Author: editor

The European Court of Human Rights (ECtHR) is widely recognized as having the features of what can effectively be called a constitutional court. But what is the proper definition of a constitution and in what way can the ECtHR be properly considered a “constitutional court”? Constitutions are considered by citizens and jurists alike to be the most profound expressions of national commitment, but to what extent does the ECtHR operate constitutionally vis-a-vis the States within its jurisdiction? This paper attempts to briefly answer these questions and elaborate upon the implications of having the constitutional atmosphere of the EU interpreted and influenced by the ECtHR. This paper also deals with the EU’s constitutional structure as States interact and submit to the constitution-like machinations of the ECtHR. The paper proceeds to investigate the ECtHR as a constitutional apparatus and examine the unique challenges to the idea of a “constitutional court”. It concludes with case studies from the United States and Scotland and finally questions what could be done to further understand the constitutional nature of the ECtHR.

Abortion laws originated in the United Kingdom as early as 1803, but the credit for revolutionizing abortion laws and recognizing the inherent, perhaps inextricable right and liberty of women over their bodies can only be given to the United States – more specifically to the American judiciary. From as early as Roe v. Wade, the American judiciary has been reiterating the inherent right of a woman as a constitutional person, to terminate her pregnancy in the earlier stages and thereafter giving the State a role to play, hence making abortion legal for the first time in the Unites States in 1973. Even though senators and other policy-makers in several, if not all, states of the United States have tried to whittle down the basic premise of Roe v. Wade, it has been emphatically upheld in subsequent cases. After more than thirty years of the pro-abortion movement in the West taking firm root, anti-abortion groups have again taken a radical standby trying to control abortions through the introduction of the Unborn Child Pain Awareness Bill, 2005(commonly known as Fetal Pain Legislation) and as many as twenty-three states in the USA have passed it to be an Act, which would require that abortionists disclose to women the reality that killing an unborn baby by abortion causes pain to the child. It would also require that women who were pregnant for more than twenty weeks be given the choice of adopting anesthesia for their fetuses. Interestingly this move by the legislature was said to find its basis in the judgment of Gonzales v. Carhart where the Supreme Court held that the federal legislation banning partial-birth abortion was constitutional on its face. The issue of fetal pain arose amidst the partial-birth abortion debate. Supporters of the federal legislation argued that partial-birth abortion was excruciatingly painful for the fetus and that banning this abortion procedure would further the state’s legitimate interest in protecting the unborn child. Opponents of the federal ban argued that there was no conclusive scientific evidence to support the hypothesis that a fetus is even capable of feeling pain. As a result of this partial-birth abortion controversy, legislations aimed at acknowledging and assuaging fetal pain during abortion came into being. In India, the debate on abortion laws as embodied in the Medical Termination of Pregnancy Act, 1971 has been swirling since the Bombay High Court’s decision in Dr. Nikhil Dattar & Ors. v. Union of India, where the Court by a strict interpretation of the provisions in the statute, refused to give a lady pregnant with a malformed fetus the right to abort since she was already in her twenty-fourth week of pregnancy. Since then there have been urgent calls to amend the statute as long-standing criticisms of the policy have been brought to the forefront again. It has become critical at this juncture to look at the development of abortion law and policies in the West, particularly in the United States, to gauge where India stands at this moment and whether, if at all, India should be inspired by the western counterpoint or should take caution from the developments therein to further its own interests in striking the perfect balance between liberty, autonomy and freedom of the individual on the one hand and the State’s right to interfere, on the other.

The right to work has occupied a central place in the human rights discourse. Yet, a vast majority of the world population survives without meaningful employment. This crisis of employment is more acute among vulnerable communities like refugees and asylum-seekers who are often systematically denied access to the labour market and opportunities for self-employment, thus accentuating the trauma of forced migration. From this vantage point, this paper examines the status of the right to work under international law and its applicability to refugees and asylum seekers. It argues that while there are avenues for the right to work of refugees under the Refugee Convention, there are significant limitations and questions hovering over asylum-seekers’ right to work. In contrast, international human rights law envisages a universalist conception of rights and thus extends to both refugees and asylum-seekers. The paper further avers that situating the right to work within the framework of the International Covenant on Economic, Social and Cultural Rights and related international human rights instruments can create new legal space for protection of refugees and asylum-seekers, especially in countries that have not ratified the Refugee Convention.

The judgment in Kesavananda Bharati is considered by many as an attempt to rewrite the Indian Constitution. In arriving at the conclusions, the court propounded the ‘basic structure doctrine’ that identified certain constitutional features as so essential that they could not be altered. In this essay, I recount the development of Kesavananda’s doctrine and the implications that might follow. In particular, I explore the limits of constitutional development in India and sketch out a broader role for constituent power beyond the Constitution. I argue that the ‘basic structure doctrine’, though extremely significant, upsets key philosophical assumptions about constitutive sovereignty and the limits of constitutional authority, largely because of the way it has evolved. I mark the misjudgements that have been woven into the doctrine, a significant time is spent in extricating it out of this mess and my sentiment through the paper is that ‘basic structure doctrine’ can retain its legitimacy only to the extent to which it can adapt itself to a philosophically affluent framework of constitutional democracy, one which respects both the inevitability as well as minimalism of judicial role. My task takes me through landmark decisions in Nagaraj and Coelho and I explain how they herald a new beginning in the right direction. Towards the end, I call for a structural shifting the competing perceptions the doctrine enjoys in the ranks of judiciary and the Parliament in an effort to raise them to the task of constitutional accountability. This is a conversation about the most enduring contribution to Indian constitutionalism.

The link between sex and privacy is not self-evident. The protection of the ‘right to privacy’ is accorded to only those sex acts that have the normative qualities of patriarchal, heterosexual marriage. Additionally, a privacy-focused legal intervention to extend protection and recognition to non-normative sexualities, could have problematic implications for queer politics itself. This article is an assessment of the ‘privacy argument’ as articulated in the Naz Foundation judgment, against the backdrop of this troubled relationship between non-normative sexualities and dominant understandings of privacy. While the court in Naz has moved away from a narrow ‘space-based’ notion of privacy, it continues to view privacy as a negative freedom, the scope of which is rather limited. Additionally, while the exclusivity and ideological dominance of the ‘private’ is busted by dissociating the claim to privacy with heterosexual marriage, the judgment introduces other normative codes for sexual relationships that are protected by privacy. The article notes that the privacy analysis in Naz Foundation has both possibilities, which must be emphasized and limitations, which must be regarded as areas of further struggle. In the final analysis, one must however acknowledge the limited role that any privacy-based intervention can play in counter-heteronormative struggles, since the ideas of ‘natural’ and ‘unnatural’ sexualities are left unexamined, no matter how one may frame the privacy question.

Minimum alternate taxation is a measure to address the growing problem of companies that declare high profits, but pay low or no taxes (‘zero-tax’ companies). Parliament has experimented with its approach to MAT since 1983 and continues to do so in the proposed Direct Tax Code. This paper charts the various changes in the MAT regime made over the years and the interpretational problems that have arisen with provisions for MAT credit, advance payment of MAT and calculation of book profits. It then considers the merits of this taxation regime with reference to the economic effects of the burden of this tax, and the attendant compliance and record-keeping costs. With this in mind, this paper argues that the MAT regime should be modified and puts forth two proposals for reform to make the corporate taxation regime clear and efficient.

It is a privilege to be invited to address a group of young men and women who are at the threshold of their career in the profession of law. This event marks a watershed in the life of those graduating today, but it is only the beginning of an arduous journey of life. I am grateful to the Chancellor and the Vice-Chancellor for the invitation to deliver this convocation address…

Although Article IV of the Outer Space Treaty (OST) prohibits the deployment of nuclear weapons and any other kinds of weapons of mass destruction in the outer space, owing to serious drafting faults and interpretative conundrums, ground-based Anti-Satellite (ASAT) missiles have been left out of its purview. The failure of the states to adopt an agreed definition of ‘peaceful uses’, stipulated under Article IV, has left scope for attributing the colour of legitimacy to ASAT missile testing. This being the situation, the present paper ponders into the question of legality of testing and deployment of ASAT missiles under the present legal framework. It highlights loopholes in Article IV of the OST, which aid states to transgress the barriers of international law. An exclusive treaty to control or prohibit anti-satellite weapons is a far fetched dream given the nonexistence of such political will among concerned nations. This is evident from United States ‘rejection of the proposal of Russia and China for a new treaty regarding this. Hence the paper suggests plausible solutions to this quandary from within existing international legal framework.

By employing a human rights perspective, this paper focuses on Corporate Social Responsibility (‘CSR’) and its impact and relevance in the globalized, commercialized world. The discussion around CSR takes into consideration three important developments: enormous growth of corporate power (without commensurate accountability), a paradigm shift in the nature of development and emerging claims from victims of corporate activities. The paper responds to these considerations by concluding that CSR has been the preferred model for achieving corporate accountability. The right to development against corporations has also impacted the functioning of corporations and the evolving nature of CSR. The paper also discusses recent examples of measures aimed at protecting victims from corporate activities.

The rules of the game of investment in the stock markets have more to it than what meets the eye. The real position and scope of powers enjoyed by a shareholder vis-à-vis the management of the company is nowhere strictly defined. However the developed markets have incorporated rules governing the relationship between a shareholder and the management of the company. Thus, a huge gap seems to exist between the required results that have been obtained by incorporation of such rules in Indian scenario and the one envisaged by the framers. In the Anglo Saxon system, the management has only one objective, namely to act in the financial interests of the shareholders. The management comprises of individual directors and the shareholders are not a part of the decision-making process of the company. In India, the problem of corporate governance though is much different from its European and American counterparts. There seems to be an inherent problem regarding the conflict of interests between the dominant and minority shareholder. This is coupled with the different corporate structures that characterize the Indian market. The role of institutional investor and financial institutions in ensuring a balance between the powers of the dominant and the minority shareholder seem to be negligible. Even the statutory provisions leave enough space for manipulation, which are misused mainly by the family businesses. This article aims at analysing this problem faced by the Indian markets and provide a India Specific model so as not only to protect the interest of the minority shareholder but also ensure better exercise of corporate governance by the companies.