Year: 2016

This paper provides a detailed explanation of the judicial guidelines on private defence and exceeding private defence laid down recently by the Singapore Court of Appeal. By streamlining the numerous provisions on private defence in the Indian Penal Code, the guidelines have injected precision and comprehensibility to a notoriously disorganized and complex area of the law.

India is presently at the doorstep of a revolutionary change in its indirect tax system with the introduction of the Goods and Services Tax (‘GST’). This paper argues that due to the cascading effects of the present CENVAT and State VAT systems and the complexities of the current service tax regime, it is imperative for India to make the GST regime operative. This paper examines the GST in detail, analysing the proposed rates, taxes to be subsumed, proposed administrative setup and the amendments that are needed to make this scheme operative. The paper also analyses the impact of GST through a comparative study with other jurisdictions where such a tax has been made operative. The opinions of various states and various sectors in India regarding the proposed GST scheme have been discussed in tandem with possible methods of reconciliation.

The rights of celebrities to make choices regarding the levels of exposure they wish to accept and to profit from exposure if they choose to, is a well recognized concept in the West. In India, however, the right to privacy which emerged through judicial pronouncements is not equipped to protect celebrity rights. This paper analyses the justifications for protection of celebrity-rights and studies the mechanisms through which other legal systems protect these rights. The paper suggests an intellectual property based approach to the protection of celebrity rights, which can be implemented in India either through legislative enactments or through the incorporation of developments in this regard that have occurred in other common law jurisdictions through judicial pronouncements.

The chapter on Fundamental Rights, contained in Part III of the Indian Constitution, was not incorporated as a popular concession to international sentiment prevalent after the conclusion of the Second World War. It was the ardent desire and persistent demand of our freedom fighters and Founding Fathers that a future Constitution of India should contain a guarantee of fundamental entitlements for the people of India…

On March 22, 2013, the Telecom Regulatory Authority of India released the Standards of Quality of Service (Duration of Advertisements in Television Channels) (Amendment) Regulations, 2013, which mandates that broadcasters restrict advertisements on television channels to a maximum of twelve minutes per clock hour. While the Ministry of Information and Broadcasting and the News Broadcasters Association vehemently oppose this measure as a draconian step that will adversely impact revenues and violate broadcasters’ freedoms of speech and business, the TRAI argues that the duration of advertisements is inversely proportional to the quality of the viewing experience, and that the measure is necessary to protect consumer interest. This paper analyses the debate surrounding the Standards of Quality of Service (Duration of Advertisements in Television Channels) (Amendment) Regulations, 2013, as a measure for advertising regulation. It examines the TRAI’s role as regulator and evaluates the legal and economic arguments for and against the measure.

Section 30 of the Indian Contract Act, 1872 makes agreements by way of wager void. In spite of the above provision declaring wagering contracts as void, there has existed for some time now, a practice of entering into derivative contracts in the financial market. Such contracts are especially resorted to when it comes to dealings with foreign exchange on account of fluctuations in the exchange rates. Numerous Indian companies who have made losses due to trading in derivatives, have argued that the contracts the banks entered into with them were illegal, in violation of Reserve Bank of India (“RBI”) guidelines, opposed to public policy and unenforceable, and not binding on them. Under Indian exchange control laws, an Indian corporate, being a person resident in India, can enter into a foreign currency derivative contract only to hedge an exposure to foreign exchange risk and not for speculating and chasing profits. The authors during the course of the present paper will examine the validity of such contracts in light of Sections 30 and 23 of the Indian Contract Act, 1872. The authors will seek to answer the question of whether these companies can at their convenience now state that such contracts are unenforceable or whether this has implications  on their past profits.

This article attempts to explore the links between sovereignty and constituent power. Both these concepts have deep-rooted links to amendments affected in any Constitution. Accordingly, their interplay with respect to the Indian Constitution is explored in this paper. The first section is concerned with a general introduction to the subject. The second section provides a jurisprudential understanding of the concepts explaining their relevance individually and further to  different theories notably that of Carl Schmitt, linking sovereignty with constituent power. The third section is devoted to understanding the link between sovereignty and constituent power, and the amending power. The fourth section works through a tentative solution suggesting that the amending power is something akin to constituent power and discusses briefly how sovereignty could be protected by exercise of the amending power. The concept of implied limitations is discussed with reference to the position prevailing indifferent countries, furthered with the aid of the basic structure doctrine prevailing in India. The conclusion ends on a cautionary note: that judges, who propose to be the self- designated guardians of sovereignty and the Constitution, could need some guarding as well

Fraternity as an ideological concept finds its birth in the French Revolution, as well as an express mention in the Preamble to the Indian Constitution. Despite this clear constitutional space, little has been said or done in its furtherance. This paper seeks to account for the development of fraternity from both a historical and judicial perspective. In looking towards the history of the French Revolution and the Supreme Court’s treatment of the same, we intend to provide some clarity as to the true purpose and meaning of fraternity. In analyzing the history of the Preamble and its legal status, the authors seek to understand how courts employ the Preamble as a mechanism to interpret the Constitution. This paper concludes that the decision of the Supreme Court in Nandini Sundar v. State of Chhattisgarh, is a remarkable improvement in the judicial use of fraternity, and presents certain compelling prospects for the use of the Preamble in the process of constitutional adjudication.

In this paper, it has been argued that the Naz Foundation judgment extends beyond the mere reading down of Section 377 of the Indian Penal Code and provides the plinth for elimination of all forms of discrimination against persons, not merely on the basis of their sexual orientation but also their gender identity. A close reading of the judgment along with the sources and affidavits that the courts have relied on to come to their decision makes it abundantly clear that the Naz Foundation decision has direct implications for hijras, kothis, FTMs, MTFs, transsexuals and intersexed persons. The use of the Yogyakarta Principles and the extension of recognition to the concept of decisional privacy by the judges go a long way in striking at the roots of homophobia and gender identity-based discrimination. Through the discussion of identity politics, references to instances of harassment faced by all the above mentioned communities and the expansion of notions of equality, autonomy and privacy to embrace both sexual orientation and gender identity, the judgment is truly a landmark in the realm of transformative remedies that forms the essence of queer politics.

The recent expulsion of Lok Sabha Speaker, Mr. Somnath Chatterjee from his party has raised not just a flutter in the political circles, but also many a constitutional question of significant import. There is a school of opinion which believes that if a person by not abiding by the dictum of his party to resign as the Speaker brings upon himself expulsion from his party, he should be considered to have given up his membership in the party voluntarily, and hence disqualified under the Tenth Schedule. This admittedly, is a radical position, and posits a very fundamental constitutional question. After analysing the position, we have come to form an opinion in opposition to the automatic expulsion theory. Through this paper, we have tried to objectively analyse the current legal position, and have tried to present an opinion based on constitutional provisions and parliamentary conventions.