Journal on Law & Public Policy Vol-1 (2014)

“Income tax exemption to the third sector organizations in India: an analysis of the state-society synergetic relation from the perspective of re-democratization[1]

– Prof. P. Ishwara Bhat

The author critically examines the role of third sector organisations in India and the need for State government to encourage their activities through tax exemptions. The paper states that the State and Third Sector Organizations have been playing an imperative role in order to serve the society better. This paper analyses the conceptual understanding of the tax exemption clauses to the Third Sector Organizations thereby exploring the constitutional dimensions with  regard  to  exemption  of  tax  for  such  organizations.  An  analysis  on  the  legal concept of charitable purpose and the method of identifying the same in  light  of  legislative  and  judicial  developments  have  been  dealt  elaborately.  The author through this paper has analyzed various types of tax exemptions and deductions provided to Third Sector organizations under the Income Tax Act and its abuse by undeserving organizations and control mechanisms have been recommended.

“Dawn of a claim of legitimate expectation of fundamental right to property in land- a Myth or reality under the original constitution of India”

– Y R Rajeev Babu

The author  in his article highlights the law on acquisition and how the alleged indiscriminate acquisition of land, payment of inadequate compensation and want of rehabilitation resulted in the citizens resorting to violent protests against the Government. The Indian Constitution under Article 300A necessitates only one restriction on the power of eminent domain, that is, “Authority of Law”. Intention of the founding fathers of the Indian Constitution was to make Right to Property as a Fundamental Right and the same was made as a Fundamental Right in the original Constitution. The makers of the Constitution knew that land reforms could have been introduced within the framework of the original Constitution by a process of harmonisation of the Fundamental Rights and Directive Principles of State Policy. The above intention and assurance to the people  and  the  past  conduct  and  practice  of  the  Government  allowing  the  masses to enjoy the fundamental right to property have instilled a firm belief that the Government would not deprive the people of the fundamental right to property. In reality, this has generated a legitimate expectation of fundamental right to property and the people of India rightfully expected the Government to honour the legitimate expectation of fundamental right to property.

Law relating to Rape: An International Humanitarian Perspective

– Miranda Das

The author in her write-up deals with international humanitarian law relating to rape. The author has not only critically analysed the law on rape but has also  addressed  the  study  of  its  evolution  as  a  legal  category  along  with  the  evolution of international law has also been attempted. Thus, the paper presents multiple definitions of rape which have been codified within the international jurisprudence at different points in time in order that this phenomenon may be properly dealt with in the legal structure.

“A Call for Tobin Tax”

-Tanmoy Majilla[2] & Orlaine Pereira

The authors discuss the issue of Tobin  tax.  Tobin  tax  has  been  debated  globally  since  its  introduction  and  achieved more significance after global financial crisis, which demands a new financial architecture. The tax has been looked at as an instrument to prevent volatility and fluctuations in exchange rate and achieve financial stability in Capital Markets throughout the world. On the other hand the feasibility of having a worldwide consensus for Tobin Tax remains an open question. This article examines the question of necessity and feasibility of imposing a Tobin Tax.

“The ‘blues’ of the Green Tribunal”

– Savio J F Correia

The author in this article gives a critical assessment about the functioning of the National Green Tribunal. While the National Green Tribunal Act 2010 was enacted to fill the long felt need to establish specialized environmental courts that  would  overcome  the  increasing  complexity  of  environmental  litigation  and procedural rigidity of regular courts, concerns have been expressed over several critical provisions not being happily worded and leaving loopholes or scope for misinterpretation. Limiting the National Green Tribunal’s jurisdiction to “substantial questions relating to environment” would leave the given facts canvassed in a petition to the subjective assessment and mindset of an individual to judge. The author argues that litigant would be relegated to dealing with complex  procedural  technicalities  coupled  with  delay  tactics  and  perennial  delays associated with regular civil courts, more so in cases of execution.

Pre-Legislative Consultation – Efforts so far & reality

– Josyula Lakshmi[3] & Tejbir Singh Soni

The authors  in their write up state that the making of a law in India has had its historical legacies and is a reflection of its past in that it carries the English colonial past of its formulation and execution. Laws are made for society. They reflect the way societies organise themselves by way of harmonising any potential disruptions by adhering to set rules of living. In doing so, history shows that the socio-political elite plays a major part in spelling out what ought to be law and how it can best represent people’s aspirations and the society’s desire for maintaining normalcy. Most laws have come into being against the above mentioned backdrop and are hence time and again amended, reviewed and reinterpreted to suit the changing times and greater inclination towards human rights rather than pre-conceived societal rights alone. The act of putting law making into the public domain by way of taking inputs on draft legislations, consultation processes envisaged etc. give a new impetus to what law ought to be and how it can be a popular law if it is put to consultation at the making stage. While welcome, the process itself may not be sufficient to guarantee its acceptability. The paper tries to decipher the same.

“Judicial Accountability and Legislative Escapades: A Critical Evaluation of the 2012 Bill”

-Shivika Choudhary[4] & Sukant Singh Rawat

The authors iscuss the aspect of Judicial Accountability which has been an over-whelming concern currently in India. Amidst reports of misappropriation and impropriety, it is pertinent to ensure accountability so that the public continues to  entrust  its  faith  in  the  Judiciary.  Taking  cognizance  of  this  requirement,  the Judicial Standards and Accountability Bill 2012 had been passed by the Lok Sabha. The Bill lays down standards of judicial conduct and provides for investigation of charges by the Scrutiny Panel and the Oversight Committee. While the Bill awaits approval of the Rajya Sabha, it is desirable to analyse the provisions to understand the extent to which the Bill delivers on its promises without compromising judicial independence. This legislative note examines the impact of the Bill on the concepts of judicial accountability and judicial independence.  While  doing  so,  the  authors  examine  the  provisions  of  the  Bill related to investigation, the constitution of Scrutiny Panel and Oversight Committee, the definitional issues, and concerns regarding the termination of services of the judge. The attempt is made to ascertain the efficacy of the Bill resolving the existing issues rather than creating more complexities.

“Outsourcing Wombs: Exploring the Ethical and Legal Issues in Surrogacy”

-Harman Shergill

The article highlights the Ethical and Legal Issues in  Surrogacy.  After  the  success  of  various  other  processes  being  outsourced  from India such as business, legal and knowledge processes, the latest is the outsourcing of wombs. Over the past few years, India has seen an explosion of  fertility  services  that  promise  a  cure  for  the  increasing  rates  of  infertility.  The fertility industry is an integral part of the country’s expanding ‘medical tourism’. Surrogacy, being the practice of gestating a child for another couple or an individual in return for remuneration, has drawn much attention and raised several ethical issues.  India has emerged as a hub for surrogacy arrangements due  to  its  conducive  environment  owing  to  a  variety  of  reasons  including  lack  of  regulation,  comparatively  lower  costs  in  relation  to  many  developed  countries, shorter waiting time, the possibility of close-monitoring of surrogates by  commissioning  parents,  availability  of  a  large  number  of  women  willing  to be surrogates, and infrastructure and expertise comparable to international standards. On the other hand, there are issues concerning citizenship, surrogates’ payments, contract between the surrogate and the commissioning parents and exploitation.  To address such issues and to regulate surrogacy arrangements, the Government of India has taken certain steps including issuance of guidelines but till now, there has been no legal provision dealing directly with surrogacy laws to protect the rights and interests of the surrogate mother, the child and the commissioning parents. The proposed Assisted Reproductive Technology Bill, 2010 is expected to beef up surrogacy guidelines authored by the Indian Council of Medical Research (ICMR) that have often gone unheeded by the few  hundred  Indian  fertility  clinics  accustomed  to  writing  their  own  rules.  The author seeks to establish that there is an urgent need to initiate processes for a critical understanding of ‘surrogacy’, that has assumed the proportion of a transnational industry towards building a collective, feminist response to it.

“Genetically Modified Foods: Venom in our Salvers? – Consumer’s Right to Know” 

–Bhuvanyaa Vijay

This article examines the Genetically Modified Foods and its impact on our lives. The author explores  the  arguments for and against and the challenges pertaining to GM  Foods,  why  they  are  inept  for  consumption, how the arguments for its proponents find no tangible grounds and finally, how can the consumer’s right to health be protected by espousing their right to know about  the  food  they  consume  through  labelling  of  GM  Foods.    The  article  suggests that unless authentic studies do not validate safety of GM Foods for consumption, they may not be let loose for commercial distribution in markets. For those products regarded as innocuous and which ultimately do find a way onto our platter, labelling is the primary precautionary step to inform consumers and enable them to make guided choices. Till execution is lacklustre and the regulators  are  listless  and  dispirited  to  enforce  laws  prohibiting  GM  Foods,  mere  existence  of  regulations/laws  will  not  protect  consumer’s  interests.  We  cannot be left becoming the lab-rats and guinea-pigs of a technology which is an infant science, far too uncertified and greenhorn to be left unbridled among us.

Case comments:

“In .Re: Indian Woman says Gang Raped on orders of Village Court published in Business and Financial News”

–        Yashomati Ghosh

The author analyses the suo motto petition in the Supreme Court In Re: Indian Woman says  Gang-Raped  on  orders  of    Village  Court  in  which  the  author  critically  examines the incident of January 23, 2014, when the entire country was in a  state  of  shock  when  media  reported  that  a  woman  in  the  rural  villages  of  Bengal had been gang-raped at the orders of the Salishi Court (equivalent to khap panchayats) for having relationship with a man outside her community. The country wide protest and media outcry at this inhuman incident made the  Supreme  Court  take  suo-motu  action.  The  orders  passed  by  the  Court  assumes academic significance on several counts like recognition of the rights of the victims, upholding the vicarious liability of the state, widening the scope of compensation and rehabilitation measures etc., and necessitates the need for critical study.

“Esha Ekta Apartments Co-operative Housing Society Ltd. and others v. Municipal Corporation of Mumbai and others”

-Sanyukta Singh

This is a case comment by the author on ‘Esha Ekta Apartments Co-operative Housing Society Ltd. and others v.  Municipal Corporation of  Mumbai’.  The protracted  dispute  between  the  residents of the Campa Cola Society and Mumbai Municipal Corporation has been covered in several news reports. To most people, the demolition by the municipal  authorities  of  the  illegally  constructed  apartments  in  the  Campa  Cola Compound has seemed patently unjust, after the same have been home to the residents for decades. However, this entire matter was scrutinized and analysed in detail by the Supreme Court of India, which ultimately held that the demolition orders were legally sustainable. Unauthorised construction is widespread in our cities and possibly home to millions. Did the Supreme Court enforce the letter of the law at the cost of interest of the public or to safeguard it?. The author vide this case comment has sought to present the key facts of this case, the reasoning of the Supreme Court as well as analyse the key aspects that would be fundamental for resolving this issue.

Book review:

“ISRO is not just Rockets”

 – Kumar Abhijeet

The author review the book titled, ‘Touching Lives – The little known triumphs of the Indian Space Programme’, S. K. Das New Delhi: Penguin Books India (2007) S. K. Das New Delhi: Penguin Books India (2007) written by Kumar Abhijeet. The book classified into thirteen chapters is a reckon ranging from the mountains of Himalayas to  the  God’s  own  country  –  Kerala,  embracing  the  glittering  Ganges  in  the  East to the incredibly beautiful Lakshadweep Islands, revealing how human life have become keen by just one touch of ISRO. Most of the ISRO projects are ongoing in the remote areas where facilities are not so freely available as compared to cities. It has taken real life examples from various parts  of  the  country  sharing  experiences of people where ISRO has significantly made contribution in addressing their social problems. “ISRO has capabilities that are comparable to the best anywhere in the world, but what makes it different is the way in which ISRO’s satellites deliver services to the society, by shrinking both time and space.” The book introduces the other side of the Indian space programme and reveals it’s little know triumphs in overcoming the miseries of the common man. Touching Lives is a manifestation of competence of space based technology to address the social problems in India.