Archives: Book Chapters

The European Union (EU) is a self-conscious leader in the ‘fight’ against climate change and an active proponent of an ambitious global climate regime. Nonetheless, to a significant degree its efforts have been in vain. A global agreement to extend or replace the Kyoto Protocol has not been put in place and prospects for an ambitious and comprehensive global climate agreement seem slim. It is against this backdrop of global climate inertia, that the EU has started to change its tack. Fuelled by both environmental and competitiveness concerns, the EU is acting to extend the global reach of its ‘domestic’ climate change law. It is engaging in climate change unilateralism, albeit unilateralism of a particular and interesting kind. The EU’s climate change unilateralism is ‘contingent’ in the sense that the global extension of EU climate change law depends upon there being no adequate international agreement or third country climate action in place. As such the EU should be viewed as a reluctant unilateralist and as deploying contingent unilateralism as a means of incentivising urgently needed climate action elsewhere. In keeping with the theme of this volume as a whole, the EU is shaping the legal structures of global governance in a multi-polar world by testing the boundaries of permissible unilateral action and by experimenting with a form of action-forcing contingent unilateralism that conceives unilateralism as a necessary policy option but one which, ultimately, is second best.

India has taken a remarkably consistent approach to global climate negotiations; a principled position on climate change founded on attention to equity dimensions of the problem. This stance which is the setting on a metaphorical compass that has guided the last two decades of Indian climate policy, has strong implications for India’s arguments for the relative mitigation burdens of the industrialised and developing world and therefore for India’s approach to multilateralism applied to climate change.

About the book: The five major emerging national economies known as the BRICS—Brazil, Russia, India, China and South Africa—have gained on the world stage. For BRICS watchers, and anyone interested in the future of India’s burgeoning economy, twenty-two scholars have developed one of the most comprehensive volumes to date on India: Shaping the Emerging World.

India faces a defining period. Its status as a global power is not only recognized but increasingly institutionalized, even as geopolitical shifts create both opportunities and challenges. India experienced rapid growth through participation in the existing multilateral order—now its development strategy makes it dependent on this order. With critical interests in almost every major multilateral regime and vital stakes in several emerging ones, India has no choice but to influence the evolving multilateral order if it is to sustain its own interests.

In this chapter, I explore the perceived tension in constitutional and human rights discourse between the right to property, regarded as a classic civil and political right, and socioeconomic rights such as the rights to food, housing, and health, through a review of Indian constitutional law. This tension arises because the enforcement of property rights, through judicial review, imposes severe restrictions on the fulfilment of socioeconomic needs of the poor. Moreover, social redistribution programmes, including land reform, that seek to improve access to resources amongst the beneficiaries necessarily involve alteration of existing property arrangements, which might be seen as violating justiciable constitutional property rights.

India is a unique case study for evaluating this tension because at the time of its adoption in 1950, the Indian Constitution constitutionalised both civil and political rights like the right to property and social and economic rights, but only made the former justiciable. However, according to the conventional political and scholarly narrative, judicial enforcement of the right to property during the period 1950-1978 resulted in the invalidation of many socioeconomic reforms. This led Parliament to amend the Constitution several times in order to nullify the effect of the judicial decisions and culminated in the Forty Fourth constitutional amendment in 1978, which changed the character of the property right from a justiciable to a non-justiciable right. In contrast, post 1978; the Court through its pronouncements on the “right to life” made non-justiciable socioeconomic rights, like the rights to food, livelihood, health and housing, justiciable.

Based on my review of the Indian experience, I conclude that broad generalizations about the differences and conflicts between property rights and socioeconomic rights are overstated and tend to come apart in the light of historical experience. Ultimately, it is the practices of individual judiciaries in particular periods of time and in particular social, political and economic contexts, both nationally and internationally, that influence the grant of concrete relief and enforcement of such relief in particular cases.

The significance of a bicameral legislature in India lies in the fact that the parliamentary system has to deal with complex issue of administering and adequately responding to the tremendous diversity prevalent within Indian polity. However, the last three decades have seen arguments on abolishing as well strengthening bicameralism in union and state governments. What is the genesis and what should be the role of bicameralism in India?

This paper traces the evolution National Policies for Basic Services, Affordable Housing and Livelihoods for the Urban Poor, in relation to urbanisation in India. It analysis different progressive phases of the evolution of the urban policy frameworks and strategies and elaborates on the current strategies evolving out of the urban vulnerability matrix. It finally goes on to describe the conceptual underpinnings of new initiatives and programs being developed at the Ministry of Housing and Urban Poverty Alleviation, Government of India for supporting states and cities to enhance their capabilities to provide inclusive urban programs on the ground. Among others the paper covers, the developments and thought processes related to the Rajiv Awas Yogana, Affordable Housing support, program for the urban homeless and street vendors and the early development of ideas an urban livelihoods mission.

This chapter examines the international legal regime for subsurface uses and the extent to which existing treaty and customary law rules are capable of regulating new sub surface energy activities. This chapter begins with an overview of ‘ownership’ of the subsurface in international law, and then proceeds to examine how such activities either because of their location (e.g. subsurface) and/or effects (e.g. transboundary environmental effects) are subject to international legal rules.

India has made tremendous progress over the past few decades with regard to drinking-water supply in rural areas. Thus, while coverage in rural areas was estimated at 18 percent in 1974, it has increased to at least 72 percent. This first basic measure of access to water indicates that there has been tremendous improvement in the realization of the human right to water in rural areas of India. At the same time, full realization is yet to be achieved.

Despite tremendous medical advances, the instances of maternal and neonatal mortality occur quite frequently, especially in developing countries. Each year, more than half-a-million women die from causes related to pregnancy and child-birth, 99 per cent of which take place in the developing countries (UNICEF 2009). Nearly 4 million newborns die within 28 days of birth, 98 per cent of which occur in the low and the middle income developing countries. Most of these maternal and neonatal deaths are a result of direct causes—80 per cent of maternal deaths are due to obstetric complications including post-partum haemorrhage, infections, eclampsia and prolonged or obstructed labour, while 86 per cent of the newborn deaths are the direct results of the three main causes—severe infections, asphyxia and pre-term births. These large numbers of maternal and neonatal deaths can be avoided if skilled medical personnel are at hand, better care is provided during labour and delivery, and key drugs, equipment are available. Given that these resources are more easily available in a medical facility, delivering in a medical facility has been recognised as an important way to reduce maternal and neonatal deaths. Yet, the proportion of women who deliver in medical facilities remains abysmally low in many developing countries, including India.

Introduction Courts have for many years engaged closely with a variety of water law issues. The spectrum ranges from discussion of the fundamental right to water to irrigation and issues of water pollution. The judiciary has played an important role in adjudicating disputes on the basis of existing legal principles and statutes as well as in developing water law and water-related legal principles. Since the early 1990s, two significant changes have taken place in the water sector. These fall squarely in the context of the overall process of economic reforms and direct links between reforms in the water sector and economic reforms can be identified. Firstly, at the policy level a series of ‘water sector reforms’ have been introduced to restructure in particular the governance of the water sector with particular emphasis on the management of water. This includes, in particular, proposals to restrict the role that the government plays in managing water resources and institutional reorganisation from the local to the state level. These reforms are in line with the broader economic reforms that have swept through the country since the early 1990s. Secondly, over the past decade, an attempt has been made to entrench water sector reforms through the introduction of a series of water law reforms (Cullet, 2010:38) Most of these new laws are based on the principles of water sector reforms and seek to ensure the viability of reforms beyond project-specific interventions. These reforms have quick-started a process that will likely lead to an overhaul of water law in coming years. Over the past two decades, the response of the courts to the unfolding changes has not been linear. Indeed, the case law illustrates that courts have given completely different responses to the issues they were asked to address in different contexts and there is thus no single trend that can be identified. This chapter seeks to highlight some of the salient trends of the case law since the early 1990s in the context of water-related cases through the analysis of a limited number of selected cases. The case law reviewed here is neither limited to issues that can be strictly defined as issues of water law nor including all relevant water-related issues since water can be a factor in numerous situations in an indirect manner.

The recognition of one vote, one value by the Constitution makers is one of the fundamental tenets of our democracy. This is manifested in our electoral process which recognises the division of territorial constituencies as a vital component of defining how representative and, to a certain extent, how fair elections will be.

In this chapter, author argue that delimitation in urban local bodies is fragmented due to multiple institutions involved in the process of “electioneering” giving rise to – firstly, discretion and causing delay in conduct of election and secondly – over and under representation of electorate, particularly SC/ST and Backward classes.

Using the state laws, author make an inventory of how varied delimitation in urban local bodies is and using the electorate data from cities in India, he goes on to show gross under and over representation of the electorate even after delimitation has been conducted for these local governments.