Articles

The recent protests against the Supreme Court verdict on the constitutionality of § 377 of the Indian Penal Code, 1860 were based on the argument that matters of sexuality between consenting individuals is a matter of private orientation and choice and hence the state has no right to intervene and criminalize them. While I oppose the state’s right to intervene in consensual sexual relations, I want to argue against pushing matters of sexuality into the confines of private space and want to suggest instead that the normativity of sexual expressions should be debated more rigorously, not in the criminal proceedings of the court, but in the social, cultural and political spaces. Not only because the personal is political but because sexual experiences remain essentially a matter of phantasms, representations and imaginations and are hence necessarily collective and cultural. Critically discussing two ‘supposed to be’ taboo-breaking films on minority sexuality– Blue is the Warmest Color and The Sessions – I aim to show how heterosexual male fantasies, anxieties and biases resiliently and potently circulate in our culture and colour all forms of sexualities. The debates on the recent Supreme Court verdict should open up matters of sexuality for robust political and public deliberation, and in doing so, challenge the circulation of hetero-normative male fantasies intimately shaping ideas about (especially female) sexuality.

Barring a few legitimate exceptions, most non-compete covenants have been frowned upon by the competition regulating agencies worldwide. While reaching a conclusion, the agencies look at, inter alia, the temporal and geographical impact of the clause in the business transfer agreements in a Merger & Acquisition transaction. Any agreement having the ultimate effect of stifling legitimate competition in the relevant domestic market is condoned by regulating agencies worldwide. The European and American position regarding the treatment of a non-compete clause in an M&A transaction has been clear and well-grounded in their respective economic realities. The position of the Indian authorities, until very recently, has been ambiguous and unpredictable, where glaring inconsistencies have been observed. The Competition Commission of India’s decision in the Hospira Healthcare India Private Limited, Orchid Chemicals and Pharmaceutical Limited case goes a long way in deciphering the intention of the Indian agencies vis-à-vis the legitimacy of a non-compete covenant in M&A transactions. This decision has helped India enter the list of nations where competition restraints are judged with utmost precaution.

The judgment of the Supreme Court in Suresh Kumar Koushal v. NazFoundation engages only minimally with foreign and comparative law. This is in stark contrast to the Delhi High Court’s judgment in Naz Foundation v. Union of India that was consequently overruled. This essay focuses ont his lack of engagement with foreign law in Koushal from three perspectives. First, it critically examines the reasons advanced and the domestic precedents cited in Koushal to justify the outright rejection of foreign law. Second, it focuses on the record of the principal author of the judgment– Justice Singhvi – to assess whether the learned judge has been consistent in his attitude towards comparative law in other adjudicatory contexts. Finally, it contextualises the treatment of foreign law in Koushal against the Indian Supreme Court’s longer historical record of engaging with foreign and comparative law. The essay draws attention to inconsistencies in Koushal’s internal logic and to larger problems raised by the failure to critically engage with foreign and comparative law.

The Supreme Court of India’s decision in Suresh Kumar Koushal v. Naz Foundation, besides lacking in legal logic, also displayed a marked absence of another essential judicial quality: that of empathy. It is also a virtue that was in abundant display before the Delhi High Court both during the Naz Foundation hearings and then again in the text of the judgment. In tandem with the Supreme Court’s lack of empathy was an attempt to annul a discourse of queer intimacy that the Delhi High Court had brought into the judicial imagination in India. This essay will scrutinize the Supreme Court’s attempt to separate humanity from carnality, acts from identity and sex from love in light of the hearings before the Court.

The Chancellor and members of the General Council have done me a great honour by inviting me to be the Chief Guest at the Seventh Convocation of The West Bengal National University of Juridical Sciences. As a lifelong resident of Kolkata, and a member of the academic community of the city, I have watched with some pride the nation-wide reputation that NUJS has achieved in the last decade or so as a premier institution of training in law. It is, therefore, particularly gratifying for me that I have been given the opportunity to address the graduating students at this convocation. I am also delighted to be sharing the dais with the Chief Justice of the Supreme Court who was my fellow student at the Presidency College, Calcutta, in the mid-1960s and whom I am meeting after forty-five years. I have many fond memories of those years, not all of which can be shared in this august gathering. Allow me only to make the remark that even though they say that morning shows the day, Altamas Kabir at the age of twenty did not display any of the gravitas of a future Chief Justice of India. He was jovial, fun-loving, sometimes mischievous and always a very loyal friend. The lesson that I will draw for you, the graduating class of this university, is that the youthful frivolities and indiscretions that all of us have indulged in as college students are no impediment to achieving the highest levels of excellence and distinction in professional life…

The Special Economic Zones Act, 2005 is a legislation which was aimed at overcoming the shortcomings of an unstable fiscal regime and to attract larger foreign investments in India. With a view to avoiding multiplicity of controls and clearances and to incentivize entrepreneurs to manufacture goods in these zones, the Act gives certain exemptions in the form of various subsidies. There is thus a danger that the SEZ Act may fall foul of provisions of the WTO Agreement, which India is bound to comply with. This paper analyses the provisions of the SEZ Act especially in light of the WTO Subsidies Agreement in particular, and tests its compliance with the Agreement on Subsidies and Countervailing Measures.

The European Union (EU) was established by the Maastricht Treaty in 1993 but its origins date back, in an unbroken line of institutional continuity, first to the establishment of the European Coal and Steel Community in 1952 and second to the European Atomic Energy Community (EURATOM) as well as the European Economic Community (EEC), both established in 1958. There is no doubt that in the overall process of European integration, understood as referring to the organisation of the common life of all citizens and all peoples inhabiting the European continent, the European Union, in both method and purpose, sharply distinguishes itself from all the previous, imperialist, belligerent, bloody, and, most of all, failed attempts of uniting Europe. Notwithstanding the European Union’s overall success in a vast area of fields, support for its existence and work is still met with a strong sense of ambivalence. Such ambivalence is characterised by a great uncertainty over its finalité, i.e. both its purpose and end, which is expressed in a strong indecisiveness as to which path to follow. In this regard, it is suggested here, that this ambivalence is caused by the dynamic dialectic underlying its creation and functioning which – when coupled with a growing complexity of the legislative and administrative procedures that characterise our present epoch – is still causing serious troubles to the minds of people. Such troubles find their expression in an often disharmonious, divided, and even polarised discussion of EU affairs which is most of the times dominated by polemics based on misconceptions and a lack of reliable information rather than a constructive common public debate. This article intends to provide a concise overview of selected stages of the process of European integration beginning with the second half of the 20 century and extending to the development of the main legal foundations as well as institutions of what today forms the “European Union”. By focusing on some of the most imminent challenges that presently threaten the prosperous future of the European Union, this article marks also an attempt to dig deeper into the underlying considerations and perhaps bring some of its original spirit to the fore. It tries to ponder on the cause of the problems and reflects on the question whether this ambivalence is the source of a slow down of the smooth development of European integration or instead forms the basis for its sustainable and democratic development?

The paper discusses the role public morality has played in developing the fundamental rights jurisprudence in India. Restriction of fundamental rights has been justified on the basis of the doctrine of compelling state interest. The author argues that reading public morality into the ground of compelling state interest may make fundamental rights susceptible to the personal interpretations of judges or considerations of a politically motivated legislature. However, the present case makes an interesting point by indicating that public morality and constitutional morality diverge at some points, and that regulation of public morality, unless it overlaps with constitutional morality, would not constitute compelling state interest to curb fundamental rights. The author opines that the new test of constitutional morality used in the case may be subject to more determinable standards than the prior one. Further, to support his stance on non-interference by the state in relation to issues comprising purely of public morality, the author states that regulating homosexuality would amount to the regulation of external preferences by the State, and an enforcement of the majority’s moral convictions by the State without an assessment of the actual threat to public order if the morality of the majority was not imposed on the remaining population, which is not warranted either under Dworkin’s or Rawls’ theories respectively.