Year: 2016

When analysed from an economic perspective, ownership concentration in the media market is a natural phenomenon. Such concentration, when aided by convergence in technology and the digitisation of the media, has had a negative effect on the plurality of opinion available in the marketplace of ideas. This problem has been compounded by decreasing editorial independence, issues of paid news, emergence of private treaties and advertorials. The recent Recommendations on ‘Cross Ownership of Media ‘by the Telecom Regulatory Authority of India have tried to tackle the problem of media concentration by placing structural restrictions on ownership. These recommendations have, inter alia, sought to establish an independent ‘media regulator’ which would have jurisdiction over both print and television segments of the media. However, these recommendations have faced opposition from various stakeholders on the ground that they violate their freedom of speech and expression and right to work. They also reason that the concentrative effect of the media is nullified by the growing popularity of the Internet. In this article, we debunk these oppositions to argue that a free market approach to the media market would lend disproportionate power to media houses and would be detrimental to the democratic setup of the country. Thereafter, while specifically scrutinising the recommendations, we provide a limited critique and alternatives to two recommendations-the organisational structure of the media regulator and the use of the HHI for measuring concentration.

This paper seeks to explore the legality of parodying the national anthem through an analysis of a recent Hindi movie, Rann’s version of the Indian National Anthem. I argue that the given situation falls outside the purview of the Emblems& Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971, the two Acts which were quoted by the Censor Board while removing the song from the movie. In the absence of a law prohibiting the same, the restriction is invalid and violative of free speech. Even if a separate law were enacted to govern the case of parody of a national anthem, it is likely to be still held violative of Article 19 (1)(a), as it would not appertain to the grounds on which speech may be restricted under Article 19 (2).

In this paper I argue that the lack the sports legislation in the country was one of the reasons behind the Commonwealth Games organi­zational fiasco. Drawing from the legislations adopted by Melbourne (host of the previous 2006 games) and Glasgow (hosts of the forthcom­ing games in 2014) I have laid out the important features that a sports legislation in India should have if India ever hopes to host a world scale sporting event successfully. These features include formation of the or­ganising committee, land acquisition, intellectual property rights, ticket touting, transport and ambush marketing. I have pointed out specific ar­eas where India failed in this regard during the Commonwealth Games, in light of India’s bid document and the events that unfolded in the run up to the Games.

In today’s era of globalisation and free trade, transnational corporations (TNCs) have become more economically powerful than many countries around the globe. A number of TNCs have a strong and influential presence in developing countries such as India, since these TNCs are often perceived to be indispensable for their economic growth and development. Such powerful TNCs have the opportunity for gross human-rights violations, such as exploitation of the right to health of the workers, unsafe consumer practices, negligence in protecting the lives of the people residing in the vicinity of factories producing dangerous chemicals or causing environmental damage. The article would hence examine the feasibility of attaching human rights responsibilities to the TNCs under international and domestic laws. The article shall also critically study the efficacy of transnational human rights litigation as one of the potential remedies along with an analysis of the legal hassles involved in the process. Moreover it shall also examine the causes behind the failure of Bhopal litigation and look at the legal system of India to analyse its ability to combat such human rights violations at the hands of TNCs in the foreseeable future. Lastly in conclusion, the article shall offer alternative remedies for the victims of human rights violations in the developing countries.

This paper lauds the end result of the Naz Foundation case in that it decriminalises homosexuality, but questions the continuing problematic legal labelling of it as an activity that contravenes the ‘order of nature’. It argues that terms such as ‘order of nature’ in the context of sexual preferences are inherently indeterminate, vague and arbitrary and are therefore likely to contravene Article 14 of the Constitution of India. The Naz Court endorses a line of Section 377 cases that embody a prudish Victorian morality, under which only ‘procreative’ sex is seen as ‘natural’.

By this logic, even condom usage during sex would count as unnatural, an absurd result, given that India suffers a population explosion problem. In any case, it is not the place of the state to regulate such private acts that cause no palpable harm, apart from offending the conservative sensibilities of some sections of society.

This paper explores the parameters of Article 14 and argues that it is difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’. Further, since this problematic distinction envisaged by section 377 has no rational nexus with the object sought to be achieved by the law, it would even flunk the traditional ‘reasonable classification’ test under Article 14. The court did not adopt the more ‘natural’ line of argument above and strike down Section 377 as a whole, as it may have feared the resulting decriminalisation of problematic sexual activities such as paedophilia and bestiality. We argue that although this is a valid concern, it is best addressed by Parliamentary intervention. To this extent, we endorse certain recommendations by the Law Commission that propose the enactment of a new provision to criminalise problematic sexual acts such as paedophilia, without necessarily labelling them as ‘unnatural’.

Beginning with an analysis of the 2007 Mumbai High Court ruling in Insure Policy Plus Services (P) Ltd. v. Life Insurance Corporation of India, this paper goes on to discuss its implications in the Indian scenario. The authors also elucidate on the economic benefits and legality of assigning life insurance policies to third parties without an insurable interest in the life of the policyholder. The paper also goes on to examine life insurance policy trading in the secondary market, as prevalent in the West, where it is a flourishing business and tries to ascertain whether India will be receptive to the same.

The Hindi film ‘3 Idiots’ which released in 2009 has achieved that dubious distinction of having attracted the attention of legal academia because of the public war of words between the film’s makers on the one hand, and the novelist from whose novel the movie derives considerable inspiration on the other. The genesis of the dispute was in the novelist, Chetan Bhagat’s contention that the Production House, namely Vidhu Vinod Chopra Productions, had adapted the content of his novel to an extent far greater, and in a manner far more direct, than what he had been led to believe by way of the Agreement arrived at between them. Another allegation directed against the Production House was concerning the inadequacy of credits acknowledged to the Author by way of the said Agreement. The paper addresses the above issues under two distinct heads, namely the contractual liabilities and those pertaining to the intellectual property rights. It tries to suggest some remedial steps which could be taken by novelists in similar situations in addition to steps which could be taken by the State to give better protection to such vulnerable parties in the future. 

I seek to delve deep into a problem area of the modern International Trade Jurisprudence – an issue of immense implications for the Developing World in particular, and all the nations of world in general. The issue it to ascertain how and in what ways has the globalization process and the on-going Free Trade Regime affected Public Health – recognized as a basic Human Right. The necessary question to be addressed would be whether the International Trade regime needs to, and if yes, how much, care about the Human Right slaw, or, for that matter, any other principle of Public International Law principle? In answering this question, Health will be taken as a pointer which would indicate the WTO’s intent of addressing this Right through the various covered Agreements, and seek to address in the process the oft-emerging question of the co-relationship between the two apparently conflicting ideals of Human Rights protection and Free Trade.

The European Court of Human Rights (ECtHR) is widely recognized as having the features of what can effectively be called a constitutional court. But what is the proper definition of a constitution and in what way can the ECtHR be properly considered a “constitutional court”? Constitutions are considered by citizens and jurists alike to be the most profound expressions of national commitment, but to what extent does the ECtHR operate constitutionally vis-a-vis the States within its jurisdiction? This paper attempts to briefly answer these questions and elaborate upon the implications of having the constitutional atmosphere of the EU interpreted and influenced by the ECtHR. This paper also deals with the EU’s constitutional structure as States interact and submit to the constitution-like machinations of the ECtHR. The paper proceeds to investigate the ECtHR as a constitutional apparatus and examine the unique challenges to the idea of a “constitutional court”. It concludes with case studies from the United States and Scotland and finally questions what could be done to further understand the constitutional nature of the ECtHR.

Abortion laws originated in the United Kingdom as early as 1803, but the credit for revolutionizing abortion laws and recognizing the inherent, perhaps inextricable right and liberty of women over their bodies can only be given to the United States – more specifically to the American judiciary. From as early as Roe v. Wade, the American judiciary has been reiterating the inherent right of a woman as a constitutional person, to terminate her pregnancy in the earlier stages and thereafter giving the State a role to play, hence making abortion legal for the first time in the Unites States in 1973. Even though senators and other policy-makers in several, if not all, states of the United States have tried to whittle down the basic premise of Roe v. Wade, it has been emphatically upheld in subsequent cases. After more than thirty years of the pro-abortion movement in the West taking firm root, anti-abortion groups have again taken a radical standby trying to control abortions through the introduction of the Unborn Child Pain Awareness Bill, 2005(commonly known as Fetal Pain Legislation) and as many as twenty-three states in the USA have passed it to be an Act, which would require that abortionists disclose to women the reality that killing an unborn baby by abortion causes pain to the child. It would also require that women who were pregnant for more than twenty weeks be given the choice of adopting anesthesia for their fetuses. Interestingly this move by the legislature was said to find its basis in the judgment of Gonzales v. Carhart where the Supreme Court held that the federal legislation banning partial-birth abortion was constitutional on its face. The issue of fetal pain arose amidst the partial-birth abortion debate. Supporters of the federal legislation argued that partial-birth abortion was excruciatingly painful for the fetus and that banning this abortion procedure would further the state’s legitimate interest in protecting the unborn child. Opponents of the federal ban argued that there was no conclusive scientific evidence to support the hypothesis that a fetus is even capable of feeling pain. As a result of this partial-birth abortion controversy, legislations aimed at acknowledging and assuaging fetal pain during abortion came into being. In India, the debate on abortion laws as embodied in the Medical Termination of Pregnancy Act, 1971 has been swirling since the Bombay High Court’s decision in Dr. Nikhil Dattar & Ors. v. Union of India, where the Court by a strict interpretation of the provisions in the statute, refused to give a lady pregnant with a malformed fetus the right to abort since she was already in her twenty-fourth week of pregnancy. Since then there have been urgent calls to amend the statute as long-standing criticisms of the policy have been brought to the forefront again. It has become critical at this juncture to look at the development of abortion law and policies in the West, particularly in the United States, to gauge where India stands at this moment and whether, if at all, India should be inspired by the western counterpoint or should take caution from the developments therein to further its own interests in striking the perfect balance between liberty, autonomy and freedom of the individual on the one hand and the State’s right to interfere, on the other.