Journal of Law & Public Policy Vol-3 (2016)
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.
Role of Delegated Legislation in Implementing the National Food Security Act 2013: e Karnataka Experience
Dr. Neetu Sharma & Ms. Neenu Suresh
The authors in the article argues that ‘Rulemaking’, in many cases, provides an opportunity to plug lacunae left by the parent law and in many others the impact of the parent law can be potentially amplified. While framing aspects the rules under National Food Security Act, 2013 is challenging for States upon whom the major task of implementation rests, it also opens up opportunities to further Food Security. However, the current trend in rule-making is a matter of grave concern, not only because the process has not gathered momentum but also because in many of the states rather than augmenting the Act, state governments are using this as an opportunity to dilute the existing benefits. Centre for Child and the Law (CCL), National Law School of India University (NLSIU), Bengaluru, got civil society, academics and grassroots functionaries involved in the process to draft state rules for Karnataka. The Centre used this as an opportunity to ensure coordination among the roles of various State Departments as envisaged in the Act and the same has also got reflected in the Draft Karnataka State Rules. It is an opportune moment to share some of the insights as well as challenges from the Karnataka process, when most of the states are once again at the threshold of another extended deadline for implementation of the Act. The authors discuss the effect of delegated legislations in the main context of National Food Security Act, 2013 and make a critical analysis of the role of different governments in such respect.
Access to Quality Legal Aid Services Provided by e Legal Aid Counsels in Delhi: A Critical Scrutiny
Dr. J. S. Mann
The author in this article states that there is no dearth of Statutory Enactments on Right to Free Legal Aid in India. Legal Aid system is not functioning effectively and not catering the requirements of the beneficiaries. Legal Aid Services provided by the empanelled Legal Practitioners are free of charges but people in majority are reluctant to approach free legal aid authorities for availing such services. The Legal Aid System, even after spending huge resources, has not been able to achieve the objectives for which the system of Legal Aid has been created, in India. The given research paper has examined two prominent components in the form of Competency and Commitments of Legal Aid Counsels and their impact on the quality of Legal Aid services before various Courts in 11 Districts and High Court of Delhi.
Patent Standardization and Implications on Competition in Mobile Telecommunications Market
Dr. Sandeep S. Desai & Aditya Mitra
In a spate of Litigations initiated by Ericson on Companies like Intex, Micromax and more recently Xiomi the issue of patent infringement with respect to the use of 2G and 3G technology in mobile communication has become major issue in both competition law as well as intellectual property rights. The major area of convergence between the two subject areas comes with the introduction of Standard Essential Patents (SEP). These SEP’s are part of a step that aims at standardizing technology which is essential in nature and concomitantly ensures that patent rights do not become a major hindrance to innovation, efficiency and technological development. Conversely however it can be argued that the extension of patent protection to standardized technology is a monopolistic move which allows major players to capitalize on the requirement of these basic technologies by emerging or relatively smaller players in the same market. Very few cases on the matter have been decided till date, fewer so in India. The matter becomes highly contextual considering the overwhelming notions of good market functioning and economy or industry as well as notions of fairness regarding the same which become the metrics to decide these matters. Such matters therefore include two categories of stake holders; the major players, who are dominant in the market and the upcoming and smaller players in the emerging market. An essential issue that must also be dealt with in conjunction, when analyzing the situation of these stakeholders is the delineation of the relevant market in which the conflict arises. From the perspective of the emerging players it is seen as a case of monopolistic abuse by major players, considering that these Patents are standard and are therefore an absolute necessity in any form of production. From the perspective of the major firms the SEP’s are a product of major investments in research and development, thus from their vantage point the dominant firms, if they cannot enforce their patent rights then the investment made by them amounts to nothing. The paper is a major study on the understanding of such companies and their workings and their relation to Competition Law.
Effects of Dynamic Pricing on Consumer Protection – A Review
In today’s changing environment world over, pricing of products and services are going through continuous innovation across various sectors. What was once a paid service or a product is no longer necessary to own that product to avail the same service. Many products and services are charged to customer entirely on variable models across different industries. As time and money become extremely interchangeable, providers of these products and services continuously and newer ways to price their products and services which will provide them with higher benefits and profits. Under the above changing scenario, while one may very well appreciate and argue that the cost of these products and services have come down, it is the Consumer who is the recipient of these products and services and protected by law to ensure against exploitation. The paper critically assesses the effects of such dynamic pricing models on consumer protection. Dynamic pricing could be the variation in price charged to customer based on point of sale as also time of usage of a product or service. However, it may be noted that there is no change in the cost of production of such products or services to the manufacturer. If that is so, is it justified to charge differential pricing of the same product or service to the consumer? Does it not affect consumer protection against unfair trade practices or unfair pricing?
Medico-Legal and Ethical Issues in Living Donor Organ Transplantation
Dr. Sanjay Rao
The author having a practitioner’s view of the topic states in his paper that Organ transplantation is the only lifesaving treatment for patients with organ failure. Kidneys and livers are the commonest organs transplanted. Cadaveric donors provide organs for transplantation. Improving success with transplantation has resulted in increasing number of patients opting for this therapy, resulting in a severe shortage of donor organs. Living donor transplantation has become a major alternative source of organs. Live donor transplants are carried out from organs donated by healthy adults. The Transplantation of Human Organs Act mandates that organ donors be first degree relatives or those “emotionally related” to the prospective recipient. Donation for consideration is illegal. Similar laws exist in most countries. However, living donor organ transplantation is controversial. The continued shortage of donor organs has resulted in a nourishing black market. Organ trade, trafficking and tourism have resulted in exploitation of poor organ sellers. Though unrelated and commercial organ donations bear the promise of sharply increasing organs supply, controversies remain. Hence, the paper critically discusses the Legal, Ethical and Moral challenges in this complex area of live donor organ transplantation. He also attempts to evolve a just system that protects the needs of all stakeholders.
Driving Innovation for Neglected Diseases: A Policy Perspective
The author argues that ‘Patent’ was established to drive innovation in all aspects of life, but today the system of patents has failed to promote uniformity in innovation, especially in the case of neglected diseases. Marred with monopolistic prices, supernormal profits, evergreening and duplication and wastage of resources, the existing system of patents has in effect legitimized the profiteering activities of drug companies. As there is a disturbing uneasiness in the very idea of drug companies profiteering from the sale of what are in effect indispensible means of health, there is an urgent need to take stock of the defects of the existing system and to come up with an improved system for incentivizing innovation. One mode for achieving the same is by devising new policy solutions in alignment with a more development driven agenda. However, the article has limited to exploring few such policy solutions for driving drug development for neglected diseases.
Section 112 of the Indian Evidence Act and Contrary Scientific Evidence
The Supreme Court in the recent case of Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik held that proof based on scientific advancement, which is accepted by the world community to be correct, will override conclusive proof envisaged under section 112 of the Indian Evidence Act, 1872. In this paper, the author argues that this approach is problematic since it contravenes the express statutory prohibition of adducing evidence against the presumption of legitimacy except in the instances laid down in the provision. However, this approach of the court is not sudden but is in line with a balance that the judiciary has been attempting to strike in its jurisprudence on section 112. While on one hand the question is whether the policy is rationale and on the other is the lure of the objective, scientific truth which the court considers its bounden duty to observe. The development of science has thus raised complex questions before the court which has forced it to make a choice amongst competing considerations. Notwithstanding the merit of these considerations the choice itself has resulted in judicial confusion thereby making the circumstances ripe for legislative intervention.
The Armed Forces Special Powers Act: The Way Forward
Aditi Sinha & Salona Mittal
The Armed Forces Special Powers Act, 1958, one of the smallest acts in the country with only seven sections has been at the helm of public debate, nationally and internationally. The authors analyse the circumstances in which the Act was promulgated, the controversial provisions of the Act, the judicial stance on its constitutional validity and whether only the Army is at fault. in this regard, the paper takes into account alleged cases of human rights violations in one hand and on the other it attempts to present the Army’s perspective on the same. Should the Act be done away with solely based on the fact that the Army has been given extensive powers or is there a way forward? The following paper attempts to study the various aspects of this controversial act and arrive at an impartial and feasible denouncement.
The Enemy Property Ordinance, 2016: Examining the Constitutionality of the Legacy of the Partition
The President promulgated an Ordinance on the 7th of January, 2016 called the Enemy Property (Amendment and Validation) Ordinance, 2016; that allowed the Government of India to seize control of, and alienate all property that belonged to ‘Enemies’ of the Country, even if their legal heirs were law-abiding Citizens of India. The given paper seeks to examine the unpredictable and oppressive law pertaining to Enemy Property in India, in the context of the Ordinance making power granted to the Executive under the Constitution as well as the power of the Legislature to invalidate Judicial Decisions retrospectively; all of which pose crucial legal questions to the Supreme Court in the inevitable challenges to the Ordinance.
The Need, the Greed and the Media : Regulating the Unregulated
Abhishek Patil & Bhagirath Ashiya
In a society where millions elect a handful of representatives to make the right choices, the media has impeded the state’s path towards heights of arbitrariness, as it not only vents public opinion but acts as a formidable pressure group against the actions of the State. The Indian media, which played an active role in the freedom struggle, today inherits a slightly different role of disclosing the laws of the State. The traditions of Pluralism and Divergent Opinion are muddled under rising Regionalism, Ideological divides, Corporatization and Sensationalism rather than Sensitization. On these lines placing media as a fourth pillar has a partial accomplishment, as the media in India is highly credited for highlighting problems but has failed in solving one. Further a question arises on its credibility in the light of allegations of paid-news and unnecessary hype creating unrest beyond boundaries. The development of a representative democracy can be expressed as a part of the democratic learning curves that the masses face, as electoral education and public knowledge is one of the essential facets in exercising the right to vote. The need for regulation of broadcast media is one of the long standing issues which require an elaborate discussion considering the balance between freedom of press and national interests affected by the unregulated media. The paper deals with the question of the need for requisite checks and balances over the Media and the resultant impact on democratic principles and constitutional ideals with media as a fourth estate.
India – Certain Measures Relating to Solar Cells and Solar Modules (WT/DS/456)
Dr. Kavitha Chalakkal
The author makes a critical analysis of the case on Measures Relating to Solar Cells and Solar Molecules and states that the decision of the WTO DSB Panel in the India-Certain Measures to Solar Cells and Solar Molecules is concerned with certain Policies of the Government of India with regard to the Implementation of its Jawaharlal Nehru National Solar Mission. The United States argued these measures were hampering International trade and was nullifying and impairing its Trade Benefits. The Panel after deliberations stated that the Indian DCR Measures expressly stipulate the origin of specified goods that may be used by SPD’s for bidding eligibility and participation under each of the relevant batches of the Mission and can be considered as a Trade Measure. The panel found that the Indian Measures were inconsistent with its International Trade Obligations, especially those under GATT 1994 and TRIMS. hence, the following paper focuses on the relevance of the rising needs of developing countries for increased use of renewable resources for energy and also the recent efforts taken by India to boost its domestic economy.
An Analysis of the US Supreme Court Judgment, ‘Association Molecular Pathology, et al. v. Myriad Genetics Inc., et al’
Siddhanth Tripathi & Tanya Chaudhry
The paper is a comment on the case related to on the US Supreme Court Judgement in the Association Molecular Pathology v Myriad Genetics’. The authors in their paper state that the parties disputed the scope of what may be patented under 35 U.S.C. §101. The Association for Molecular Pathology (“AMP”) argued that the form and function of isolated DNA is the same as that in nature, thus is not patentable. Myriad countered that the patent claims fall with the plain language of §101 and that the patents are for inventions-thus patentable. Since, this case has garnered significant interest in the IP community as the case has clarified the bounds of patentable subject-matter; it needs to be analyzed to determine its impact upon the Pharmaceutical, Biotechnology industries and other communities. The authors seek to scrutinize the broad aspects which determine the patentability of a subject matter with special reference to the man-made DNA structure as biotechnological inventions and the impact of the holding of Supreme Court on the future R&D endeavors in relation to Human DNA. Finally, the authors analyse the various uncertainties which were left unanswered by Supreme Court in the light of earlier Judgments of Supreme Court of USA.