Articles

NUJS Law Review is the sprouting of a seed long embedded in my heart. Ever since the early years of my entry into law, when I came across some of the law school reviews from abroad, especially the United States, I have longed for similar reviews from our law schools. Some of the law schools such as Lucknow, Delhi, Jaipur; some organizations such as the All India Law Teachers’ Association and some enterprising law teachers took the initiative of bringing out law reviews but could not proceed beyond a few and sporadic issues. The Journal of the Indian Law Institute is perhaps the only academic law review, which has survived since its inception. Some of the professional journals primarily devoted to the reporting of judicial decisions of the superior courts such as the All India Reporter, Madras Law Journal, Bombay Law Reporter, Calcutta Weekly Notes, Kerala Law Times and others occasionally published a few academic writings. The Bar Council of India also initiated a journal soon after its establishment in the early sixties, which was later renamed as the Indian Bar Review. Some of the writings in these journals could undoubtedly be compared with any good writings in the law journals abroad but they did not create a system of legal research and writing assuring continuity, quality and frequency…

The monsoon session of the Parliament this year has been touted to be the harbinger of social reforms, as it witnessed the passing of several landmark legislations in quick succession. Noteworthy in this regard are legislations relating to food security, land acquisition and eradication of manual scavenging. The Parliament also passed a law codifying the rights and protecting the livelihood of street vendors, which is a very crucial legislation in the informal labour sector. What needs to be examined is whether these new enactments actually take a step forward by deftly addressing these crucial socio-economic issues or are only half-hearted attempts on the part of the government. In this context, this note seeks to undertake an analysis of the laws relating to land acquisition and food security…

“An exploration of moral rights in the world’s legal systems reveals a robust doctrine.” This is how Dr. Mira T. Sundara Rajan concludes her seminal work on moral rights. Though moral rights appear to be a small component of copyright law, this book portrays the development of the concept on the world canvass. Moral rights did not find place in the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) but it resurfaced through the WIPO Performances and Phonograms Treaty (‘WPPT’). The author has effectively used comparative methodology in its widest amplitude to avoid a myopic treatment to the subject and has come out with this comprehensive work on moral rights…

At the heart of intellectual property (‘IP’) law are the ‘hard’ questions on infringement and remedies. Complex legal matters concerning IP validity (exclusion of subject-matter, qualification requirements), determination of scope of rights, availability of defences etc. are more likely to be determined when IP infringement suits seeking statutory and equitable remedies are initiated by market players.1 Today, Indian courts have to grapple with these issues on an ever-increasing scale. A focused legal commentary on the nuances of IP law has been much awaited…

The recent public outcry against the Delhi Jal Board’s proposed public private partnership model has rekindled the contentious debate around water privatization and its impact on the urban poor. Several grass root level organisations and activists have coalesced to form the Water Privatization-Commercialization Committee that is actively opposing the project under the patronage of Retired Justice Rajinder Sachar. In this context, this paper seeks to explore the implications of privatization in the financing and management of water supply systems. While it concurs with much of the criticism that has been raised against privatization, it argues that this failure of privatization is actually a reflection of the ‘governance crisis’ in the Indian water sector. By undertaking a detailed examination of the reasons for the inherent failure, it concludes that the focus of the current reforms in the water sector must be directed at establishing a foundation of ‘good governance’, which is imperative to set the stage for a successful process of privatization in India. In this regard, it proposes certain basic, but significant institutional reforms that must be factored into the urban water supply structure to ensure efficiency of the operator, whether public or private.

The paper is an exhaustive critique of the Nazareth Foundation judgment – besides a comprehensive evaluation of the Court’s treatment of applicable constitutional rights and doctrines, such as the right to privacy, equality, constitutional morality, severability and many others, it also makes interesting observations on the style in which the judgment has been written, and the Court’s treatment of legal sources, such as legislative history, prior decisions and foreign materials, some of which are characterised as ‘soft’ law. The judgment’s remarks on the statements of the Prime Minister and the health minister on Section 377 and the citation of a webcast reflect a modernizing approach to the treatment of legal sources. On substantive legal aspects, the boldest advance of the judgment is quite clearly its invocation of substantive due process reasoning to test legality under Article 21, which may carry it a step further than Maneka itself. Second, the Court has accepted the possibility of implied desuetude of a statutory provision, which is an interesting point and could therefore be raised more strongly in appeal. Third, the author points out that recourse to a privacy-based argument may well be insufficient to protect the rights of gays in India, as for them the ‘private’ arena is often a shared public place. Fourth, the Court has not made observations on the ‘personal liberty’ aspect of Article 21, a step it could have taken. The author suggests that the Court could have used the ‘new equality’ doctrine of arbitrariness under Article 14, which would be more in line with Indian constitutional jurisprudence, instead of using the more stringent test of strict scrutiny, which may not be legally sustainable. The author concludes that such an elaborate effort by the Delhi High Court affirms its position as one of the most important constitutional courts in the country, which has used innovative methods to push the boundaries of existing jurisprudence.

With the notification of §§43A and 44 of the Competition Act, 2002 the competition law of India comes into full force nearly a decade after its inception. Within this decade of evolution, competition law and policy in India has seen an active interpretational exercise. This paper seeks to summarize the evolution of competition law and policy in India, discusses the main issues involved in this area of law, and opens up issues for discussion in this evolving area of law in the country

This article seeks to assess functioning of the legislative framework for juvenile offenders over the past ten years. It discusses various technical issues under the Juvenile Justice Act, 2000 such as the date of application of the Act, whether it overrides other special Acts in its application to children, methods for determination of age of children and procedural relaxations for raising the plea that the offender is a child, and concludes that significant reform has been achieved in these areas. The absence of an explicit provision for allowing legal representation before the Child Welfare Committee under the Act, interpretative ambiguities in the Commission for Protection of Child Rights Act, 2005 and the lack of establishment of Children’s Courts despite stipulation by the same to that effect are, however, the problems left unsettled under the current legal framework.The concluding remarks are appreciative of the judiciary’s recent decisions that uphold the protection of child rights against some procedural or formalistic hurdles

The Arbitration and Conciliation Act, 1996 was enacted by the Parliament with an objective to minimise intervention by courts in the process of arbitration. However, over a period of time the interpretation adopted by the higher judiciary to various provisions of the Act has been contrary to this objective. With a view to rectify this situation, the Ministry of Law and Justice released a Consultation Paper proposing amendments to the Arbitration and Conciliation Act, 1996. The present paper attempts to summarise and analyse the two most important amendments put forth by the Ministry, i.e. firstly, the application of Part I of the Act to international commercial arbitration, and secondly, appointment of arbitrators under §11 of the Act. It is argued by us that though the intention of the Ministry is to minimise judicial intervention and make arbitration an efficacious alternative remedy, the proposed amendments are not sufficient in rendering India an arbitration friendly jurisdiction. The paper also highlights a few other areas which need to be amended