• 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.

  • Articles
  • Triple Talaq – Gender Concerns and Minority Safeguards within a Communalised Polity: Can Conditional Nikahnama Offer a Solution?

    This article is written at a critical juncture, as we await the Supreme Court verdict on the triple talaq issue. The aim here is to trace the trajectory of this entire debate and analyse the various strands of the arguments presented before the Supreme Court. While it is anyone’s guess which way the verdict will go, this article focuses attention on the Supreme Court’s directive issued at the end of the hearing regarding the use of a conditional nikahnama to restrain husbands from pronouncing arbitrary and instant triple talaq. By placing legal developments against the political backdrop, the article attempts to comprehensively address the interplay between gender, community and law in the present with triple talaq as the context.

  • Articles
  • The India – Solar Cells Dispute: Renewable Energy Subsidies under World Trade Law and the Need for Environmental Exceptions

    In 2013 certain measures adopted by India under the Jawahar Lal Nehru National Solar Mission were challenged by the United States before the World Trade Organization in the India–Solar Cells dispute. One of the measures was the grant of long-term power purchase agreements to solar energy providers, based on domestic content requirements. Though the United States initially challenged this as violating the Agreement on Subsidies and Countervailing Measures, the Panel did not address this clam as it was subsequently withdrawn by the United States. The subsidisation of renewable energy restricts free trade, and potentially conflicts with the obligations of States under the Agreement on Subsidies and Countervailing Measures. This paper seeks to provide a justification for the potential violation of the Agreement on Subsidies and Countervailing Measures using the environmental exceptions provided under Article XX of the General Agreement on Tariffs and Trade, such that the essential balance between trade liberalisation and the right of regulation of States is maintained. For this purpose, the potential implications of the existing renewable energy subsidy policies in terms of conflicts with the Agreement on Subsidies and Countervailing Measures are examined, along with an analysis of the previous cases involving such conflicts. Thereafter, an analysis is done of the covered agreements under the WTO to which the exceptions under Article XX of the General Agreement on Tariffs and Trade are applicable, either directly or indirectly. Drawing from this analysis, it is argued that the exceptions under Article XX of the General Agreement on Tariffs and Trade should be applicable to the Agreement on Subsidies and Countervailing Measures potentially violated by renewable energy subsidies. Finally, the implications for the Indian renewable energy sector are discussed, in the event that the balance between free trade and the right of States to regulate in light of environmental concerns is maintained.

  • Articles
  • Editorial Note

    Lobbying is a complex phenomenon, generally used to refer to activities related to influencing policy-making, particularly to influence a legislator’s vote to meet personal interests. Different countries have taken distinct approaches to understand and address lobbying. However, conceptually lobbying has remained difficult to address, due to the difficulty in identifying those interactions with legislators that constitute lobbying and those that are merely regarded as forms of advocacy. However, a large part of the debate stems from the negative perception of lobbying, which arises primarily due to the lack of clarity in the type of policy that is derived from such activities.

  • Articles
  • Role of Indian Regulatory Authorities in Integrating Environmental Justice into Industrial Siting Decisions

    In the wake of the horrors wrought during the Bhopal gas tragedy, the issue of environmental justice was catapulted to the forefront of public discourse in India. Numerous studies and surveys conducted thereafter shed light on the unequal distribution of environmental benefits and harms between middle-to-high income communities and the low-income communities. While certain regulatory initiatives have been undertaken thereafter to mitigate these harms, the concerns of the marginalised communities are yet to be fully integrated into every environmental decision that affects them. This is specifically true in the context of industrial siting, where the concerns of the poor are given superficial consideration. In this paper, I attempt to assess the Indian legal framework on industrial siting through the lens of environmental justice, and to justify the need for incorporating principles of environmental justice within the Indian legal and regulatory framework. I seek to examine the extent to which the current framework on industrial siting decisions incorporates these principles, and to explore the ways in which environmental justice concerns have been incorporated into the domestic law of the USA, and how they are relevant for India. This analysis enables in outlining the recommendations on the measures that Indian regulatory authorities should take, so as to accord greater emphasis on environmental justice under laws relating to industrial siting. The proposed measures could be implemented by regulatory authorities by virtue of their duties under Articles 21, 19(1)(a), 14 and 15(4) of the Constitution.

  • Articles
  • Judicial Review and Money Bills

    Under the existing constitutional scheme in India, for a bill to be enacted into a law, it has to be approved by both Houses of the Parliament – the Lower House (Lok Sabha) and the Upper House (Rajya Sabha). However, one significant exception to this general rule is the certification of a bill as a ‘money bill’ by the Speaker of the Lower House, whereupon the bill can be enacted into a law by the Lower House alone, without any approval from the Upper House. Although the scope of a ‘money bill’ is broadly delineated in the Constitution, it is possible that a bill could be incorrectly certified as a ‘money bill’ by the Speaker and enacted into a law without the approval of the Upper House. Further, the Constitution accords finality to the decision of the Speaker as to whether the bill is a ‘money bill’, thus raising issues such as whether such finality would bar the Supreme Court from reviewing the accuracy of the Speaker’s decision in this regard; and whether the Supreme Court can strike down such a law as being unconstitutional, if the Speaker’s decision is indeed found to be incorrect. In this paper, we examine these questions which are of immense contemporary relevance in India, and attempt to posit our conclusions to the same.

  • Articles
  • Religious Freedom under the Personal Law System, Farrah Ahmed, Oxford University Press, 2016

    The Personal Law System (‘PLS’) refers to the legal arrangement through which distinct laws are applied to individuals within a single polity, keeping in view their peculiar religious identities. It co-exists with the general territorial law, and pertains to the sphere of family laws (relating to marriage, divorce, maintenance, guardianship, adoption), as well as regulation of inter-generational transfer of property (succession, inheritance, wills) and religious establishments…

  • Articles
  • Reassessing the Role of the Rajpramukh: An Analysis of the Continuing Relevance of the Governor’s Position

    Beginning with the Constituent Assembly, the issue of gubernatorial discretion has often invited great debate, which has only intensified over time. In this paper, we attempt to identify the need to continue with the position of the Governor as the Centre-appointed Head of the state. Considering that the debates in this field remain highly polarised even today, we trace the trajectory of the Constituent Assembly Debates regarding the creation of the post of the Governor, so as to examine what this position was envisaged to entail. Further, we revisit the controversies surrounding the exercise of ‘gubernatorial discretion’, and analyse the Supreme Court’s decisions emphasising the limits to the same, as well as the recommendations of the Sarkaria and Punchhi Commissions on Centre-State relations. Our analysis culminates in a discussion regarding the ultimate utility of retaining this position in the future in light of the recent political developments. We seek to espouse a fresh perspective towards understanding the continued relevance and significance of this office, and aim to provide holistic suggestions for maintaining its apolitical mandate, as conceived by the Founding Fathers of India and as manifested in the text of our Constitution.

  • Articles
  • Caste and Justice in the Rawlsian Theoretical Framework: Dilemmas on the Creamy Layer and Reservations in Promotions

    In contemporary times, there has been constant debate on the legitimacy and efficacy of caste-based affirmative action systems in India. The Supreme Court has laid down the ‘creamy layer’ exclusionary principle that has caused a nation-wide stir. Additionally, in March 2016, the Supreme Court issued a controversial judgment on reservation in promotions in the matter of Suresh Chand Gautam v. State of Uttar Pradesh. In the backdrop of these developments, this paper is an intervention that locates affirmative action policies within the Rawlsian theoretical framework on justice. In the course of this paper, we provide a critique of the 2016 judgment. Additionally, we demonstrate that although an exclusion of the ‘creamy layer’ from the scheme of reservations may be constitutionally valid, it is important for the law to respond to the social stigmatisation and caste-based discrimination that members of these groups face. We extend the Rawlsian frame, using the idea of reflective equilibrium, to suggest how actors behind the veil of ignorance would respond to the question of the ‘creamy layer’ and the question of reservation in promotions. We also make some legal recommendations on these issues that would further the consensus arrived at and cater, responsibly and holistically, to the linkages between caste, power and justice in present-day India.