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Volume 3 Issue 2

Editorial Note

Bimal N. Patel
Editor-in-chief, GJLDP

The current issue of GNLU Journal of Law, Development and Politics is dedicated to our Patron Late Hon'ble Mr. Justice Jagdish Sharan Verma, Former Chief Justice of India who breathed his last on April 22, 2013. It was a great loss to the nation and to the legal fraternity at large. We pay homage to the death of the great legal luminary; both the Indian Judiciary as well as the Academia is ever indebted to his excellent and remarkable contributions in the field of law and human rights.

The editorial board welcomes the decision of the Government of India in appointing Mr Raghuram Rajan as the new Governor, Reserve of Bank of India. The nation keeps the faith in the new Governor to bring back the country out of economic crisis and place the country on a growth trajectory.

Since the last issue, the country has witnessed vibrant developments, especially, in the Indian politics. The debate on Judiciary versus Parliament has cropped up once again, each asserting its supremacy within the constitutional framework and accusing one another of encroachment. The Judiciary in its recent judgments, Lilly Thomas vs. Union of India and Lok Prahari vs. Union of India & Others, in the month of July, has taken up the task of cleaning the politics in India. The Parliament is trying its best to protect itself from the onslaught of the judicial activism by proposing ordinance and amendments to nullify the effect of the above specified decisions.

The year 2013-14 may be known as people's verdict year, as many states are going for assembly elections and parliamentary general election. On the one hand, BJP is trying to ride on the anti incumbency wave, on the other hand Congress is backing on the welfare policies like Food Security Act, LARR Act etc,. A cabinet resolution for creating Telengana, as the 29th state, has put Andhra Pradesh into brink of a political turmoil.

The diplomatic tension between India and Pakistan has escalated, due to cross-border firing, affecting their normal relations. Further, the scandal in the dome of Military establishment, in West Augusta deal, has raised perceptions on compromising with the national security. Moving further, age old caste violence in the southern part of India continues unabated. Lastly, left extremist attack on the convoy of the Congress party leaders in Chattisgarh has once again brought to light the menace of growing insurgency.

In the field of law, new ordinances and legislations have been brought into force, to solve socio-economic, legal and political problems. To name a few, firstly, Criminal Law Amendment Act 2013 was enacted to tackle the problem of crimes against women; Food Security Act, 2013, was enacted to eradicate malnutrition and to address the abject poverty in the light of food security; the LARR act, 2013, was enacted to provide fair compensation for the families affected by the land acquisition. Lastly, the Companies Act 2013 overhauling the old Companies act 1956, are few major developments.

The current issue focuses on the topics ranging from law, development and politics. The intellectual journey of the journal is initiated with an article that spells out the anti-corruption movement and the debate on Lokpal, Judicial Accountability and Citizen's Charter. The author reviews the Whistle Blower Protection Bill, with special reference, to corporate governance. It analyzes the nature, definition, and requirements of whistle blower's policy and attempts to find out whether there should be a common whistleblower policy for all or specific sectors.

While India is attempting to tackle poverty and reiterates its commitment towards providing a dignified life and is striving hard to implement the socio economic rights enshrined in the Constitution, the article entitled 'Millennium Development Goals and Socio-Economic Rights - Indian Position' brings into light, once again, the relevance of Socio-Economic rights in the present era. The article reviews and discusses the provisions in Indian Constitution in the light of the Millennium Development Goals. The argument of India's success in implementing these rights is well supported by data.

In the article entitled, 'Critique on Individual Petition Mechanism under the Human Rights treaties', the author has tried to read in-between the lines of Human rights treaties and advances the argument that an individual can approach the appropriate international justice delivery system for violation of Human Rights. The author concludes that lessons from the implementation of the European Convention on Human Rights can be usefully and suitably adopted in giving forceful effect to the provisions of ICCPR.

Further, in the article 'Ascertaining Civil Liability and Ensuring Victims Right to Compensation in Human Disasters: An Elusive Judicial Proposition', the author puts forth the idea of expanding the horizons of the compensatory jurisprudence and criticizes the Public Liability Insurance Act, 1991 and calls for a greater role of the judiciary.

In 'Human Rights Obligations of Business: Appraising the Potency of John Ruggie's UN Framework of 'Protect, Respect and Remedy' by States and Corporations' the author focuses on the companies social responsi- bility and its respect for human rights. The author examines the issues through the framework of the UN Global Compact and the subsequent report submitted by UN Special Rapporteur, John Ruggie's well- known 'Protect, Respect and Remedy' framework clarified the responsibilities that states and businesses have with regard to human and labour rights and argued for the need for access to remedy. In June 2011 the UN Human Rights Council adopted the Guiding Principles. The author assesses the potency of the framework in addressing human rights obligations associated with businesses globally.

The next article brings out a critical comparative analysis of the public service commission of Kenyand India. It enables the reader to unveil the major constitutional and legal provisions and also the effectiveness of its implementation. Lastly, the ever controversial debate on Right to Self-Determination has been, critically, evaluated by the author. The present issue also carries an intellectually stimulating book review on 'James Crawford and Matti Koskenniemi edited Cambridge Companion on International Law'.

The editors also take this opportunity to thank the former student editors, Arjun Shiv, Japreet Grewal, Niti Chatterjee, Shriya Maini, Vinita Choudhury, Nihal Zachariah and Haren Toshawara whose continuous hard work in editing and reviewing the articles have enabled us to bring out a qualitative journal. While wishing success for the ex-student editors in their pursuit of professional and personal endeavors, we also welcome the new team of student's editors, Madhulika Srikumar, Aditi Phatak, Akarshita Dhawan, Ankita Rajput, Atharva Sontakke, Himaja Bhatt and Tarika Jain along with the existing members - Devaditya Chakravarti, Tejaswani Rajkumar, Saumya Dev, Param Pandya, Sagar Godbole and Vishal Tripathi to take charge of this difficult but gratifying task and enable the journal in scaling new heights.

Thus, Volume 3, Issue 2, October 2013 of the GJDLP brings a mosaic of issues having strong interdisciplinary connection and scholarship. The Board of Editors and the Students Editors of the Journal deserve deep appreciation for their successful and timely publication of the Journal.

We wish the readers a new academic essence in the present issue and take forward the various debates put forth in enriching academic discourse and contribute their intellectual input on contemporary issues for the Journal.

Whistle Blowers Policy Challenges and Solutions for India with Special Reference to Corporate Governance

Dr. Vijay Kumar Singh


Whistle Blower's Policy is the policy to provide adequate safeguard to the whistleblower against unfair treatment by the alleged violator, which can even lead to death of whistleblower as was in the case of Satyendra Dubey. Based on Narayana Murthy Committee Report on Corporate Governance, Government tried to have a mandatory Whistle Blower Policy in Indian Corporate Governance for Listed Companies, but due to severe objection by the corporate it was converted to a non- mandatory recommendation. The Sat yam fiasco, which raised several issues relating to corporate governance, 'effectiveness of whistleblower policy' answered the question of whether corporate India requires the policy under issue to be featuring as a mandatory requirement under the CG reports. The present paper analyzes the nature, definition, and requirements of whistle blower's policy in Indian Corporate Governance. A comparative review of whistleblower policies in key countries has been discussed. The paper examines whether there should be a common whistleblower policy for all the sectors of the society or a specific one for corporate sector. The recent focus on the anti-corruption movement has led to an all-round debate on Lokpal, Judicial Accountability and Citizen's Charter. In each of these discussions, whistleblower's protection has emerged as a significant issue. Therefore the paper would attempt to find out the present status on this issue with the Cabinet approving the Whistleblowers' Protection Bill 2010.

Keywords: Whistleblower, corporate governance, lokpal, listing agreement

Millennium Development Goals and Socio- Economic Rights - Indian Position

Dr. Uday Shankar and Mr. Saurabh Bindal


Millennium Development Goals has set the standard for country to eliminate poverty and reiterated its commitment to ensure its citizens a dignified life. The paper begins with an attempt to institutionalize the debate of constitutionalisation of socio-economic rights and then it moves to identify the position of socio-economic rights in the Indian Constitution. Further, it has located the position of Millennium Development Goals in the Indian Constitution. In the next section, the paper presents the position of India in realization of the set goals. The paper concludes with the significance of goals in measuring the implementation of socio-economic rights.

A Critique on Individual Petition Mechanism Under The Human Rights Treaties

Deva Prasad M and Suchithra Menon C


The aim and objective of this paper is to critically analyze the Individual Petition Mechanism ("IPM") under the various human rights treaty mechanism to identify their effectiveness. This paper will be providing an overview of the IPM under the various human rights treaties and will highlight the significance of the same. Further the critical analysis of the IPM under the various treaties falls within the scope of this paper. The lack of IPM in the International Covenant on Economic Social and Cultural Rights and lessons that could be imbibed from the European Convention on Human Rights also will be analysed.

Suggested Keywords: Individual Petition Mechanism, International Human Rights Law, UN Human Rights Treaties/ Conventions

Human Rights Obligations of Business: Appraising the Potency of John Ruggie's UN Framework of "Protect, Respect and Remedy" by States and Corporations

Ogwezzy Michael. C.


Businesses are increasingly focused on the impact they have on individuals, communities and the environment. It is clear that one of the central measures of a company's social responsibility is its respect for human rights. There is a growing recognition that respect for human rights also can be a tool for improving business performance. The framework for determining what human rights issues are linked to business was addressed through the UN Global Compact, which calls upon business to "support and respect the protection of internationally proclaimed human rights within their sphere of influence and make sure they are not complicit in human rights abuses. But the debate concerning the responsibilities of business in relation to human rights became more prominent in the 1990s, as oil, gas, and mining companies expanded. into increasingly difficult areas, and as the practice of offshore production in clothing and footwear drew attention to poor working conditions in global supply chains. In 2004, the Sub-commission of the then UN Commission on Human Rights produced a set of "Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights". The Norms essentially sought to impose as binding obligations on companies directly under international human rights law the same range of duties that states have accepted for themselves, which was vehemently opposed. In 2005, then UN Secretary-General, Kofi Annan appointed a UN Special Rapporteur, John Ruggie to take steps in resolving the argument over the draft norms. In a report released in 2008, he outlined his well known "Protect, Respect and Remedy" framework, which clarified the responsibilities that states and businesses have with regard to human and labour rights and argued for the need for access to remedy. In June 2011 the UN Human Rights Council unanimously adopted the Guiding Principles. It was decided that these principles should serve as the framework for further policy development and standard-setting on businesses and human rights. Hence this paper will appraise the potency of this UN framework responsibility in addressing human rights obligations associated with businesses globally.

Keywords: Business, Corporate Social Responsibility, Human Rights Obligations, John Ruggie, UN.

Ascertaining Civil Liability and Ensuring Victims' 'Right to Compensation' in Human Disasters: An Elusive Judicial Proposition

Subhradipta Sarkar


The Constitution of India does not expressly provide for the 'right to compensation', yet the Supreme Court through judicial innovation has awarded compensation to the victims. It has visualized such award not only to redress the violation of the Fundamental Rights but also as a deterrent. In addition, compensation has also been awarded under private law for damages for the tort resulting from the contravention of the legal rights. Unfortunately, the judiciary has failed to demonstrate such activism in the area of disaster management despite the fact that we have witnessed some of the deadliest human disasters in India. Legislation like the Public Liability Insurance Act, 1991 has failed to provide a solution in this matter either. In such a prevailing situation, the role of the judiciary acquires greater importance. The Supreme Court squandered a golden opportunity of awarding exemplary damages to the victims in the Uphaar Cinema case; instead it set a dubious precedent. A silver lining is the Punjab and Haryana High Court's judgment in the DAV School fire. However, as the appeal is pending before the Supreme Court and meanwhile it has delivered the Uphaar judgment; hence, the final script is yet to unfold. The issue is of grave significance in the context of future human disasters. A judicial intervention evolving a compensatory jurisprudence in such cases and also upholding the theory of reparation is indispe~sable; otherwise the chief architects of disasters will continue to play with the lives of the hapless victims with impunity.

Keywords: disaster management, judiciary, Supreme Court, human disaster, compensation, tort, damages, liability

The Public Service Commission of Kenya vis-a-vis the Union Public Service Commission: A critique

Ratemo Tom Junior


Both the Constitutions of Kenya and India indisputably require the State to secure to all its respective citizens, "social justice, economic and political; equality of status and opportunity, and the rule of the law." The performance of this task therefore, calls for many hands and this can only be possible through recruitment of competent State civil servants. Recruitment process is generally carried out by independent constitutional bodies i.e., the Public Service Commissions. This paper establishes numerous similarities and dissimilarities existing in the civil service law both in Kenya and India as it relates specifically with the establishment, composition, terms of office, removal of members, functions and powers of the Public Service Commissions within the jurisdiction of Kenya and India.

League of Nations and Self-determination

Dr. Navdeep Kour Sasan


The right to self-determination was not directly established under the aegis of the League of Nations, yet mandate system hints its existence indirectly. An attempt to reorganize the rights of the people of the under-developed nations by the creation of the trust, paved a way for growth of the idea of self-determination, hitherto it existed in political rather than legal form.

Keywords: League of Nations, mandates, self-determination