GALGOTIAS UNIVERSITY, U.

Project on the topic of

“IMPACT OF GLOBALIZATION ON JUDICIAL PROCESS”

Submitted For Fulfilment of the Course for the Award of the Degree in Masters of Laws

To

Prof. PP Mitra

(Faculty: Law & Justice in Globalizing World)

By,

Pratik kumar

Admission no.- 20GSOL2010027

Trimester I, LL.M

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 ACKNOWLEDGEMENT

I find no words to express, my profound thanks and deep sense of gratitude to Prof. PP. MITRA

for providing me this opportunity to work on the project who was kind enough to give me

academic support and advice from time to time. I also want to thank all of my friends, without

whose cooperation this project was not possible. Apart from all these, who made every relevant

materials regarding to my topic available to me at the time of my busy research work and gave

me assistance. Lastly, I would like to express my deep sense of appreciation to everybody

directly or indirectly involved in this project work, all through the making of it.

PRATIK KUMAR

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 TABLE OF CONTENTS

1. Chapter-1

1.1 Introduction

1.2 Aims

1.3 Objectives

1.4 Literature Review

1.5 Hypothesis

1.6 Research Questions

1.7 Research Methodology

1.8 Sources of Data

1.9 Limitations of Research

2. Chapter 2

2.1 Introductory note for the plenary session at the Qatar Law Forum (Doha, May 29 to 31
2009) by Honourable Mr. J. K.G. Balakrishnan

2.2 The impact of globalisation on legal systems

2.3 Effects of Globalisation on Indian Society

2.4 GLOBALIZATION AND DEVELOPMENT POLICY: THE COURT’S ROLE IN

RESHAPING RIGHTS, DEVELOPMENT STRUCTURES, AND NARRATIVES

2.5 Globalization and the Judicial Sovereignty of India

2.6 Concept of Globalisation

2.7. CONCLUSION

2.8. Bibliography

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 IMPACT OF GLOBALISATION ON JUDICIAL PROCESS IN INDIA

ABSTRACT: Globalisation is a process as old as the civilisation itself but gained attention
and prominence in the last two decades .During this passage of decade in the administrative
system globalisation played a vital role in the historical shift in systematic pattern. As of India
being a developing nation went under a major surface change in the administrative system under
the purview of globalisation. Globalisation has extended the inward and outward demand for
legal services with change in socio-economic conditions.India has been liberalising its legal
services sector which creates a positive and a negative impact on judicial service.In the further
paper the research will put forth the inclusion of different beaches, technologies, amendments,
urge of the land for change under the globalisation.

Keywords: administrative, legal services, judicial service

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 CHAPTER 1
1.1 INTRODUCTION

Since the 1980s, globalization has fundamentally transformed relationships between nation

states as well as the terrain of domestic political, constitutional, and regulatory frameworks that

govern economic and development policies, particularly in developing nations. As part of this

global trend, developing nations have shifted from statist-socialist policies toward economic

liberalization, privatisation, and development policies in line with the broader globalization of

the world economy.

International institutions and organizations including the World Bank andInternational

Monetary Fund (IMF), have played a central role in pressuring shifts toward economic

reforms aimed at liberalization and privatization and in directly funding development projects.

These shifts have also helped reshape and influence lawyering and legal practice, constitutional

and policy norms, and constitutional adjudication on these issues.

GLOBALISATION AND THE TERRAIN OF FUNDAMENTAL RIGHTS IN INDIA:-

As India’s economy underwent major transformation in the 1990s and early 2000s, the Supreme

Court’s approach to the interpretation of fundamental rights and application of rights-based

scrutiny also fundamentally changed. In cases involving major rights-based challenges to

economic liberalisation, privatisation, and development policies in the post- 1991, the Court

redefined and adjudicated the scope and meaning of the core fundamental rights contained in

Article 14 (equality before the law),

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Article 19 (speech, assembly, and other freedoms), and Article 21 (life and ‘Justice in the 21st

century: The challenge of globalisation’ liberty) of the Indian Constitution. The Court

dramatically expanded the scope of these rights in the post-Emergency era to create a new

arsenal of rights-based frameworks of scrutiny, along with a new regime of public interest

litigation aimed at correcting human rights and governance failures. However, as this Part

illustrates, since the 1990s the Court has reinterpreted and arguably restricted the scope of these

rights, and modified the nature of rights-based scrutiny in the realm of globalisation policies.

1.2 Aims:-

This article aims at depicting the real scenario of how actively the impact of globalisation on

Indian judicial system, as well as identifying the major challenges our judiciary is facing and the

way out to overcome those.

1.3 Objective:-

1. To understand the purpose of pros and cons of globalisation on Indian judicial system.

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 2. To understand the differences between the two.

1.4 Review of literature-

Articles and books mentioned in the Bibliography have been reviewed by the researcher

including judicial pronouncements delivered by courts in India.

1.5 HYPOTHESES-

The research work will be guided by the hypothesis which is based on a close examination of

Judicial activism & self restraint held by courts in India through different judicial

pronouncements. It is further hypothesised that this study is pertinent to analyse the impact of

judicial review in development of a democratic country.

1.6 RESEARCH QUESTIONS-

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 1. What is globalization and impact on Indian judicial system ?

2. When has globalization emerged and spread?

3. Why has globalization occurred in World Politics (WP)?

1.7 Research Methodology:-

. The various books, various articles, websites, Law journals, Acts, Treatises, are referred for this

topic. The sources from which the material for this research collected are primary & secondary.

The methodology used in the research has been Doctrinal. No non-doctrinal method has been

used by the researcher in this project work.

1.8 SOURCES OF DATA-

For doing the research work various sources has been used. Researcher in the research work has

relied upon the sources like many books on Constitutional Law, Articles and Journals etc. The

online material have been remained as a trustworthy and helpful source for the research.

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1.9 LIMITATIONS OF RESEARCH:-

1. The research study has been done from a selective material from the books, Articles and the

internet.

2. Only selective books, journals and articles have been put to use because of the time factor.

3. There is the possibility of further updating of this research paper because of further evolution

in law.

CHAPTER 2

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 2.1 Introductory note for the plenary session at the Qatar Law Forum

(Doha, Qatar - May 29-31, 2009)

by Hon’ble Mr.J. K.G. Balakrishnan

All of us associate globalisation with the free movement of capital, labour, goods and services

across national borders. However, these parameters of economic globalisation cannot be viewed

in isolation from other aspects such as the free exchange of ideas and practices. Especially from

the viewpoint of developing nations, the benefits of increasing foreign investment in any

particular sector should be assessed not only in terms of capital-flows and wealth reation but also

in terms of technology-transfer and the infusion of know-how and best practices. From this

perspective the legal systems in various countries have a lot to learn from each other –both in

terms of institutional design and the evolution of substantive laws. However, there have also

been some arguments made against the free exchange of ideas and practices between legal

systems of different countries.

In this note I would like to briefly comment on the linkages between increasing globalisation and

the law. One conceptual approach for examining the same is to survey the legal challenges

thrown up by the changing socio-economic conditions. With increasing trade and investment

across borders, there is an imperative need for all of us to be sufficiently invested in the

multilateral processes of rule-making and dispute-resolution while at the same time offer a

balanced response to the resulting complexities through our domestic legal systems.The reverse

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linkage is of course the impact of globalisation on our respective legal systems. In the age of the

internet and frequent international travel, judges, lawyers, academics and even law students from

different countries have a lot of opportunities to interact, collaborate and learn from each other’s

experiences. In particular, I would like to comment on the growing importance of fields such as

comparative constitutional law.

2.2 The impact of globalisation on legal systems

The functioning of our legal systems is also being continuously re-shaped by the various socio-

economic parameters of globalisation. For instance, reliance on foreign precedents is necessary

in certain categories of appellate litigation and adjudication. For instance in litigation pertaining

to cross-border business dealings as well as family-related disputes, the actual location of the

parties in different jurisdictions makes it necessary to cite and discuss foreign statutes and

decisions. Hence, domestic courts are called on to engage with foreign legal materials in fields

such as ‘Conflict of Laws’ where they are required to rule on aspects such as proper jurisdiction

and choice of law as well as recognition and enforcement of foreign decrees and arbitral awards.

Furthermore, domestic courts are also required to look into the text and interpretations of

international instruments if their respective countries are parties to the same. However, the room

for debate arises with respect to the citation of foreign precedents for deciding cases where they

may not be enough guidance or clarity in domestic law. This trend has provoked some people to

express their opposition to the reliance on foreign law, especially in cases that involve difficult

questions of constitutional interpretation.

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Legal challenges thrown up by the forces of globalisation Until a few months ago, most of the

discussions about the legal challenges resulting from economic globalisation were centred

around the multilateral efforts to promote international trade and investment. In this regard,

there has been considerable scholarship on the dispute-resolution functions of the World Trade

Organisation as well as the role of arbitral institutions which facilitate dispute-resolution in the

event of commercial disputes between private parties located in different national jurisdictions.

There has also been some attention given to the settlement of investment disputes between

foreign investors and host governments. Hence, themes related to international trade law and

investment law have become quite prominent in legal exchanges as well as education. For a

country like ours where financial sector reforms began only in the 1990 there is an obvious need

to adopt a pragmatic approach towards international trade and investment. There is no doubt that

the progressive lowering of restrictions on foreign investment and private enterprise has led to

the expansion of several sectors such as banking, telecommunications, information technology,

broadcast media and infrastructure among others. The inflow of foreign capital and firms in these

sectors has undoubtedly created many jobs, created an environment of competition and

increased the choices available to consumers. The expansion of these sectors has also created

‘regulatory gaps’ which have been addressed through the creation of independent regulatory

agencies. The task of these independent regulatory agencies is to assist in the formation of

policies and devise rules to ensure a fair balance between the interests of service-providers,

consumers and the government. Several specialised tribunals have also been set-up for sectors

such as telecom and securities regulation to expeditiously decide disputes pertaining to the same.

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The Court has thus expanded the scope of its review to directly impugned and challenge

government auctions of public resources including the 2G Telecom Scam Case (2012) and the

CoalGate case (2012). In these cases, the Court has scrutinised the auction processes for

allocation of both the telecom spectrum and coal blocks to private entities based on Article 14

arbitrariness review, while at the same time also playing an active role in investigating

allegations of corruption. These cases illustrate that despite the narrow and limited scope of

judicial review articulated by the Court for economic policies, the Court continues to play an

active role in policing corruption in privatization and liberalization policies.

2.3Effects of Globalisation on Indian Society:-

Globalization is a significant factor in competitive world that integrate and mobilise cultural

values of people at global level. In the age of rapid technical progression, many countries are

unified and transformed due to the process of globalization. Globalization has a huge impact on

cultural, social, monetary, political, and communal life of countries. Abundant theoretical studies

demonstrated that globalization intercedes in a cultural life of populace that raises numerous

critical issues (Robertson, 1992). In broad sense the term 'globalization' means combination of

economies and societies through cross country flows of information, ideas, technologies, goods,

services, capital, finance and people. Globalization is described by theorists as the process

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through which societies and economies are integrated through cross border flows of ideas,

communication, technology, capital, people, finance, goods, services and information.

2.4 GLOBALIZATION AND DEVELOPMENT POLICY: THE COURT’S

ROLE IN RESHAPING RIGHTS, DEVELOPMENT STRUCTURES, AND

NARRATIVES:-

As India shifted toward economic liberalization in the early 1990s, the Central and State

Governments also expanded investment in large-scale development projects aimed at expanding

energy resources and building a resources infrastructure to support high-growth economic

development. Major examples of this included the construction of hydroelectric plants,

including the Narmada and Tehri Dams, as well the exploration and development of India’s

forests and undeveloped lands for mining and logging. This Part explores how the Supreme

Court has adjudicated the scope and meaning of the fundamental rights as it relates to

development. As noted in Part II, following the post-Emergency era, the Court dramatically

expanded the scope of rights and the permissible scope of court intervention in public interest

litigation cases involving state governance failures, human rights violations, and other forms of

state and private illegality, including bail undertrials, prison violence, and bonded labor cases.

Building on the right to life in Article 21 and read together with directive principles setting forth

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state obligations to protect the environment, the Court also recognized rights to clean air and

water and developed a robust body of environmental jurisprudence and principles aimed at

taking on.

2.5 Globalization and the Judicial Sovereignity of India:-

There is a growing view that the power of the nation state is being eroded by globalisation. But

one never thought that it would go to the extent of an award being passed by an arbitral tribunal

in Singapore criticising the Supreme Court of India for its delay in handling cases and directing

the Government of India to compensate an investor from Australia for such a delay (White

Industries Australia Limited and the Republic of India 2011). This award should alarm any right-

thinking person and compel him or her to wonder at the way in which the babus sitting in New

Delhi draft international treaties and also the manner in which the Government of India conducts

international arbitrations.

The case arose in the following circumstances. In September 1989, an Australian company called

White Industries entered into a contract with Coal India for the “supply of equipment to and

development of a coal mine at Piparwar” in Uttar Pradesh. Over a period of time, certain disputes

arose between the parties. As provided by their contract, the disputes were referred to arbitration.

In May 2002, an arbitral tribunal in London, by its majority opinion, passed an award in favour

of White Industries for a sum of Australian (A)$4.08 million. Coal India challenged the award in

the Calcutta High Court and White Industries made an application to the Delhi High Court for

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the enforcement of the award. The proceedings in both the courts went on for some time.

Meanwhile, the Supreme Court rejected White Industries’ application asking that the Calcutta

High Court case be transferred to Delhi.

White Industries had also filed an application in the Calcutta High Court requesting that the

application filed by Coal India be rejected on the grounds it was not maintainable. This

application was rejected. Finally, the matter was taken to the Supreme Court. The Supreme

Court, after hearing the case at length, found that it gave rise to the important question 0f

whether a proceeding against an international award passed outside India could be entertained

here. The case was then referred to a larger bench, along with a few other cases, as the bench

doubted the correctness of its earlier decision in Venture Global vs Satyam Computers (2008),

where it was held that an award passed outside India was amenable to the jurisdiction of Indian

courts. It is only in the first week of September 2012 that the Supreme Court delivered a

judgment in the above cases by prospectively overruling the decision in Venture Global vs

Satyam Computers.

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2.6 Concept of Globalisation:-

The concept of globalization means that the world is getting smaller as well as bigger.

Akteruzzaman.Md, 2006 described that globalization can contribute to develop pattern of cross

border activities of firms, involving international investment, trade and strategic alliances for

product development, production, sourcing and marketing. These international activities

companies to enter new markets, to exploit their technological and organizational advantages and

to reduce business costs and risks. Other theorists stated that globalization is a social

phenomenon that defines the geographical boundary in terms of many different issues. According

Brinkman, 2002, globalization as a triumphalism light, as the penetration of capitalism into every

corner of the world, bringing with it the possibility for all of the world's population to participate

in the fruits of the international division of labour and market economy. ALI, 2015 explained the

globalization as a process of rapid economic, cultural, and institutional integration among

countries. This association is driven by the liberalization of trade, investment and capital flow,

technological advances, and pressures for assimilation towards international standards.

Globalization has reduced barriers between countries, thus resulting in strengthening of

economic competition among nations, dissemination of advanced management practices and

newer forms of work organization, and sharing of internationally accepted labour standards.

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 2.7 CONCLUSION

Globalization policies have fundamentally altered the relationship of the state vis-à-vis the

citizens in India. Despite the Supreme Court’s creation of a robust and expansive rights

infrastructure in the immediate post-Emergency era, the Court has constrained and limited the

scope of fundamental rights, and rights-based judicial scrutiny of globalization policies in the

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post-1991 era. This article has suggested that the Court’s approach to judicial review reflects a

unique model of adjudication in which high courts play an active role in shaping the meaning of

rights, regulatory structure and norms, and the legal-constitutional discourse of globalization. In

reshaping the terrain of rights in the post-liberalization era, the Court’s role and jurisprudence in

adjudicating globalization cases will continue to have profound consequences for the future of

human rights and environmental protection in India. Major shifts in the Court’s jurisprudential

approach and institutional role present both structural and normative challenges for the cause of

human rights, social justice, and environmental protection in India. Structurally, the Court’s

creation of asymmetrical rights terrains threatens to weaken the potential role that courts can

play in vindicating and safeguarding the rights of workers, villagers, the urban and rural poor,

and tribal populations most affected by transformational changes in India’s economy and

development of its natural resources. Indeed, both government and court-led governance

structures have largely excluded channels for those who have been displaced by globalization to

block and resist large-scale development projects.

2.8 Bibliography.

Samir Amin

Capitalism in the Age of Globalization- The Management of Contemporary Society

London, Zed Books, 1997

Richard Barnet and John Cavanagh

Global Dreams- Imperial Corporations and the New World Order

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New York, Simon & Schuster, 1994

Zygmunt Bauman

Globalization- The Human Consequences

Cambridge, Polity Press, 1998

Oliver Boyd- Barrett and Terhi Rantanen

The Globalization of News

London, Sage, 1998

Sandra Braman and Annabelle Sreberny-Mohammadi

Globalization, Communication and Transnational Civil Society

New Jersey, Hampton Press, 1996

Jeremy Brecher and Tim Costello

Global Village or Global Pillage-Economic Reconstruction From the Bottom Up

Boston, South End Press, 1994

Lowell L. Bryan and Diana Farrell

Market Unbound- Unleashing global capitalism

New York, John Wiley, 1996

Michel Chossudovsky

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The Globalisation of Poverty- Impacts of IMF and World Bank Reforms

London, Zed Books, 1997

Ian Clark

Globalization and Fragmentation- International Relations in the Twentieth Century

Oxford, Oxford University Press, 1997

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