• Articles
  • How the ‘Permanent Establishment Rule’ Outlived its Utility in a Digitized World

    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.

  • Articles
  • Constitution, Supreme Court and Regulation of Coal Sector in India

    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.

  • Articles
  • Criminalisation of Marital Rape: Understanding its Constitutional, Cultural and Legal Impact

    The law in India does not criminalise marital rape, i.e. the Indian Penal Code, 1860 does not recognise that it is a crime for a husband to rape his wife. The reasons for this are manifold and can be found in various reports of the Law Commission, Parliamentary debates and judicial decisions. The reasons range from protecting the sanctity of the institution of marriage to the already existing alternative remedies in law. In this paper, we depict how these arguments advanced to not criminalise marital rape are erroneous. Through an analysis of Article 14 of the Constitution of India, we argue that the marital rape exception clause found in the Indian Penal Code, 1860 is wholly unconstitutional. Further, we note the lack of existing alternative remedies for a woman to seek redress under if she is raped by her husband. We conclude on the note that criminalisation of marital rape is wholly necessary. We propose a model for the same by suggesting amendments to criminal law as well as noting the changes required in civil law, particularly the law relating to divorce.

  • Articles
  • Locating a Moral Justification for State Funded Gender Affirmative Healthcare

    The judgment of the Supreme Court in National Legal Services Authority v. Union of India while a landmark development in recognition of transgender rights, threw open a Pandora’s box full of questions having moral and legal dimensions. One such question pertains to the obligation of the state to fund gender affirmative healthcare services such as sex reassignment surgeries (‘SRS’). Given how prohibitively expensive they are, this paper interrogates whether the state has a duty to provide for such healthcare services and attempts to provide a normative justification for the same. In the process, it rejects the two most popular reasons advanced for state funding – the identity thesis, and the autonomy framework. Drawing from Amartya Sen and Martha Nussbaum’s capability approach, it instead argues for a shift towards an assessment based on the impact healthcare services have on the ‘quality of life’ of transgender persons.

  • Articles
  • Reinventing Regulation: The Curious Case of Taxation of Cryptocurrencies in India

    Nearly twenty-five years ago, the internet disrupted the world and started a new era of technological supremacy. Today, with the rise of cryptocurrencies and its underlying technology, we stand at the helm of another such revolution. Cryptocurrencies like bitcoin are decentralised, digital currencies relying on a peer-to-peer network which operates without the need for a third-party intermediary like the Reserve Bank of India. Coupled with lack of regulatory guidance, its unique technical aspects create huge complications in its taxation. While much ignorance still prevails in respect of cryptocurrencies, countries around the world have finally started taking notice and acting upon it. This paper focuses on what cryptocurrencies are, why they are important, and the prevailing regulatory structure concerning them. It overviews the complete landscape for taxation of cryptocurrencies like bitcoin, analysing the indirect and direct tax structure, particularly after the implementation of Central Goods and Services Tax Act, 2017, while also addressing the issues concerning the evasionary practices. The findings help in assessing the regulatory aspects in light of the technological, economic, social and financial forces, and establishing a set framework for taxation of cryptocurrencies.

  • 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.

  • Articles
  • 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…