This paper argues that the Supreme Court of India has been sceptical about reservation in promotion since the State began making promotion policies in employment. The reasoning provided by the Court during the period from 1960s leading to the Indra Sawhney decision will reflect that the opinions of judges were premised on ‘what would be’ the effect of reservation in promotion or ‘what ought to be’ the contours of reservation as opposed to what is provided for in the Constitution. Subsequently, with introduction of more explicit amendments in the Constitution regarding promotion, the Supreme Court has only expanded its scope of judicial review. Invoking a rigorous form of judicial review akin to the strict scrutiny principle, the Supreme Court has since, struck down reservation policies for promotion on the ground of non-fulfilment of ‘objective’ prerequisites including proof of backwardness, under-representation of communities in services and administrative efficiencies. These prerequisites were actually and only meant to be for the subjective satisfaction of the State. However, the aggravated level of judicial review on this issue has resulted in the turning of Article 16(4-A) into a hollow promise which merely exists in the text of the Constitution of India.
Therapeutic Jurisprudence studies the manner in which law may be used as a tool for healing. By integrating law and psychological health, this field of legal scholarship seeks to evaluate the ameliorative effect of the legal process on the well-being of the participants. The object of its study is to determine how legal rules and procedures can and ought to be re-shaped to enhance their therapeutic potential, without having to compromise the due process of law. In the aforementioned context, this paper examines how the core principles underlying therapeutic jurisprudence were ignored by the District Court of New Jersey while dealing with the high-profile case of Anna Stubblefield, who was charged with criminal sexual assault for having an allegedly non-consensual sexual relationship with a man who had cerebral palsy. The paper will analyse the instances in the trial where his alleged ‘lack of intelligence’ was tried to be established at the cost of dehumanising the victim. Continuing in the same vein, this paper also attempts to look at how language used in our day-to-day lives is inherently loaded with ableist and sanist assumptions so as to maintain power structures – a hierarchy designed specifically to subject certain bodies reflective of any differentness to be considered undesirable, and tries to develop an interdisciplinary understanding to address the issue. We further suggest adopting a ‘situational approach’ in such cases to ensure that the intellectually disabled participants are treated with dignity. Further, the paper argues that the victim’s sexual autonomy was not considered in the wake of his disability, and considers the manner in which the ableist and patronising approach adopted by such policies disregards the agency of differently abled individuals.
The advisory committees and the capital market regulator in India have every so often tried to arrive at a definition of control that will allow them to fittingly mandate the release of takeover bids on acquisition of control over a company. Bearing in mind that merely a quantitative test to determine control may be easy to circumvent, the regulator has adopted the use of a qualitative test, along with the quantitative test, to determine the acquirers who may said to be in control of the company. However, this approach towards the interpretation of control has raised many issues, with the adjudicators failing to conclusively determine what constitutes control. This has subsequently led to the regulator necessitating or exempting the investors from coming out with an open offer in an incoherent way, injuring the interests of the investors or the minority shareholders, respectively. In light of this unsettled approach with respect to control and mandatory takeover bids under the takeover regulations, I decipher the actual purpose behind mandatory takeover bids to suggest what shall in fact result in a change of control that the minority shareholders had not assented to originally. Keeping in mind this change of control that mandates a takeover bid, I shall then attempt to show what actually constitutes control over a company, and why, partial equity ownerships below the numerical threshold may at times constitute control even if any additional right may only be reactive. Concurrently, I critique the approach taken by the advisory committees in suggesting the numerical threshold for triggering an open offer. I conclude by suggesting a germane approach with respect to the interpretation of control and the release of takeover bids, hypothesising an increased numerical threshold.
Universal Basic Income (‘UBI’) is a regular cash payment made to all individuals by the State without any means or work testing. It has historically been debated upon and more than a few justifications for UBI have been made. UBI has entered policy debate in India ever since UBI was proposed by the Economic Survey 2016-17 as a social welfare scheme suitable for India. In this paper, a normative justification for UBI is sought to be arrived at. A right to basic income, by promoting ‘real freedom’ of individuals is said to be a part of the conception of substantive dignity of all individuals. It is important for the actualisation of other rights and freedoms of an individual. Associated benefits of UBI include realizing the right to adequate standard of living, respecting autonomy rights of individuals and as a policy intervention in combating poverty and inequality. The lessons from UBI experiments conducted in different places also sufficiently highlight the advantages of UBI. The challenges in implementing UBI in India are discussed in the course of this paper alongside a critical analysis of a model that seeks to overcome these challenges.
The Law Review from its inception has worked to push the boundaries of academic literature, garnering literature from students, academicians and professionals. When Professor MP Singh, founded the journal back in 2008, he had a vision of an academic journal which provided a platform to academicians, professionals and students alike to express their views in a manner which would be conducive to educating readers about various dimensions of the law as it stands and the law as it should be. Professor Singh wished to create a journal which would be at par with foreign law school reviews in terms of quality. Throughout the years, the editorial boards have attempted to maintain the threshold of quality set by Professor Singh while ensuring the frequency of issues is consistent. The NUJS Law Review has sought to sustain and support legal excellence through its continued standards of publication…
In Shayara Bano v. Union of India, the Indian Supreme Court pronounced a split, though bold and progressive verdict setting aside the practice of instant triple talaq or talaq-e-biddat. Against the backdrop of this judgment, this paper traces the jurisprudence evolved by Indian courts vis-à-vis personal laws and the right to religious freedom. Two central arguments are presented in the course of this paper. First, the courts have not adopted a consistent approach when dealing with issues connected to personal laws. Second, the courts by means of the doctrine of essential religious practices have, besides interfering in the domain of personal laws, attempted to fashion the religion specific personal laws as per the understanding of the respective judges. In relation to this, the paper briefly considers the efficacy of the top-down approach of personal law reform which has been practised in India in the post-independence period. While showing that the top-down approach of personal law reform has not fared well in the Indian context, the paper suggests a different and more inclusive approach which can be adopted in the endeavour to reform personal laws.
The Indian judicial system has often been criticised for high rates of pendency, inefficient functioning, and adoption of an archaic approach to dispute resolution. The need to establish alternate pathways of dispute resolution has been emphasised on numerous occasions by the Law Commission of India as well as acclaimed scholars. Mediation has been identified by legal practitioners as a suitable technique for resolving a variety of disputes. However, such an alternate form of dispute resolution is yet to gain popularity in India, with the lack of legislative sanction being cited as a key reason for its underdevelopment. This paper seeks to understand mediation as an alternate dispute resolution technique and explores reasons regarding why mediation will prove to be a suitable pathway for litigants in India to resolve disputes in an amicable and inexpensive manner. Additionally, this paper discusses the different forms of mediation regulation across jurisdictions and argues that the creation of a national legislative framework would be the ideal next step in India.
The Battered Woman Syndrome (‘BWS’) was developed as a psychological tool to understand the mental state of battered women who kill their batterers. This article examines the BWS with the objective of placing it within the specific statutory framework of the Indian Penal Code (‘IPC’). It firstly describes the theoretical basis for BWS, as developed by Dr. Lenore Walker and relies on two key concepts, the cyclical theory of violence and learned helplessness. It then presents a defence of BWS against a few points of criticism that the syndrome has attracted over the years. These include, inter alia, its negative impact on the deterrence of crimes against batterers and its symptomatic approach to the behaviour of battered women. Secondly, a cross-jurisdictional analysis of BWS cases in the USA, UK and Australia reveals how it has been used to fit battered women’s behaviour into existing legal defences such as provocation and self-defence by revealing insights from their mental state at the time of commission of the offence. After a consideration of three exceptions under IPC, namely private defence, provocation and necessity, it is concluded that since the experience of battered women does not fit within the literal requirements of these exceptions, there is a need to apply BWS to all the three exceptions, to allow women to claim these defences. This requires changes to the current form of these exceptions to expand their scope of applicability. To that end, the article concludes with a proposal for an amendment to the existing exceptions, and framing a new one generally or under §300 of IPC. It envisages the formal inclusion of the Battered Woman Defence in the Indian legal system.
This article is written at a critical time when countries across the world are meaning to design effective ways to tackle the international tax challenges posed by digital economy. Although the Organisation for Economic Co-operation and Development’s final report on base erosion and profit shifting Action 1 discusses some of the key challenges, it does not provide concrete solutions or recommendations for world governments to act upon. We note that the traditional international tax rules governing source-based taxation of business profits of foreign enterprises need to be reconceptualised in view of the recent advancements in information and communication technology. This could be done by supplementing the current “physical nexus” rule stipulated in the permanent establishment article of tax treaties with a new nexus to tax based on “significant economic presence”. We recommend two Options that countries can consider while drawing this new nexus.
The paper maps four decades of coal sector litigation before the Supreme Court of India and draws a narrative on the constitutional contestation and the legal position as it stands today. Coal is one of the most important minerals from an economic perspective, accounting for over sixty percent of India’s energy requirement. The Constitution of India empowers both the Centre and states with legislative powers relating to regulation and control over mines and minerals, including coal. The coal sector has witnessed highly contested and protracted litigation with respect to law-making powers between the Centre and state governments, and this has impacted business and society in many ways. Through a mapping of judicial decisions of Supreme Court, the contested nature of governance of Indian coal sector is detailed in the paper. The Court has consistently maintained a greater responsibility of regulating mines and mineral development on the Union government. However, advocating sustainable use of coal resources, the Court emphasised that the regulatory power vested with Centre and states must have its basis on public interest and coal must be treated as a material resource of the community.