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Volume 6 Issue 1

Editorial Note

The first half of the year 2016 was eventful, to say the least, and crucial developments in the national and international arenas stand to significantly influence the political scene and policies of India and much of the world.

On the domestic front, the government commemorated the 125th birth anniversary of Dr. B.R. Ambedkar by declaring his birthday (April 14) as the ‘National Nandhutva Bhav Samrasata Diwas’ (National Amity and Brotherhood Day). The contributions of Ambedkar to the modern Indian polity came in many capacities - as a social reformer, political thinker, economist and an icon of Dalits - and, in due recognition of the same, the Ministry of Social Justice and Empowerment left no stone unturned in its endeavours to promote Ambedkar’s ideology and philosophy. Among the many initiatives taken up by the government is an ambitious project to set up an Ambedkar Memorial and an Ambedkar International Centre in New Delhi. In addition, thanks to the consistent efforts of the Government of Maharashtra for over 25 years, completed works of Ambedkar have been published by the title ‘Dr. Babasaheb Ambedkar: Writings and Speeches’ in 21 volumes, spanning 14000 pages. In the foreword, Kumari Selja, Chairperson, Dr. Ambedkar Foundation, emphasises on how Dr. Ambedkar’s writings are relevant even today, indicative of the need to establish a political democracy on the basis of social democracy.

In a remarkable move, the United Nations also commemorated Ambedkar’s 125th birth anniversary, recognising his vision of building nations on the firm pillars of democracy, social justice and equality for all as a stepping stone for the UN’s 2030 Agenda for Sustainable Development Goals. However, back home the anniversary witnessed the ugly side of competitive politics as political parties of different beliefs and ideologies vied to appropriate Ambedkar’s legacy.

The BharatiyaJanata Party (BJP)-led National Democratic Alliance (NDA) celebrated the completion of two years in office, with the anthem ‘Mera Desh Badal Raha Hai, Aage Badh Raha Hai’. Schemes such as the Make in India policy, Jan Dhan Yojna , the Swachh Bharat Mission and the Digital India policy have been touted as game-changers by many. The PM’s many foreign visits and interactions with international leaders continue to be closely monitored by both the media and foreign policy analysts and his address to the US Congress drew worldwide attention, as he reiterated Vajpayee’s view that India and the USA are natural allies that must work together for the world. While efforts to reinvigorate India’s diplomatic relations with other countries, to garner support for NSG and to bring in foreign investment have been received well, the government is yet to deliver on its promise of boosting employment.

The historic win in Assam and its increasing vote share in other states have helped the BJP expand its presence across the country and consolidate its power. While in Tamil Nadu, the Jayalalithaa-led AIADMK stole the show despite a strong anti-incumbency wave, in West Bengal, Mamata Banerjee returned to power with a landslide victory, campaigning on the promise of improving social welfare initiatives and health care in the state. In Kerala, the electorate oscillated from UDF to LDF.

The unsettled debate on the freedom of expression, especially artistic creativity, resurfaced with the Central Board of Film Certification (CBFC) suggesting 89 cuts for the film Udta Punjab before the film could be released. The media carried several stories indicating how the state has a population which consumes opioids worth Rs. 7,500 crore and heroin worth Rs. 6,500 crore – but such reality is seldom discussed, not to mention belittled by the government. The controversy surrounding the release of the film, which deals with the menace of drugs in Punjab, employing gritty realism with expletive dialogues, showed how the political dispensation of the day resorts to its appointee to effectively emasculate a creative medium and obtrudes its moral sentiments over the masses. But, the shift in the judicial approach in its directive to the Board for not interfering in creative work is noteworthy: “Do not act like a grandmother. Change as per the Editorial Note times now.”This marked departure from the usual ideology embodying high degree of ‘morals’ has been hailed as the triumph of free speech and the Indian liberal over intolerance.

For long, affirmative action in the form of reservations has been accepted as a means for correcting the negative effects of historical caste based discrimination on certain communities. However, a Supreme Court bench of Justices Ranjan Gogoi and Rohinton Nariman held that reservations based on historical wrongs are passé and that a State cannot provide for reservations based on the “perception of the self-proclaimed socially backward class” that they deserve to be categorised as the “less fortunate”. Suggesting new formulae to be adopted to determine backwardness, the court observed that backwardness “is a distinct concept that emerges from multiple circumstances ranging from the social and cultural, to economic, educational and even political.” However, even while calling for a movement away from reservations based exclusively on caste, the judgment opened a proverbial can of worms for policy makers. The Gujarat government evaded this dilemma by indirectly conceding to the demands of the Patidars through the provision of reservations for the “upper caste poor”, but much to the discontent of the Patidars, who have categorically rejected reservation as ‘Economically Backward Castes’ and intend to push for reservations under the OBC category.

On the international front, the world is closely analysing the impact of ‘Brexit’, which has sent economic shock waves through global markets. Britain’s departure from the European Union compels one to analyse the policies and ideologies adopted by the nation, which was once associated with the saying “the Sun never sets on the British Empire”. While the Brexit referendum invited bitter comments in the British Parliament, negotiating the exit of Britain will keep the European leaders occupied in the coming days.

On the other end of the globe, while the world is patiently watching to see whether the USA will see its first lady president, the gunning down of 49 people at a gay nightclub in Orlando, the deadliest mass shooting in the nation, is being touted as an incident capable of influencing not only gun control laws in the USA, but also the elections. This may prove important for Donald Trump who had earlier pledged to tighten the immigration system in the USA. In his address on the issue, he stated, “It’s a strike at the heart and soul of who we are as a nation. It’s an assault on the ability of free people to live their lives, love who they want, and express their identity. It’s an attack on the right of every single American to live in peace and safety in their own country.” At the same time, however, his calls for banning Muslim immigration into the country in the aftermath of the shooting have not been received well.

The journal plunges into these various contemporary controversies and adopts a detailed analysis of the issues with a legal lens. Covering a wide array of recent issues, not only does the journal provide various perspectives to striking subjects but also increases awareness and is a treat for the readers.

April 2016

Who Failed Nature– States or MNCs or Both? :An Overview of the Evolutionary Trends in Emerging International Regime

-Divya Tyagi

Multinational Corporations (MNCs) are crucial players in our modern world. Their business activities are alleged to have caused serious environmental damage in different parts of the world. Their peculiar nature, however, has posed a challenge for victims of such environmental damage. While recent interpretations of extra-territorial statutes like Alien Tort Claims Act (ATCA) seem to have shut the doors of redress for the victims, problem is further aggravated by the ambiguous recognition of right to clean and healthy environment at the international level. Many soft law initiatives providing voluntary mechanisms for Corporate Social Responsibility (CSR) of MNCs have been developed at the international level by various agencies. However, their voluntary nature itself has created limitations on their impact. Author argues in this paper that both States and MNCs have been responsible for failing nature. Both of them have to share the blame for lack of adequate accountability of MNCs for violation of right to clean and healthy environment. However, in the era of CSR, major share of blame will have to be apportioned to MNCs themselves. Accountability of MNCs for environmental damage cannot be ensured through law at domestic level since the fate of states (both home and host) rests on success of MNCs. This objective can be more effectively achieved at the international level. Author concludes that not all hope is lost and international community has to harden its resolve for this purpose.

Divya Tyagi is Assistant Professor of Law, Gujarat National Law University, Gandhinagar, Email: dtyagi@gnlu.ac.in

Liability of the State for Torts Committed by its Servants: Public Law and Private Law Perspectives 

Dr. Ravindra Kumar Singh

Maintenance of law and order, regulating the conduct of people, recognition and enforcement of rights and obligations of people and administration of justice — are some of the primary objects for which any civilised society is formed. The preamble to the Constitution of India also sets out justice as one of the supreme ideals which its makers have treasured. Owing to little litigation in the area of tort in India, the law of torts has, relatively, not developed much, and consequently, some outmoded rules continue unchanged which, sometimes, lead to ‘injustice’. One such instance is the rule of exemption of the State from liability, which India has borrowed from England. This rule still continues to be operative in India, although it has been discarded in England long back. Despite the Supreme Court’s rulings (in cases such as, State of Rajasthan v. Vidhyawati1, Kasturi Lal Ralia Ram Jain v. State of U.P.2, N. Nagendra Rao & Co. v. State of A.P.3, and so on) and the recommendations of the Law Commission of India, the state of affairs has not changed much. This research paper attempts to examine the nature of State’s liability for tortious acts of its servants in the light of relevant constitutional provisions and by analysing relevant judicial pronouncements. Moreover, it also endeavours to scrutinise the remedy available in public law for contravention of the constitutionally guaranteed basic and indefeasible rights of the citizen.

Dr Ravindra Kumar Singh is Associate Professor of Law, Gujarat National Law University, Gandhinagar, Gujarat, Email: rsingh@gnlu.ac.in.

Genetics and Criminology: Is There a Biological Background to Culpability? 

Dr. Akrem Jalel

A biological implication in criminology rouses hostility among most criminologists. We can predict how worried people can get about the legal implications of behavioural genetics. The proposal that one’s genetic background can be the primordial basis of illicit conduct or immoral behavior has long been out of favour. Yet upsetting findings in neurobiology, microbiology and biology of development that have impelled a biological turn in other scientific fields have led to the adoption of a subfield in criminology. As a consequence, discussions in term of criminal behavior and its biological background are arising in some societies. Even though, no scientific irrefutable argument was given until now. The past decade or so has seen an increase in research on the genetics of behavior, including antisocial behavior. Some researches annunciate some results remaining speculative and hypothetico-deductive without an accurate demonstration. In this paper the author attempts to discuss scientific arguments given to support such hypothesis and conclude to the implication of the repercussion of using the genetic and theory in the field of justice.

Dr. Akrem Jalel is Faculty of Law and Political Science of Tunis, Campus Universitaire - 2092 Tunis El Manar, Tunisia, Email: jalel.akrem.1@ulaval.ca

The Impact of Pharmaceutical Industry on the Economies of Developing Nations – A Legal Perspective: Myth or Reality?

-Shivam Bansal & Raushan Tara Jaswal

Through the medium of this paper, the authors delved into the scenario of how international law as well as how the economies of the world are being affected by the rapid growth in research and development in the Pharmaceutical Industry, with special emphasis on India.

To understand the basic premise, it is important to understand the history of the development of the pharmaceutical industry throughout the world. It is also essential to understand the impact of the industry in foreign trade, relations and the economies of such nations. The other aspect that has to be understood is the course and development of the law governing the pharmaceutical industry and how it came to be.

This is where the authors analyze the TRIPS agreement and how this agreement has shaped the course of the Indian legislation on Intellectual Property Rights, with a special emphasis on Patent Law.

Next, the authors would further explore the course of growth of research and development in the said industry in India, further, critically analysing the reasons for the immediate rise and how it has been triggered by the legal framework and how it has helped in the development of India’s economy. The legal scenario that is helping the Pharmaceutical Industry to flourish in India will then supersede this.

Shivam Bansal , 3rdyear Student of Amity Law School, New Delhi, Email: shivam.bnsl7@gmail.com

Raushan Tara Jaswal , 3rd year student of Amity Law School, New Delhi. Email: raushantara@gmail.com

Currency Manipulations and International Trade Law: An Overview of the Existing IMF Legal Regime 

-Ajit Kaushal & Dr.Tabrez Ahmad

The experience has shown that no economic policy can achieve a prosperous international trade system without controlling the currency manipulations as money is the media of all the trade and business. It has been estimated that the currency manipulators affect the flow of currency about $1.5 trillion per year. Historically, there have been numerous cases of currency devaluation by Countries (and even currency wars) in order to gain unfair trade advantages. The most notable point over here, though there have been many complaints regarding the currency manipulations in the international trade arena but not even one country has been declared as a manipulator by the International Monitory Fund. Hence, in order to infuse an ideal international trade legal regime there is a crying need to investigate the issue of currency devaluation along with its potential and real impact on the international trade.

Mr. Ajit Kaushal is Senior Lecturer, College of Legal Studies (UPES), Dehradun. Email: akaushal@ddn.upes.ac.in

Dr. (Prof.) Tabrez Ahmad is Director, College of Legal Studies (UPES), Dehradun. Email: tahmad@ddn.upes.ac.in

Transformation of FSF to FSB as a Macro-Prudential Regulator in the Global Financial Regulatory System: Pre and Post Global Financial Crisis 

-Hitesh Thakkar

The series of regional crises that occurred in Asia, Latin America, and Russia in 1997-1998 has challenged the Global Financials Regulatory System (GFRS). There was clear evidence that the GFRS lacked coordination and cooperation on the concern related to the Macro-Prudential Regulation. On the backdrop of this crises, the G-7 group based on Tietmeyer’s proposal set up the Financial Stability Forum (FSF) as a Macro-prudential regulator (MaPR) in 1999. The focus of FSF was to assess vulnerabilities affecting the global finance, to oversee action needed to address these vulnerabilities and to improve coordination among all stakeholders responsible for financial stability and sustainability. However, the FSF lacked wider membership. The creation of FSF was not subject to states enactment. It was an informal association of G-7 countries representatives without an official legal mandate. The presence of FSF was insignificant during the Global Financial Crisis (GFC). This has lead to the emergence of Financial Stability Board (FSB) as a supra global financial regulatory authority during G-20 London Summit as a Macro-Prudential Regulator (MaPR). Although FSB is part of soft law, the member nations are strictly implementing the recommendations or standards as agreed upon by them, due to peer group pressure and international goodwill. The institutionalization of FSB will increase economic efficiency and it will incentivise non-FSB members to implement international financial standards. FSB can play a key role and make its footprint as a World Financial Organization (WFO) in the global financial regulatory system.

Mr. Hiteshkumar Thakkar is an Assistant Professor of Economics at Gujarat National Law University, Gandhinagar, Email Id: hthakkar@gnlu.ac.in

How Strictly Should A Tax Statute Be Interpreted? 

-Anushka Mittal

It is a cardinal principle of interpretation of tax statutes that they must be interpreted with utmost regard to the letter. Strict interpretation results in fairness for an individual or organisation that is required to pay taxes. This paper deals with the interpretation of Section 40 of the Income Tax Act, 1961. The provision deals with such amounts that cannot be claimed as a deduction in view of the non-payment of tax to the authorities. However, the stance taken by the Judiciary to settle disputes related to the same is blatantly incongruous. It has led to undue benefits being accrued to the assesses and a mischief being created where there existed none. It has led to the creation of a loophole for both resident and non-resident taxpayers. This is amplified by the fact that the Judiciary is presently mulling over the subject, taking variegated positions. Many companies can find it difficult to arrange their taxes. This has led to the disregard for the basic cannon of taxation propounded by Adam Smith i.e. certainty. The current examination was led to a halt by the dismissal of a special leave petition filed in the Supreme Court against such interpretation. It must be highlighted that the parties can resort to other legal remedies and should earnestly do so, in order to clarify the present position.

Anushka Mittal is a 4th Year BA, LLB (Hons.) student at Gujarat National Law University, Gandhinagar, Email: anushkamittal1295@gmail.com

My Curtailed Freedoms: A Jurisprudential take on the JNU incident 

-Swapnil Tripathi

The famous words of Evelin Halls, wherein she advocated one’s right to speech despite disagreeing with the content of such speech continue to be significant. The question, however is whether they prevail in practice today or not. An instance to test the same was witnessed in Jawaharlal Nehru University recently, when certain slogans by the students were termed anti national leading to the long standing debate between propounders of freedom of speech and those prohibiting it on grounds of its content being reignited. In this paper, the author aims to unravel this debate jurisprudentially by putting forward arguments from both sides and determining which side appears more appropriate and convincing.

Swapnil Tripathi is 2nd Year Student, National Law University, Jodhpur, Email: swapnil. tripathi221@gmail.com

Parliamentary Disqualification on Conviction: Issues and Remedies 

-Waseem Ahmad Bhat

In July 2013 the Apex Court of India came up with a landmark judgement which declared a 60 years old provision of the Representation of the People Act, 1951 void on the ground that it violates the Articles 102 (1) and 191 (1) of the Constitution. The division Bench of the Supreme Court declared subsection (4) of Section 8 of the Representation of the People Act, 1951 ultra vires to the Constitution. The sub section (4) of Section 8 of the Representation of the People Act, 1951 was there to prevent the disqualification of the Parliamentarians and Member of the State Legislative Assemblies for the period of three months or if appeal is filed during that period of three Months, till the disposal of the appeal on the conviction in criminal offences. However the Supreme Court of India declared this provision null and void, on the ground that law laid down by the parliament under the impugned sub-section was beyond the legislative powers of the parliament as spelled out in articles 102(1)(e) and 191(1)(e) of the Constitution. However, the protection accorded under the impugned subsection, was actually protection of the house, because sometimes, majority lies on razor, where the support of every single member is crucial. In addition to that, the acquittal in India at appellate level is high, and on every acquittal, futile exercise of by-election is also to be conducted. And the most important of all is disqualification ensued on conviction in a frivolous and false complaint. In this paper researcher has elaborated all such issues and strived for possible solutions.

Waseem Ahmad Bhat is Assistant Professor, Gujarat National Law University, Gandhinagar, Email: wbhat@gnlu.ac.in

A Critical Study On Neo-Liberalism From Rawls’ Perspective 

-Palak Jagtiani

The increasing pressure on development particularly with the rise of neo-liberalism both in term of political and economic theory has placed tremendous pressure on the environment. In the blind pursuit of development, a whole lot of critical issues purporting the survival of humanity have been side-lined and not given its due importance. This paper aims at understanding and the issues surrounding the concept of neoliberalism, while analyzing the implications of such an ideology on nations worldwide particularly from the perspective of John Rawls work ‘A Theory of Justice.

Palak Jagtiani, is Teaching and Research Associate(Law), Legal Cell Coordinator and Coordinator, GNLU Centre for Law & Society, at Gujarat National Law University, Gandhinagar, Email: pjagtiani@gnlu.ac.in