Articles

Since the release of the report of 2nd National Commission on Labour in 2002, there has been a major apprehension regarding its philosophy among scholars, political parties and general public alike. There has been a general apprehension that this report espouses a philosophy of ‘hire and fire’ and in doing so, it compromises the aspect of labour welfare. In the present paper, we have attempted to understand and analyse the real philosophy espoused by this report and in doing so, provide a proper evaluation of this report. In analysing the report, we have tried to understand whether there was an actual need for having a reform in Indian labour regulation regime and if at all reform was a necessity, whether the present scheme of reform has addressed such needs or not. Finally, by such analysis of the scheme of reform, we have attempted to answer the question as to whether such reform scheme is indeed a compromise with labour welfare.

The author by way of this paper has attempted to argue that disenfranchisement of prisoners often tantamounts to their civil death. In pursuance of the same, the author has attempted to correlate diverse strands of thought such as the principle of universal suffrage, qualifications for voting as well as the comparative poitions in other countries. The author has then attempted to correlate the aforementioned strands of thought to the Indian position and the effect of international instruments on the same in an effort to answer the basic question as to whether prisoner disenfranchisement qualifies as a reasonable restriction to universal suffrage

Paragraph 2(1)(b) of Schedule X of the Constitution of India seeks to ad- dress defection by preventing parliamentarians from defying the direction of the party whip during times of voting. The wide phraseology of the provi- sion has led to misuse of this power, which has resulted in a chilling effect on the freedom of speech of the members of the house. The provision con- fuses dissent for defection and thereby, stifles a vital cog of parliamentary democracy. Further, by regulating voting, there is a flagrant curtailment of parliamentary debate, the implication of which has been meagre discussion before the passing of crucial bills. There is no logical link between this pro- vision and the aim of improving party stability. Further, it has not contrib- uted to checking the concomitant evil of corruption in Parliament. Despite the issue being highlighted by the Supreme Court in Kihoto Hollohan v. Zachillhu,1 the solution proposed by it has been largely ineffective and done little to neutralise the harm arising from this provision. The purposive in- terpretation given to this provision thus mandates a relook to further water down its unintended scope. This paper argues that the appropriate solution is not the repeal of Paragraph 2(1)(b), but a constitutional amendment to restrict the instances where members can be disqualified for defying whips. Such an amendment would not only address the stated harms, but also bring India’s defection laws in line with American and English parliamen- tary principles.

On the face of it, The Protection and Utilisation of Public Funded Intellectual Property Bill, 2008 appears to be a progressive piece of legislation. Modelled on the American Bayh-Dole Act of the 1980s, the Act makes it mandatory for institutions to create well-defined intellectual property rights over any innovation arising out of publicly funded research and also to exploit these innovations commercially. Universities, research centres, laboratories etc. would thus be able to reap the financial benefits of their innovative work which, it is hoped, would spur on further innovation. There is, however, much to suggest that the Bill in its present form may not be the panacea that it has been touted to be and there is a need to take a closer look at the apparent success of the Bayh- Dole Act in America and in that context to undertake a rigorous examination of the relative merits and demerits of the Act not only to explore the possibility of improving upon the model but also to better adapt it to the different scenario that India presents. Once the Parliamentary Standing Committee on Science & Technology, Environment & Forests gives its report on the Indian Bill, it will be the prerogative of the Parliament to discuss and debate on the Bill. This article thus seeks to highlight certain issues that the legislature should take into account when considering this Bill.

Sustainable development aims at improving the quality of human life while living within the carrying capacity of supporting ecosystems. The rhetoric raised by the advocates of sustainable development has compelled States and corporations alike to take initiatives to ensure compliance with standards believed to be consensually accepted. However, because of their immediate commitment to enhancing shareholder value and other structural flaws, corporations have inevitably turned out to be major defaulters. Hence in many instances, it has been seen that corporate social responsibility (CSR) initiatives remain mere theoretical models, lacking practical utility. This state calls for a green corporate governance mechanism involving public-private participation (PPP), where the corporation seeks to adopt a consensually constructed mechanism to address the concerns of all stakeholders by operating from a more grounded platform of green policies. As the paper progresses, it shall be examined whether such PPP initiatives can yield desirable results in complex economic and legal settings. Another critical area of research would involve whether CSR policies should be bespoke designed by the corporations themselves, or should be guided by larger public policy goals. We shall also dwell upon the business case of CSR, seeking to find the economic motivation behind such policies. This model which has been pitted directly against the strict ‘shareholder model’ of business is an interesting new development, and shall occupy considerable space in the paper.

The propensity of the judiciary in recent times to frequently exercise its contempt jurisdiction has led to a burning debate on the justifiability of such powers of the court. In this context, we have made a humble attempt to examine the genesis of this power of the court, which has been subject to many an academic debate. This paper also throws light on the contentious issues concerning the recent cases where the authority and integrity of the Apex Court of the country have been questioned, and the way in which such questions have been answered. We have made an objective effort to examine the justifications put forth by the judiciary in its defence, especially in light of the rapidly changing image and role of the judiciary in a modern democratic setup.

The subject matter of this paper deals with the status of police reforms being implemented in India. The issue has been addressed in a number of Supreme Court cases and also in several Committee Reports, which have prepared the groundwork for a radical change in the Indian Police system. These recommendations form the crux of this paper, and we have made a critical analysis of those recommendations to moot a feasible mechanism for the effective implementation of the same. An appraisal of the suggested reforms is all the more important because the new mechanism has been designed to meet the futuristic needs of the new millennium. Recommendations aimed at minimizing political interference in the functioning of the police, have be looked into. Special effort has been made to understand the radical reforms like bifurcation of the force, so as to objectively assess their desirability. In order to have a comprehensive understanding of the subject matter of the paper, the nature of police functions in other countries has been discussed. We have also made a suggestive examination of the feasibility of such drastic changes in the policing system to face the challenges of 21st century.

After more than a year of high-pitched campaigning by rival lobbies of forest conservationists and tribal rights activists, the Scheduled Tribes and Other Traditional Forest-Dwellers (Recognition of Forest Rights) Act, 2006 came into force on December 31, 2007. The Act aims to provide a framework which recognizes and vests forest rights in forest-dwelling tribes, and to foster a new forest conservation regime which actively seeks the participation of forest-dwelling communities in conservation efforts. Tribals of India have been residing in forest land for generations, cultivating and collecting forest produce. However, their traditional rights have hitherto not been adequately recognized and recorded. The Act thus marks a radical departure from existing forest legislations. The Act has been lauded and reviled in almost equal measure. Tribal rights activists perceive it as an instrument for correcting historical injustices. Environmentalists on the other hand project severe ecological fallouts. They see the law as a land distribution scheme which will lead to rampant deforestation. The discourse on this subject has, therefore, been predominantly adversarial in nature. We do not see tribal welfare and forest conservation as either separate or opposing goals. Having discussed the corrective justice dimension of the Act, we have advanced rebuttals of the principal claims of the opponents of the Act. Finally, we have established that ownership rights over a certain property automatically create a certain incentive to protect that property.

The word ‘Commons’, traditionally has been used to connote the joint ownership of certain resources by the people. Such resources include gifts of nature and other ‘free’ resources like water, air and land. Today however, the concept of Commons has been given a new connotation so as to propound a movement that envisages more public participation in the management of things and systems other than just natural resources. In the legal realm, this translates into a movement for decentralization of law. In other words, it talks of decentralization of law from the realms of State domain to that of Public domain so as to bring in more public participation in the formulation and implementation of law. This is what is posited to be the central theme of the Contemporary Commons Theory. Of late the Commons theory has come into prominence primarily as a result of the effect of technology on State Power. Global Communications have greatly eroded the State Power. It is this failure of the State power that lays great promise for the Commons Perspective to Law which calls for a laissez faire vision to law, thus bringing about a “bottom –up” regulation by non- state actors. In other words, the Commons perspective calls for the freedom of private entities to generate their own law – i.e. the law of Google, or the Terms of Service imposed by MSN Online. The Commons Theory debate of today has been brought about by debates in the areas of Privatization of the Internet, Network Neutrality rules in telecommunication law, Propertization of the radio frequency spectrum and as as well on media concentration. It is these issues that will form the core focus of the research in the present context.

Borrowing from Jurisprudence and Law and Economics, this paper seeks to establish that the existing intellectual property rights regime under TRIPS stipulates inefficient and overly stringent forms of protection. It has been suggested that an ideal regime must not afford a homogeneous protection. Distinction must be drawn, for instance, between want-based and need-based (life saving) products. It has been submitted that a weak IPR regime in need-based products is a reasonable restriction upon the individual rights of the innovator to ensure emergence of competitive markets and fair pricing, albeit justifications may be found for stronger protection for want based goods.