Disability Rights at a Crossroads

The primary objective of this chapter is to advance claim for the recognition of new category in public law, physical and mental disability. While making the phenomenon of public law exclusion of persons with disability a structural issue, it argues for the inclusion of persons with disability in constitutional discourse and recognition of physical and mental disability as one of the distinct fields of public law. The crux of the arguments advanced in this chapter is the emphasis on physical and mental disability as a legitimate difference and variation in the human body rather than a deviation from the mainstream Anthropos.

Direct Complaints of Individuals against Legal Acts Adopted by the European Union

This chapter states that, as opposed to most states, legal systems of different states of the European Union do not regulate the possibility of filing a constitutional complaint or a fundamental rights complaint against the European Union’s sovereign acts. However, individual complaints directly against the European Union’s sovereign acts are regulated in Article 263 para 4 of the Lisbon Treaty, and is complex as well as difficult to comprehend. According to this, a person’s standing especially requires an act to be of ‘direct and individual’ concern to him. Merely the prerequisites for taking legal actions against a ‘regulatory act’ are diminished since the Treaty of Lisbon came into force in 2009. The multifaceted jurisprudence of the union’s jurisdiction regarding this chapter is unfolded, systematized, and evaluated in this contribution.

Constitutionalizing Public Participation in Kenya

Examining the Constitution of Kenya 2010, the chapter picks up its concept of public participation in decision-making and a more active form of democracy than simply voting once in five years. In Kenya, Parliament and other legislatures, as well as executive bodies and the judiciary’s administration regularly invite public input into their decision-making processes. The courts have held some legislation, though not at the national level, invalid for want of adequate participation, while the Supreme Court, rather the chief justice, has set out principles of participation in a major judgment. The chapter traces the rationale and the history of this development, and attempts a preliminary assessment of its impact on Kenyan democracy. Suggestions are also made for making public participation more effective.

Of Apples and Mangoes

Discussing several methods of comparative legal research and emphasizing upon the point that the two or more systems to be compared should not either be so similar that there is nothing for the one to learn from the other, nor should they be so dissimilar that there is no relationship whatsoever between them. Following this principle, this chapter finds that there is enough similarity as well as dissimilarity between the Indian legal system and the legal system of the European Union. Acknowledging that fact, the chapter then proceeds to compare some of the aspects of European and Indian legal systems from which both of them may benefit.

Environmental Courts and Tribunals

This chapter provides a critical comparative analysis of Australia’s Land and Environment Court (LEC) and India’s National Green Tribunal (NGT) with reference to their historical background, relevant statutory provisions, and functioning of LEC in New South Wales and NGT in India. It suggests that though to begin with both of these adjudicatory bodies in environmental issues have faced challenges, the LECs in Australia have now achieved a high standard for environmental adjudication. On the other hand, NGT in India is comparatively new and will take its time to establish its impact on environmental issues. For ensuring the success of NGT in India, the chapter argues for support to it from the various stakeholders in particular of the Ministry of Environment and Forests and Climate Change for removing the hurdles in its effective and efficient working among others through infrastructural and competent staff capable of handling effectively the multiple issues that are brought before it.

The Chances of a National Sustainability Strategy for a Balanced and Stable Development

Laden with statistical details, this chapter compares the national sustainable development strategies in India and Germany. Examining the constitutions and environmental laws, as well as their administration through courts and otherwise, it argues that in both these countries sound legal basis exists for the development and implementation of a sustainable national strategy. Examining closely the overall developmental strategies in India, the chapter finds contradiction between them and the environment strategies. Consequently, it arrives at the conclusion that the overall developmental strategies in India are non-sustainable in the long or even short run.

Three Models of Affirmative Action through the Lens of Separation of Powers

Comparing three jurisdictions of India, South Africa, and Canada, this chapter argues that all of them are fighting historical injustices done to certain sections of their people through robust institutional mechanisms for appropriate implementation of affirmative action programmes and their effective judicial review. The chapter studies the issue not from the perspective of identification of designated groups with the objective of claiming the superiority of one model over the others, but rather aims at showing how history, structure of the constitutional set-up, and constitutional practices encourage different institutional mechanisms for implementation of affirmative action programmes in these countries.

Corporate Governance of Family-run Companies

This chapter compares the corporate governance issues of family-run companies in Hong Kong and India. It highlights some of the challenges faced in such companies like balancing the interest of the owners with the stakeholders and managing the relationship between the professional managers and owners of the company. Examining the socio-economic environment in these two jurisdictions and highlighting the legal reforms they have undertaken, the chapter suggests that the challenge faced by such companies can be met through certain corporate governance policies, both at government and corporate levels.

Public Participation in Environmental Governance in India and Indonesia

This chapter examines public participation in Environmental Impact Assessment (EIA) in India and Indonesia. It argues that despite the top-down approach of adoption of EIA, it has undergone a process of intense indigenization in most jurisdictions, influenced significantly by public mobilization and judicial intervention in those jurisdictions. Again, India and Indonesia being densely populated developing countries remarkable similarities are found in them with respect to the manner in which the EIA process has emerged in these legal regimes. It puts forth the claim that the contestation and mediation in regard to fundamental ideas about the nature and process of economic development and public involvement in environmental governance in the two jurisdictions have stark resemblance.

Inclusive Constitutionalism and the Indigenous People of the Chittagong Hill Tracts in Bangladesh

Based on a majoritarian notion of national identity and ‘constitutional patriotism’, Bangladesh’s Constitution of 1972 refuted the indigenous identity claims. Subsequent developments have somewhat addressed, albeit inadequately, the concerns of injustice arising from this exclusion. Examining the constitutional and judicial narratives, the chapter analyses the legal specialty of the Chittagong Hill Tracts and its demand for constitutional recognition from the perspective of inclusive constitutionalism. The central argument is that exclusion of diverse ethnic groups during the founding moment constituted a genetic defect in the Bangladesh constitution, which is not yet fully removed, though the recent constitutional amendment signals a change in the state’s hegemonic attitude. Adoption of an accommodationist approach by Bangladesh towards the indigenous people, ensuring a meaningful inclusion of Chittagong Hill Tracts people within the unitary constitutional framework, is both possible and a constitutional imperative.