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1. Refouling Rohingyas: The Supreme Court of India's Uneasy Engagement with International Law

Author:
Malcolm Katrak and Shardool Kulkarni
Publication Date:
06-2021
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
The complex relationship between international and municipal law has been the bone of significant scholarly contention. In the Indian context, despite a formal commitment to dualism, courts have effected an interpretive shift towards monism by espousing incorporation of international law. The case of Mohammad Salimullah v. Union of India, which involves the issue of deportation of Rohingya refugees from India, represents a challenge in this regard owing to the lack of clarity as to India’s obligations under the principle of non-refoulement. The paper uses the Supreme Court’s recent interim order in the said case as a case study to examine India’s engagement with international law. It argues that the order inadequately examines the role of international law in constitutional interpretation and has the unfortunate effect of ‘refouling’ Rohingyas by sending them back to a state where they face imminent persecution.
Topic:
Human Rights, International Law, Law, Minorities, Constitution, and Discrimination
Political Geography:
India and Asia

2. India’s Sustained Economic Recovery Will Require Changes to Its Bankruptcy Law

Author:
Anirudh Burman
Publication Date:
04-2021
Content Type:
Working Paper
Institution:
Carnegie Endowment for International Peace
Abstract:
As India’s economy recovers from the coronavirus pandemic, Indian businesses need efficient financial structures to regain their ground. Key reforms to India’s Insolvency and Bankruptcy Code could fill these gaps. One of the key drivers of economic recovery in India will be the efficient movement of capital from inefficient firms to efficient ones. The economic downturn caused by the coronavirus pandemic has been severe, and India’s economy was one of the worst affected in 2020–2021. Though the economy is recovering faster than initial estimates, sustained economic recovery will not take place if stressed businesses cannot restructure their debts properly or if failing firms cannot be resolved efficiently. India’s bankruptcy law is key to solving these challenges. In 2016 India enacted the Insolvency and Bankruptcy Code, 2016 (IBC), which was a landmark reform to the nation’s financial system and the first comprehensive law to regulate insolvency.1 But the IBC has been suspended for a period of one year since the COVID-19-related lockdown was imposed in March 2020. In its place, India’s banking regulator, the Reserve Bank of India (RBI), has introduced a limited restructuring scheme for COVID-19-related stress in the meantime. Older mechanisms for insolvency that are still in operation have historically not worked according to expectations. As the one-year period of suspension comes to a close, this paper argues that bringing back the IBC—with adequate modifications—is an important prerequisite for sustained economic growth. India historically suffered from a patchwork framework of insolvency laws that either did not give lenders adequate powers to recover their debts upon default or only catered to the interests of certain kinds of lenders—to the exclusion of others.2 The IBC is a modern and comprehensive bankruptcy law that since its enactment has had a significant role in reducing the problem of nonperforming assets (NPAs), or “bad loans,” in India’s financial system. In the wake of the economic disruption caused by COVID-19, the Indian government suspended the operation of critical parts of the IBC. These changes meant that lenders could not trigger insolvency proceedings against defaulting businesses if the default occurred after March 20, 2020. While this suspension possibly prevented unnecessary business failures and provided a “calm period” for the economy, these measures have outlived their utility.
Topic:
Law, Finance, Economy, and COVID-19
Political Geography:
South Asia and India

3. Do gendered laws matter for women’s economic empowerment?

Author:
Marie Hyland, Simeon Djankov, and Pinelopi Koujianou Goldberg
Publication Date:
03-2021
Content Type:
Working Paper
Institution:
Peterson Institute for International Economics
Abstract:
reater legal equality between men and women is associated with a narrower gender gap in opportunities and outcomes, fewer female workers in positions of vulnerable employment, and greater political representation for women. While legal equality is on average associated with better outcomes for women, the experience of individual countries may differ significantly from this average trend, depending on the countries’ stage of development (as proxied by per capita GDP). Case studies from the Democratic Republic of the Congo, India, and Spain demonstrate this deviation. Especially in developing countries, legislative measures may not necessarily translate into actual empowerment, due mainly to deeply entrenched social norms, which render legal reforms ineffective. Women are more likely than men to be in vulnerable employment in low- and lower-middle-income economies but less likely than men to be in vulnerable employment in upper-middle- and high-income economies. Analysis of a 50-year panel of gendered laws in 190 countries reveals that country attributes that do not vary or change only slowly over time—such as a country’s legal origin, form of government, geographic characteristics, and dominant religion—explain a very large portion of the variation across countries. This finding suggests that the path to legal equality between men and women may be a long and arduous one. Nevertheless, the data also show that the past five decades have seen considerable progress toward legal gender equality. Gendered laws do evolve, suggesting a role for legal reforms in women’s economic empowerment.
Topic:
Gender Issues, Law, Women, Inequality, and Economy
Political Geography:
Africa, Europe, South Asia, India, Democratic Republic of the Congo, and Spain

4. Will India’s Proposed Data Protection Law Protect Privacy and Promote Growth?

Author:
Anirudh Burman
Publication Date:
03-2020
Content Type:
Working Paper
Institution:
Carnegie Endowment for International Peace
Abstract:
How should a legal framework for data protection balance the imperatives of protecting privacy and ensuring innovation and productivity growth? This paper examines the proposed data protection legislation in India from the perspective of whether it maintains this balance. In December 2019, the government introduced the Personal Data Protection Bill, 2019, in parliament, which would create the first cross-sectoral legal framework for data protection in India.1 This paper argues that the bill does not correctly address privacy-related harms in the data economy in India. Instead, the bill proposes a preventive framework that oversupplies government intervention and strengthens the state. This could lead to a significant increase in compliance costs for businesses across the economy and to a troubling dilution of privacy vis-à-vis the state. The paper argues that while the protection of privacy is an important objective, privacy also serves as a means to protecting other ends, such as free speech and sexual autonomy. A framework for protecting personal data has to be designed on a more precise understanding of the role of privacy in society and of the harms that emanate from violations of individual privacy.
Topic:
Science and Technology, Law, Privacy, and Data
Political Geography:
South Asia and India

5. Making the Law Count: Environment justice stories on community paralegal work in India (Version 2)

Author:
Vimal Kalavadiya, Vinod Patgar, Vijay Rathod, Mahabaleshwar Hegde, Manju Menon, Krithika A. Dinesh, Hasmukh Dhumadiya, Bharat Patel, Tania Devaiah, Jayendrasinh Ker, Harapriya Nayak, Santosh Dora, Vimal Kalavadiya, Sandeep Patel, Debayan Gupta, Bipasha Paul, and Kanchi Kohli
Publication Date:
12-2019
Content Type:
Special Report
Institution:
Centre for Policy Research, India
Abstract:
The Centre for Policy Research-Namati Environmental Justice Program trains and supports a network of community paralegals or grassroots legal advocates who work with communities affected by pollution, water contamination and other environmental challenges. They use the legal empowerment approach to make communities aware of laws and regulations that can help secure much needed remedies for these problems that often arise out of noncompliance or violation of environmental regulations. As part of their work, the community paralegals write about their cases to create public awareness on the use of law outside of courts as well as engage the readers in these issues. This is an updated collection of published stories written by paralegals and their team members working in coastal Gujarat, Northern Karnataka, Chhattisgarh and Keonjhar, Odisha. These are a combination of case stories and opinion pieces on issues of industrial non-compliance that have adversely affected many local communities. Each article tries to highlight the gap between the law on paper and its implementation in reality, while putting forth the conviction that putting law in the hands of ordinary people can shift the balance of power in support of justice.
Topic:
Civil Society, Environment, Law, and Justice
Political Geography:
South Asia, India, and Asia

6. Closing the Enforcement Gap: A community led groundtruthing of the expansion of a National Highway Project in Uttara Kannada

Author:
Centre for Policy Research
Publication Date:
12-2019
Content Type:
Special Report
Institution:
Centre for Policy Research, India
Abstract:
Linear projects like highways have the potential to change existing land use of large areas. These changes are not limited only to the stretches made for transportation of vehicles. The effects of construction are also visible on landscapes on both sides of highways. This study presents the findings of a two-year long groundtruthing study carried out between June 2016 and August 2018 along 187 kilometres of National Highway 66. The study is a collaborative effort of the Centre for Policy Research-Namati Environmental Justice Programme and communities from towns and villages situated between Karwar and Kundapur, especially the 27 Panchayats, in the district of Uttara Kannada in Karnataka. The study presents evidence of non-compliance of environmental safeguards resulting in social, economic and health impacts on the local communities in the project areas. It also highlights several aspects that were not taken into account in the project’s impact assessments. The study includes a broad assessment of the project’s scale of direct impacts. During the course of the study, the following types of non-compliance were identified: Permissions for blasting, groundwater and river water withdrawal were not taken; Dumping soil on wetlands and creeks caused flooding and salt water intrusion; The construction caused soil erosion and landslides along embankments; Non-submission of six-monthly compliance reports by the project proponent; Non-compliance of other laws and compensation agreements; The report includes a case study of a stone crusher unit operating in Bogribail village and causing water and dust pollution.
Topic:
Development, Environment, Infrastructure, Law, Social Policy, and Pollution
Political Geography:
South Asia, India, and Asia

7. Policy Note: Dialogues On Sanitation: Legal Perspectives on Sanitation in Urban India

Author:
Scaling City Institutions for India: Sanitation
Publication Date:
03-2019
Content Type:
Policy Brief
Institution:
Centre for Policy Research, India
Abstract:
The event was organised as a part of ‘Dialogues on Sanitation’ series and specifically focused on the legal and regulatory regime pertaining to urban sanitation. The event brought together senior policymakers, city and state level implementers, technocrats, members of the civil society and legal experts to brainstorm towards bettering the regulatory regime on urban sanitation. Several aspects such as the role of law and regulation in Faecal Sludge Management, rights of sanitary workers, and public-private participation in Urban Sanitation were discussed during the course of the workshop.
Topic:
Government, Law, Regulation, Urban, and Sanitation
Political Geography:
South Asia, India, and Asia

8. Synthesis Report on State of Water: A Look at the Legal and Regulatory Framework Governing Water Services across Jurisdictions

Author:
Maanav Kumar and Parag Mohanty
Publication Date:
03-2019
Content Type:
Special Report
Institution:
Centre for Policy Research, India
Abstract:
This study looks at the development of legal and regulatory framework governing drinking water and sanitation services in South Africa, England and United States. Around 780 million worldwide do not have access to clean drinking water and almost 2.5 billion people lack access to improved sanitation according to data published by Centers for Disease Control and Prevention. In such a situation, it becomes extremely important to study the legal and regulatory measures used internationally to control, manage and improve these resources. This study, covering South Africa, England and USA, sets out to identify, comprehend and analyze these legal frameworks and structures; examine the control exercised by national, state/provincial as well as municipal governments over water and sanitation-related questions; and the responsive measures being taken by them to preserve the water resources and their quality for future generations. The authors have observed that in presence of varying geographical, historical and social factors, while it would be impossible to compare each model against the other on the basis of merit, it becomes increasingly important for governments to balance the individual’s right to water with the planet’s ecological balance.
Topic:
Environment, Government, Natural Resources, Water, Law, Regulation, Legislation, and Sanitation
Political Geography:
South Asia, India, Asia, and Global Focus

9. Saving Secularism in India

Author:
Mani Shankar Aiyar
Publication Date:
09-2019
Content Type:
Research Paper
Institution:
Brown Journal of World Affairs
Abstract:
Elected three times to the Lok Sabha, the lower house of the Indian Parliament, and nominated by the President to Rajya Sabha, the upper house, for a further six years, Aiyar has served for 21 years in the Indian Parliament, been conferred the Outstanding Parliamentarian Award (2006), and been a Cabinet Minister for five years (2004-09). He has authored seven books, including Confession of a Secular Fundamentalist, and edited the three volumes of Rajiv Gandhi’s India.
Topic:
Religion, Law, Democracy, Citizenship, Religious Law, and Secularism
Political Geography:
India

10. Judging The Judges: Need For Transparency and Accountability

Author:
Ajit Prakash Shah
Publication Date:
07-2019
Content Type:
Research Paper
Institution:
India International Centre (IIC)
Abstract:
One subject that has been rankling me greatly for the past several months, and, I am sure, many of you, too, is that of the accountability of judges. The immediate trigger for my selecting this subject was, of course, the allegations made by a former employee of the Supreme Court of India against the present Chief Justice of India (CJI), and the events that followed. Over the past few months, several people have expressed concerns about how the judiciary must deal with such cases, and the accountability mechanisms that exist to monitor the judiciary in its actions. The issue still remains unanswered, and the incidents that took place reveal the many weaknesses in the in-house mechanism that is employed for resolving such matters. Without passing judgement on the truth or falsity of the allegations, I must admit there are certain stark facts that stand out which demand consideration. A permanent employee of the Supreme Court of India was removed from her post on the flimsy allegation of availing casual leave for half-a-day, and protesting against her seating arrangement. Her relative was dismissed from the same service soon thereafter. She made allegations of sexual harassment against the CJI, in response to which an unusual hearing took place on a Saturday, without a petition having been moved. In what was termed as a ‘Matter of Great Public Importance Touching upon the Independence of the Judiciary’, the person holding the highest judicial office in the land sat as a judge on his own case. Three judges attended that hearing, but the order that emerged was surprisingly signed only by two of those three, with the Chief Justice choosing to abstain.
Topic:
Law, Supreme Court, Accountability, Judiciary, and Legal Sector
Political Geography:
India