ISSN: 2321 - 3787
Third Issue
ISSN: 2321 - 3787
SPEAK UP PUBLICATIONS A DIVISION OF ALKEMIA LEGAL EDUCATION VENTURES PVT. LTD.
Volume : I
Issue: III -
-
Editorial Advisor
Prof. (Dr.) G. P. Tripathi
Director, MATS Law School, Raipur, Chhattisgarh, India Guest Editor
Dr. Debasis Poddar
Assistant Professor of Law National University of Study and Research in Law, Ranchi, Jharkhand, India Managing Editor
Anurag Parihar
CEO, Alkemia Legal Education Ventures Pvt. Ltd. Associate Editors
Aounkar Anand
COO, Alkemia Legal Education Ventures Pvt. Ltd.
M. B. Elakkumanan
CAO, Alkemia Legal Education Ventures Pvt. Ltd.
ROSTRUM
Š 2013. All Rights Reserved Alkemia Legal Education Ventures Pvt. Ltd.
TABLE OF CONTENTS F OREWORD BY A. K. KAUL
I
NOTE FROM THE DESK OF GUEST EDITOR DEBASIS PODDAR
II
A. INVITED CONTRIBUTION: THE DOCTRINE OF COMMON E MPLOYMENT IN INDIA: A CRITICAL STUDY G V AJJAPA
001
B. ARTICLES: THE ROLE OF LAW IN SOCIAL TRANSFORMATION A. P. SINGH
024
NIPTARA COURTS: CRITIQUE OF O FFICIAL DISCOURSE ON ACCESS TO JUSTICE ANU CHOUDHURY
039
CONSUMER PROTECTION JURISPRUDENCE: A CONSTITUTIONAL PERSPECTIVE MANOJ KUMAR PADHY
051
FARMERS RIGHTS UNDER PLANT VARIETY PROTECTION (P VP) LEGISLATION IN INDIA: A CRITICAL STUDY SOPHY K.J.
061
ELUSIVE Q UEST FOR RIGHT TO ACCESS INTERNET IN THE INDIAN LEGAL LANDSCAPE UDAY SHANKAR AND SAURABH BINDAL
079
COMPARATIVE F EDERALISM : TESTING INDIAN CONSTITUTION ON THE YARDSTICKS OF IVO D. DUCHACEK Y OGESH PRATAP SINGH
091
TABLE OF CONTENTS B. SHORT NOTES: INTENDED PARENTS AND THE LEGAL CONCERNS IN SURROGACY
PRACTICES
ANEESH V. PILLAI
119
PUBLIC POLICY : ACHILLES H EEL OF INDIAN ARBITRATION DANIEL MATHEW XAMINING THE INSTITUTIONS FOR IN INDIA: THE
128 P UBLIC P OLICY
ROLE OF JUDICIARY IN CREATING
THE SPACE FOR
CITIZEN -C ENTRIC GOVERNANCE
PRADIP KUMAR PARIDA
136
DISTINGUISHED J URIST: A TALE OF A FAILED CONSTITUTIONAL EXPERIMENT RABINDRA KR. PATHAK
145
ROLE OF ADR IN INVESTOR -S TATE DISPUTES SUKANT VATS
154
D. CASE C OMMENTS: SITUATION IN THE D EMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF T HE P ROSECUTOR V .THOMAS LUBANGA DYILO BENARJI C HAKKA
166
SAHARA INDIA REAL ESTATE C ORPORATION L TD. AND OTHERS V. SECURITIES AND EXCHANGE BOARD O F INDIA AND ANOTHER . YASHOMATI G HOSH
176
E. INTRODUCTION TO CONTRIBUTORS
A
FOREWORD It is a matter of great academic satisfaction that the editor of the Journal Dr. Poddar, a colleague of mine at the NLU, Jodhpur and NUSRL Ranchi invited me to write a forward to the third edition of
which is scheduled to
publish a series of research papers, short articles and case comments contributed by various scholars across the broad spectrum of interdisciplinary research backgrounds in addition to legal scholarship. This issue of
is supposed to transcend the limitations of a
typical law journal to graduate to the firmament of interdisciplinary scholarship, for which the credit goes to
, Guest Editor, of this edition of the Journal.
Dr Poddar was my colleague and assisted me in meaningful ways in developing newer institutions like NLU Jodhpur and NUSRL Ranchi and academic journals including I have browsed earlier editions of this online journal. Its continuity apart, I believe that this Journal seems to offer meaningful academic discourse from law school students and other stakeholders. I always believed and had a dream that, besides teaching,
newer institutions of legal
education can flourish and make a mark only if the institutions engage themselves in quality research and research assignments. Accordingly in pursuit of my dream I put in tireless efforts to encourage one and all of my colleagues and students - both in Jodhpur and Ranchi - to engage in legal and interdciplinary research. In India, so often than not, academic journals suffer from short life - perhaps out of nonacademic reasons of their own. I understand that
patrons are aware of this
predicament and are willing to carry forward such a venture way ahead with time. I suggest widest possible circulation of this journal to overcome the predicament of its early demise and wish the journal a very long, happy and prosperous life.
New Delhi, December 25, 2013.
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FROM THE DESK OF GUEST EDITOR Welcome back to
- a juridical forum @ third millennium! , since time immemorial, refers to insignia of
democracy in general, and freedom of speech and expression in particular, the way Greek civilization introduced a cornerstone in ancient city states for this purpose. - who happen to be my former students- understood the inner meaning of rule of law in essential sense of the term. of this journal as successor of no less than Prof. (Dr.) G. P. Tripathi- a giant personality along with his prolific contribution toward the world of juridical and academic scholarship in India. I feel confident that, with the passage of time, this journal is likely to emerge as a cornerstone for freedom of speech and expression to its readership. So far as methodology (adopted as part of my stewardship) is concerned, I did mention to contributors that there is no particular theme for this issue except specific guidelines to fit their works into its broad spectrum as an interdisciplinary journal. I prefer not to concentrate on theme-based issue at the beginning of this journal since, at its beginning years, rearing its readership seems much more imperative than to put a(ny) particular theme and its text in interdisciplinary context. As per treatment of their respective subject matters, contributions of this issue are divided into five parts, e.g. (i) invited contribution (ii) article (iii) short note (iv) case comment and (v) book review. Except book review, we received contributions for all other heads. Review literature seems yet to develop as full-fledged literature in itself. Also, translation from vernacular to English seems not yet developed and I received no contribution despite my personal interest to this end. scribbling from Prof. G. V. Ajjappa, a prize contribution indeed, on our request. Albeit not so prolific by default, he is a known name and I need not mention that (t)his contribution adds value to upcoming academic ventures like ours. Besides, after Page | II
thorough peer group review in technical sense of the term, I found the following works shortlisted as per the sense of appreciation of our own. I was careful and cautious enough not to weigh the contributors with academic profile but quality of contribution alone. The range of authors represents a national character of the journal, cutting across all nonacademic barriers like designation, seniority, gender, occupation, and the like. Young works are thereby encouraged as representative specimens of our emerging academic scholarship. Citation policy. The journal being multidisciplinary one, albeit predominantly of law so far, I prefer not to adhere to a(ny) rigid mode, e.g. Harvard Blue Book, Chicago Manual of Style, American Psychological Association, and the like. Neither I prefer to remain country specific through adherence to the mode of Indian Law Institute or even subject specific through that of Indian Society of International Law. Therefore, I allowed uniform mode of citation despite divergence of citation mode in this issue. At least, I saved contributors from being victims of authoritarianism to this end lest they may face inconvenience with one foreign to their disciplines. I do hope that the readership will return to us with constructive criticism of its own and the same is scheduled to lead this journal toward further soul-searching process for betterment of its quality in time ahead. After all, perfection is a perennial odyssey and never an end in itself. I need enlightened readership to be with us as integral part of the process toward further development of our humble initiative. With these words, I put end on my part and offer the forthcoming academic initiative for publication. Minute shortcomings of this initiative, whatever the same may be, constitute fulcrum to lead succeeding editors fortify our castle in time ahead.
Debasis Poddar November 23, 2013,
Guest Editor,
Ranchi (Jharkhand),
Vol. 1, Issue 3,
India.
Rostrum Law Review. Page | III
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THE DOCTRINE OF COMMON EMPLOYMENT IN INDIA: A CRITICAL STUDY G V AJJAPA
time, the prevalent moral and political theories institution of public policy, avowed or unconscious, even the prejudice which the judges share with their fellow-men, have had a god deal more than the syllogism in determining the rules by which men should be olmes in THE COMMON LAW (P.1).
studies if say that we cannot learn law by learning law. If it is to be anything more than more than just a technique it is to be so much more than itself: a part of history, a part of
th
ed.)
(P.1). The purpose of giving the above two extracts is to show that the study of law in Indian law schools and colleges require a critical outlook towards the doctrine and decisions. Statements in some of the text-books are likely to be taken for granted and decisions are quoted as if those decisions are true and authoritative. A study of the history and development of the doctrine of common employment shows the forces at work in the origin of the doctrine and development of the law. Often the books used by many teachers and students of law contain statements which may not be very accurate. Most of the Indian text books on law of torts state that the doctrine of common employment has been abolished by
books publish
students which state that the doctrine has been abolished. Ratanlal and Dhirajlal in 24 th
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THE ROLE OF LAW IN SOCIAL TRANSFORMATION A. P. SINGH INTRODUCTION Everything changes except the rule of change. And the life of a nation or a socio-political system is not an exception to this rule. They are essentially dynamic, living and organic systems. The political, social and economic conditions change continuously. Social mores and ideals change from time to time creating new problems and altering the complexion of the old ones. This change is not essentially always in positive directions, there could always be changes which are not desirable and are essentially negative in character. The vicissitude of life process moves in strangest of ways. But does that mean that human agency just does not have a part to play in this process of change? Does the change process happen independent of the will of human agent? The way law and state have been organized during last two hundred odd years does not give that indication. The law in the broad sense and the
through state to control this change process and give it a desired direction. This logic puts legal institutions and the state at the core of all social discipline. In theory the sovereign power, the ultimate, legal authority in a polity can legislate on any matter and can exercise control over any change process within the state. Indeed in a highly centralized political system, with advanced technology and communication apparatus, it is taken for granted that legal innovation can effect social change.i Roscoe Pound perceived the law as a tool for social engineering. Underlying this view is the assumption that social processes are susceptible to conscious human control and the instrument by means of which this controls is to be achieved is law. In such a formulation, law is a short term measure for a very complex aggregation of principles, norms ideas, rules, practices and agencies of legislation, administration, adjudication and enforcement, backed by political power and legitimacy. The complex law thus condensed into one term is abstracted from social context in which it exists and is
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COURTS: CRITIQUE OF OFFICIAL DISCOURSE ON ACCESS TO JUSTICE ANU CHOUDHURY INTRODUCTION
- Article 21, Constitution of India Article 21 enshrines one of the fundamental rights guaranteed by the Constitution of India to its citizens. It bestows on every citizen one of the most basic human rights: the right to life and personal liberty. The Supreme Court of India has widened the scope of this article by interpreting it to include rights of prisoners, the right to speedy trial, the right to legal aid, and the right to claim compensation for the violations of rights under Article21. The landmark judgment with regard to prisoners/ undertrials came in 1979 when the Supreme Court came to the rescue of the undertrials languishing in the jail in Bihar awaiting trial. This landmark judgment {
,
(1979)} gave a new interpretation of Article 21 (right to life and liberty) to include right to speedy trial in it. In the judgment delivered by Justice Bhagwati on behalf of Justices Bhagwati and Koshal, the former expressed shock on the state of affairs in the jails and talked of the human rights of those who are incarcerated in prisons for long awaiting trial. He urged for revamping and restructuring of the legal and judicial system so that injustices do not happen. This landmark judgment is of great importance for the criminal legal system and the poor who come in contact with it. This particular case not only led to the recognition of one of the important right of speedy trial but it also brought to light the sorry state of affairs of prisons and legal aid in the country. However, as we will see, there is still a long way to
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CONSUMER PROTECTION JURISPRUDENCE: A CONSTITUTIONAL PERSPECTIVE MANOJ KUMAR PADHY INTRODUCTION
goods or commodity for a consideration either as eatable or otherwise from a cooperative store or grocer or approved ration shop for private or public services. i also includes any person who uses such commodities with the permission of the buyers though he is not himself a buyer.ii Any person who hires any service for a consideration is also a consumer under the Consumer Protection Act, 1986. iii Therefore, consumers by definition include us all. They are the largest economic group affecting and affected by almost every public and private economic decision. Two-thirds of all spending in the economy is by consumers. But they are only important group in the economy, who is not effectively organized, whose views are often not heard.iv The fact that all citizens regardless of their income or social standing have basic rights as consumer is recognized in India as well as abroad.v. Thus it can be no wrong in saying that the State has a legitimate and compelling interest to protect the interest of consumers. Therefore, all States starting from the most lenient to authoritarian one have put in place legal regime to protect the rights and interest of the consumers vi .
The Indian state has also taken many legislative,
administrative and other measures to protect the interests of consumers from the exploitative deeds and deceptive or fraudulent trade practices of unscrupulous market operators. Constitution is the grundnorm of the Indian legal system. Hence, the aim of the legal system is to achieve the goals enshrined in the constitution. For this reason, laws should be consistent with the spirit of Constitution. Similarly, the aim of the consumer protection laws is to achieve the goal of consumer protection and at the same time they should also be consistent with the spirit of constitution. In order to examine a consumer protection law in www.rostrumlegal.in/journal
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RIGHTS UNDER PLANT VARIETY PROTECTION (PVP) LEGISLATION IN INDIA: A CRITICAL STUDY SOPHY K.J. INTRODUCTION
future food security where the farmers are majorly responsible for development of vast genetic diversity resources through keen observation and intelligence. The farming communities across the world have been following, since time immemorial, the practice of sharing of knowledge and resources. Sharing of seeds among farmers, for example, constitutes perhaps the most important part in these traditional agricultural practices. But unfortunately the developers of this wealth remained invisible in trade and commerce and their resources have been utilized by Private Agrarian Sector. They were not either consulted or benefited or not even informed while detraction of their ce and results. With the advent of Intellectual Property Regime, ownership rights vested with the Multi-national Companies (MNCs). They deliberately used the resources of poor and uneducated farmers of developing nations for their monetary gain. The poor farmer remained poorer in this bargain and they lost their means of livelihood as they have to buy seeds at fixed prices maintained by the private companies. This sudden shift from -
socio-economic political status
more technology and infrastructure convenient western nations developed commercial breeding and established monopoly on plant varieties. The debate between developed nations and developing nations reached at a turning point when Food and Agriculture
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ELUSIVE QUEST FOR RIGHT TO ACCESS INTERNET IN THE INDIAN LEGAL LANDSCAPE UDAY SHANKAR AND SAURABH BINDAL whether this word of theirs will be known to the world morrow, because they apprehend that with the
Revolution of internet has engulfed each and every nati contemplation of a world, without internet, has become last to impossible. This piece forays into the discussion on accessibility of internet as a perceived human right. The universality of human rights stamps an inherent attribute to such rights. This is all the more true for civil and political rights. Not to mention, that some of the socio-economic rights have also started drawing the flavor of inalienability in the recent era. That is not to say that the State cannot make progressive laws to further the cause of these rights, but that certainly means that the State cannot make laws so as to bereave a person of these rights. Earlier, the civil and political rights were thought to be a class in themselves. This is not the case today. Social and economic rights have also been fathomed as the wheels of the chariot of human rights, tagged along with the civil and political rights. Together they constitute what are called human rights. The inflation in the content of human rights, over a period of time, suggests the changing vicissitudes of life. From generation to generation, the concept and context of autonomy and dignity has experienced a transformation. Social and economic cluster of rights have been inflated for ensuring higher parameters of fruitful and dignified living. This is done to ensure that the State does not shirk from its responsibilities to provide a meaningful life. The leitmotif of this piece is not to regurgitate over the scholarly writings available on the chosen topic. Instead it provides a lightening rod for placement of right to access internet under the parasol of the Indian Constitution. This issue draws all the more significance after the Indian Government, who represents the executive wing and is branded
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COMPARATIVE FEDERALISM: TESTING INDIAN CONSTITUTION ON THE YARDSTICS OF IVO D. DUCHACEK YOGESH PRATAP SINGH
----------Dr. Rajendra Prasad An acute problem today concerns the nature of the constitutional structure of India. Does the Indian Constitution represent Federalism or not? Some constitutional experts have -
i
Others have used stronger words to say
that it is only federal in appearance, but in essence and spirit it is unitary.ii Hence an enquiry into the working of federal government begins of necessity with some discussions about the meaning of the term.iii There is no accepted definition or theory of federalism. Nor is there and agreement as to what federalism is exactly. The term itself is unclear and controversial.iv The idea of federalism in the modern sense can hardly have reached any political thinkers till the time when the American constitution was drawn up.v It is often used to describe a process of combining territorial communities that previously had not been directly joined into a new unit of common interest, policy and action, or the opposite process of deconcentration of power (that is, decentralization that endows territorial units with autonomous sources of authority). Federalism in terms of restraint on the political power vi is said,
.vii In contradistinction to the monolithic unitary state organisation, federalism presents a system of territorial pluralism.viii In addition, federalism is also a term used to describe the result or the tools of
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INTENDED PARENTS AND THE LEGAL CONCERNS IN SURROGACY PRACTICES ANEESH V. P ILLAI INTRODUCTION Traditionally, the concept of a family is that of a mother, father and one or more children. The natural expectation of majority of people is that they would marry and establish a family of their own. The desire to raise genetically related children is one of the most fundamental instincts of men and women. However, this aspiration gets frustrated as a number of individuals suffer from infertilityi and are unable to conceive their own offspring unaided. In modern times, the surrogacy practices are promoted as an alternate method of medical treatment for infertility ii . The recent developments in medical science and technology encourage the use of surrogacy for those who have fertility complications and for those who cannot conceive children of their owniii. In most of the surrogacy cases, it is seen that whenever a legal or medical issue arises, the major concern is focused on the surrogate mother and the child and the intended parents are not given much importance. However the intended parents are also equally important in a surrogacy arrangement and their rights and interests also need to be addressed. This paper discusses the various legal issues relating to intended parents. INTENDED PARENTS: MEANING AND D EFINITION Surrogacy is traditionally defined as the procedure whereby a couple contracts with a woman (known as the surrogate) to conceive a child for them, carry it to term, and then relinquish to the couple all her parental rights iv . It is a contractual deal between the surrogate woman and intended parents in which the surrogate woman agrees to get impregnated with the intention of carrying the child to full term and handing it over after birth to the intended parents v . Surrogacy is not so new as far as artificial reproductive technologies are concerned, and it is often noted that the practice dates back to Biblical timesvi. For example, the Bible mentions two stories of surrogacy, i.e. Abraham and Sarah,
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PUBLIC POLICY: ACHILLES HEEL OF INDIAN ARBITRATION DANIEL MATHEW INTRODUCTION Over the years there has been an increasing thrust on resolving disputes using alternate dispute resolution mechanisms in particular arbitration. This tremendous leap in its popularity could be attributed to its three defining characteristics
efficiency, cost
effectiveness, and finality. For commercial transactions, arbitration became the ADR method of choice, with many nations passing supporting legislations. i These legislations dealt with numerous aspects of arbitration such as organizing arbitration, procedures, appointment of arbitrators, recognition and enforcement of arbitral award, to name a few. The primary policy governing these legislations is to minimize interaction with the state justice dispensation machinery. This hands-off approach at no juncture implies a complete disconnect. In other words law enables a private adjudicatory body to perform a function essentially reserved for the state, and retreats to the background content with ensuring that certain minimum standards are maintained. These minimum standards are categorically enumerated in relevant legislations. Though included to discharge an important function at times their vague understanding creates more obstacles. The attempt of this note is to look at one such standard utilised prolifically in arbitration namely that of public policy. HISTORY OF THE ACT For long arbitration in India was governed by set of three different legislations namely The Arbitration Act 1940, The Foreign Award (Recognition and Enforcement) Act 1961 and Arbitration (Protocol and Convention) Act 1937.
ii
The Indian experience with the
performance of its arbitration laws was rather poor,iii and it was often considered a serious obstacle in attracting foreign investment. In light of economic reforms undertaken in early 90s, reforming existing dispute resolution mechanisms was considered imperative. The
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XAMINING THE INSTITUTIONS FOR PUBLIC
POLICY IN INDIA: THE ROLE OF JUDICIARY IN CREATING THE SPACE FOR CITIZEN-CENTRIC GOVERNANCE PRADIP KUMAR PARIDA INTRODUCTION:
a given 'state structure'. As per the law of the land 'what is the entitlement of a citizen', keeping in background the political history, socio-economic development, resources available with the government at that particular point of time, social structure, cultural factors, level of participation of the people etc. Hence
providing the space for legitimate
entitlement of a citizen in a state and creation of a conducive atmosphere to realize the best potential within the individual concerned are the two key tasks with the government, as far as governance is concerned. This spreads into all the aspects of society - social, economic, political. This spreads from individual to local to regional to national to global level. The fact of the matter is that, automatically an individual becomes a member of global governance process, once he links himself and channelizes his activity from one level to other. It also clovers the arena of State, Civil society and Market. As all of them influences the decision making process and behavior of the individual - 'citizen'. State makes the rules and regulation and implements them through the institutions
Legislature (Parliament),
Executive (Bureaucracy) and Judiciary (Supreme Court, High Court and Lower Courts) other constituent bodies. In other words the separation of powers among the institutions of democracy propounded by Montesquieu and the check and balance among them ensures that none of them transcends the barriers allotted to them as per the constitutional provision of the country.
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DISTINGUISHED JURIST: A TALE OF A FAILED CONSTITUTIONAL EXPERIMENT RABINDRA KR. PATHAK SETTING THE STAGE Jurist is a word of lexical ambiguity evoking many a forensic imagery. Every lawman is well acquainted with this invisible yet omnipresent creature, very much like the reasonable man
without defining it. But this has given rise to a multitude of predicaments, foremost one being: who is a jurist? Answer to this question may well address many other ancillary riddles. The wide conceptual canvass of the term makes it a tad difficult to decipher the import of what it exactly implies. be different from that of a lawman reason being a journalistic appreciation of the term as we find in newspapers and electronic media. Can anyone who has been associated with law be assigned the ta
t does the term, constitutionally speaking, imply?
Present paper tries to explore such other questions, and the constitutional ripples the expression seemingly creates in view of its continued ignorance. J URIST: A SEMANTIC SOJOURN
virtue and even wisdom come
to a point that every judge, sitting or retired, every
attorney and Advocate General, other law officers, chairpersons of Bar Council
and
Associations, law ministers, senior members of the Bar, and even their leading
, are
i
It is this misuse or overuse that has added to the ambiguity of the
term. Be that as it may, Baxi defines jurist as one who seeks to usher in the jurisprudence of
break.ii the law in which a
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, and they belong to eras in the development of of experts exercise a predominant influence upon the
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ROLE OF ADR IN INVESTOR-STATE DISPUTES SUKANT VATS INTRODUCTION In contemporary international investment law, international arbitration has established itself as the main option through which foreign investors can pursue claims that they have against a host State resulting from an investment dispute. Provisions on investor State dispute settlement (ISDS) are enshrined in almost all contemporary international investment agreements (IIAs) i . To provide in IIAs that arbitration and not litigation in national courts should constitute the main method to resolve investment disputes is considered as an important element of investment protection. Furthermore, international arbitration has long been seen as the optimal way to address and resolve disputes between investors and States, and is to some extent still considered as such today. It depoliticizes investment disputes, assures adjudicative neutrality and independence, and was often perceived as a swift, cheap, flexible and familiar procedure. Moreover, international arbitration is seen to be offering the parties a possibility to exercise a substantial amount of control over the litigation procedure. It further assures that awards are enforceable and creates a sense of legitimacy RAISON D'ĂŠTRE FOR SETTLING INVESTMENT DISPUTES The Settlement of disputes between host states and foreign investors is a particularly important aspect of the legal protection of foreign investments. In the absence of other arrangements, a dispute between a host state and a foreign investor will normally be settled
option. Rightly or wrongly, the courts of the host state are not seen as sufficiently impartial in this type of situation. In addition, domestic courts are usually bound to apply domestic
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CASE C OMMENT
SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE PROSECUTOR V .THOMAS LUBANGA DYILO BENARJI C HAKKA INTRODUCTION On 1st July 2012, the International Criminal Court (ICC) i celebrated its 10th anniversary, meanwhile it had even concluded its first ever review meeting of its statute
stock taking,
which took place in Kampala, Uganda during 31 st May to 11th June 2010.ii If we look into the work of the ICC during these 10 long years it has delivered only a single judgement with much fanfare on the situation relating to the Democratic Republic of the Congo in the case of the
.
Nonetheless, one cannot really pass a
judgement about an institution whether it is a success or a failure by looking at its decade long history. However, it is a long time for the victims of international crimes, who suffered and continued to suffer to get the justice and reparation from an international institution, which supposed to render justice to the victims and put an end to the culture of impunity of international crimes in international law. After six prolonged years of arguments and delays in the trail process of the present case in discussion, the Trial Chamber of the ICC delivered its judgement on 12 th March 2012. The international community has been arguing that this judgement contributes to the development and improvement of the normative practice of international criminal law. They further argued that this judgement may offer invaluable insights on the role of international criminal justice system. However, the present notes may not be intended to provide a comprehensive analysis of the entire case at hand, but it is an attempt to focus on two major issues which are very pertinent to the development of international criminal law
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CASE C OMMENT
SAHARA INDIA REAL ESTATE CORPORATION LTD. AND OTHERS V. SECURITIES AND EXCHANGE BOARD OF INDIA AND ANOTHER, MANU/SC/0735/2012. YASHOMATI GHOSH The Universal Declaration of Human Rights (1948) had recognized a set of rights as inalienable to mankind for the purpose of protecting human dignity and freedoms. Two of the most essential rights recognized by this Magna Carta of Human Rights are the right to freedom of speech and expression and the right to fair trial. These two rights are generally considered as integral and inalienable for protecting the essential elements of liberty and freedom in a democratic society governed by rule of law. In the era of telecommunications, media has assumed a position of great significance in both protecting and promoting free speech, access to information and protecting major socio-economic, civil, political and cultural rights of the people. Both traditional media like newspaper, television and radio, and new age media like internet and the social networking sites, twitter feeds, facebook updates, blogs, youtube videos etc are playing a significant role towards this effort. But many a times the various inalienable rights granted to the individuals comes in conflict with each other and a conscious effort needs to be made to bring a balance between the different concerns. A traditional area of tripartite conflict is between the media, citizens and the judiciary. It is an essential right of the media to freely promote access to information and free and fair speech; right of the individuals to protect their privacy and personal integrity relating to their jobs, family, business, religious beliefs etc.;, and right of the judiciary to render free and fair resolutions to disputes between the parties and promote proper administration of justice. The five judge bench decision in the case of (2012) is a renewed effort to resolve the traditional controversy by the highest court of judicature in India.
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INTRODUCTION TO CONTRIBUTORS A. K. KOUL __________________________________________________________________________________ Former Vice Chancellor, National University of Study and Research in Law, Ranchi; Former Vice Chancellor, National Law University, Jodhpur; Former Dean, Faculty of Law, Former Head of Department, University of Delhi. AMAR PAL SINGH ____________________________________________________________________________ Prof. (Dr.) Amar Pal Singh has joined Dr. Ram Manohar Lohiya National Law University, Lucknow on 20th of November 2013. Dr. Singh has past experience of 15+ years of teaching at some of the prestigious law schools of the country. Dr. Singh has substantial academic work to his credit, having attended around 50 national and international conferences and having more than 30 research papers published in journals of national and international repute in India and abroad. He is a life member of Indian Law Institute, New Delhi, Indian Institute of Public Administration, New Delhi and an Associate member of Indian Society of International Law, New Delhi. ANEESH V. PILLAI____________________________________________________________________________ Aneesh V. Pillai, is a Faculty of Law in Hidayatullah National Law University, Raipur, Chhattisgarh. He has been awarded prestigious Prof. (Dr.) A T Marcose Memorial Gold Medal from Cochin University of Science and Technology (CUSAT) for securing First Rank in LLM. He is also the winner of K C Menon Memorial Gold Medal for the Best Student in LLM in the year 2008 from CUSAT, Kerala. He has been awarded Ph. D from CUSAT, Kerala. His area of interest is Public International Law, Competition Law, Law of Torts, Human Rights and Cyber Laws. ANU CHOUDHURY ___________________________________________________________________________ Ph.D candidate, Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi
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BENARJI C HAKKA____________________________________________________________________________ Associate Professor, National Law University and Judicial Academy, Assam. Prior to this position he was working as a Lecturer at School of Law, in National University of Ireland, Galway, Republic of Ireland and as a Legal Adviser at the International Committee of the Red Cross (ICRC), its Regional Delegation for South Asia in New Delhi DANIEL MATHEW____________________________________________________________________________ Assistant Professor of Law, West Bengal National University of Juridical Sciences, Kolkata, West Bengal DEBASIS PODDAR ___ _________________________________________________________________________ Assistant Professor, National University of Study and Research in Law, Ranchi; Former Lecturer, National Law University, Jodhpur. G. V. AJJAPPA ________________________________________________________________________________ Former U.G.C. Professor, National Law School of India University, Bangalore ; Former Dean, Faculty of Law ; Former Head, Department of Law, Karnataka University, Dharwar. MANOJ KUMAR PADHY ______________________________________________________________________ Associate Professor, Faculty of Law, Banaras Hindu University, Varanasi PRADIP KUMAR PARIDA______________________________________________________________________ Assistant Professor of Political Science, Indian Institute of Public Administration, New Delhi. RABINDRA KR. PATHAK______________________________________________________________________ Rabindra Kr. Pathak did his LL.M. from Indian Law Institute with a Gold Medal in Jurisprudence, after completing LL.B. from Campus Law Centre, Delhi University.
has published around twenty research papers, articles and book review in national
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and international journals and law reviews of repute. He is presently working on a book on Jurisprudence. SAURABH BINDAL____________________________________________________________________________ Saurabh Bindal is a graduate Engineer in Biotechnology (passed with honours) from Dr. B.R Ambedkar University, Agra. He graduated from the IIT Law School in 2012 and is now practicing law at the Delhi High Court. He has co-authored a book titled "Constitutionalizing Intellectual Property" and has numerous other publications to his name. SOPHY K.J ____________________________________________________________________________________ Dr. Sophy K.J. is currently working as Assistant Professor of Law at the National Law University Delhi. She has Graduation in English Literature other than LL.B. PostLL.B, she finished LL.M with specialisation in Intellectual Property Rights (IPR) from NALSAR, University of Law, Hyderabad. She has been awarded Ph.D. on the topic
Law University, Delhi in June, 2013. She has also presented academic papers in International and National Conferences on her areas of interest such as Intellectual Property Rights, Labour Law, Human Rights and Globalisation and Legal History. SUKANT VATS________________________________________________________________________________ Assistant Professor, Law Centre-I, Faculty of Law, University of Delhi. UDAY SHANKAR______________________________________________________________________________ Dr. Uday Shankar is Assistant Professor at Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur. He has been awarded with a fellowship from prestigious Max-Planck Institute of Comparative Public Law and International Law, Heidelberg in the year 2008. He has participated in Law Teaching and Legal Research Programme at Cardiff University, UK. He led a delegation of students for educational summit to George Washington University Law School. He is member of The International Association of Constitutional Law, South Africa.
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YASHOMATI G HOSH__________________________________________________________________________ Yashomati Ghosh is an Assistant Professor at the National Law School of India University from 2006. She was awarded the Fulbright-Nehru Doctoral and Professional Research Fellowship for the year 2010-2011. She was also a fellow at the Berkman Center for Internet and Society, Harvard University, Boston. She has participated in a number of international and national conferences and seminars. Her areas of specialization are Administrative Law; Professional Ethics, Law, Poverty and Development, Consumer Protection Laws and Intellectual Property Rights Law. At
published by LexisNexis. Y OGESH PRATAP SINGH______________________________________________________________________ Yogesh Pratap Singh earned his LL.M. from National Law School of India University (NLSIU), Bangalore and MA in Ancient Indian History from the University of Allahabad. He has worked as a law trainee in the Supreme Court of India under the guidance of Hon'ble Justice S.B. Sinha, Senior Judge, Supreme Court of India. He has worked as a Legal Researcher in the Rural Litigation and Entitlement Kendra (RLEK), Dehra Dun. He participated in the 39th Annual Session on International Human Rights Law organized by International Institute of Human Rights, Strasbourg, France. Mr. Yogesh has also been a part of Ciedhu programme in France conducted for University Teachers.
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