Articles

India commands the largest share of the world’s shipbreaking industry, which is largely attributable to the method for breaking ships employed in its yards. Being labour-intensive, this method called beaching, not only generates employment but also requires little capital investment, which were factors that suited its use in the Indian market conditions. However, use of this method invited widespread criticism from various factions on account of the hazards it poses to labourers’ health and the environment. The international community, and subsequently the Indian lawmakers, have made efforts to regulate shipbreaking with a view to curtail these hazards. Despite these positive developments, environmentalists and labour rights activists have not been successful in securing a ban on the beaching method altogether. However, in 2013, the European Parliament came up with a regulation which, it is argued, would effectively exclude beaching as a disposal method for European vessels, and consequently for the Indian yards. In light of the afore-mentioned regulation and certain other developments, this paper argues that in the long run, from environmental, labour rights’ and economic perspective, phasing out beaching in favour of an alternate method called dry-docking would be the most sustainable approach for India, even though it is capital-intensive and would reduce the jobs currently offered by the sector. This paper also proposes the ways in which the requisite capital for making a shift to dry-docking could be arranged.

Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (‘HIV/AIDS’), apart from being a life threatening disease, has acquired a significant place in countries across the world due to the kind of stigma and discrimination, seropositive persons and those associated with such persons, suffer. Human rights implications of marginalisation faced by HIV/AIDS affected persons have resulted in many countries taking cognisance of the same, by adopting legislations to protect these persons and prevent the spread of HIV/AIDS. With India following suit and the HIV/ AIDS (Prevention and Control) Bill, 2014 having been introduced in the Rajya Sabha, this paper seeks to evaluate signi cant provisions of this Bill in light of the capability theory laid down by Amartya Sen. Viewing hard- ships faced by HIV/AIDS affected persons as forms of capability deprivation, we attempt to assess how far the Bill bridges the gap between affected persons and central human capabilities.

The performance of Indian tribunals has been unsatisfactory. Yet, policy-makers continue to rely heavily on tribunals to achieve their end objective. One example of this are the tribunals which will adjudicate in the proposed Insolvency and Bankruptcy Code, 2015. This is premised on the assumption that the tribunals will be able to dispose of cases within hard deadlines. A natural key question that arises is how Indian tribunals can perform better in this matter when they cannot in others? This paper proposes that administrative functions of tribunals should be hived off into a separate agency – Tribunal Services Agency – which will help improve the performance of the administrative functions of tribunals and, in turn, improve their judicial functioning in general.

Increased monetisation of sports has necessitated greater intervention of formal regulatory instruments of the state, including review of decisions of the governing bodies by courts. But the appropriate doctrinal terrain for such judicial scrutiny has been a matter of profound controversy. This paper looks at the scope of judicial review over sporting bodies as public bodies and argues that in spite of few exceptions, most countries have favoured recognition of sporting bodies as public institutions that are subject to duties higher than those enjoined upon private persons. At the same time, courts have been cautious about equating these bodies with state and have refused to subject these bodies to the entire gamut of constitutional obligations that apply to state or its instrumentalities. Nonetheless, there is a lack of uniformity on the extent of judicial scrutiny over sports bodies with countries and courts differing on the standard and scope of scrutiny. In this regard the Indian experience of judicial review over sports regulators stands out as a particularly activist model which may substantially impinge on the autonomy of sporting bodies.

The need for a strong monitoring mechanism of the Executive in India has been made clearer by recent allegations of corruption against high-ranking of officials of the central government. The Indian Parliament is the ideal institution to perform such a monitoring function through oversight of the central executive. The Executive in India is directly accountable to the Parliament. Making oversight by Parliament stronger and more effective would therefore increase the accountability of the executive. Additionally, an increased oversight role would allow for greater policy inputs from Parliament to the executive. It would also increase the general level of expertise within Parliament by making parliamentarians more technocratic and giving them greater avenues for specialization in different aspects of policymaking. This has held true in varying degrees in different countries as examined in this paper. Enacting a law that formalizes mechanisms of over- sight within Parliament, especially within the committee system, can create such a framework in India. The central focus of a strong oversight frame- work is the system of parliamentary committees. Reinvigorating existing committees by giving them greater autonomy, clearer powers and research support are central tenets of the proposals made in this paper. Along with restructuring parliamentary committees, the incentive structure for Indian parliamentarians to conduct oversight is also examined, and proposals are suggested to ensure they perform their oversight function effectively. Such a law should reshape the way Parliamentary business is conducted with a view to holding government accountable, while at the same time allowing the central executive to function independently, and with greater efficiency.

In recent years there have been several controversies regarding projects being granted (or denied) environmental regulatory approvals. While many civil society groups and those adversely affected believe that legal procedures are being bypassed for commercial gain at immense cost to the environment and the larger public interest; the corporate sector, and at least sections of the government, perceive the regulatory processes to be a road- block in the country’s growth trajectory. This paper maps out the process to be followed before projects are granted one such regulatory approval – the environmental clearance under the EIA Notification 2006 – and presents an analysis of some of the problematic aspects in its design and implementation. Several stakeholders with a variety of interests, often conflicting, are involved, and the process is deeply contentious with significant implications for a range of rights. This paper aims to bring some clarity to our understanding of this complex process through a critical examination of the Notification, related documents and judicial pronouncements.

In 2013, the Supreme Court of India gave finality to the decision of Madras High Court by narrowly construing ‘efficacy’ under §3(d) of the Patent Act, 1970 as ‘therapeutic efficacy’. This paper comprehensively deliberates upon the impacts of ‘therapeutic efficacy’ in a law and economics frame- work. The focus lies on the patent breadth or scope and its link with such an interpretation, in light of the indigenous pharmaceutical industry’s dependence on incremental innovation. Finally, this paper highlights the crucial nature of State funding and its importance for the effectiveness and efficiency of this judgment. Such funding shall help to fill in the void created by the judgment and a successful indigenous pharmaceutical industry would be able to emerge out of the vicious circle of reverse engineering, generics and me-too drugs.

The case of Republic of Italy v. Union of India, where two Italian marines were being tried for allegedly shooting two Indian fishermen, came up be- fore the Supreme Court of India in 2013. The case sparked a diplomatic row between the two countries, primarily due to a strong difference of opinion with regard to the question of which of the two countries have the legal jurisdiction to try the case. While the Supreme Court has held that India has the jurisdiction to try the case, it did not explore the nuances of the relationship between domestic and international law and did not take the opportunity to bring some clarity to the extremely ambiguous question of the permissibility of use of force in international law. Against the backdrop of relevant domestic and international law applicable to the case, and in light of international trends, the paper proceeds to argue that the use of force is applicable, subject to restrictions recognised under international law in counter piracy operations. Further, with regard to the jurisdictional issue, the paper also demonstrates that the Indian courts did not possess the jurisdiction to try the case, and it is Italy which is competent to try the case due the claim of functional immunity which shields the Italian marines.

In yet another attempt to bridge the gap between the rules of an antiquated statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence. While new provisions were introduced to act as a check against abuse, oddly some similar fact provisions were left intact. This paper explains why the 2012 amendments have rendered the future of these enactments very uncertain. This paper also suggests a number of tentative recommendations as regards future legislative change or judicial interpretation. To the extent that Singapore’s Evidence Act was largely modelled after Stephen’s Indian Evidence Act of 1872, this paper may be of comparative interest to readers in India, as well as to readers in other Commonwealth jurisdictions that had also adopted the iconic statute.

Soon after the Delhi rape case that took place in December 2012, the issue of sexual harassment gained prominence from its hitherto silence. A series of complaints of sexual harassment against retired Supreme Court Judges and an Editor of a magazine involved in investigative journalism evoked our legal and social consciousness towards sexual harassment…