraph 2(1)(b) of Schedule X of the Constitution of India seeks to ad- dress defection by preventing parliamentarians from defying the direction of the party whip during times of voting. The wide phraseology of the provi- sion has led to misuse of this power, which has resulted in a chilling effect on the freedom of speech of the members of the house. The provision con- fuses dissent for defection and thereby, stifles a vital cog of parliamentary democracy. Further, by regulating voting, there is a flagrant curtailment of parliamentary debate, the implication of which has been meagre discussion before the passing of crucial bills. There is no logical link between this pro- vision and the aim of improving party stability. Further, it has not contrib- uted to checking the concomitant evil of corruption in Parliament. Despite the issue being highlighted by the Supreme Court in Kihoto Hollohan v. Zachillhu,1 the solution proposed by it has been largely ineffective and done little to neutralise the harm arising from this provision. The purposive in- terpretation given to this provision thus mandates a relook to further water down its unintended scope. This paper argues that the appropriate solution is not the repeal of Paragraph 2(1)(b), but a constitutional amendment to restrict the instances where members can be disqualified for defying whips. Such an amendment would not only address the stated harms, but also bring India’s defection laws in line with American and English parliamen- tary principles.

On the face of it, The Protection and Utilisation of Public Funded Intellectual Property Bill, 2008 appears to be a progressive piece of legislation. Modelled on the American Bayh-Dole Act of the 1980s, the Act makes it mandatory for institutions to create well-defined intellectual property rights over any innovation arising out of publicly funded research and also to exploit these innovations commercially. Universities, research centres, laboratories etc. would thus be able to reap the financial benefits of their innovative work which, it is hoped, would spur on further innovation. There is, however, much to suggest that the Bill in its present form may not be the panacea that it has been touted to be and there is a need to take a closer look at the apparent success of the Bayh- Dole Act in America and in that context to undertake a rigorous examination of the relative merits and demerits of the Act not only to explore the possibility of improving upon the model but also to better adapt it to the different scenario that India presents. Once the Parliamentary Standing Committee on Science & Technology, Environment & Forests gives its report on the Indian Bill, it will be the prerogative of the Parliament to discuss and debate on the Bill. This article thus seeks to highlight certain issues that the legislature should take into account when considering this Bill.

Sustainable development aims at improving the quality of human life while living within the carrying capacity of supporting ecosystems. The rhetoric raised by the advocates of sustainable development has compelled States and corporations alike to take initiatives to ensure compliance with standards believed to be consensually accepted. However, because of their immediate commitment to enhancing shareholder value and other structural flaws, corporations have inevitably turned out to be major defaulters. Hence in many instances, it has been seen that corporate social responsibility (CSR) initiatives remain mere theoretical models, lacking practical utility. This state calls for a green corporate governance mechanism involving public-private participation (PPP), where the corporation seeks to adopt a consensually constructed mechanism to address the concerns of all stakeholders by operating from a more grounded platform of green policies. As the paper progresses, it shall be examined whether such PPP initiatives can yield desirable results in complex economic and legal settings. Another critical area of research would involve whether CSR policies should be bespoke designed by the corporations themselves, or should be guided by larger public policy goals. We shall also dwell upon the business case of CSR, seeking to find the economic motivation behind such policies. This model which has been pitted directly against the strict ‘shareholder model’ of business is an interesting new development, and shall occupy considerable space in the paper.

The propensity of the judiciary in recent times to frequently exercise its contempt jurisdiction has led to a burning debate on the justifiability of such powers of the court. In this context, we have made a humble attempt to examine the genesis of this power of the court, which has been subject to many an academic debate. This paper also throws light on the contentious issues concerning the recent cases where the authority and integrity of the Apex Court of the country have been questioned, and the way in which such questions have been answered. We have made an objective effort to examine the justifications put forth by the judiciary in its defence, especially in light of the rapidly changing image and role of the judiciary in a modern democratic setup.