Articles

The International Court of Justice, in the Jurisdictional Immunities of the State: Germany v. Italy, had an opportunity to elaborate upon what qualified as an ‘interest of a legal nature’ to permit intervention in a proceeding before the Court. The argument put forth by the party seeking permission to intervene, i.e., Greece, was that a judgment favouring German claims may potentially affect its legal interests and rights. Greece was granted the permission to intervene. Yet, the Court omitted to answer what qualifies as a legal interest, and has left the participants in the international legal order in the dark regarding the preconditions to intervention before the Court.

This paper attempts to delineate the myriad contours of a moratorium on smoking as examined from the point of view of public health and law. In pursuance of the same, it analyzes the topic from the following perspectives: firstly, an identification of the classes of society primarily imperilled by the practise of smoking; secondly, an enunciation of the various arguments present for and against a moratorium on smoking, and thirdly, the current legal position with relation to a ban on smoking, which would include both Indian as well as International strands of opinion. At the same time, it focuses on ancillary issues such as the linkages between smoking and media as evinced by areas as diverse as advertisement and the world of celluloid, the causal relationship between smoking and elements of society such as women, along with an examination of the impact of the practise of smoking on culture as such. By analyzing each of these topics, it attempts to irrefutably demonstrate the importance of such a topic in the public health and law discourse.

Given the need and urgency of a transparency measure in governance in the light of the controversy surrounding the elevation of Justice P. Dinakaran to the Supreme Court ,the present article seeks to examine the accountability-independence continuum in the context of the Indian judiciary .Through the course of this article, we opine that judicial independence and accountability are a necessary concomitant of the process of governance and an isolated evaluation of the two is undesirable for the proper functioning of democracy. If one takes an approach which views accountability to be at loggerheads within dependence, one runs the risk of not appreciating the subtle relationship between corruption and independence. The former, if unchecked, leads to a situation of disrespect of the law and therefore poses a challenge for the judiciary to establish its independence in letter and in spirit. Our central argument is that an independent evaluation of judicial independence and judicial accountability is unwarranted and we seek to suggest the same through an analysis of public accountability debate and the controversy surrounding the recent Judge’s (Declaration of Assets and Liabilities) Bill 2009.

When analysed from an economic perspective, ownership concentration in the media market is a natural phenomenon. Such concentration, when aided by convergence in technology and the digitisation of the media, has had a negative effect on the plurality of opinion available in the marketplace of ideas. This problem has been compounded by decreasing editorial independence, issues of paid news, emergence of private treaties and advertorials. The recent Recommendations on ‘Cross Ownership of Media ‘by the Telecom Regulatory Authority of India have tried to tackle the problem of media concentration by placing structural restrictions on ownership. These recommendations have, inter alia, sought to establish an independent ‘media regulator’ which would have jurisdiction over both print and television segments of the media. However, these recommendations have faced opposition from various stakeholders on the ground that they violate their freedom of speech and expression and right to work. They also reason that the concentrative effect of the media is nullified by the growing popularity of the Internet. In this article, we debunk these oppositions to argue that a free market approach to the media market would lend disproportionate power to media houses and would be detrimental to the democratic setup of the country. Thereafter, while specifically scrutinising the recommendations, we provide a limited critique and alternatives to two recommendations-the organisational structure of the media regulator and the use of the HHI for measuring concentration.

This paper seeks to explore the legality of parodying the national anthem through an analysis of a recent Hindi movie, Rann’s version of the Indian National Anthem. I argue that the given situation falls outside the purview of the Emblems& Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971, the two Acts which were quoted by the Censor Board while removing the song from the movie. In the absence of a law prohibiting the same, the restriction is invalid and violative of free speech. Even if a separate law were enacted to govern the case of parody of a national anthem, it is likely to be still held violative of Article 19 (1)(a), as it would not appertain to the grounds on which speech may be restricted under Article 19 (2).

In this paper I argue that the lack the sports legislation in the country was one of the reasons behind the Commonwealth Games organi­zational fiasco. Drawing from the legislations adopted by Melbourne (host of the previous 2006 games) and Glasgow (hosts of the forthcom­ing games in 2014) I have laid out the important features that a sports legislation in India should have if India ever hopes to host a world scale sporting event successfully. These features include formation of the or­ganising committee, land acquisition, intellectual property rights, ticket touting, transport and ambush marketing. I have pointed out specific ar­eas where India failed in this regard during the Commonwealth Games, in light of India’s bid document and the events that unfolded in the run up to the Games.

In today’s era of globalisation and free trade, transnational corporations (TNCs) have become more economically powerful than many countries around the globe. A number of TNCs have a strong and influential presence in developing countries such as India, since these TNCs are often perceived to be indispensable for their economic growth and development. Such powerful TNCs have the opportunity for gross human-rights violations, such as exploitation of the right to health of the workers, unsafe consumer practices, negligence in protecting the lives of the people residing in the vicinity of factories producing dangerous chemicals or causing environmental damage. The article would hence examine the feasibility of attaching human rights responsibilities to the TNCs under international and domestic laws. The article shall also critically study the efficacy of transnational human rights litigation as one of the potential remedies along with an analysis of the legal hassles involved in the process. Moreover it shall also examine the causes behind the failure of Bhopal litigation and look at the legal system of India to analyse its ability to combat such human rights violations at the hands of TNCs in the foreseeable future. Lastly in conclusion, the article shall offer alternative remedies for the victims of human rights violations in the developing countries.

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’.