• Articles
  • Determining the Constitutionality of Constitutional Amendments in India, Pakistan and Bangladesh: A Comparative Analysis

    Unconstitutional constitutional amendments present an intractable conundrum in constitutional law theory and praxis, not the least because of the literal paradox in the term itself. The age-old tussle between the Parliament and the Judiciary, in delineating the scope of their powers, has had inevitable spill-over effects on determining how far a constitution can be altered and negated. We argue that a conflation of the variegated categories of constituent powers has led to the evolution of misplaced critiques of implied restrictions on the Legislature’s constitution-amending powers, which characterise doctrines such as the Basic Structure Doctrine to be ‘counter-majoritarian’ checks on democracy and effective political change. In order to understand and engage with these criticisms more fully, we embark upon a comparative constitutional inquiry into the developments of the Basic Structure Doctrine in India, Bangladesh and Pakistan. In an effort to seek clarity as to the scope and limitations of these doctrines, we engage with the oft-reiterated criticisms levelled against this doctrine, not simply by evolving a cogent epistemology on constitutional amendments, but rather with a focus on the actual evolution of the doctrine by the courts themselves. Such comprehensive engagement helps to dispel much of the objections and convoluted interpretations of the long-winded jurisprudence in this sphere, and serves to bring out the versatility of the doctrine in different jurisdictions with different socio-political contexts. We also critically examine the development of the Salient Features Doctrine in Pakistan, to determine how far it can be distinguished from the Basic Structure Doctrine, and how far it overcomes the objections to constitutional borrowing and legal transplantation from foreign jurisdictions. We seek to answer questions, both old as well as emerging, that accompany the operation of these doctrines, and to delve into the implications that these answers hold for Constitution-making and Constitution-amending powers.

  • Articles
  • Reforming the World Bank to Transform India

    The World Bank and India can change their relationship by adopting the “Reform to Transform India” approach. In this paper I will focus on the World Bank’s conditional aspect of loans and voting power in relation to India. In addition, this will help other developing economies. In this paper I will focus on these two aspects because the aspects of conditionality and voting share can be legally reformed for better and successful governance of the World Bank in relation to developing economies especially India. The Reform to Transform approach encompasses altering lending conditions imposed on countries and governance changes. In this paper I will seek to alter the conditions imposed on India through World Bank loans. Additionally, in the Reform to Transform approach I will seek to alter voting power in the World Bank structure to allow borrowing countries such as India with more leverage in negotiating loan terms. In this paper I will examine the historical function of the World Bank, how the World Bank has affected the Indian economy since independence, the legality of loan conditions and governance structures among World Bank members, and provides recommendations for how the World Bank should engage developing countries like India in the future.

  • Articles
  • Trade Dress in the Commercial Kitchen: Exploring the Application of the Lanham Act to Food Plating in the Culinary Industry

    The culinary industry has become a creative zone, with revered chefs from all around the world producing magnificently innovative plating designs that have, along with wide critical acclaim, also unintentionally birthed equally expensive and often rather impressively imitated culinary knockoffs. The laborious task that is the designing and plating of a beautifully presented dish has often come to result in the dish’s plating becoming the restaurant’s unique selling point, with its market tending to associate the dish exclusively with its source-restaurant/chef. Herein emerges the need for an evaluation of existing intellectual property law regimes to examine whether their protective ambit may be extended to include innovation food plating designs, to ascertain legality of similar/identical reproductions emerging from other commercial kitchens. In this paper, I have restricted the discussion to an investigation of the protection offered to chefs for the presentation and appearance of their dishes exclusively to trade dress law under the USA’s Lanham Act.

  • Articles
  • Economic Approaches to Promotion of Clean Energy

    The uncontrolled exploitation of Earth’s resources has resulted in irreversible changes in the environment generally and the climate in particular. Therefore, a global and immediate policy response is urgently required to reduce greenhouse gas emissions and mitigate climate change. There is compelling evidence that climate change is the greatest and widest-ranging market failure ever seen. To combat the resultant market failure and externalities, there is a need to tackle climate change through economics. The paper aims at portraying the certainty associated with the economic approaches, rather than the policy approaches for combating climate change. A carbon tax seems to be a potent mitigation policy, other policies being cap and trade, renewable portfolio standards, feed-in tariffs, production tax credits. If these policies are implemented exclusive of each other, irrespective weaknesses may cause hurdles, however, if harmonised internationally, they can be effective in promoting clean energy and thereby helping combat climate change. We compare these policies in different countries with a view to comprehensively analysing their respective roles in combating climate change.

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  • Editorial Note

    The celebrated verdict in Justice KS Puttaswamy v. Union of India, has raised two questions of relevance for gender and sexual minorities – first, the criminalisation of marital rape and second, the de-criminalisation of Section 377 of the Indian Penal Code. In the course of this section of the note, we provide a jurisprudential analysis of these two issues. In particular, we aim to analyse the complex debates on the relationship between privacy and marital rape, along with privacy and sexual freedom. Although the Puttaswamy verdict is being hailed as a victory for women and sexual minorities, it raises several theoretical issues that must be subject to preliminary analysis…

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  • Editorial Note

    Tribunals were created as administrative adjudication bodies with the objectives of expediting the process, reducing the workload on the courts, and ensuring that both experts and judicial members would form part of the forum. On March 31, 2017, the Finance Bill, 2017 which aimed at merging as many as eight tribunals with other tribunals received the assent of the President, thus giving birth to the Finance Act, 2017, one of the most controversial pieces of legislations in the recent times. When the Bill was tabled before the Lok Sabha, it was voted to be a money bill and was approved by the Lok Sabha. The Finance Act, 2017 made amendments to the Companies Act, 2013, Competition Act, 2002, Industrial Disputes Act, 1947, Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, Copyright Act, 1957, Trademarks Act, 1999, National Green Tribunal Act, 2010 among other legislations so as to provide for merger of certain tribunals and lay down the conditions of service of members of such merged tribunals. The Finance Act has provided for the merger of Competition Appellate Tribunal (‘COMPAT’) with the National Company Law Appellate Tribunal (‘NCLAT’). The provisions regarding this amalgamation of tribunals were made effective from May 26, 2017 through a notification of Ministry of Finance. Further, on June 1, 2017, the Ministry of Finance also notified The Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules, 2017 (‘Rules’) which gives undue power to the government for the appointment, control and disqualification of the members of the merged tribunals…

  • Articles
  • ‘Continuing Mandamus’ – A Judicial Innovation to Bridge the Right-Remedy Gap

    The sanctity and credibility of the democratic legal system is intrinsically linked to the enforceability of rights, a task typically adjudged to the judiciary. However, the constitutional court’s image as the defender of rights has come into scrutiny due to its incapability of ensuring government compliance, especially in cases requiring enforcement of positive state duties. Socio-economic rights, for instance, propose a major challenge to the judicial and legal system where coercing state action is at times an insurmountable task. The Indian Supreme Court, tip-toeing around the constitutional separation of powers, has devised the novel writ remedy of ‘continuing mandamus’ to prevent the failure of constitutional promises. Instead of passing a final judgement that would end the litigation, it keeps the case pending, entering into a dialogue with the political and administrative wing, prodding to alter government action, or inaction. This paper discusses the Supreme Court’s procedural innovation in the backdrop of the enforcement conundrum. Locating the need for the remedy in constitutional and rights theory, the paper traces judicial trends, and extensively reviews the use of the remedy by the Indian Supreme Court over the years. The authors assess the effectiveness of how the remedy is being administered, identifying reasons for the success of some interventions, vis-à-vis others, trying to locate the shortcomings and roadblocks to the court’s approach.

  • Articles
  • Legislative Strategy for Setting up an Independent Debt Management Agency

    The Public Debt Management Agency is a body that issues public debt with the objective of keeping long term costs of government borrowing low. In India, the existing legal framework obliges the government to give the task of managing its debt to the Reserve Bank of India. Pursuant to its role as debt manager, the Reserve Bank of India set up market infrastructure, such as an exchange and a depository. Carve-outs were made in the regulation of securities to allow the Reserve Bank of India to regulate the bond market. Over the last twenty years, the proposal to establish an independent Public Debt Management Agency has been repeatedly put forward. In this paper, we work out the legal strategy to set up a Public Debt Management Agency. We show the transition path for the roll out and for the movement of the functions, accounts, records and systems to the new agency in a phased manner.

  • Articles
  • Broadening the Scope of Liabilities for Cruelty against Animals: Gauging the Legal Adequacy of Penal Sanctions Imposed

    Recently, several incidents pertaining to cruelty being inflicted on animals have come to light, questioning whether an amendment to the present Prevention of Cruelty to Animals Act, 1960 is indispensable. The Act, which was framed several decades prior, envisages a sentencing policy and penalties that were probably adequate during that period, but need to be re-examined now in terms of the adequacy and nature of liability imposed. This requires looking into whether the criminal penalty and the provisions for receiving bail as provided under §11 of the Act are sufficient in present times, in light of lack of proportionality between the offence and the punishment meted out. Further, we note that the imposition of criminal liability altogether may not be completely adequate, and thus civil liability needs to be considered. We suggest the imposition of civil liability along with criminal liability for offences against animals. Civil liability would grant the State the status of ‘guardians’ or ‘trustee’ of animals and the power to sue the offenders to receive remedies. Hence, a solution is suggested in the form of statutory amendments and better implementation mechanisms. We also enumerate hypothetical applications of these solutions with respect to the imposition of liability. to determine their potency. The paper shall conclude on the note that an amendment to the current sentencing provisions and penalties of the Act is imperative, along with imposition of civil liability, to prevent rampant occurrences of animal cruelty in the future.

  • Articles
  • Looking into the Black Box: Holding Intelligent Agents Accountable

    Since the 1950s, mathematicians and scientists have theorised the concept of artificial intelligence and tried to understand the relationship it would have with humans. Although, originally viewed as the creation of human-esque machines, modern artificial intelligence tends to be applied to situations involving complex information and intelligent application of reasoning. Taking many different forms, the information technology industry has begun to actively invest in the creation of artificial intelligence systems at a never-seen-before scale. These systems have already begun to appear in common digital technology available today. The complexity of these systems offers both benefits and dangers to the community at large. A matter of particular concern is the obfuscated nature in which these systems work, creating a ‘black box’ over the internal functioning of the system, which, in extreme circumstances, could lead to a denial of legal and human rights. Currently, most artificial intelligence systems can be characterised as intelligent agents, as they take into consideration past knowledge, goals, values, and environmental observations to evaluate the situation and take actions appropriately. The conception of artificial intelligence systems as intelligent agents allows for a focused understanding of this novel legal problem, based upon which evaluations relating to accountability can be better framed. In this paper, I will focus on why it is important to hold artificial intelligence accountable and the most significant obstacles that prevent this goal from being achieved.