Articles

The Basic Law of the Federal Republic of Germany was properly put into force as constitution in 1949. It is well known that there has been no death penalty in Germany ever since. Less known is that it is Art.102 of this Basic Law of Germany (GG) that has abolished the death penalty in Germany. This was the result of then convincing considerations after the disaster of the former regime in Germany and its outrageous abuse not only of that sanction of criminal law. Since presently in India there is a discussion if the state should use and apply the death penalty in future1, it might be of interest what arguments would justify nowadays the absence of the death penalty in Germany under its present constitution. This does not relate to any debate of that kind in the country nor is there any motion in that direction, for instance with the intention to abolish Art. 102   GG by amendment and its replacement by inserting a positive clause in the opposite direction. If that ever was the case, the stand would be taken immediately that such an undertaking is not possible.

The initial months of 2010 witnessed a new method, called the French Auction, being used for the pricing of subsequent share issues of several public sector undertakings. This was admittedly brought about with a view to maximizing the divestment proceeds of the undertakings. The method was used in place of the book building method, where the issuer would specify a price band and allocate shares at a specific price within that band, depending on the demand. While competitive bidding in the absence of a price band under the French Auction system is expected to result in a more accurate valuation of the IPO and greater capitalization for the issuer, we point out its shortcomings, which make it unfit for implementation in the Indian markets, as the IPO price is prone to manipulation and argue that it may not result in more accurate pricing than the book building method.

This article seeks to analyse the state of the system of juvenile justice administration in Nigeria against the background of international framework and guidelines. The author finds the Nigerian setup to be inadequate for ensuring juvenile justice because of inconsistencies and ambiguities in municipal legislation – for example, the age of criminal responsibility is different under various statutes, and the bail provisions are capable of being abused. Further, policemen are known to have been brutal in their dealings with juvenile offenders, and lack of specially trained state officials makes the state machinery ill-equipped to facilitate the process of rehabilitative justice. The author then explains that having dedicated juvenile justice courts may be better than the current system where magistrates in charge of ordinary criminal cases handle juvenile justice matters as well. The article concludes with the observation that juvenile custodial institutions have not been efficacious in rehabilitating the juvenile offenders housed there, and makes recommendations to address these shortcomings.

This article seeks to analyse the decision of the Bombay High Court in Lawyers Collective v. Bar Council of India (hereinafter Lawyers’ Collective judgement). The petitioners had challenged the permission granted by the RBI to certain foreign firms to set up liaison offices in India. The Court went on to examine whether non-litigious practice comes within the ambit of ‘practice of law’ under the Advocates Act. In this article, the authors seek to examine the judicial reasoning employed by the Court and then seek to provide alternate reasoning which may possibly have resulted in a different conclusion. It is also suggested that the conclusion of the Court does not in actuality further the objective of regulating non-litigious practice. Expansive reading of the present laws is insufficient for the purpose and specific regulations need to be brought in to do so. Furthermore, the article will read into the potential impact of this judgement on ancillary areas such as ‘best-friends’ agreements and India’s  commitments to the WTO under the GATS.

Intellectual property rights grant a degree of exclusivity to the owners, necessarily restricting access of others to the same. On the other hand, anti-trust law seeks to promote competition and increase access to the market. There is a seemingly inherent conflict between the two. Yet, there is increasing opinion that the two realms can, not only co-exist but also complement each other. This article seeks to trace the shift from divergence of the two areas to their convergence. Thereafter, it aims to show that they have distinct operational areas and their functions can and must be kept independent. The theoretical position adopted above is tested against EU law, where such principles have been applied. The separation of operational areas has ensured minimum conflict in a market economy, where both areas play key roles. The Indian position can be seen to be leaning towards such an understanding and it is likely that eventually cases before the Competition Commission will be decided according to these principles.

The idea of academé is not merely one of settlement of contentions; it is in fact and more importantly, to describe the truthfulness of what exists. The challenge of “what should happen and how” hides in it, a deeper challenge about our understanding of “what is happening around us”. Each one of us may have interesting recipes for the future of Indian polity, but a sensible measure of their strength lies only in their interconnectedness with the truths of our present political existence and in their capability to respond to the misjudgments of past. The present is born out of the past in the same manner as the future would be born through the present. Answers to questions therefore, we think, concerning the past, present and future of constitutional essentialism in India and the promise which it holds for sustainable political development cannot be explored in an empty space ambivalent to the burdens of history. They have to be located instead in a broad framework of political organisation which is accommodative of their interaction with each other. This research may be understood as a statement of a collective effort in this direction to reassess the place of ‘basic structure doctrine’ in the landscape of Indian polity…

The recent judgement of the Delhi High Court in the Naz Foundation case goes beyond merely decriminalising homosexuality. The progressive reinterpretation of Article 15 of the Constitution has brought out its distinct character, which has for long been buried under Article 14 and the general promise of equality it offers. Four key innovation shave been introduced by this reformulation of Article 15, which are likely to give unparalleled protection to all minorities from discrimination. These innovations are 1) the introduction of ‘strict scrutiny’ to review protection under Article 15, 2)the understanding that not only the specified grounds but also grounds analogous to them are to be protected, 3) protection against discrimination not only from the state but also private parties and4) protection from not only direct but also indirect discrimination. The author argues that locating of the right against discrimination in the bedrock of Swaraj or personal autonomy is the crucial tool for justifying the introduction of these innovations. The author concludes that this innovative reinterpretation of Article 15 is likely to give greater credence to anti-discrimination law in the country, bolstering it further which is likely to benefit all minorities – thus reaffirming the counter majoritarian role of the judiciary.

The focus of this article will be on the prosecution and punishment of perpetrators of violations of international criminal law. The article will analyze the desirability and viability of international judicial institutions as a matter of enforcement of international criminal law. In the course of the present article an attempt will also be made to study the principles of state sovereignty and international criminal jurisdiction. It will also make overall assessment of the role played by the United Nations (UN) war crimes tribunals for the former Yugoslavia and Rwanda in respect of prosecution for crimes committed in armed conflicts. This article will also look at the competence of the UN to establish war crimes tribunals.

While both China and India began their independent history rooted in a socialist ideology, albeit with some local customisation, they are today in some measure leaning towards free market capitalism. The development of the right to property in the two countries, however, has been diametrically opposite. While on the one hand India had, in pursuance of its ideological goals, relegated the right to property, China on the other hand, has progressively accorded it a stronger status. However, it has not witnessed the kind of constitutional tensions – be it at the ideological level, as a result of apparently conflicting goals of the State, at the institutional level, as between the judiciary and executive branches of the State, or even at the interface with civil society, which India had to brave. This paper explores the reasons for such divergence of experience. However, as Chinese society and legal institutions witness a change, it is foreseeable that China may experience similar tension as India had once witnessed. In this backdrop, this paper suggests means by which China could learn lessons from the constitutional experience in India, keeping in mind systemic differences in the traditions of the twin nations.

My dear students, colleagues from the faculty and administration, and everyone else who is and has been directly or indirectly associated with NUJS (including, definitely, the current and former honourable members of the managing bodies of the University), I have immense pleasure in being with you this afternoon on the completion of my term as the head of this upcoming institution. This afternoon, and for quite some time during the last several days, weeks and months, I have been taken over by the feeling of losing and leaving behind the love, affection and respect which you have so abundantly bestowed on me. I hope that in the hustle and bustle of life, from time to time you will connect me to your days at NUJS when I have been around, known or unknown to you. In any case, your smiling faces and good actions will keep coming back to me, giving me light and energy during my fading days. Therefore, let us not celebrate today as a day of parting or good bye but as a day of future creation, weaving together the threads of our stray thoughts and interactions into a beautiful tapestry that will give us the pleasure and satisfaction of having made the best of our time at NUJS…