Year: 2016

The subject matter of this paper deals with the status of police reforms being implemented in India. The issue has been addressed in a number of Supreme Court cases and also in several Committee Reports, which have prepared the groundwork for a radical change in the Indian Police system. These recommendations form the crux of this paper, and we have made a critical analysis of those recommendations to moot a feasible mechanism for the effective implementation of the same. An appraisal of the suggested reforms is all the more important because the new mechanism has been designed to meet the futuristic needs of the new millennium. Recommendations aimed at minimizing political interference in the functioning of the police, have be looked into. Special effort has been made to understand the radical reforms like bifurcation of the force, so as to objectively assess their desirability. In order to have a comprehensive understanding of the subject matter of the paper, the nature of police functions in other countries has been discussed. We have also made a suggestive examination of the feasibility of such drastic changes in the policing system to face the challenges of 21st century.

After more than a year of high-pitched campaigning by rival lobbies of forest conservationists and tribal rights activists, the Scheduled Tribes and Other Traditional Forest-Dwellers (Recognition of Forest Rights) Act, 2006 came into force on December 31, 2007. The Act aims to provide a framework which recognizes and vests forest rights in forest-dwelling tribes, and to foster a new forest conservation regime which actively seeks the participation of forest-dwelling communities in conservation efforts. Tribals of India have been residing in forest land for generations, cultivating and collecting forest produce. However, their traditional rights have hitherto not been adequately recognized and recorded. The Act thus marks a radical departure from existing forest legislations. The Act has been lauded and reviled in almost equal measure. Tribal rights activists perceive it as an instrument for correcting historical injustices. Environmentalists on the other hand project severe ecological fallouts. They see the law as a land distribution scheme which will lead to rampant deforestation. The discourse on this subject has, therefore, been predominantly adversarial in nature. We do not see tribal welfare and forest conservation as either separate or opposing goals. Having discussed the corrective justice dimension of the Act, we have advanced rebuttals of the principal claims of the opponents of the Act. Finally, we have established that ownership rights over a certain property automatically create a certain incentive to protect that property.

The word ‘Commons’, traditionally has been used to connote the joint ownership of certain resources by the people. Such resources include gifts of nature and other ‘free’ resources like water, air and land. Today however, the concept of Commons has been given a new connotation so as to propound a movement that envisages more public participation in the management of things and systems other than just natural resources. In the legal realm, this translates into a movement for decentralization of law. In other words, it talks of decentralization of law from the realms of State domain to that of Public domain so as to bring in more public participation in the formulation and implementation of law. This is what is posited to be the central theme of the Contemporary Commons Theory. Of late the Commons theory has come into prominence primarily as a result of the effect of technology on State Power. Global Communications have greatly eroded the State Power. It is this failure of the State power that lays great promise for the Commons Perspective to Law which calls for a laissez faire vision to law, thus bringing about a “bottom –up” regulation by non- state actors. In other words, the Commons perspective calls for the freedom of private entities to generate their own law – i.e. the law of Google, or the Terms of Service imposed by MSN Online. The Commons Theory debate of today has been brought about by debates in the areas of Privatization of the Internet, Network Neutrality rules in telecommunication law, Propertization of the radio frequency spectrum and as as well on media concentration. It is these issues that will form the core focus of the research in the present context.

Borrowing from Jurisprudence and Law and Economics, this paper seeks to establish that the existing intellectual property rights regime under TRIPS stipulates inefficient and overly stringent forms of protection. It has been suggested that an ideal regime must not afford a homogeneous protection. Distinction must be drawn, for instance, between want-based and need-based (life saving) products. It has been submitted that a weak IPR regime in need-based products is a reasonable restriction upon the individual rights of the innovator to ensure emergence of competitive markets and fair pricing, albeit justifications may be found for stronger protection for want based goods.

Water is the elixir of life – it is as fundamental as the air we breathe or the food we eat. In light of the role that it plays in sustaining life and the daily needs of people around the world, right to water manifests itself in the form of a basic human right. Right to water exists in close association with other related aspects like sanitation and basic cleanliness of the community. Without ensuring the latter, the former will hardly have any concrete consequence. Despite many efforts at the international level to focus on the need to recognize and label the right to water as a fundamental human right, nothing concrete has been achieved till date. The repercussions of a post-WTO and GATS world economy, which talks of trade in services amongst nations, adds another critical dimension to the entire discussion on the right to water as a fundamental human right. This warrants a debate into the merits and the justification of viewing the services accruing from water as being a tradable commodity juxtaposed against the other extreme of it being a basic human right. The right to clean drinking water emerges, in this context, as the focal point of discussion, which has been examined from various legal and social angles in this paper.

Recent times have witnessed a spate in the use of modern scientific techniques such as the lie detector, brain mapping and narco analysis, for use in criminal investigation. Although the legal and ethical propriety of their use has been in doubt, they may in fact be a solution to many a complicated investigation. This article describes how the techniques may be used against an accused and concludes that although the legal setup in India may limit the evidentiary use of the techniques, their extensive deployment, particularly that of narco analysis, in investigative processes, in itself violates the fundamental rights- against self incrimination, health and privacy of the accused. Courts in India have taken into account an incomplete consideration of the law, which is the reason for their conclusion in favour of the tests. While the tests may be a practical necessity, the sanction of the law for some of them is difficult to find, and extensive safeguards need to be laid out to prevent their abuse. It is now upon the Supreme Court to define the limits of such tests in context of the rights affected, or vice-versa.

Developmental projects in India have displaced millions of people and yet there is not a single national legislation on rehabilitation. Though the judiciary has recognised the right to be rehabilitated as a fundamental right under Article 21 of the Constitution of India, the right was not granted in reality, as has been seen in the cases of Narmada and Tehri dams. This paper aims to propose a solution to the present situation by suggesting an expansion of the international definition of the term ‘refugee’ by including in its scope internally displaced persons such that international pressure can be created on nation states to grant rights to refugees.

One of the top medical schools in Karnataka offers a pocket pinching bond of Rs. 6,00,000 to the medical students if they refuse the compulsory rural service after their graduation. What is even more striking is students often opt for forfeiture of the bond than agree to a secondment in a village! The Ministry of Health, by considering the proposal of compulsory rural internships for students of medicine in 2007, has opened a can of worms. There has been a lack of consensus in the medical fraternity regarding the feasibility of the proposal. Students have constantly resisted the idea as it means extending their course to a term of six years. While on one hand, the State considers the compulsory internship as an instrument to full obligations as a welfare state, medical students protest on, what they feel is a form of conscripted labour. Can the students argue that their rights under Art. 19(1)(g) stand violated by this compulsory form of service or can the State demand rural service in return for a subsidized medical education? This paper tries to present the debate between the medicos and the State against the larger out- lay of public health as well as constitutional freedoms. An attempt has been made to evaluate the merits of arguments made on both sides and present an efficacious model reconciling their concerns, in light of the larger issues involved.

In September 2011, the Securities and Exchange Board of India (‘SEBI’) notified an overhaul of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, by introducing the 2011 Regulations. The changes introduced in the new regulations are based substantially on the recommendations of a committee that it had set up to review the working of the 1997 Regulations. Three fundamental changes have been introduced by the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011. First, the level of share ownership or voting rights, which triggers the application of the Takeover Regulations has been increased from 15% of the shareholding to 25%. Once this level is reached, an acquirer now has to make a minimum open offer of 26% of the shareholding of the company, which is an increase from the 20% that was stipulated previously. The third major change introduced has been the compulsory inclusion of non-com- pete fees (fees paid by the acquirers to promoter shareholders, so that they do not start a competing business after the takeover of their company) in the offer price per share. This paper analyses the effect of these amendments to the Takeover Code on the acquirers and shareholders of target companies. The paper seeks to provide a reasoned assessment of the effect of these amendments on the Indian capital market.

Protection against the unlawful deprivation of life and liberty, assured to persons with disabilities in the United Nations Convention on the Rights of Persons with Disability, is a negative freedom, unrealisable unless the right-bearer has the ability to realise such a freedom. This is rooted in the proposition that we cannot be considered free to do that which we are una- ble to do. Law’s recognition of ability to transact freely with the world is by way of the legal construct of capacity. Forced intervention and institution- alisation of persons with mental illness denies rational agency to persons with mental illnesses on an assessment of lack of capacity. The legal insti- tution of ‘guardians’ and other substituted decision-makers further aggra- vate this denial of capacity of persons with mental illness by providing for a denial of agency. This paper argues that the universalist model of legal capacity requires law-makers to embrace a paradigm shift, from viewing ability as central to the human condition (and consequently to ‘capacity’) to viewing ‘disability’ as central to the human condition. This would entail the recognition of the fact that all human beings are in some sense disa- bled ̧ thus widening the range of ‘normal’. This paradigm would only allow function-specific capacity assessment to be undertaken so as not to render capacity a status by the tag ‘mentally ill’. The paper also demonstrates the fallacy in the grounds employed to justify the use of force against persons with mental illness to further strengthen the case in favour of abolition of the use of forced medical intervention for persons with mental illness.