The European Union (EU) was established by the Maastricht Treaty in 1993 but its origins date back, in an unbroken line of institutional continuity, first to the establishment of the European Coal and Steel Community in 1952 and second to the European Atomic Energy Community (EURATOM) as well as the European Economic Community (EEC), both established in 1958. There is no doubt that in the overall process of European integration, understood as referring to the organisation of the common life of all citizens and all peoples inhabiting the European continent, the European Union, in both method and purpose, sharply distinguishes itself from all the previous, imperialist, belligerent, bloody, and, most of all, failed attempts of uniting Europe. Notwithstanding the European Union’s overall success in a vast area of fields, support for its existence and work is still met with a strong sense of ambivalence. Such ambivalence is characterised by a great uncertainty over its finalité, i.e. both its purpose and end, which is expressed in a strong indecisiveness as to which path to follow. In this regard, it is suggested here, that this ambivalence is caused by the dynamic dialectic underlying its creation and functioning which – when coupled with a growing complexity of the legislative and administrative procedures that characterise our present epoch – is still causing serious troubles to the minds of people. Such troubles find their expression in an often disharmonious, divided, and even polarised discussion of EU affairs which is most of the times dominated by polemics based on misconceptions and a lack of reliable information rather than a constructive common public debate. This article intends to provide a concise overview of selected stages of the process of European integration beginning with the second half of the 20 century and extending to the development of the main legal foundations as well as institutions of what today forms the “European Union”. By focusing on some of the most imminent challenges that presently threaten the prosperous future of the European Union, this article marks also an attempt to dig deeper into the underlying considerations and perhaps bring some of its original spirit to the fore. It tries to ponder on the cause of the problems and reflects on the question whether this ambivalence is the source of a slow down of the smooth development of European integration or instead forms the basis for its sustainable and democratic development?
Year: 2016
The Public and Constitutional Morality Conundrum: A Case-Note on the Naz Foundation judgement
The paper discusses the role public morality has played in developing the fundamental rights jurisprudence in India. Restriction of fundamental rights has been justified on the basis of the doctrine of compelling state interest. The author argues that reading public morality into the ground of compelling state interest may make fundamental rights susceptible to the personal interpretations of judges or considerations of a politically motivated legislature. However, the present case makes an interesting point by indicating that public morality and constitutional morality diverge at some points, and that regulation of public morality, unless it overlaps with constitutional morality, would not constitute compelling state interest to curb fundamental rights. The author opines that the new test of constitutional morality used in the case may be subject to more determinable standards than the prior one. Further, to support his stance on non-interference by the state in relation to issues comprising purely of public morality, the author states that regulating homosexuality would amount to the regulation of external preferences by the State, and an enforcement of the majority’s moral convictions by the State without an assessment of the actual threat to public order if the morality of the majority was not imposed on the remaining population, which is not warranted either under Dworkin’s or Rawls’ theories respectively.
Limits of the Pardoning Power under the Indian Constitution
The President’s power of Pardon is granted, limited and controlled by the Constitution, both expressly and impliedly. The sweep of this power therefore has to be gauged with the Constitutional Scheme in mind, and not by repeated references to the power enjoyed by the British Crown. This paper seeks to examine several issues determining the scope of the pardoning power of the President under the Indian Constitution, including the stage at which it can be exercised, the offences which fall within its reach, the procedure and judicial review, and the effect of a pardon on the guilt of the offender, and concludes that even though the power of Pardon has survived through the ages, its scope is limited by the axioms of modern political philosophy such as Separation of Powers and Supremacy of the Constitution.
Same-Sex Love and Indian Penal Code § 377: An Important Human Rights Issue for India
WTO Ramifications of Internet Censorship: the Google-China Controversy
On January 12, 2010, Google threatened to quit China over internet censorship demands. The incident was triggered by a ‘highly sophisticated’ cyber attack that was allegedly launched by the Chinese government on Google’s website. This controversy has unleashed a raging debate on the issue of internet freedom versus regulation of internet by states. Another interesting dimension of this hotly contested issue is whether censorship of the internet is in violation of the norms of international trade law. In light of the Google-China controversy, this paper seeks to examine the potential and implications of a WTO dispute against China that would challenge its internet censorship regime and also aims to simultaneously look into the viable alternatives to a WTO challenge.
Regulation of Hate Speech
On March 7, 2009, Varun Gandhi, the great-grandson of India’s first prime-minister, Jawaharlal Nehru, also the potential Bharatiya Janata Party candidate from Pilibhit in Uttar Pradesh, made disturbing remarks against a minority community in condemnable hate speech to polarise voters on communal basis and gain electoral leverage. Not only did the incident ignite violent protests and incur the wrath of the ElectionCommission, it also attracted several provisions of the election and criminal laws. Though the immediateimpetus for this article is the Varun Gandhi hate-speech controversy, the episode is merely a starting point for delving into a much larger debate on hate speech laws. Therefore, this article seeks to examine laws employed to combat hate speech and to determine if anti-hate speech laws can adequately regulate situations such as the Varun Gandhi episode, or if they require change.
Public Procurement Law in Bangladesh: From Bureaucratisation to Accountability
Bangladesh’s public procurement law has sought to ensure transparency, accountability and fairness in government procurements. Whether its accountability goal has been satisfactorily achieved is, however, a debatable issue. The author argues that the procurement rules are somewhat de-effected both by bureaucratisation and technical avoidance of the rules. On the other hand, the judiciary does not follow a searching review of public contracts. In this background, the author analyses the Bangladeshi procurement laws and practices with a view to fathoming ‘accountability’ in public procurements urges for simplified rules, more circumscribed administrative discretion, and a robust but principled judicial review of procurement decisions.
The Recent Emergency and the Politics of the Judiciary in Bangladesh
The recent state of Emergency in Bangladesh (2007-08) put the country’s judiciary under certain challenges with
a far-reaching bearing on judicial statesmanship, resurfacing the old but difficult question of the proper judicial role in Emergency. The 2007 Emergency regime initiated an array of reforms in politics, and legal and
judicial spheres, but at the same time clipped the rights of the people and the judiciary’s protective authority. The proper role of the judiciary in such a context should be defined by reference to its ability to maintain the ‘rule
of law’. Recent Bangladeshi judicial decisions show that while the Supreme Court’s High Court Division by and large asserted self-confidence vis-à-vis the overweening Emergency government, its Appellate Division either remained silent or paid undue deference to the executive. By examining the new politics of the senior judiciary in
Bangladesh and the potential reasons that may explain this, and having been based on the premises that the law is a site of political contestation while the judiciary is a political institution constantly negotiating the law with politics, this article will examine whether the Bangladeshi judges during the 2007 Emergency employed their statesmanship in protecting the citizens. This paper argues that the judiciary throughout the Emergency regime suffered a crisis of public confidence, with negative impacts for its constitutional agency in upholding justice and constitutionalism. While contextualizing the need for judicial activism during Emergency, the paper will question the efficacy of dominant legal-constitutional theories of the judicial role.
The Judicial Recognition and Enforcement of the Right to Environment: Differing perspectives from Nigeria and India
Environmental rights are one of the emerging rights in the arena of international human rights law and international environmental law. This paper analyses the judiciary’s roles in advancing the right to a healthy environment in Nigeria and India. These two countries have certain similarities and yet there exists a remarkable
difference between the levels of recognition of the right to environment in both countries. The concept of environment rights will be traced by drawing the link between the environment, human rights and sustainable development. Further, the Nigerian oil industry has impacts on the country’s political economy and the
environment of host-communities. In fact, there are reasons why there are certain peculiarities that Nigerian courts face in deciding oil-related environmental cases. An analysis of legal provisions and statutes of both the countries will be presented to highlight the status of the right to environment.
Out of the Colonial Closet, But Still Thinking ‘Inside the Box’: Regulating ‘Perversion’ and the Role of Tolerance in De-Radicalising the Rights Claims of Sexual Subalterns
This paper primarily intends to throw light on the postcolonial reading of the legal engagements of sexual subgroups that depicts the complex layering of sexual subjectivities in a postcolonial context, which are not captured in a straightforward ‘lesbian’ or ‘gay’ reading. The use of the term ‘sexual subaltern’ in this paper is mainly intended to capture this complexity. Through the discussions on the engagement of the sexual subaltern with law, the author draws on subaltern scholarship to provide a more complex articulation of the position of the sexual subaltern as well as the relationship between law and the subject. The first part of the paper, briefly discusses the explosion of homoerotic imagery, literature and sex talk in the context of sexual subalterns in postcolonial India, to illustrate that the voice of the sexual subaltern is being gradually accommodated within the postcolonia discourse, and that the public space has become more amenable to sexual subaltern claims.