Year: 2016

In May 2014, the Supreme Court of India delivered a sensational judgment banning certain bull-fighting practices. The Court, in its analysis, sought to bring animals under the protection of the rights discourse by stating that Article 21 of the Constitution of India could be applied to animal life. The Court stated that the term ‘life’ must be expansively interpreted. As animals form a crucial part of human beings’ environment, their rights must also be protected under Article 21. This paper seeks to address the deeper implications of this judgment by examining the viability of such an approach. It argues that bringing animals within the ambit of rights is not only incompatible with the traditional jurisprudence of rights, but may also be an ineffective method of addressing the larger issue of protecting animals. It recommends a shift to a duty-based approach towards animal welfare which is more likely to succeed in ensuring the safe and humane treatment of animals by humans.

With the pronouncement of the judgments in Triveniben v. State of Gujarat, Mahendra Nath Das v. Union of India and Shatrughan Chauhan v. Union of India, the Supreme Court has assumed to itself a ‘post-mercy rejection’ jurisdiction. Within the constitutional framework, on being awarded death penalty, convicts may, after exhausting certain judicial remedies, approach the President or the Governor, who are constitutionally empowered to grant pardons and reprieves. We argue that this right has often been abused by people who exercise it in the hope of delaying their execution and thereafter using such delay as a ground to seek commutation of their sentence. While the courts have taken note of this fact, they have chosen to rule in favour of the convicted persons whose mercy petitions have been rejected by the President. The convicts seek judicial recourse, in form of commutation of their death sentence, on the grounds there has been a delay in rejection of their clemency petition. We reason that the courts must accept certain inherent systemic features, which although cause delay, also prevent the failure of the constitutional machinery. The courts must consider intervention only in light of all the circumstances that lead to a fundamental change in circumstances since the original sentencing decision. The relevance of considering this fundamental change is that in the intervening period after the awarding of the sentence by the courts, the circumstances are now so different that had the judiciary been considering the case at the initial stage it would not have imposed the death penalty to begin with. This proposition, as laid down by the same Court in Triveniben case has over time been diluted. As is seen by the recent cases the judiciary has adopted a very convict-centric approach when considering commutation cases. To carve out an additional ground for clemency even after the convict has been awarded the death penalty by the judiciary and the executive has rejected their mercy petitions, is judicial overreach. In an attempt to conjure novel remedies for convicts from constitutional silences, the judiciary has completely turned a blind eye to justice for the victims, and society as a whole. In the process, it has in essence upset the constitutional scheme and assumed the power of granting mercy to convicts, which hitherto was the sole prerogative of the executive head.

The Supreme Court of India recently upheld the constitutionality of § 377of the Indian Penal Code and thus recriminalized adult consensual private same sex conduct. In doing so, the judgment overturned a four-year old Delhi High Court decision finding § 377 unconstitutional on the basis that the Section violated the rights to life and personal liberty of lesbian gay bisexual and transgender persons living in India. Evidence shows that antisodomy and same sex criminalization laws, such as § 377, have predictable and detrimental health effects. Such laws create legal and social barriers to effective prevention and treatment of HIV/AIDS. The resulting limited access to medical information and treatment for life-threatening conditions (HIV/AIDS) violates the constitutionally guaranteed and internationally recognized right to health of lesbian gay bisexual and transgender persons and men who have sex with men. However, this paper argues that public health arguments to repeal homophobic laws may act as a double-edged sword if not appropriately placed within a human rights framework. Basing the repeal of such laws on a public health rationale (namely, the increased prevalence of HIV/AIDS in these high risk communities as well as amongst the general population) only further associates lesbian gay bisexual and transgender persons and men who have sex with men with sexual disease sand haphazardly premises their rights on medical reports and expertise and not their fundamental human rights. Reports, affidavits and articles submitted on behalf of the petitioners and interveners in Suresh Kumar Koushal v. Naz Foundation indicate that § 377 creates a discriminatory environment through the institutionalization of stigma and police harassment, negatively impacting the access to HIV/AIDS prevention, treatment information and resources for gay bisexual and transgender persons living in India. Furthermore, international comparative studies of countries in which same-sex conduct is criminalized demonstrate consequential reduced access to HIV/AIDS information and services. In such countries, high-risk groups (e.g. men who have sex with men) are ashamed and afraid to provide vital sexual information to health providers for fear of social harassment and potential arrest. The Supreme Court’s recent decision to reinstate § 377’s application to private consensual same sex conduct unfortunately overlooks these important health considerations, and will likely lead to similar negative health outcomes— thus, in turn, resulting in constitutional violations of the right to health and, consequently, the right to life of the sexual and gender minority persons living in India.

Orwell’s dystopian masterpiece, 1984, describes a society where the government manipulates the thought process of its subjects by forcing them to communicate in a watered-down version of English called ‘newspeak’, incapable of expressing ideas like ‘liberty’. While a causative function between language and thought process has been debunked in modern-day linguistics, it is a reality that legal systems across the world accord gratuitous value judgments to one of the most primordial facets of human identity in an effort to consolidate artificial constructs of nationalism, often with punitive consequences for those who refuse to conform. At this juncture, with increasingly fervent language right campaigns in Ukraine and Northern Ireland and unprecedented rates of language extinction, what legal mechanisms are in place to bind governments into granting minority linguistic communities the rights they are due and keeping threatened languages from vanishing for posterity? This paper seeks to first analyse the processes that underlie linguistic imperialism, by tracing the history of legally enforced linguistic homogenisation in France, and then to mark out patterns of normative language regimes worldwide, before an analysis of international instruments on minority language rights, limitations thereof, and need for substantive overhaul. This paper is part linguistic research and part legal critique. The title has a quote attributed to Albert Camus which translates to “my fatherland is the French language”.

The recent protests against the Supreme Court verdict on the constitutionality of § 377 of the Indian Penal Code, 1860 were based on the argument that matters of sexuality between consenting individuals is a matter of private orientation and choice and hence the state has no right to intervene and criminalize them. While I oppose the state’s right to intervene in consensual sexual relations, I want to argue against pushing matters of sexuality into the confines of private space and want to suggest instead that the normativity of sexual expressions should be debated more rigorously, not in the criminal proceedings of the court, but in the social, cultural and political spaces. Not only because the personal is political but because sexual experiences remain essentially a matter of phantasms, representations and imaginations and are hence necessarily collective and cultural. Critically discussing two ‘supposed to be’ taboo-breaking films on minority sexuality– Blue is the Warmest Color and The Sessions – I aim to show how heterosexual male fantasies, anxieties and biases resiliently and potently circulate in our culture and colour all forms of sexualities. The debates on the recent Supreme Court verdict should open up matters of sexuality for robust political and public deliberation, and in doing so, challenge the circulation of hetero-normative male fantasies intimately shaping ideas about (especially female) sexuality.

Barring a few legitimate exceptions, most non-compete covenants have been frowned upon by the competition regulating agencies worldwide. While reaching a conclusion, the agencies look at, inter alia, the temporal and geographical impact of the clause in the business transfer agreements in a Merger & Acquisition transaction. Any agreement having the ultimate effect of stifling legitimate competition in the relevant domestic market is condoned by regulating agencies worldwide. The European and American position regarding the treatment of a non-compete clause in an M&A transaction has been clear and well-grounded in their respective economic realities. The position of the Indian authorities, until very recently, has been ambiguous and unpredictable, where glaring inconsistencies have been observed. The Competition Commission of India’s decision in the Hospira Healthcare India Private Limited, Orchid Chemicals and Pharmaceutical Limited case goes a long way in deciphering the intention of the Indian agencies vis-à-vis the legitimacy of a non-compete covenant in M&A transactions. This decision has helped India enter the list of nations where competition restraints are judged with utmost precaution.

The judgment of the Supreme Court in Suresh Kumar Koushal v. NazFoundation engages only minimally with foreign and comparative law. This is in stark contrast to the Delhi High Court’s judgment in Naz Foundation v. Union of India that was consequently overruled. This essay focuses ont his lack of engagement with foreign law in Koushal from three perspectives. First, it critically examines the reasons advanced and the domestic precedents cited in Koushal to justify the outright rejection of foreign law. Second, it focuses on the record of the principal author of the judgment– Justice Singhvi – to assess whether the learned judge has been consistent in his attitude towards comparative law in other adjudicatory contexts. Finally, it contextualises the treatment of foreign law in Koushal against the Indian Supreme Court’s longer historical record of engaging with foreign and comparative law. The essay draws attention to inconsistencies in Koushal’s internal logic and to larger problems raised by the failure to critically engage with foreign and comparative law.

The Supreme Court of India’s decision in Suresh Kumar Koushal v. Naz Foundation, besides lacking in legal logic, also displayed a marked absence of another essential judicial quality: that of empathy. It is also a virtue that was in abundant display before the Delhi High Court both during the Naz Foundation hearings and then again in the text of the judgment. In tandem with the Supreme Court’s lack of empathy was an attempt to annul a discourse of queer intimacy that the Delhi High Court had brought into the judicial imagination in India. This essay will scrutinize the Supreme Court’s attempt to separate humanity from carnality, acts from identity and sex from love in light of the hearings before the Court.

The Chancellor and members of the General Council have done me a great honour by inviting me to be the Chief Guest at the Seventh Convocation of The West Bengal National University of Juridical Sciences. As a lifelong resident of Kolkata, and a member of the academic community of the city, I have watched with some pride the nation-wide reputation that NUJS has achieved in the last decade or so as a premier institution of training in law. It is, therefore, particularly gratifying for me that I have been given the opportunity to address the graduating students at this convocation. I am also delighted to be sharing the dais with the Chief Justice of the Supreme Court who was my fellow student at the Presidency College, Calcutta, in the mid-1960s and whom I am meeting after forty-five years. I have many fond memories of those years, not all of which can be shared in this august gathering. Allow me only to make the remark that even though they say that morning shows the day, Altamas Kabir at the age of twenty did not display any of the gravitas of a future Chief Justice of India. He was jovial, fun-loving, sometimes mischievous and always a very loyal friend. The lesson that I will draw for you, the graduating class of this university, is that the youthful frivolities and indiscretions that all of us have indulged in as college students are no impediment to achieving the highest levels of excellence and distinction in professional life…

The Special Economic Zones Act, 2005 is a legislation which was aimed at overcoming the shortcomings of an unstable fiscal regime and to attract larger foreign investments in India. With a view to avoiding multiplicity of controls and clearances and to incentivize entrepreneurs to manufacture goods in these zones, the Act gives certain exemptions in the form of various subsidies. There is thus a danger that the SEZ Act may fall foul of provisions of the WTO Agreement, which India is bound to comply with. This paper analyses the provisions of the SEZ Act especially in light of the WTO Subsidies Agreement in particular, and tests its compliance with the Agreement on Subsidies and Countervailing Measures.