Author: editor

With the liberalisation of the economy and trade in India, the new competition law – the (Indian) Competition Act, 2002 – modelled after the European law on competition and the UN Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, decriminalised antitrust offences, but enhanced the limits of penalties for certain anti-competitive practices. This paper notes that the Competition Commission of India, which has the responsibility of enforcing the Competition Act, has been meting out heavy penalties. But the CCI has often been criticised by the Competition Appellate Tribunal, for not considering relevant factors while calculating fines and not giving reasons for imposing these penalties. It is noted that the law only fixes ceiling limits of penalties. A suggestion has been made by the bar in an appeal matter before the COMPAT to adopt the European/British guidelines on imposing penalty. Predictably, this has not found unconditional acceptance by COMPAT, which has only accepted the proposition of calculating fines based on ‘relevant turnover’. In this paper, I have examined the legal provisions and relevant case laws from the Supreme Court and competition authorities to map the present procedure for setting fines in competition cases in India. I have also analysed the European law on the subject, and explored how these processes can be adopted in India. Can a procedure be devised to bring transparency and predictability to the procedure for setting fines for antitrust offences in India?

The discourse on public trusts in India has been ridden with contradictions. In the absence of any specific laws governing them, trusts, and more importantly, trustees, are more often than not faced with conundrums to which the law may not always have solutions. In this paper, I examine this jurisprudence on the subject of public trusts, and delve into why the Judiciary ought to assume the duties of parens patriae in protecting the rights of a trust. As these rights are not compartmentalised as black or white, it becomes all the more vital for strengthening the role of the Judiciary in this regard.

Amidst strong reactions against the decision of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation, this paper argues that the Court has done all that it is expected to do under the Constitution and the law established under it. The respondents, especially the Union of India, have unsuccessfully asked it to do what the Constitution does not expect it to do. The remedy against § 377 lies with the people through their Parliament, and not in the courts. “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.”

In this paper I evaluate three arguments of the Delhi High Court’s decision in the Naz Foundation case. First is the argument that sexual orientation is analogous to ‘sex’ in Article 15 of the constitution. I term this argument ‘the sex-based’ argument and argue that though it is logically sound , it is not supported by the judgments that the court cites; nor thus the court properly lay out the exact nature of this powerful argument. I further argue that the ‘sex-based argument’ should be employed along with the ‘common thread’ argument which is supported by the text of the judgment and is also desirable in the light of the argument acting as a precedent for interpreting Article 15 of the Constitution. The second argument I examine is that of the right to privacy and autonomy. Here I argue that the decision has enriched the discussions on the right to privacy in India, but at the same time has committed us to pursuing a notion of privacy based on personhood, which at present has very little specific content. I also argue that the court has used the concepts of privacy and autonomy without adequately clarifying their meaning. Instead it grounds them in a concept of human dignity, which again is a highly contested concept, with many accusing it to be a place holder at best. This takes me to the third argument of the court, which is on human dignity. Here I try and briefly demonstrate the problems associated with the use of this concept. In spite of this I argue that the process of reasoning followed by the court is compatible with principles of adjudication which are well founded in legal theory. I focus particularly on the ideas of coherence in adjudication and the nature of judicial law making.

The main focus of the article is on the effectiveness of the criminal sanctions for fraudulent trading as a creditor protection mechanism. The article begins with an examination of the evolution of the duty of directors towards the creditors of the company. Then it seeks to address the main arguments advanced for and against penalising fraudulent trading. This is followed by an analysis of the fraudulent trading provision in India and UK. The study reveals that the provision has failed to achieve its purpose of punishing rogue managers and lax directors. It points out the flaws in the Indian law and proposes some suggestions to overcome the same. The main questions addressed in this article include: Who has a duty to prevent insolvent trading? When is the duty triggered? When can the company be said to be insolvent? And finally what is the scope of the duty to prevent insolvent trading?

This article discusses the contemporary issues surrounding §9 of the Income Tax Act, 1961. The core issue is discussed, giving specific importance to the ambivalent nature of the law in this area since Ishikawajima’s case, such ambivalence lasting until the amendment in 2010, which has been bemoaned by lawyers across the country as a step too far in the exercise of Parliament’s legislative powers. Three aspects of the constitutional validity of the section as amended in 2010, namely, the validity of the retrospective character of the amendment, the validity of the amendment vis-à-vis Art. 14 of the Constitution and the extra-territorial operation of the substantive levy of charge, are discussed at length by the researcher. In elaborately laying out the grounds for constitutional challenge, I also address aspects such as the weighty presumption of constitutionality that operates in regard to fiscal legislation, going on to prove how the criteria of ‘palpable arbitrariness’ is satisfied by the overreaching nature of the amended section. In conclusion, I ponder upon the road ahead and chalk this out laying emphasis on the inherently dangerous nature of such an amendment, since similar provisions have been incorporated in the proposed draft Direct Taxes Code.

Independent directors have emerged as the cornerstones of the worldwide corporate governance movement. Their increased presence in the boardroom has been hailed as an effective deterrent to fraud and mismanagement, inefficient use of resources, inequality and unaccountability of decisions; and as a harbinger for striking the right balance between individual, economic and social interests. While presenting the Berkshire Hathaway 2002 report to shareholders, Warren Buffet criticized the performance of independent directors attributing their inability to participate to the extent of their potential to the lack of a conducive ‘boardroom atmosphere’ and the presence of ‘well-mannered people’ who were unlikely to raise a voice against the flow of the current. While Buffet reasoned that inadequacy of law was not the culprit, it cannot be denied that law is perhaps the only tool which can be used to tame this counter-productive boardroom environment. This paper shall study the concept of independent directors and their inter-relation within the corporate governance framework in India; their appointment, their envisaged role, their liability and the evolution of the concept in India and practical experiences. It shall attempt to outline the broad shortcomings of the current approach and make recommendations which include structural changes as well as a change in the attitude of corporate India.

Western intellectual property laws have come to dominate the global landscape in the age of commodification of information. The rights of indigenous persons and the sanctity of their traditions is one of the biggest casualties of granting proprietary rights to individual creators as envisaged by the current intellectual property regime. In article, we, shall attempt to explain the concept of sacred traditional knowledge through the prism of cultural relativism, emphasize the need for their protection, highlight the inadequacy of the current intellectual property regime so far as protection of these rights are concerned and explore the alternative approaches for affording protection to such knowledge. It is clarified that we do not provide any concrete working model for protection of such knowledge but only put forth the need to develop a sui generis system that would not confine itself to either the property rights or the commons approach and would integrate and amalgamate features from both whereby the community rights of indigenous persons and the knowledge that they hold dear and sacred will be recognized, revered and protected

India’s higher judiciary has created and overseen the evolution of public interest litigation in India. This paper presents a strong defence for the public interest litigation model as an instrument for the delivery of fair and equitable justice, resistant to governmental apathy as well as economic and social privilege. The first part of the paper provides an account of the evolution of India’s constitutional courts’, and particularly the Supreme Court’s, role prior to the emergence of public interest litigation. It discusses the nomenclature of ‘social action litigation’ and characterizes its evolution as unique and indigenous, distinguishable from the practice of public interest law in the United States of America. The obstacles faced by this radical new form of preserving social and economic rights are also examined. The paper then addresses the Supreme Court’s approach to increasing access to justice and overcoming these impediments, especially through procedural innovations such as broadened locus standi and non-adversarial, investigative proceedings using court appointed investigative commissions and amicus curiae. Even as it recognizes the possibility of misuse of social action litigation, the paper concludes with a strident defence of judicial activism and of social action litigation as a means for bringing the promise of justice to the ordinary and disempowered. ‘Blessed are they who hunger and thirst for justice, for they shall have their fill’. —The Eight Beatitudes, The Bible

The discretionary power to pardon finds recognition in the Indian Constitution, which confers this power on the President of India and the Governors of States. This article traces the boundaries of the power stipulated under the Indian Constitution, as well as the jurisprudence developed by the Supreme Court of India. It commences with an enquiry into the rationale underlying the power to pardon and goes on to engage with a number of issues that the power to pardon has given rise to. One of the issues examined in the article is the doctrine of separation of powers in the context of the prerogative to grant pardon. The constant tussle between the executive and judicial branches of the State is discussed with special reference to the dilemmas posed by the issue of defining the extent of this executive power.