Articles

On January 12, 2010, Google threatened to quit China over internet censorship demands. The incident was triggered by a ‘highly sophisticated’ cyber attack that was allegedly launched by the Chinese government on Google’s website. This controversy has unleashed a raging debate on the issue of internet freedom versus regulation of internet by states. Another interesting dimension of this hotly contested issue is whether censorship of the internet is in violation of the norms of international trade law. In light of the Google-China controversy, this paper seeks to examine the potential and implications of a WTO dispute against China that would challenge its internet censorship regime and also aims to simultaneously look into the viable alternatives to a WTO challenge.

On March 7, 2009, Varun Gandhi, the great-grandson of India’s first prime-minister, Jawaharlal Nehru, also the potential Bharatiya Janata Party candidate from Pilibhit in Uttar Pradesh, made disturbing remarks against a minority community in condemnable hate speech to polarise voters on communal basis and gain electoral leverage. Not only did the incident ignite violent protests and incur the wrath of the ElectionCommission, it also attracted several provisions of the election and criminal laws. Though the immediateimpetus for this article is the Varun Gandhi hate-speech controversy, the episode is merely a starting point for delving into a much larger debate on hate speech laws. Therefore, this article seeks to examine laws employed to combat hate speech and to determine if anti-hate speech laws can adequately regulate situations such as the Varun Gandhi episode, or if they require change.

Bangladesh’s public procurement law has sought to ensure transparency, accountability and fairness in government procurements. Whether its accountability goal has been satisfactorily achieved is, however, a debatable issue. The author argues that the procurement rules are somewhat de-effected both by bureaucratisation and technical avoidance of the rules. On the other hand, the judiciary does not follow a searching review of public contracts. In this background, the author analyses the Bangladeshi procurement laws and practices with a view to fathoming ‘accountability’ in public procurements urges for simplified rules, more circumscribed administrative discretion, and a robust but principled judicial review of procurement decisions.

The recent state of Emergency in Bangladesh (2007-08) put the country’s judiciary under certain challenges with
a far-reaching bearing on judicial statesmanship, resurfacing the old but difficult question of the proper judicial role in Emergency. The 2007 Emergency regime initiated an array of reforms in politics, and legal and
judicial spheres, but at the same time clipped the rights of the people and the judiciary’s protective authority. The proper role of the judiciary in such a context should be defined by reference to its ability to maintain the ‘rule
of law’. Recent Bangladeshi judicial decisions show that while the Supreme Court’s High Court Division by and large asserted self-confidence vis-à-vis the overweening Emergency government, its Appellate Division either remained silent or paid undue deference to the executive. By examining the new politics of the senior judiciary in
Bangladesh and the potential reasons that may explain this, and having been based on the premises that the law is a site of political contestation while the judiciary is a political institution constantly negotiating the law with politics, this article will examine whether the Bangladeshi judges during the 2007 Emergency employed their statesmanship in protecting the citizens. This paper argues that the judiciary throughout the Emergency regime suffered a crisis of public confidence, with negative impacts for its constitutional agency in upholding justice and constitutionalism. While contextualizing the need for judicial activism during Emergency, the paper will question the efficacy of dominant legal-constitutional theories of the judicial role.

Environmental rights are one of the emerging rights in the arena of international human rights law and international environmental law. This paper analyses the judiciary’s roles in advancing the right to a healthy environment in Nigeria and India. These two countries have certain similarities and yet there exists a remarkable
difference between the levels of recognition of the right to environment in both countries. The concept of environment rights will be traced by drawing the link between the environment, human rights and sustainable development. Further, the Nigerian oil industry has impacts on the country’s political economy and the
environment of host-communities. In fact, there are reasons why there are certain peculiarities that Nigerian courts face in deciding oil-related environmental cases. An analysis of legal provisions and statutes of both the countries will be presented to highlight the status of the right to environment.

This paper primarily intends to throw light on the postcolonial reading of the legal engagements of sexual subgroups that depicts the complex layering of sexual subjectivities in a postcolonial context, which are not captured in a straightforward ‘lesbian’ or ‘gay’ reading. The use of the term ‘sexual subaltern’ in this paper is mainly intended to capture this complexity. Through the discussions on the engagement of the sexual subaltern with law, the author draws on subaltern scholarship to provide a more complex articulation of the position of the sexual subaltern as well as the relationship between law and the subject. The first part of the paper, briefly discusses the explosion of homoerotic imagery, literature and sex talk in the context of sexual subalterns in postcolonial India, to illustrate that the voice of the sexual subaltern is being gradually accommodated within the postcolonia discourse, and that the public space has become more amenable to sexual subaltern claims.

The article proposes to argue a philosophical foundation of legal legitimacy descriptively basing it from Jürgen Habermas’ idea of the discourse theory. It addresses two closely connected questions: firstly,how is legitimacy of law possible? Legitimacy of law is possible through the democratic medium. The second section briefly charts the differing viewpoints of Hobbes, Locke, Rousseau, and Kant on the lines of reconciling individual autonomy and collective autonomy. Further, similarly, justifications of legal legitimacy receive an internal reference of the legal system through its generation of internal norms. Accordingly, the third section of the article critiques Weber and Hart’s ideas of legitimacy on the ground that the internal point of view of law excludes will formation suited for plural and democratic societies. Secondly, it prescribes how legitimacy takes shape? It argues that legitimacy derives from public contestation using the discursive model of democracy. It reasons and defends that law is a product of public conversation which is reflexive and self-correcting. The article argues that the revolutionary potential of law is realized in this emancipatory reconstruction where people are rights bearers. Therefore, law is a system of rights presupposing people as free and equal deliberators.

Copyright law grants certain exclusive rights to the author of a work, aiming to encourage creativity. This article uses jurisprudential theory, particularly the feminist perspective, to bring out the fallacies in the existing copyright regime and advocates in favour of the emerging copyleft regime, which is against granting exclusive rights to the creator of the work. The article argues that copyright law is inadequate in incorporating the varied kinds of works of different and diverse sections of the society and promotes marginalization of oppressed groups. This exclusion flows from the basic fact that copyright is based on a patriarchal structure. On the other hand, the copyleft regime is based on both masculine and feminine values, and therefore, is a better regime to challenge the existing marginalization.

Law as an institution strives to perform both inclusionary and exclusionary functions in any societal structure. In the present paper, the author highlights the exclusionary role performed by law in Pre and Post Independent India with the help of three primary modalities; ‘Criminalization’, ‘Stigmatization’ and finally ‘Invisibilization’, and then proceeds to offer a possible explanation to such societal exclusion along with advancing a critique to the same.