Mahendra 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 ©SpringerNatureSingaporePteLtd.2019 Thisworkissubjecttocopyright.AllrightsarereservedbythePublisher,whetherthewholeorpart of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission orinformationstorageandretrieval,electronicadaptation,computersoftware,orbysimilarordissimilar methodologynowknownorhereafterdeveloped. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publicationdoesnotimply,evenintheabsenceofaspecificstatement,thatsuchnamesareexemptfrom therelevantprotectivelawsandregulationsandthereforefreeforgeneraluse. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained hereinorforanyerrorsoromissionsthatmayhavebeenmade.Thepublisherremainsneutralwithregard tojurisdictionalclaimsinpublishedmapsandinstitutionalaffiliations. ThisSpringerimprintispublishedbytheregisteredcompanySpringerNatureSingaporePteLtd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore 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