Author: editor

I consider it a great privilege and honour to speak in memory of D.D. Basu. Justice M.N. Venkatachalaiah and Mr. K.K. Venugopal, who delivered lectures in previous years in the same forum, have elaborately referred to the life and works of D.D. Basu. Thus to avoid redundancy, I will refrain from reiterating what they have already elucidated on. I have not known D.D. Basu personally, but I have great admiration for the commentaries he has offered on various subjects in his classics, particularly on Constitutional Law. I was intrigued by his work on ‘Comparative Constitutional Law’ in which he makes thought provoking comments on important decisions of the Supreme Court such as A.D.M., Jabalpur v. S.S. Shukla (‘Habeas Corpus case’), Kesavananda Bharati v. State of Kerala ‘Kesavananda Bharati case’), and Indira Gandhi v. Raj Narain. He did not get influenced by the populist views on issues dealt with in the Habeas Corpus case. He criticizes both the majority and minority opinions in the first two cases, and the manner in which the latter was decided. He opines that the majority in the Habeas Corpus case ought to have taken note of the fact that Article 226 had not been suspended, and therefore judicial review on matters other than Article 21 could have been invoked in the ordinary course of judicial review. He feels that notwithstanding Justice Khanna’s heroic attempt to save the rights of the citizens to move for habeas corpus, his reasoning was based on aspects ultra vires the Constitution of India. Furthermore, he goes on to observe that in the presence of a written Constitution, taking note of situations outside the Constitution will not be sound in law.

The Copyright (Amendment) Act, 2012 stands to correct the legislative imbalance of rights assigned to composers and lyricists and is a path-breaking remedy for the copyright regime in India. The build-up to the amendment demonstrates the undying efforts of the otherwise passive composers and lyricists. In order to understand the context of the amendment and the manner in which these new provisions are likely to be interpreted by courts, the paper attempts to appreciate Mr. Javed Akhtar’s contribution to the movement and describes the long, contentious history between authors and music labels and the nature of their conflict. The panacea was sought in the form of a legislative amendment addressing the concerns of the composers and lyricists for the purpose of protecting their rights. These include protecting the composers and lyricist from unfair contracts through a statutory right to remuneration, protection from the assignment of copyrights in future technologies by the authors and a change in the manner in which copyright societies were administered, as they were primarily controlled by the music labels. However, the extent to which the amendments will succeed in achieving its objectives would largely depend upon the collective efforts of the authors and the judiciary alike.

With the recent passage of the Copyright (Amendment) Act 2012, India traversed yet another milestone in her intellectual property (IP) history. As with most other amendments, this too came with its fair share of controversy and contestations. Indeed, in many ways, it played out like a Bollywood script, complete with larger than life heroes, melodramatic plots, twists and shakes at every turn that required one to suspend logic, routine song and dance sequences and a happy ending (well, at least for some).

Western law has two great systems, the civil law and the common law. The system of civil law comprises a number of national or local laws, each of which has, at its core, a civil code based largely on Roman law. The common law is not contained in a code but is continually distilled from the stream of a large number of cases decided by the courts of law, at first exclusively in England but later in other parts of the Commonwealth and the USA. This judge made law is again divided into two parts, which bear the technical names of ‘common law’ and ‘equity’, both of which are from time to time modified by local or national legislation. Even centuries of Roman rule over Britain could not significantly change or give flavour to Britain or its people. The Roman occupation left “little permanent mark on the civilization and character of the island.”

Notional income is the flow of satisfactions from goods owned and used by the taxpayer. This paper explores the Indian and American approaches to taxation of notional income. It is argued that the Indian approach to taxation of notional income exhibits a distinct theoretical incoherence. Indian courts have refrained from allowing taxation of notional income, unless the same is expressly provided for in the Income Tax Act. This approach has resulted in divergent judicial reasoning which is not founded on the theoretical basis for inclusion of notional income. In contrast, the American law has progressed to an expansive conception of income that includes all economic gain. The focus on economic reality of transactions is clearly reflected in the economic substance doctrine of the American anti-avoidance law. This paper pre-empts that the introduction of General Anti-Avoidance Rules in India hint at a gradual shift towards the broader conception of income adopted in American law.

This paper seeks to analyse the law in respect of bail and pre-trial detention in India, testing judicial precedent on the anvil of the presumption of innocence with specific reference to two contrasting decisions of the Supreme Court, earlier in Pappu Yadav v. Central Bureau of Investigation and more recently in the 2G case in Sanjay Chandra v. Central Bureau of Investigation. It focuses only on conditions of bail set forth in the Code of Criminal Procedure and does not look at special legislation. The paper concludes by suggesting measures for legislative and judicial reform to harmonise law relating to bail across India.

Are there any basic conditions that have to be met if the university is to be viable as an institution for the pursuit of science and scholarship? This is a difficult and contentious subject on which those who occupy positions of authority and dignity rarely speak on ceremonial occasions such as a university convocation. Since I occupy no such position, I shall take the liberty of addressing this question plainly and candidly…

Writing on institutions of modern democracy in the Indian context is inherently problematic. Institutions are by their very nature conservative. They are often viewed as stately ships moored in the harbour inspiring awe rather than as vessels that would undertake a voyage which would leave them battered and weary. Institutions in India are perennially on a rough voyage through the charted and more often than not, uncharted waters of democracy and discontent. The trick in writing about them, then lies in having a balance between the safety of being moored and the rough and tumbles of the journey. Perhaps, it is the one who is conservative who best understands the institution and the care that must go into building one. Perhaps because he understands it in the manner that he does, changes that are due and legitimate elude the grasp of required imagination. Yet, if there is to be a consensus on Indian institutions, it must simply be this – very few Indians in public life are institution builders, be it ministers in government or academics in universities. Most of those persons who could be builders of lasting institutions are overwhelmed by populism, bias of caste, creed and worse. And thereby hangs a tale that must be brought to the fore and sociologically understood and debated…

It is legitimate to assume that the readers of this journal are familiar with the formidable scholarship that the Constitution of India has engendered. And so, if she wonders what another work on the Constitution can contribute, her cynicism would be understandable. But she is in for a surprise, as she turns the pages of this little work that sheds great light in the field of constitutional law…

Admitting that “identity can be a complicated matter”, Amartya Sen tells us: “The illusion of destiny, particularly about some singular identity or other (and their alleged implications), nurtures violence in the world through omissions as well as commissions.” Directly relevant to the core theme of the book under review is his further remark:“In fact, a major source of potential conflict in the contemporary world is the presumption that people can be uniquely categorized based on religion or culture”. If that is true then one wonders whether search for identity is something worth pursuing. But sustaining the most outstanding, if not unique, characteristic of the Indian Constitution that its basic structure is beyond amendment, the Supreme Court has concluded that “the Constitution is a precious heritage; therefore you cannot destroy its identity”. Maybe while Sen is justified in his statement about human beings, the Supreme Court is justified in its treatment of the Constitution. In that case Gary Jeffrey Jacobsohn is also justified in investigating constitutional identity and titling his book as such. He has additional justification for his investigation and publication of the book in the fact that while the two constitutions or their provisions may look alike, they may receive different interpretation and application in different countries. Quite often the courts and lawmakers are faced with the question whether and to what extent they could rely on foreign precedents and practices in the application of their constitution. While a prima facie attraction exists for learning from the experiences of others, it is strongly pleaded that the constitution is an expression of aspirations and future vision of a particular society which may and does widely differ from society to society in view of its extant circumstances, history and culture. Therefore, the judges, jurists and policy makers continue to debate on the extent of reliance on precedents set in one country by another country.5 For that reason the difference between the constitutions of different countries becomes relevant. Moreover, as quoted above, the identity of a constitution has also become relevant for the purpose of amendment to the constitution…