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II II D E L H I NLUD STUDENT LAW JOURNAL 2017 VOL. 4 NATIONAL LAW UNIVERSITY, DELHI Patron in Chief Prof. (Dr.) Ranbir Singh Vice-Chancellor National Law University, Delhi Editorial Advisory Board Justice A.K. Sikri Justice Gita Mittal Judge, Supreme Court of India Acting Chief Justice, Delhi High Court Mr. Soli Sorabjee Prof. (Dr.) Upendra Baxi Former Attorney General of India and Distinguished Professor, NLU Senior Advocate, Supreme Court of India Delhi and Former Vice Chancellor, University of Delhi Prof. Simon Chesterman Prof. Timothy Endicott Dean, Faculty of Law, National Professor of Legal Philosophy and University of Singapore Former Dean of the Faculty of Law, University of Oxford Prof. B.B. Pandey Mr. Hemant Batra Former Professor of Law, Campus Law Lead Partner, Kaden Borris Legal LLP Centre, Faculty of Law, Delhi University Mr. Lalit Bhasin Partner, Bhasin & Co. Editorial Board Editor-in-Chief: Rohan Dhariwal Deputy Editor-in-Chief: Vivek Shah Executive Editors Aaditya Gambhir Kainaz Tanveer Kudrat Agrawal Rohan Bhatia Sannutha Shetty Tanaya Rajwade Faculty Advisors Mr. Yogesh Pai and Dr. Aparna Chandra Mode of Citation (2017) 4 NSLJ <page no.> NATIONAL LAW UNIVERSITY, DELHI PRESS Published by National Law University, Delhi Press Sector-14, Dwarka, New Delhi-110078 www.nludelhi.ac.in NLUD Student Law Journal is published annually Print subscription price: Rs. 200/- ISSN: 2277-4009 Copyright @ 2017 National Law University Delhi, India All rights reserved. Disclaimer: Views expressed in the NLUD Student Law Journal are those of the contributors. The Editors and National Law University, Delhi Press do not necessarily subscribe to the views expressed by the contributors. The Editors and National Law University, Delhi Press disclaim all liability and responsibility for any error of omission in this publication. In the case of binding defect, misprint, missing pages etc., the publisher’s liability is limited to replacement of the defective copy. All enquiries regarding the journal should be addressed to: Editor, Journal of National Law University, Delhi, National Law University Delhi, Sector-14, Dwarka, New Delhi- 110078 www.nludelhi.ac.in email: [email protected] Tel. No : 011-28034255 Fax No: 011- 28034254 VOL. 4 NLUD STUDENT LAW JOURNAL 2017 CONTENTS Farewell to Adjudicatory Leadership?: Some Thoughts on Dr. Anuj Bhuwania’s “Courting The People: Public Interest Litigation in Post-Emergency India” 1 In Memoriam: Justice Prafulchandra Natwarlal Bhagwati Upendra Baxi The Prima Facie Standard for Interim Injunctions in India 20 Aditya Swarup The Legality and Viability of Two-Tier Arbitrations 47 Nakul Dewan & Vinayak Panikkar Sovereignty, Development and International Economic Law: Some Insights from WTO Dispute Settlement 53 Sannoy Das Not So Civil – The Money Laundering Act and Article 20 72 Abhinav Sekhri Arbitration & Conciliation Amendment Act, 2015 - Enforcing Interim Orders, where is the Relief? 89 Ajar Rab Critical Analysis of the WADA Code 2015 with Regard to The Principles of Proportionality and Human Rights 101 Aahna Mehrotra & Aman Gupta Comments on the DIPP Discussion Paper on Standard-Essential Patents and their Availability on FRAND Terms 115 Yogesh Pai Rethinking “Non-Arbitrariness” 133 Shankar Narayanan Transitional Justice: Economic Social Rights through a Gendered Lens 144 Aishani Gupta Obscenity in the Kiss 158 Shrutanjaya Bhardwaj FAREWELL TO ADJUDICATORY LEADERSHIP?: SOME THOUGHTS ON DR. ANUJ BHUWANIA’S COURTING THE PEOPLE: PUBLIC INTEREST LITIGATION IN POST- EMERGENCY INDIA In Memoriam: Justice Prafulchandra Natwarlal Bhagwati Upendra Baxi* I. Obituary of PIL? Poignantly, as this essay comes to its close, the world stands bereft of Justice Bhagwati. He would be recalled variously, most notably as a master craftsperson, founder of judicial ‘activism’, inaugurator of the legal aid movement and overall as a great and gifted Justice (and the seventeenth Chief Justice of India). Prominent among the handful oft-cited Justices by appellate constitutional justices and lawpersons, he worked tirelessly for people-judiciary partnership in the luminous companionship of Justices Krishan Iyer, O. Chinappa Reddy and D.A. Desai—whom I have called the Four Musketeers of the new Indian constitutionalism.1 It is not my intention here to focus on this legendary Justice or elite and popular perceptions about him. Chief Justice Bhagwati would have agreed with much of the criticism that Bhuwania offers in this book;2 like most Justices, Justice Bhagwati also shared ‘Après moi le * Emeritus Professor of Law, University of Warwick; Distinguished Professor, National Law Uni- versity, Delhi. This article has been inspired from a discussion at National Law University, Delhi hosting Professor Upendra Baxi, in conversation with Dr. Anuj Bhuwania for a talk on the legacy of PILs, and Dr. Bhuwania’s new book, Courting the People: Public Interest Litigation in Post-Emer- gency India. 1 See Upendra Baxi, ‘The Promise and Peril of Transcendental Jurisprudence: Justice Krishna Iyer’s Combat with the Production of Rightlessness in India’ in C Raj Kumar and D Chockalingam (eds), Human Rights, Justice and Constitutional Empowerment (2nd edn, OUP 2010). See also P N Bhag- wati, My Tryst with Justice (Universal Law Publishing 2015); Ram Kishore Choudhury and Tapash Gan Choudhury, Judicial Reflections of Justice Bhagwati (Academic Foundation & Publication Pvt Ltd 2008). Justice Michael Kirby, then a Judge of the Australian High Court, fondly described Justice Bhagwati as a ‘guide, mentor, and inspiration’ and said that Justice Bhagwati was a ‘living symbol of the principle “equal justice under the law”’. For an earlier appreciation, see Moolchand C Sharma, Justice P N Bhagwati: Court, Constitution, and Human Rights (Universal Publishing House 1995). 2 Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (CUP 2 NLUD Student Law Journal Vol 4 deluge’ (‘after me, the deluge’3) syndrome. He stood for disciplined judicial craftspersonship that common law and constitutional law offers. He believed that a runaway judicial discretion should be chastened by judicial discipline and that judicial creativity should at every step be guided by constitutional vision. He, many a time (in personal conversations) decried what he termed the ‘reckless activism’ of some of his successors on the High Bench. But he would never agree, as I do not, with Dr. Anuj Bhuwania in scripting an obituary of public interest litigation (hereafter, PIL) in the constitutional courts of India, which I have always called ‘social action litigation’ (hereafter, SAL). Protocols of speech disallow speaking ill of the dead: but Dr. Bhuwania’s long funeral speech departs blithely from such conventions. What is more, this death does not presage any newly desired constitutional order. I maintain that this obituary is premature. My reasons for the distinction between SAL and PIL will be detailed later but I must say this much at the outset: continued inadvertence to this distinction is analytically as well as sociologically disturbing and dangerous. II. How Shall we Understand Justice Bhagwati – as an Enigma or Promise of New Constitutionalism? Perhaps, a key to understanding Dr. Bhuwania lies in his approach to Justice Bhagwati. No doubt he salutes him for his post-emergency judicial activism, but he has grave reservations concerning activism itself, or at least the kind of activism the learned Justice designed. Dr. Bhuwania rightly names the learned Justice as the ‘chief architect of PIL in India’ but finds it helpful to analyse not so much his utterances as a Justice, but a post-retirement article as exemplifying the overall judicial position. Although there is nothing wrong in reading a Judge’s retrospective reconstruction of her judicial ideology on that basis, this must be distinguished from her actual judicial discourse and performance. Besides, it must not be overlooked that justicing is a collegiate and institutional action over time. Since the Supreme Court does not have the system of a single Justice panel deciding the case, it is impossible to speak of a Justice enjoying ‘the hegemonic judicial position in India’.4 2017). 3 One translation refers to ‘flood’ not ‘deluge’; another refers to ‘chaos’, the third signifies ‘I don’t care what happens’. The last suggests a sort of quietism; and the first, a sense of egoistic engage- ment or satisfaction. One way of giving meaning to SAL is that it is a field of complexity and contra- diction, marking many a constituently sincere feats of SAL creativity. See for mathematical theory aspects, John H Holland, Emergence: From Chaos to Order (OUP 2000); and the brief survey by Geoffroy Hodgson, ‘The Concept of Mergence in Social Science: Its History and Importance’ (2010) 2(4) Emergence 65; Dave Elder-Vass, The Causal Powers of Social Structures: Emergence, Structure, and Agency (CUP 2011). 4 Bhuwania (n 2) 114. 2017 Some Thoughts on Dr. Anuj Bhuwania’s Courting the People 3 With this caveat in mind, one may note the three positions of ‘activism’ that Justice Bhagwati carefully distinguished – the ‘technical’, ‘juristic’ and ‘instrumental’ activism.5 (I had described ‘juristic activism’ as a typically Indian contribution to the genre of ‘activism’, as early as 1975). In the last category, it is the ‘constitutional values’ which acquire salience; these values are primarily found in the Directive Principles of State Policy which should ‘motivate’ the Justices to ‘susbtantivation of social justice’.