Uday Shankar and R Venkat Prabhat
Abstract
The New Economic Policy opened a new vista for industry by de-regulating license regime and facilitating investment for ensuing better industrial growth. The overture of the policy influenced the decision-making process on every branch of the State. The Indian Judiciary which has been known as strong ally of the downtrodden and hapless sections of the society in the matter of industrial conflict between capital and labour appears to be echoing the view point of capitalist in the garb of economic growth. This paper aims to highlight the change in judicial approach in disputes related to industrial relations after introduction of new economic reforms in the year 1991 in India. In order to examine the approach of judiciary, the study aims at comparing the pre-liberalization and post-liberalization judgments delivered by the Supreme Court. The judicial pronouncements relating to industrial relations under the Industrial Disputes Act, 1947 has been analyzed under various themes such as termination of service for misconduct, strike and regularization. After comparing the various judgments from the pre and post economic reform era, the study concludes that there has been a paradigm shift in the judicial approach in disputes relating to industrial relations post economic reform era.
Arjun Bhagi and Pranshu Chopra
Abstract
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 [‘LARR Act’] was touted by the then Government of India as the revolutionary, ground-breaking and farmer friendly remedy to the rustic and outdated provisions of the century old Land Acquisition Act, 1894 [‘LA Act’]. Unfortunately, the LARR Act could not live up to that dream. Opposition, state governments, industry, business organizations, NGOs and even the farmers have heavily opposed the LARR Act for inadequately addressing the land acquisition process of India. Development work has stalled, infra structural projects are drying up, farmers are intensifying agitations against land acquisitions and courts are flooded with litigations despite the ‘reformative’ LARR Act coming into operation. Some experts go to the extent of saying that this 21st century legislation contains provisions that are more obsolete than the 19th century version. The Government of India has recently notified an ordinance to tweak the LARR Act, attempting to balance the ease of doing business and improving just compensation provisions for land owners.
This paper shall make an attempt to deal extensively with the LARR Act and its recent amendment, while cross-referencing the LA Act at regular junctures to provide a comparative study. The authors will briefly cover the eminent domain concept, and then move on to a comprehensive study of the important provisions of the LARR Act and the Act’s bearing on the landowners. A major portion of the paper is dedicated to study the impact of the LARR Act on the infrastructure sector. The paper also performs a detailed critique of the recent amending ordinance introduced in December 2014 and other amendments proposed by the Rural Development Ministry.
Based on an extensive research on proponents of law and policy, the authors come to a conclusion that the LARR Act wasnot the best-drafted replacement of the LA Act. The Government has many steps to cover in order to attain the perfect balance of business and farmer rights. The authors conclude that the recent 2014 ordinance to the LARR Act is the first step in that right direction.
Girish R
Abstract
Governments of the globalised world perform various commercial activities; the procurement of goods, services or works which it does are regulated under contract whereby it has been classified as Government Contract. These transactions in which Government is a party are governed differently by different constitutions or legislations, some countries under these laws provide certain privileges and immunities. Constitution of India gives special consideration to Government Contract and had ensuredthat principle of Government Contract is a Public Law, thus making various general principles of law applicable over the contractual transaction. Basic issues of fair and equitable treatment, ensuring transparency and fairness in the procurement process are at present governed or provided through Judicial Review. Realization to have a specific detailed law, as aimed by various countries considering the impact of globalization and international trade, got an international dimension with United Nations Commission on International Trade Law adoption of a Model Law on Public Procurement. Based on this model law many countries revised their Public Procurement Law. In India, though a Bill has been made in this regard, the need for such legislation is still not realized by the Parliament.
Eman Ali
Abstract
Caste-based reservation system has been in practice in institutions in India since independence. The aim is to evaluate the necessity of having a caste based reservation system, by assessing legal implementations such as the Central Educational Institutions (Reservation in Admission) Act, 2006 and the strength of rationale behind implementation of the same.
While tracing the origins of caste and societal context of the issue, the paper shall also trace the legal history and evolution of the reservation system in our country and socially analyse the same. The concept of ‘social poverty’ shall be explored and the rationale for affirmative action be provided on that basis, using Amartya Sen and Martha Nussbaum’s capabilities approach. Reservation has been conceived as a means to uplift a community socially and economically which may devalue the concept of meritocracy. The paper also reiterates the importance of positive discrimination, given India’s social history.
The review aims to widen the scope of poverty by assessing it from a sociological rather than an economic perspective and attempts to determine the purpose and analyse the ramifications of the current system of positive discrimination.
Marmik Shah and Agrima Awasthi
Abstract
Judges are forced to adjourn cases when lawyers do not appear; lawyers who wish to appear fear obstructive and even violent behaviour from those on boycott. Many a times such boycotts by lawyers are not valid, since they are called for on frivolous grounds which are mostly nothing but a showcase of power, authority and alliance with politics.
The strike of lawyers has been a hindrance in justice delivery system for a long time now. Even after the landmark judgement of the Honb’le Supreme Court in Harish Uppal v. Union of India, (2003) 2 SCC 45 and Common Cause v. Union of India, (2006) 9 SCC 304 on ban on lawyers’ strikes, there has been no compliance to the rules laid down and the litigants continue to suffer. The number of strikes have been on a high and in fact most of the lawyers do not wish to be a part of it, but fear of a few at the pivot of organisations like that of the Bar Council forces them to be a part of such activities.
This article aims at studying the Constitutional position of strikes in India in the light of Advocates Act, Bar Council Regulations and Directive Principles of State Policy.
At the same time it looks at the scope of growth of the position of lawyer’s strikes in relation to Competition Law in India and abroad.
Shivam Goel and Ankit Kumar
Abstract
Sexual harassment at workplace is faced by women in India due to structural patriarchy which plagues our nation and continues to exist even in the 21st century. It violates the Fundamental Rights of Gender Equality and the Right to Life and Liberty. It is a clear violation of the rights enshrined in the Indian Constitution under Articles 14, 15, 19(1)(g) and 21. Due to Legislative inactivism on implementation of Article 42 which created an obligation to create just and humane working conditions; the Supreme Court had to lay down guidelines in its well-revered judgement Vishaka v. State of Rajasthan. Recent accusations against retired judges of the Supreme Court have been successful in shaking the confidence of the people in the highest sentinel of these rights. This coupled with the failure of the Supreme Court to implement its own guidelines for 16 years and the gagging of the media by the Delhi High Court raises the question whether patriarchal notions effect the judges’ psyche as well. Other institutions like khap panchayats and kangaroo courts are infamous for their ability to reinvigorate gender inequality, sexism and sexual violence in India. The Sexual Harassment of Women at Workplace Act, 2013 has also come into force, to enforce the guidelines of Vishaka judgment. Though the enactment was aimed at enforcing and giving legislative backing to the Supreme Court Judgement, it seems to worsen the situation by being antithetical to the spirit of the judgement itself. Agitations after 2012 Delhi Gang Rape have made conspicuous, the rise of a new generation, and give hope that such violence might end. This paper aims to find out the effectiveness of the nascent enactment along with suggesting viable alternate methods of protecting the rights of India’s female workforce.
Yudhvir Dalal
Abstract
The hunger for power and money has not even spared the Parliament of world’s largest democracy. People with corrupt and criminal behaviour are finding their way to the Legislature. Now it has become a trend for criminals and ‘crorepatis’ to contest for legislative elections and it is enhancing in every upcoming election. The legislators’ involvement in increasing number of scams and riots is the prima facie epitome and evidence of it. The situation became so pathetic that the Judiciary and other vigilance agencies were forced to come ahead to purify Indian Politics. On one hand, the Judiciary annulled the statutory provision immunising convicted legislators from disqualification and on another hand it forbade the ineligible voters to contest elections. The Chief Information Commissioner also came forward to augment judiciary and brought large political parties aided by State, under the ambit of Right to Information Act, 2005. Further, while enhancing the scope of freedom of expression, the citizens were provided with the option of NOTA in EVMs. But, in such a scenario when whole nation was expecting the supportive hand from Legislature, the Parliament came out with the bizarre ‘The Representation of People (Amendment) Act, 2013’,allowing ineligible voters to contest elections. Further to everyone disgrace, the Cabinet of the world’s largest democracy, while annulling the Hon’ble Apex Court dicta, even went on to bring Ordinance to permit convicted legislators to continue as member of Legislature. It is high time that all organs of State should come together to purify Indian Politics.
