Author: editor

The need for a strong monitoring mechanism of the Executive in India has been made clearer by recent allegations of corruption against high-ranking of officials of the central government. The Indian Parliament is the ideal institution to perform such a monitoring function through oversight of the central executive. The Executive in India is directly accountable to the Parliament. Making oversight by Parliament stronger and more effective would therefore increase the accountability of the executive. Additionally, an increased oversight role would allow for greater policy inputs from Parliament to the executive. It would also increase the general level of expertise within Parliament by making parliamentarians more technocratic and giving them greater avenues for specialization in different aspects of policymaking. This has held true in varying degrees in different countries as examined in this paper. Enacting a law that formalizes mechanisms of over- sight within Parliament, especially within the committee system, can create such a framework in India. The central focus of a strong oversight frame- work is the system of parliamentary committees. Reinvigorating existing committees by giving them greater autonomy, clearer powers and research support are central tenets of the proposals made in this paper. Along with restructuring parliamentary committees, the incentive structure for Indian parliamentarians to conduct oversight is also examined, and proposals are suggested to ensure they perform their oversight function effectively. Such a law should reshape the way Parliamentary business is conducted with a view to holding government accountable, while at the same time allowing the central executive to function independently, and with greater efficiency.

In recent years there have been several controversies regarding projects being granted (or denied) environmental regulatory approvals. While many civil society groups and those adversely affected believe that legal procedures are being bypassed for commercial gain at immense cost to the environment and the larger public interest; the corporate sector, and at least sections of the government, perceive the regulatory processes to be a road- block in the country’s growth trajectory. This paper maps out the process to be followed before projects are granted one such regulatory approval – the environmental clearance under the EIA Notification 2006 – and presents an analysis of some of the problematic aspects in its design and implementation. Several stakeholders with a variety of interests, often conflicting, are involved, and the process is deeply contentious with significant implications for a range of rights. This paper aims to bring some clarity to our understanding of this complex process through a critical examination of the Notification, related documents and judicial pronouncements.

In 2013, the Supreme Court of India gave finality to the decision of Madras High Court by narrowly construing ‘efficacy’ under §3(d) of the Patent Act, 1970 as ‘therapeutic efficacy’. This paper comprehensively deliberates upon the impacts of ‘therapeutic efficacy’ in a law and economics frame- work. The focus lies on the patent breadth or scope and its link with such an interpretation, in light of the indigenous pharmaceutical industry’s dependence on incremental innovation. Finally, this paper highlights the crucial nature of State funding and its importance for the effectiveness and efficiency of this judgment. Such funding shall help to fill in the void created by the judgment and a successful indigenous pharmaceutical industry would be able to emerge out of the vicious circle of reverse engineering, generics and me-too drugs.

The case of Republic of Italy v. Union of India, where two Italian marines were being tried for allegedly shooting two Indian fishermen, came up be- fore the Supreme Court of India in 2013. The case sparked a diplomatic row between the two countries, primarily due to a strong difference of opinion with regard to the question of which of the two countries have the legal jurisdiction to try the case. While the Supreme Court has held that India has the jurisdiction to try the case, it did not explore the nuances of the relationship between domestic and international law and did not take the opportunity to bring some clarity to the extremely ambiguous question of the permissibility of use of force in international law. Against the backdrop of relevant domestic and international law applicable to the case, and in light of international trends, the paper proceeds to argue that the use of force is applicable, subject to restrictions recognised under international law in counter piracy operations. Further, with regard to the jurisdictional issue, the paper also demonstrates that the Indian courts did not possess the jurisdiction to try the case, and it is Italy which is competent to try the case due the claim of functional immunity which shields the Italian marines.

In yet another attempt to bridge the gap between the rules of an antiquated statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence. While new provisions were introduced to act as a check against abuse, oddly some similar fact provisions were left intact. This paper explains why the 2012 amendments have rendered the future of these enactments very uncertain. This paper also suggests a number of tentative recommendations as regards future legislative change or judicial interpretation. To the extent that Singapore’s Evidence Act was largely modelled after Stephen’s Indian Evidence Act of 1872, this paper may be of comparative interest to readers in India, as well as to readers in other Commonwealth jurisdictions that had also adopted the iconic statute.

Soon after the Delhi rape case that took place in December 2012, the issue of sexual harassment gained prominence from its hitherto silence. A series of complaints of sexual harassment against retired Supreme Court Judges and an Editor of a magazine involved in investigative journalism evoked our legal and social consciousness towards sexual harassment…

Competitive Market theory suggests that all relevant cost of an ‘activity’ must be internalized. Further, according to Ronald Coase, in a system where ‘transaction costs’ are negligible and property rights are well defined, resources would be utilized in an economically efficient manner irrespective of the legal regime. Borrowing from these theories, this paper seeks to explore the possibility of reduction of emission in India under a regime which permits emission trading. In this paper it shall be specifically argued that emission trading, a mechanism based on free market principles, can prove to be a useful tool in ensuring compliance to pollution laws and reduction of emissions. Secondly, it shall be emphasized that such a trading mechanism can also be used to ensure equitable distribution of wealth and allocation of resources.

Corruption is one of the worst evils to have plagued the country and the world today. In order to tackle this problem, a number of international conventions dealing with matters of anti-corruption have emerged. The one which receives special attention in this paper is the Organization for Economic Cooperation and Development Anti Bribery Convention. This Convention aims at ending corruption by multinationals towards foreign public officials. Even though India is not a signatory to this Convention, the terms of the Convention will apply to it if investments are made by signatory countries within the territory of India. Further, if India becomes a signatory, the Indian multinationals will also be subjected to it, and will have to ensure that they do not engage in corrupt activities when doing business abroad. This paper examines the various terms of the Convention by focusing on certain important Articles of the Convention. In this respect, the paper also brings out deficiencies in the current Indian laws which impede compliance with these terms. The paper also discusses the probable impacts on India’s foreign relations if it chooses to sign this Convention. It concludes with the argument that India should sign this Convention after the passage of a few years.

Sex is a controversial subject in the social fabric of India, often being linked to immoral and prurient values. The current laws criminalise selling, distributing and publicly displaying obscene or pornographic material. The primary concern underlying this is safeguarding of public morality and decency. But such laws lead to the violation of individual liberty and moral independence of a person who wishes to enjoy pornography as his right to view, read or enjoy pornography (that could be read into his freedom of speech and expression, and/or the right to privacy under the Indian constitution) is curtailed. This article tries to ascertain if there are certain identifiable standards of obscenity which could be applied to an analysis of a right to pornography. Substantively, however, this article undertakes an exercise in achieving a balance between arguments of public morality and individual liberty and to also address the larger question of whether legalisation of pornography is a viable option in the present Indian society

Justice Altamas Kabir, Vice Chancellor Professor Ishwara Bhat, Justice Chittatosh Mukerjee, the learned members of the General Council, distinguished guests, colleagues and above all dear students, I am honoured by your gracious invitation to be with you on this occasion for many reasons. This event is a happy one for me as well because it is presided over by His Lordship Justice Altamas Kabir whose contribution to the ways of constitutional justicing remains an enduring national asset indeed. To once again be in the presence of Justice Chittatosh Mookerjee enhances my joy, if only because without his sterling contribution to the life of NUJS, its many splendoured achievements would have had a more difficult passage…