Book Review: Mahendra Pal Singh,The Indian Yearbook of Comparative Law 2016

The Indian Yearbook of Comparative Law 2016 edited by Professor Mahendra Pal Singh, a veritable name in the Indian legal landscape, is the first of its kind. Skimming through the bibliographical sources, we encounter that there are no more than a dozen comparative law yearbooks of repute and often they are included along with ‘international’ and not just comparative law and they are mostly of French and German vintage starting in the second half of the 19th century (the period of the rise of colonialism and international law coinciding, according to Professor Martti Koskenniemi with the Comparative Law of International Business (French); Annuaire (the French yearbook of foreign legislation—since 1872); German Yearbook of Public Law; Annuaire international de justice constitutionnelle, to name a few. A one-time publication of Asian Constitutionalism in Transition: A Comparative Perspective (edited by Professors Tania Groppi, Valeria Piergigli and Angelo Rinella) published in Italy also offers a good structural format to follow. Most others which deal with comparative law are journals.

Mostly, comparative law has dealt with private law. This first yearbook which was published in 2016 but released in 2017 concerns itself more with public law rather than private law. Among the ninteen papers published therein, only two papers relate to private law. In terms of its geographical reach, it has covered South Asia, Africa, Europe, China, the USA (in comparison with India on disability rights), Indonesia (in comparison with India on environmental governance), Australia, Canada and Hong Kong. This is again a very broad geographical coverage. It brings its challenges in terms of deeper thematic or geographic discussions. If it were say India and the European Union (EU) or South Asia and the EU, or South Asia and East Asia (now that there is deeper and reinvigorated relationship of India with ASEAN), or South Asia and South Africa, or BRICS countries or Commonwealth countries or the standard India, the USA and the UK, there would have been a deeper and more sustained comparative scholarship emerging. Nevertheless, as the very first initiative, it is of immense value to the world of legal scholarship. It makes it of special importance as this comparison is published from India.

The book is divided into three parts consisting of: (a) comparative law: general themes, (b) private law and (c) public law which again has three subparts of constitutional law, human rights and environmental law. The introduction has been written by the redoubtable Professor Upendra Baxi.

The first article is by Philipp Dann, Maxim Boennemann and Tanja Herklotz (all from Humboldt University, Germany) comparing the EU and India and is interestingly titled ‘Of Apples and Mangoes: Comparing the European Union and India’ (pp. 3–20). ¹ It is a welcome comparison of both conceptual frameworks and its resultant practices in the ‘region’ and a ‘state’ (whether they are ‘nation states’ or ‘state nations’ as the two variants which the authors have stipulated). Their most important contribution has been to the fields of enquiry such as social rights, religious freedom, democracy, federal structures, the role of courts, economic law (internal market, competition law) and environmental regulations. They have also rested their analysis on the prescriptions of Vicky Jackson and Ran Hirschl. Vicky Jackson has identified three potential goals of comparative constitutional law scholarship: (a) to develop a better intellectual understanding of one or more other systems, (b) to enhance the capacity for self-reflection and (c) to normatively evaluate ‘best practices’ methodologically (p. 5). On the other hand, Ran Hirschl has outlined five very different principles of research design in comparative constitutional law: (a) the ‘most similar cases’ principle, (b) the ‘most different cases’ principle, (c) the ‘prototypical cases’ principle, (d) the ‘most difficult cases’ principle and (e) the ‘outlier cases’, principle (p. 5).

The authors have identified some problems with vertical comparisons, for example, (a) India is a state and the EU is not; (b) the EU not being a typical international organisation any more but clearly not a nation state; (c) comparisons are generally done horizontally among legal systems that belong to the same level (national-legal systems with other national legal systems, regional systems with other regional systems and the legal system of one international organisation with that of another international organisation); (d) the problem of translation—can EU foundational treaties be compared to national constitutions?; (e) comparisons by engaging the functional methods along functional equivalents and (f) contextual analysis (political, economic and cultural contexts) (pp. 5–7). However, the authors have evinced hope in the fact that EU-level legal comparison can alone be the most appropriate form of comparison like the functioning of the Court of Justice of the EU (CJEU) (p. 6).

The authors have prescribed some methodological guidelines for comparison: (a) the careful translation of notions, (b) the sensible selection of functional equivalents and (c) the particular concern and reference to the contexts of the instruments or entities being compared and having been dependent on the similarities in the contexts and basic structures of the EU and India and on their ‘substantive’ and ‘sociological similarities’ (pp. 7–8). They derive the legal genus of the EU from two ground-breaking decisions of the CJEU: (a) the Doctrine of Direct Effect—the EU law has direct effect in EU member states (in contrast to public interest litigations), which means individuals can invoke EU law directly in front of the member states’ courts and (b) the Doctrine of Supremacy—in cases where EU law and member state law collide, the former trumps the latter—all actions by EU institutions can be reviewed and annulled by the European Court of Justice if they violate EU law or fundamental rights or do not fall within the scope of the union’s competences (p. 9). The Treaty on EU (TEU) and the Treaty on the Functioning of the EU (TFEU) stand at the top of the EU legal system defining the powers and competences of the Union’s (a) institutions, (b) decision-making procedures, (c) citizenship and (d) EU citizens’ fundamental rights (p. 9). In addition to these, the regulations, directives and decisions of the EU and its institutions are directly applicable in all member states creating what the EU is all about (p. 9).

The authors have pointed out that any comparative constitutional enquiry has to delve into legal cultures and cultures of legality where the very notion of law is quite different in India and the EU (p. 11). In India, it rests on ‘legal pluralism’ (besides India’s postcolonial legality being viewed as a continuation of colonialism’s repressive legacy and the resultant contradiction between governance and justice) and in the EU it rests on ‘state law’ (p. 11). Among the fields of comparison, the authors have identified how India’s experience of democratic self-determination and trying to ensure equality in the face of overwhelming social diversity is of learning value to the EU; the Indian experience of coexistence of multiple religions as a foundation of Indian secularism with no strict divide between religion and state as in the USA and concerning itself with interreligious domination as well as intrareligious domination where the state intervenes in religious affairs in specific situations both in a supporting way and in a restrictive manner; striking a balance between liberalisation and community interest and competition law (pp. 12–14).

Of course, where the scope, issues and geographical regions compared are of such broad magnitude, there are bound to be some shortcomings like the issue of federalism for example (though the authors have identified it for comparison and have heavily and singularly relied on the state-nation model). There is just one constitution for the whole of India (the Jammu and Kashmir [J&K] constitution not having the same constitutive powers like the Constituent Assembly of India which framed India’s constitution but deriving its substitutive powers from the Indian constitution [Article 370] and was made compatible with the Indian constitution cannot be considered as a co-equal to the Constitution of India). India is a union of states rather than a federal union with a heavy tilt towards the centre (even the special provisions for the states of J&K and Nagaland are included in the single national constitution). This is accompanied with a nominal fiscal federalism where maximum subjects are listed in the union list and the concurrent list (where the union legislation and procedures would trump over the state ones) and lesser number of subjects in the state list of the union constitution. It is only when there is a weak party government or a coalitional central government that aspects of federalism get highlighted or stand out. On the other hand, it is nation states which got together to create a EU which has moved beyond being just an international organisation but has definitely not emerged as a union of federations or even a federal union like the USA. Besides, in three areas of legal order, political institutionalisation and citizenship status, the EU is yet to emerge as a single polity, whereas India is a single polity (Walker, 2013).

Immediately following this is the article by Professor Markus Kotzur (Hamburg University, Germany) titled ‘Legal Cultures in Comparative Perspective’ where he highlights that a comparison, and a comparison between India and Europe, should be taken in a broader sense as a ‘comparison of cultures’ rather than limiting itself to the idea of ‘comparing the laws’, written norms, legal texts or judgements of courts (pp. 21–50). The ‘epistemic creed’ for comparative lawyers should be ‘mapping first’, that is, ‘description’ before ‘explanation’ (p. 22). And for Professor Kotzur, the obvious consequence would be a shift from comparative constitutional law sensu stricto to comparative constitutional studies which will then take into account fields like cultural sciences, political sciences and postcolonial studies movement and all these comparisons would ‘universalise’ legal standards. According to him, there are three comparative fields of immense importance: (a) religious cultures or mutatis mutandis cultures of religions, (b) a culture of solidarity—often desired but not all that often realised—and (c) cosmopolitan citizenship as a cultural promise and an educational aim and he first wants a comparison of problems before offering solutions.

The next article in this section by George Katrougalos is titled ‘Democracy, Privatization, and the Rise of Non-state Regulatory Power’ (pp. 51–71). The author expects the ‘demise’ of the concept of state sovereignty leading to the privatisation of state functions including regulation. Historically drawing a distinction between the Anglo-Saxon worldview rooted in laissez faire and the continental European world rooted in the social state principle, he recommends for a democratic regulation of transnational corporations. This democratic regulation is required in an increasingly globalised world with receding states circumscribing and curtailing the rights of people.

Moiz Tundawala and Salmoli Choudhuri have written an article titled ‘Ambedkar’s Liberty Concept in Comparative Constitutional Thought’ (pp. 72–92). Ambedkar never theorised liberty and was openly in support of the British rule in India and was on its payroll till nearly 1946. British rule had ensured the subjugation of Indians and developed a pernicious system of landlordism through the Act of Permanent Settlement, 1793, most of whose victims were the socially and economically most underprivileged lot, which would include all those who belong to the scheduled castes and tribes of today. So Ambedkar can write on the ‘annihilation of caste’, but if he supported an economic and political superstructure which ensured both economic and social subordination of the vast masses of humanity, with merciless orchestration of famines killing millions in Bengal (most of whom would have been the scheduled castes and tribes of today) to highlight just one instance of nearly 200 years of exploitation, killing and pillaging, his life and work do not become relevant for theorising the concept of liberty. Furthermore, Ambedkar was an unquestioned supporter of freedom of property and the concept of property alone does not equal liberty. His ‘contribution’ pales into insignificance when compared to Sree Narayana Guru, Jagjivan Ram, Bhola Paswan Shastri and Ramsundar Das who fought both against the British and caste oppression and brought dalits into the mainstream of political reckoning and empowerment without the rancour of Ambedkar. Ambedkar at best resembles the same Brahmin (real or imagined or perceived) scholar, whom he reviled all his life, because he remained close to the echelons of power and was an elite both in his lifestyle and temperament and during his times did not even enjoy mass support among the dalits of his region of Maharashtra, leave alone being considered a dalit icon in the country.

Among the two articles devoted to private law, the first one by Mihir Naniwadekar and Professor Umakanth Varottil deals with stakeholders’ rights titled ‘The Stakeholder Approach towards Directors’ Duties under Indian Company Law: A Comparative Analysis’ (pp. 95–120). The ingenuity of the article lies in the fact that it identifies what all problems might emerge in the implementation of the stakeholders’ rights, at long last, recognised under Section 166(2) of the Indian Companies Act, 2013. Company law has also come a long way from just recognising the rights of shareholders to rights of the stakeholders as part of the larger sustainable development model by including the interests of employees, creditors, consumers, the environment and the larger community in general. The problem with the practice of common law has been that it traditionally recognised the rights of the non-shareholder constituency only in specific contexts like insolvency when it would take into account the rights of creditors (and workers) along with those of the shareholders. The authors have just mentioned the contrast with other European and Asian jurisdictions where the rights of stakeholders have been acknowledged to varying degrees which they could have elaborated a little more as it is a field of private law having implications for the public at large and thus verging on public law.

The British Parliament adopted the ‘enlightened shareholder value’ (ESV) model through Section 172 of the UK Companies Act 2006, and according to the authors,

this requires directors to have regard to non-shareholder interests as a means of enhancing shareholder value over the long term. Although this is a hybrid approach that adopts features of both the shareholders’ and stakeholders’ theories; in the event of a conflict among various interests, it has a stated preference for shareholder interest thereby creating a distinct hierarchy.

The authors chose comparing India and the UK because: (a) there has been the codification of directors’ duties and non-shareholders’ interests and (b) the lack of legislative debate surrounding the Section 166(2) amendment in India (2013) can be buffeted with the detailed legislative efforts and consultations that preceded Section 172 in the UK (2006). Because of this pluralist approach of balancing the interests of shareholders with those of non-shareholders, the approach is similar to the ESV model of UK, but as the authors point out, the restricted scope of the provision itself, lack of sanctions in cases of directors’ breach of duty, even unclear duties of the directors and lack of clear enforcement leave room for legislative reconsideration rather than ad hoc judicial responses which are bound to emerge under the provision (Section 166[2]) in the near future.

The second article in the private law section written by Swati Deva, titled ‘Corporate Governance of Family-run Companies: Comparison of India and Hong Kong’, is a very clearly structured article and pinpointed in its comparisons (pp. 121–140). This comparison has been done in the backdrop of friction between the owners (family members) and independent directors of the company as and when it expands economically reinforcing the idea that independence, transparency and accountability ensure a win-win situation for both the owners and shareholders of the company. Apart from the Cadbury Report in 1992 in England, the only internationally accepted body of governance principles covering the entire gamut of legal, institutional and regulatory practices are the OECD principles which have influenced the reforms and practices in company laws including family-run companies in both India and Hong Kong. A further comparison with family-run capitalism in Europe, for example, Italy, could have been done with the likes of Agnelli, Berlusconi, De Benedetti and so on, controlling its finances and levers of economic growth.

In the constitutional law section, Yash Ghai in his article ‘Constitutionalism: African Perspectives’ has placed views of three African scholars to give a very broad-ranging understanding of African perspectives on constitutionalism (pp. 143–169). They are those of Hastings Okoth-Ogendo, Issa Shivji and himself. In addition, he has introduced the ideas of Ben Nwabueze, Jackton Ojwang and Abdullahi Ahmed An-Na’im. Introducing Okoth-Ogendo’s article titled ‘Constitutions without Constitutionalism: Reflections on an African Political Paradox’, Ghai clears the understanding on how a constitution could be without constitutionalism in two ways: (a) when the constitution does not aim for constitutionalism (e.g., military or one-party constitutions or one-leader constitutions) and (b) when constitutions promise human rights, democracy and fair trials, but little is done to implement them; indeed, much is done to negate them. On constitutions without constitutionalism, he quotes Vlad Perju who defines it as, ‘constitutional texts that lack political and cultural traction’. Ghai then quotes Albert Chen who says ‘pristine constitutions (Western) are more likely to succeed than secondary constitutions’. India, not being Western as per both Vlad Perju and Albert Chen (definitely in the geographical sense if not otherwise) and as far as its constitution is concerned, it is secondary (most of it coming from the British Government of India Act, 1935), is a classic exception, which is pointed out by Francis Fukuyama while comparing India and China; according to him, it is the political culture in India which dates from ancient times and which endured in spite of numerous ‘foreign invaders’ who ravaged the land with its concept of rule of law. ²

Quoting Charles McIlwain’s Constitutionalism: Ancient and Modern (1940) to give the classical concept of constitutionalism a la Thomas Paine, he quotes, ‘Constitution is “antecedent” to the government. That it defines the authority which the people commit to its government and in so doing thereby limits it. That any exercise of authority beyond these limits by any government is an exercise of “power without right”’ (p. 145), which McIlwain summarised as ‘All constitutional government is by definition limited government’ (p. 146); otherwise, it becomes despotic. Although McIlwain had a clear notion of democracy, he was sceptical of ‘separation of powers’ with excessive power of judicial review as undemocratic (p. 147). It is ironic that an undemocratic (unelected) institution like the constitutional court in a lot of democracies has become the greatest saviour of constitutional democracy and a hope of justice for its people. For a historical account of constitutionalism, according to Stanley de Smith, constitutionalism is practised in a country where: (a) the government is genuinely accountable to an entity or organ distinct from itself, (b) where elections are freely held on a wide franchise at frequent intervals, (c) where political groups are free to organise in opposition to the government in office and (d) where there are effective legal guarantees of fundamental liberties enforced by an independent judiciary (pp. 47–148). And Professor Ghai adds the following to the list: (a) a written constitution, (b) special entrenchment of provisions dealing with the invalidity of laws that violate the constitution, (c) the entrenchment of the constitution itself and (d) duty of courts to declare invalid laws that are inconsistent with the constitution (p. 148).

Ghai writes about the landmark essay of Okoth-Ogendo which he wrote on the 200th anniversary of the US constitution. Ogendo emphasises on the commitment of African governments in having a constitution but a rejection of its allied constitutionalism because in their eyes constitutionalism (its garbled and uprooted form) which was employed by the colonial master, with its emphasis on observance of rules, was an instrument of colonial control and coercion (pp. 149–152). This instrumentalist view of constitutionalism rooted in its European genealogical origins in Ogendo’s view has little scope in Africa where often constitution without constitutionalism has led to autocratic and absolutist regimes (ibid).

In a quintessential liberal framework, Ogendo explains that unless there is prosperity and a turnaround of Africa’s poor socio-economic conditions, there is very little scope for constitutionalism, which Ghai considers as the other way around: unless there is constitutionalism which restricts the greed and selfishness of leaders (and they are made accountable for it), there cannot be a resultant change in Africa’s poor socio-economic conditions and he considers the Kenyan evidence handy (ibid). Issa Shivji, on the contrary, places responsibility on neocolonialism and imperialism which ensure an exploitative international economic order and thus obfuscate any attempt by African nations to have a democratic society governing with constitutionalism (pp. 152–154).

Ghai places himself somewhere in the middle and if the reader has understood him correctly, the Third World has its own set of problems which are fuelled by both a discriminatory global order but also the neglect and myopic visions of Africa’s own leaders who have ensured there is no rule of law and no future of development and eradication of poverty in African nations, thus ushering in its own constitutionalism. In the process, Ghai has distinguished ‘constitutionalism’ from ‘constitution’ thus,

the constitution is a set of rules and institutions that regulate the governing of the country. Constitutionalism is an ideology based on certain values, procedures and practices. At one level, the concept of constitution is very simple: it is a text that is the supreme law of the land. Constitutions have been a way of consolidating power—as is well illustrated by colonial constitutions, but they have the same tendency, indeed purpose, in other contexts. The necessity of constitutionalism was to balance this state power, often enormous, armed with the police and the army, by granting rights to citizens and obliging the state not to transgress these rights—an act of restraint. In contemporary period, while some rights still relate to restraint by the state, other rights (socio-economic rights as well as those on equality) require the state to undertake positive action in favour of citizens. Thus, the concept of constitutionalism at first focused on the supremacy of the constitution, as a means to control the people. Later it was used to limit the power of the state but in due course some powers had to be returned to the state. In a paradoxical way, constitutionalism now requires an activist rather than a passive state. But the ‘activism’ is not unregulated; the state is no longer distanced from the people—instead the people are the state. (pp. 164–165)

Qianfan Zhang in his article ‘Establishing Judicial Review in China: Impediments and Prospects’ identifies that even the present 1982 Chinese constitution (the 2018 amendments do not affect it) provides for the Supreme People’s Court (SPC) to apply the constitutional provisions as was done in the Qi Yuling case (pp. 170–188). In the Qi Yuling case in 2001, the SPC by interpreting the 1982 Constitution of the People’s Republic of China (PRC) recognised the constitutional right of a Chinese citizen to education, name, identity and reputation. This would inadvertently lead to interpreting, expanding and limiting the scope of the constitution which is not desired by the political administration and subsequent pulping of the Qi Yuling decision where for the first and only time, the constitution was quoted explicitly to give a decision. If the Qi Yuling ruling was followed, instead of its abolition, it could have led to a system of rule of law and finally separation of powers in China.

The corn seed case concerned itself with just commenting on the administrative rules and procedures, thus carefully avoiding mentioning the constitution. This self-censorship by the supreme court and its space filled by the Standing Committee of the National People’s Congress (NPCSC) authorised under Article 67 of the 1982 constitution which gives it the authority to ‘interpret the constitution and supervise its implementation’ scuttled the growth of separation of powers in China. Therefore, there is no judicial review as such in China but it is legislative review, and the NPCSC according to Zhang has been ‘woefully deficient in fulfilling its constitutional mandate’. This constitutional limitation on the supreme court not to interpret and implement the constitution has unfortunately put a self-restraint in not even applying the constitution which is constitutionally mandated and the judicialisation of constitution has not happened as in India or the USA, even though through legislative ‘judicialisation’ equality as a right is protected and a uniformity of laws in a unitary state is retained. The author has given the socialist background of China being the reason for a continued suspicion of judiciary; he shows how it is or could in fact be elitist ensuring legislative dominance over judicial functions as well.

Jill Cottrell’s article is titled ‘Constitutionalising Public Participation in Kenya’ where she analyses the constitutional significance and democratic participation of people in the decision-making process which is now constitutionally embedded in the Kenyan constitution of 2010 (pp. 189–216). Under provisions like Article 10, public participation is a national value binding all state organs, institutions and persons when applying or interpreting the constitution, laws or public policy decisions; under Article 69, the public participation in the management, protection and conservation of the environment must be encouraged by the state; under Article 201, public finance is to be encouraged in issues of public finance, but experience, observance and statistics collected by her suggest that due to the same ‘lack of culture of constitutionalism’ as diagnosed by Ogendo, ‘public participation’ still remains an adornment in the constitution because of not being constitutionally defined what and how it is going to be implemented leaving a lot of room for manoeuvring by state authorities, government official and legislators to the detriment of constitutional purpose which is public welfare through public participation.

Ridwanul Hoque’s article on ‘Inclusive Constitutionalism and the Indigenous People of the Chittagong Hill Tracts in Bangladesh’ is an extremely instructive and a good comparative example vis-à-vis the constitutional recognition and ameliorative legislations passed in India for the Scheduled Tribes (pp. 217–248). The author laments the same old colonial categories of identification as ‘indigenous people’ as against the constitutional enlistment as a scheduled tribe.

The author has harped upon Bangladesh following secularism but has been silent on the fact that ‘Islam is the state religion’. It is commendable that the High Court Division (HCD) of the Supreme Court of Bangladesh declared the removal of secularism from the constitution illegal in 2005 which was upheld by the appellate division of the Supreme Court of Bangladesh and the Bangladeshi constitution was amended in 2011 by the parliament to restore secularism, but the same high court summarily dismissed the 28-year-old petition which was challenging the 1988 amendment to the constitution holding Bangladesh to be an Islamic state. How much space Islamic state, here read Bangladesh, has given to minorities leave alone indigenous people is a matter of empirical research. But for any modern inclusive constitutionalism in the 21st century, having a state religion is an anathema to inclusivism, if not to a practical and reluctant acceptance of pluralism.

The article by P. Ishwara Bhat and Aratrika Choudhuri, ‘A Comparative Study of Constitutional Policies Relating to Ethnic Pluralism in SAARC Countries’, tries to explain ethnic pluralism in the SAARC region. They argue that though multiculturalism in Western political theory has been theorised and written about only recently, the lived experience of multiculturalism in the Indian subcontinent is a living reality for centuries, much like its oral tradition of classical music for instance (pp. 249–275).

Joerg Luther’s article comparing the ‘fundamental social rights in the European and the Indian union’ is a deeply instructive study on the European and Indian evolution, practices and challenges of the social rights regime (pp. 279–301). It demonstrates the feasibility of Dann’s idea of asymmetrical comparison between the EU and India. The author’s broad sweep right from the ancient times to the present, drawing from history, political philosophy and law, is spectacular where he starts with the common Eurasian cultural heritage of legal myths and ideas and then goes on to have a comparative analysis of the Indian and European social federalism; differences in social rights protection grounded in different rules of law conceptions (common and civil); Indian economic growth is purportedly geared to reduce poverty, whereas Euro-group’s austerity policies are negatively impacting social rights; comparison of European social charter with the SAARC social charter and identifying EU–India relations as relations among soft powers. The reader feels that the heart and soul of this article are its third section dealing with ‘The Spirit and Concept of Social Rights in European Constitutional and Legal Traditions’. He identifies that social rights protection is partially ‘constitutionalised’ through sources of constitutional law and sources of regional international human rights law.

He has distinguished the US Declaration of Independence as a right to the ‘pursuit of happiness’ and the French declaration (post-Revolution) as a society that does not divide the powers and ‘ensures’ that the rights have no constitution at all. Sieyes’ preliminaries of the constitution recognised the rights of all citizens to share the benefits of their ‘social union’. It was in the Jacobin constitution of 1793 itself under its Articles 22 and 23 that directive principles on social aid and public education were brought about. Slavery was abolished. However, Napoleon overturned some of these beneficent and egalitarian policies and by the Declaration of 1815 under its Article 11, only free primary school was to be provided. Professor Luther holds that the constitutional entrenchment of social rights is more advanced in southern rather than in northern Europe. Under Article 45 of the Irish constitution rights, clauses have been integrated by directive principles of social policy; under Article 3(2) of the Italian constitution, fundamental constitutional principles of state action for substantial freedom and equality have been ensured; under Article 2(2) of the Swedish constitution, ‘personal, economic and cultural well being of the individual’ has been guaranteed; or under Article 28(1) of the German constitution (sozialer Rechtsstaat), a rule of law for the social state has been established which allows to protect even positive obligations deriving from classical liberties. Although social rights still rely in different forms and degrees to the specific constitutional identities of the European national democracies, they have also framed a common European constitutional standard on the basis of a core right of a person to get protected in his own ‘social existence’ and various forms of legal guarantees of social security referred to property, equality or dignity rights or principles.

He further writes that comparative social and political research divides welfare capitalism in Europe into three areas: (a) liberal, (b) conservative corporatist and (c) social democratic. Under EU and the Council of Europe Law, social rights can be protected both as subjective rights and as objective principles or just respected as objective principles not to be promoted without political competences.The Euro group takes social rights seriously as fundamental rights, with adequate international and constitutional guarantees.

The author has also identified some of the weaknesses and inherent lacunae in the European social rights regime when he says that the Charter of Fundamental Rights of the European Union ‘respects’ but not ‘protects’ and ‘fulfils’ the social rights (which is a serious indictment reducing it to a mere letter of law) and it excludes the rights to housing and to fair remuneration. This ‘highly competitive social market economy’ sounds like ‘Keynes at home and Smith abroad’. If EU member countries will have such a policy of being ‘Smith abroad’ (with warts and all) among their own union, the union itself would suffer and more importantly the ‘ideal of social rights’ which Europe has achieved (unlike the USA) would suffer a huge setback to the disadvantage of the human social world for which everything has been done to start with. The cooperation and collaboration within Europe have to succeed to be then emulated in the rest of the world as the Gandhian moral exemplar without advertising or enforcing in the rest of the world because it immediately becomes suspect because of the geographical origin of the idea, read Europe.

The banking and financial crisis led to the persisting asymmetry between a strong ‘neoliberal expansion of economic freedoms backed by the judges’ negative integration’ and ‘a weak commitment to social policies and market correction left to national legislators with a more restricted budget autonomy—positive integration’. The author also identifies that ‘any attempt to separate expenditure for economy and for social purposes could be technically hard and potentially unwise’.

Wolfram Cremer’s article, ‘Direct Complaints of Individuals against Legal Acts Adopted by the European Union’, holds that

under Article 263 paragraph 4 of the Treaty on the Functioning of the European Union (TFEU), the individual has to fulfil a complicated system of sophisticated admissibility requirements in order to file a complaint directly against legal acts of the EU before the EU courts. (pp. 302–327)

This falls short of the national constitutional safeguards of individuals claiming their rights in national constitutional courts. It leaves scope for judicialisation process within the EU facilitating its constitutionalisation process. Only then the EU would set standards for the world in bringing down the arbitrary walls of nation states and replacing states with a supra-organisation protecting supra-constitutionally empowered rights, including the social rights of individuals.

There are two articles on disability rights: one by Sanjay Jain titled ‘Disability Rights at a Crossroads: Reflections on Evolution of Public Law of Physical and Mental Disability (pp. 352–391)’ and by Amita Dhanda, ‘Sizing up the Opposition: Taking the Comparative Route to Entrench the CRPD Paradigm’ (pp. 328–351).

Arpita Sarkar’s article, ‘Three Models of Affirmative Action through the Lens of Separation of Powers: South Africa (on grounds of race), Canada (aboriginal peoples) and India (on grounds of caste)’ (pp. 392–418), has analysed the models of affirmative action in South Africa, Canada and India.

Michel von Hauff’s article ‘The Chances of a National Sustainability Strategy for a Balanced and Stable Development: The Example of India’ is a jam-packed article containing a lot of themes and betrays the author’s affections, empathies and afflictions (pp. 421–447). According to the author, and rightfully so, unlike the plan as per the agenda for the 21st century decided at the Rio Summit in 1992, commonly called the Agenda 21, India did not have a separate sectorally harmonised document but incorporated sustainable development programmes into the existing national development planning strategies like water resource management in the existing water policy and statutes. The three dimensions of sustainable development being ecological sustainability, economic sustainability and social sustainability are co-equals for achieving sustainable development. Normally ecological sustainability and economic sustainability are given more importance than social sustainability where social capital leads to preservation, accumulation and productivity of two other kinds of capital being capital in kind (real capital) and natural capital which manifest themselves in stability of the law, achievement of equal rights and civic participation.

Nupur Chowdhury and Arie Afriansyah’s article, ‘Public Participation in Environmental Governance in India and Indonesia’ (pp. 448–476) and Usha Tandon’s article, ‘Environmental Courts and Tribunals: A Comparative Analysis of Australia’s LEC and India’s NGT’ (pp. 477–502), are two other articles in this subsection. Chowdhury and Afriansyah identify how both the Indian and the Indonesian Environment Impact Assessment (EIA) regulatory regime follow the principle of positive listing ensuring some modicum of clarity about the kinds of activities that require EIA and regulatory clearance. Although executive interference is quite high in both jurisdictions which make it easier for circumventing the EIA process, Indonesia has better safeguards and deterrence because it imposes criminal liability along with financial penalties whereas in India due to lack of criminal liability, there is a tendency to accept illegal project developments as fait accompli and then regularise them through payment of fines. Usha Tandon has tried to compare the Land and Environment Court (LEC) established way back in 1980 in the state of New South Wales (NSW) with India’s National Green Tribunal (NGT) established in 2010. The LEC in its long years of operation has evolved a high standard for environmental adjudication, whereas NGT in its short years of existence has performed quite well but faces some structural and institutional challenges. She thinks NGTs’ jurisdiction needs to be widened beyond the enlisted seven legislations, internal checks and balances (such as interim orders, reviews and appeals) for efficient and transparent delivery of justice; other governmental stakeholders implementing its decisions need to be entrenched, and it should be equipped with better infrastructure, office staff and case management facilities.