M.C.MEHTA: HAS HE SHAPED INDIA'S ENVIRONMENTAL POLICY BY ELUDING TRADITIONAL STANDING DOCTRINES?

M.C. Mehta has obtained about forty landmark judgments and many orders from the Supreme Court of India against polluters; his record is unparalleled to any other environmental lawyer in the world. His lawsuits have allowed India's Courts to initiate environmental policy and incorporate environmental protection into India's constitutional case law, thereby empowering India's citizens to receive environmental redress for problems suffered by all. The following paper analyzes M.C. Mehta's victories in relation to their effect on constitutional standing doctrines. It seeks to answer whether his ability to shape environmental policy without the burden of traditional standing limitations by avoiding injury-in-fact requirements has resulted in the problems these limitations were seeking to avoid. In the alternative, it will address whether he has simply allowed the courts to provide relief to its citizens who have suffered environmental injustices without the confining procedural technicalities that would otherwise allow their fundamental rights to go unrecognized. Part I of the paper gives an overview of Indian and American constitutional framework on standing. Part II provides an in-depth look at environmental cases in the United States that focus on standing requirements. Part III details some of M.C. Mehta's environmental litigation cases. Part IV presents a comparative analysis of the two countries' approaches to environmental standing to sue as well as some concluding thoughts.

A FUNDAMENTAL RIGHT TO SHELTER?:
A COMPARISON OF THE INDIAN AND UNITED STATES' JUDICIAL SYSTEMS IN ADDRESSING THE PROBLEM OF HOMELESSNESS

The number of homeless is escalating in the United States and India. In both countries, the rich are getting richer and the poor are getting poorer. In both countries, welfare systems and urban planning have consistently failed to develop workable, long-term solutions to assist the poorest of the poor. One commentator has stated that in the United States, "[h]omeless people are doomed by [the] cycle of compassion fatigue and legislative oppression." The same statement could also be true, to a certain extent, of the citizens and legislature of India. Some of the contributing factors of homelessness in the United States include "the shrinking housing market [and] the general reduction in the availability of governmental benefits." In stark contrast to the majority of homeless in the United States who are unemployed, and often mentally or physically disabled, the homeless of India (referred to as "pavement dwellers") are a main contributor to India's economy. One study revealed that approximately 22% of India's pavement dwellers are self-employed in a trade, including cobblers, tailors, vendors, etc. and 53% are manual laborers. Another stark contrast between the two country's homeless crises is how the problem of homelessness has been litigated and handled by the judiciary. This paper will explore these differences and similarities through the discussion of the two cases from each country where the relevant supreme courts addressed whether there is a fundamental right to shelter and/or livelihood: Olga Tellis v. Bombay Municipal Corporation and Savage v. Aronson.

AFFIRMATIVE ACTION: SHIFTING THE FOCUS FROM RACE AND CASTE TO SOCIO-ECONOMIC ISSUES
How do we help those who really need it?

Is affirmative action the "big payback" for African-Americans? Can African-Americans ever be "paid back" for the atrocities their ancestors suffered? Should present-day African-Americans be the recipients of "preferential treatment" because of the suffering of their ancestors? These questions are a few that immediately spring to mind when one thinks of affirmative action. ... In Grutter v. Bollinger, the University of Michigan's law school drafted its admission policy to comply with Bakke. The law school's consideration of race and ethnicity did not use quotas. Race and ethnicity, along with a range of other factors, were potential "plus" factors in an applicant's file, but they did not insulate an under-represented minority applicant from competition or act to foreclose competition from non-minority applicants. ... The unsuccessful applicants focus principally on the effects of the law school's policy, contending that the law school's pursuit of a "critical mass" is the functional equivalent of a quota because it has resulted in a range of under-represented minority enrollment from 10%-17%. The district court held that achieving a diverse student body is not a compelling state interest because (1) it was not bound by Justice Powell's conclusion in Bakke, and (2) achieving a diverse student body cannot be a compelling state interest because the Supreme Court has suggested that the only such interest is remedying specific instances of discrimination. However, the 6^th Circuit ruled that Justice Powell's opinion is binding on the court under Marks v. United States, and therefore Bakke remains the law until the Supreme Court instructs otherwise. They therefore rejected the district court's conclusion and found that the law school does have a compelling interest in achieving a diverse student body. Until the Supreme Court speaks again on this matter, different circuits will continue to rule as they see fit.. This writer submits that America should look to other countries, like India, with functioning affirmative action programs to study the ways in which they implement affirmative action.

COMPARATIVE ANALYSIS OF THE EXECUTIVE BRANCH'S ACTIONS IN THE POST SEPTEMBER 11^TH ERA

The United States of America is the most powerful and admired democratic government in the world. This status, however, was not achieved easily. Its citizens have endured wars of all types and endured many treacherous situations but never has the country seen anything similar to the current state of affairs. America is neither in war nor peacetime in this post September 11^th era. This phenomenon has given rise to many legal questions that will need to be addressed by the judicial system. ... After the wake of the attacks, the government began to round up people who can be classified into three categories: immigration violators, material witnesses and enemy combatants. Persons being held in each of these classes have sought judicial review of what they find to be unconstitutional and therefore unlawful detainment. Each of these classifications has their own different yet valid arguments; nonetheless, the enemy combatant poses the most unique issue for the courts. This "enemy combatant" label sprouted from the Bush administration after the terrorist attacks and is found nowhere else in American history.

India and the United States of America are very similar in that India was under English rule and adopted much of their legal system and theory from them just as the United States did. Further, India is a fairly young democratic nation in which its founders studied, to a great extent, the American constitution and court decisions when framing their own constitution. Due to the similarities in the two nations and the fact that India has experienced similar circumstances with preventive detention, their legal history is invaluable. The Indian Constitution specifically allows for preventive detention anytime that Parliament "may by law prescribe". This process has been criticized by some, in short, "[P] reventive detention is a necessary evil but essentially an evil" yet it still remains in their constitution and is upheld by their highest courts.

PREVENTIVE DETENTION OF ENEMY COMBATANTS

The aftermath of the September 11 terrorist attacks on New York and the Pentagon has found the United States in an unprecedented position. For the first time in recent recollection, we as Americans are faced with an enemy which does not wear uniforms to announce its loyalties, does not recruit exclusively from any one nation's population, and wages acts of war on metropolitan battlefields with civilian casualties. These circumstances raise myriad questions about the roles of our nation's security agencies, armed forces, and judicial traditions. In this article, I will address only one subset of this last category: what roles should each branch of our government have in the detention of so-called "enemy combatants" to prevent future attacks and protect the American people, that are consistent with the Constitutional freedoms which have defined our nation for over two hundred years. ...

U.S. lawmakers would be wise to consider the development of preventive detention law in India. Article 22 of the Constitution of India provides general parameters governing preventive detention. Section (1) of the Article requires that every detainee be informed of the grounds of his detention and be afforded the right to legal counsel. Further, the detaining authority must justify the detainee's arrest within twenty-four hours to the Magistrate in order to extend the custody beyond that period. In addition to these general provisions, Section (7) contemplates specific Parliamentary treatment of certain classes of people. Article 22(4) dictates that no such law passed by Parliament may detain a person for more than three months unless a special Advisory Board comprised of judges approves. Furthermore, while detainees under specific laws must be informed of the grounds of their detention, just like the general detainees under Section (1), Section (6) allows the detaining authority to withhold these grounds if it is considered to be "against the public interest to disclose."