Table Of ContentMahendra Pal Singh · Wolfram Cremer ·
Niraj Kumar Editors
Open Markets,
Free Trade and
Sustainable
Development
Perspectives from EU and India
Open Markets, Free Trade and Sustainable
Development
Mahendra Pal Singh Wolfram Cremer
(cid:129) (cid:129)
Niraj Kumar
Editors
Open Markets, Free Trade
and Sustainable Development
Perspectives from EU and India
123
Editors
Mahendra PalSingh Wolfram Cremer
Centerfor Comparative Law Juristische Fakultät
National LawUniversity, Delhi Ruhr-Universität Bochum
NewDelhi, India Bochum, Germany
Niraj Kumar
Centrefor Comparative Law
National LawUniversity, Delhi
NewDelhi, India
ISBN978-981-13-7425-8 ISBN978-981-13-7426-5 (eBook)
https://doi.org/10.1007/978-981-13-7426-5
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Preface
Against the background of advancing economic cooperation between the EU and
India, it was thought to be pertinent to hold an international conference on the
related issues. It took place in New Delhi in March 2016. In view of a broader
framework of Twenty-first Century Constitutionalism, the conference focused on
potentialsynergiesaswellasdichotomiesbetweenopenmarketsandfree trade on
the one hand and sustainable development policies on the other hand. The con-
ference developed the subject from different perspectives using comparative and
interdisciplinary methods. Its overall aim was to establish a critical dialogue
between Indian and European views on parallel issues. Therefore, each topic was
presentedbyatleast oneIndian andoneGerman speaker followedbyanintensive
discussion by all participants. Not only the legal infrastructure was examined, but
also policy options for market liberalization, free trade enhancement and
strengthening development policies and cooperation were deliberated upon.
Furthermore, the presentations and discussions focused on tensions between dif-
ferent policy options, thereby including comparative perspectives on the German
and European as well as the Indian constitution.
Among many other themes, the contributions also dealt with matters of social
marketeconomy,culturaldiversityanditseffectson,e.g.,labourlaw,competition,
environment and more importantly the balance between free and fair trade.
Moreover,therewasanexaminationofwhethermarketliberalizationcouldevenbe
aninstrumentinordertosupportsustainabledevelopment.Inadditiontothat,there
wasaspecialfocusontheprogressingdevelopmentalcooperationbetweentheEU
and India, includingthe planned free trade agreement. Furthermore, the discussion
concentratedonmattersofanimprovedmarketaccessforsomegoodsandservices,
as well as investments and public procurement.
Aftertheconferencewasover,itwasdecidedinthevaledictoryproceedingsthat
we mustexplorethepossibilities ofgetting afewselectedpresentations published.
It required that the responsibilities for collation, editing and other consequential
work must be undertaken by representatives from both the jurisdictions, viz.
GermanyandIndia.ProfessorWolframCremerfromGermanyandProf.Mahendra
Pal Singh and Dr. Niraj Kumar from India decided to do so.
v
vi Preface
The conference and thesubsequent book would nothavebeen possiblewithout
the benevolent host in Prof. Ranbir Singh, Vice Chancellor, National Law
University, Delhi. He was more than ready in conceding to all the requests which
are required for hosting the conference attended by scholars from different conti-
nents, whereas one of us, Prof. Wolfram Cremer, had borne the responsibilities of
coordinating and facilitating the endeavours of scholars coming from Europe
(primarily from Germany). The editors must acknowledge the inputs of Prof.
UpendraBaxi,rightfromthefirstdayoftheconferencetillthevaledictorysession.
The process of to-and-fro communications between editors and the contributors
started thereafter. Since it required coordination across various time zones, it was
quite obvious that it was going to take much time and effort. The editors must
acknowledge the cooperation and patience of the contributors throughout the pro-
cess.TheeditorswillfailintheirdutyiftheextraordinarysupportofProf.Amitabh
Kundu in the form of a very nuanced and scholarly introduction is not
acknowledged.
Theprocessofcomingupofwiththebookwouldnothavefructifiedwithoutthe
cooperation on the part of publishers.
We hope that the present volume contributes to the existing debates on the
related issues and will also trigger the future engagement on them.
New Delhi, India Prof. Mahendra Pal Singh
Bochum, Germany Prof. Wolfram Cremer
New Delhi, India Dr. Niraj Kumar
Contents
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Amitabh Kundu
Part I Social Market Economy
Social Rights in the European and the Indian Union. . . . . . . . . . . . . . . 17
Jörg Luther
“Transition from the Informal to the Formal Economy”:
The Continuing Relevance of State Law . . . . . . . . . . . . . . . . . . . . . . . . 39
Kamala Sankaran
Part II Markets and Cultural Diversity
Open Markets and Diversity of India’s Politico-Legal Ordering . . . . . . 51
Amar Pal Singh
A Peasant’s Imagination of Alternative Legal Order: Land Reform
in India, Food Security and the WTO . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Pratyush Kumar and Andreas Buser
Part III Market Liberalisation and Sustainable Development
India in Pursuit of Sustainable Development: A Critique of India’s
Trade and Investment Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
A. Jayagovind
India’s Need for a Sustainability Strategy—Creating a Stable
and Balanced Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Michael von Hauff
Globalization and Environment: Antagonistic or Agnostic. . . . . . . . . . . 123
Niraj Kumar
vii
viii Contents
Sustainable Public Procurement in Europe: Creating Markets
or Distorting the Internal Market . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Rike Krämer-Hoppe
Part IV Cooperation Between Indian and the European Union
The EU-India Development Partnership: Legal Framework
and Political Perspectives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Markus Kaltenborn
Access to Services in the EU Market: With Specific Focus
on Movement of Natural Persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
R. V. Anuradha and Ronjini Ray
Part V Market Liberalisation in Goods and Services
Free Trade Agreements and National Constitutional Law—From
CETA and TTIP Onwards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Ralph Zimmermann
Common Market Under the Constitution of India. . . . . . . . . . . . . . . . . 209
Uday Shankar
National Treatment Obligation Under Article 3 of GATT Vis-à-Vis
Indian Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
Sanjay Jain
Part VI Market Freedom of Establishment and Free Movement
of Capital
Capital Flows into India—Role of Monetary Transfer Provisions
in India’s International Investment Agreements. . . . . . . . . . . . . . . . . . . 263
Prabhash Ranjan
Legal Risks in Foreign Direct Investment in India. . . . . . . . . . . . . . . . . 289
Anil Kumar Rai
Brief Valedictory Remarks... ..... .... .... .... .... .... ..... .... 307
About the Editors
MahendraPalSingh isaProfessorEmeritusattheUniversityofDelhiandChair
Professor of Comparative Law at National Law University Delhi. He has also
servedasViceChancellorofNationalUniversityofJudicialSciences,Kolkataand
asChair oftheDelhiJudicialAcademy. Hewas aVisiting Professorandfellowat
variousinstitutionsanduniversitiesaroundtheglobeandinIndia.Hispublications
include well over one hundred papers in national and international legal journals
and several books. He is the founding editor of the NUJS Law Review and The
Indian Yearbook of Comparative Law, and has collaborated in national and inter-
nationalresearchprojectsintheareaofcomparativepubliclawandalsodirecteda
project on the nature of the Indian legal system.
WolframCremer isDeanandChairProfessorofPublicLawandEuropeanLaw,
at the Faculty of Law, Ruhr University, Bochum, Germany. He is also a Visiting
Professor at the Faculty of Law, National University of Singapore. Since 2005, he
has been the Director of the Institute for Mining and Energy Law at Ruhr
University. He has contributed numerous book chapters and essays and edited
several monographs and books. He has also made valuable contributions through
commentaries, reviews, case discussions and conference reports.
Niraj Kumar is currently an Assistant Professor at the National Law University
Delhi,whereheisalsotheResearchDirectorattheCentreforComparativeLawat
National Law University, Delhi. He taught at the Faculty of Law, University of
Delhi.Hehaspublishednumerousarticlesinnationalandinternationaljournalsand
has presented papers on environmental law, constitutional law and comparative
public law at various conferences. His areas of interest are administrative law,
constitutional law, environmental law, interpretation of statutes, jurisprudence and
comparative law.
ix
Indo-German Conference: Genesis and Beyond
Preliminary Remarks
Bynow,comparativelegalstudiesinallbranchesofprivate,criminalandpubliclaw
have become a well-known phenomenon. The phenomenon is comparatively of
recent origin and is still in the process of growth and acquisition of its final shape
even though random instances of its existence and use since Aristotle’s time are
cited.1 Doubts are still expressed whether comparative studies are suitable in all
disciplinesoflaw.2However,whatisrelevantforthecurrentpurposeisitsmodern
beginningsinsmallconferencessincethemiddleofthenineteenthcenturyinEurope
which ultimately culminated in the well-known Paris Conference in 1900. Initially
focussingonprivatelawforquitesometime,ithasslowlycreptintoalldisciplines
into its fold and is now as common in public law as in private. Furthermore, com-
parative law is now no more an exclusively European or Western phenomenon; it
has covered almost all parts of the globe. Instances of this phenomenon having
entered in the domain of public law in India are available since the middle of the
twentiethcentury towhich both Indian and German scholars richly contributed.3
In that process, one of us—Mahendra—also entered the fray in the later part
of the century expanding comparative public law from constitutional law to
administrativelaw.4Intheveryinitialstagesofthisprocess,wetwowereintroduced
1See,Rohdes(1984).
2See,e.g.,ScaliaandBreyer(2005).Seealso,foradifferentperspective,Eser(2017).
3See, e.g., Tripathi (1957) and D. Conrad, Limitation of Amendment Procedures and the Con-
stituentPower,15–16IndianYearbookofInternationalAffairs,375(1966–67)basedonalecture
delivered at Benares Hindu University in 1963. Also reprinted in D. Conrad, Zwischen den
Traditionen,47(FranzSteinerVerlagStuttgart,1999).
4ThiscouldbepossiblebecauseofDr.D.Conrad’ssuggestiontome—Mahendra—toapplyfor
AlexandervonHumboldt-StiftungfellowshipwhichIgotinearly1980.Thevisitculminatedin
mybookGermanAdministrativeLawinCommonLawPerspectivein1985whichhadarevised
editionin2001andisnowunderrevisionforthethirdeditionbySpringerPublication,Berlin,in
associationwithDr.RalphZimmermann,oneoftheparticipantsinthisconference.
xi
