Articles

This paper lauds the end result of the Naz Foundation case in that it decriminalises homosexuality, but questions the continuing problematic legal labelling of it as an activity that contravenes the ‘order of nature’. It argues that terms such as ‘order of nature’ in the context of sexual preferences are inherently indeterminate, vague and arbitrary and are therefore likely to contravene Article 14 of the Constitution of India. The Naz Court endorses a line of Section 377 cases that embody a prudish Victorian morality, under which only ‘procreative’ sex is seen as ‘natural’.

By this logic, even condom usage during sex would count as unnatural, an absurd result, given that India suffers a population explosion problem. In any case, it is not the place of the state to regulate such private acts that cause no palpable harm, apart from offending the conservative sensibilities of some sections of society.

This paper explores the parameters of Article 14 and argues that it is difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’. Further, since this problematic distinction envisaged by section 377 has no rational nexus with the object sought to be achieved by the law, it would even flunk the traditional ‘reasonable classification’ test under Article 14. The court did not adopt the more ‘natural’ line of argument above and strike down Section 377 as a whole, as it may have feared the resulting decriminalisation of problematic sexual activities such as paedophilia and bestiality. We argue that although this is a valid concern, it is best addressed by Parliamentary intervention. To this extent, we endorse certain recommendations by the Law Commission that propose the enactment of a new provision to criminalise problematic sexual acts such as paedophilia, without necessarily labelling them as ‘unnatural’.

Beginning with an analysis of the 2007 Mumbai High Court ruling in Insure Policy Plus Services (P) Ltd. v. Life Insurance Corporation of India, this paper goes on to discuss its implications in the Indian scenario. The authors also elucidate on the economic benefits and legality of assigning life insurance policies to third parties without an insurable interest in the life of the policyholder. The paper also goes on to examine life insurance policy trading in the secondary market, as prevalent in the West, where it is a flourishing business and tries to ascertain whether India will be receptive to the same.

The Hindi film ‘3 Idiots’ which released in 2009 has achieved that dubious distinction of having attracted the attention of legal academia because of the public war of words between the film’s makers on the one hand, and the novelist from whose novel the movie derives considerable inspiration on the other. The genesis of the dispute was in the novelist, Chetan Bhagat’s contention that the Production House, namely Vidhu Vinod Chopra Productions, had adapted the content of his novel to an extent far greater, and in a manner far more direct, than what he had been led to believe by way of the Agreement arrived at between them. Another allegation directed against the Production House was concerning the inadequacy of credits acknowledged to the Author by way of the said Agreement. The paper addresses the above issues under two distinct heads, namely the contractual liabilities and those pertaining to the intellectual property rights. It tries to suggest some remedial steps which could be taken by novelists in similar situations in addition to steps which could be taken by the State to give better protection to such vulnerable parties in the future. 

I seek to delve deep into a problem area of the modern International Trade Jurisprudence – an issue of immense implications for the Developing World in particular, and all the nations of world in general. The issue it to ascertain how and in what ways has the globalization process and the on-going Free Trade Regime affected Public Health – recognized as a basic Human Right. The necessary question to be addressed would be whether the International Trade regime needs to, and if yes, how much, care about the Human Right slaw, or, for that matter, any other principle of Public International Law principle? In answering this question, Health will be taken as a pointer which would indicate the WTO’s intent of addressing this Right through the various covered Agreements, and seek to address in the process the oft-emerging question of the co-relationship between the two apparently conflicting ideals of Human Rights protection and Free Trade.

The European Court of Human Rights (ECtHR) is widely recognized as having the features of what can effectively be called a constitutional court. But what is the proper definition of a constitution and in what way can the ECtHR be properly considered a “constitutional court”? Constitutions are considered by citizens and jurists alike to be the most profound expressions of national commitment, but to what extent does the ECtHR operate constitutionally vis-a-vis the States within its jurisdiction? This paper attempts to briefly answer these questions and elaborate upon the implications of having the constitutional atmosphere of the EU interpreted and influenced by the ECtHR. This paper also deals with the EU’s constitutional structure as States interact and submit to the constitution-like machinations of the ECtHR. The paper proceeds to investigate the ECtHR as a constitutional apparatus and examine the unique challenges to the idea of a “constitutional court”. It concludes with case studies from the United States and Scotland and finally questions what could be done to further understand the constitutional nature of the ECtHR.

Abortion laws originated in the United Kingdom as early as 1803, but the credit for revolutionizing abortion laws and recognizing the inherent, perhaps inextricable right and liberty of women over their bodies can only be given to the United States – more specifically to the American judiciary. From as early as Roe v. Wade, the American judiciary has been reiterating the inherent right of a woman as a constitutional person, to terminate her pregnancy in the earlier stages and thereafter giving the State a role to play, hence making abortion legal for the first time in the Unites States in 1973. Even though senators and other policy-makers in several, if not all, states of the United States have tried to whittle down the basic premise of Roe v. Wade, it has been emphatically upheld in subsequent cases. After more than thirty years of the pro-abortion movement in the West taking firm root, anti-abortion groups have again taken a radical standby trying to control abortions through the introduction of the Unborn Child Pain Awareness Bill, 2005(commonly known as Fetal Pain Legislation) and as many as twenty-three states in the USA have passed it to be an Act, which would require that abortionists disclose to women the reality that killing an unborn baby by abortion causes pain to the child. It would also require that women who were pregnant for more than twenty weeks be given the choice of adopting anesthesia for their fetuses. Interestingly this move by the legislature was said to find its basis in the judgment of Gonzales v. Carhart where the Supreme Court held that the federal legislation banning partial-birth abortion was constitutional on its face. The issue of fetal pain arose amidst the partial-birth abortion debate. Supporters of the federal legislation argued that partial-birth abortion was excruciatingly painful for the fetus and that banning this abortion procedure would further the state’s legitimate interest in protecting the unborn child. Opponents of the federal ban argued that there was no conclusive scientific evidence to support the hypothesis that a fetus is even capable of feeling pain. As a result of this partial-birth abortion controversy, legislations aimed at acknowledging and assuaging fetal pain during abortion came into being. In India, the debate on abortion laws as embodied in the Medical Termination of Pregnancy Act, 1971 has been swirling since the Bombay High Court’s decision in Dr. Nikhil Dattar & Ors. v. Union of India, where the Court by a strict interpretation of the provisions in the statute, refused to give a lady pregnant with a malformed fetus the right to abort since she was already in her twenty-fourth week of pregnancy. Since then there have been urgent calls to amend the statute as long-standing criticisms of the policy have been brought to the forefront again. It has become critical at this juncture to look at the development of abortion law and policies in the West, particularly in the United States, to gauge where India stands at this moment and whether, if at all, India should be inspired by the western counterpoint or should take caution from the developments therein to further its own interests in striking the perfect balance between liberty, autonomy and freedom of the individual on the one hand and the State’s right to interfere, on the other.

The right to work has occupied a central place in the human rights discourse. Yet, a vast majority of the world population survives without meaningful employment. This crisis of employment is more acute among vulnerable communities like refugees and asylum-seekers who are often systematically denied access to the labour market and opportunities for self-employment, thus accentuating the trauma of forced migration. From this vantage point, this paper examines the status of the right to work under international law and its applicability to refugees and asylum seekers. It argues that while there are avenues for the right to work of refugees under the Refugee Convention, there are significant limitations and questions hovering over asylum-seekers’ right to work. In contrast, international human rights law envisages a universalist conception of rights and thus extends to both refugees and asylum-seekers. The paper further avers that situating the right to work within the framework of the International Covenant on Economic, Social and Cultural Rights and related international human rights instruments can create new legal space for protection of refugees and asylum-seekers, especially in countries that have not ratified the Refugee Convention.

The judgment in Kesavananda Bharati is considered by many as an attempt to rewrite the Indian Constitution. In arriving at the conclusions, the court propounded the ‘basic structure doctrine’ that identified certain constitutional features as so essential that they could not be altered. In this essay, I recount the development of Kesavananda’s doctrine and the implications that might follow. In particular, I explore the limits of constitutional development in India and sketch out a broader role for constituent power beyond the Constitution. I argue that the ‘basic structure doctrine’, though extremely significant, upsets key philosophical assumptions about constitutive sovereignty and the limits of constitutional authority, largely because of the way it has evolved. I mark the misjudgements that have been woven into the doctrine, a significant time is spent in extricating it out of this mess and my sentiment through the paper is that ‘basic structure doctrine’ can retain its legitimacy only to the extent to which it can adapt itself to a philosophically affluent framework of constitutional democracy, one which respects both the inevitability as well as minimalism of judicial role. My task takes me through landmark decisions in Nagaraj and Coelho and I explain how they herald a new beginning in the right direction. Towards the end, I call for a structural shifting the competing perceptions the doctrine enjoys in the ranks of judiciary and the Parliament in an effort to raise them to the task of constitutional accountability. This is a conversation about the most enduring contribution to Indian constitutionalism.

The link between sex and privacy is not self-evident. The protection of the ‘right to privacy’ is accorded to only those sex acts that have the normative qualities of patriarchal, heterosexual marriage. Additionally, a privacy-focused legal intervention to extend protection and recognition to non-normative sexualities, could have problematic implications for queer politics itself. This article is an assessment of the ‘privacy argument’ as articulated in the Naz Foundation judgment, against the backdrop of this troubled relationship between non-normative sexualities and dominant understandings of privacy. While the court in Naz has moved away from a narrow ‘space-based’ notion of privacy, it continues to view privacy as a negative freedom, the scope of which is rather limited. Additionally, while the exclusivity and ideological dominance of the ‘private’ is busted by dissociating the claim to privacy with heterosexual marriage, the judgment introduces other normative codes for sexual relationships that are protected by privacy. The article notes that the privacy analysis in Naz Foundation has both possibilities, which must be emphasized and limitations, which must be regarded as areas of further struggle. In the final analysis, one must however acknowledge the limited role that any privacy-based intervention can play in counter-heteronormative struggles, since the ideas of ‘natural’ and ‘unnatural’ sexualities are left unexamined, no matter how one may frame the privacy question.

Minimum alternate taxation is a measure to address the growing problem of companies that declare high profits, but pay low or no taxes (‘zero-tax’ companies). Parliament has experimented with its approach to MAT since 1983 and continues to do so in the proposed Direct Tax Code. This paper charts the various changes in the MAT regime made over the years and the interpretational problems that have arisen with provisions for MAT credit, advance payment of MAT and calculation of book profits. It then considers the merits of this taxation regime with reference to the economic effects of the burden of this tax, and the attendant compliance and record-keeping costs. With this in mind, this paper argues that the MAT regime should be modified and puts forth two proposals for reform to make the corporate taxation regime clear and efficient.