Author: editor

After more than a year of high-pitched campaigning by rival lobbies of forest conservationists and tribal rights activists, the Scheduled Tribes and Other Traditional Forest-Dwellers (Recognition of Forest Rights) Act, 2006 came into force on December 31, 2007. The Act aims to provide a framework which recognizes and vests forest rights in forest-dwelling tribes, and to foster a new forest conservation regime which actively seeks the participation of forest-dwelling communities in conservation efforts. Tribals of India have been residing in forest land for generations, cultivating and collecting forest produce. However, their traditional rights have hitherto not been adequately recognized and recorded. The Act thus marks a radical departure from existing forest legislations. The Act has been lauded and reviled in almost equal measure. Tribal rights activists perceive it as an instrument for correcting historical injustices. Environmentalists on the other hand project severe ecological fallouts. They see the law as a land distribution scheme which will lead to rampant deforestation. The discourse on this subject has, therefore, been predominantly adversarial in nature. We do not see tribal welfare and forest conservation as either separate or opposing goals. Having discussed the corrective justice dimension of the Act, we have advanced rebuttals of the principal claims of the opponents of the Act. Finally, we have established that ownership rights over a certain property automatically create a certain incentive to protect that property.

The word ‘Commons’, traditionally has been used to connote the joint ownership of certain resources by the people. Such resources include gifts of nature and other ‘free’ resources like water, air and land. Today however, the concept of Commons has been given a new connotation so as to propound a movement that envisages more public participation in the management of things and systems other than just natural resources. In the legal realm, this translates into a movement for decentralization of law. In other words, it talks of decentralization of law from the realms of State domain to that of Public domain so as to bring in more public participation in the formulation and implementation of law. This is what is posited to be the central theme of the Contemporary Commons Theory. Of late the Commons theory has come into prominence primarily as a result of the effect of technology on State Power. Global Communications have greatly eroded the State Power. It is this failure of the State power that lays great promise for the Commons Perspective to Law which calls for a laissez faire vision to law, thus bringing about a “bottom –up” regulation by non- state actors. In other words, the Commons perspective calls for the freedom of private entities to generate their own law – i.e. the law of Google, or the Terms of Service imposed by MSN Online. The Commons Theory debate of today has been brought about by debates in the areas of Privatization of the Internet, Network Neutrality rules in telecommunication law, Propertization of the radio frequency spectrum and as as well on media concentration. It is these issues that will form the core focus of the research in the present context.

Borrowing from Jurisprudence and Law and Economics, this paper seeks to establish that the existing intellectual property rights regime under TRIPS stipulates inefficient and overly stringent forms of protection. It has been suggested that an ideal regime must not afford a homogeneous protection. Distinction must be drawn, for instance, between want-based and need-based (life saving) products. It has been submitted that a weak IPR regime in need-based products is a reasonable restriction upon the individual rights of the innovator to ensure emergence of competitive markets and fair pricing, albeit justifications may be found for stronger protection for want based goods.

Water is the elixir of life – it is as fundamental as the air we breathe or the food we eat. In light of the role that it plays in sustaining life and the daily needs of people around the world, right to water manifests itself in the form of a basic human right. Right to water exists in close association with other related aspects like sanitation and basic cleanliness of the community. Without ensuring the latter, the former will hardly have any concrete consequence. Despite many efforts at the international level to focus on the need to recognize and label the right to water as a fundamental human right, nothing concrete has been achieved till date. The repercussions of a post-WTO and GATS world economy, which talks of trade in services amongst nations, adds another critical dimension to the entire discussion on the right to water as a fundamental human right. This warrants a debate into the merits and the justification of viewing the services accruing from water as being a tradable commodity juxtaposed against the other extreme of it being a basic human right. The right to clean drinking water emerges, in this context, as the focal point of discussion, which has been examined from various legal and social angles in this paper.

Recent times have witnessed a spate in the use of modern scientific techniques such as the lie detector, brain mapping and narco analysis, for use in criminal investigation. Although the legal and ethical propriety of their use has been in doubt, they may in fact be a solution to many a complicated investigation. This article describes how the techniques may be used against an accused and concludes that although the legal setup in India may limit the evidentiary use of the techniques, their extensive deployment, particularly that of narco analysis, in investigative processes, in itself violates the fundamental rights- against self incrimination, health and privacy of the accused. Courts in India have taken into account an incomplete consideration of the law, which is the reason for their conclusion in favour of the tests. While the tests may be a practical necessity, the sanction of the law for some of them is difficult to find, and extensive safeguards need to be laid out to prevent their abuse. It is now upon the Supreme Court to define the limits of such tests in context of the rights affected, or vice-versa.

Developmental projects in India have displaced millions of people and yet there is not a single national legislation on rehabilitation. Though the judiciary has recognised the right to be rehabilitated as a fundamental right under Article 21 of the Constitution of India, the right was not granted in reality, as has been seen in the cases of Narmada and Tehri dams. This paper aims to propose a solution to the present situation by suggesting an expansion of the international definition of the term ‘refugee’ by including in its scope internally displaced persons such that international pressure can be created on nation states to grant rights to refugees.

By rescuing the rule of law from ideological abuse, this paper explores in its postcolonial career in India, continuities with and distinctiveness from the colonial experience. Specifically focusing on the jurisprudence of the Supreme Court on civil liberties, equality and social rights, it claims that ideas of the exceptional and of the outsider have been integral to the modern rule of law project, and that marked continuities can be noticed with the colonial past in so far as they have been acknowledged in Indian public law practice. India’s distinctiveness, though, lies in the invocation of exceptions for the sake of promoting popular welfare in a postcolonial democracy.

The primary focus of this paper is to analyse the suitability and applicability of the United States doctrine of strict scrutiny to Indian constitutional jurisprudence. Courts in India have employed the principle of presumption of constitutionality as well as the rational nexus test to ascertain the constitutionality of laws allegedly violating the rule of equality. In contradistinction, the strict scrutiny doctrine subjects laws based on certain suspect classifications or infringing fundamental rights to higher judicial scrutiny. This paper seeks to analyse the contours of the strict scrutiny doctrine and the approach of the Indian judiciary in engaging with it. Though elements of the doctrine are enshrined in the Indian Constitution, it remains to be seen whether a direct application of the same is desirable in the Indian context, given its vagueness and the constitutional conceptions of equality and rights.

The Forest Rights Act, 2006: Settling Land, Unsettling Conservationists Microfinance Institutions (‘MFIs’) have always been considered as one of the frontline institutions for the propagation of financial services to the poor. Over the years, however, Indian MFIs have not seen the kind of success as their counterparts in Latin America, Europe and Bangladesh. Blind adoption of international models and subsequent commercialization by offering IPOs has not seen desired results. The critics say that MFIs, rather than becoming an alternate have replaced usurious moneylenders. Issues that have shown serious damage in the institutional structure are exorbitant interest rates, loan-sharking and excessive board room battles. Furthermore, legally it is very difficult to regulate the sector because there is a multitude of ways to incorporate such an institution. With each possible way of incorporation comes a new set of rules for its regulation. The question to be answered herein is commercialization of the MFIs the way forward for the sector. In this context, we look at the extant legal regime that governs the sector and the limitations that exist in it for regulating the commercial sector. We propose that such measures should be deterred in India at the moment. Due to the controversies that have plagued the market, especially in Andhra Pradesh, there have been a lot of calls for an independent regulator in the market. It is at this juncture that the New Microfinance regime has been introduced with the new Microfinance Bill and the Reserve Bank introducing a completely new notification setup. We, however, propose that a two-way model for a regulator is the way forward.

Hon’ble Chief Justice of India, Professor M.P. Singh, Vice-Chancellor, NUJS, dignitaries, distinguished faculty of NUJS, guests and above all, students, it is truly humbling to be asked to speak on this occasion for several reasons. The most important reason is that convocation includes many things. It marks an important day in the life of an institution, a signal that the institution has completed its part in a pedagogic mission that brought you here. For the students, it is a ‘rite of passage’ that marks your ascendancy from one stage of life to the next. Convocation is also a celebration of achievement. It is a celebration of the extraordinary talent this institution is about to unleash on the world. One of the reasons I feel humbled is because the talent we have assembled here is truly outstanding. It makes us, those slightly more advanced in years than the students here, seem so behind the times and so inadequate. But this is precisely the thing we celebrate.