tag:blogger.com,1999:blog-15602189.post5119482813800733123..comments2023-09-21T16:17:51.838+05:30Comments on Law and Other Things: An Unnecessary AmendmentAnonymoushttp://www.blogger.com/profile/09348738084817273397noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-15602189.post-21218738883855807132008-11-25T19:02:00.000+05:302008-11-25T19:02:00.000+05:30Hello Mr. Menon; agree that relying on 253 runs i...Hello Mr. Menon; <BR/><BR/> agree that relying on 253 runs into the problems you suggest. Regarding pith and substance, more or less, the issue will be whether the law is in pith and substance in "public order" or in "defence of india" or "offences against the law of nations". Now, regarding the provision against offences against law of nations, it refers to "on the high seas" - presumably piracy is one instance. But it also refers to offences against the law of nations on land. Now, unless we hold that a law dealing with terrorism is in P&S under that provision and not under "public order", we run the danger of rendering "offences committed against the law of nations on land" rather otiose. For, it would apply to (for instance) genocide. But if 'terrorism' is in pith and substance a "public order" issue; won't genocide also be a public order issue? Won't almost all offences against the law of nations lead to a public order issue? At the very least, this seems to me to be an arguable case; and, frankly, I doubt that the judiciary will interfere with such a law on competence grounds...<BR/><BR/>Also, perhaps, to resolve Article 249 can be used? The RS will have to pass a resolution by 2/3 majority that it is expedient in the public interest to legislate on a matter in the state list. The problem with this is that it will require the RS to pass a resolution every year. But perhaps, all we need is political will and neither rhetoric nor constitutional amendment...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15602189.post-71937879026724331112008-11-25T14:08:00.000+05:302008-11-25T14:08:00.000+05:30the relevant portion of Article 253 reads "for i...the relevant portion of Article 253 reads "for implementing any treaty,agreement or convention with any other country or countries or any decision made at any international conference, association or other body" - so legislation will be possible only for any of the aforesaid purposes. i dont think there are any international agreements etc. which the parliament may be able to rely on to support a sweeping legislation on all aspects relating to terrorism.<BR/><BR/>as to the provisions in the entries pointed out Mr. anonymous, when there are specific entries in the state list which deals with the matter in 'pith and substance', i think that might be a problem. but the suggestion that it may be brought under List 3. entry 1 sounds more feasibleMahesh Menonhttps://www.blogger.com/profile/06355988086791324879noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-85985440583234906762008-11-25T11:32:00.000+05:302008-11-25T11:32:00.000+05:30A few other points.List 1 entry 1. Defence of Indi...A few other points.<BR/><BR/>List 1 entry 1. Defence of India. An anti-terrorism law may fall in pith and substance under this entry. Of course there will be an encroachment into the state list; but perhaps a justifiable encroachment. <BR/><BR/>List 1 entry 21. This reads "... offences against the law of nations committed on land or on the high seas or in the air."<BR/>Terrorism is (at \least arguably) an offence against the law of nations. What is the problem with using this entry?<BR/><BR/>List 3, entry 1 (criminal law). Again, a pith and substance argument might work. But will be tougher than the other two options.<BR/><BR/>In addition to Mr. Reddy's points; I think list 1 entries 1 and 21; along with arugments based on pith and substance; should be able to work...<BR/><BR/>Interestingly, the MCOCA challenge presently before the SC is that the STATE does not have the power to legislate on "insurgency"; therefore the MCOCA reference to insurgency is ultra vires.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15602189.post-18409397751133152742008-11-24T19:51:00.000+05:302008-11-24T19:51:00.000+05:30In the context of the article, I think at this mom...In the context of the article, I think at this moment the search is for an enabling clause invoking which would avoid an unwanted constitutional amendment. And it is here the a law pursuant to Art 253 'fulfilling' international obligation comes to salvage the situation. Admittedly, a great many aspect of international anti-terrorism law are itself vague, which for current problem is good: meaning that with due regard to certain higher principles, India is open to make its own interpretation and go ahead with a legislation reinforcing its security concerns.<BR/><BR/>With respect to inter-state 'police force', to my understanding what is being suggested is something akin to STF for states - an organisation that is not bound by typical territorial boundaries and can operate on its measure across the country.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-15602189.post-84709909041944398882008-11-24T14:24:00.000+05:302008-11-24T14:24:00.000+05:30i don't think it would be possible to legislate on...i don't think it would be possible to legislate on terrorism based on international commitments. firstly, international law itself is not clear as to what all acts can amount to terrorism. secondly apart from few treaties that deal with certain specific situations there is no common global treaty, declaration dealing with terrorism - something that can be shown as a one that commits the parliament to legislate on.<BR/><BR/>secondly, extra-territorial application of state made criminal laws can be dealt with by the provisions of Cr.P.C which confer jurisdiction on such courts within whose territory any effect of a crime was felt.Anonymousnoreply@blogger.com