Articles

Water is the elixir of life – it is as fundamental as the air we breathe or the food we eat. In light of the role that it plays in sustaining life and the daily needs of people around the world, right to water manifests itself in the form of a basic human right. Right to water exists in close association with other related aspects like sanitation and basic cleanliness of the community. Without ensuring the latter, the former will hardly have any concrete consequence. Despite many efforts at the international level to focus on the need to recognize and label the right to water as a fundamental human right, nothing concrete has been achieved till date. The repercussions of a post-WTO and GATS world economy, which talks of trade in services amongst nations, adds another critical dimension to the entire discussion on the right to water as a fundamental human right. This warrants a debate into the merits and the justification of viewing the services accruing from water as being a tradable commodity juxtaposed against the other extreme of it being a basic human right. The right to clean drinking water emerges, in this context, as the focal point of discussion, which has been examined from various legal and social angles in this paper.

Recent times have witnessed a spate in the use of modern scientific techniques such as the lie detector, brain mapping and narco analysis, for use in criminal investigation. Although the legal and ethical propriety of their use has been in doubt, they may in fact be a solution to many a complicated investigation. This article describes how the techniques may be used against an accused and concludes that although the legal setup in India may limit the evidentiary use of the techniques, their extensive deployment, particularly that of narco analysis, in investigative processes, in itself violates the fundamental rights- against self incrimination, health and privacy of the accused. Courts in India have taken into account an incomplete consideration of the law, which is the reason for their conclusion in favour of the tests. While the tests may be a practical necessity, the sanction of the law for some of them is difficult to find, and extensive safeguards need to be laid out to prevent their abuse. It is now upon the Supreme Court to define the limits of such tests in context of the rights affected, or vice-versa.

Developmental projects in India have displaced millions of people and yet there is not a single national legislation on rehabilitation. Though the judiciary has recognised the right to be rehabilitated as a fundamental right under Article 21 of the Constitution of India, the right was not granted in reality, as has been seen in the cases of Narmada and Tehri dams. This paper aims to propose a solution to the present situation by suggesting an expansion of the international definition of the term ‘refugee’ by including in its scope internally displaced persons such that international pressure can be created on nation states to grant rights to refugees.

One of the top medical schools in Karnataka offers a pocket pinching bond of Rs. 6,00,000 to the medical students if they refuse the compulsory rural service after their graduation. What is even more striking is students often opt for forfeiture of the bond than agree to a secondment in a village! The Ministry of Health, by considering the proposal of compulsory rural internships for students of medicine in 2007, has opened a can of worms. There has been a lack of consensus in the medical fraternity regarding the feasibility of the proposal. Students have constantly resisted the idea as it means extending their course to a term of six years. While on one hand, the State considers the compulsory internship as an instrument to full obligations as a welfare state, medical students protest on, what they feel is a form of conscripted labour. Can the students argue that their rights under Art. 19(1)(g) stand violated by this compulsory form of service or can the State demand rural service in return for a subsidized medical education? This paper tries to present the debate between the medicos and the State against the larger out- lay of public health as well as constitutional freedoms. An attempt has been made to evaluate the merits of arguments made on both sides and present an efficacious model reconciling their concerns, in light of the larger issues involved.

In September 2011, the Securities and Exchange Board of India (‘SEBI’) notified an overhaul of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, by introducing the 2011 Regulations. The changes introduced in the new regulations are based substantially on the recommendations of a committee that it had set up to review the working of the 1997 Regulations. Three fundamental changes have been introduced by the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011. First, the level of share ownership or voting rights, which triggers the application of the Takeover Regulations has been increased from 15% of the shareholding to 25%. Once this level is reached, an acquirer now has to make a minimum open offer of 26% of the shareholding of the company, which is an increase from the 20% that was stipulated previously. The third major change introduced has been the compulsory inclusion of non-com- pete fees (fees paid by the acquirers to promoter shareholders, so that they do not start a competing business after the takeover of their company) in the offer price per share. This paper analyses the effect of these amendments to the Takeover Code on the acquirers and shareholders of target companies. The paper seeks to provide a reasoned assessment of the effect of these amendments on the Indian capital market.

Protection against the unlawful deprivation of life and liberty, assured to persons with disabilities in the United Nations Convention on the Rights of Persons with Disability, is a negative freedom, unrealisable unless the right-bearer has the ability to realise such a freedom. This is rooted in the proposition that we cannot be considered free to do that which we are una- ble to do. Law’s recognition of ability to transact freely with the world is by way of the legal construct of capacity. Forced intervention and institution- alisation of persons with mental illness denies rational agency to persons with mental illnesses on an assessment of lack of capacity. The legal insti- tution of ‘guardians’ and other substituted decision-makers further aggra- vate this denial of capacity of persons with mental illness by providing for a denial of agency. This paper argues that the universalist model of legal capacity requires law-makers to embrace a paradigm shift, from viewing ability as central to the human condition (and consequently to ‘capacity’) to viewing ‘disability’ as central to the human condition. This would entail the recognition of the fact that all human beings are in some sense disa- bled ̧ thus widening the range of ‘normal’. This paradigm would only allow function-specific capacity assessment to be undertaken so as not to render capacity a status by the tag ‘mentally ill’. The paper also demonstrates the fallacy in the grounds employed to justify the use of force against persons with mental illness to further strengthen the case in favour of abolition of the use of forced medical intervention for persons with mental illness.

By rescuing the rule of law from ideological abuse, this paper explores in its postcolonial career in India, continuities with and distinctiveness from the colonial experience. Specifically focusing on the jurisprudence of the Supreme Court on civil liberties, equality and social rights, it claims that ideas of the exceptional and of the outsider have been integral to the modern rule of law project, and that marked continuities can be noticed with the colonial past in so far as they have been acknowledged in Indian public law practice. India’s distinctiveness, though, lies in the invocation of exceptions for the sake of promoting popular welfare in a postcolonial democracy.

The primary focus of this paper is to analyse the suitability and applicability of the United States doctrine of strict scrutiny to Indian constitutional jurisprudence. Courts in India have employed the principle of presumption of constitutionality as well as the rational nexus test to ascertain the constitutionality of laws allegedly violating the rule of equality. In contradistinction, the strict scrutiny doctrine subjects laws based on certain suspect classifications or infringing fundamental rights to higher judicial scrutiny. This paper seeks to analyse the contours of the strict scrutiny doctrine and the approach of the Indian judiciary in engaging with it. Though elements of the doctrine are enshrined in the Indian Constitution, it remains to be seen whether a direct application of the same is desirable in the Indian context, given its vagueness and the constitutional conceptions of equality and rights.

The Forest Rights Act, 2006: Settling Land, Unsettling Conservationists Microfinance Institutions (‘MFIs’) have always been considered as one of the frontline institutions for the propagation of financial services to the poor. Over the years, however, Indian MFIs have not seen the kind of success as their counterparts in Latin America, Europe and Bangladesh. Blind adoption of international models and subsequent commercialization by offering IPOs has not seen desired results. The critics say that MFIs, rather than becoming an alternate have replaced usurious moneylenders. Issues that have shown serious damage in the institutional structure are exorbitant interest rates, loan-sharking and excessive board room battles. Furthermore, legally it is very difficult to regulate the sector because there is a multitude of ways to incorporate such an institution. With each possible way of incorporation comes a new set of rules for its regulation. The question to be answered herein is commercialization of the MFIs the way forward for the sector. In this context, we look at the extant legal regime that governs the sector and the limitations that exist in it for regulating the commercial sector. We propose that such measures should be deterred in India at the moment. Due to the controversies that have plagued the market, especially in Andhra Pradesh, there have been a lot of calls for an independent regulator in the market. It is at this juncture that the New Microfinance regime has been introduced with the new Microfinance Bill and the Reserve Bank introducing a completely new notification setup. We, however, propose that a two-way model for a regulator is the way forward.

Hon’ble Chief Justice of India, Professor M.P. Singh, Vice-Chancellor, NUJS, dignitaries, distinguished faculty of NUJS, guests and above all, students, it is truly humbling to be asked to speak on this occasion for several reasons. The most important reason is that convocation includes many things. It marks an important day in the life of an institution, a signal that the institution has completed its part in a pedagogic mission that brought you here. For the students, it is a ‘rite of passage’ that marks your ascendancy from one stage of life to the next. Convocation is also a celebration of achievement. It is a celebration of the extraordinary talent this institution is about to unleash on the world. One of the reasons I feel humbled is because the talent we have assembled here is truly outstanding. It makes us, those slightly more advanced in years than the students here, seem so behind the times and so inadequate. But this is precisely the thing we celebrate.