Perspectives on Law

Sections 3 and 4 of the Competition Act (India) relating to anti-competitive agreements and abuse of dominant postion, were recently brought into force on May 20, 2009. Section 3 of the Act declares that  anti-competitive agreements will be void and prohibits enterprises and persons from entering into agreements in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services that causes or is likely to cause an appreciable adverse effect on competition in India. Generally agreements are classified into horizontal and vertical agreements for the purpose of competition laws. However, the Indian law doesn't use this terminology. Nevertheless it can be seen that, in substance Section 3(3) covers horizontal agreements, whereas Section 3(4) covers vertical agreements. The importance of this distinction is that normally horizontal agreements relating to price fixing, market sharing etc. are considered to be "per se "anti...

A beautiful legal article has been written by Mr. Neeraj Aarora on the same question discussing in detail the judgments on this point and also analysing the question with the aid of principles of interpretation of statutes. The same may be accessed here . In addition to the argument I have made in the post which may be accessed here , he discusses the principles of interpretation of a "proviso" in greater detail.

In this post I present the arguments on this question from the State's perspective. The limit  on abortion is purely a question of policy - It is well settled that the SC and HC will not interfere or adjudicate upon Government policy matters. (V.G Ramachandra, General Principles of Writ Jurisdiction, Vol. 1, 6th Ed. p. 550) The principle is firmly embedded in the Constitution, that the policy of law and expediency of passing it, are matters for the legislature to decide, while interpretation of laws and their validity fall within the exclusive adjudicatory functions of the court. ( Special Courts Bill, 1978, Re, (1979) 1 SCC 380, 405 )  This is because in complex social, economic or commercial matters decisions have to be taken keeping in mind several factors, and it is not possible for the courts to consider competing claims and conflicting interests and to conclude in which way the balance tilts. ( Nagaraj v. State of A.P, (1985) 1 SCC 523 ) First, barring a few parts...

Let us now consider the next possible argument that the State may raise in its defence to justify the rational of a 20 week upper limit - Viability of the foetus. Many countries which have an upper limit on abortion, have it because of the element of viability of the foetus. Viability is that stage from which a foetus becomes capable of surviving outside the womb of the mother. Medically this stage is said to be certain between 26-28th week. ( Stephen M. Krason, Abortion- Politics, Morality and the Constitution, 1984 p. 346) Also, The prospects for babies born before the 24 week limit are usually very poor. ( Study published by British Medical Journal ) Thus clearly the argument that the 20 week limit is in support of the viability of the foetus does not hold good. Even assuming that this limit was valid on grounds of viability of foetus, it would have no bearing on abortion of a foetus on eugenic grounds. Most of the countries which recognize viability of foetus as a ground fo...

This post is in continuation of my earlier post - presenting possible arguments from the Petitioner's side. In my opinion, the constitutionality of the 20 week limit may be challenged under Article 14 of the Constitution, on the unreasonable classification test. The Supreme Court has laid down the following tests to determine when a classification would be reasonable: i. It should be based on an intelligible differentia which distinguishes persons or things grouped together in the class from others left out of it. ii. The differentia adopted as the basis of classification must have a rational nexus with the object sought to be achieved by the statute in question The two groups or classes created by the said limit are women pregnant up to the 20th week and those who have exceeded the 20th week- where the former may abort, the later cannot. The next question is whether this classification bears a rational nexus with the object sought to be achieved. What could have been obje...

The Indian law of Abortion is governed by the Medical Termination of Pregnancy Act 1971 (MTP Act or the Act). The Act allows abortion on the grounds mentioned in Section 3 of the Act. This section permits abortion only until the 20th week of pregnancy. Beyond the said limit abortion is permissible only when termination of pregnancy is immediately necessary to save the life of the pregnant woman.(Section 5 MTP Act) Section 3 reads as follows: "When Pregnancies may be terminated by registered medical practitioners.- (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,- (a) where the length of the pregnancy does ...

In continuation to my earlier post, in this post, I will be proposing a counter argument - that an instalment contract can be avoided under Art.49/64 CISG In determining the meaning of an international treaty, one of the rules of the 1969 UN Convention on the Law of Treaties is that recourse may be had to supplementary means of interpretation including the preparatory work of the treaty. (Article 32 of the 1969 Vienna Treaty Convention.) In the interpretation of the CISG also, its legislative history can be decisive, as this would be in accordance with Art. 7(1) of the CISG. If we look at the legislative history of Art.73, we will see that the purpose of incorporating 73(1) is to enable the buyer to make partial avoidance of an installment contract. The purpose of 73(2) was to encompass an anticipatory breach situation, where the basis of the anticipation is a breach already committed. While the purpose of Art. 73(3) is to provide for a right of avoidance having retroact...

The Convention on International Sale of Goods (CISG) provides for avoidance of contract as a remedy to both the buyer and seller if there is a fundamental breach of the contract. The buyer is given this right under Art.49 whereas the seller has a right under Art. 64. The CISG also provides for a special article on avoidance  (Article 73) available to both seller and buyer, if the contract is one of installments. A contract is considered to be an installment contract, under the CISG, when it provides for deliveries in separate lots. (Secretariat Commentary on art. 64 of the 1978 Draft [draft counterpart of art. 73 CISG], Art. 73 provides for avoidance in three cases: (1) to avoid only that instalment in respect of which a fundamental breach has occurred, (2) to avoid future instalments if a breach that has actually occurred gives him good reasons to conclude that a fundamental breach will occur with respect to future deliveries, (3) to avoid past and future deliveri...