Articles

The 15th Conference of the Parties (COP 15) of the United Nations Framework Convention on Climate Change (UNFCCC) in Copenhagen was meant to work out an international response to climate change and develop a cooperative long-term plan to address climate change. The outcome of the summit was a three-page ‘Copenhagen Accord’. Termed by many as the ‘dead deal’, and bitterly criticized by many environmentalists, it fails to map a clear path towards a treaty with binding commitments. India’s stand at the summit was that the focus should be on ‘per capita’ emissions and that future emission targets should take into account the historical ‘wrongs’ of the industrialized countries. In the wake of heightened concerns about rapid climate change and the devastating impacts that it can have on India, the ‘per-capita’ argument is increasingly losing force. This paper is an attempt to evaluate the contours and implications of this stand taken by India, and to probe into the question as to whether India is doing enough to combat climate change. We argue that India should abandon its present stand and negotiate to join a post 2012 International Agreement on Climate Change, provided it can secure a fair deal.

Certainty lies at the heart of taxation law as individuals must be aware of what might be taxable and thus be given the liberty to plan their finances accordingly. It is in this light that the principles of classification in service tax law assume importance as they provide guidance regarding what head a service may be taxable under. So, how are these principles that can now be found in the text of the Finance Act to be interpreted? What happens when principles of classification are incorrectly construed? This paper attempts to answer these questions, studying the decision of the Chennai CESTAT in Future Focus Infotech v. Commissioner of Service Tax. The paper argues that the decision of the CESTAT is incorrect and can have undesirable repercussions as precedent.

Eco warriors and wildlife enthusiasts subscribe to the green credo that, while journeying through wide-open spaces, one should “take nothing but memories and leave behind nothing but footprints”. This is getting harder and harder to do in the electronic frontier. Intimate details of one’s personal life are being captured, copied, accessed and preserved all the time, everywhere, instantly. The corporate greed for capturing personal data, coupled with increasing surveillance by governments, makes privacy a critical theme for public discourse. This paper hopes to provide a broad sweep of key developments on the legislative front, particularly in India and Europe, while placing the big picture concerns in a global context. It hopes to transcend the narrow “privacy as a human right” rhetoric and ex- plain why caring about privacy is as much a corporate concern as a private anxiety. It sets out some of the key drivers for taking it seriously and the rationale for why privacy makes good business sense.

Picking up the debate on cultural relativism of human rights, this paper traces the Indian tradition of human rights, which is found to be fully supportive of the idea of human rights. The state in the Indian tradition did not, however, acquire or wield the kind of monopoly of power in the secular sphere of society as it did in the West. Consequently, in the Indian tradition the state was not perceived as the sole violator of human rights, though it may have ignored or connived in their violation. For this reason the Indian tradition does not construct the idea of human rights as freedom from state only but as an idea of a society in which each and every individual is entitled to be so placed as to be able to attain its best in life. The state is required not only to keep off the individual but also to facilitate the realization of its best. The state is perceived not an adversary but a facilitator of the interests of the individual. The two must, therefore, work together towards the realization of those interests. In case the state fails to perform its role the individual must have and does have the right to invoke the legal process. This is the conception of human rights that lies in the heart of a common Indian and is incorporated in the Constitution of India.

Without making any value judgment or taking sides on the propriety or otherwise of consensual homosexuality between adults, this paper examines the constitutionality of Section 377 of the Indian Penal Code. It concludes that Section 377 does not violate the Constitution. Therefore, the Delhi High Court decision in Naz Foundation cannot be sustained unless the Supreme Court overrules the existing interpretation of the Constitution or reinterprets Section 377.

In July 2009, a Fourteen-Judge Bench of the Supreme Court of Pakistan in Nadeem Ahmed v. Federation of Pakistan, headed by Chief Justice Iftikhar Mohammad Chaudhry, has come out strongly in support of democratic principles hitherto neglected in Pakistan, by issuing a stern and categorical rebuke to the constitutional excesses by the former President and Army Chief, General Pervez Musharraf during his rule. The judgment also facilitates the initiation of the subsequent parliamentary process of prosecution of the General for treason for violating the Constitution, which would ultimately seal the fate of not only the man, his regime and its sympathisers, but also the very future of the melange of constitutional breakdowns and political coups and martial law in Pakistan. Pakistan, born one day before the independence of India, is a namesake democracy where democratic values have remained as elusive as the political stability which successive generations of Pakistani citizens have yearned for. Four political coups, a dominant history of military rule, three wars with India and great internal instability in the form of indigenous terror outfits have distorted the existence and efficacy of democratic institutions in the country. Moreover, the repercussions of the internal political affairs in Pakistan have always had a nefarious influence on the strategically fragile relationships in the Indian subcontinent. In the course of this article we intend to primarily engage in a critical analysis of the landmark judgment in light of the political and legal developments that unfolded in the run-up to the proclamation of Emergency in 2007 and those that ensued in the aftermath of this constitutional breakdown in light of persistent struggle for power and domination that has existed between the judiciary on one side and the legislature, executive and the military on the other since the inception of the State, and which remains unresolved till today.

A book which is intended to be nothing more than a commentary on an area of law is expected to have specific objectives. Firstly, the book should map out the general principles that are a part and parcel of the concerned field of study. Secondly, the book should provide explanatory notes with lucid illustrations, explaining the various situations where the general principles have been applied. Thirdly, the book should give an updated account of case laws, which ought to fall into two categories- the cases should either be such that the decision therein adds a new dimension to the existing understanding of the subject area or they may be such as to reaffirm the existing notions and authorities…

The rights and obligations of the parties involved in an administrative litigation in China are important for realizing the targets, to protect the individuals’ rights and to limit the public powers set up by the Administrative Procedure Law, 1989. According to the law in China, a plaintiff refers to an individual, a legal person or other lawful organizations, whose rights have been directly affected by a defendant, viz. a public authority or its employee exercising public powers. This position has, however, experienced reformation and expansion by the Supreme People’s Court’s interpretation of law and the introduction of public interest litigation. A plaintiff is now guaranteed the right of access to a court, right to counsel, right to motion for conflict out, etc. These rights are to be exercised lawfully and should comply with the rules and instructions laid down by the courts. Since all the parties are equal before law, a defendant or a third person is guaranteed similar rights and also subject to similar obligations. A few differences, however, exist among them as well. In the course of this paper, I will undertake a thorough analysis of this subject to reveal the inconsistency between the norms and the reality, thereby showing that the realization of the rule of law in China still has a long way to go.

Many argue that there are linkages between trade and human rights regimes. The author takes the argument one step further and enquires whether trade regime itself can be termed a form of human right protection. In addition to examining individual WTO Agreements and provisions like Article XX of GATT, the author also argues how the broad principles underpinning the trade regime, like non-discrimination, right of market access and right of participation go on to further human rights. She also addresses some concerns as to how trade and human rights cross roads at times, like the case of liberalisation of essential services.

Power to amend the constitution is distinct from the power to amend any other legislative instrument in view of the fact that the former is a power to alter the most significant instrument in the polity. The apex court of the country has also recognized this distinction while equating the power to amend the constitution with constituent power. In our opinion, this position needs to be reviewed since there is significant difference between the concept of constituent power and the power to amend the constitution. For a clear exposition of the nature and limits of the power to amend the constitution, a proper understanding of it’s distinction from the concept of constituent power is imperative and providing that is the intended objective of the present paper.We conclude that the power to amend the constitution is an aspect of governmental power, distinct from sovereign power, which is fettered by the constitutional form. The constituent power, on the other hand, is an attribute of the sovereign unfettered by any constitutional limits.