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
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”
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”
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.
South Delhi Municipal Corporation v. Radhey Shyam (MANU/DE/2076/2014)
Badrinath Srinivasan& 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
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.
 B.A. (Law) LL.B. (S.D.M. Law College, Mangalore, India), LL.M. (West Bengal National University of Juridical Sciences Kolkata, India). (email@example.com