Jindal Global Law Review

THE COMMEMORATIVE ISSUE – COURTS, INSTITUTIONS AND ACCESS TO JUSTICE

 VOLUME 1, ISSUE 1, 2009

Issue Editors: C. Raj Kumar Jayanth Krishnan

Editor’s Foreword (PDF)

ARTICLES

Part I : Courts, Institutions, and Access to Justice

1. Courts in a Democracy

    Peter H. Schuck
    Article (PDF) | 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.

 

2. The Independence of the Judiciary Separation from the Executive

     Mahendra P. Singh

     Article(PDF) | 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.

 

3. Legitimacy and Accountability in Global Regulatory Governance, Global     Administrative Law and Developing Countries

    Richard B. Stewart

   Article (PDF) | 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.

 

4. To the Listed Field The Myth of Litigious India

     Marc Galanter

     Abstract(PDF) | 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.

 

5. Courts, Institutions, and Access to Justice Combating Financing of Terrorism Legislative Initiatives in India

     A. Francis Julian

     Abstract(PDF) | 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

6. Equality, Social Exclusion, and Women’s Rights Tension Between Equality and Affirmative Action: An Overview

    Parmanand Singh

    Article(PDF) | 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.

 

6. Equality, Social Exclusion, and Women’s Rights: Continuing the Colonial Tradition of Social Exclusion Through the Penal Measures in India

    B.B. Pande

    Article(PDF) | 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.

 

7. Equality Beyond Reservation: The Case for an Equal Opportunity Commission

     N.R. Madhava Menon

     Article(PDF) | 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.

 

8. Equality, Social Exclusion, and Women’s Rights: Redressing Women’s Rights Violations Through the Judiciary

    Avani Mehta Sood

    Article(PDF) | 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.

 

9. Equality, Social Exclusion, and Women’s Rights: The Law of Sexual Harassment in China

      D.K. Srivastava and Minkang Gu

     Article(PDF) | 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

10. Corporate Governance, Trade, and Environment: Corporate Governance in India: Past, Present and Future?

     Vikram Aditya Khanna

      Article(PDF) | 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.

 

11. Corporate Governance, Trade, and Environment: Regional Trading Agreements: Need for a Coherent Policy Framework for India’s Negotiating Strategy

      R.V. Anuradha

     Article(PDF) | 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.

 

12. Corporate Governance, Trade, and Environment: India’s Constitutional Challenge: A Less Visible Climate Change Catastrophe

     Deepa Badrinarayana

     Article(PDF) | 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.

 

13. Corporate Governance, Trade, and Environment: Dying to Dine: A Story of the Suicidal Indian Farmers

      Srividhya Ragavan

     Article(PDF) | 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.

 

Part IV: Legal Education

14. Legal Education: Legal Education Reform in India: Dialogue Among Indian Law Teachers

     Jane E. Schukoske

     Article(PDF) | 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.