Year: 2016

In September 2016, a single judge of the Delhi High Court dismissed a copyright infringement suit brought by a group of international publishers, against the University of Delhi, and a photocopying shop licensed to the university. In doing so, it liberally interpreted ‘ fair dealing for academic purposes’ as an exception to copyright infringement in India. The Court ruled that photocopies which are made a part of students’ reading material, even without the permission of the copyright holder, are non-infringing. In itself, this would have been a path-breaking conclusion. However, the Court went further and noted that it does not matter how much a copyrighted work is photocopied, distributed or sold, who orders or does the photocopying or, indeed, who profits from it and how much – so long as it is “in the course of instruction”, it is legal.

Now, as an appeals court of the Delhi High Court navigates through the dispute, I attempt what is perhaps the most detailed legal inspection yet of this remarkable judgment. I find that, while possibly sustainable on merits, the ruling is riddled with fundamental errors and confusions. Notably, it muddles the exceptions under Indian law which protect photocopying of copyrighted literary works for academic purposes. It potentially extends the academic fair dealing exception, to persons who are not remotely academic, nor have the slightest interest in fair dealing. It is a judgment that mischaracterizes key factors underpinning the economics of academic publishing in India. I argue that it urgently needs to be re-written – India’s students, universities, and certainly, its publishers, deserve much better.

The jurisdiction of the Board for Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act, 1985 rests on the twin pillars of ‘industrial character’ and ‘sickness’ of a company making the reference. While much of the judicial deliberation till date has been focussed on aspects concerning the sickness of a company, Indian courts are now being increasingly asked to determine the effect of a sick company’s subsequent loss of industrial character. Through this paper, I critically examine whether the loss of industrial character of a sick company subsequent to the registration of its reference before the Board for Industrial and Financial Reconstruction ousts it from the purview of the Sick Industrial Companies (Special Provisions) Act, 1985 so as to deprive the Board for Industrial and Financial Reconstruction of its jurisdiction over the said company.

The response of the Indian State to address an increasing variety of problems appears to be ‘the more the better’. New categories of crimes are being created, conduct which earlier fell under civil or administrative law is being criminalised through state and judicial complicity, and new institutions are being formed where existing ones are ailing. The vehicle of criminal law is being used to enforce majoritarian morals, regulate dietary preferences and adjudicate private disputes. The insidious trend not only overlooks the unsuit- ability of criminal law to address many of these matters, but also contributes to the decay of our already overburdened criminal justice system…

Presence of trade and professional associations contributes significantly towards the development of market players in any industry. Since such associations have the power to influence the decisions of its member entities, many of their seemingly benign activities can be effectively unscrupulous under anti-trust law. However, Competition Commission of India’s flawed, narrow and non-uniform interpretation of the Act has enabled the associations to take advantage of the lacunae in law. In this article, we examine the anti-competitive nature of the practices carried on by trade and professional associations. Thereafter, while scrutinising the extent to which such practices are regulated, we critique the position taken by the Competition Commission of India. Further, we argue for wide interpretation of the term ‘enterprises’ which should be adopted by the authorities to hold associations as enterprises under the Competition Act, 2002.

India commands the largest share of the world’s shipbreaking industry, which is largely attributable to the method for breaking ships employed in its yards. Being labour-intensive, this method called beaching, not only generates employment but also requires little capital investment, which were factors that suited its use in the Indian market conditions. However, use of this method invited widespread criticism from various factions on account of the hazards it poses to labourers’ health and the environment. The international community, and subsequently the Indian lawmakers, have made efforts to regulate shipbreaking with a view to curtail these hazards. Despite these positive developments, environmentalists and labour rights activists have not been successful in securing a ban on the beaching method altogether. However, in 2013, the European Parliament came up with a regulation which, it is argued, would effectively exclude beaching as a disposal method for European vessels, and consequently for the Indian yards. In light of the afore-mentioned regulation and certain other developments, this paper argues that in the long run, from environmental, labour rights’ and economic perspective, phasing out beaching in favour of an alternate method called dry-docking would be the most sustainable approach for India, even though it is capital-intensive and would reduce the jobs currently offered by the sector. This paper also proposes the ways in which the requisite capital for making a shift to dry-docking could be arranged.

Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (‘HIV/AIDS’), apart from being a life threatening disease, has acquired a significant place in countries across the world due to the kind of stigma and discrimination, seropositive persons and those associated with such persons, suffer. Human rights implications of marginalisation faced by HIV/AIDS affected persons have resulted in many countries taking cognisance of the same, by adopting legislations to protect these persons and prevent the spread of HIV/AIDS. With India following suit and the HIV/ AIDS (Prevention and Control) Bill, 2014 having been introduced in the Rajya Sabha, this paper seeks to evaluate signi cant provisions of this Bill in light of the capability theory laid down by Amartya Sen. Viewing hard- ships faced by HIV/AIDS affected persons as forms of capability deprivation, we attempt to assess how far the Bill bridges the gap between affected persons and central human capabilities.

The performance of Indian tribunals has been unsatisfactory. Yet, policy-makers continue to rely heavily on tribunals to achieve their end objective. One example of this are the tribunals which will adjudicate in the proposed Insolvency and Bankruptcy Code, 2015. This is premised on the assumption that the tribunals will be able to dispose of cases within hard deadlines. A natural key question that arises is how Indian tribunals can perform better in this matter when they cannot in others? This paper proposes that administrative functions of tribunals should be hived off into a separate agency – Tribunal Services Agency – which will help improve the performance of the administrative functions of tribunals and, in turn, improve their judicial functioning in general.

Increased monetisation of sports has necessitated greater intervention of formal regulatory instruments of the state, including review of decisions of the governing bodies by courts. But the appropriate doctrinal terrain for such judicial scrutiny has been a matter of profound controversy. This paper looks at the scope of judicial review over sporting bodies as public bodies and argues that in spite of few exceptions, most countries have favoured recognition of sporting bodies as public institutions that are subject to duties higher than those enjoined upon private persons. At the same time, courts have been cautious about equating these bodies with state and have refused to subject these bodies to the entire gamut of constitutional obligations that apply to state or its instrumentalities. Nonetheless, there is a lack of uniformity on the extent of judicial scrutiny over sports bodies with countries and courts differing on the standard and scope of scrutiny. In this regard the Indian experience of judicial review over sports regulators stands out as a particularly activist model which may substantially impinge on the autonomy of sporting bodies.

The need for a strong monitoring mechanism of the Executive in India has been made clearer by recent allegations of corruption against high-ranking of officials of the central government. The Indian Parliament is the ideal institution to perform such a monitoring function through oversight of the central executive. The Executive in India is directly accountable to the Parliament. Making oversight by Parliament stronger and more effective would therefore increase the accountability of the executive. Additionally, an increased oversight role would allow for greater policy inputs from Parliament to the executive. It would also increase the general level of expertise within Parliament by making parliamentarians more technocratic and giving them greater avenues for specialization in different aspects of policymaking. This has held true in varying degrees in different countries as examined in this paper. Enacting a law that formalizes mechanisms of over- sight within Parliament, especially within the committee system, can create such a framework in India. The central focus of a strong oversight frame- work is the system of parliamentary committees. Reinvigorating existing committees by giving them greater autonomy, clearer powers and research support are central tenets of the proposals made in this paper. Along with restructuring parliamentary committees, the incentive structure for Indian parliamentarians to conduct oversight is also examined, and proposals are suggested to ensure they perform their oversight function effectively. Such a law should reshape the way Parliamentary business is conducted with a view to holding government accountable, while at the same time allowing the central executive to function independently, and with greater efficiency.

In recent years there have been several controversies regarding projects being granted (or denied) environmental regulatory approvals. While many civil society groups and those adversely affected believe that legal procedures are being bypassed for commercial gain at immense cost to the environment and the larger public interest; the corporate sector, and at least sections of the government, perceive the regulatory processes to be a road- block in the country’s growth trajectory. This paper maps out the process to be followed before projects are granted one such regulatory approval – the environmental clearance under the EIA Notification 2006 – and presents an analysis of some of the problematic aspects in its design and implementation. Several stakeholders with a variety of interests, often conflicting, are involved, and the process is deeply contentious with significant implications for a range of rights. This paper aims to bring some clarity to our understanding of this complex process through a critical examination of the Notification, related documents and judicial pronouncements.