Year: 2016

By rescuing the rule of law from ideological abuse, this paper explores in its postcolonial career in India, continuities with and distinctiveness from the colonial experience. Specifically focusing on the jurisprudence of the Supreme Court on civil liberties, equality and social rights, it claims that ideas of the exceptional and of the outsider have been integral to the modern rule of law project, and that marked continuities can be noticed with the colonial past in so far as they have been acknowledged in Indian public law practice. India’s distinctiveness, though, lies in the invocation of exceptions for the sake of promoting popular welfare in a postcolonial democracy.

The primary focus of this paper is to analyse the suitability and applicability of the United States doctrine of strict scrutiny to Indian constitutional jurisprudence. Courts in India have employed the principle of presumption of constitutionality as well as the rational nexus test to ascertain the constitutionality of laws allegedly violating the rule of equality. In contradistinction, the strict scrutiny doctrine subjects laws based on certain suspect classifications or infringing fundamental rights to higher judicial scrutiny. This paper seeks to analyse the contours of the strict scrutiny doctrine and the approach of the Indian judiciary in engaging with it. Though elements of the doctrine are enshrined in the Indian Constitution, it remains to be seen whether a direct application of the same is desirable in the Indian context, given its vagueness and the constitutional conceptions of equality and rights.

The Forest Rights Act, 2006: Settling Land, Unsettling Conservationists Microfinance Institutions (‘MFIs’) have always been considered as one of the frontline institutions for the propagation of financial services to the poor. Over the years, however, Indian MFIs have not seen the kind of success as their counterparts in Latin America, Europe and Bangladesh. Blind adoption of international models and subsequent commercialization by offering IPOs has not seen desired results. The critics say that MFIs, rather than becoming an alternate have replaced usurious moneylenders. Issues that have shown serious damage in the institutional structure are exorbitant interest rates, loan-sharking and excessive board room battles. Furthermore, legally it is very difficult to regulate the sector because there is a multitude of ways to incorporate such an institution. With each possible way of incorporation comes a new set of rules for its regulation. The question to be answered herein is commercialization of the MFIs the way forward for the sector. In this context, we look at the extant legal regime that governs the sector and the limitations that exist in it for regulating the commercial sector. We propose that such measures should be deterred in India at the moment. Due to the controversies that have plagued the market, especially in Andhra Pradesh, there have been a lot of calls for an independent regulator in the market. It is at this juncture that the New Microfinance regime has been introduced with the new Microfinance Bill and the Reserve Bank introducing a completely new notification setup. We, however, propose that a two-way model for a regulator is the way forward.

Hon’ble Chief Justice of India, Professor M.P. Singh, Vice-Chancellor, NUJS, dignitaries, distinguished faculty of NUJS, guests and above all, students, it is truly humbling to be asked to speak on this occasion for several reasons. The most important reason is that convocation includes many things. It marks an important day in the life of an institution, a signal that the institution has completed its part in a pedagogic mission that brought you here. For the students, it is a ‘rite of passage’ that marks your ascendancy from one stage of life to the next. Convocation is also a celebration of achievement. It is a celebration of the extraordinary talent this institution is about to unleash on the world. One of the reasons I feel humbled is because the talent we have assembled here is truly outstanding. It makes us, those slightly more advanced in years than the students here, seem so behind the times and so inadequate. But this is precisely the thing we celebrate.

Geographical Indications (GI) are signs which identify goods as originating in a specific geographic location. Being a collective right, it seeks to protect the economic interests of an entire community of producers from a particular region who specialize in the making or manufacturing of a native product. Although many products of Indian origin such as Basmati are not adequately protected under TRIPS, at the domestic level India ensures that GI protection is uniformly available to all types of products. While such protection has the potential to bring about economic prosperity of marginalized sections of society, the conferment of GI status to products like Tirupati Laddu have raised concerns regarding the standards followed by the authorities while registering a GI. Critics point out that the grant of GI tag to the Laddu dilutes the very essence of GI protection and facilitates the commercialization of faith symbols by a religious shrine. This paper examines the controversial issues surrounding the conferment of GI designation to Tirupati Laddu.

The strict standards of patentability envisaged by TRIPS posed a challenge to India’s pharmaceutical industries, whose success depended on the ability to produce generic drugs at much cheaper prices than their patented counterparts. A robust patent system would severely curtail access to expensive life saving drugs. Therefore, although India amended the Indian Patent Act, 1970 to protect genuine innovations, it did not extend protection to “incremental innovation” on existing medicines unless such innovation significantly increased the efficacy of the original drug. This article explores the prevailing tension between § 3(d) of the Indian Patent Act, 1970 which excludes “incremental innovation” from patent protection, and pharmaceutical companies pressing for the recognition of the same. Firstly, the article examines the specific reasons behind excluding “incremental innovation” from § 3(d). Secondly, it distinguishes between “evergreening” and “incremental innovation” and argue that the latter is vital for development of new medicine and thus deserves patent protection. Thirdly, it highlights the ambiguity in the language of § 3(d) and enumerates the changes which are necessary to make the provision workable. In this respect, two recent judgments, namely Novartis AG v. Union of India and F. Hoffman–La Roche v. Cipla are analyzed, in light of the impact of this provision on the pharmaceutical sector. It concludes by emphasizing on the need to strike a balance between two seemingly conflicting interests: general public interest sought to be protected by § 3(d) and the incentive for research and innovation which necessitates protection of “incremental innovation”.

Certain legal terms are only capable of illustration and lack a precise definition. Definitions provide clarity but where the definition is not exhaustive there is uncertainty regarding its ambit. H.L.A Hart has attributed this indeterminacy to the ‘open texture’ of certain legal terminology. According to him, every term applies to a standard set of circumstances contemplated by the Legislator and in unforeseen situations giving rise to ‘hard cases’ the Court has to resolve this ambiguity. The first part of this paper analyses this aspect of Hart’s theory of open texture of language and delves into the criticisms put forth by scholars such as Dworkin and Fuller. The term good faith is used as an illustration to demonstrate the application of open texture of language. Good faith is a general principle of public international law and its meaning in the context of international trade law is the focus of this paper. An attempt has been made to analyse cases involving interpretation of good faith arising before the Dispute Settlement Body of the WTO using Hart’s interpretation of open texture of language to discern whether the theory finds application in the area of WTO law.

The use of corporate entity in tax planning is permissible as long as it is not used as a colourable device. The Vodafone judgment in 2009 applied lax standards to lift the corporate veil. If the tax claim eventually becomes successful, it can make any tax planning involving a corporate entity difficult. From provisions related to General Anti- Avoidance Rule, residence of a foreign company, Controlled Foreign Corporations and Double Tax Avoidance Agreements under the proposed Direct Taxes Code, it can be inferred that the use of a corporate vehicle for tax planning shall become more difficult when it comes into application, and may have uncertain results. Although the ruling of the Authority for Advanced Rulings in E*Trade in the same year is favourable towards using corporate entity for tax planning, it does not set a precedent and is binding only on the parties involved. Thus, the paper suggests a cautious approach in using a corporate entity for tax planning.

Genes hold the blueprint of the human body. Since genetic code contains all the necessary information for the continued physiological functions of the organism, patent over a gene can potentially determine all the downstream inventions. In light of genes modified with significant human intervention being considered a valid patentable subject matter under the Patents Act, 1970, this article explores the conflicts between gene patents and the right to health at four different levels, viz., availability, accessibility, quality & acceptability of better healthcare. The propensity to infringe right to health calls for a prudent and vigilant approach. The relevant provisions of Patents Act, 1970 and Competition Act, 2002 may help in this endeavor. The best solution, however, is to expressly exclude genes from patentable subject matter under the Patents Act invoking the rationale in the recent Myriad judgment

At the present time a consensus has emerged on two points involving the constitutional status of social and economic rights, the so-called “second generation” rights. First, such rights are properly included in modern constitutions, and second, they are enforceable to the same extent as first-generation rights to political participation, free expression, equality, and the like. After explaining the current status of social and economic rights in modern constitutions, these reflections identify two important matters that continue to arise: the forms of enforcement and remedies are appropriate for second- generation rights, and some continuing concerns about effective enforcement. Important recent scholarship develops new concepts to supplement older ones, and the new vocabulary is likely to be quite helpful as scholars consider the directions the law takes in different jurisdictions…