• Articles
  • How Accommodating is Reasonable Accommodation: Analysing India’s Rights of Persons with Disabilities Act, 2016

    Over one billion people worldwide suffer from a disability. Equal access in education and employment for this community of people is a  primary focus of the disability rights movement. The barriers to achieving this are compounded in developing nations, where jurisprudence on this issue remains lacking. Foremost among these barriers is the definition of disability adopted in varying jurisdictions, which often focuses on the medical, rather than social, model of disability. One of the most significant ways to combat discrimination against persons with disabilities remains the right of reasonable accommodation, first proposed in the United States of America (‘USA’) in the landmark Americans with Disabilities Act, 1990. This paper adopts a cross-jurisdictional approach to the issues of defining disability and adoption of the right of a reasonable accommodation in the spheres of education and employment, comparing the construct of the Americans with Disabilities Act, 1990 against the (Indian) Rights of Persons with Disabilities Act, 2016, with the aim of providing suggestions to fortify Indian jurisprudence in this area of law. 

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  • ‘Consent’ in False Promise to Marry: Deceptive Sex and the Legal Knot

    Promise to marry cases involves instances where the prosecutrix alleges that her consent to sex is vitiated since it was given under a belief of the misrepresentation made by the defendant that he would marry her in spite of him having no such intention to do so from the start. This note adds to the discourse surrounding false promise to marry cases by assessing the harms inflicted by such deceptive acts and exploring whether a civil remedy could effectively center women’s agency within this context. The note challenges the prevailing notion that ‘vitiation of consent’ should serve as the litmus test for addressing these cases as this criterion falls short in capturing the nuanced dynamics inherent to such situations and perpetuates harmful stereotypes and outdated norms. Furthermore, a careful analysis of Clause 69 within the proposed Bharatiya Nyaya Sanhita Bill, 2023, reveals potential shortcomings associated with criminalisation, such as intrusive legal proceedings and the possibility of misuse. The note then looks at the possibility of a civil remedy highlighting certain advantages and disadvantages. The overarching aim remains the elevation of women’s subjectivity in both the perception of such conduct and the ultimate outcomes of these cases.

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  • The Need for a New National Zoo Policy in India: A Jurisprudential Approach

    Zoos have become a common feature in all major cities and townships in India. They serve as a means of recreation, revenue generation, and scientific studies. Moreover, with the recent decision of the Supreme Court in on Jallikattu, animal rights have again taken the centre-stage in legal discourse. This note argues for a systematic, step-by-step abolishment of all zoos in India. This is justified by relying on the jurisprudential understanding of animal rights and nature, which is based on placing humans as a part of nature instead of superior or separate from it. The note delves into the legal framework of zoos in India and thereafter explores the jurisprudential flaws that the said framework embodies. Having analysed them, it proceeds to robustly argue for the dismantling of zoos in India in a phased manner.

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  • Corporate Governance Appended: Application of Blockchain to Revive Lost Management

    One can ponder whether blockchain technology can provide a viable new-age solution to the age-old growing concerns surrounding corporate governance. This paper argues that the integration of blockchain technology has the potential to revolutionise the way corporations manage their governance processes. It highlights how the issue of agency costs, information asymmetry and lack of shareholder activism can be addressed by the lightning quick, secure, transparent, and immutable records of transactions on the ledger, thereby making it an ideal tool for improving corporate transparency and accountability. The ability to lower shareholder voting costs and the organisation costs for companies, including holding of an annual general meeting benefits both the company and the erstwhile forgotten shareholders. Further, through the introduction of tokens, and its uniquely malleable nature, blockchain provides the company with an opportunity to get creative with its capital raising while allowing a tokenholder to reap such benefits over a similarly placed shareholder. Lastly, the paper showcases that by reinstating oversight over the managerial role in hands of those directly impacted by a company’s actions, blockchain allows us to call for the wringing back of control. Hence, the enhancement in a company’s overall efficiency allows us to eliminate corporate governance concerns through the implementation and integration of blockchain technology.

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  • Dethroned Adani, Unstabilised Market and Distressed Investors: The Domino Effect of Adani-Hindenburg Saga

    On January 24, 2023, shockwaves reverberated through the Indian stock market as the Hindenburg Research unveiled their report on the Adani Group. The report’s allegations of stock manipulation and fraudulent accounting against the Adani Group arrived just as the conglomerate prepared for a monumental INR 20,000 crore further public offer (‘FPO’) the following week. Swiftly responding to these allegations, Adani framed the accusations as an assault on the nation’s economic fabric, an assertion that disrupted the FPO, causing a seventy-percent collapse in Adani stocks and rattling retail investors. Adani’s counter also shed light on Hindenburg’s advantageous short selling tactics. This seismic event prompted a regulatory flurry, prompting three public interest litigations demanding a Supreme Court investigation, with both the Reserve Bank of India and the Securities and Exchange Board of India launching independent inquiries into the allegations against the Adani conglomerate. In this paper, the authors undertake a comprehensive analysis of the Adani-Hindenburg saga and the broader implications it carries. The authors navigate the intricate legal, regulatory, and ethical landscape to critically evaluate the existing mechanisms designed to safeguard investor interests from the finfluencers and research analyst organisations such as Hindenburg. By examining the strengths, gaps, and opportunities for improvement within these mechanisms, this paper seeks to provide a nuanced understanding of how the financial ecosystem can better shield investors against unforeseen market turmoil and manipulative practices.

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  • Towards a ‘Good Death’: Uncovering the Confusion in End-Of-Life-Care Law in India

    Legal confusion in end-of-life care law has remained a key barrier before dying with dignity in India. The history of legal developments on end-of-life care, however, is not linear, and has been marked by continuities, shifts, and a lack of clarity.  This article excavates the history of Indian end-of-life care law to demonstrate how and why confusion has plagued Indian law. It argues that the Supreme Court’s guidelines in its landmark decision in Common Cause v. Union of India were practically unimplementable since they conflated “passive euthanasia” with the “withholding and withdrawing of life sustaining treatment,” disregarded patient autonomy and did not account for a surrogate decision-making framework for patients who lack decision-making capacity. Recently, the Supreme Court modified the Common Cause guidelines to address some of their practical issues, yet these substantive concerns remain relevant for any future legislative intervention on end-of-life care.

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  • Privacy as a Parameter in Antitrust Investigations: A Comparative Critical Appraisal

    Consumers today readily divulge their personal data irrespective of the serious concerns regarding privacy. This paper argues for locating privacy as a parameter in Indian competition law for assessing claims of abuse of dominance. Relevant metrics such as maximisation of consumer welfare, data protection, and maintaining openness of markets are analysed in considering whether privacy can be accommodated within the goals of competition law. By showing how privacy is important from both economic and non-economic viewpoints, its relevance in antitrust analysis is sought to be established. This is done by arguing for its relevance in zero-price markets, and in noting the significance of privacy in driving competition for ‘free’ services. Having established privacy as an anti-trust parameter, this paper proceeds to determine the relationship between privacy and competition, their apparent anti-complementarity and its resolution. Finally, through an analysis of how various developed competition law regimes have incorporated provisions to reflect the nature of digital markets it draws lessons for a similar integration in India.

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  • Bridging Markets: Legal Implications and Solutions for Fractional Share Investment in India

    Fractional share investment has demonstrated its significance in advancing the growth and expansion of capital markets across multiple jurisdictions, as well as retail investor empowerment. In India, the regulatory framework for the clearing and settlement process of trades would necessitate technological and legal modifications to implement fractional share investment. This paper explores the legal and technological aspects of implementing fractional share investment in India. It addresses taxation, shareholder voting rights, and initial public offerings, and proposes changes to the roles of depositories and clearing houses. The paper advocates for the adoption of distributed ledger technology to facilitate fractional share investment, which will offer an efficient legal and technological model. It also examines the economic rationale and international best practices to present a comprehensive blueprint for fractional share investment in India.

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  • Revamping the Tax Regime for Stock Repurchases in India: Economic Equivalence as the Way Forward

    In November 2022, the Securities and Exchange Board of India (‘SEBI’) undertook a comprehensive review of the regulatory regime relating to buybacks or stock repurchases through the Consultation Paper on Review of SEBI (Buyback of Securities) Regulations, 2018. For the most part, SEBI was quite clear about what it envisions for India’s buyback regime. However, one aspect that lacked clarity was the approach India would take towards the taxation of buybacks. SEBI recognised the problem that exists in the Indian regime wherein the company itself has to bear the tax burden for exiting shareholders. To address this issue, SEBI argued that it was ‘desirable’ to ‘realign’ the regime and tailor it to shift the tax burden on existing shareholders. Ultimately, SEBI left the decision to the Ministry of Finance. Surprisingly, the 2023 Budget did not account for SEBI’s discussion at all and neither did the Finance Act, 2023. This paper undertakes a detailed analysis of the buyback taxation regime in India and examines its lacunae. It does so by examining the traditional rationale behind the buyback of shares, comparing the taxation of buybacks with dividends and undertaking a comparative jurisdictional analysis with respect to the policy surrounding buybacks. Ultimately, this paper proposes a course of action for the Ministry of Finance to ensure that neither buybacks nor dividends are preferred for tax reasons. It concludes by proposing certain amendments to the Income Tax, 1961. The proposed amendments have their edifice in an idea put forward in 1967 – the economic equivalence of buybacks and dividends.

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  • Arnab Goswami and Others: The Discontents of Adjudicating Criminal Procedure under Article 32

    There is an increasing trend of litigants approaching the Supreme Court of India (‘SCI’) directly under Article 32 with writ petitions to claim bail, anticipatory bail, quashing of First Information Reports (‘FIRs’), etc. This paper examines this litigation trend and its judicial handling and critique it at various levels. The primary argument is that such a trend nullifies the relevance of statutory remedies under the Code of Criminal Procedure 1973 (‘CrPC’), that are specifically tailored for settling criminal procedure claims. This has two further adverse implications. One, there are certain conditions and tests curated into the CrPC provisions that one must satisfy to succeed, for instance, in their anticipatory bail applications. However, adjudication of such claims under Article 32 has enabled litigants to dodge such warranted statutory thresholds. Second, it also leads to asymmetric dispersal of justice since not every similar litigation for criminal procedural claims under the writ jurisdiction is entertained. This paper builds upon these findings by studying several litigations under Article 32 between 2020 and 2023 that point towards the vagaries of the trend in question. The paper proceeds to suggest an adjudicatory framework based on norms of judicial review, like judicial minimalism and constitutional avoidance, to reverse the critiqued trend. The recommended model advocates that the SCI should not entertain its writ jurisdiction when the deserved remedy can be effectively granted through statutory routes of litigation before the ‘magistrates, sessions courts, and High Courts’ (‘CrPC courts’), that the CrPC purposefully designates to settle criminal procedural disputes in the first instance. To conclude, if this trend is allowed to go unregulated, it will further entrench the existing institutional concerns, such as the historical distrust and subordination of the CrPC courts and the top heaviness of the Indian judiciary.