Articles

Starting with Thakur, this paper travels through the mediatory role of the courts in resolving serious controversies over reservation; it examines if opposition to reservation has any constitutional basis; and argues that the 93rd Amendment to the Constitution is valid in its entirety. It also argues that a casteless society cannot be read in the Constitution, the fifty-percent limit on reservations is not a binding norm, and that the determination of the validity of laws included in the Ninth Schedule on the ground of breach of the basic structure of the Constitution may remain a myth. In sum, the paper supports the constitutional provisions and parliamentary initiatives for reservation.

The global business environment is increasingly concerned with reducing cost and increasing efficiency and legal process outsourcing (‘LPO’) is proving to be the perfect vehicle to achieve this. India has emerged as the most favourable destination amongst legal outsourcers as its developing economy, convenient time-zone, and large population of English-speaking and common law trained lawyers create unmatched cost incentives. Furthermore, LPO services are no longer restricted to providing administrative and support services as their role has expanded to include research, legislative tracking and analysis, and document drafting. Despite the promising growth exhibited by the LPO sector, this paper seeks to explore the future prospects of the LPO firms, in terms of regulation, due to the host of legal and ethical concerns generated by legal outsourcing.

“Implied powers” pose difficult conceptual problems for legal scholars. They are invoked in many contexts and appear to comprise several distinct legal phenomena. Yet there is no clear understanding of what we mean by an “implied power” – apart from the very basic notion that it is not an express power – and of what forms it may take, and no existing theoretical framework that can help us in this respect. This article takes a first step towards creating such a theoretical framework by identifying criteria – the content of the power, the authority holding it, and the nature of the implication involved – that may be used to classify all references to “implied powers” in the positive law. The article focuses on Indian constitutional law to see how the relative paucity of implied powers in the Supreme Court’s jurisprudence on constitutional matters may be analysed using the proposed framework. In this perspective, the paper suggests that the separation of powers and the judicial emphasis on restricting governmental powers vis-à-vis citizens are relevant factors in explaining both the absence of a general implied powers doctrine and its specific use in an intergovernmental context.

The Supreme Court in Suresh Kumar Koushal v. Naz Foundation has missed an opportunity to build on the earlier Delhi High Court decision and shape rights jurisprudence in a creative and rights enhancing manner. Instead it has reverted to a restrictive reading of the law that is full of logical and analytical inconsistencies and the incorrect use of precedent. This demonstrates an unwillingness to appreciate and assess the compelling evidence that was placed before it. In this piece, I will focus on the mass of material that the court did not take into account while arriving at its decision. These include the Attorney General’s submissions, affidavits of parents of Lesbian Gay Bisexual and Transgender persons, and scientific material placed before the Court. I will also examine the arguments in the judgment related to presumption of constitutionality, vagueness of law and the dichotomy between the sexual act and homosexual identity.

With the liberalisation of the economy and trade in India, the new competition law – the (Indian) Competition Act, 2002 – modelled after the European law on competition and the UN Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, decriminalised antitrust offences, but enhanced the limits of penalties for certain anti-competitive practices. This paper notes that the Competition Commission of India, which has the responsibility of enforcing the Competition Act, has been meting out heavy penalties. But the CCI has often been criticised by the Competition Appellate Tribunal, for not considering relevant factors while calculating fines and not giving reasons for imposing these penalties. It is noted that the law only fixes ceiling limits of penalties. A suggestion has been made by the bar in an appeal matter before the COMPAT to adopt the European/British guidelines on imposing penalty. Predictably, this has not found unconditional acceptance by COMPAT, which has only accepted the proposition of calculating fines based on ‘relevant turnover’. In this paper, I have examined the legal provisions and relevant case laws from the Supreme Court and competition authorities to map the present procedure for setting fines in competition cases in India. I have also analysed the European law on the subject, and explored how these processes can be adopted in India. Can a procedure be devised to bring transparency and predictability to the procedure for setting fines for antitrust offences in India?

The discourse on public trusts in India has been ridden with contradictions. In the absence of any specific laws governing them, trusts, and more importantly, trustees, are more often than not faced with conundrums to which the law may not always have solutions. In this paper, I examine this jurisprudence on the subject of public trusts, and delve into why the Judiciary ought to assume the duties of parens patriae in protecting the rights of a trust. As these rights are not compartmentalised as black or white, it becomes all the more vital for strengthening the role of the Judiciary in this regard.

Amidst strong reactions against the decision of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation, this paper argues that the Court has done all that it is expected to do under the Constitution and the law established under it. The respondents, especially the Union of India, have unsuccessfully asked it to do what the Constitution does not expect it to do. The remedy against § 377 lies with the people through their Parliament, and not in the courts. “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.”

In this paper I evaluate three arguments of the Delhi High Court’s decision in the Naz Foundation case. First is the argument that sexual orientation is analogous to ‘sex’ in Article 15 of the constitution. I term this argument ‘the sex-based’ argument and argue that though it is logically sound , it is not supported by the judgments that the court cites; nor thus the court properly lay out the exact nature of this powerful argument. I further argue that the ‘sex-based argument’ should be employed along with the ‘common thread’ argument which is supported by the text of the judgment and is also desirable in the light of the argument acting as a precedent for interpreting Article 15 of the Constitution. The second argument I examine is that of the right to privacy and autonomy. Here I argue that the decision has enriched the discussions on the right to privacy in India, but at the same time has committed us to pursuing a notion of privacy based on personhood, which at present has very little specific content. I also argue that the court has used the concepts of privacy and autonomy without adequately clarifying their meaning. Instead it grounds them in a concept of human dignity, which again is a highly contested concept, with many accusing it to be a place holder at best. This takes me to the third argument of the court, which is on human dignity. Here I try and briefly demonstrate the problems associated with the use of this concept. In spite of this I argue that the process of reasoning followed by the court is compatible with principles of adjudication which are well founded in legal theory. I focus particularly on the ideas of coherence in adjudication and the nature of judicial law making.

The main focus of the article is on the effectiveness of the criminal sanctions for fraudulent trading as a creditor protection mechanism. The article begins with an examination of the evolution of the duty of directors towards the creditors of the company. Then it seeks to address the main arguments advanced for and against penalising fraudulent trading. This is followed by an analysis of the fraudulent trading provision in India and UK. The study reveals that the provision has failed to achieve its purpose of punishing rogue managers and lax directors. It points out the flaws in the Indian law and proposes some suggestions to overcome the same. The main questions addressed in this article include: Who has a duty to prevent insolvent trading? When is the duty triggered? When can the company be said to be insolvent? And finally what is the scope of the duty to prevent insolvent trading?