Author: editor

In this paper, it has been argued that the Naz Foundation judgment extends beyond the mere reading down of Section 377 of the Indian Penal Code and provides the plinth for elimination of all forms of discrimination against persons, not merely on the basis of their sexual orientation but also their gender identity. A close reading of the judgment along with the sources and affidavits that the courts have relied on to come to their decision makes it abundantly clear that the Naz Foundation decision has direct implications for hijras, kothis, FTMs, MTFs, transsexuals and intersexed persons. The use of the Yogyakarta Principles and the extension of recognition to the concept of decisional privacy by the judges go a long way in striking at the roots of homophobia and gender identity-based discrimination. Through the discussion of identity politics, references to instances of harassment faced by all the above mentioned communities and the expansion of notions of equality, autonomy and privacy to embrace both sexual orientation and gender identity, the judgment is truly a landmark in the realm of transformative remedies that forms the essence of queer politics.

The recent expulsion of Lok Sabha Speaker, Mr. Somnath Chatterjee from his party has raised not just a flutter in the political circles, but also many a constitutional question of significant import. There is a school of opinion which believes that if a person by not abiding by the dictum of his party to resign as the Speaker brings upon himself expulsion from his party, he should be considered to have given up his membership in the party voluntarily, and hence disqualified under the Tenth Schedule. This admittedly, is a radical position, and posits a very fundamental constitutional question. After analysing the position, we have come to form an opinion in opposition to the automatic expulsion theory. Through this paper, we have tried to objectively analyse the current legal position, and have tried to present an opinion based on constitutional provisions and parliamentary conventions.

That the judicial prerogative of Constitutional interpretation should not render itself into a zealous imposition of personal values remains a fundamental tenet of representative governance. In a society of diverse, and often conflicting ways of life, and a judiciary that lays claim to widest possible legal creativity, and a polity of consociation, it is nothing but the construction of the provisions of the Constitution that acts as the binding gel between competing claims. The article primarily presents arguments in relation to: firstly, ‘Interpretation For What?’, where it is argued that in the final hermeneutic appreciation, the meaning arrived at should be audience-centred and the interpretation should be reflective of the reasons for belief of the people and not the belief itself, and secondly, ‘Interpretation Of What?’, where it is argued that, ascribing hallowed values to mere textual assurances dangerously borders on misuse of interpretative discretion and as such judicial systems should not only temper the phrasal promises with social demands, but should not move beyond, in the guise of discovering universal humane absolutes. The present article thus seeks to limit the judicial interpretation of the Constitution by appreciating such meanings of the textual expression alone that portray the undercurrents of social existence.

The cause of equality is not one of creating contiguous compartments. Humans are equal not as isolated bits, but as mutually interacting summations of different processes. The paper here argues this same understanding of social cultures and myths as inalienable components of human equality, and the need for orienting our take as one that values hierarchy and difference as much as equal access to material modes of survival. Basing on the idea of psychologism, the argument developed is in opposition to hallowed promises of tomorrow, and their antithesis with the very functions of law as a social instrument.

The Agreement on Trade Related Aspects of Intellectual Property Rights is often said to raise hurdles in the path of developing countries in attaining their public health objectives. One of the concerns has been that the Article 31 of TRIPS is inadequate in allowing issuance of compulsory licenses as a regulatory tool by developing countries for meeting public health requirements. However, a close perusal of the Bilateral Investment Treaties of India, Pakistan and Bangladesh demonstrate how these countries voluntarily accepted more onerous requirements for issuance of compulsory licenses than what exists under the TRIPS agreement. These additional requirements under the Bilateral Investment Treaties have serious and far reaching implications which are not necessarily limited to a bilateral plane.

Unlike almost all legislative creations, the Constitution of a nation is intended to provide an enduring instrument to serve through aeons of time without frequent revision. Yet it is true nonetheless that the very purpose for its formation is to meet the needs of all generations alike, past, present or future. Fulfilment of such lofty goals cannot be dreamt of unless the constitutional text is subjected to modifications designed to meet the needs of the day. Any amendment to the ‘fundamental law of the land’, that is, the Constitution obviously has significant ramifications on the institutional structure of the nation. This article attempts to explore the reach of the amending power, its need thereof, its position vis-à-vis constituent power and the reason why it should be subjected to certain restrictions like the one that the Indian judiciary had attempted through the evolution of the Basic Structure Doctrine.

The evolution of the concept of criminal liability of corporations is characterized by the judiciary’s relentless struggle to overcome the problem of assigning criminal blame to fictional entities. This is particularly relevant in a legal system based on the moral accountability of individuals. This article outlines the broad range of principles governing the law related to corporate criminal liability and the essential elements required to incur such liability in a comparative perspective. A balance is sought to be achieved between the goals of criminal law and the socioeconomic inefficiency resulting from indiscriminate application of criminal liability to corporations. The article also seeks to highlight the dilemma inherent in the contemporary attitude toward the so-called ‘white collar crimes’. A rise in corporate crimes signifies an apparent failure of corporate governance that in turn necessitates more effective law enforcement. The appropriate standard has been suggested to be achievable successful enforcement of behavioral norms within the corporate framework by a combination of internal governance structures and criminal prosecution.

On September 7, 2011, the Land Acquisition, Rehabilitation and Resettlement Bill was introduced in the Lok Sabha in the backdrop of several large scale protests by farmers across the country. This paper provides a brief comparison of the new bill with the present Land Acquisition Act, 1894, introducing the key features of the bill. It discusses the legal framework relating to the power of acquisition and argue that it suffers from shortcomings in not fully accounting for social costs and not ensuring an equitable distribution of benefits. It neither recognises all affected persons nor allows them to participate in decision-making. Instead, it allows for a policy of targeted displacement of vulnerable groups. In relation to resettlement, the paper considers how the Impoverishment Risk and Reconstruction model allow to set a benchmark for the resettlement process and entitlements. Lastly, it evaluates the monetary and non-monetary entitlements under the bill in this context.

The International Court of Justice, in the Jurisdictional Immunities of the State: Germany v. Italy, had an opportunity to elaborate upon what qualified as an ‘interest of a legal nature’ to permit intervention in a proceeding before the Court. The argument put forth by the party seeking permission to intervene, i.e., Greece, was that a judgment favouring German claims may potentially affect its legal interests and rights. Greece was granted the permission to intervene. Yet, the Court omitted to answer what qualifies as a legal interest, and has left the participants in the international legal order in the dark regarding the preconditions to intervention before the Court.

This paper attempts to delineate the myriad contours of a moratorium on smoking as examined from the point of view of public health and law. In pursuance of the same, it analyzes the topic from the following perspectives: firstly, an identification of the classes of society primarily imperilled by the practise of smoking; secondly, an enunciation of the various arguments present for and against a moratorium on smoking, and thirdly, the current legal position with relation to a ban on smoking, which would include both Indian as well as International strands of opinion. At the same time, it focuses on ancillary issues such as the linkages between smoking and media as evinced by areas as diverse as advertisement and the world of celluloid, the causal relationship between smoking and elements of society such as women, along with an examination of the impact of the practise of smoking on culture as such. By analyzing each of these topics, it attempts to irrefutably demonstrate the importance of such a topic in the public health and law discourse.