Jindal Global Law Review (JGLR) is embraced by academics and students all over the world due to its global outlook and theme-based issues. JGLR is ranked as the No. 1 peer-reviewed Indian law journal by Washington & Lee University. It is the first Indian Law Review to be indexed by LexisNexis legal database.
The journal lays emphasis on publishing works that are at the cutting-edge of doctrinal, theoretical and empirical research. Each issue of JGLR is edited by subject-experts from the Jindal Global Law School faculty and is themed on a contemporary topic to rigorously explore its legal, political, socio-economic and policy dimensions. The selection of theme is entirely based on the key developments in a particular field of law with the aim of addressing critical issues.
JGLR encourages scholars and researchers from disciplines other than the law to contribute as well. It aims to set apart from other Indian and foreign law reviews by focusing on articles that deal with significant and new legal developments at local or national level but are at the same time relevant within a globalized context.
JGLR publishes articles that analyses legal developments from a wider inter-disciplinary perspective and deals with contemporary developments in law. It publishes articles from leading scholars in the field while also encourages contributions from emerging scholars.
JGLR is supported by an editorial board comprising of leading scholars in the world.
C. Raj Kumar, Professor & Vice Chancellor, O.P. Jindal Global University, Sonipat, India
Oishik Sircar, Associate Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India
Arun Sagar, Associate Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India
Vandana Gyanchandani, Research Associate, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India
Upendra Baxi, Research Professor of Law and Distinguished Scholar in Public Law and Jurisprudence, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India
Simon Chesterman, Dean and Professor, Faculty of Law, National University of Singapore, Singapore
Dev S. Gangjee, Professor of Intellectual Property Law, St. Hilda’s College, University of Oxford, Oxford, UK
Sital Kalantry, Clinical Professor of Law, Cornell University, Ithaca, USA
Vikramaditya S. Khanna, William W. Cook Professor of Law,University of Michigan Law School, Ann Arbor, USA
Prabha Kotiswaran, Professor of Law and Social Change, King’s College London, UK
Jayanth Krishnan, Milt and Judi Stewart Professor of Law, Maurer School of Law, Indiana University, Bloomington, USA
Stephen P. Marks, François-Xavier Bagnoud Professor of Health and Human Rights, Department of Global Health and Population, Harvard T.H. Chan, School of Public Health, Harvard University, Boston, USA
Dianne Otto, Francine V McNiff Chair in Human Rights Law, University of Melbourne, Parkville, Australia
Balakrishnan Rajagopal, Associate Professor of Law and Development, Department of Urban Studies and Planning and founding Director of the Program on Human Rights and Justice at Massachusetts Institute of Technology (MIT), Cambridge, USA
Armin Rosencranz, Professor of Law and Public Policy, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India
Lawrence Sherman, Director, Jerry Lee Centre for Experimental Criminology and Chair, Cambridge Police Executive Programme,Institute of Criminology, University of Cambridge, Cambridge, UK
Vol.10, Issue 1, 2019
VOLUME 10, ISSUE 1, 2019
ENERGY, CLIMATE AND LAW
Kshtij Bansal Armin Rosencranz
Energy, Climate and Law Kshitij Bansal and Armin Rosencranz Article (PDF)
1. According legal identity to natural resources: Approach towards environment protection Akaant Mittal Abstract
The sobering 2018 Intergovernmental Panel on Climate Change’s special report shows that the world has a limited window to reduce dire climate change induced consequences by restricting temperature rise to 1.5°C. India, one of the largest economies in the world and the third largest greenhouse gas (GHG) emitter, is critical in this fight against climate change. India is working to address multiple goals of accelerating economic growth, ensuring energy security, providing reliable energy access, and addressing climate change while bringing millions of people out of poverty. Despite these challenges, India has an ambitious and achievable plan to address climate change. This article discusses India’s domestic climate actions, progress on climate commitments under the Paris Agreement, and the potential to transition to a low carbon economy. Mittal, A. Jindal Global Law Review (2019) 10: 7. https://doi.org/10.1007/s41020-019-00084-3.
2. Climate consequences: If India sneezes Anjali Jaiswal, Madhura Joshi and Sameer Kwatra Abstract
Since the signing of the Paris Agreement in 2015, climate change has gained greater prominence as a topic of importance in both public international law as well as national law. The energy sector has been at the forefront of deliberations on climate change, and the commitments made by parties to the Paris Agreement. India is going through an energy transition, straddling its broad commitments under the Paris Agreement with the specific challenges of providing universal, clean, and reliable energy to its citizens. Indian policymakers have been tasked with the challenge of making, monitoring, and enforcing effective laws to fulfil the overarching pledges made at the international level, while distilling them into national and sub-national law and policy, on a subject-matter that is the domain of legislation by both the centre and the states. This article explores some themes arising from this transition, examining the extant legal and regulatory framework governing issues at the intersection of the environment and energy. The authors undertake an evaluation of the successes and failures of schemes such as ‘Saubhagya’ and ‘Ujjwala’ aimed at energy access, and the rooftop solar PV scheme aimed at decentralized energy, and offer some recommendations to policymakers. Some of the recommendations include the framing of an approach based on a better appreciation of externalities and co-benefits, strengthening regulations and regulatory approaches, and the employment of a rich inter-disciplinary approach for making laws. The article aims to provide an overview of some of the more crucial issues in India’s energy sector and inform future research on regulation and policy-making in the field. Jaiswal, A., Joshi, M. & Kwatra, S. Jindal Global Law Review (2019) 10: 19. https://doi.org/10.1007/s41020-019-00089-y.
3. An assessment of India’s energy transition: Paris and beyond Bharath Jairaj and Parul Kumar Abstract
Since the signing of the Paris Agreement in 2015, climate change has gained greater prominence as a topic of importance in both public international law as well as national law. The energy sector has been at the forefront of deliberations on climate change, and the commitments made by parties to the Paris Agreement. India is going through an energy transition, straddling its broad commitments under the Paris Agreement with the specific challenges of providing universal, clean, and reliable energy to its citizens. Indian policymakers have been tasked with the challenge of making, monitoring, and enforcing effective laws to fulfil the overarching pledges made at the international level, while distilling them into national and sub-national law and policy, on a subject-matter that is the domain of legislation by both the centre and the states. This article explores some themes arising from this transition, examining the extant legal and regulatory framework governing issues at the intersection of the environment and energy. The authors undertake an evaluation of the successes and failures of schemes such as ‘Saubhagya’ and ‘Ujjwala’ aimed at energy access, and the rooftop solar PV scheme aimed at decentralized energy, and offer some recommendations to policymakers. Some of the recommendations include the framing of an approach based on a better appreciation of externalities and co-benefits, strengthening regulations and regulatory approaches, and the employment of a rich inter-disciplinary approach for making laws. The article aims to provide an overview of some of the more crucial issues in India’s energy sector and inform future research on regulation and policy-making in the field. Jairaj, B. & Kumar, P. Jindal Global Law Review (2019) 10: 35. https://doi.org/10.1007/s41020-019-00085-2.
4. Adaptive governance in a changing climate situation: Exploring a practical approach to manage depleting water resources in Gurgaon, India Chandni Bedi Abstract
Adaptive governance is an emergent form of environmental governance in the face of the complexities and uncertainties associated with climate change. This article highlights its importance in the context of the water sector which has witnessed an impact due to changing scenarios. The key drivers and dimensions in adaptive governance are discussed using a case study in the villages of Haryana. Though there is no ‘one size fits all’ solution, the study helps to examine the practical tools used to implement adaptive governance. Objective indicators can be complemented to further understand its benefits in a context-specific situation. Bedi, C. Jindal Global Law Review (2019) 10: 49. https://doi.org/10.1007/s41020-019-00088-z.
5. The Global Pact for the Environment: A General instrument to face climate change Domenico Amirante Abstract
Global Pact for the Environment emerged as an answer to the need for a general legal instrument on climate change which produces binding obligations. It is not just another international legal instrument which places legal obligations on state and non-state parties to address climate change. Rather, it is a novel instrument which links with national Constitutions and introduces innovative international legal principles which bind state and non-state actors as well as multinational corporations in working together towards climate change. Also, the instrument moves beyond the polluter pays principle to focus on taking precautionary measures of maintaining as well as restoring the environment. Despite the criticism of the Pact being expressed by some scholars, the Global Pact presents itself as a promising document geared to address the pressing issue of climate change. Amirante, D. Jindal Global Law Review (2019) 10: 61. https://doi.org/10.1007/s41020-019-00090-5.
6. One world, one sun, one grid: A (modi)fication in India’s environment Harsh Vardhan Bhati Abstract
With a growing population and its needs, India is moving towards more pollution and less non-renewable resources left for the future generations. In this chaotic state, one thing certain is that India’s power requirement will grow. Renewable energy plays a significant role in providing sustainable and clean energy and mitigating climate change. As energy lies at the heart of the climate dilemma, producing 100 GW of solar energy by 2022 is a commendable but ambitious goal of India under Paris Accord of Climate Change. It is evident that the development of the Indian solar energy sector hinges on the combination of legislative framework, financial mechanisms, local manufacturing sector, environmentally sound technology, etc. Despite the growing impetus of solar energy in India, there are still gaps in its governance. In this article, the author focuses on the current status, challenges and future prospects of solar energy development in India and sums up the way forward with recommendations to address some of these gaps. Bhati, H.V. Jindal Global Law Review (2019) 10: 73. https://doi.org/10.1007/s41020-019-00086-1.
7. The namele mechanism: A Methodological tool to assist climate adaptation Kristen Davies Abstract
In the context of the escalating imperative of responding to the impacts of global warming, there is a need for enforcement and methodological mechanisms that bridge the gaps between legislation, principles, conventions, protocols and their ‘on-ground’ application. A new tool in environmental law for such a purpose is proposed in this paper, named the ‘namele mechanism’, and is developed to guide processes of adaptive co-management. This methodological mechanism has been built on platforms of traditional local knowledge and practices of first peoples and local communities, particularly those from Vanuatu and the South Pacific, where systems of traditional customary law are still being practised. Much thought underpinning its development was founded on the empirical data captured in 58 in-depth interviews with chiefs, community leaders, government representatives and legal scholars. The namele mechanism recognises the effectiveness of contemporary management practices that are informed by science and technology, as well as customary law and historic practices that may have been in situ for tens of thousands of years. The introduction of such a mechanism is supported by existing protocols and instruments such as the Nagoya Protocol and the United Nations Convention on the Law of the Sea. The rationale behind its approach promises to strengthen and innovate optimal environmental management approaches that are bespoke for specific places and communities. Such a mechanism will assist with the delivery of Sustainable Development Goals, in particular Goals 13, 14 and 15. Through a ‘bottom-up’ approach that focuses on the involvement of local communities in the protection of their local ecosystems, the namele mechanism will provide an important step towards the empowerment of first peoples and local communities as they adapt to changing environmental conditions imposed by global warming.Davies, K. Jindal Global Law Review (2019) 10: 91. https://doi.org/10.1007/s41020-019-00091-4.
8. Food and Climate Change Sahil Aggarwal Abstract
Food is an essential component of human life. Various stages such as food production, transportation, and consumption have an environmental consequence, akin to any other activity where humans consume resources. At the stage of food production, meat and dairy are a concern as they release more carbon emissions as compared to other food items. The article shows how institutions and governments can encourage people towards conscious consumption and lowering the carbon emissions. Other food practices such as packaging, preservation, and transportation are similarly discussed in the context of environment mitigation. This discussion is focused on greenhouse emissions but also touches on other environmental aspects such as water and energy. It is recommended that through macro policies, institutional practices, and social activism, humans adopt an eco-friendlier diet. Aggarwal, S. Jindal Global Law Review (2019) 10: 121. https://doi.org/10.1007/s41020-019-00083-4.
9. A new dawn: Rise of a new energy regime in India and the World Siddharth Johar Abstract
Mankind has shared a deep relationship with energy and its sources since their initial discovery. Energy has helped humans prosper but today it has created a multi-faceted problem. The reckless use of fossil fuels has polluted our environment and a large number of humans live without access to any reliable sources of energy. Due to its non-polluting nature and decentralized character, renewable energy can be an effective solution to these issues. While there are international efforts to promote renewable energy, national policies and implementation play a very important role in its actual expansion. One of the countries at the forefront of the transition to renewable energy is India. Although there has been substantial growth of renewable energy in India, the domestic policies need to undergo major changes to make the transition to renewable energy a success. Under this transitional process, a special emphasis is needed on persons without access to reliable sources of energy. Johar, S. Jindal Global Law Review (2019) 10: 129. https://doi.org/10.1007/s41020-019-00087-0.
1. Isabel M. Borges, environmental change, forced displacement and international law: From legal protection gaps to protection solutions Prashant Singh Article (PDF)
Vol.9, Issue 2, 2018
VOLUME 9, ISSUE 2, 2018
UPENDRA BAXI IN OUR TIMES: LAW, LIFE, LIMINALITY
Debolina Dutta Adil Hasan Khan Oishik Sircar
Upendra Baxi in our times: law, life, liminality Debolina Dutta, Adil Hasan Khan and Oishik Sircar Abstract Article (PDF)
1. For ‘’…those who…lost their Utopias…but…still rebel…’’: taking up Upendra Baxi’s Bequixotements in times of crisis Adil Hasan Khan Abstract
This article offers a biography of Professor Upendra Baxi, as a Southern international lawyer, so as to draw from his conduct a training in how international lawyers could authorize other worlds (and their international laws) amidst these times of crisis. Hasan Khan, A. Jindal Global Law Review (2018) 9: 155. https://doi.org/10.1007/s41020-018-0075-1.
2. Another story of the open letter: an inheritance of relationship-making Debolina Dutta Abstract
In 1979, four law professors wrote the “Open Letter” to the Chief Justice of India (OL). It was written as a way of registering public protest against a decision of the Supreme Court pertaining to the rape of a young tribal girl, Mathura, in police custody. Within contemporary Indian feminist jurisprudential accounts, this text has attained iconic status. The OL has been hailed for mobilising a nationwide women’s movement around the issue of rape and also for initiating rape law reform. In this paper, I move away from the iconicity attached to the OL in the annals of feminist jurisprudence, without disavowing its importance. By locating my reading in a backdrop of our current climate that is saturated with animosities, I attempt to tell a different story about it. I look at how Baxi’s scholarly practice of co-authoring the OL inhabited a conduct of relations with his co-authors, a judge, the tribal girl, Mathura, and his academic discipline of law in a post-Emergency India. In doing so, I weave a story about the OL as an everyday practice of reciprocal relationship-making, in its own time and place. My account of the OL attends to how, by creating reciprocal relations, we might be able to re-organise our worlds into a place that we desire to inhabit. Dutta, D. Jindal Global Law Review (2018) 9: 181. https://doi.org/10.1007/s41020-018-0080-4.
3. Professor of pathos: Upendra Baxi’s minor jurisprudence Oishik Sircar Abstract
What is Upendra Baxi’s contribution to jurisprudence in India? Baxi’s single-most important contribution to jurisprudence in India has been to infuse legal scholarship with pathos – the pathos of suffering, resistance, responsibility and care. An apocryphal reading of Baxi’s work might make us consider his passionate heft as a sentimental inflection, but it will not necessarily lead us to consider this as a jurisprudence. Baxi’s pathos endeavors to unmask law’s violence and silence about the suffering of those on the margins (even as he has offered ways of working with law); and in turn Baxi’s pathos has become marginal to the teaching and learning of jurisprudence in India. Indian legal education is marked by a simultaneous presence and absence of Baxi. His work is acclaimed for its rigorous content, but not necessarily for its innovative forms. While his politics is contingently celebrated, his aesthetics is considered removed from jurisprudential insight. It might be well accepted that Baxi writes with pathos, but does that pathos constitute a jurisprudence? In this essay, I offer some illustrations of Baxi’s minor jurisprudence by looking at three particular forms of writings which don’t get counted as part of his jurisprudential oeuvre: his lesser known works in the field of law, acknowledgements and footnotes that appear on the margins of major works, and tributes written by him on the passing of his mentors and comrades. My choice of the selected references has to do particularly with how these writings have helped me think through my own work as a law teacher and scholar. Sircar, O. Jindal Global Law Review (2018) 9: 203. https://doi.org/10.1007/s41020-018-0066-2.
4. ‘Heard melodies are sweet but those unheard are sweeter’: an unfinished response Upendra Baxi Abstract
This brief response to a symposium discusses some of the themes sounded by Oishik Sircar (pathos, minor literatures, and benign neglect), Adil Hasan Khan (Quixotism in international law from the antechambers of history of interregnums) and Debolina Dutta (relatedness as a virtue of care and responsibility in doing legal pedagogy, and social activism). Baxi, U. Jindal Global Law Review (2018) 9: 223. https://doi.org/10.1007/s41020-018-0076-0.
5. Reciprocal relations: formations of the office of legal scholar Shaun McVeigh Abstract
Professor Upendra Baxi has flourished in many different offices or roles—as scholar, teacher, advisor, administrator and as an executive officer of the university. This article comments on the ways in which a training in conduct as a legal scholar might be inherited and reciprocated. It does by so considering the ways in which Debolina Dutta, Adil Hasan Khan and Oishik Sircar have responded to Baxi’s teaching in terms of both a training in the conduct of lawful relations, and as an exemplary performance in the cultivation of the persona and office of scholar, in time and place. McVeigh, S. Jindal Global Law Review (2018) 9: 231. https://doi.org/10.1007/s41020-018-0077-z.
6. Letters to Kaka: post-card-images of Upendra Baxi Pratiksha Baxi and Viplav Baxi Abstract
This essay weaves together post-card images of Upendra Baxi’s formative life as a student at Berkeley, California in the 1960s. As a law student in Berkeley from 1964–1966, Upen wrote long letters every other week to his father, Vishnuprasad Venilal Baxi (1905–1990) whom everyone called Kaka. Through these letters we represent fragments of his life as a student, catalogue the courses he read and chronicle his first meeting with the Austrian jurist, Professor Hans Kelsen. The first part of the essay brings together fragments of the letters Upen wrote to his father. The second part of this essay turns to Upen’s use of the form of letters as crafting a specific tactic of speaking against power. We reflect on the link between the biographical and the intellectual. The link between the two parts of this essay—life and law—is liminal. To the many insightful analyses of the Mathura Open Letter and the birth of epistolary jurisdiction, we add a biographical footnote that privileges letter writing as a form of relatedness in critical solidarity. Upen’s literary inheritance, especially of writing letters as a form of forging kinship and relatedness inflects how he writes of law and life. Baxi, P. & Baxi, V. Jindal Global Law Review (2018) 9: 239. https://doi.org/10.1007/s41020-018-0071-5.
7. Teaching Baxi and learning from him: the symbiotic relationship between learning and teaching Amita Dhanda Abstract
Reflective teaching devises methodology for transacting the learning process. The creation of this methodology is largely an unspoken enterprise in India. This piece breaks that silence in tribute to Upendra Baxi, one of the most charismatic law teachers in the country. The purpose of sharing Baxi’s methodology of learning and teaching is to show how non-hierarchical learning happens and why such learning is sine qua non to mentoring students and nurturing scholarship. Good teaching practices can be replicated only if they are documented and disseminated. Such documentation can enable the institutionalisation of robust learning methods. Institutional incorporation will bring home the symbiotic relationship between learning and teaching, as well as teaching and research. This piece on Baxian teaching practices, and the lessons they impart, is an effort in that direction. Dhanda, A. Jindal Global Law Review (2018) 9: 257. https://doi.org/10.1007/s41020-018-0069-z.
8. Fragments on reading and teaching Baxi: pedagogy, deconstruction, style Arun Sagar Abstract
In this article I reflect on some aspects of Baxi’s essay “Law and State-Regulated Capitalism in India” (1991). I wish to evoke, firstly, how Baxi’s critique of Indian law allows students to experience ‘negative thinking’ through its undermining of basic assumptions about law and the State. Secondly, I attempt to make sense of Baxi’s reference to ‘law’s illegalities’ by using Derrida’s conception of the impossibility of fixing the limit between the legal and the illegal, which is associated with the impossibility of justice itself. Finally, I offer a brief analysis of some technical aspects of Baxi’s writing style to show how the text’s powerful literary properties shape our experience of its argument. Sagar, A. Jindal Global Law Review (2018) 9: 267. https://doi.org/10.1007/s41020-018-0068-0.
9. Teacher provocateur: Hedonism and the humanities Brinda Bose Abstract
This intense engagement with Upendra Baxi’s essay, “Teaching as Provocation” (1990) reads it as an exemplar both for, and of, the humanities. Baxi’s exhortation that a teacher must be a ‘hedonist’ (rather than a ‘rationalist’ who, opposed to risk, is dull and reasonable), is one that looks to life and the arts for its inspiration, as the humanities must; it is also an essay that exemplifies humanities methods that make it deliberately conversational and argumentative at once, given to detours and asides, joyful and tentative in turn, hailing literary references via inexact memory: proposing a method of teaching by enacting it. Parsing Baxi’s extended proposition to ‘teach by provocation’ as a ‘hedonist’ in a democratic classroom, this response looks to the poetry of TS Eliot, which Baxi quotes, for parallels between the teacher and the poet. Like poets, the hedonist teacher dreams of freedom to dare–here in the classroom, where teachers and students are equals. The hedonist experiences life in its fullness and its excess, and this encounter with Baxi’s hedonist teacher-learner takes pleasure in appropriating such an adventure for the humanities classroom, as well as in suggesting that Baxi deploys what could be claimed as humanities methods in laying out his provocations in the essay. Bose, B. Jindal Global Law Review (2018) 9: 279. https://doi.org/10.1007/s41020-018-0067-1.
10. Human rights and its future: some reflections Saumya Uma and Arvind Narrain Abstract
This article seeks to explore some of the key ideas of Upendra Baxi’s only book length study of human rights, namely The Future of Human Rights, and its relevance to the contemporary human rights context in India. In particular, this article explores the implications of seeing human rights as the product of ‘communities of resistance and people in struggle’. In a highly original intervention on the question of the ‘origins of human rights’, Baxi moves away from the state as the originator of human rights to center people’s resistance movements as articulators and developers of the language of human rights. This is a powerful critique of the idea that human rights are a ‘gift from the West to the rest’. Uma, S. & Narrain, A. Jindal Global Law Review (2018) 9: 287. https://doi.org/10.1007/s41020-018-0070-6.
11. A Co-traveler in the long road to decriminalisation: Upendra Baxi’s engagement with the queer movement in India Siddharth Narrain Abstract
Upendra Baxi is one of the few legal scholars of his generation to have consistently engaged with the queer movement and the legal struggle for decriminalisation of homosexuality in India. In this article, I outline three key moments in Baxi’s engagement with queer politics—his foreword to the groundbreaking 2003 PUCL-K report on human rights violations against the transgender community in Karnataka, his public responses to the Delhi High Court’s Naz Foundation decision in 2009, and its overruling by the Supreme Court in the Koushal judgment in 2013. I conclude by selecting parts of the Supreme Court’s recent decision in Navtej Singh Johar overturning Koushal, that resonate strongly with Baxi’s writing on this theme. Narrain, S. Jindal Global Law Review (2018) 9: 299. https://doi.org/10.1007/s41020-018-0072-4.
12. Upendra Baxi: feminism, law, and the human Shirin M. Rai Abstract
This short tribute to Upendra Baxi’s work builds a conversation between his insights and my own work. I show how Baxi’s oeuvre inspires me to think through some of the key feminist debates, ranging from what it means to be human to the politics of solidarity. I do this by discussing Baxi’s intellectual as well as activist work, which has inspired scholars and those engaged in social movement campaigns for gender justice. This continuing solidarity across borders of thinking and acting is truly inspirational. Rai, S.M. Jindal Global Law Review (2018) 9: 307. https://doi.org/10.1007/s41020-018-0078-y.
13. Voicing suffering and commitment of the intellectual Sam Adelman and Abdul Paliwala Abstract
How can we explain the complexities of Upendra Baxi’s lifework? He is committed to activism yet is attached to complex theorising; he is committed to the Global South yet has a deep engagement with Northern thinking; he makes a trenchant critique of human rights and law while asserting the importance of human rights and the rule of law; he is committed to human social justice while asserting the importance of climate justice. This article explores Baxi’s approach to the relationship between activism and theory, to constitutionalism and the rule of law, to human rights and to climate justice and suggests that any perplexity is resolved through his commitment to giving voice to and alleviating the plight of the impoverished, the disempowered, the suffering, and the rightless in his native India and elsewhere. Adelman, S. & Paliwala, A. Jindal Global Law Review (2018) 9: 315. https://doi.org/10.1007/s41020-018-0074-2.
14. Reading Upendra Baxi as a guide to the study Indian constitutionalism: a comment Matthew John Abstract
This short comment is an attempt to zero in on the prodigious work of Professor Upendra Baxi, to locate him as a scholar of the material and contextual constitution. Having done so, it attempts to illustrate the power of the material constitution through my work and interests in Indian constitutional practice. Broadly, it plots a rough and idiosyncratic outline of the imprint of Baxi’s work on the study of Indian constitutionalism. John, M. Jindal Global Law Review (2018) 9: 327. https://doi.org/10.1007/s41020-018-0073-3.
15. A republic of petty bureaucrats: Upendra Baxi and the pathologies of civil service jurisprudence Rohit De Abstract
The enactment of the Indian Constitution witnessed an explosion of litigation by civil servants successfully suing the state over questions of appointment, transfers, promotion and benefits. Public service law has generated a voluminous body of jurisprudence and sustained the practice of several lawyers. Upendra Baxi was the first scholar to point out that this jurisprudence poses a fundamental ‘identity crisis’ of the Indian state, where civil servants as allies of their political leaders have no hesitation riding over the rights of citizens but as adversaries come to courts attacking the political leadership for denying them their rights. This paper situates Upendra Baxi’s introduction to Justice Rama Jois’s book on service laws as the basis to understand the pathologies of power within the Indian Republic arguing that civil service litigation demonstrates both the intransigence of postcolonial state power and constructs the autonomy of the judiciary and the legal profession. Civil servants are simultaneously the arm of the state but also provide the labour of the state. To understand Baxi’s intervention, the paper argues, one has to historicize the ‘government job’ in India as a property resource and rethink the bureaucracy as simultaneously embodying the state and being a form of labour for the state. De, R. Jindal Global Law Review (2018) 9: 335. https://doi.org/10.1007/s41020-018-0079-x.
16. The southern jurist as a teacher of laws: An interview with Upendra Baxi Saumya Uma and Arvind Narrain Abstract
This article seeks to explore some of the key ideas of Upendra Baxi’s only book length study of human rights, namely The Future of Human Rights, and its relevance to the contemporary human rights context in India. In particular, this article explores the implications of seeing human rights as the product of ‘communities of resistance and people in struggle’. In a highly original intervention on the question of the ‘origins of human rights’, Baxi moves away from the state as the originator of human rights to center people’s resistance movements as articulators and developers of the language of human rights. This is a powerful critique of the idea that human rights are a ‘gift from the West to the rest’. Uma, S. & Narrain, A. Jindal Global Law Review (2018) 9: 287. https://doi.org/10.1007/s41020-018-0070-6.
17. The southern jurist as a teacher of laws: an interview with Upendra Baxi
Sundhya Pahuja, Adil Hasan Khan
This interview was conducted with Upendra Baxi in early October, 2015 as part of the authors’ Eminent Jurists Video Archive Project. The interview covers Baxi’s formative early years in Rajkot, his education and taking up of a life of a legal scholar, including his basic legal training at the Government Law College in Bombay, graduate education at Berkeley (California), and his early career as a lecturer at the University of Sydney. In a wide ranging discussion, with his usual mixture of intellectual dexterity, endless generosity and good humour, Baxi illuminatingly discusses his understanding of the significant notions of normative expectations, eurocentrism, self-determination, along with the ongoing significance and legacies of B.R. Ambedkar and M.K. Gandhi, the experience of proposing (and eventually teaching) a course on aboriginal peoples’ rights in a setter-colony, and the duties and responsibilities that come with inhabiting the roles of being teachers and students of law, amongst other things. Pahuja, S. & Hasan Khan, A. Jindal Global Law Review (2018) 9: 351. https://doi.org/10.1007/s41020-018-0081-3.
Informal Networks of Corruption: Assessing the Challenges for Public Sector Whistleblowing in Nigeria Olabisi D. Akinkugbe Abstract
Recently, the Nigerian government adopted its first National Anti-Corruption Strategy—the first since its independence in 1960. While the strategy captures varying forms of corruption, whistleblowing is seen as one of the key strategies identified to confront anti-corruption in the public sector. The adoption of the whistleblowing policy and its on-going implementation however occurs without a legislative framework to protect whistleblowers. This article situates the whistleblower program in the wider socio-political context of anti-corruption in Nigeria, and public governance. The paper critically examines the implications of the legislative gaps for the long-term sustenance of the whistleblower protection program. This paper argues that the whistleblowing program is embedded in the wider socio-political and informal social norms that have historically privileged corruption in Nigeria. To enhance the overall effectiveness and institutionalization of the whistleblowing program in Nigeria, this paper contends that the urgent adoption of a comprehensive legislative protection framework is a minimum requirement. Significant practical steps must be taken to address the complex background of informal social networks of corruption, power dynamics, and social norms that are peculiar to the Nigerian economic and political context. Akinkugbe, O.D. Jindal Global Law Review (2018) 9: 11. https://doi.org/10.1007/s41020-018-0055-5.
Why Russian Anti Corruption Policies Fail? Examination of Corruption in the Civil Service and the Business Community Pavel Merkulov & Maria Shedij Abstract
Corruption is an entrenched phenomenon in Russian society. This article examines factors contributing to corruption in Russian civil service, such as low salaries, non-competitive hiring and promotion process, widespread nepotism and the culture of corruption. It also looks at corruption when it comes to Russian business enterprises and how it has been impacted by the history of questionable privatization deals in the 1990’s as well as the current relationship between business entities and state officials. The article concludes that while combatting corruption is not an easy task, it is not an entirely hopeless undertaking. Reform is still possible despite of multiple problems that currently exist and prevent the effective carrying out of the anti-corruption agenda in Russia. These reforms will depend upon a true partnership being developed between government and various civil society organizations, development of solid opposition parties that can hold government responsible for following through on its anti-corruption agenda and encouraging mechanisms for developing a general intolerance of corrupt practices. Merkulov, P.A. & Shedij, M.V. Jindal Global Law Review (2018) 9: 29. https://doi.org/10.1007/s41020-018-0061-7.
Exclusion and Rehabilitation: How Multilateral Development Banks Address Corrupt Behaviour Eugenia Pyntikova Abstract
This article considers administrative sanctions used by multilateral development banks in response to corruption in development projects. The paper covers the backgrounds, purposes, and current practices of these similar but non-identical systems, and searches for lessons to be learned as the MDBs continue to tackle the problem of corruption through sanctions of private companies and individuals. A particular focus is the institutions’ balanced approach to risk management that uses both exclusion and tools of rehabilitation with respect to culpable companies and individuals. Pyntikova, E.A. Jindal Global Law Review (2018) 9: 43. https://doi.org/10.1007/s41020-018-0064-4.
Asset Recovery in the Fight Against Corruption in Vietnam: Problems and Perspectives Do Thu Huyen & Vu Cong Giao Abstract
The paper analyses legal provisions and results of asset recovery in Vietnam in the recent years. By using official Government figures and comparing them with requirements under United Nations Convention against Corruption (UNCAC), this paper demonstrates the shortcomings of the legal processes and procedures for recovery of stolen assets in Vietnam. The problems faced by Vietnam in this area mainly resulted from the fact that although the country has numerous substantive and procedural laws on anti-corruption, an appropriate strategy for anti-corruption has been wrongly identified by Vietnamese law makers and practitioners. Accordingly, not much thought has been given to asset recovery, which has been globally recognized as the most effective way to deter corruption. Besides, law enforcement in Vietnam is also another big concern. Therefore, there is no significant progress in asset recovery in Vietnam in the short-term, though the country is revising the law against corruption in a comprehensive manner. Huyen, D.T. & Giao, V.C. Jindal Global Law Review (2018) 9: 57. https://doi.org/10.1007/s41020-018-0057-3.
Control of Public Official’s Assets and Incomes in Vietnam Vu Cong Giao Abstract
This paper analyzes the current legal framework and the practice of control of assets and incomes of public officials in Vietnam. Vietnamese Government is unable to control assets and incomes of its civil servants which is primarily due to the existence of secret culture that heavily influences operations in the political system. The author opines that revision of laws against corruption will have limited effect or change in the control of assets and incomes of public officials. Further, there are institutional and cultural challenges in Vietnam which may invalidate attempts to control assets and incomes of public officials in the coming years. Wu, G.C. Jindal Global Law Review (2018) 9: 75. https://doi.org/10.1007/s41020-018-0063-5.
Anti Corruption Strategies versus Public Services and Good Governance in Albania Oriona Mucollari Abstract
Corruption occurs in all countries regardless of the level of social and economic development. There is a high correlation between corruption and absence of respect for human rights and between corruption and undemocratic practices. Corruption alienates citizens from their government. There is also a high correlation between anti-corruption, good governance and public services. This paper will discuss how corruption affects good governance and public services in Albania. The relationship between central and local governments in Albania has always been fragile. The delegation of the competences from the central to the local government should be seen as a general benefit. A partial delegation of competences or fake delegation of competencies will be a problem for both central and local units. A partial delegation will lead to scarce public services and will give space for corrupt practices. Decentralization of the competencies will only be successful if local authorities can engage in political dialogue with central governments to promote their interests and cooperate among themselves. Strong involvement by all local government units is essential for the success of this process. Cooperation and coordination between central and local governments has been problematic as it is largely directed by political affiliation and influence. Improving this relationship is necessary to achieve constructive dialogue and institutional cooperation between the central agencies and local governments units. Intergovernmental relations will be improved through the establishment of institutional mechanisms of dialogue as well as the adoption of relevant legislation. This paper will discuss various anti-corruption strategies adopted in Albania. Muçollari, O. Jindal Global Law Review (2018) 9: 93. https://doi.org/10.1007/s41020-018-0062-6.
Everything Under One Roof: Canada’s Evolving Model of Parliamentary Ethics Ian Stedman Abstract
This paper begins with a brief overview of the various institutions and offices that contribute to the overall anti-corruption infrastructure of Parliament in Canada. It then examines the creation and evolving role, especially over the past two decades, of the offices of Canada’s federal and provincial parliamentary Ethics Commissioners. A trend has emerged whereby different parliamentary anti-corruption institutions and offices are now being combined “under one roof”, typically that of the Ethics Commissioner. This trend may be warranted, but there is unfortunately very little data being made publicly available by the individual commissioners that can help us understand why these institutions are evolving in this way. Ethics commissioners ought to collect and publish more data about how their offices actually function in order to allow for more meaningful public scrutiny into how these institutions are evolving. Stedman, I. Jindal Global Law Review (2018) 9: 109. https://doi.org/10.1007/s41020-018-0058-2.
To Bribe or Not to Bribe: Human Rights Issues That Should Factor into Decision Making Process Alan Franklin Abstract
Corruption is generally seen as a very negative and malevolent force in the world today; yet oftentimes, acts of corruption are heroically life-affirming and consistent with human rights. This article will examine this concept, suggesting that corruption should be a factor in business decision-making but must be balanced against other factors, particularly human rights considerations. The article looks at the “continuum” aspect of corruption, from that which is illegal as a result of domestic legislation, to that which may be illegal depending on circumstances, to that which is totally legal as it is either approved of directly by domestic legislation (such as licensing of lobbyists or political campaign contributions) or the act of corruption is exempt from the legislation (such as facilitation payments being legal under the FCPA). The “silo” effect often restricts discussion of these issues. Those in the “no corruption ever under any circumstances” silo refuse to engage with those in the silo of “human rights include freedom from corruption and therefore corruption has to be looked at within the context of human rights generally.” The issue of whether human rights are to be judged on the basis of short term or long-term basis is highlighted; while corruption may sustain dictatorial regime in the long run, human rights to development are short term rights. Canadian jurisprudence has engaged with this issue and seems to favour short term over long term regarding human rights. The article proposes that foreign investment decisions should therefore balance these often-conflicting principles, on the basis of whether the investment will likely result in highly improving human rights in the host state, moderately or negligibly and the probable effect of the act of corruption, and whether such act is legal or illegal. Franklin, A. Jindal Global Law Review (2018) 9: 133. https://doi.org/10.1007/s41020-018-0056-4.
STANDARDIZATION, PATENTS AND COMPETITION ISSUES: GLOBAL DEVELOPMENTS AND PERSPECTIVES
Ashish Bharadwaj Indranath Gupta, Sunita Tripathy
Introduction to the JGLR special issue on standardization, patents and competition issues: Global Developments and Perspectives Ashish Bharadwaj, Indranath Gupta and Sunita Tripathy Abstract Article (PDF)
1. Methodologies for calculating FRAND damages: An economic and comparative analysis of the case law from China, the European Union, India, and the United States Anne Layne-Farrar, Korean W. Wong-Ervin Abstract
In the last several years, courts around the world, including in China, the European Union, India, and the United States, have ruled on appropriate methodologies for calculating either a reasonable royalty rate or reasonable royalty damages on standard-essential patents (SEPs) upon which a patent holder has made an assurance to license on fair, reasonable and non-discriminatory (FRAND) terms. Included in these decisions are determinations about patent holdup, licensee holdout, the seeking of injunctive relief, royalty stacking, the incremental value rule, reliance on comparable licenses, the appropriate revenue base for royalty calculations, and the use of worldwide portfolio licensing. This article provides an economic and comparative analysis of the case law to date, including the landmark 2013 FRAND-royalty determination issued by the Shenzhen Intermediate People’s Court (and affirmed by the Guangdong Province High People’s Court) in Huawei v. InterDigital; numerous U.S. district court decisions; recent seminal decisions from the United States Court of Appeals for the Federal Circuit in Ericsson v. D-Link and CISCO v. CSIRO; the six recent decisions involving Ericsson issued by the Delhi High Court; the European Court of Justice decision in Huawei v. ZTE; and numerous post-Huawei v. ZTE decisions by European Union member states. While this article focuses on court decisions, discussions of the various agency decisions from around the world are also included throughout. Layne-Farrar, A. & Wong-Ervin, K.W. Jindal Global Law Review (2017) 8: 127. https://doi.org/10.1007/s41020-017-0048-9.
2. Negotiating and litigating intellectual property: With and in accordance Preston Moore Abstract
Intellectual property has overtaken real property in worldwide commerce. It is the most sensitive resource in play. Both confidential and public procedures for resolving differences are critical. Joint Defense Agreements (“SDA”) and Common Interest Agreements (“CIA”) serve this purpose. They enlarge the attorney-client privilege, enabling all participating clients and lawyers to share sensitive information freely. Most tribunals have rules for protecting sensitive information exchanged in negotiations. In the U.S., Federal Rule of Evidence 408 both protects confidential negotiations and maintains appropriate public access. Court orders sealing the parties’ confidential materials in their files also serve this purpose. Litigating over smart phones and i-pads, Samsung and Apple set aside their differences enough to cooperate in filing sensitive materials under seal. Intellectual property and competition policy-making call for large scale interactions through standard-setting organizations. The boundary between private and public intellectual property processes is essential to the effective functioning of the overall framework. Moore, P. Jindal Global Law Review (2017) 8: 161. https://doi.org/10.1007/s41020-017-0049-8.
3. Extraterritorial application of US antitrust laws: Principles and responses Donald E. Knebel Abstract
The antitrust laws of the United States expressly apply to conduct involving trade “with foreign nations.” American courts have concluded that these laws can and do reach activities occurring entirely outside of the United States if those activities have the requisite effects on U.S. commerce, even if the activities are tolerated, or even encouraged, by the laws of the jurisdiction in which they occur. In response, some countries have enacted laws seeking to minimize the impact of U.S. antitrust laws on activities occurring within their borders. This article examines the development and application of legal principles governing the extraterritorial reach of U.S. antitrust laws and looks at international and domestic responses to that reach, including the Foreign Trade Antitrust Improvements Act. The article also looks briefly at how considerations of international comity and similar principles can affect the reach of U.S. law and at U.S. enforcement attitudes. Knebel, D.E. Jindal Global Law Review (2017) 8: 181. https://doi.org/10.1007/s41020-017-0047-x.
4. Anti-trust treatment of standard essential patent abuse: China’s experience and lessons Jet Deng Abstract
In recent years, how to constrain anti-competitive effects of the abuse of standard essential patents (SEP) has become a hot issue in terms of antitrust enforcement around the world. Since the Anti-Monopoly Law of China took effect in 2008, a number of cases have been investigated in this regard including the Qualcomm case concluded by China’s antitrust powerhouse, the National Development and Reform Commission. China’s antitrust authorities have been making use of competition law as an effective weapon to balance the SEP power and to safeguard consumer rights in the telecommunication sector, and will continue to do so in the future. This article aims to review the laws and practices of the antitrust regulation of SEP abuse, cover the in-process guidelines of applying antitrust law in the field of IPR and examines important cases. In addition, an outline and a roadmap is presented alongside the laws and cases. Deng, J. Jindal Global Law Review (2017) 8: 203. https://doi.org/10.1007/s41020-017-0052-0
5. Recent developments in Korean anti-trust cases concerning FRAND-encumbered standard essential patents Jinyul Ju Abstract
So far, in Korea, there have been four antitrust cases concerning the “fair, reasonable, and non-discriminatory” (FRAND) encumbered standard essential patents (SEPs) in the last six years: (1) the Seoul Central District Court’s decision in Samsung v. Apple (August 2012); (2) the Korean Fair Trade Commission (KFTC)’s consent decision on Microsoft’s acquisition of Nokia (August 2015); (3) the Seoul High Court’s decision in Qualcomm v. KFTC (August 2012) pending in the Supreme Court; and (4) the KFTC’s decision against Qualcomm (January 2017) pending in the Seoul High Court. This article provides an analyses of the four cases, and comments on the application of the Korean Monopoly and Fair Trade Act towards FRAND-encumbered SEPs. Ju, J. Jindal Global Law Review (2017) 8: 221. https://doi.org/10.1007/s41020-017-0051-1.
6. Substantial determination of FRAND licence terms and competition issues by UK High Court Unwired Planet International Ltd v. Huawei Technologies Co. Ltd. and Huawei Technologies (UK) Co. Ltd. High Court of England and Wales, 2017 EWHC 711 (Pat) Dipesh Jain Abstract
Unwired Planet v Huawei is the first case decided in the EU which comprehensively deals with FRAND related issues and competition concerns in disputes involving standard essential patent (SEP) licensing. In the process, it deals with previously unresolved issues. As per this decision, there can only be one set of terms which are FRAND. The manner in which the court has proceeded with the ambitious task of determining a global FRAND royalty rate sets out a methodological approach towards the same. An injunction may be granted in case of infringement by the implementer and its subsequent refusal to accept a licence determined to be FRAND by the court. The court also dealt with allegations of abuse of dominance against the SEP holder. Jain, D. Jindal Global Law Review (2017) 8: 231. https://doi.org/10.1007/s41020-017-0054-y.
7. Data exclusivity: A tool to sustain market monopoly Srividhya Ragavan Abstract
There has been a general downgrading of patent from its touted original has position of being the unique economic tool to promote innovation. The rhetoric of innovation which has long served as a platform to nestle “patents” have been challenged in all countries. For the pharmaceutical industry, the linking of patents—however unfairly—as the woe affecting pricing of life-saving medication in the developing world, the permeation of the pricing question as an election issue in the developed world, issues from secondary patents that potentially blocked further innovation, the low thresholds of biotechnology patents have all resulted in the industry assuming the avatar of defendants of patents globally. It has also resulted in the industry beginning its quest for new tools to help consolidate market exclusivity. This background has caused the pharmaceutical industry to scramble for tools to help sustain or maintain the longevity of their market monopoly. This paper will examine one such tool—data exclusivity—currently touted by the pharmaceutical industry. The focus of the paper will be on how data exclusivity can impact access to medication, specifically in developing countries. In doing so, the paper will discuss what data exclusivity is in Part II followed by an outline in Part III of the historic origins of data exclusivity. A description of Article 39 of the TRIPS agreement and its requirements are outlined in Part IV after which Part V addresses some of the controversial questions relevant to India. The Conclusion highlights the need to be cautious in adding a more TRIPS–plus form of exclusivity. Ragavan, S. Jindal Global Law Review (2017) 8: 241. https://doi.org/10.1007/s41020-017-0050-2.
REFRAMING THE ARCTIC GOVERNANCE AND ASIAN COUNTRIES
ISSUE EDITORS S.G. Sreejith Kamrul Hossain
Reframing Arctic governance and the Asian states S.G. Sreejith and Kamrul Hossain Abstract Article (PDF)
1. Governing the Arctic: Is the Arctic council going global? Kamrul Hossain and Marija Mihejeva Abstract
This article explores the possibility for an Arctic Council (AC) that would a have global voice, achieved through multilateral engagements. The number of observers, including non-Arctic states, has grown robustly in recent years, yet the structure of the Council does not allow for an increase in its membership. The present structure does not afford particularly extensive engagement for actors other than members, a shortcoming which hampers “effective inclusiveness” and a global orientation. We examine the roles and functions of the AC, as well as its structural expansions, to identify gaps that could be filled by accommodating multilateralism in its structure. Improvements in the position of the non-Arctic states as observers were proposed in 2015 in the addendum to Observer Manual 2013, signalling a willingness on the part of the Council to accommodate the voices of other actors. We argue that this trend will spark a trend enabling greater engagement by global actors. In assessing the future direction of the Council, we argue that what he have termed “effective inclusiveness” would offer a suitable mechanism for governing a globalized Arctic and thus making the AC a stronger global forum, one in which actions achieve greater global legitimacy. Hossain, K. & Mihejeva, M. Jindal Global Law Review (2017) 8: 7. https://doi.org/10.1007/s41020-017-0044-0.
2. India and the Arctic: Revisionist aspirations, Arctic realities P. Whitney Lackenbauer Abstract
India has divergent views about circumpolar affairs. One dominant view holds that the region is a “global commons,” rather than the preserve of the Arctic coastal states with their narrow national interests, and that India should lead international efforts to preserve the Arctic environment and freeze out resource development and militarization (akin to the Antarctic model)—in short, a Polar Preserve narrative. Another view suggests that geostrategic dynamics and weak governance point to a growing Arctic Race that threatens to undermine regional (and even global) peace and security. Accordingly, some commentators argue that India, as a strong advocate of nuclear disarmament, should push for a demilitarized and nuclear-free Arctic. Others frame India’s interests in the context of regional rivalries, particularly with China, and potential impacts on Indian security from the “new Great Game” emerging in the Arctic. Another emerging Indian narrative argues that India should avoid the role of a “revisionist actor” and, instead, can benefit from engaging in established governance fora like the Arctic Council, improving its understanding of emerging Arctic political, economic, and strategic dynamics, and partnering with Arctic states on science and resource development. This narrative situates India in an emerging Arctic Saga, where enhanced cooperation and coordination with Arctic states (particularly Norway and Russia) can serve India’s national and international interests—and those of the world’s inhabitants more generally. Whitney Lackenbauer, P. Jindal Global Law Review (2017) 8: 23. https://doi.org/10.1007/s41020-017-0040-4.
3. China’s emerging Arctic policy: What are the implications for Arctic governance? Nengye Liu Abstract
This article examines China’s Arctic policy and its possible implications for Arctic governance. The paper first explains why China needs an Arctic policy and how this policy came into being. The article then sheds light on the content of China’s Arctic policy. The paper concludes that though it intends to play a more active role in Arctic governance, China is likely to be a collaborative rather than a challenging partner. This is evidenced by China’s behavior in the development of the Polar Code within the International Maritime Organization and the negotiations on regulating fisheries in the high seas portions of the central Arctic Ocean. Liu, N. Jindal Global Law Review (2017) 8: 55. https://doi.org/10.1007/s41020-017-0041-3.
4. Arctic policy of the North East Asian countries Viatcheslav Gavrilov and Alexandra Kripakova Abstract
While the significance of the Arctic is increasing in the modern world, the international community is facing some challenging tasks, which nowadays determine the essence and main areas of cooperation between the Arctic States and other interested actors in the region. The most important among them lies in determining basic characteristics of the multilateral governance of the Arctic and in improving mechanisms and procedures that already exist within the Arctic Council and other regional institutions and are intended to ensure its effective implementation. It is impossible to complete those tasks without determining the role and significance of non-Arctic States in shaping and implementing the Arctic agenda, the importance of which goes far beyond that region. Of utmost interest in that regard are the countries of North East Asia (China, Japan and South Korea), which in 2013 gained observer status in the Arctic Council as a result of which it now wields considerable influence over the Arctic Council. Therefore, the main goal of this article is to determine prerequisites for the formation, analysis of the current state and of the future development of the Arctic policy of China, Japan and South Korea as well as for the study of the possibility of their cooperation in that direction. Moreover, the paper provides a description of current opportunities of non-Arctic States to participate in institutional and rule-making mechanisms of the Arctic governance and analyses the impact that those countries have on increasing the efficiency of that process. Gavrilov, V. & Kripakova, A. Jindal Global Law Review (2017) 8: 69. https://doi.org/10.1007/s41020-017-0039-x.
5. Walking the walk: Science diplomacy and identity-building in Asia-Arctic relations Marc Lanteigne Abstract
In the period immediately before and after being admitted to the Arctic Council as formal observers in 2013, five states in the Asia-Pacific, namely China, India, Japan, Singapore and South Korea, were faced with the difficult task of demonstrating their commitment to engaging with the Arctic region in many areas of development and governance, while also dispelling concerns from the Arctic states that their interest in the circumpolar north was being guided solely by economic and strategic interests. Faced with these challenges, the “Asia-Arctic Five” (AA5) opted to pursue expanded “scientific diplomacy” in the Arctic, including constructing research bases and exploration vessels, as well as developing scientific cooperation with Arctic governments and other local actors. These endeavours have been varied but largely successful, but pressure remains on the five states to continue to demonstrate their Arctic identities even as they deepen their economic interests in the region. Lanteigne, M. Jindal Global Law Review (2017) 8: 87. https://doi.org/10.1007/s41020-017-0043-1.
6. The role of China in the Arctic: Challenges and Opportunities for a sustainable development of the region Giuseppe Amatulli Abstract
The interest of China in the Arctic Region is by now unveiled and evident to the totality of the stakeholders dealing with Arctic issues. Although such interest is quite recent (it traces back to the beginning of the new millennium), China has clear idea about the potentialities of the Arctic Region in terms of natural resources as well as regarding the profitability of shipping through the Northern Sea Route. In this context, the admission of China in the Arctic Council with the role of observer should be considered as a shift in the way in which Arctic issues are perceived by Arctic countries: from a regional dimension to a global one. Having the possibility to seat in the Council will give to China the opportunity to play a key role in participating in the definition of Arctic-related policies in the near future. Anyhow, if China wants to play a real key-role in the Arctic, while acting as a responsible global power, it must address some issues still unsolved in its national framework, precisely: recognising the existence of indigenous people within its national borders and ensuring them the enjoyment of their rights (in so doing, China will be ready to recognise the particular features and needs of indigenous people living in the Arctic) and defining a comprehensive Arctic strategy in which sustainable development is put at the top of the agenda. Amatulli, G. Jindal Global Law Review (2017) 8: 103. https://doi.org/10.1007/s41020-017-0042-2
7. Arctic law and governance: The role of China and Finland Mia M. Bennett Abstract
This book review considers Arctic Law and Governance: The Role of China and Finland, a new volume edited by Timo Koivurova, Tianbao Qin, Tapio Nykänen, and Sebastien Duyck. The book represents the culmination of a joint project between researchers from the University of Lapland, Finland and Wuhan University, China. In the volume, the Arctic policies of China, Finland, and the European Union are compared. Special attention is given to maritime sovereignty, science, marine conservation and management, the United Nations Convention on the Law of the Sea and the Svalbard Treaty, and the Arctic Council. Overall, the volume presents a rich, detailed account of China’s activities in the Arctic, though the chapters by the Chinese authors tend to be somewhat less analytical than those by the European contributors. The case for comparing China with Finland and the European Union is not always wholly convincing, but the reader is ultimately left with an understanding of how cooperation could arise in the Arctic between these three unlikely partners in two shared areas of interest: development of Arctic resources and transportation. Such work is valuable, for it demonstrates that the aims of Arctic and non-Arctic stakeholders are not necessarily at odds simply due to differences in geography. Bennett, M.M. Jindal Global Law Review (2017) 8: 111. https://doi.org/10.1007/s41020-017-0038-y.
INDIA’S 2015 MODEL BILATERAL INVESTMENT TREATY: ISSUES AND PERSPECTIVES
ISSUE EDITORS James J. Nedumpara Rodrigo Polanco
Does India need a model BIT? James J. Nedumpara and Rodrigo Polanco Abstract Article (PDF)
1. The changing landscape of investor-state arbitration in India Kabir Duggal Abstract
India’s new Model BIT is a response to the considerable concerns expressed by various sovereign states and civil society on the impact of Investor-State Dispute Settlement mechanism in affecting State autonomy and regulatory freedom. As a large developing country with a rising economy, the Indian experience offers the need to carefully circumscribe investor protection mechanisms especially considering the political and administrative governance challenges India has. The paper while arguing that the Indian experience offers one solution to balancing investor protection and state sovereignty, it reminds the concerned stakeholders of the challenges in negotiating or renegotiating India’s treaties based on the new Model BIT. Duggal, K. Jindal Global Law Review (2016) 7: 127. https://doi.org/10.1007/s41020-016-0028-5.
2. Tussle for policy space in international investment norm setting: The search for a middle path? Srikar Mysore and Aditya Vora Abstract
The issue of international investment norm making has been the subject of considerable discussion and debate. The steady growth of bilateral investment treaties (BITs) along with investment norm setting in large mega regional trade agreements combined with recurring investor state disputes under these agreements bring out the growing relevance of this area of international economic law. States have begun to realise the importance of balancing their policy objectives with the rights of investors. Some of these approaches include the right to regulate provisions, increasing obligations on investors, departing from the original Investor-State dispute resolution mechanisms, etc. These approaches can be seen in the Trans-Pacific Partnership, the European Union proposal in the Trans-Atlantic Trade and Investment Partnership, Indian Model BIT, China–Australia Free Trade Agreement, and the Brazilian Co-operation and Investment Facilitation Agreements, which are the focus of the article. This article shows varying approaches and narratives on some of the core issues involved in investment disciplines and asks the question if there is a middle path in international investment norm making. Mysore, S. & Vora, A. Jindal Global Law Review (2016) 7: 135. https://doi.org/10.1007/s41020-016-0029-4.
3. Indian international investment agreements and ‘non-investment concerns’?: Time for a right(s) approach Leila Choukroune Abstract
This article reviews India’s International Investment Agreements including its Bilateral Investment Treaty models in the light of Non Investment Concerns (NIC) and the integration—or not—of related measures furthering the State’s normative autonomy. In this context, particular attention is paid to the following issues: the right to regulate human rights, development, labour, corporate social responsibility, the environment and anti-corruption. While certainly subjective, this perspective is based on today’s most recurring treaty practices, which respond, even timidly, to pressing “societal” challenges treaty drafters and adjudicators do not yet dare to formulate in a rights, and precisely human rights, language. The paper later shows the importance of a right-based approach in a changing international context and concludes in favour of a greater and original integration of NIC in India’s current negotiations and treaty drafting. Choukroune, L. Jindal Global Law Review (2016) 7: 157. https://doi.org/10.1007/s41020-016-0030-y.
4. Bilateral investment treaties: A developing history Kanu Agarwal Abstract
When an investor decides where to invest internationally, and where to set up the structure for the foreign investment, the investor’s attention is usually focused on a comparison of the tax rules, the return on investment, the local justice system and lastly the investment protection regime under international law. While attracting foreign investors, the host countries assess the investment’s sustainability, the repatriation rules, the expertise and the technology it brings and lastly the sectors in which the investment shall operate. To understand the complexities of this bargain, one needs to understand the ancestries of foreign investments and take into account the variables, along with the changing dynamics of the world economic order. This understanding of the history of foreign investment shall enable us to ascertain the reasons behind the allegedly lopsided nature of international investment laws and equip us to tackle the imminent problems effectively. It is in this backdrop that this article studies the Indian Bilateral Investment Treaties (BITs) regime. It was often argued that India had signed a large number of “old-style” treaties that may leave it vulnerable to challenges. India’s new model BIT represents the logical culmination of balancing of national and developmental interests especially in light of the history behind foreign investments. The new model BIT released by India’s Ministry of Finance unsurprisingly makes significant departures from the principles enshrined in earlier BITs, in order to tilt the balance back in favour of securing India’s sovereign rights, whilst promoting the developmental agenda. This article provides insights on the issues which may arise with the new Model BIT in the near future. Agrawal, K. Jindal Global Law Review (2016) 7: 175. https://doi.org/10.1007/s41020-016-0031-x.
5. India’s shifting treaty practice: A comparative analysis of the 2003 and 2015 model BITs Aniruddha Rajput Abstract
India is the highest importer of foreign capital. The rights of foreign investors are protected through investment treaties, most of which are bilateral. India has recently issued a model bilateral investment treaty (BIT), which would form the basis for negotiating all future BITs. Model BIT is therefore an important statement about state practice. The recently issued Model BIT of 2015 introduces drastic changes in comparison to the 2003 Model BIT. The circumstances of the 2015 Model BIT are very different from the 2003 Model BIT and the change in circumstances has been accounted for the changes that have taken place in the 2015 Model BIT as compared to the 2003 Model BIT. The 2003 Model BIT followed a capital exporting country model, as India was still predominantly a capital exporting state. The 2015 Model BIT aims to protect India’s regulatory space while allowing protection to foreign investors under the BIT. This article analyses the shift in the treaty practice. This Model BIT brings about changes in the definition, jurisdiction, and the scope of protection, access to dispute resolution and introduction of exceptions and carve out provisions. The 2015 Model BIT seeks to reduce India’s exposure to potential investment claims. This shift in treaty practice is important since it has tendency to influence interpretation of treaties. Rajput, A. Jindal Global Law Review (2016) 7: 201. https://doi.org/10.1007/s41020-016-0032-9.
6. General exceptions in the Indian model BIT: Is the ‘necessity’ test workable? Deepak Raju Abstract
In an attempt to preserve regulatory space, India’s 2015 Model BIT includes a list of General Exceptions. These provisions appear to be inspired by General Exceptions under the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS) of the WTO. These exceptions apply where the measure is “necessary” to achieve certain specified objectives, and is accompanied by a footnote that clarifies that the “necessity” test should be driven by the availability of less restrictive alternatives. This article argues that the necessity test, the concept of restrictiveness and the search for less restrictive alternatives may not be as workable in the investment context as they might in the trade context. In particular, a WTO-style necessity test may impair the ability of the state to ex ante predict whether a course of action would benefit from the General Exceptions, in situations where a large number of foreign investors are likely to be affected by the measure. Raju, D. Jindal Global Law Review (2016) 7: 227. https://doi.org/10.1007/s41020-016-0036-5.
7. The revolution of Indian model bilateral investment treaty: Escaping liability without mitigating risks Azernoosh Bazrafkan Abstract
As of June 2016, India has been a respondent in seventeen publicly known investor-state disputes which places India in the category of one of the most challenged countries in the field of international investment arbitration. This article examines the safeguards identified by India in its 2015 Model BIT that seeks to mitigate the impact of investor-State dispute settlement in relation to India’s existing and future BITs. The article argues that India should choose an approach that seeks a fine balance between protecting investor’s interests as well as the host state’s interests. In this regard, the article identifies the free trade agreements that India has negotiated with the South East Asian countries as an appropriate template. While India’s Model BIT seeks to achieve this balance, the challenge remains in integrating this new approach to other existing international investment agreements. Bazrafkan, A. Jindal Global Law Review (2016) 7: 245. https://doi.org/10.1007/s41020-016-0027-6.
8. The shift towards an enterprise-based definition of investment: The quagmire of the Salini test and India’s model BIT Bhagirath Ashiya Abstract
Developing countries seek to adopt a closed definition of investment as they reconsider the protection granted to investors, often creating imbalanced investor protection regimes. As the notion of investment continues to remain in a state of flux on an ideological basis, so does the legal determination of this economic concept by arbitral tribunals, producing highly inconsistent and contradictory results. This article analyzes the primordial issue of defining the notion of investment in ICSID arbitration and importantly the application of the Salini test, which remains inconclusive of its constitutive elements. Ashiya, B. Jindal Global Law Review (2016) 7: 263. https://doi.org/10.1007/s41020-016-0035-6.
9. Methodology problems in international economic law and adjudication Ernst-Ulrich Petersmann Abstract
This overview of “methodology problems” in international economic law (IEL) and adjudication defines “legal methodology” as the “best way” for identifying the “sources” of law, legitimate authority, the methods of legal interpretation, law-making and adjudication, the “primary rules of conduct” and “secondary rules of recognition, change and adjudication”, the relationships between “legal positivism”, “natural law” and “social theories of law”, and the “dual nature” of modern legal systems. It discusses the methodological challenges resulting from the often incomplete, fragmented and under-theorized nature of multilevel, public and private regulation of transnational movements of goods, services, persons, capital and related payments. Governments and lawyers disagree on how to define the legitimate functions of IEL as an instrument of social change, the “legal system” of IEL, and how to transform the “law in the books” into socially effective “law in action” so as to protect the rights and welfare of citizens more effectively. Democratic, republican and cosmopolitan constitutionalism suggest that the five competing conceptions of IEL as (1) international law among states, (2) private international law (e.g. commercial, investment and “conflicts law”), (3) multilevel economic regulation (e.g. based on “law and economics”), (4) global administrative law and (5) multilevel constitutional law (e.g. in European common market and monetary regulation) need to be integrated; they must protect democratic, republican and cosmopolitan rights of citizens who—as “constituent powers”, “democratic principals” and main economic actors—must hold multilevel governance institutions and their limited, delegated powers legally, democratically and judicially more accountable so as to limit “market failures” as well as “governance failures” more effectively. Arguably, the universal recognition of human and constitutional rights of citizens requires cosmopolitan reforms of IEL and stronger judicial remedies for protection of transnational rule of law. Petersmann, EU. Jindal Global Law Review (2016) 7: 279. https://doi.org/10.1007/s41020-016-0033-8.
1. Investment treaty arbitration as public international law: procedural aspects and implication by Eric De Brabandere Akriti Gupta Abstract Article (PDF)
Vol.7, Issue 1, 2016
VOLUME 7, ISSUE 1, 2016
COMPARATIVE FAMILY LAW
ISSUE EDITORS Saptarshi Mandal Sachin Dhawan
Religious family law and legal change in comparative perspective Saptarshi Mandal and Sachin Dhawan Abstract Article (PDF)
1. The market and the family, the sacred and the secular in modern comparative law Veronica Corcodel Abstract
This paper explores the operation of the distinctions between the market and the family, the sacred and the secular in Euro-American comparative legal scholarship. It contributes to existing debates by exploring the potential of the lenses of inclusion and exclusion to address the political implications of the two dichotomies. Starting from the observation that the two distinctions are often inseparable, since market law is constituted in opposition to religious family law, it puts emphasis on the ways in which the exclusionary dimension of such construction is produced. It also shows that exclusion stands in tension with comparative law’s own promise of inclusion. In this sense, the field is reducible neither to inclusion nor to exclusion, and yet it contains both. Capturing this ambivalence in the works of some of the most important Euro-American comparatists, the paper concludes with some tentative thoughts on a critical praxis of particularism. Corcodel, V. Jindal Global Law Review (2016) 7: 9. https://doi.org/10.1007/s41020-016-0023-x.
2. To ban or not to ban: Lessons for India from America’s endeavour to proscribe polygamy Sachin Dhawan Abstract
Both the United States [U.S.] and India are home to communities that practice polygamy. Given this commonality and the fact that India has often been inspired by U.S. precedent on various matters of law, it is not surprising that flagship Indian cases on polygamy are influenced by U.S. polygamy law cases. However, it will be shown that this reliance on U.S. case law is confined to archaic 19th century cases. These cases, which strictly proscribe polygamy, don’t reflect the changes of the last 60 years in favor of non-enforcement of the polygamy ban by American law enforcement officials at the state and Federal level. They are also unreflective of a recent judicial trend in the U.S. that (a) indicates a shift away from imposition of majoritarian values upon the population and (b) firmly rejects the ‘public harm’ justification of polygamy proscription. Such a justification infused the writings of the 19th century U.S. Supreme Court decisions and subsequently found expression in Indian judicial pronouncements. The paper concludes by examining the relevance of the U.S. move away from its ban on polygamy to the ongoing discussion in India over whether to ban polygamy for Muslims. Dhawan, S. Jindal Global Law Review (2016) 7: 31. https://doi.org/10.1007/s41020-016-0025-8.
3. Customary law of stateless nations: Some observations on the question of who can reform the Thesawalamai, the customary laws of the Tamils in Sri Lanka Kumaravadival Guruparan Abstract
Despite the definitive trend towards consolidating the Sri Lankan state as a Sinhala Buddhist state in the post-colonial context, the legal system was left intact in its plural character. In fact, the current constitution seeks to even prevent fundamental rights provisions in the constitution from overriding customary law principles in the event of clash. However, there have been calls for reform, which have focused mainly on enacting a uniform civil code. This project of uniformization advertently or inadvertently aids the monist consolidation of the Sri Lankan state. This paper argues that the Sri Lankan Parliament and courts lack political legitimacy to amend the Thesawalamai, which the paper characterizes as pre-state law, leave alone abolishing it and enacting a uniform civil code. The legitimacy deficit of Sri Lankan institutions is built on the long history of brutal repression of the Tamil struggle for self-determination. The paper suggests that a viable, politically legitimate process for reforming the Thesawalamai can only be put in place if the national question is settled to the satisfaction of the Tamil community in Sri Lanka. It further suggests that placing the responsibility of amending the pre-state law of the Tamils in the hands of institutions which they consider to be politically legitimate and representative is the best path to reforming the Thesawalamai. Guruparan, K. Jindal Global Law Review (2016) 7: 49. https://doi.org/10.1007/s41020-016-0021-z.
4. Transformations in Sharia’h family law in the Republic of Maldives Marlum Jabyn Abstract
In 2000, the codified Shari’ah family law of the Maldives, primarily aimed at regulating marriages and divorces in the country, also introduced a minimum age of marriage, restrictions on reconciliation, divorce and polygamy. Many of these as unique examples of a Shari’ah-based family law were targeted to incorporate Shari’ah family norms into a single code and at the same time address social issues in the Maldives around family affairs. This article examines the practice of family law in the Maldives, claiming that while significantly Shari’ah compliant, this area of law in the Maldives is transforming into a normative system that is guided by modern notions of rights of individuals, yet adhering to Islam, although not strictly bound by the formalistic Shari’ah rules. Through selected cases, the paper demonstrates aspects of legal reform and identifies the prospects and problems with the codified Shari’ah family law in the Maldives. Jabyn, M. Jindal Global Law Review (2016) 7: 61. https://doi.org/10.1007/s41020-016-0022-y.
5. Women’s right to unilateral no-fault based divorce in Pakistan and India Muhammad Zubair Abbasi Abstract
Pakistani judges dispensed with the requirement of the consent of the husband for a wife’s right to unilaterally dissolve a marriage without assigning any of the reasons enumerated in the Dissolution of Muslim Marriages Act 1939. The Lahore HC laid down this rule for the first time in its decision in the Balqis Fatima case in 1959. Eight years later, the Supreme Court of Pakistan endorsed this rule in the Khurshid Bibi case. In 2014, the Federal Shariat Court of Pakistan declared this rule to be in conformity with the injunctions of Islam in the Saleem Ahmed case. In India, however, similar developments did not take place. Rather than extending women’s right to divorce, Indian judges preferred to restrict the husband’s right to divorce under Muslim Personal Law. The main argument in this article is that this divergent attitude of Pakistani and Indian judges toward Islamic divorce law is dictated by factors outside the law. While Pakistani judges felt obliged to reform Islamic family law in the absence of political consensus, Indian judges tried to harmonize Muslim Personal Law with other religious personal laws. Abbasi, M.Z. Jindal Global Law Review (2016) 7: 81. https://doi.org/10.1007/s41020-016-0024-9.
6. Righting Saria Mudgal v. Union of India and Others Jhuma Sen Abstract
This paper presents a feminist alternative judgment or a feminist (shadow) judgment to the Supreme Court of India’s judgment in Sarla Mudgal v Union of India and Ors. This shadow judgment is inspired by the Feminist Judgments Projects in UK, Australia, Canada, and other places to radically reimagine the role of a judge to adjudicate differently by remaining faithful to the legal and constitutional rules that bind her. The project situates writing alternative judgments to judgments that could have been written better or written differently by using a feminist lens. In Sarla Mudgal, the Supreme Court was specifically called to examine the validity of a Hindu marriage between a Hindu man and a Hindu woman and the issue of bigamy by the former after contracting a second marriage with another Hindu woman by a fraudulent conversion to Islam. However, instead of putting the responsibility of bigamy on the Hindu men, the SC blamed the act on the plurality of personal laws and the lack of a uniform civil code. Sarla Mudgal is an example how misplaced judicial zeal ends up as Hindutva’s uniform civil code stick to beat minorities with. The shadow judgment, written in the form of a separate but concurring opinion, explores whether there was any possibility of denouncing bigamy of Hindu men and holding the bigamous men responsible without ascribing their bigamy as a product of Muslim personal laws. Sen, J. Jindal Global Law Review (2016) 7: 97. https://doi.org/10.1007/s41020-016-0020-0.
7. Human Rights and State-enforced religious Family Laws in Israel, Egypt and India by Yuksel Sezgin Saumya Saxena Abstract Article (PDF)
Vol.6, Issue 2, 2015
VOLUME 6, ISSUE 2, 2015
CORPORATE AND FINANCIAL LAWS
ISSUE EDITORS Arjya B. Majumdar Faiz Tajuddin Editor’s Foreword (PDF)
1. Corporate governance in the energy sector Indrajit Duba and Neha Jaiswal Abstract
India adopted the policy of liberalization and privatization in early 1990s. The policy added stimulus to the Indian business environment. In order to achieve sustainable growth, dynamic functioning of the energy sector is necessary. A sound corporate governance mechanism is a proficient indicator for measuring efficient functioning of the sector. This paper attempts to assess the intricacies of the corporate governance mechanism within the sector in terms of its internal board structure, strategies of corporate functioning along with its financial performance. Dube, I. & Jaiswal, N. Jindal Global Law Review (2015) 6: 143. https://doi.org/10.1007/s41020-015-0018-z
Embarking on banking reform nearly four decades ago, China has made significant progress. This paper takes a closer look at banking reforms in China and reviews historical progress and efforts that the Chinese authorities have made. There are three phases of the reforms: 1979–1991 (Phase 1), 1992–2001 (Phase 2), and 2002–present (Phrase 3). China’s banking sector has been gradually transformed from a centralized, government-owned and government-controlled provider of loans into an increasingly competitive market in which different types of banks strive to provide a variety of financial services. The experience of China is interesting because the government both rehabilitated the existing state-owned banks and allowed the development of a parallel banking system. Si, W. Jindal Global Law Review (2015) 6: 179. https://doi.org/10.1007/s41020-015-0017-0
3. Intermediaries as arbitrageurs: Revisiting the motivations behind overseas listing Pratik Datta Abstract
In India’s gradual liberalisation of capital accounts since the early 1990s, one of the first areas of reform was depository receipts. Depository receipts are foreign securities issued in a foreign jurisdiction on the back of domestic securities deposited with a custodian in the home jurisdiction. These instruments may be listed on exchanges or traded on trading platforms abroad (overseas or foreign listing). They may be used for capital-raising or other purposes. The Foreign Currency Convertible Bonds and Ordinary Shares (Through Deposit Receipt Mechanism) Scheme, 1993 (the 1993 Scheme) governed these instruments until very recently. In 2014 budget, ADR/GDR regime was liberalized to allow issuance of depository receipts on all permissible securities’. The government subsequently issued the new Depository Receipts Scheme, 2014 (the 2014 Scheme)—one of its first major financial sector reforms. This paper examines the host of opportunities that these reforms open up for Indian issuers and their implications on Indian financial sector. Datta, P. Jindal Global Law Review (2015) 6: 193. https://doi.org/10.1007/s41020-015-0016-1
4. A review of financial reporting liability lawsuits in Singapore Pelma Jacinth Rajapakse Abstract
Accountants and auditors around the world have been subject to professional liability lawsuits, as a result of corporate collapses in the wake of the global financial crisis. Some of the reasons for these corporate collapses and bankruptcies have been related to breaches of contract, professional negligence, and the contravention of statutory duties by financial advisors and the failure of auditors to give a true and fair view of a company’s financial position. Auditors are subject to numerous rules and regulations in Singapore. The purpose of this paper is to examine the factors that have caused certified practising accountants and independent auditors in Singapore to be sued by their clients and third party users of financial reports. The answer to this question is of obvious interest to members of the public accounting profession in Singapore and around the world. The major purpose of this paper is to make that question more specific and to gather and analyse evidence that might provide answers. This paper has taken into account lawsuits brought against accountants and auditors in Singaporean courts over the past two decades (1990–2010). It focuses on two types of cases. The first type refers to those where the accountants and auditors were directly sued by their clients, and litigated in a court of law. The second type focuses on matters where the accountants and auditors were not directly sued but were summoned as witnesses or third parties in the litigation. Rajapakse, P.J. Jindal Global Law Review (2015) 6: 207. https://doi.org/10.1007/s41020-015-0015-2
5. The Insurance Laws (Amendment) Act, 2015 and life insurance policyholders Mangesh Patwardhan and S. Uma Abstract
The insurance sector in India has long been an area that required a comprehensive legislative overhaul. This paper examines the recent amendments brought in this area through legislation. It is well known that insurance reform in India has followed a long and convoluted process spanning more than a decade, including a report by the Law Commission of India, a series of parliamentary standing and select committees and the use of ordinance powers. The paper explains the impact that the amendments have on nomination and assignment with respect to life insurance policies, the legal issues that arise in case of subsequent assignment, the nature of insurable interest under the new regime and the applicability of this framework to assignment of non-life personal insurance policies. This paper proposes a framework that would do away with current notions of nomination and assignment, instead adopting the twin concepts of beneficiary and transferee. In this manner, problems that arise from the dual nature of life insurance, as protection and property, would partly disappear once the legal regime is more closely aligned with the underlying economic rationale behind such instruments. Patwardhan, M. & Uma, S. Jindal Global Law Review (2015) 6: 231. https://doi.org/10.1007/s41020-015-0014-3
6. SEBI’s authority to regulate global depository receipts, traded on overseas exchange: Supreme court’s analysis in Securities and Exchange Board of India versus Pan Asia Advisors Ltd. and Ors. Mandavi Jayakar Abstract
The recent verdict of the Supreme Court recognising Securities Exchange Board of India’s (SEBI) jurisdiction to regulate matters pertaining to Global Depository Receipts (GDRs) emanates as a remarkable decision. The judgment although, is reliant on facts of the case, it clarifies the scope of SEBI’s territorial jurisdiction. It enunciates that even though GDRs are issued abroad entirely, they qualify as a form of securities and cannot escape SEBI’s jurisdiction. If a corporation deploys the GDR route to raise its foreign capital and in the process it manipulates the Indian securities market, adversely affecting the interests of investors in India, SEBI possesses the requisite authority to intercede and take coercive actions. With increased cross-border trading in securities, there is a risk of heightened abuse by entities, both Indian and foreign, that can have deleterious effects on the Indian markets. Therefore, this judgement comes as a respite for SEBI which enables it to regulate financial products even if they do not fall exactingly within its regulatory purview, as long as manipulation resulting to adverse impact on securities market is established. This case note thus, appraises this judgment as it appears to have commenced a novel legal doctrine. Jayakar, M. Jindal Global Law Review (2015) 6: 255. https://doi.org/10.1007/s41020-015-0012-5
7. Corporate ownership and control: Corporate governance and economic development in Sri Lanka by Shalini Perera Cicek Gurkan Abstract Article (PDF)
Vol.6, Issue 1, 2015
VOLUME 6, ISSUE 1, 2015
ISSUE EDITORS Nupur Chowdhury Els Reynaers Editor’s Foreword (PDF)
1. Comparative Environmental Constitutionalism Erin Daly and James R. May Abstract
As more and more countries around the globe are amending their constitutions to recognises environmental rights and duties relating to air, water, the use of natural resources, sustainability, climate change, and more, courts are increasingly engaging with these provisions and developing a common constitutional law of environmental rights. This article examines this growing jurisprudence and surveys the central axes around which debates about environmental constitutionalism revolve. First, we examine whether environmental rights are more suitably advanced at the international level or at the national level of constitutional law, as is increasingly the case; the former offers two alternatives—protecting the environment for its own sake or protecting it as a human right, whereas constitutionalism tends to integrate the two approaches. Concluding that international protection presents problems of articulation and enforcement, we examine the arguments for protection of environmental rights at the level of national constitutionalism. Lastly, we argue that engaging in comparative constitutionalism is a necessary component of understanding the envisioned reach and inherent limitations of environmental constitutionalism. Daly, E. & May, J.R. Jindal Global Law Review (2015) 6:9,https://doi.org/10.1007/s41020-015-0001-8
2. Access and benefit sharing: Issues and experiences from India Balakrishna Pisupati Abstract
With the Nagoya Protocol on Access and Benefit Sharing (ABS) coming into force on 12th October 2014, national and global debates on ABS shifted towards implementation of this new and challenging international framework at national levels. The time and energy spent on negotiating the framework and its adoption in 2010 by the Conference of Parties to the Convention on Biological Diversity (CBD) would now be reflected in the manner by which countries design their ABS frameworks considering options ranging from administrative to legal regimes. India is one of the few countries that had legislated a framework to deal with ABS in 2002. However, the implementation experience has been uneven and complex. This paper will review the state of play with regard to the Nagoya Protocol on ABS and the way India is responding to the implementation of the Protocol besides addressing challenges of implementing complimentary international obligations such as the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and others. Pisupati, B. Jindal Global Law Review (2015) 6: 31. https://doi.org/10.1007/s41020-015-0007-2
3. Sustainable development in EU law: Still a long way to go Nicolas de Sadeleer Abstract
One of the European Union’s fundamental objectives is sustainable development. It has been enshrined in various provisions of the founding treaties and is encapsulated in different regulatory schemes. While significant uncertainties remain regarding its meaning, it is doubtless that sustainable development is a normative concept rather than a mere policy guideline. That being said, the gap between the legal and political recognitions of sustainable development and the numerous EU policies that are unable to revert unsustainable trends is widening. Whether the concept is likely to add teeth to environmental policy remains to be seen. de Sadeleer, N. Jindal Global Law Review (2015) 6: 39. https://doi.org/10.1007/s41020-015-0009-0
4. Balancing of competing rights through sustainable development: Role of Indian judiciary Arindam Basu and Uday Shankar Abstract
Sustainable development underlines strong bias for economic development and essentially promotes an idea that professes salvation by technology. Careful research has already revealed that this prophesy stands on a shaky and uncertain ground. The institutionalisation of the concept of sustainable development has been employed to forge a balance between the need to live within ecological limits and the agenda of progress. The Apex Court cemented the concept into a right framework by reading it as part of ‘right to life’ under the Constitution. This article, therefore, explores the role of judiciary, particularly in balancing competing rights between development and environment while using sustainable development as principal decisive factor. This article explores the juridification of ‘sustainable development’ in the Indian legal landscape. Further, it attempts to identify judicial intervention in different phases from introducing the concept to further cementing it in the fabric of environmental jurisprudence in order to draw a balance between development and environment. In conclusion, it enjoins immense trust on the judiciary in balancing the competing interest by progressive application of the concept of sustainable development in the backdrop of new-age environmental challenges. Basu, A. & Shankar, U. Jindal Global Law Review (2015) 6: 61. https://doi.org/10.1007/s41020-015-0003-6
5. The honeymoon is over: An assessment of judicial activism in environmental cases in Sri Lanka Naazima Kamardeen Abstract
India witnessed in the 1980s and 1990s, a glorious period of judicial activism that achieved environmental justice. Sri Lanka was also influenced by this, and the judiciary moved away from its usual conservatism and utilized several tools to arrive at environmental justice. However, with the gradual change in the composition of the courts, and the surrounding political factors, judicial activism began to be altered. The denial of the relevance of international law even as soft law was perhaps the starting point. Contempt of court was also used aggressively by the court, and soured the public’s opinion of what judicial activism should encompass. This paper analyses the reasons for the decline of judicial activism in Sri Lanka. It proposes that alternative paths (such as fundamental rights, writ and other remedies) are not always reliable as they are not environmental remedies per se, and that proper and effective environmental laws and regulations are the only means by which a nation could hope to achieve environmental justice for all. Judicial activism should be the exception, and not the norm, in this regard. Kamardeen, N. Jindal Global Law Review (2015) 6: 73. https://doi.org/10.1007/s41020-015-0010-7
6. Odysseys of Vedanta and POSCO in Odisha: An Enviro-Legal Critique Navneeta Dash Abstract
The article attempts to find reasons for violations of the Environmental Impact Assessment process, perpetrated by multinational companies Vedanta and POSCO in Odisha, India. Vedanta’s mining proposals led to India’s first “environmental referendum” and POSCO is scheduled to be the biggest Foreign Direct Investment in India, upon completion. Suggestions to mitigate flaws have been offered. Judicial pronouncements of the Supreme Court on Vedanta’s bauxite mining and refinery project in Niyamgiri, have been analysed. The POSCO project site in Kujanga and its proposed mining site in Khandadhar are located in highly fragile ecosystems. Hence, POSCO is facing and is scheduled to face even more opposition from the local indigenous people of those areas. The article argues that biodiversity and the laws relating to it must be attributed importance, in order to safeguard endangered flora and fauna species from extinction. Biodiversity laws per se should be effectuated to protect forests and the species living in them. The approach adopted while conserving them, should be eco-centric, not anthropocentric. Environment cannot continue being a pawn in the hands of human beings, being exploited and destroyed for human activities like mining and industrialisation at such a large scale. An equitable balance must be maintained. Dash, N. Jindal Global Law Review (2015) 6: 93. https://doi.org/10.1007/s41020-015-0004-5
7. Regulating India’s blood-sport: An examination of the Indian Supreme Court’s decision in Animal Welfare Board of India v. A. Nagaraja Geetanjali Sharma and Shivam Singh Abstract
The recent verdict of the Indian Supreme Court (SC) banning Jallikattu, bullock cart races and ‘other such events’ has won accolades amongst several animal rights activists and environment enthusiasts. The decision blends ecocentric principles towards recognition of ‘intrinsic worth’ of animals into the Indian jurisprudence drawing its essence from several international covenants and recognised legal position on animal welfare in other jurisdictions. The case-note analyses this decision in the context of previous interpretations of the Supreme Court and the Madras High Court on this issue as well as drawing parallels from the recent cases of the International Court of Justice and the World Trade Organisation. The note then critiques the Supreme Court’s decision which instead of objectively choosing a recognised criteria of harm done to the bulls, self-assumed its own ‘standard of harm’ premised on studies of behavioural ethology presented by the Animal Welfare Board of India. Finally, the authors analyse the efficacy of the recommendations given by the SC and study whether the ideals as endorsed in its overall reasoning would align with the actual implementation of the decision on ground. Sharma, G. & Singh, S. Jindal Global Law Review (2015) 6: 113. https://doi.org/10.1007/s41020-015-0008-1
8. The development of smart grid and the legal challenges in China Haifeng Deng Abstract
Smart grid technology has been adopted by many countries in order to reduce carbon emissions. Smart grid has become a viable clean energy option. This paper seeks to examine the nuances involved in the technology. The 5-year plans along with various center and state policies have been used to encourage the development of smart grid networks. This paper also examines how China evolved policies and laws to focus on incorporating smart grid technology. Further, this paper also examines the challenges involved in adopting the technology. Deng, H. Jindal Global Law Review (2015) 6: 123. https://doi.org/10.1007/s41020-015-0005-4
ARTICLES 1. Scan Globally, Reform Locally : The Horizontal Learning Method in Law and Development David M. Trubek Abstract
This article calls for a new method in the field of law and development. Entitled ‘Scan Globally, Reform Locally’ what it seeks to do is to rely on horizontal co-operation among developing countries and close comparative analyses of the similar and overlapping experiences that mark these countries by experts in these countries using a bottom-top approach. It outlines the rationale for the use of this method and assesses the current state of this kind of work in the field of legal studies. David M. Trubek, Jindal Global Law Review, Volume 5, Issue 1, April 2014, 9:15, ISSN 0975-2498.
2. Everybody has a Car But Nobody Moves: Contradiction in Brazil’s Social Inclusion Via the Consumption Development Model Jose Garcez Ghirardi Abstract
Development narratives can and have been told in a variety of ways. They can focus on the main agents for development, and their heroes can include the state, the market, or a mix of both. However, in the real world of concrete implementation of specific policies, options must be reduced and a decision has to be made about which model to adopt, which elements to prioritize and which to sacrifice or postpone. This paper explores the narrative of development which has been at work in Brazil for the past decade, particularly since the election of president LuísInácio Lula da Silva (2002). It begins by arguing that the key to this narrative and its ongoing success is the notion of social inclusion via consumption which has been the guiding principle behind its supported and buttressed by a specific rendering of the roles of the state and the market, which make the former usually respond to the needs of the latter, it ends by suggesting some potentially challenging consequences of this narrative. José Garcez Ghirardi, Jindal Global Law Review, Volume 5, Issue 1, April 2014, 17:32, ISSN 0975-2498.
3. FDI in Brazil: Some Considerations Maria Lucia and L.M. Padua Lima Abstract
This paper discusses some key aspects of the recent flow of Foreign Direct Investments (FDI) in Brazil over the last three decades. It examines the relationship between Brazil and the rest of the world on FDI and critically examines the relationship between successive Brazilian governments’ rhetoric on the new economic policies which include FDI and the actual practice of FDI in Brazil through concrete accounts of Brazilian law, economy and infrastructure. It finally offers an account of the future prospects of FDI in Brazil. Maria Lucia L.M. Padua Lima, Jindal Global Law Review, Volume 5, Issue 1, April 2014, 33:58, ISSN 0975-2498.
4. Tax Policy and Economic Growth within the BRICS: A Case Study of Tax Structuring in the Face of India’s General Anti-Avoidance Rules Charles D. Maddox Abstract
The rates of economic growth across the BRICS countries have slowed significantly over the course of the last few years and the Indian growth story has been no exception. There are multiple reasons for India’s slowing down but one of the significant factors has been controversy surrounding Indian tax policy. This article examines the story surrounding India’s proposed general anti-avoidance rules and how this episode has damaged investor confidence in the Indian system. Charles D. Maddox, Jindal Global Law Review, Volume 5, Issue 1, April 2014, 59:78, ISSN 0975-2498.
5. Sunset Reviews: Important Provisions made Irrelevant? Abhijit Das and Meghana Sharafudeen Abstract
This article examines the Sunset Review provisions of the Anti-Dumping Agreement (ADA), analyses the trend in the use of anti-dumping measures and discusses some of the proposals made during the Doha Round for curtailing misuse of this provision. Abhijit Das and Meghana Sharafudeen, Jindal Global Law Review, Volume 5, Issue 1, April 2014, 79:108, ISSN 0975-2498.
6. Regionalism and BRICS: Understanding BRICS’ Trade Policy Agenda in the Era of Growing Regional Trade Agreements Geetanjali Sharma Abstract
The paper provides a brief overview of the contemporary climate of burgeoning deep-rooted Free Trade Agreements (FTAs) across the globe and the trend of strong powers entering into asymmetrical trade agreements. In light of the changing global dynamics, this paper traces the policy of regionalism in the BRICS countries based on three parameters: i) emergence of each country’s general trade policy on regionalism, ii) scope and coverage of issues within BRICS FTAs, and iii) BRICS response to FTA negotiations with the dominant trading partners such as the US and EU. By analysing these factors, readers could derive the commonalities and divergences in the FTA policy amongst BRICS countries. In the end, the paper presents some common policies on regionalism that BRICS should keep in mind while progressing on their future roadmap of concluding Regional Trade Agreements (RTAs) Geetanjali Sharma, Jindal Global Law Review, Volume 5, Issue 1, April 2014, 109:134, ISSN 0975-2498.
7. Corporate Governance and Informal Institutions: Experiences of BRICS Economies Yugank Goyal Abstract
The article attempts to explore the divergence between corporate governance on paper and on the ground in non-Western societies. In doing so, it excavates the role of informal institutions in the practice of corporate governance. Through a comparative study of BRIC economies, the article argues that variables pertaining to informal social norms (articulated in the histories and cultures of societies) are crucial to explaining the emergence of rather peculiar models of corporate governance. Yugank Goyal, Jindal Global Law Review, Volume 5, Issue 1, April 2014, 135:159, ISSN 0975-2498.
ARTICLES 1. Homonationalism as Assemblage Viral Travels, Affective Sexualities Jasbir K. Puar Abstract
In this article, I aim to contextualise the rise of gay and lesbian movements within the purview of debates about rights discourses and the rights-based subject, arguably the most potent aphrodisiac of liberalism. I examine how sexuality has become a crucial formation in the articulation of proper citizens across registers like gender, class, and race, both nationally and transnationally. The essay clarifies homonationalism as an analytic category necessary for understanding and historicising why a nation’s status as ‘‘gay-friendly’’ has become desirable in the first place. Like modernity, homonationalism can be resisted and resignified, but not opted out of: we are all conditioned by it and through it. The article proceeds in three sections. I begin with an overview of the project of Terrorist Assemblages, with specific attention to the circulation of the term ‘homonationalism’. Second, I will elaborate on homonationalism in the context of Palestine/Israel to demonstrate the relevance of sexual rights discourses and the narrative of pinkwashing to the occupation. I will conclude with some rumination about the potential of thinking sexuality not as an identity, but as assemblages of sensations, affects and forces. This virality of sexuality productivity destabilises humanist notions of the subjects of sexuality but also the political organising seeking to resist legal discourses that attempt to name and control these subjects of sexuality. Jasbir K. Puar, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 23:43, ISSN 0975-2498.
2. Beyond ‘Hate’ : Queer Metonymies of Crime, Pathology and Anti-Violence Jin Haritaworn Abstract
This article questions the uninterrogated role of hate as the hegemonic paradigm for understanding and organising against violence globally. While we have at our disposal a range of analytics – from affect studies to feminism to homosexuality – to make sense of dominant figurations of queer love and the neoliberal multicultural publics and carceral landscapes that they render palpable, hate has not undergone similar challenges. Using a transitional lens to document the arrival of the hate crime/violence discourse in Germany, where languages such as Hassgewalt that that attribute violence to hate are recent, I argue that hate is a risky diagnostic to organise around, in that it always already sticks to radicalised bodies. Tracing figurations of violence, homophobia and crime through a range of media, activist and policy texts, I argue that the drama of queer lovers ad hateful Others has unfolded in close proximity to wider crime discourses that are again inner city, a psy profile, an arsenal of techniques of punishment and reform, and a bio-and geopolitical horizon and orientation towards degenerate bodies and spaces that are both disposable and sites of value extraction. This has implications beyond what kind of languages we choose to use. The article calls for an abolitionist imagination that goes beyond the prison and extends to institutional and other sites more often considered caring and benevolent, including the communities we wish to build ourselves. Jin Haritaworn, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 44:78, ISSN 0975-2498.
3. Transnational Homo Assemblages Reading in Counter Terrorism Discourses Dianne Otto Abstract
This article offers a close reading of the gender mainstreaming report of Martin Scheinin, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, and the response of states in the Question Time following its presentation to the Third Committee of the General Assembly in 2009. The report controversially defined gender to include socially constructed roles, functions and responsibilities in relation to sexual orientation and gender identity. The ensuring heated discussion about this understanding of gender is read queerly, focusing on three aspects: first, the disagreement about how to read the term gender; second, the refusal by some states to even engage in debate on the issue; and third, the claim that women, and possibly also other disadvantaged groups, will lose out if gender is understood as a social rather than biological category. The reading draws on Jasbir Puar’s analysis of the sexuality of ‘terrorism’ in order to reflect on Scheinin’s attempts to have those queer bodies targeted by counter-terrorism measures recognised by international law as ‘lives that matter’. It offers some insights into the project of queering international law, including the importance of multiple readings of seemingly clear-cut events and the need to maintain a vision of justice beyond the law. Dianne Otto, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 79:97, ISSN 0975-2498.
4. Post/Colonial Queer Globalisation and International Human Rights Images of LGBT Rights Aeyal Gross Abstract
In recent years, literature has pointed to the role of pictorial images in human rights advocacy. While this literature has focused mostly on images which portray the violations of human rights, this article considers images of a different type, that are used in the context of LGBT rights, advocacy, arguably portraying utopian visions of human rights. Through a reading of two images – the first portraying utopian visions of human rights. Through a reading of two images – the first portraying Dana International, the transgender pop singer who represented Israel in the Eurovision Song Contest and won, and the second portraying what looks like a same-sex couple who have got married – the article examines issues that come up in international LGBT rights advocacy, focusing on questions of the globalisation of identities, the recognition of family life and on the (post) colonial context in which rights claims are being made. The tension between the texts superimposed upon the images and the images themselves serve to expose existing contraditions withint LGBT rights advocacy as practiced inter alia through the use of these images. Finally, the ‘Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity’ are examined and critically engaged with in light of the tensions in international LGBT rights advocacy discussed through a reading of the images. Aeyal Gross, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 98:130, ISSN 0975-2498.
5. Sexual Exiles or Citizens of the World? The Homoerotics of Travel Ruth Vanita Abstract
The article examines the literary representation, in fiction, non-fiction and poetry, of various types of travel and border-crossings by homosexuality inclined people, particularly from Europe to Asia and northern to southern Europe in the nineteenth and early twentieth centuries, the US, to South America and Europe in the mid-twentieth century, and Asia to Europe and the US from the later twentieth century onwards. Placing these journeys in the context of the age-old global circulations of ideas regarding sexuality, I raise questions regarding the mixed motivations and experiences of sexual exiles and adventures who travel either literally or figuratively, creating new hybrid identities and literary genres as they go. Reading both well-known and little known texts composed in Europe, America and India, I look at the legal, literary and spiritual ramifications of such transnational movements and migrations, and also at travel as a symbol suggestive of many diverse and contradictory experiences, such as escape from oppression, sexual exploration, international connections and the search for a remade self. Ruth Vanita, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 131:150, ISSN 0975-2498.
6. The Men of Blanket Boy’s Moon Repugnancy Clauses, Customary Law and Migrant Labour Sex Neville Hoad Abstract
The article analyses Peter Lanham and A.S. Mopeli-Paulus’s Blanket Boy’s Moon (1953) in the hope of opening up a space between ideas of legal and cultural determination in the ‘’no homosexuality on African culture’’ debates of the late two decades. Through a consideration of the history of repugnancy clauses in British colonial customary law and a critique of contemporary theories of state sovereignty, the article disputes the universalist/cultural relativist, tradition/modernity dialectics that continue to frame the problem of African subjectivity and sovereignty. Repugnancy clauses represent a colonial version of Agamben’s argument about the relationship of sovereignty to the state of exception: indigenous sexual conduct was left to customary law except in instances when it was found to be repugnant to the gaze of the colonisers. South Africa is now the only country in the world to grant legal recognition to both polygamous and same-sex marriages, though the South African constitution asserts that customary law is only valid when in accordance with the equality clause. Increasingly, international human rights law in relation to a right to sexual orientation is engaging questions of tradition and indigeneity, thus revisiting some of the key questions that inhere in the relationship between repugnancy clauses and colonial sovereignty. The novel under discussion broaches colonial imaginings of ritual murder, homoerotic attachments that do not produce identity and the colonial state’s claim to the monopoly of legal, lethal violence in the guise of an ethnographic murder mystery. It therefore allows for the theoretical questions of the essay to find representation in embodied and affectively charged form. Neville Hoad, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 151:173, ISSN 0975-2498.
7. Slim Disease and the Science of Silence: The invisibilisation of same sex sexuality in ‘African AIDS’ Discourse, 1983-2006 Marc Pprecht Abstract
This paper focuses on the earliest epidemiological and other scientific studies of HIV/AIDS (or ‘slim disease’ as it was first colloquially known in Central Africa). This literature tentatively raised but very quickly dismissed the possibility of same-sex transmission of HIV. I examine how precisely African men who have sex with men but do not identify as gay or bisexual were written out of the investigation between 1983 and 1988 and how in this way ostensibly objective science served to reaffirm old ethnographic stereotypes about ‘African sexuality’. It contrasts the supposed ‘heterosexual African AIDS’ with more recent research and donor pressures upon African states that reverses this erasure of same-sex sexuality and calls for sexual minority rights. Without suggesting a direct link, this history does raise concerns about the politics of knowledge production in a period that was characterised by deeply unpopular, Western-backed transitions to neoliberal structural adjustments regimes. March Epprecht, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 174:208, ISSN 0975-2498.
8. Recognising Disability Cross Examining Social Inclusion through the Prism of Queer Anti Sociality Fiona Kumari Campbell Abstract
Studies in medical sociology and law construct disability as anti-productive, unthinkable and unintelligible. This article takes the view, long recognised in the phenomenological tradition, that alternate embodiments result in markedly different forms of human ontology. Enter queer theory. Antithetical to the proposition that disabled people are the same as the ‘abled’, I point to a (trans) difference and suggest that a way out of the confines of recuperative liberal intolerance is to figure the disabled body conceptually as anti-social and ableist normativity as (non) compulsory. I propose that the disabled body is counter-intuitive and actualises, negotiates ‘negative’ ways of knowing or disidentifications. Can queer theory be merely granted onto the crippled body and dragged onto another inflection. Fiona Kumari Campbell, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 209:238, ISSN 0975-2498.
9. In the Shadow of the Homoglobal: Queer Cosmopolitan in Tsai Ming Liang’s I Don’t Want to Sleep Alone Ani Maitra Abstract
In this paper, I ask: what does queerness mean once global capital begins to commodify homosexuality with a vengeance? How can queerness reinvent itself as an aesthetic and political optic to critique the commodity form and global capital’s production of unglamorous or discarded commodities? The introductory section of the paper briefly examines the emergent trend of US as well as transnational commodification of the married queer couple. This emergent cultural regime of ‘homoglobal’, I argue, evades the complexity of the social and subtly combines the rhetoric of lesbian and gay rights with a fetishization of the cosmopolitanism and consuming privileges of queer conjugality. The second section of the article attempts to provide an antidote to the regime through an analysis of Tsai Ming-liang’s film ‘I Don’t Want to Sleep Alone (2006)’. Tsai’s queer lens, I argue, is invested in a rigorously non-heteronormative exploration of the dark underside of the phallic regime of commodification and unequal globalisation. Ani Maitra, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 239:267, ISSN 0975-2498.
10. Kissing Cousins: Racisim, Homophobia and Compulsory Able Bodiedness in the Controvery over Inter-Cousin Marriage Ummni Khan Abstract
The article analyses cousin couples as a contested form of intimacy in relation to racism, homophobia and compulsory able-bodiedness. Looking at representational and regulatory practices from the politico-legal realm, cousin couple advocacy and popular culture, I demonstrate that each discourse is in conversation with the others. I first consider procreative objections to inter-racial and same-sex marriage and compare them to arguments made about inter-cousin marriage in US law and recent calls to discourage cousin marriages in England and prohibit them in the Netherlands. Next, I analyse how the ‘Cousin Couples’ website advocates on behalf of inter-cousin relationships by invoking he race analogy while at the same time failing to address the impact of consanguinity laws on racialised communities. Of particular note are the conspicuous absence of a same-sex marriage analogy in the editorial arguments in ‘Cousin Couples’, and the ways stigmatisation is transferred to people with disabilities. Finally, I analyse a recent US film, Kissing Cousins, which centres on a budding romance between cousins of South Asian origin. While the film confronts the cousin taboo, it attempts to buy acceptability through consumerist identifications and ends by retreating to hegemonic scripts, particularly with recourse to assimilationist paradigms for racialised citizens. In all of the examined discursive arenas, racialisation, procreation and disability become sites of othering, while same-sex desire comes to occupy a more ambivalent position, sometimes seen as analogous to or overlapping with, and other times as distinguishable from, other issues surrounding cousin couples. Ummni Khan, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 268:295, ISSN 0975-2498.
11. Polymorphous Reproductivity and the Critique of Futurity: Toward a Queer Legal Analytic for Fertility Law Stu Marvel Abstract
This article aims to develop a queer legal analytic through which we can engage the complexities of reproductive technology use by queer subjects. It first seeks to reconcile the divide between legal scholarship and queer theory in accounting for the use of reproductivity technology by LGBTQ people. It maps a queer legal analytic that can engage articulations of the reproductive family and explores how child-bearing and reproduction have been envisioned by leading scholars within queer theory. It then argues that these visions have fallen short and offers new conceptual frames to encompass the variety and multiplicity of what is referred to as queer biokinship. My argument is that the intrinsically messy queer parenting projects of assisted reproduction demand a re-thinking of the alignments and arrangements pursued under the frame of biological kinship. Instead, the polymorphous reproductivity of queer biokinship can be understood as challenging the central mythology of heterosexual normativity and genital reproduction. Further, by centring the queer reproductive family at the heart of our analysis, we are able to demand access to state-led subsidies that can help mitigate the ruthless logics of medical privatisation. A queer perspective offers an extraordinarily useful intervention into the legal morass of assisted reproduction as it allows us to de-naturalise the procreative certainty of erotic coupling and determine where, how and on what grounds queer legal rights around assisted reproduction can and should be staked. Stu Marvel, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 296:314, ISSN 0975-2498.
12. Baring and Veiling: Sex, Politics and National Identity in Canadian Legal Discourse Carolina Ruiz Austria Abstract
Scholars have noted the centrality of migration law to mythic constructions of nation and national identity. Taking off from this observation, this article proposes a narrow focus on the process of legal meaning-making by courts and the legislature and how the lines drawn between the public and private spheres figure in these constructions. This article analyses two instances in which female subjects whose bodies are treated as symbols, carry the weight of legal meaning-making in constructing a discursive public or private body. By focusing on the regulation of baring and veiling in the Canadian context, the article considers regulatory effects that lie outside of the formal rules that define the terms of exclusion from the nation, set the conditions for entry, police its borders or extend formal membership. For the women they generally target, the regulation of both baring and veiling is directly experienced as a loss or diminished subject hood in the form of legal, political and social exclusion, even when the legal principles invoked in support of regulation purport to have egalitarian objectives such as gender equality and preventing social harm. Within the neoliberal script, the bared and veiled targets of regulation are less like subjects and more like objects. Feminist theory has long demonstrated how gender hierarchy limits or prevents full subjecthood but queer analysis pushes this further by noting that sexuality has proven particularly antithetical to subjecthood. I argue that while both insights are relevant here, a reflexive pause in the legal construction of particular regulated bodies and regulatory problems can shift the focus on actual persons who bear the brunt of regulation and transcend simplistic ‘for or against’ formulations of critical questions about law. Carolina Ruiz Austria, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 315:359, ISSN 0975-2498.
13. Queering Conceptual Boundaries: Assembling Indigenous, Marxist, Postcolonial and Queer Perspectives Paulo Revecca and Nishant Upadhyay Abstract
This article suggests the need for imagining assemblages and engagements between queer, Marxist, postcolonial and indigenous perspectives in order to critically confront the complex and ambivalent politics of queerness today. It grounds and deploys this reflection through a critical exploration of ‘Dawn of a New Gay’, a non-academic piece on ‘po-mo homo’ and the case of Queers Against the Israeli Apartheid, an activist group based in Toronto. Queerness, in our account, is constituted by dimensions which do far beyond a narrow conception of sexuality. Thus, ‘queering queerness’ implies talking about ‘classing’, ‘gendering’ and ‘racializing’ processes, avoiding an additive logic and acknowledging their interrelated messiness. By employing ‘queer’ as a self-reflexive, methodological tool, we examine its integral role in the processes of capitalism, racialisation, heteropatriarchy and colonialism. The suggested theoretical perspective has implications in terms of how to think of politics ‘as such’: there is a need, this article argues, to overcome economic and culturalist reductionisms in the approach to radical politics. Both are liberal in their ‘ideological mechanism’ because they proceed with the logic of segmentation and obscure how power(s) operate(s). Assembling critical perspectives is an. Impossible and necessary exercise of de-reification of categories and theories but, more fundamentally, it is an attempt to imagine less oppressive political praxes and futures. Paulo Ravecca and Nishant Upadhyay, Jindal Global Law Review, Volume 4, Issue 2, November 2013, 360:382, ISSN 0975-2498.
1. Continental Drift Queer, Feminism, Postcolonial Brenda Cossman Abstract
In this article, I tell a story of drifts – of continental drifts from feminism to queer theory, drifts between continents, from West to East and back again. From its genesis in the works of Eve Sedgwick and Gayle Rubin, queer theory emerged as a project of theorising sex and sexuality in an analytical framework independent of feminism.Others, like Judith Butler have resisted the bracketing of gender and the break of feminism, insisting instead that neither feminism nor queer theory should have such clearly delineated ‘proper objects’. I seek to bring the continental drift to the question of queer theory’s relationship with feminism, and its location in the postcolonial. While the story starts in the West, where queer theory first emerged, it drifts eastward. But continental drift is not a story of movement from West to East; it is a story of the movement of the Earth’s continents relative to each other. Shifting tectonic plates produces more than a little deep structural change. So too does the drift of queer theory toward the postcolonial, and the postcolonial toward the queer. Brenda Cossman, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 17:73, ISSN 0975-2498.
2. Multitasking Queer Reflections on the Possibilities of Homosexual Dissidence in Law Ratna Kapur Abstract
This article interrogates how the term ‘queer’ has come to be used in law. I ask whether ‘queer’ performs the same analytical work as ‘sexual subaltern’, or whether it has become aligned to a more sanitised LGBT politics based on fixed identities and positionalities. Reading the Naz Foundation judgment delivered by the Delhi High Court in 2009 and its legal aftermath, I argue that the voice of the sexual subject emerges as somewhat muted in comparison to its articulation in broader cultural and public spaces within which queer agitation has occurred. Exploring the limits and possibilities of ‘queer’ in the law, I interrogate, above all, what ‘queering the law’ might entail. Ratna Kapur, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 36:59, ISSN 0975-2498.
3. Contagion Politics Queer Rights Claims, Biopower and the ‘Public Health’ Rationale for the Repeal of Sodomy Laws Neil Cobb Abstract
This paper explores the increasing use of “public health” rationales in advocacy for the repeal of national sodomy laws, which justify decriminalisation in terms of managing the global AIDS pandemic and in particular reducing the onward sexual transmission of HIV. The paper frames these rationales as an illustration of the influence of biopower on human responses to the pandemic, or power directed towards the advancement of the health and welfare of bodies and populations. The paper acknowledges the strategic value of the public health rationales, especially in the face of resistance by many conservative nation states to traditional liberal human rights arguments for repeal. However, the paper then proceeds to highlight the potential dangers of over-reliance on the rationales by questioning whether they can offer a sufficiently inclusive, sustainable and progressive basis for contemporary queer rights claims. Neil Cobb, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 60:88, ISSN 0975-2498.
4. Section 377 and the Myth of Heterosexuality Zaid Al-Baset Abstract
This essay intends to ‘read’ the 105 page text of the Naz foundation judgement as a site for the de-historicisation of ‘homosexual’ subject(s). Employing Roland Barthes’ explication of ‘myth’, an attempt is made to understand how the text of the judgement constructs the myth of heterosexuality which de-naturalises the ‘homosexual’ subject as a naturally occurring ‘unnatural’ phenomenon. This essay probes into the contradictory ways in which the ‘homosexual’ subject is produced by the text. While on one hand the ‘homosexual’ is understood as a ‘class’, on the other, a radical anti-essentialist stance is exhibited in the evocation of the discourse of AIDS and particularly the category of MSM (men who have sex with men). The simultaneous ‘minoritising’ and ‘universalising’ stances present in the judgement produce the queer subject in confounding ways which inadvertently evoke and reinforce the specter of the closet. The essay also provides a critique of the ‘right to privacy’ in so far as it threatens to erase the queer subject from the public, thereby, re-producing the closet. The metaphor of the closet is used to denote a space (or its lack) which functions to cohere heterosexuality and produce the ‘homosexual’ as its inevitable and often invisible other. By attempting to analyse the relationship between the queer Indian subject and the closet as produced by the text of the judgement, a theory of the closet is envisaged as not simply a feature of queer lives but all lives in general in a heteronormative context. Zaid Al-Baset, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 89:109, ISSN 0975-2498.
5. Claiming Citizenship, Contesting Civility: The Institutional LGBT Movement and the Regulation of Gender or Sexual Dissidence in West Bengal, India Aniruddha Dutta Abstract
This essay examines the ongoing construction of gender/ sexual identities and minorities as claimants to legitimate citizenship and civic participation as a process that tends to exclude or discipline diverse practices and subject positions at the intersections of gender/ sexual and class/ caste marginality. Through a situated study of the interactions between the institutionalised LGBT (lesbian, gay, bisexual, transgender; particularly GBT) movement in West Bengal, India and lower class/ caste individuals and communities that inhabit gendered positions of marginality, the article argues that while they are often positioned within the institutional movement either as subjects of welfare or inadequate citizens who need to be trained to become worthy of rights, they may contest such regulatory practices and attendant exclusionary definitions of civility and citizenship. The article explores how these contestations might provide the ground for imagining more radical practices of gender/ sexual dissidence than those accommodated by liberal discourses of equality and rights. Aniruddha Dutta, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 110:141, ISSN 0975-2498.
6. Disrupting the Dinner Table Re-thinking the ‘Queer Movement’ in Contemporary India Ashley Tellis Abstract
Using the frame of global governance, this article argues that the neoliberal economy and the consequent practice of global funding has turned “queers into entrepreneurial and consumptive citizens who play by the rules of the state-market nexus.” I contend that the ‘queer movement’ in India is classist, casteist, sexist and complicit with power structures of the most oppressive kind. There is a right-wing queer in India, and no other. Questioning the terms ‘queer’ and ‘movement’, the article shows how their coming together helps “old desires resurface – legalistic desires for equality and justice, the humanist desire for dignity and the orientalist desire of liberating the postcolonial queer from barbaric cultures,” and call for a more critical and radical engagement with the politics of the current conjuncture which produces the ‘queer’ imaginary in contemporary India. Ashley Tellis, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 142:156, ISSN 0975-2498.
7. Unlearning Human Rights and False Grand Dichotomies: Indonesian Archipelagic Selves Beyond Sexual/Gender Universality Vanja Hamzic Abstract
This study presents a critical genealogical analysis of the narratives and politics of representation of various human subjectivities in Indonesia who transgress dominant universalising sexual and gender norms. It traces various streams of regulation, including those reliant on liberal legalistic discourse of human rights, whose extremities produce the stringent ‘heteronormative’ versus ‘homonormative’ poles – the two mutually reinforcing other worlds bereft of the intrinsic complexity of sexual/gender experience across the country’s archipelagic selves. This tacit othering, inapt to account for numerous local identitary frictions, transitions and re-appropriations owed, inter alia, to distinct non- sexual and non-gender communitarian dynamics, continues to usher in an alien dichotomy of personhood, whose referential, idealised ‘self’ and juxtaposed ‘other’ are both violently simplified and tainted with heightened ideological overtones. Against a backdrop of these impoverished binaries, this study confronts the multiple difficulties that a researcher of such phenomena inevitably encounters, ranging from the perils of internationalised taxonomies, such as ‘LGBT’, to the paradigmatic strategy of silent disidentification employed by the local subjectivities as a peculiar form of resistance. It is posited that these complexities are perhaps best captured and exposed if numerous globalised a priori binaries (‘hetero’/‘homo’, ‘male’/‘female’, ‘East’/‘West’, etc.) and legalistic ‘panaceas’ (e.g., liberal discourse on human rights) are gradually unlearnt and disestablished in favour of locale-specific inquiries into collective and individual selves and their counter-hegemonic social stratagems. The Indonesian narratives of archipelagic personhood offer one such opportunity. Vanja Hazić, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 157:170, ISSN 0975-2498.
8. Asking for it: Erotic Asphyxiation and the Limitations of Sexual Consent Ingrid Olson Abstract
The contentious practices of the sadomasochism (S/m) community provide a template for investigating consensual sexual practices that are often deemed excessive. A recent Supreme Court of Canada (SCOC) decision convicted the defendant in an assault case regarding sexual activity performed during a sex partner’s brief loss of consciousness due to consensual erotic asphyxiation. The SCOC cited law that requires continual consciousness for sexual consent and rejected the defendant’s argument of prior consent. That is, despite prior consent for sexual activities the SCOC ruled on the legal parameters of sexual autonomy. Several contemporary court decisions regarding S/m practices in England and Canada have placed legal limitations on the permissible level of sexual consent, and subsequently, one’s sexual autonomy. Legal parameters on sexual practices often conflict with the contemporary community standards of sexuality. This article argues that the autonomy to consent to the sexual practices one desires should not be limited by consciousness. There is a new sexual movement underway, fuelled by the discourses of feminist, sexuality, and queer theorists that seek to shift anti-porn and sexual assault dialogues to a positive project of sexual empowerment and queer sexualities. It is a call for sexual agency, the autonomy to negotiate sexual boundaries and pursue one’s sexual desires. This sexual liberation movement desires a revaluation of sexual values, and the right to say ‘yes’. Sexual autonomy, borne from negotiation and enthusiastic consent, is a re-imagination of the term ‘asking for it’ Ingrid Olson, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 171:200, ISSN 0975-2498.
9. ‘Paradoxes of Visibility’: Lesbian and Gay Parents in the Australian Print Media Damein W. Riggs Abstract
As popular media increasingly include representations of lesbian and gay parents, so comes with this what Gamson terms ‘paradoxes of visibility’. On the one hand, increased representation means both that lesbian- and gay-headed families are able to see themselves reflected in the mirror of the social realm, and that such representation potentially signifies increasing acceptance of lesbian- and gay- headed families. On the other hand, media representations of lesbian and gay parents, like all media representations, are prone toward sensationalism, normativity and potential misrepresentation. This article takes up this paradox by exploring a sample of articles from Australian popular magazines featuring lesbian and gay parents. The analysis presented suggests that normativities predominate across all representations examined, with this occurring specifically through: 1) the evocation of ‘loving families’ to account for lesbian- and gay-headed families in highly normative ways, 2) an emphasis upon biological relatedness to the exclusion of all other family forms, 3) a failure to recognise the racial and class privilege of white middle-class lesbian and gay parents, and 4) a primary focus upon coupled parents. As such, this article suggests that while the appearance of the articles analysed is positive for what it potentially signifies about public acceptance and the intelligibility of lesbian and gay parents, the articles function to exclude as much as they include. Damin W. Riggs, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 201:218, ISSN 0975-2498.
10. Resisting, Demanding, Negotiating and Being: The Role of Scandals in the Everyday Lives of Argentinean Travesties María Soledad Cutuli Abstract
The aim of this article is to explore the different uses and meanings of the category ‘scandal’ among Argentinean travestis. It is argued that this insight could be fruitful to understand the logic according to which local travestis resist, negotiate, demand and manage access to rights, opportunities, and/or goods, from which they have been historically excluded due to their non-hegemonic gender identities. In line with the performative logic employed to construct their gender identities, the idea of ‘scandal’ is fruitful for them to think, to make themselves visible and to act politically. This article proposes a political and anthropological approach to study the relation between structures of inequality and resistance through collective action. It takes into account a perspective developed by political anthropologists, centred in the power relationships analysis and an understanding of politics as a dimension of daily life. Soledad Cutuli, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 219:237, ISSN 0975-2498.
11. Queer Politics in Spain: There is Life after Same Sex Marriage Legislation Susana López Penedo Abstract
This article analyses the evolution of the gay and lesbian movement in Spain during the past forty years, from the final years of Franco’s dictatorship and the transition to democracy to the achievement of same-sex marriage rights in 2005. The article focuses on the influence of Queer Theory and queer activism in the gay and lesbian movement and, more widely, in the politics of other Spanish social movements. The article analyses the debate between the gay and lesbian movement and queer activists about the implications of focusing on same-sex marriage instead of developing a radical critique of heteronormativity. The author explores the effects that achieving same-sex marriage has had in the dynamics of the LGBT movement. As reclaiming the right to marry for gay and lesbian people was the main political objective of the LGBT movement, once the right was achieved it left the movement with a lack of political direction and a need to readdress its priorities. The author argues that the Spanish case is a good example of the limited effectiveness of strategies that focus on the discourse of rights and laws and their inability to stop social and cultural homophobia. She explores the contribution of queer activism in the politics of current Spanish social movements, beyond LGBT activism, especially in the discourse of the new M-15 movement which emerged as a result of the social discontent created by the current international economic crisis and that has inspired the Occupy Movement beyond the Spanish borders. Susan López Penedo, Jindal Global Law Review, Volume 4, Issue 1, August 2012, 238:263, ISSN 0975-2498.
This article focuses on the appropriation of ‘faith’ as a legitimate right under the emerging discourse of secularism endorsed by the Hindu Right. This is reflected in the Ayodhya decision which strengthens such redefining of the meaning of the right to freedom of religion in majoritarian terms. The Ayodhya judgment has been analyzed and critiqued as appropriating the discourse of formal equality and religious tolerance to provide an essentialist picture of Indian secularism favoring the agenda of the right wing Hindu nationalists. It argues in favour of a robust right to freedom of religion in a way that defends the rights of worship of Muslims, and in the process rescues one of the central planks of Indian secularism. Ratna Kapur, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 1:20 ISSN 0975-2498.
2. Constitution as Fundamental Law: Preserving its Identity with Change
Mahendra Pal Singh Abstract
The article scrutinizes the effect of changes in the Constitution, by way of constitutional amendments, to the identity of the Constitution. Mapping the historical perspective of the constitutional amendments under the Constitution of India, the author revisits the debates on the doctrine of basic structure expounded by the Supreme Court of India. It critically reflects upon the basic structure doctrine as an aspect of constitutionalism and argues that the invocation of the doctrine of basic structure as the last resort reflects the political stability and maturity of the Constitution. Mahendra P. Singh, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 21:38, ISSN 0975-2498.
3. Constitutional Right to Access to Basic Amenities: Perspectives on Limits of Law in Social Empowerment
Parmanand Singh Abstract
This article calls into question the excessive faith placed in purely legal responses to human suffering in the Indian context. The author seeks to determine the extent to which law, in both its institutional and doctrinal forms, can address social ills in India. The article also discusses international context and various human rights instruments to draw parallels with the Indian experience. The author critically analyses the responses the Indian Supreme Court has made to questions of addressing basic rights under the framework of Article 21 and the Right to Life of the Indian Constitution. The author concludes by saluting the ‘rights’ based discourse introduced by the Indian Supreme Court to economic development narratives in the era of globalization, while also advocating a stronger ‘positive duties’ based approach for the legislature and executive. Parmanand Singh, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 39:60, ISSN 0975-2498.
4. Public Health Priority: Hazards of Tobacco Consumption, Legal Response and the need for its effective implementation Ajay Pandey Abstract
Consumption of tobacco and exposure to tobacco smoke cause death, disease and disability. India has a strong legal regime to regulate tobacco activity and to protect the rights of non-smokers. It, inter alia, prohibits smoking of tobacco in public places. Landmark court decisions have held that smoking of tobacco in public places is unconstitutional and violates the right to life of non-smokers. The law, however, is not implemented effectively. Participation of the general public is critical in ensuring effective implementation of the law. Creative use of the Consumer Protection Act is a way to secure participation of the general public in effective implementation of the Tobacco Act. Ajay Pandey, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 61:86, ISSN 0975-2498.
5. Judicial Independence: Is it Threatened? J.S. Verma Abstract
This article seeks to present an insider’s account of the vexed questions of institutional design in Indian law. Drawing upon the lived experiences of the author, it discusses the ever evolving relationship between the judiciary and other state organs, primarily executive and legislative, in the Indian constitutional context. The article presents the historical background of the institutional conflicts that have arisen in India. The basic contradictions between the twin principles of ‘independence’ and ‘accountability’ are highlighted and discussed, especially in the context of how judges actually respond to such questions in the case law. The author concludes by arguing for a ‘self-generated accountability’, using the specific example of the Restatement of Values in Judicial Life, issued by the Indian Supreme Court in 1997. J.S. Verma, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 105:116, ISSN 0975-2498.
6. Independence of Judiciary: In Search of Conceptual Clarity P. Puneeth Abstract
The concept of independence of judiciary has always been a very passionate topic for discussion, which has gained more momentum in recent days. Many issues ranging from one’s relating to judicial accountability to that of judicial activism vis-à-vis judicial independence have been subject matters of intense debate. Lack of proper understanding of the concept of independence of judiciary has been the main cause for undesirable delay in effectively addressing such issues. There is an imperative need to understand that the concept of independence of judiciary is much wider than mere separation of judiciary from legislature and the executive. It not only emphasizes on non-interference of legislature and the executive in the judicial proceedings but also requires the judiciary to remain independent. Judiciary’s duty to remain independent implies, inter alia, duty of the higher judiciary to allow the subordinate judiciary to remain independent and duty not to overreach on the legislative and executive domain in the name of judicial activism, which leads to fusion of power – an antithesis of separation of power. Judicial independence depends largely on judges themselves. P. Puneeth, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 87:104, ISSN 0975-2498.
7. India’s Land Title Crisis: The Unanswered Questions Jonathan Zasloff Abstract
The article calls into question the Government of India’s National Land Records Modernization Programme, a massive, multi-lakh billion rupee program of land titling based upon the principles underlying Torrens Registration. It argues that the Union Government would be better advised to preserve and update the current deeds registration system of the Registration Act. Torrens registration is ill-suited to the current state of Indian governance, and risks not only wasting scarce resources, but injuring those millions of low-income farmers that it is intended to assist. Better methods of empowering low-income rural farmers exist and can be achieved at much lower cost. The paper this also suggests that in many areas of the Global South, the rush to Torrens registration could represent both another episode of failed economic development planning and a missed opportunity for genuine legal justice for the poor. Jonathan Zasloff, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 117:146, ISSN 0975-2498.
Locating the Rule of Law in Asia Justice V. R. Krishna Iyer Abstract
The rule of law must govern mankind as a whole beyond regionalism. In my humble view if our world is to reflect a civilised order and cultural comity, the world order must be socialist and democratic. Pluralism, in the matter of religions is a product of diversity of faith and creed. If peace is to prevail and cosmos is free from chaos we must have a creative sublimity in our values, a transformation of the existing system where justice, social, economic and political, which can be claimed by every member of humanity. It is this conviction of mine, this abhorrence of functional anarchy and terrorism that persuaded me to write this long piece. V.R. Krishna Iyer, Jindal Global Law Review, Volume 2, Issue 2, March 2011,1:13, ISSN 0975-2498.
Does Law Matter in Japan?: The Emerging Role of Law, Lawyers, and Legal Institutions in the Revitalization of Japan Gerald Paul McAlinn Abstract
The Japanese have long had a reputation for being non-litigious and possessed of a low level of legal consciousness. In the Meiji Era (1868-1912), Germany provided the model for efforts to modernize law, medicine, science and various social institutions. During the period following the end of World War II Japan looked primarily towards the United States for inspiration. The administrative state under the direction of elite ministerial bureaucrats was remarkably successful in forging a partnership between government and industry known as colloquially as ‘Japan Inc.’, and then bringing about the ‘Economic Miracle’ of Japan’s rise from the ashes of defeat following World War II. Unfortunately, the methods and institutions that worked well for rebuilding contained the seeds of their own downfall. Japanese politicians and the public alike grew disillusioned with the central command economy dominated by unchecked ministerial discretion and a lack of transparency. The response was to launch a sweeping series of legal and institutional reforms over the past two decades. After 20 years, reforms and corresponding infrastructure are now in place for law, lawyers and legal institutions to take a central role in the revitalisation of Japanese society. Gerald Paul McAlinn, Jindal Global Law Review, Volume 2, Issue 2, March 2011,15:36, ISSN 0975-2498.
Erasing the Non Judicial Narrative: Victim Testimonies at the Khmer Rouge Tribunal Mahdev Mohan and Vani Sathisan Abstract
While discussing the International Criminal Tribunal for the Former Yugoslavia (ICTY), our article disputes the frequently asserted.- but rarely examined – claim that victim- participants benefit from participating in war crimes trials and may be able to reconcile with their traumatic pasts. In particular, our article will consider the Extraordinary Chambers in the Courts of Cambodia’s (ECCC) first trial (‘’Case 001’’) which concluded in July 2010. Drawing upon the seminal work of Judith Shkalr and her description of gradations or degrees of legalism, we analyze journalistic and trial monitoring reports relating to the experiences of victims before the ECCC in Case 001. This article will, we hope, serve to guide the ECCC in how it should modify the trial process and consider ways in which to conceive and engage with non-judicial measures outside the court-room which may be more resonant with victim civil parties. Mahdev Mohan and Vani Sathisan, Jindal Global Law Review, Volume 2, Issue 2, March 2011, 37:54, ISSN 0975-2498.
The Constitution of China: What Purpose Does it (Not) Serve? Surya Deva Abstract
It is widely accepted that constitutions serve several important purposes in Western as well as non-Western traditions. In this article, I propose that constitutions ought to serve at least the following six core purposes: signify a break from the past, organise political power, provide legitimacy to the legal system, empower people, limit the power of government organs and work as a unifying force for diverse interests and groups. Against this background, this article seeks to ask and answer the following question: does the Constitution of the People’s Republic of China (PRC) serve these core purposes? Although the PRC Constitution resembles – at least in appearance – Western liberal constitutions in many respects, it is really doubtful if it serves many of these core purposes. This is not to suggest, however, that the PRC Constitution is devoid of any real value. It does serve some other ‘secondary’ purposes within the current Chinese legal framework. This article will try to shed some light on what those purposes are and whether they mean anything to people outside China interested in the study of constitutionalism. Surya Deva, Jindal Global Law Review, Volume 2, Issue 2, March 2011, 55:77, ISSN 0975-2498.
Chinese Policies in Tibet: Should India Remain Concerned Michael C. Davis Abstract
India has long been engaged with the Tibet issue, through in recent years this engagement tends to focus more on strategic considerations, as some critics question the costs, in terms of Sino-Indian relations, of hosting Tibetan exiles. These costs are said to arise out of tense relations over border disputes, security concerns and trade. These strategic considerations may tend to drown out evaluation of the substantive situation that has produced the Sino-Tibetan impasse – which is the focus of this article. With its long relationship with Tibet, India can ill afford to ignore deep-seated social justice problems in the community that stretches along most of its northern border, especially if Chinese policies in Tibet are likely to increase or decrease refugee flows. This article offers an overview of the Sino-Tibetan dispute and efforts at resolution. After the March 2008 uprising, in a Chinese effort at damage control in the lead up to the Olympics, three quick Sino-Tibetan meetings took place, in May, July and October. In the October meeting the Tibetans produced a ‘’Memorandum on Genuine Autonomy for the Tibetan People’’, which the Chinese side quickly rejected. In a November plenary meeting of representatives of the worldwide Tibetan exile community, which took place in Dharamsala, India. Tibetans resolved to push on with their efforts to achieve autonomy. With China knocking at the door, these developments will continue to demonstrate the importance of India’s fundamental commitments to the Tibetans people. Michael C. Davis, Jindal Global Law Review, Volume 2, Issue 2, March 2011, 79:98, ISSN 0975-2498.
Charting Corporate and Financial Governance in Korea in the New Decade: World Bank and IMF Reports Young Cheol and David K. Jeong Abstract
Since the financial crisis of 1997, Koreans have begun to understand the true meaning of the rule of law. By increasing transparency in the law, the Korean government has tried to make corporate governance practices more foreseeable. The rule of law based on transparency and expectation should continue to prosper in Korea, which would lead to a more competitive corporate community. Furthermore, the Korean government should implement policies for the development of an active market for corporate control and professional managers. Young-Cheol and David K. Jeong, Jindal Global Law Review, Volume 2, Issue 2, March 2011, 99:125, ISSN 0975-2498.
Independent Directors and their Constraints in China and India Umakanth Varottil Abstract
Although the concept of the independent director evolved in the US and the UK (that are outsider systems with companies maintaining diffused shareholding), it has been transplanted to several other countries (including those that are insider systems with concentrated shareholding). The recipients of the concept include the two leading emerging economies of India and China. Available empirical studies have not been optimistic regarding the role of that independent directors can play in these countries as compared to the US and UK where the concept originated. This article discusses the various constraints operating in China and India that undermine the efficacy of independent directors. The wide spectrum of constraints comprises structural, legal, cultural, and political constraints. A study of these concludes with some pointers for reform in China and India so as to bolster the independent director institution as a measure of enhanced corporate governance. Umakanth Varottil, Jindal Global Law Review, Volume 2, Issue 2, March 2011,127:155, ISSN 0975-2498.
The Changing Scope of Human Rights in the Context of Counter Terrorism in Singapore: A Comparative Perspective Sarah Shi and Ronald Wong Abstract
The article conducts a brief comparative survey of human rights practice and policy in the context of counter-terrorism, looking particularly at the measures of preventive detention and torture. The article focuses on Singapore, with a comparative analysis between the United States and the United Kingdom. The way each jurisdiction deals with the key tension between individual liberty and collective security is discussed. The latter two jurisdictions were chosen as they are often perceived to be vocal advocates of human rights. Singapore, by contrast, eschews ‘rights’ discourse in favour of a ‘responsibilities’ discourse and holds firm to the view that rights are culture-specific; drawing lines between Singapore and ‘Western societies’ to justify differences in the scope of protection afforded to human rights in this country. The article examines the three jurisdictions to explore whether the two Western societies to indeed stand apart from Singapore in the context of counter-terrorism. This comparative analysis will reveal that the practices of the executive government in the three countries are inf act broadly similar. Yet, the UK and the US have taken a more robust role in judicially reviewing executive action, in contrast with the Singapore judiciary, which has been said to be ‘deferential’ to the executive. Sarah Shi and Ronald Wong, Jindal Global Law Review, Volume 2, Issue 2, March 2011,157:186, ISSN 0975-2498.
A Review of China’s Anti-Monopoly Law Gu Minkang and Chen Bing Abstract
The promulgation of the Chinese Anti-monopoly Law (AML) has attracted global attention. International press and academics have already commented on this law based on various standards. Interestingly, though they consider it as a historical step for the development of the Chinese legal system, at the same time, they criticize it for its inadequacies and glitches. The paper intends to critically evaluate some negative comments and clarify some misperceived notions. Three main criticisms have been analysed in this paper, namely: (a) non-competition related objective; (b) uncertainty regarding the implementing of the AML; and (c) discrimination against foreign undertakings. This paper then undertakes a comparative analysis of the AML with EU competition law and US antitrust law. Finally, this paper puts forward relevant suggestions for enhancing the effectiveness of AML. Gu Minkang and Chen Bing, Jindal Global Law Review, Volume 2, Issue 2, March 2011,187:206, ISSN 0975-2498.
Knowledge-Based Policing: India and the Global Revolution in Crime Prevention Lawrence W. Sherman Abstract
The past three decades have witnessed a global revolution in the development and application of the prevention sciences, notably in health, transportation, and public safety. That revolution has saved countless lives that would otherwise have been lost to disease, plane crashes, murders and other tragedies. This revolution is strongest in the methods for creating new knowledge but remains uneven in applying new knowledge. Lawrence Sherman, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 1:11, ISSN 0975-2498.
Legal Transplants: Western Legal Transplants and India Jean-Louis Halpérin Abstract
Alan Watson’s theory on legal transplants can be used to examine same particularities of Indian legal history. British colonization not only imported in India many rules and features of their legal system, but they have also re-invented the tradition of Hindu law and experienced in India some new legal derives through the codification process. These legal transplants have also played the role of ‘irritants’ – according to Terbner’s terminology – by provoking unforeseen changes in the Indian legal scene. The originality of the Indian legal order since the independence is thus linked with the construction of a complex legacy of various transplants. Jean-Louis Halpérin, Jindal Global Law Review, Volume 2, Issue 1, March 2010,13:40, ISSN 0975-2498.
Legal Transplants and Codification: Exploring the North American Sources of the Civil Code of Argentina 1871 Agustin Parise Abstract
The examines possible legal transplants in the drafting of the 1871 Civil Code of Argentina with reference to text, history, and the sources available to tits author, Vélez. In particular, it makes systematic comparisons of provisions of the Civil Code of Argentina and North American Codes (e.g., Louisiana Civil Code) and codification projects (e.g., a project for a New York Code) to documents the process of transplantations. The process of transplantation is shown not only to inolve the importation of legal provisions and perspectives, but also their integration into a recipient society whose unique ethos results in a new and distinctive body of law. Agustín Parise, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 41:86, ISSN 0975-2498.
Human Rights Law, Policy, and Implementation: The Responsibility to Protect Watershed or Old Wine in a New Bottle? Stephen P. Marks and Nicholas Cooper Abstract
This article argues that the responsibility to protect (R2P) is not a radical departure on the role of international community regarding mass atrocities, but a codification of pre-existing concepts of ‘just war’ and harmonisation intervention, and a call to ensure their consistent application. The authors highlight R2P’s holistic approach of preventing, reacting to, and rebuilding after grave crimes are committed, treating impunity and its redressal as a process rather than standalone events. This article concludes with political hurdles for R2P to be realised in action and suggest creative ways to overcome them. Stephen P. Marks and Nicholas Cooper, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 87:131, ISSN 0975-2498
Human Rights Law, Policy, and Implementation – TRIPS and Human Rights: The Case of India Subramanya Subramanya Sirish Tamvada Abstract
The Twenty-first century has seen a rapid growth of two regimes: the intellectual property rights regime and the human rights regime. On one hand, growth of multinational corporation has led to a stronger and stricter intellectual property rights regime. On the other hand, human rights have gained primacy in public as well as political debates. Developing countries have argued that intellectual property rights and Human Rights often come into conflict, particularly when implementing their international obligations under TRIPS. Nevertheless, developing countries are forced to provide better intellectual property protections. There is a need to give heed to the voices of the developing countries. This article seeks to understand and bring clarity to this debate. It suggests that intellectual property should be seen through human rights lens and analyses various approaches. Subramanya Sirish Tamvada, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 133:154, ISSN 0975-2498.
Human Rights: Globalizing Labor Standards: The Developed Developing Divide Supriyo Routh Abstract
Globalization gives rise to two apparently conflicting opinions for labor policy makers and advocates, both with social justice implications for workers. This article argues that all international labor standards need not be (and should not be) adhered to by all developing states. The international community should not mandate the religious adherence of international labor standards by all states under threat of sanctions via overlapping international organizations. Member states should be given leeway to a certain extent to determine the nature of labor standards that suit their necessities and level of development. This should not be, however, taken to mean that the plight of the workers be made subject to the whim of a domestic political elite. The international community should secure minimum adherence to the labor standards by the member states through diplomatic and political channels, rather than enforcement of positive lae through sanctions. Supriyo Ruth, Jindal Global Law Review, Volume 2, Issue 1, March 2010,155:173, ISSN 0975-2498.
Human Rights: How to Better Infuse Gender into the Human Rights Council’s Universal Periodic Review Process? Jeremy Sarkin Abstract
The shift at the United Nations (UN) from the much criticized Human Rights Commission to the Human Rights Council in 2006 has supposedly brought new opportunities to affect the promotion and protection of human rights around the world. One of the major developments has been the implementation of the Universal Periodic Review (UPR) process to review the human rights (HR) situations in all UN be determined. One are that such a review mechanism could have a dramatic effect still needs to be determined. One area that such a review mechanism could have a dramatic effect is on the lives of women to ensure that levels of discrimination and violence against women are reduced and that real and meaningful equality occurs for women and girls. This article reviews the way in which gender issues could be brought more directly into the work of UPR process by reviewing the way UPR works and making recommendations on the way the process could be reformed to ensure greater infusion of gender issues into the process. This is crucial as gender discrimination around the world remains a major scourge. Finding where it is occurring and finding ways to deal with it must be a critical part of the human rights agenda at international, regional, sub-regional and domestic levels. The UPR process, it is argued, can and makes recommendations to improve it with regard to dealing with gender more comprehensively and cohesively. Suggestions are made to ensure that the UPR process has the desired effect in the country concerned to ensure that the lives of billions of women and girls are improved by striving for equality by reducing discrimination and combating other types of human rights violations committed against women and girls in both the public and private sphere. Jeremy Sarkin, Jindal Global Law Review, Volume 2, Issue 1, March 2010,175:193, ISSN 0975-2498.
Foundations of Constitutionalism: Justice for All: A Better Path to Global Firearms Control David B. Kopel, Paul Gallant and Joanne D. Eisen Abstract
Human rights activists who support a binding global Arms Trade Treaty (ATT) miss an important dimension of global reality: many people the world over own firearms primarily to protect their families and communities from government-sponsored genocide and other abuses. Governments historically have been, and still are, the primary perpetrators of violence and human rights violations. The most effective long-term path towards disarmament in conflict-ridden parts of the world is to reduce demand by civilians to possess defensive arms. Rather than relying upon ineffective and counter-productive top-down measures, the better way to do so would be to promote grassroots movements dedicated to strengthening good governance and the rule of law. David B. Kopel, Paul Gallant and Joanne D. Eisen, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 203:216, ISSN 0975-2498.
Foundations of Constitutionalism: The True Foundation of Judicial Review: A View from Nigeria Ajepe Taiwo Shehu Abstract
The article is a contribution to the debate on the true origins of judicial review. It argues that since most of the common law grounds of review had their origin in the principles of natural law, common law cannot be its true origin. It contends that the intention of the Legislature – ‘directly’ or otherwise – cannot be the foundation. Where the court cannot find justification in the constitution, particularly in countries with written constitutions, it should look for its source in the formal constitution. A constitution, though written, is a codification or the positivization of unwritten norms. Britain has an unwritten constitution. Yet this does not mean that there are constitutional norms not known to people. In the author0s view, the power of the court to review executive or legislative actions must be traceable to the written or the formal constitutions. This paper looks into how the judiciary came about its power of review of parliamentary and executive actions. A.T. Shehu, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 217:236, ISSN 0975-2498.
Foundations of Constitutionalism: A Lockean Defense of the Political Question Doctrine’s Application in War Powers Cases Matthew Jordan Cochran Abstract
This article offers a Lockean natural law justification for political question doctrine, which in turn provides a clear philosophical perspective on America’s war powers controversy, dispensing with constitutional arguments and replacing them with an evaluation of government’s actions according to its political power. In light of Lockean concerns, the War Powers Resolution – a perennial point of disagreement between the US Congress and Presidents – is found to be redundant and counter-productive. The true test of legitimacy of a decision regarding war is responsiveness to the will of the people, a standard which also precludes the judiciary from interfering in such matters. In this way, the political question doctrine cannot be understood as a judicial check on political prerogative but a restatement of necessary abstention. Matthew Jordan Cochran, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 237:254, ISSN 0975-2498.
Refining the Methodology of Rights Based Monitoring: The Role of Human Rights Indicators Y.S.R. Murthy Abstract
This Note surveys the role of human rights indicators in the ongoing quest for implementation and accountability. Section I summarizes a history of the development of Human Rights indicators; Section II assesses some strengths and weaknesses in the use of indicators; and Section III examines whether or not the entry of quantitative indicators into human rights discourse is a desirable phenomenon. YSR Murthy, Jindal Global Law Review, Volume 2, Issue 1, March 2010,195:201, ISSN 0975-2498.
Sen v. Rawls Nathan M. Rehn Abstract Article (PDF)
Vol.1, Issue 1, 2009
VOLUME 1, ISSUE 1, 2009 THE COMMEMORATIVE ISSUE – COURTS, INSTITUTIONS AND ACCESS TO JUSTICE
ISSUE EDITORS C. Raj Kumar Jayanth Krishnan
Part I : Courts, Institutions, and Access to Justice
Courts in a Democracy Peter H. Schuck Abstract
It is easy enough to note the empirical and theoretical importance of courts to democracy. Our task, however, is to understand the nature of that relationship and how it differs from polity to polity. In order to do this, I offer five socio-legal variables that seem to shapre that relationship between courts and democracy in all democratic systems. They are: (1) the degree of judicial independence; (2) the social prestige enjoyed by judges and other parts of the legal profession; (3) the formal legal authority conferred on and exercised by courts; (4) the role of civil society processes and institutions in shaping legal and poltiical decisions; and (5) the performance of non-judicial governmental actors. Peter H. Schuck, Jindal Global Law Review, Volume 1, Issue 1, 2009, 7:21, ISSN 0975-2498.
The Independence of the Judiciary Separation from the Executive Mahendra P. Singh Abstract
The independence of the judiciary is primarily, though not exclusively, assured by the separation of the judiciary from the executive though separation of the judiciary from the legislature is no less important as its separation from the executive, we are presently concerned with the latter. In this paper, I will, therefore, confine to the examination of the separation of the judiciary from the executive, i.e., how and to what extent such separation has been attained and what steps are still on in that direction. The context in which such separation has been attained and is being pursued is, however, relevant and needs to be mentioned. Mahendra P. Singh, Jindal Global Law Review, Volume 1, Issue 1, 2009, 23:40, ISSN 0975-2498.
Legitimacy and Accountability in Global Regulatory Governance, Global Administrative Law and Developing Countries Richard B. Stewart Abstract
This essay summarizes the growth of global administrative law in response to the need for greater assurances of accountability in global regulatory governance through increased transparency, participation, reason-giving and review. This development is of special concern to the developing countries. Richard B. Stewart, Jindal Global Law Review, Volume 1, Issue 1, 2009, 41:63, ISSN 0975-2498.
To the Listed Field The Myth of Litigious India Marc Galanter Abstract
India is rightly acclaimed for achieving a flourishing constitutional order, presided over by an inventive and activist judiciary, aided by a proficient bar, supported by the state and cherished by the public. This is a fitting portrait of what we might call the constitutional tier of India’s legal system, comprising the high courts and Supreme Court, site of the work of a few hundred judges and a few thousand lawyers, where the writ petition procedure allows direct access at the discretion of the court to raise constitutional issues of fundamental rights, where judges prompted by adept counsel deliberate on intricate issues of legal doctrine, and where litigants, government and sometimes the wider public attend to their judgments. But India’s legal system is composed of multiple tiers that are related to different sections of the population in a pattern that resembles the skewed distribution of resources and access that prevails in other spheres of activity like education and health care. Aaprt from the constitutional tier, there is another and vastly larger tier of courts and tribunals, staffed by hundreds of thousands of judges, officials, and lawyers, where ordinary Indians with everyday problems might seek remedy and protection. These forums are so beset with masisve and persistent problems of access, cost, dely and ineffectiveness that they are often described as in crisis or in pathological condition. Marc Galanter, Jindal Global Law Review, Volume 1, Issue 1, 2009, 65:77, ISSN 0975-2498.
Courts, Institutions, and Access to Justice Combating Financing of Terrorism Legislative Initiatives in India A. Francis Julian Abstract
The discussion below will focus on some of the key areas in combatting financing of terrorism such as the source of funds for terrorists, the manner in which funds are transferred, the international efforts to combat financing of terrorism, the applicable Indian laws, and some of the merging critical issues regarding the efforts to combat financing of terrorism. Francis Julian, Jindal Global Law Review, Volume 1, Issue 1, 2009, 79:96, ISSN 0975-2498.
Part II: Equality, Social Exclusion, and Women’s Rights
Equality, Social Exclusion, and Women’s Rights Tension Between Equality and Affirmative Action: An Overview Parmanand Singh Abstract
The Constituent Assembly that drafted the Constitution of India had established a general principle of affirmative action as a directive principle of state policy. Group criteria for distribution of society’s valued resources and opportunities were outlawed except in situations expressly authorised by the Constitution. Specific provisions authorizing affirmative action for mitigating historic inequalities were set up as exceptions to the general theme of formal equality and were juxtaposed with such a theme. In State of Madras v. Champakam Dorairajan, the Supreme Court held that the right to seek admission in a college was a right that an individual citizen had as a citizen and not as a member of any community or class of citizens. The Court refused a general power to the State to pursue the police of reservations on the guidelines supplied by Article 46. In reasoned that the text of Article 16(4), which permitted reservations in State employment, clarified that the group concept of equality recognized by that provision was in the nature of an exception to formal equality enshrined in the main guarantee. This holding was reversed by a constitutional amendment in 1951 incorporating Article 15(4). The exceptional provisions authorizing the State to separate from formal equality represented an empowerment of the State to pursue substantive equality in regard to the victims of historic discrimination. However, these provisions did not create any enforceable right in favour of the backward groups to claim affirmative action as a part of their right to equality. Parmanand Singh, Jindal Global Law Review, Volume 1, Issue 1, 2009, 97:113, ISSN 0975-2498.
Equality, Social Exclusion, and Women’s Rights: Continuing the Colonial Tradition of Social Exclusion Through the Penal Measures in India B.B. Pande Abstract
The phenomenon of social exclusion is a key indicator for the social scientists to understand any society. The phenomenon marks its presence both internationally and nationally in different periods of time and social formations. Equally vital are the forms and consequential imports of social exclusion that accords significance to varied debates relating to absolute and relative social exclusion, and real and imaginary social exclusion. Furthermore, measures put to use for bringing about social exclusion such as informal measures like tradition, religion, caste, and education or the formal measures like law and administrative schemes assume special significance as well. All these render social exclusion a complete and multi-faceted phenomenon. Presently, I shall focus on the colonial tradition of social exclusion through the penal laws. B.B. Pande, Jindal Global Law Review, Volume 1, Issue 1, 2009, 125:135, ISSN 0975-2498.
Equality Beyond Reservation: The Case for an Equal Opportunity Commission N.R. Madhava Menon Abstract
Equality is not just a legally protected right of every individual, but a foundational value of the Indian Republic. The Preamble of the Indian Constitution declares ‘Equality of Status and of Opportunity’ to all citizens. As a guaranteed fundamental right, the Right to Equality promises equality before the law to all persons and prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Equality provisions of the Constitution also enable the State to make provisions for affirmative action including reservation in favour of Scheduled Castes, Scheduled Tribes, women, children, and socially and educationally backward classes of citizens. N.R. Madhava Menon, Jindal Global Law Review, Volume 1, Issue 1, 2009, 115:124, ISSN 0975-2498.
Equality, Social Exclusion, and Women’s Rights: Redressing Women’s Rights Violations Through the Judiciary Avani Mehta Sood Abstract
This Article aims to make a unique contribution to the discourse on PIL by presenting a case study of Vishaka v. Rajasthan – a landmark PIL action for women’s rights, and by drawing upon a range of perspectives gathered through in-depth interviews with approximately sixty-five stakeholders in the PIL process, including: leading public interest lawyers: human rights activists; former and current Supreme Court Justices and high court judges; social scientists; journalists; underprivileged women and senior officials at the National Human Rights Commission, the National Commission for Women, and the Law Commission of India. The case study, primary research, and legal analysis presented herein suggest that the procedurally flexible PIL vehicle can be well applied to advance the rights of women who would otherwise have little to no access to the justice system. However, the success of this endeavour will depend largely upon committed efforts by the Court to enforce women’s constitutional rights independent of societal gender biases and within the boundaries of the separation of powers doctrine. Avani Mehta Singh, Jindal Global Law Review, Volume 1, Issue 1, 2009, 137:154, ISSN 0975-2498.
Equality, Social Exclusion, and Women’s Rights: The Law of Sexual Harassment in China D.K. Srivastava and Minkang Gu Abstract
Sexual harassment involves unwanted behaviour of a sexual nature. Men have subjected women, because of their inferior position in Chinese society, to such behaviour for centuries. Sexual harassment presents yet another example how men in positions of power (physical, political, and economic) coerce women and violate their bodily integrity. The law in this area has developed largely through the work of human rights activists and feminist movements. After the Second World War and following the establishment of the UN Charter an the Universal Declaration of Human Rights, the prevent idea was that there existed a set of justice, equality, and freedom. Legislation to regulate sexual harassment is a relatively new phenomenon. China enacted its first anti-sexual harassment law in 2005. Passing legislation, however, is not enough unless the legislation provides a mechanism to give relief in sexual harassment cases. D.K. Srivastava and Minkang Gu, Jindal Global Law Review, Volume 1, Issue 1, September 2009, 155:170 ISSN 0975-2498.
Part III: Corporate Governance, Trade, and Environment
Corporate Governance, Trade, and Environment: Corporate Governance in India: Past, Present and Future? Vikram Aditya Khanna Abstract
Over the last few months we have witnessed the revelation of some of the largest corporate frauds in history. India, too, has not been spared from the spate of corporate wrongdoing with the recent discovery of massive fraud at Satyam. However, one of the most puzzling aspects of these events is that they occurred after a series of detailed corporate governance reforms in many parts of the world, including India. This raises important and pressing questions about the regulation of business and, particularly in India, corporate governance reforms in India, their effects, and what reforms may be in the offing following the Satyam scandal. Vikramaditya Khanna, Jindal Global Law Review, Volume 1, Issue 1, September 2009, 171-195, ISSN 0975-2498.
Corporate Governance, Trade, and Environment: Regional Trading Agreements: Need for a Coherent Policy Framework for India’s Negotiating Strategy R.V. Anuradha Abstract
This Article has three basic objectives. First, it seeks to explain the basic challenges that the rapid proliferation of RTAs presents for the multilateral trading system. Second, it tracks briefly India’s engagement in RTAs and the direction it seems to be taking with reference to RTAs. Finally, it attempts to draw a checklist of issues that need to be considered for the development of a coherent police framework for India’s trade negotiations. R.V. Anuradha, Jindal Global Law Review, Volume 1, Issue 1, September 2009, 197:211, ISSN 0975-2498.
Corporate Governance, Trade, and Environment: India’s Constitutional Challenge: A Less Visible Climate Change Catastrophe Deepa Badrinarayana Abstract
The first part of this article provides a brief overview of India’s climate position, which it articulated during the Kyoto negotiations. The second and third sections briefly discuss how constitutional rights could be infringed. The fourth and fifth parts assess the limits to which constitutional protection could be pushed, especially because even public interest litigation may be ineffective. The final parts consider more broadly potential strategies that the government could adopt to preserve and pursue effective constitutional governance. Deepa Badrinarayana, Jindal Global Law Review, Volume 1, Issue 1, September 2009, 213:225, ISSN 0975-2498.
Corporate Governance, Trade, and Environment: Dying to Dine: A Story of the Suicidal Indian Farmers Srividhya Ragavan Abstract
Part I of this article outlines the steps India took to promote farmers’ rights as part of enacting a legislation to protect breeders’ right to fulfil its obligations under Article 27(3) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). After discussing the three types of protection regimes, this part then outlines the interaction between the three protection regimes that characterises the unique nature of the PPVA, with particular emphasis on farmers’ rights. Part II addresses the central thesis of this paper. This part highlights that while it is important that small farmers are not deprived of their traditional rights, helping farmers cannot be limited to creating or protecting existing rights. It necessitates preserving markets, which goes beyond the simple question of farmer versus breeder. Thus, this part outlines the various strategies not solutions that India can adopt to create markets for its farmers in the context of the overall issues currently prevalent in international agricultural trade. Srividhya Ragavan, Jindal Global Law Review, Volume 1, Issue 1, September 2009, 227:250, ISSN 0975-2498.
Legal Education: Legal Education Reform in India: Dialogue Among Indian Law Teachers Jane E. Schukoske Abstract
The article outlines legal education debate occurring around the world and the developments in India and is designed to be useful to legal education in India to respond to the NKC’s recommendations. The article then turns to the legal education context in India, with over 900 institutions offering law courses, and highlights reforms efforts in Indian legal education. Sharing ideas through legal research and scholarship is important to initiate the dialogue. Specific treatment of strengthening support for law teachers for conducting legal and socio-legal research will be the subject of a subsequent article. This article poses broad questions for law teachers to consider and seeks to inspire the Indian law teachers to collaborate more closely, using new readily available technologies, to contribute more interactively to legal education reform.Jane E. Schukoske, Jindal Global Law Review, Volume 1, Issue 1, September 2009, 251:279, ISSN 0975-2498.