Year: 2016

The Constituent Assembly debates inform us that the duty of the Union towards the States under Art. 355 of the Constitution was incorporated in order to justify the drastic shift in the balance of Union-State relations caused by emergency action under Art. 356. An analysis of various legal authorities’ interpretation and employment of Art. 355, however, reveals a gradual but stark evolution in its character, one which significantly widens the scope of Union action contemplated by it. This paper ventures an explanation for this departure but does not criticize it, as the current position may still be used beneficially. With a substantially wide range of Union interference in the States’ domains amenable to be validated or invalidated on the touchstone of Article 355, however, the concern arises that such interference- and the calls for it– may often be tainted with mala fides or political unscrupulousness. To allay this fear, it is necessary that the constitutional ideal of co-operative federalism be taken note of with fresh vigour. The plea is not utopian as was recently illustrated by the Union’s responses to the Karnataka Governor’s recommendations for emergency action under Art. 356.

A flourishing group of SEZs, otherwise known as Special Economic Zone, seems to be a golden goal for every developing nation that aspires to be one of the giants in international trade. Both India and China had realized the same, possibly three decades back. What differs is the way these two countries have approached this issue. The reason why China is reaping the success now is because of appropriate policy measures that she adopted from time to time. But all is not well with the Chinese model either. India, on the other hand, had been a bit late in implementing the SEZ model. Initially it started emulating China but things just didn’t work the way they were expected to. Till dates he has not been successful in providing a flexible economic environment similar to that of the SEZs in China. An overview of the land laws, labour laws, and government policies clearly indicates why this is so. It is time to revisit our past and learn from our mistakes. There are a number of provisions of law that needs to be amended, reformulated and debated upon so that we can have a definite vision of our SEZs in future and meet our aspirations efficiently

Highlighting the European tradition of providing special protection against amendments of basic principles of the Constitution, I will dwell upon the application and interpretation of that tradition in the German Constitution with a view to help in the understanding of the basic structure doctrine of the Indian Constitution.

The article provides a response to the writ petition pending before the Supreme Court in Kamlesh Vaswani v. Union of India, which seeks to ban pornography in its entirety. A problematic part of the petition is its prayer to criminalise private consumption of pornography as well as the prayer seeking that intermediaries ban pornography. Systematically critiquing the arguments presented in the petition, the author points out that most claims made in the petition are speculative and uncorroborated. More importantly, any paternalistic State intervention, based on the petition, would lead to the curtailment of constitutionally guaranteed liberties and freedoms of citizens. Presenting socio-legal arguments based on the larger contours of liberal constitutional theory, the author argues that the privacy and free speech provisions in the Constitution of India are broad enough to protect private viewership of pornography.

Mergers and acquisitions are increasingly being used and getting accepted by Indian business entities as a critical tool of business strategy. In recent times, with globalization being the byword of success, cross-border mergers are looked upon as a one way solution to gaining access to foreign market and creating an image to compete with big corporates. The attempt by Bharti enterprises to integrate with the South African giant, MTN Ltd., however, brought many lacunae in the Indian laws out of the closet. The article focuses on the deal that could have been, and seeks to look into the various legal and regulatory hurdles that were faced in the process. The authors try to delve into the details and analyse whether various Indian laws dealing with company, foreign exchange matters etc. need an overhaul to facilitate Indian companies to grow and be globally competitive.

The Supreme Court’s 1996 judgment in People’s Union for Civil Liberties (PUCL) v. Union of India was a significant attempt to solve the problem of widespread telephone tapping, and its influence has been strongly felt in subsequent laws designed to balance the right to privacy against the state’s power to conduct surveillance. The safeguards against arbitrariness in the exercise of the state’s surveillance powers designed by the Court continue to apply in the Internet age. However, new mass surveillance programs being undertaken by the Indian government that are unprecedented in their scope necessitate a thorough re-examination of our privacy laws. This note explains how the PUCL guidelines have influenced Indian surveillance law over the past two decades, the manner in which the safeguards designed by the Court have not always worked (or have been circumvented), and argues that with the Internet taking over the telephone as perhaps the most important mode of communication in India today, the time has come to revisit India’s surveillance laws to better protect the right to privacy.

This paper argues that access and free flow of information need to be seen as significant parts of our freedom of expression jurisprudence. In particular, it highlights the role played by information gatekeepers in the free circulation of information. Starting from Ranjit D. Udeshi v. State of Maharashtra, in which the strict liability of gatekeepers was used to restrict the circulation of obscene material, up to the current system for government-ordered blocking of content by internet intermediaries in India, information gatekeepers are used to control information. Our freedom of expression norms need to take this into account besides their focus on the rights of primary speakers, since information gatekeepers can be used to censor speech in an opaque fashion that leaves little room for accountability.

In this paper, I examine American juridical positions on the use of public spaces for religious propagation and solicitation. While the Hare Krishna movement’s ritual of sankirtan has been researched, legal reasoning on the right to solicit donations and preach in publicly accessible spaces that involve economic activities has been less studied. By analyzing these legal positions, this paper offers a glimpse of legal consciousness on the use of public spaces for a non-mainstream religious practice. It is argued that legal consciousness is inextricable in economic rationality, and that legal reasoning normalises disciplined choreographies of purposively rational action, to which regulatory concerns of public safety and orderliness are largely subservient. As public spaces are legally conceptualised within the normative expectations of market rationality, religious activities in public spaces are largely interpreted in material terms.

This paper sets out to ascertain whether Ronald Dworkin’s jurisprudence has had an influence on the Supreme Court of India. Dworkin’s approach to constitutional adjudication is characterised by judges exercising a more judgmental and less mechanical role in interpreting the Constitution. This paper undertakes a comparative excursus by looking at a few landmark Indian cases where reliance has been placed on judgments from the United States of America that have been the subject of Dworkinian exposition. With the aid of Dworkin’s critique of legal pragmatism, a theory of constitutional adjudication that several judges relied on in crafting the ‘basic structure’ doctrine, the paper demonstrates that what the judges did was to substitute their own moral convictions for that of the legislature. In order to bolster this contention, the paper also discusses Dworkin’s critique of originalism and demonstrates how originalism alone does not support the ‘basic structure’ limitation on the amending power of Parliament. It is argued that what does lend support to the conclusion reached in the ‘basic structure’ case, is what Dworkin calls ‘the moral reading of the Constitution’. This conception allows judges to make fundamental moral judgments about conflicting political values. The paper then situates Dworkinian virtues like ‘equal concern and respect’ and a ‘constitutional conception of democracy’ in the larger context of the basic structure doctrine, thereby concluding that Dworkin’s philosophy has found, and will continue to find, expression in the theories and practices of the Indian Supreme Court.

The Indian Evidence Act, 1872, made significant derogations from common law on the topic of confessions. § 25, which makes confessions to police officers inadmissible, is an illustration of this. It has been regularly examined by courts for interpretative and clarificatory purposes. Thus, a vast body of judicial dicta today exists on how to construe this provision. Sifting through this, one notices persistent confusion with respect to a precondition for applying this exclusionary rule, i.e., who is a police officer. This paper undertakes a systematic review of decisions to trace changing judicial techniques for determining who a police officer is for the purposes of § 25. This enables a holistic critique of the current position of the Supreme Court on the matter which, it is argued, thwarts the legislative object behind the provision and is bad in law. It is concluded that an unequivocal statement of legislative intent through an amendment is the only solution to this.