Articles

Mergers and acquisitions are increasingly being used and getting accepted by Indian business entities as a critical tool of business strategy. In recent times, with globalization being the byword of success, cross-border mergers are looked upon as a one way solution to gaining access to foreign market and creating an image to compete with big corporates. The attempt by Bharti enterprises to integrate with the South African giant, MTN Ltd., however, brought many lacunae in the Indian laws out of the closet. The article focuses on the deal that could have been, and seeks to look into the various legal and regulatory hurdles that were faced in the process. The authors try to delve into the details and analyse whether various Indian laws dealing with company, foreign exchange matters etc. need an overhaul to facilitate Indian companies to grow and be globally competitive.

The Supreme Court’s 1996 judgment in People’s Union for Civil Liberties (PUCL) v. Union of India was a significant attempt to solve the problem of widespread telephone tapping, and its influence has been strongly felt in subsequent laws designed to balance the right to privacy against the state’s power to conduct surveillance. The safeguards against arbitrariness in the exercise of the state’s surveillance powers designed by the Court continue to apply in the Internet age. However, new mass surveillance programs being undertaken by the Indian government that are unprecedented in their scope necessitate a thorough re-examination of our privacy laws. This note explains how the PUCL guidelines have influenced Indian surveillance law over the past two decades, the manner in which the safeguards designed by the Court have not always worked (or have been circumvented), and argues that with the Internet taking over the telephone as perhaps the most important mode of communication in India today, the time has come to revisit India’s surveillance laws to better protect the right to privacy.

This paper argues that access and free flow of information need to be seen as significant parts of our freedom of expression jurisprudence. In particular, it highlights the role played by information gatekeepers in the free circulation of information. Starting from Ranjit D. Udeshi v. State of Maharashtra, in which the strict liability of gatekeepers was used to restrict the circulation of obscene material, up to the current system for government-ordered blocking of content by internet intermediaries in India, information gatekeepers are used to control information. Our freedom of expression norms need to take this into account besides their focus on the rights of primary speakers, since information gatekeepers can be used to censor speech in an opaque fashion that leaves little room for accountability.

In this paper, I examine American juridical positions on the use of public spaces for religious propagation and solicitation. While the Hare Krishna movement’s ritual of sankirtan has been researched, legal reasoning on the right to solicit donations and preach in publicly accessible spaces that involve economic activities has been less studied. By analyzing these legal positions, this paper offers a glimpse of legal consciousness on the use of public spaces for a non-mainstream religious practice. It is argued that legal consciousness is inextricable in economic rationality, and that legal reasoning normalises disciplined choreographies of purposively rational action, to which regulatory concerns of public safety and orderliness are largely subservient. As public spaces are legally conceptualised within the normative expectations of market rationality, religious activities in public spaces are largely interpreted in material terms.

This paper sets out to ascertain whether Ronald Dworkin’s jurisprudence has had an influence on the Supreme Court of India. Dworkin’s approach to constitutional adjudication is characterised by judges exercising a more judgmental and less mechanical role in interpreting the Constitution. This paper undertakes a comparative excursus by looking at a few landmark Indian cases where reliance has been placed on judgments from the United States of America that have been the subject of Dworkinian exposition. With the aid of Dworkin’s critique of legal pragmatism, a theory of constitutional adjudication that several judges relied on in crafting the ‘basic structure’ doctrine, the paper demonstrates that what the judges did was to substitute their own moral convictions for that of the legislature. In order to bolster this contention, the paper also discusses Dworkin’s critique of originalism and demonstrates how originalism alone does not support the ‘basic structure’ limitation on the amending power of Parliament. It is argued that what does lend support to the conclusion reached in the ‘basic structure’ case, is what Dworkin calls ‘the moral reading of the Constitution’. This conception allows judges to make fundamental moral judgments about conflicting political values. The paper then situates Dworkinian virtues like ‘equal concern and respect’ and a ‘constitutional conception of democracy’ in the larger context of the basic structure doctrine, thereby concluding that Dworkin’s philosophy has found, and will continue to find, expression in the theories and practices of the Indian Supreme Court.

The Indian Evidence Act, 1872, made significant derogations from common law on the topic of confessions. § 25, which makes confessions to police officers inadmissible, is an illustration of this. It has been regularly examined by courts for interpretative and clarificatory purposes. Thus, a vast body of judicial dicta today exists on how to construe this provision. Sifting through this, one notices persistent confusion with respect to a precondition for applying this exclusionary rule, i.e., who is a police officer. This paper undertakes a systematic review of decisions to trace changing judicial techniques for determining who a police officer is for the purposes of § 25. This enables a holistic critique of the current position of the Supreme Court on the matter which, it is argued, thwarts the legislative object behind the provision and is bad in law. It is concluded that an unequivocal statement of legislative intent through an amendment is the only solution to this.

In May 2014, the Supreme Court of India delivered a sensational judgment banning certain bull-fighting practices. The Court, in its analysis, sought to bring animals under the protection of the rights discourse by stating that Article 21 of the Constitution of India could be applied to animal life. The Court stated that the term ‘life’ must be expansively interpreted. As animals form a crucial part of human beings’ environment, their rights must also be protected under Article 21. This paper seeks to address the deeper implications of this judgment by examining the viability of such an approach. It argues that bringing animals within the ambit of rights is not only incompatible with the traditional jurisprudence of rights, but may also be an ineffective method of addressing the larger issue of protecting animals. It recommends a shift to a duty-based approach towards animal welfare which is more likely to succeed in ensuring the safe and humane treatment of animals by humans.

With the pronouncement of the judgments in Triveniben v. State of Gujarat, Mahendra Nath Das v. Union of India and Shatrughan Chauhan v. Union of India, the Supreme Court has assumed to itself a ‘post-mercy rejection’ jurisdiction. Within the constitutional framework, on being awarded death penalty, convicts may, after exhausting certain judicial remedies, approach the President or the Governor, who are constitutionally empowered to grant pardons and reprieves. We argue that this right has often been abused by people who exercise it in the hope of delaying their execution and thereafter using such delay as a ground to seek commutation of their sentence. While the courts have taken note of this fact, they have chosen to rule in favour of the convicted persons whose mercy petitions have been rejected by the President. The convicts seek judicial recourse, in form of commutation of their death sentence, on the grounds there has been a delay in rejection of their clemency petition. We reason that the courts must accept certain inherent systemic features, which although cause delay, also prevent the failure of the constitutional machinery. The courts must consider intervention only in light of all the circumstances that lead to a fundamental change in circumstances since the original sentencing decision. The relevance of considering this fundamental change is that in the intervening period after the awarding of the sentence by the courts, the circumstances are now so different that had the judiciary been considering the case at the initial stage it would not have imposed the death penalty to begin with. This proposition, as laid down by the same Court in Triveniben case has over time been diluted. As is seen by the recent cases the judiciary has adopted a very convict-centric approach when considering commutation cases. To carve out an additional ground for clemency even after the convict has been awarded the death penalty by the judiciary and the executive has rejected their mercy petitions, is judicial overreach. In an attempt to conjure novel remedies for convicts from constitutional silences, the judiciary has completely turned a blind eye to justice for the victims, and society as a whole. In the process, it has in essence upset the constitutional scheme and assumed the power of granting mercy to convicts, which hitherto was the sole prerogative of the executive head.

The Supreme Court of India recently upheld the constitutionality of § 377of the Indian Penal Code and thus recriminalized adult consensual private same sex conduct. In doing so, the judgment overturned a four-year old Delhi High Court decision finding § 377 unconstitutional on the basis that the Section violated the rights to life and personal liberty of lesbian gay bisexual and transgender persons living in India. Evidence shows that antisodomy and same sex criminalization laws, such as § 377, have predictable and detrimental health effects. Such laws create legal and social barriers to effective prevention and treatment of HIV/AIDS. The resulting limited access to medical information and treatment for life-threatening conditions (HIV/AIDS) violates the constitutionally guaranteed and internationally recognized right to health of lesbian gay bisexual and transgender persons and men who have sex with men. However, this paper argues that public health arguments to repeal homophobic laws may act as a double-edged sword if not appropriately placed within a human rights framework. Basing the repeal of such laws on a public health rationale (namely, the increased prevalence of HIV/AIDS in these high risk communities as well as amongst the general population) only further associates lesbian gay bisexual and transgender persons and men who have sex with men with sexual disease sand haphazardly premises their rights on medical reports and expertise and not their fundamental human rights. Reports, affidavits and articles submitted on behalf of the petitioners and interveners in Suresh Kumar Koushal v. Naz Foundation indicate that § 377 creates a discriminatory environment through the institutionalization of stigma and police harassment, negatively impacting the access to HIV/AIDS prevention, treatment information and resources for gay bisexual and transgender persons living in India. Furthermore, international comparative studies of countries in which same-sex conduct is criminalized demonstrate consequential reduced access to HIV/AIDS information and services. In such countries, high-risk groups (e.g. men who have sex with men) are ashamed and afraid to provide vital sexual information to health providers for fear of social harassment and potential arrest. The Supreme Court’s recent decision to reinstate § 377’s application to private consensual same sex conduct unfortunately overlooks these important health considerations, and will likely lead to similar negative health outcomes— thus, in turn, resulting in constitutional violations of the right to health and, consequently, the right to life of the sexual and gender minority persons living in India.

Orwell’s dystopian masterpiece, 1984, describes a society where the government manipulates the thought process of its subjects by forcing them to communicate in a watered-down version of English called ‘newspeak’, incapable of expressing ideas like ‘liberty’. While a causative function between language and thought process has been debunked in modern-day linguistics, it is a reality that legal systems across the world accord gratuitous value judgments to one of the most primordial facets of human identity in an effort to consolidate artificial constructs of nationalism, often with punitive consequences for those who refuse to conform. At this juncture, with increasingly fervent language right campaigns in Ukraine and Northern Ireland and unprecedented rates of language extinction, what legal mechanisms are in place to bind governments into granting minority linguistic communities the rights they are due and keeping threatened languages from vanishing for posterity? This paper seeks to first analyse the processes that underlie linguistic imperialism, by tracing the history of legally enforced linguistic homogenisation in France, and then to mark out patterns of normative language regimes worldwide, before an analysis of international instruments on minority language rights, limitations thereof, and need for substantive overhaul. This paper is part linguistic research and part legal critique. The title has a quote attributed to Albert Camus which translates to “my fatherland is the French language”.