Journal of Law & Public Policy Vol-2 (2015)
About the Journal
The Journal of Law and Public Policy, a peer reviewed journal first released in 2014 is published annually by the Centre for Environment Law Education, Research and Advocacy. It touches upon various socio-legal issues in the interface between law and public policy such as human rights, consumer welfare, women rights, socio-economic rights, food security law, access to legal aid, medical law and ethics to name a few. The fourth, fifth and sixth volumes of the Journal have specially dealt with legal and policy issues on the Uniform Civil Code, Sustainable Energy and Sports. In addition to scholarly articles the Journal has also featured case comments and book reviews. JLPP is a peer reviewed journal with an ISSN No. 2350-1200.
Consumer
Welfare in Banks Lending
–
Prof. K. Vidyullatha Reddy
The
article has emphasised the optimal use of the financial source by the creditor.
It broadly explains the consumer welfare with banking sector, the lending of
financial services and the investment processes by the banks. The entire
process with the financial aspects by the bank and various features regarding
that has been highly explained. The author states that the Banks are protected
from failing by introducing radical legislative changes to suit the needs of
the economy. However, Consumer welfare is not given as much adequate importance
as is given in strengthening the institutions as it is presumed that stable
institutional growth ensures consumer welfare. This paper explores the
institutional and legislative framework governing bank lending so as ensures
consumer protection. The entire legal framework processed in the lending
process of the banks is thus explained. The article also extends the bankers
rights towards discretion. All the interest rate of the bank is discussed. The
corporate debt and the liability of the lenders are explained. The institutional and legislative
framework governing bank lending so as ensures consumer protection.
“International
Human
Rights Perspectives on the Protection of genetic information – exploring the
scope and impact of the current United Nations framework”
–
Aisling
de Paor
The
author n his paper states that scientific and technological developments are propelling
genetics and genetic technologies into the public sphere. As
more scientific discoveries
are being made
in the genetics
field, technological innovation is becoming more refined, resulting in
an increase in the use of genetic testing, not only for medical objectives, but
also for economic or other non- medical purposes. These developments provoke
consideration of the protection of genetic information as an emerging and
global human rights concern. In consideration of this evolution of human rights
and the impact of advancing genetic science and technologies, the objective of
this article is to examine international human rights perspectives and explore
the scope of the relevant United Nations framework in this area, including the
influence of both hard law and soft law instruments.
“Socio-economic
rights (SER) in India: responses during economic crisis”
–
Dr. Uday Shankar
The article analyses the socio- economic rights worldwide. The vulnerable pieces in the legislation and the specifications in the constitution are thus discussed. The article attempts to bring out the social and economic crises in the legislature, executive and judiciary. The human rights violation followed by economic crises led to the debates on the socio economic rights of the country. The article brings out the efforts taken by the legislature, executive and judiciary in solving the economic crises. The role of individual is also concerned. The constitutional provisions regarding the socio economic rights have been spotted. The acts in the legislature are discussed. All the developments taken under the executive is thus vastly explained in this article. Several policies have been enacted and the adjudication of the public policies in the government is reflected.
“Ecosystem
analysis of India’s corporate governance practices – gaps and opportunities”
–
Dr. Raymond Keng Wan
The author analyses the current status of corporate governance framework and practices within the Indian ecosystem versus the best practices on the subject globally. The author proposes solutions to strengthen the current ecosystem and suggests major recommendation to be included in the Companies Act 2013 – with regards to mandating directors’ certifications through competency based assessment and testing model before a certificate of incorporation is granted to all new companies, among others. The author suggests that solutions require further research and deliberations by all stakeholders and should not be a one-size-fits-all model. However, he also advocates that in the interests of India’s continued economic growths and sustainability; rapid interventions should be tabled without further delays.
“Conformity
of goods to the contract of sale under the OHADA Uniform Act on general
commercial law: A critical analysis and appraisal”
–
Roland
Djieufack
The paper attempts to assess the seller’s duty of conformity under a contract of sale in the OHADA Uniform Act on General Commercial Law. It posit that conformity is not an independent legal concept and so in this regard it argues that, a thorough assessment cannot be done without recognising and taking into consideration a number of issues irrespective of the contract stipulations agreed upon by the contracting parties. There is usually at some point a considerable confusion and uncertainty as to whom to blame for the non-conformity of the goods to the terms of the contract of sale. Thus, from a cursory reading of the Uniform Act, the question of conformity of goods can conveniently be addressed from a number of different angles: local and international standards, contract law and the principles of caveat venditor and caveat emptor. Adopting an indepth content analysis and critical evaluation of primary and secondary data, the paper concludes that a balance should be struck between these variables and where no guidance is given in Article 255, the prevailing norm in the Member States should form the basis for determining the concept of conformity of goods.
“Power
of the President of India to grant sanction of prosecution against the Prime
minister”
– Dr. Lokendra Malik
The
author makes an academic endeavour to examine the law pertaining to the
sanction of prosecution in a constitutional democracy. The paper focuses on
this in light of the political realities, constitutional and statutory
provisions and past precedents. The author hopes that the paper will generate a
healthy debate among the scholars of constitutional law and political science
to find out the alternative
answers of this
problem which goes
to the roots
of our democracy. Granting sanction of prosecution against
the Prime Minister will ensure
accountability and transparency
at the highest
Constitutional office. But is the same is granted during the term of
office of the Prime Minister, the latter would have to resign from his office
and that may create a constitutional crisis in the country.
“Justice
Promised but undelivered a critique on enslavement through debt bondage in India”
–
Dr. Anuja S
The
author evaluates the law and policy
governing bonded labour
in India. The
unfinished agenda of
socio economic transformation envisaged
in the institution
of India in
1950 was taken forward by the Bonded Labour System
Abolition Act, 1976 to alleviate the vulnerability of bonded labourers in the
Indian society. The larger discourse on
human rights recognizes
bonded labour as a form
of human trafficking.
A comprehensive understanding of the vulnerability of bonded labourers
in India could be
gained through a
historical perspective of
this issue backed
by international mandates existing in the field, in addition to
Constitutional commitments,
judicial decisions interpreting
the rights of
the class, the
legislative framework guaranteeing the safeguards to protect the
voiceless class and debates on this issue. The whole debate is about the “is
versus the ought” proposition in the Indian context. The tripartite meeting of
ILO held at Geneva in 2013 throws light on the issue. Despite the introduction
of various welfare programmes by Union and state governments, there exists
bonded labour and we have been unable to eliminate it. The paper is an attempt
at identifying new grounds for debating the efficacy of national legislation
and public policy that has evolved on the issue in the context of
globalization.
“Evolution
of commercial tribunals with special reference to company law tribunal in the
light of R. Gandhi’s case
–A.K. Febin
The
author in her article discusses the issues concerning Commercial Tribunals
in India. Though Commercial tribunals are attracting a
good deal of attention, little systematic research has been undertaken
regarding their evolution and functioning. The peculiarity of commercial
disputes, dealt with by them, especially company law disputes is that they
should be resolved quickly, predictably, consistently and economically.
Since the failure
to provide an
apt remedy will
hamper development badly,
efficiency of the judicial system will affect the commercial life
directly. Some of the powers and functions exercised by the high courts and
civil courts under different statutes especially under company law were
transferred to the tribunals with a sole aim of expediting decision making and
to use the knowledge and expertise of decision makers. But the people’s
confidence which the courts enjoy is not enjoyed by the tribunals; the major
reasons being lack of competence, absence
of security of
tenure, governmental interference
in the selection,
appointment as well as removal of members and working of the tribunals.
The Supreme Court in UOI v. R. Gandhi, Madras Bar Association directed changes
to be incorporated in the existing system. Whether commercial tribunals so
constituted would be an effective alternative setup for the existing courts of
law is looked into. To meet such ends, tracing their evolution, the article
gives an account of various commercial tribunals with special emphasis on the
Company Law Tribunal. The work identifies the situations that mandated changes
during each period which ultimately lead to the present form and also points
out the problem areas and critically evaluates the same.
“Conflicts
between foreign investment and environment Protection: examining the role of
bilateral investment treaties”
-Sumit Sonkar
The article analyses the bilateral investment treaties and its effect in foreign investments and conflicts. Bilateral Investment Treaties (BITs) have become the key means of affecting foreign investments and often come in conflict with the principle of sustainable development. Sometimes, in order to maximise profits and in the absence of strict regulation companies or investors tend to exploit the natural resources without paying heed towards its detrimental impact on the present and future generations. In dearth of any binding obligation to respect public policy gives plethora of opportunity to multinational companies and corporations to engage in nefarious activities to degrade the environment by taking the umbrella cover of investment protection treaties. Therefore, it’s in the interest of environment as a whole that international law should remain an instrument of addressing the legitimate concerns of environment protection without encumbering the developmental growth. This article briefly provides ways to balance competing and conflicting areas of sustainable development and bilateral investment protection by taking into account decisions of arbitration tribunals in achieving the sustainable environment protection goal without hampering the investors’ interest. Further, the economy’s situation in failure of the investment and the poverty lines are shown.
“The
line of resistance: examining decentralised decision making through PESA act in
the Vedanta case, Niyamgiri”
-Deepa K.S
The
article speaks about constitutionality of PESA and the Vedanta case in Niyamgiri,
Orissa. Her paper attempts to bring
out the process
of implementation of
PESA Act through
the case study
of Niyamgiri. The
various stakeholders in the case
were, the Vedanta
company, the Kondh
tribe, civil society
organisations, the Orissa
government and the Union government. Their individual interests played
out in the backdrop of the legal rights given by the PESA Act. The paper uses
the case study to draw out the problems in the implementation of the law.
CASE COMMENTS:
South
Delhi Municipal Corporation v. Radhey Shyam (MANU/DE/2076/2014)
Badrinath Srinivasan[1]&
Smitha Poovani
The
authors have discussed the Delhi High Court Judgment in South Delhi Municipal
Corporation v. Radhey
Shyam. The Delhi
High Court had to consider the question as to whether a
party could save on post-award interest in case of appeal against a decision
rejecting a challenge to the arbitral award by merely depositing the Award
Amount in the court. The court held that deposit of the Award Amount in the
court in such proceedings did not amount to payment to the Respondent and
hence, the Petitioner was liable to pay post-award interest even after the date
of deposit. This decision is in direct contradiction to the decision of the
Supreme Court in HP Housing & Urban Development Authority v. Ranjit Singh
Rana. This paper analyses the former decision and argues that it lays down the
correct law.
From
apology to utopia…to apology? – Kunal Sahaasa vindication of the normative
equilibrium of tort law
Srinivas Raman
The
author analyses the Kunal Saha case, as the final judgment has acquired a
distinct landmark status in the domain of medical negligence as the quantum of
monetary damages awarded was the highest ever in India. Several questions have been raised in
retrospect about the significance of this decision and its future ramifications
in the context of the established doctrine of stare decisis. This article is an
attempt to understand tort litigation in India from the perspective of this
judgement and understand how it has dramatically changed. The arguments in this
article are advanced in two parts. In the first part, the principle of
restitution that the Supreme Court has placed reliance upon to arrive at its
decision is criticised for resulting in a paradox that makes justice an
arbitrable, subjective end to litigation. In the second part, the article
juxtaposes the doctrine of precedent in quantifying the monetary value of human
life and the dangers of forum shopping for medical negligence cases as a result
thereof to observe that the result of the decision, while laudable in itself,
may pose an unconscionable one.
[1] B.A. (Law) LL.B. (S.D.M. Law
College, Mangalore, India), LL.M. (West Bengal National University of
Juridical Sciences Kolkata,
India). (badri@bhelrpt.co.in
Editorial Board:
Patron-in Chief
Prof. (Dr.) R. Venkata Rao
Professor of Law &Vice-Chancellor,
National Law School of India University, Bengaluru
Patron
Prof. (Dr.) O.V. Nandimath, Registrar, NLSIU
Prof.(Dr.) Sairam Bhat
Professor of Law & Coordinator
Centre for Environmental Law, Education, Research and Advocacy
National Law School of India University, Bengaluru
Editors
1. Mr. Praveen Tripathi, Assistant Professor, NLSIU
2. Ms. Arpitha H.C., Assistant Professor, NLSIU
3. Ms. Yashomati Ghosh, Assistant Professor, NLSIU
4. Ms. Anita Yadav, Research Associate, NLSIU
Editorial Advisory Board
1. Prof. (Dr.) N. R. Madhava Menon, Honorary Professor, IBA-CLE Chair, NLSIU
2. Prof.(Dr.) A. Lakshminath, Vice Chancellor, Chanakya National Law University, Patna
3. Prof. V.S. Mallar, Chair Professor, V.R. Krishna Iyer Chair on Public Law and Policy Choice, NLSIU
5. Prof. (Dr.) A. Prasanna Kumar, Director, Centre for Policy Studies, Vishakhapatnam
Contact: Manuscripts as well as questions should be submitted to the Editor at: ceera@nls.ac.in
SUBMISSION GUIDELINES:
What to Submit?
– Short Articles (3000 -5000 words, exclusive of footnotes).
– Case Comments, Legislative Briefs, Law Commission Report/Review (1500-2500 words, exclusive of footnotes).
– Book Review (700-1500 words, exclusive of footnotes).
How to submit?
All submissions must have a concise title with a maximum of 70 characters. Submissions made under the category of articles must contain an abstract of not more than 200 words along with a maximum of 5 keywords.
Formatting Guidelines
1. The paper should be free from all grammatical and spelling errors.
2. The submission must be word-processed and in Times New Roman. The main text should be in font size 12 and footnotes in font size 10, line spacing 1.5, and the text should be justified.
3. A one line gap must be maintained between all paragraphs and headings.
4. All hyperlinks must be in black colour and must not be underlined.
5. Heading levels should be clearly indicated.
6. Citations should appear as footnotes that are numbered consecutively. The Journal does not accept in-text citations and endnotes.
7. Tables, if included should be self-explanatory, numbered serially and accompanied by concise titles and sources.
8. Figures and images if included should be submitted in a separate file along with the manuscript in word format (.doc). Images and figures taken from external sources should be adequately captioned; sources acknowledged and should be of high resolution.
9. The manuscript must not contain the name of the author(s) or his/her institutional affiliation or any other information. A separate cover letter containing the name of the author(s), professional information, contact details, and other relevant information must be provided.
10. Only articles in English will be considered for publication.
11. Manuscripts submitted shall be understood as final versions, subject to subsequent corrections suggested by the Editor.
12. Manuscripts should be submitted electronically, in Word format, via e-mail to electronically, in Word format, via e-mail to ceera@nls.ac.in or submitted through our website – Submission | National Law School of India University (ceerapub.nls.ac.in).
Journal must not have been published elsewhere previously. If during the review process, the manuscript is accepted for publication in any other Journal; Book; any other format, including electronically, the responsibility shall solely lie on the author to immediately inform the Editor and withdraw the manuscript from the review process. On acceptance of any manuscript for publication, the author would be required to sign a ‘Consent to Publish and Grant of Exclusive Licence’ form.
1. For further information on style, see the CEERA Style Guide here.
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Editor, Editorial Board and the Advisory Board shall ensure that the manuscript submitted for review shall remain confidential while under review. Unpublished manuscripts undergoing review and the ones rejected would not be used by the Editor, Editorial Board, Reviewers or the Advisory Board in any way for the personal advantage of the Editorial Team without the written consent of the author. Privileged information or ideas obtained through peer review would be kept confidential and not used for personal advantage.
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All authors must disclose any financial and personal relationships with other people or organizations that could inappropriately influence (bias) their work or that may be construed to influence the interpretation of their submissions. Authors must disclose any interests in the title page file of the manuscript. If there are no interests to declare then the authors must state: “Declarations of interest: None”.
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