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RE-THINKING STRICT SCRUTINY FOR ADMINISTRATIVE AGENCIES: THE STORY OF THENATIONAL COMPANY LAWTRIBUNAL IN INDIA
Get PDFHaving kept the wider Indian constitutional context in mind, the
author has used Chapter 27 (National Company Law Tribunal and
Appellate Tribunal) of the Companies Act, 2013 as the theoretical
basis to argue for strict scrutiny in administrative review. The
author argues that (a) in order to ensure that the creation and
operation of such specialized agencies is in tandem with settled
administrative law principles, judicial deference and the
presumption of informed decision making by the Executive must
necessarily be diluted in order to ensure that the judicial authority
exercised by the Tribunal is constitutionally permissible. The
argument of the author in this context revolves around the reliance
which is made by the parent statute on the recommendations of
“expert” fact finding committees (which is the report of the Justice
Eradi Committee for the purposes of the author’s argument) and
the required consistency of the actual creation of administrative
agencies based on such recommendations. The author also places
reliance on Prof. Upendra Baxi’s efficiency vs. fairness
hypothesis, as contained in his landmark piece The Myth and
Reality of the Indian Administrative Law in order to argue extend
the problems of the judiciaries’ cost-benefit calculus model to
Tribunal specific cases.
The author further argues that (b) the extent to which the
Companies Act confers subordinate law making power to the
Executive, amounts to an excessive delegation of authority,
particularly because of the manner in which the Ministry of
Corporate Affairs continues to meander its way around the black
letter rule of law by indirectly taking those decisions which it
cannot take within the mandate of the Companies Act itself, for
purposes of its convenience (as opposed to strict public necessity) in commercial policy matters. The argument of the author in this
section is based on (a) the need for the legislature to strictly define
the territory within which a quasi-legislative act6 which is not
explicitly within the domain of the executive’s law making
authority is to operate and (b) to clarify what the law is, for it to be
“justifiably” implemented, given certain well established
ministerial practices which go against the letter rule of the law.
This is possibly the only way in which an administrative Tribunal
can uphold the rule against bias in its functioning by upholding the
letter rule of the law against the whims and fancies of the
government in power. The last and final leg of the author’s
analysis will be to argue that (c) in order to avoid being entirely
encircled by the rule of administration and not the rule of law, the
appointment of judicial members to the Tribunals in question must
necessarily be reformulated and made in accordance with settled
procedure, and with a higher difference ratio in order to ensure
sufficient space for neutrality, even if political interference in
appointments were to take place
BALANCING OF PRIORITIES: A CHRONICLE OF JUDICIAL REVIEW OF PUBLIC POLICY ON GROUND OF ARBITRARINESS
Get PDFThrough this article the Author proposes to analyse the recent trend of
judicial review in cases where governmental policies are involved. In light
of the recent Coal-Gate judgement, and previous natural resources
allocation judgements like 2G, this assumes great importance. In this paper,
the author has scrutinised the judicial treatment of policies in two parts. In
first part, the judgements relating to natural resource allocation are
examined and in second part, the cases involving competing public policies,
through case study of environment-development jurisprudence is surveyed.
The author concludes that judiciary has usually shown greater deference,
which author believes to be the appropriate response, considering the
separation of power doctrine and checks and balances principle. However
certain conclusions emerge regarding this judicial response. First, as per
the Courts are reluctant to question a ‘policy objective’ which is an
executive prerogative and cannot be questioned unless it is manifestly and
patently against Constitution. However counts have sought to examine
individual decisions of government as to whether it is in accordance with
stated governmental policy. Second, the means adopted in pursuance of
such objective are ‘presumed’ to be valid and Government must be given a
‘wide margin of appreciation’ (to use the term) and Court should not
ordinarily substitute its views on how best to achieve public interest in place
of executive. So this is liable to only a thinner judicial review looking at
patent irrationality (Wednesbury principle). Third, when competing public
interests are applicable, such as public trust doctrine vis-à-vis state
discretion in allotment policy or environment vis-à-vis development, Court
should adopt a more flexible role, which would examine the policy in
greater detail, but still not substitute its own views and give Government the
benefit of doubt (margin of appreciation) apart from initial presumption
THE PLIGHT OF REFUGEES IN INDIA
Get PDFAlthough India is the second largest host of refugees in South Asia, it is
neither a party to the 1951 Convention or its Protocol nor does it have a
refugee specific national law that protects the rights of refugees. The main
aim of this project is to bring to light the various instances of discrimination
and harassment faced by refugees in India and to advance a case for the
creation of a legislative framework that will concretely address and alleviate
the difficulties faced by them, in order to do so, the paper will analyze three
main issues . Firstly, why has India been reluctant to become a party to the
1951 Convention or its Protocol and why does it not have a refugee specific
national law that protects the rights of refugees? Secondly, this paper will
argue that even though India is not a party to the refugee convention, it is
bound by its other international obligations as well as by the Constitution of
India to provide to refugees certain basic rights. In this regard this paper
will analyze pertinent judicial decisions that have ameliorated the conditions
of refugees in India. Finally this paper seeks to bring to light the many forms
of discrimination and harassment that refugees in India are for forced to
endure precisely because of the lack of a legal framework in India that
governs their rights. The paper will then conclude with a call for a national
legislation on the rights of refugees in India
EQUALITY OF INFORMATION ONLINE WITH FOCUS ON TRAI’S INTENTION TO RESTRICT EQUALITY
Get PDFInternet has now acquired a very important part in our life. You
find any difficulty, you Google it, you don’t want to go to market,
you Flipkart it, you want to watch TV series, you Netflix it. The
reason that all these things are readily available to us is net
neutrality. Every content online is treated equally. But Telecom
Regulatory Authority of India is going to change the face of the
internet from what we see it today to a platform where users will
be required to pay to access each content on internet. Bringing up
the consultation paper on OTT, TRAI is all set to put a bar on
Freedom of Expression
JURISDICTION AND IMMUNITY ISSUE IN THE ENRICA LEXIE INCIDENT (REPUBLIC OF ITALY VS. UNION OF INDIA)
Get PDFDOES THE NATIONAL FOOD SECURITY ACT 2013 TEST INDIA’S OBLIGATIONS UNDER THE AGREEMENT ON AGRICULTURE?
No full textThe Agreement on Agriculture, which is a product of the Uruguay rounds
negotiations, sought to liberalize global agricultural trade. However due
to both the complexity of its structure and the political delicacy of
agriculture in several areas of the world it was seen as restrictive
towards to food security polices of developing countries. Notably this
was one of India’s prime concerns at the Bali Ministerial Conference
held in December 2013, especially because of the new National Food
Security Act. This Essay seeks to highlight the relevant provisions of the
Agreement and the disciplines it imposes upon the Food Security Act and
considers possible avenues for increasing the policy space to promote
food security
FOREIGN DIRECT INVESTMENT,NATIONAL SECURITY REGULATIONS, AND ECONOMIC GROWTH – RECOMMENDATIONS FOR FDI POLICIES IN INDIA
No full textIn recent years, national economies have emerged in Asia. One
major player in the global economy is India. India is set to
surpass China in coming years with India’s current rate of
growth. As a result of growth in India, foreign nations are
investing (foreign direct investments or FDI) in India at
increasing rates. A host of regulatory and policy issues surround
FDI in a growing economy such as India’s. India’s newly elected
government is making strides in increasing the attractiveness of
India as an FDI destination. Given this effort in the foreign
relations arena, it is imperative for law-makers and regulatory
bodies in India to evaluate their operations to ensure that India’s
political speech to foreign businesses is in sync with the legal
frameworks in place. This article explores the FDI framework for
the United States, one of the largest FDI destinations in the
world, and international guidelines that investors seek in a host
country. At its close, the article suggests recommendations for
India’s FDI policies as they relate to two specific areas –
national security and economic polic
WHAT IS THE FAIRER ALTERNATIVE TO THE AUSTRALIAN FAIR ENTITLEMENTS GUARANTEE?
No full textWith the collapse of high profile companies such as Ansett Airlines
Pty Ltd, Heath International Holdings (HIH), and One.Tel Ltd the
Howard Coalition Government in Australia (1996-2007), established
the General Employee Entitlement and Redundancy Scheme (GEERS)
and then in 2012 was replaced by the Fair Entitlements Guarantee
Act(FEG), which is like its predecessor GEERS funded by the
Australian taxpayers to provide a limited protection for employee
entitlements in the event of corporate insolvency. Since its inception
the efficacy FEG shares the same GEERS criticism on a variety
grounds: first because this involves taxpayers bailing out insolvent
companies, and second because government support of this kind may
discourage employers and their officers from being accountable for
employee entitlements. A third objection to FEG arises from the issue
of the fairness of a system which requires taxpayers to bear the cost of
corporate failure. This paper synthesises these arguments and
explores the potential for an employer-government funded scheme to
protect employee entitlements as an alternative to FEG
THE EVOLUTION AND CURRENT REVOLUTION OF COMPANY LAW & CORPORATE GOVERNANCE
No full textHistory has always witnessed about several frauds and scams in corporate
sectors throughout the world. The only answer to these failures was lack of
good corporate governance initiatives by the countries. In India, since
1990s, the regulators, policy makers and lawyers continuously and
effortlessly have been working for the better corporate governance&
economic development. As result, the Companies Act 2013 and Securities
Law Amendment Act 2014 have reframed several weak corporate
governance norms & bring new provisions to uplift the corporate sectors.
But it is interesting to watch, how much these new laws and policy
guidelines help corporates to grow. This short article divided into three
parts, first part; discuss about the development of corporate governance,
second part; explain about the recent development in corporate governance
particularly after the Companies Act 2013, and final part of the paper
discuss about the new initiatives taken to keep a tap on corporate frauds &
scams
RE-CONSIDERING THE AMENABILITY OF NON-STATE ENTITIES TO THE WRIT JURISDICTION OF SUPREME COURT
Get PDFThe meaning and interpretation of the term ‘state’ under article 12
of the constitution has been a subject matter of discussion in a
number of cases. At many instances, the meaning of state has been
interpreted liberally to include other authorities or
instrumentalities within its fold, which act as agencies of the state.
But unfortunately, the courts have undermined the liberal and
evolved meaning of the term ‘state’ through some recent rulings,
by implying a bar on the exercise of writ jurisdiction of the
Supreme Court under Article 32 against those entities, which are
not ‘state’ within the realms of article 12 as per the government
control test. In this backdrop, firstly, we shall take a look at the
evolution in the meaning of ‘state’ as per article 12 and how the
government control test loses its significance in the current times
and must be replaced by the public functions test. Secondly, we
shall examine how some of those entities, which may not be
included within the meaning of ‘state’ as per the government
control test, may still infringe fundamental rights. Thirdly, we shall
distinguish between the writ jurisdiction of the high courts under
article 226 and the Supreme Court under article 32. Finally, we
shall establish that not falling within the meaning of ‘state’ under
article 12 as per government control test must not act as a bar to
invoke writ jurisdiction under article 32. The primary
consideration for deciding upon the writ amenability must not
emanate from the extent of government control but from a close
examination of its functions, the connection of these functions with
the fundamental rights of the public at large and its power and
capability to infringe fundamental rights