NUJS Law Review Articles
The Offical Quarterly Edition of the NUJS Law Review
Volume 17 Issue 2
Article
The 1980 Vienna Sales Convention (CISG) as Standard Setter or Obstacle to International Commercial Law Unification
by Dr. Ulrich G. Schroeter
The present article discusses the role of the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) in influencing or “setting standards” for other commercial law conventions. Dr. Schroeter looks at this question from multiple perspectives. He considers CISG’s Articles on interpretation, applicability, ‘gap-filing’, rights and obligations of parties, among others, being adopted by conventions. His verdict on the influence of the CISG differs for each Part of the convention. He also
The 1980 Vienna Sales Convention (CISG) as Standard Setter or Obstacle to International Commercial Law Unification
by Dr. Ulrich G. Schroeter
The present article discusses the role of the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) in influencing or “setting standards” for other commercial law conventions. Dr. Schroeter looks at this question from multiple perspectives. He considers CISG’s Articles on interpretation, applicability, ‘gap-filing’, rights and obligations of parties, among others, being adopted by conventions. His verdict on the influence of the CISG differs for each Part of the convention. He also
Article
Private Enforcement of Competition Law: Revisiting the Legal Framework in India
by Mitali Jain & Nimesh Singh
Private enforcement is one of the lesser explored ways of enforcing competition law, wherein an entity is empowered to claim infringement of competition law and compensational remedies for the same. Although it is a popular practice in several jurisdictions, it has remained terribly underutilised in the competition law regime in India. The poor drafting of the provision, which entails establishment of a competition law infringement by an adjudicatory body as a precondition and requires calculation
Private Enforcement of Competition Law: Revisiting the Legal Framework in India
by Mitali Jain & Nimesh Singh
Private enforcement is one of the lesser explored ways of enforcing competition law, wherein an entity is empowered to claim infringement of competition law and compensational remedies for the same. Although it is a popular practice in several jurisdictions, it has remained terribly underutilised in the competition law regime in India. The poor drafting of the provision, which entails establishment of a competition law infringement by an adjudicatory body as a precondition and requires calculation
Article
Special Law, Regular Bail, Perverse Outcome? Assessing Judicial Prejudice in Bail Proceedings under the POCSO Act: Rajballav Prasad, Dharmander Singh, and the Delhi High Court
by Abhiram Nitin
The presumption of innocence is foundational to criminal law and must operate as a safeguard against prejudice during bail proceedings. However, the Indian Supreme Court has historically been inconsistent in clarifying the presumption's status as a right at bail, and has violated it in its bail jurisprudence, notably by prejudicially considering the seriousness of the alleged offence. Prejudice influenced by considerations of seriousness has also been explicitly legislated into the bail provisions of several of
Special Law, Regular Bail, Perverse Outcome? Assessing Judicial Prejudice in Bail Proceedings under the POCSO Act: Rajballav Prasad, Dharmander Singh, and the Delhi High Court
by Abhiram Nitin
The presumption of innocence is foundational to criminal law and must operate as a safeguard against prejudice during bail proceedings. However, the Indian Supreme Court has historically been inconsistent in clarifying the presumption's status as a right at bail, and has violated it in its bail jurisprudence, notably by prejudicially considering the seriousness of the alleged offence. Prejudice influenced by considerations of seriousness has also been explicitly legislated into the bail provisions of several of
Article
Preponderance of Probability and Presumptions of Guilt: Contextualising SEBI’s move towards Permissive Evidentiary Standards in Securities Regulation
by Sunandan Wadadekar & Mridul Anand
The Indian securities market is, of late, plagued by fraudulent activities such as insider trading and front running, exacerbated by technological advancements such as instant messaging. To combat the same, SEBI had often placed reliance on disconnected circumstantial evidence in regulatory investigations, with the Supreme Court’s progressive deference. However, recent Supreme Court verdicts have reverted to imposing a heavy burden of proof on the securities regulator. As a reactionary measure to these curbs, the SEBI
Preponderance of Probability and Presumptions of Guilt: Contextualising SEBI’s move towards Permissive Evidentiary Standards in Securities Regulation
by Sunandan Wadadekar & Mridul Anand
The Indian securities market is, of late, plagued by fraudulent activities such as insider trading and front running, exacerbated by technological advancements such as instant messaging. To combat the same, SEBI had often placed reliance on disconnected circumstantial evidence in regulatory investigations, with the Supreme Court’s progressive deference. However, recent Supreme Court verdicts have reverted to imposing a heavy burden of proof on the securities regulator. As a reactionary measure to these curbs, the SEBI
Volume 17 Issue 1
Editorial Note
Electoral Bonds and Beyond: Evaluating the Supreme Court's Approach to the Conflict of Rights
by Mridul Anand & Nimesh Singh
This note examines the Supreme Court’s approach to resolving conflicts between fundamental rights, particularly after the recent Electoral Bonds decision. The ‘double-proportionality test’, while an improvement, lacks a doctrinal foundation and can led to arbitrary decisions on constitutional questions. There are several issues with the Indian judiciary’s methodology to determine a conflict of rights, leading to a risk of arbitrary judicial policymaking. The note identifies key issues in Indian jurisprudence, including the absence of an
Electoral Bonds and Beyond: Evaluating the Supreme Court's Approach to the Conflict of Rights
by Mridul Anand & Nimesh Singh
This note examines the Supreme Court’s approach to resolving conflicts between fundamental rights, particularly after the recent Electoral Bonds decision. The ‘double-proportionality test’, while an improvement, lacks a doctrinal foundation and can led to arbitrary decisions on constitutional questions. There are several issues with the Indian judiciary’s methodology to determine a conflict of rights, leading to a risk of arbitrary judicial policymaking. The note identifies key issues in Indian jurisprudence, including the absence of an
Article
‘Medieval’ Law in ‘Modern’ Tech: Bailment and Indian Crypto Exchanges
by Rohan Karan Mehta
Cryptocurrencies have become increasingly popular in India. To transfer and store their cryptocurrencies, users rely on platforms or applications known as crypto exchanges. However, the exact contours of the legal relationship between the users and the exchanges remain unclear. Other jurisdictions have classified this relationship in a variety of different ways such as a trust, debtor-creditor relationship or even creating new innovative concepts like control-based proprietary interest. However, this paper argues that considering the Indian
‘Medieval’ Law in ‘Modern’ Tech: Bailment and Indian Crypto Exchanges
by Rohan Karan Mehta
Cryptocurrencies have become increasingly popular in India. To transfer and store their cryptocurrencies, users rely on platforms or applications known as crypto exchanges. However, the exact contours of the legal relationship between the users and the exchanges remain unclear. Other jurisdictions have classified this relationship in a variety of different ways such as a trust, debtor-creditor relationship or even creating new innovative concepts like control-based proprietary interest. However, this paper argues that considering the Indian
Article
The Inconsistent Adjudication of Independent Directors' Liability and its Impact on their Role and Responsibilities
by Divya Sethuraman & Priyanshi Kothari
This paper aims to make a novel contribution to the literature on the roles and responsibilities of independent directors by examining the interpretive position adopted in case law dealing with the same. The paper discusses the Securities and Exchange Board of India (SEBI) and Securities Appellate Tribunal (SAT) decisions concerning the liability of independent directors as per §149(12) of the Companies Act, 2013, wherein their roles and responsibilities were discussed. Two trends in decision making
The Inconsistent Adjudication of Independent Directors' Liability and its Impact on their Role and Responsibilities
by Divya Sethuraman & Priyanshi Kothari
This paper aims to make a novel contribution to the literature on the roles and responsibilities of independent directors by examining the interpretive position adopted in case law dealing with the same. The paper discusses the Securities and Exchange Board of India (SEBI) and Securities Appellate Tribunal (SAT) decisions concerning the liability of independent directors as per §149(12) of the Companies Act, 2013, wherein their roles and responsibilities were discussed. Two trends in decision making
Article
Airline Insolvency in India: Balancing Interests between the Insolvency and Bankruptcy Code and the Cape Town Convention
by Thejas Velaga & Aastha Gupta
The recent voluntary filing for insolvency by Go First Airlines has led to the imposition of a moratorium under §14 of the Insolvency and Bankruptcy Code. This has also affected all of Go First’s fifty-three leased aircraft. In the absence of any specialised framework governing airline insolvency, the moratorium has disabled lessors from repossessing their aircraft, tarnishing India’s image in the international aviation market. In response, the government exempted such leased assets from the moratorium
Airline Insolvency in India: Balancing Interests between the Insolvency and Bankruptcy Code and the Cape Town Convention
by Thejas Velaga & Aastha Gupta
The recent voluntary filing for insolvency by Go First Airlines has led to the imposition of a moratorium under §14 of the Insolvency and Bankruptcy Code. This has also affected all of Go First’s fifty-three leased aircraft. In the absence of any specialised framework governing airline insolvency, the moratorium has disabled lessors from repossessing their aircraft, tarnishing India’s image in the international aviation market. In response, the government exempted such leased assets from the moratorium
Article
Licensing Royalties and Relevant Market Concerns: The 'Relevance’ of Preparing the Field Before the Match
by Anmol Aggarwal & Ria Bansal
The Competition Commission of India (CCI) has always been vested with the jurisdiction of delineating the relevant market in cases of abuse of dominance. However, recently, in the case of Telefonaktiebolaget Lm Ericsson (Publ) v. Competition Commission of India, it was held that the Patents Act, 1970 and the courts would prevail over the CCI in the assessment of the rights of a patentee. Within the case text, one of the contentions that ultimately paved
Licensing Royalties and Relevant Market Concerns: The 'Relevance’ of Preparing the Field Before the Match
by Anmol Aggarwal & Ria Bansal
The Competition Commission of India (CCI) has always been vested with the jurisdiction of delineating the relevant market in cases of abuse of dominance. However, recently, in the case of Telefonaktiebolaget Lm Ericsson (Publ) v. Competition Commission of India, it was held that the Patents Act, 1970 and the courts would prevail over the CCI in the assessment of the rights of a patentee. Within the case text, one of the contentions that ultimately paved
Article
Superleague and International Skating Union: Lessons for Indian Competition Law
by Debayan Bhattacharya
The interface between competition law and sports has been gathering increasing prominence in recent years, propelled by commercialisation and rising viewer interest. This interface often arises in the form of unrecognised private competitions and the regulator’s attempts to flex its power by threatening to sanction players who participate in such tournaments. Two recent major cases in the European Union (‘EU’), European Superleague Company v. Fédération internationale de football association (‘Superleague’) and Union of European Football
Superleague and International Skating Union: Lessons for Indian Competition Law
by Debayan Bhattacharya
The interface between competition law and sports has been gathering increasing prominence in recent years, propelled by commercialisation and rising viewer interest. This interface often arises in the form of unrecognised private competitions and the regulator’s attempts to flex its power by threatening to sanction players who participate in such tournaments. Two recent major cases in the European Union (‘EU’), European Superleague Company v. Fédération internationale de football association (‘Superleague’) and Union of European Football
Volume 16 Issue 4
Editorial Note
Editorial Note
by Board of Editors
In this note, the authors discuss the Nani A. Palkhivala Memorial Conclave organised by West Bengal National University of Juridical Sciences (‘NUJS’), Kolkata, in collaboration with the Nani A. Palkhivala Memorial Trust and was supported by the Tata Group. As part of the Conclave, NUJS also organised the Nani A. Palkhivala Memorial Essay Competition, 2023 (‘Essay Competition’). The broad theme of the Essay Competition was ‘Application of Basic Structure Doctrine to Contemporary Issues’. Submissions were
Editorial Note
by Board of Editors
In this note, the authors discuss the Nani A. Palkhivala Memorial Conclave organised by West Bengal National University of Juridical Sciences (‘NUJS’), Kolkata, in collaboration with the Nani A. Palkhivala Memorial Trust and was supported by the Tata Group. As part of the Conclave, NUJS also organised the Nani A. Palkhivala Memorial Essay Competition, 2023 (‘Essay Competition’). The broad theme of the Essay Competition was ‘Application of Basic Structure Doctrine to Contemporary Issues’. Submissions were
Other
Foreword
by Professor Upendra Baxi
In this Foreword for the Special Issue on the Basic Structure Doctrine, Professor Upendra Baxi focuses primarily on the general criticisms of the said doctrine. He then delves into a brief counter to the above criticisms. Thereafter, Professor Baxi delves into the question of differentiation between the phrases ‘basic structure’ and ‘essential features’. Lastly, he provides two aspects of basic structure: forensic freedoms (free space of argumentation in an open court—the independence of the Bar),
Foreword
by Professor Upendra Baxi
In this Foreword for the Special Issue on the Basic Structure Doctrine, Professor Upendra Baxi focuses primarily on the general criticisms of the said doctrine. He then delves into a brief counter to the above criticisms. Thereafter, Professor Baxi delves into the question of differentiation between the phrases ‘basic structure’ and ‘essential features’. Lastly, he provides two aspects of basic structure: forensic freedoms (free space of argumentation in an open court—the independence of the Bar),
Article
Harmonising Constitutional Ideals: A Modern Reassessment of the Basic Structure Doctrine
by Kartikay Agarwal & Harmanjot Kaur
The basic structure doctrine first theorised in the case of Kesavananda Bharati v. State of Kerala (‘Kesavananda Bharati’), is a judicial tool to protect and preserve the foundation of the Indian Constitution, 1950. It originated to complement further the idea of exercising restraint upon the constituent power of the Parliament. This paper is a study of the academic and historical genesis of the basic structure doctrine, developments in the doctrine post the case of Kesavananda
Harmonising Constitutional Ideals: A Modern Reassessment of the Basic Structure Doctrine
by Kartikay Agarwal & Harmanjot Kaur
The basic structure doctrine first theorised in the case of Kesavananda Bharati v. State of Kerala (‘Kesavananda Bharati’), is a judicial tool to protect and preserve the foundation of the Indian Constitution, 1950. It originated to complement further the idea of exercising restraint upon the constituent power of the Parliament. This paper is a study of the academic and historical genesis of the basic structure doctrine, developments in the doctrine post the case of Kesavananda
Article
Gopalan, Golaknath, & Raj Narain – Conundrum of Judicial Review vis-a-vis the Application of Basic Structure Doctrine to Ordinary Laws
by Prabhu Gupta
The suprema lex of the Indian nation-State bestows the power of judicial review upon the courts to keep in check the powers of various organs of the State by providing for a separation of powers, and checks and balances-based governance system. The scope of judicial review has been a contentious issue ever since the Indian Constitution, 1950 (‘the Constitution’) came into effect and has been the subject matter of many a landmark judgement. Arguably, the
Gopalan, Golaknath, & Raj Narain – Conundrum of Judicial Review vis-a-vis the Application of Basic Structure Doctrine to Ordinary Laws
by Prabhu Gupta
The suprema lex of the Indian nation-State bestows the power of judicial review upon the courts to keep in check the powers of various organs of the State by providing for a separation of powers, and checks and balances-based governance system. The scope of judicial review has been a contentious issue ever since the Indian Constitution, 1950 (‘the Constitution’) came into effect and has been the subject matter of many a landmark judgement. Arguably, the
Article
Ordinances and the Basic Structure Review: To Test or Not to Test?
by Krishangee Parikh & Krishna Ravishankar
Promulgation of ordinances and the procedure adopted by the Executive have often been a topic of discussion in the Indian context. Interestingly, due to the recently promulgated Delhi (Civil Services) Ordinance 2023, debates around the effectiveness of the current modes of judicial review of these instruments have recommenced. This paper aims to discuss these modes of judicial review while reading it along the trajectory of the Basic Structure doctrine and its principles. This shall further
Ordinances and the Basic Structure Review: To Test or Not to Test?
by Krishangee Parikh & Krishna Ravishankar
Promulgation of ordinances and the procedure adopted by the Executive have often been a topic of discussion in the Indian context. Interestingly, due to the recently promulgated Delhi (Civil Services) Ordinance 2023, debates around the effectiveness of the current modes of judicial review of these instruments have recommenced. This paper aims to discuss these modes of judicial review while reading it along the trajectory of the Basic Structure doctrine and its principles. This shall further
Article
The Mehndi of Judicial Review in Same-Sex Marriages: Infusing the Hues of Basic Structure on the Judiciary’s Palms
by Pratham Malhotra & Pravertna Sulakshya
The recent legal vendetta of Supriya Chakraborty v. Union of India (‘Supriya Chakraborty’) yearns for the recognition of the right to marriage equality through a judicial reinterpretation of various personal and secular laws. Curiously, the respondents have argued that the Supreme Court’s declaration on this matter would trespass into the realm of the Legislature, challenging the sacred principle of separation of powers and endangering the Constitution’s Basic Structure. This essay contends that the respondents’ argument
The Mehndi of Judicial Review in Same-Sex Marriages: Infusing the Hues of Basic Structure on the Judiciary’s Palms
by Pratham Malhotra & Pravertna Sulakshya
The recent legal vendetta of Supriya Chakraborty v. Union of India (‘Supriya Chakraborty’) yearns for the recognition of the right to marriage equality through a judicial reinterpretation of various personal and secular laws. Curiously, the respondents have argued that the Supreme Court’s declaration on this matter would trespass into the realm of the Legislature, challenging the sacred principle of separation of powers and endangering the Constitution’s Basic Structure. This essay contends that the respondents’ argument
Article
Beyond Administrative Law Review: Assessing Ordinance Promulgation through the Lens of the Basic Structure Doctrine
by Om Agarwal
The limited decisions and commentary on the justiciability of ordinances have relied upon administrative law grounds. Given the constitutional origin of ordinances and the unique executive law-making they entail, there is significant scope for the application of principles of constitutional law to their review. This paper pitches the application of the basic structure doctrine in judicial scrutiny of ordinances. First, ordinances are broken down into their constituent executive and legislative elements to strip them of
Beyond Administrative Law Review: Assessing Ordinance Promulgation through the Lens of the Basic Structure Doctrine
by Om Agarwal
The limited decisions and commentary on the justiciability of ordinances have relied upon administrative law grounds. Given the constitutional origin of ordinances and the unique executive law-making they entail, there is significant scope for the application of principles of constitutional law to their review. This paper pitches the application of the basic structure doctrine in judicial scrutiny of ordinances. First, ordinances are broken down into their constituent executive and legislative elements to strip them of
Article
Application of the Basic Structure Doctrine to the Powers of Promulgating Ordinances
by Saumya Ranjan Dixit
Articles 123 and 213 of the Indian Constitution, 1950 (‘the Constitution’) grant the power of promulgating ordinances to the President and the Governor respectively. The intent behind carving such powers is to deal with sudden emergencies when the existing laws fail to resolve it. However, this intent has been ransacked due to the grave misuse of the power in promulgating non-urgent ordinances only to bypass legislative scrutiny. This practice is further marred by a formalistic
Application of the Basic Structure Doctrine to the Powers of Promulgating Ordinances
by Saumya Ranjan Dixit
Articles 123 and 213 of the Indian Constitution, 1950 (‘the Constitution’) grant the power of promulgating ordinances to the President and the Governor respectively. The intent behind carving such powers is to deal with sudden emergencies when the existing laws fail to resolve it. However, this intent has been ransacked due to the grave misuse of the power in promulgating non-urgent ordinances only to bypass legislative scrutiny. This practice is further marred by a formalistic
Volume 16 Issue 3
Editorial Note
Reform That You May Preserve: The Need to Institutionalise Pwd Representation in Indian Academia
by Tanishk Goyal & Kaira Pinheiro
In this note, the authors, who are former Editors of the NUJS Law Review, discuss significant advancements made recently to ensure the inclusion of persons with disabilities (‘PwDs’) within multiple institutional structures. These include the Supreme Court Accessibility Committee constituted by the Chief Justice of India, approval by the Union Cabinet for Phase III of the E-Courts Project, and direction by the Delhi High Court to embed accessibility features for movies released on Over-the-Top platforms.
Reform That You May Preserve: The Need to Institutionalise Pwd Representation in Indian Academia
by Tanishk Goyal & Kaira Pinheiro
In this note, the authors, who are former Editors of the NUJS Law Review, discuss significant advancements made recently to ensure the inclusion of persons with disabilities (‘PwDs’) within multiple institutional structures. These include the Supreme Court Accessibility Committee constituted by the Chief Justice of India, approval by the Union Cabinet for Phase III of the E-Courts Project, and direction by the Delhi High Court to embed accessibility features for movies released on Over-the-Top platforms.
Other
Foreword
by Dr. Justice D. Y. Chandrachud
In the Foreword, Justice D. Y. Chandrachud, Chief Justice of India, highlights the challenges faced by persons with disabilities, and how the Rights of Persons with Disabilities Act, 2016, provides a comprehensive framework to deal with such challenges. Justice Chandrachud, thereafter, highlights the progress in academic discussion made by this Special Issue and the diverse range of topics explored by the articles therein. He concludes by advocating for a legal system that actively fosters an
Foreword
by Dr. Justice D. Y. Chandrachud
In the Foreword, Justice D. Y. Chandrachud, Chief Justice of India, highlights the challenges faced by persons with disabilities, and how the Rights of Persons with Disabilities Act, 2016, provides a comprehensive framework to deal with such challenges. Justice Chandrachud, thereafter, highlights the progress in academic discussion made by this Special Issue and the diverse range of topics explored by the articles therein. He concludes by advocating for a legal system that actively fosters an
Article
‘Undue Burden’ Under the Rights of Persons with Disabilities Act, 2016: In Search of a Definitive Legal Standard
by Rahul Bajaj, Ishika Garg & Ahsnat Mokarim
The Rights of Persons with Disabilities Act, 2016, (‘the Act’) in India grants essential rights and protections to individuals with disabilities, anchored in the principle of reasonable accommodation. At the same time, the Act clarifies that a failure to provide reasonable accommodation is justified when providing the accommodation would cause ‘disproportionate or undue burden’. This standard encompassing factors such as financial constraints and resources to implement such measures. However, varied interpretations and implementation of what
‘Undue Burden’ Under the Rights of Persons with Disabilities Act, 2016: In Search of a Definitive Legal Standard
by Rahul Bajaj, Ishika Garg & Ahsnat Mokarim
The Rights of Persons with Disabilities Act, 2016, (‘the Act’) in India grants essential rights and protections to individuals with disabilities, anchored in the principle of reasonable accommodation. At the same time, the Act clarifies that a failure to provide reasonable accommodation is justified when providing the accommodation would cause ‘disproportionate or undue burden’. This standard encompassing factors such as financial constraints and resources to implement such measures. However, varied interpretations and implementation of what
Article
Critical Pedagogy of the Disabled in Legal Academy and Possibility of Emancipatory Script of Disability Movements: A Critical Note
by Dr. Vijay Kishor Tiwari, Arjun Ghosh & Sushanth Gajula
Is there a possibility of a critical pedagogy of the disabled in law schools where epistemic imagination is colonised by positivism? What would be the framework and trajectory of such pedagogy? The authors try to sketch the oeuvre of this pedagogy by exposing the inherent limits of disability studies and movements that seek their validity in the language of the neo-liberal market and state. In doing so, the paper highlights the intrinsic exclusionary nature of
Critical Pedagogy of the Disabled in Legal Academy and Possibility of Emancipatory Script of Disability Movements: A Critical Note
by Dr. Vijay Kishor Tiwari, Arjun Ghosh & Sushanth Gajula
Is there a possibility of a critical pedagogy of the disabled in law schools where epistemic imagination is colonised by positivism? What would be the framework and trajectory of such pedagogy? The authors try to sketch the oeuvre of this pedagogy by exposing the inherent limits of disability studies and movements that seek their validity in the language of the neo-liberal market and state. In doing so, the paper highlights the intrinsic exclusionary nature of
Article
How Accommodating is Reasonable Accommodation: Analysing India’s Rights of Persons with Disabilities Act, 2016
by Adya Jha & Jasel Mundhra
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
How Accommodating is Reasonable Accommodation: Analysing India’s Rights of Persons with Disabilities Act, 2016
by Adya Jha & Jasel Mundhra
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
Article
Education and Leaving No One Behind: A Critical Analysis of Law and Policy for Children with Disabilities in India
by Kriti Sharma & Soumya Vinayan
Inclusive education has been embedded into Goal 4 of sustainable development. The Sustainable Development Goals (‘SDGs’), 2030, developed by the United Nations and agreed upon by all its member States, explicitly integrate persons with disabilities and their voices, unlike the erstwhile Millennium Development Goals. In this paper, we assess the compliance and compatibility of India’s legal and policy framework for education of children with disabilities with the goals enumerated under SDG 4 on education. In
Education and Leaving No One Behind: A Critical Analysis of Law and Policy for Children with Disabilities in India
by Kriti Sharma & Soumya Vinayan
Inclusive education has been embedded into Goal 4 of sustainable development. The Sustainable Development Goals (‘SDGs’), 2030, developed by the United Nations and agreed upon by all its member States, explicitly integrate persons with disabilities and their voices, unlike the erstwhile Millennium Development Goals. In this paper, we assess the compliance and compatibility of India’s legal and policy framework for education of children with disabilities with the goals enumerated under SDG 4 on education. In
Article
The Idea of Insanity: When Equality Leads to Inequality
by Shreya Mittal & Himanshu K. Mishra
The concept of ability breeds discrimination. On the basis of empirical evidence and other intangible aspects of human existence, the authors submit, that the theory of centrality governs the understanding of canons of criminal jurisprudence asymmetrically more than the theory of marginality. It is in this light that the insanity defence needs substantial, if not total, reconstruction. The article characterises mental disability with reference to the concept of responsibility in criminal law underlining the essential
The Idea of Insanity: When Equality Leads to Inequality
by Shreya Mittal & Himanshu K. Mishra
The concept of ability breeds discrimination. On the basis of empirical evidence and other intangible aspects of human existence, the authors submit, that the theory of centrality governs the understanding of canons of criminal jurisprudence asymmetrically more than the theory of marginality. It is in this light that the insanity defence needs substantial, if not total, reconstruction. The article characterises mental disability with reference to the concept of responsibility in criminal law underlining the essential
Volume 16 Issue 2
Editorial Note
Editorial Note
by Board of Editors
In this note, the authors navigate through the papers published in Volume 16(2) of the NUJS Law Review. The authors succinctly summarise the arguments made in the said papers and conclude by expressing gratitude to the contributors of this issue.
Editorial Note
by Board of Editors
In this note, the authors navigate through the papers published in Volume 16(2) of the NUJS Law Review. The authors succinctly summarise the arguments made in the said papers and conclude by expressing gratitude to the contributors of this issue.
Article
Constitutional Ecdysis: How and Why the Indian Constitution May Test its Original Provisions
by Yash Sinha
Provisions in the Indian Constitution are capable of an ‘ecdysis’. That is, they may completely shed their skin to don another. Their text may acquire a new legal meaning without any formal change whatsoever. This provokes a unique concern: Constitutional provisions may get pitted against one another. The conflict is a given due to the presence of the ‘basic structure’ doctrine. It demands that all under the Constitution be ever-compliant with fixed Constitutional mores. Only
Constitutional Ecdysis: How and Why the Indian Constitution May Test its Original Provisions
by Yash Sinha
Provisions in the Indian Constitution are capable of an ‘ecdysis’. That is, they may completely shed their skin to don another. Their text may acquire a new legal meaning without any formal change whatsoever. This provokes a unique concern: Constitutional provisions may get pitted against one another. The conflict is a given due to the presence of the ‘basic structure’ doctrine. It demands that all under the Constitution be ever-compliant with fixed Constitutional mores. Only
Article
Beyond the Monist-Dualist Dichotomy: The Case for a Dynamic Spectrum
by Prabhav Sharma & Armaan Angra
This paper contests the dichotomous monist-dualist understanding of the relationship between municipal and international law. It determines that this approach is rendered limited as it proposes a sense of legal clarity, which, in fact, is non-existent. This is evidenced in the inconsistency between textual constitutional expression and practical application in written as well as unwritten constitutions. It is augmented by the contemporary critique of constitutional orthodoxy in favour of rights-based jurisprudence, a weak normative view
Beyond the Monist-Dualist Dichotomy: The Case for a Dynamic Spectrum
by Prabhav Sharma & Armaan Angra
This paper contests the dichotomous monist-dualist understanding of the relationship between municipal and international law. It determines that this approach is rendered limited as it proposes a sense of legal clarity, which, in fact, is non-existent. This is evidenced in the inconsistency between textual constitutional expression and practical application in written as well as unwritten constitutions. It is augmented by the contemporary critique of constitutional orthodoxy in favour of rights-based jurisprudence, a weak normative view
Article
Exigency of an Overhaul in Forest Law: How the Forest (Conservation) Amendment Act, 2023, has Transformed India’s Forest Regime
by Garima Thakur
The Forest Conservation (Amendment) Act, 2023, (‘the Amendment Act’) has introduced significant changes to the Forest Conservation Act of 1980. The amendments have diluted the forest conservation law regime in India by introducing multiple exemptions and definitional loopholes to circumvent conservation obligations. The prevailing state of affairs has been further worsened and decapacitated by unreliable forest data, which was one of the main criticisms of the India State of Forest, 2021, report. These amendments have
Exigency of an Overhaul in Forest Law: How the Forest (Conservation) Amendment Act, 2023, has Transformed India’s Forest Regime
by Garima Thakur
The Forest Conservation (Amendment) Act, 2023, (‘the Amendment Act’) has introduced significant changes to the Forest Conservation Act of 1980. The amendments have diluted the forest conservation law regime in India by introducing multiple exemptions and definitional loopholes to circumvent conservation obligations. The prevailing state of affairs has been further worsened and decapacitated by unreliable forest data, which was one of the main criticisms of the India State of Forest, 2021, report. These amendments have
Article
Revisiting Consent under Pocso: From a ‘Fixed-Age’ Rule to a ‘Competence Based’ Standard
by Prem Vinod Parwani
Under the Protection of Children from Sexual Offences Act, 2012, (‘the Act’) a minor cannot consent to sexual acts. This has brought minors in consensual relationships in conflict with the law by restricting their sexual autonomy and criminalising innocent juveniles. This paper examines the rationale for this law and explores its consequences on minors’ relationships. It argues that the judicial interpretations of the Act have distorted the notion of a minor’s consent, leading to adverse
Revisiting Consent under Pocso: From a ‘Fixed-Age’ Rule to a ‘Competence Based’ Standard
by Prem Vinod Parwani
Under the Protection of Children from Sexual Offences Act, 2012, (‘the Act’) a minor cannot consent to sexual acts. This has brought minors in consensual relationships in conflict with the law by restricting their sexual autonomy and criminalising innocent juveniles. This paper examines the rationale for this law and explores its consequences on minors’ relationships. It argues that the judicial interpretations of the Act have distorted the notion of a minor’s consent, leading to adverse
Note
‘Consent’ in False Promise to Marry: Deceptive Sex and the Legal Knot
by Amisha Sharma & Thejalakshmi Anil
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
‘Consent’ in False Promise to Marry: Deceptive Sex and the Legal Knot
by Amisha Sharma & Thejalakshmi Anil
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
Note
Exploring The Impact of the Finiteness Of Melodies: Future of Copyright Infringement Claims in Musical Work
by Bhavyakirti Singh
The advent of mainstream genres in music has given rise to a plethora of copyright claims, pitting top artists against each other. For instance, The Hollies’s claim of infringement against Radiohead over ‘Creep’, which followed Radiohead’s own claim relating to the track against Lana Del Ray. The note aims to assess whether such concerns pertaining to infringement are overstated, especially in light of various factors that propel the composition of music today. First, many mathematical
Exploring The Impact of the Finiteness Of Melodies: Future of Copyright Infringement Claims in Musical Work
by Bhavyakirti Singh
The advent of mainstream genres in music has given rise to a plethora of copyright claims, pitting top artists against each other. For instance, The Hollies’s claim of infringement against Radiohead over ‘Creep’, which followed Radiohead’s own claim relating to the track against Lana Del Ray. The note aims to assess whether such concerns pertaining to infringement are overstated, especially in light of various factors that propel the composition of music today. First, many mathematical
Volume 16 Issue 1
Editorial Note
The Need for a New National Zoo Policy in India: A Jurisprudential Approach
by Abhinav Gupta
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,
The Need for a New National Zoo Policy in India: A Jurisprudential Approach
by Abhinav Gupta
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,
Article
Towards a ‘Good Death’: Uncovering the Confusion in End-Of-Life-Care Law in India
by Akshat Agarwal
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
Towards a ‘Good Death’: Uncovering the Confusion in End-Of-Life-Care Law in India
by Akshat Agarwal
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
Article
Privacy as a Parameter in Antitrust Investigations: A Comparative Critical Appraisal
by Arya Kant & Shailja Beria
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
Privacy as a Parameter in Antitrust Investigations: A Comparative Critical Appraisal
by Arya Kant & Shailja Beria
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
Article
Corporate Governance Appended: Application of Blockchain to Revive Lost Management
by Aniruddh Vadlamani, Ryan Joseph & Chetan Soni
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
Corporate Governance Appended: Application of Blockchain to Revive Lost Management
by Aniruddh Vadlamani, Ryan Joseph & Chetan Soni
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
Article
Bridging Markets: Legal Implications and Solutions for Fractional Share Investment in India
by Dhaval Bothra & Mukund Arora
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
Bridging Markets: Legal Implications and Solutions for Fractional Share Investment in India
by Dhaval Bothra & Mukund Arora
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
Article
Revamping the Tax Regime for Stock Repurchases in India: Economic Equivalence as the Way Forward
by Parameswaran Chidamparam
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
Revamping the Tax Regime for Stock Repurchases in India: Economic Equivalence as the Way Forward
by Parameswaran Chidamparam
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
Article
Dethroned Adani, Unstabilised Market and Distressed Investors: The Domino Effect of Adani-Hindenburg Saga
by Basil Gupta & Ayush Mangal
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
Dethroned Adani, Unstabilised Market and Distressed Investors: The Domino Effect of Adani-Hindenburg Saga
by Basil Gupta & Ayush Mangal
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
Volume 15 Issue 3-4
Editorial Note
Challenging the Legal Privileging of Marriage through the Same-Sex Marriage Case
by Kevin Davis & Shailja Beria
In this note, the authors discuss the legal privileging of the heterosexual normative structure of marriage in India and navigate the discussion surrounding the legality of same-sex marriages through this lens. In doing so, the authors question the viability of merely recognising same-sex marriages, that impose upon such persons heteronormative characterises of a family, for the cost of similar rights. In this regard, the authors further attempt to characterise the problematic concept of marriage being
Challenging the Legal Privileging of Marriage through the Same-Sex Marriage Case
by Kevin Davis & Shailja Beria
In this note, the authors discuss the legal privileging of the heterosexual normative structure of marriage in India and navigate the discussion surrounding the legality of same-sex marriages through this lens. In doing so, the authors question the viability of merely recognising same-sex marriages, that impose upon such persons heteronormative characterises of a family, for the cost of similar rights. In this regard, the authors further attempt to characterise the problematic concept of marriage being
Article
Arnab Goswami and Others: The Discontents of Adjudicating Criminal Procedure under Article 32
by Sandeep Suresh & Aashna Gupta
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
Arnab Goswami and Others: The Discontents of Adjudicating Criminal Procedure under Article 32
by Sandeep Suresh & Aashna Gupta
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
Article
Limitation Period under §37 of the Arbitration and Conciliation Act, 1996: A Faustian Bargain
by Yash Sinha
The Arbitration and Conciliation Act, 1996, (‘AA’) was designed to settle disputes out of courts for quicker results. Logically extended, the judicial oversight of those must also be governed by the similar objective of a quick pace. With the introduction of the Commercial Courts Act, 2015, (‘CCA’) and its application to arbitral appeals, added speed should have been the easily-inferred objective. However, the provision in the AA for creating the right to appeals, namely, §37,
Limitation Period under §37 of the Arbitration and Conciliation Act, 1996: A Faustian Bargain
by Yash Sinha
The Arbitration and Conciliation Act, 1996, (‘AA’) was designed to settle disputes out of courts for quicker results. Logically extended, the judicial oversight of those must also be governed by the similar objective of a quick pace. With the introduction of the Commercial Courts Act, 2015, (‘CCA’) and its application to arbitral appeals, added speed should have been the easily-inferred objective. However, the provision in the AA for creating the right to appeals, namely, §37,
Article
Discretion in Admission of Application under §7 of the Insolvency & Bankruptcy Code, 2016 : A Win for Arbitration
by Meenal Garg & Krish Kalra
The current jurisprudence regarding the interplay between §7 of the Insolvency and Bankruptcy Code, 2016 (‘IBC’) and arbitration stands in favour of the former in light of the Supreme Court’s decision in Indus Biotech v. Kotak India Venture (Offshore) Fund (‘Indus Biotech’). However, the recent pronouncement of the Supreme Court in Vidarbha Industries Power Ltd. v. Axis Bank Ltd. (‘Vidarbha’) has added an element of discretion between determination of default and admission of an application
Discretion in Admission of Application under §7 of the Insolvency & Bankruptcy Code, 2016 : A Win for Arbitration
by Meenal Garg & Krish Kalra
The current jurisprudence regarding the interplay between §7 of the Insolvency and Bankruptcy Code, 2016 (‘IBC’) and arbitration stands in favour of the former in light of the Supreme Court’s decision in Indus Biotech v. Kotak India Venture (Offshore) Fund (‘Indus Biotech’). However, the recent pronouncement of the Supreme Court in Vidarbha Industries Power Ltd. v. Axis Bank Ltd. (‘Vidarbha’) has added an element of discretion between determination of default and admission of an application
Article
Rescuing Article 19 from the ‘Golden Triangle’: An Empirical Analysis of the Application of the Exception Clauses under Article 19
by Sukarm Sharma
Article 19 (the right to freedom of speech and expression), Article 21 (the right to life and liberty) and Article 14 (the right to equality) of the Indian Constitution, 1950, are collectively called the ‘golden triangle’. The said provisions are used to challenge the constitutionality of various legislations that tend to infringe on Part III rights. This paper deals with the application of the aforesaid articles under the fundamental rights jurisprudence. It argues that the
Rescuing Article 19 from the ‘Golden Triangle’: An Empirical Analysis of the Application of the Exception Clauses under Article 19
by Sukarm Sharma
Article 19 (the right to freedom of speech and expression), Article 21 (the right to life and liberty) and Article 14 (the right to equality) of the Indian Constitution, 1950, are collectively called the ‘golden triangle’. The said provisions are used to challenge the constitutionality of various legislations that tend to infringe on Part III rights. This paper deals with the application of the aforesaid articles under the fundamental rights jurisprudence. It argues that the
Note
The Chakmas’ Struggle for Citizenship: Breaking Down India's Citizenship Acquisition Regime
by Moosa Izzat
In the 1960s, several thousand refugees of Chakma origin fled to India from the erstwhile East Pakistan- modern-day Bangladesh. While their counterparts in other Indian states were eventually granted citizenship, the status has eluded the Chakmas in Arunachal Pradesh for over 50 years. The Chakmas have since claimed- or applied for -citizenship, through multiple pathways. After briefly addressing the history of the Chakmas’ relocation in Arunachal Pradesh, the paper assesses the Chakmas’ claim to citizenship
The Chakmas’ Struggle for Citizenship: Breaking Down India's Citizenship Acquisition Regime
by Moosa Izzat
In the 1960s, several thousand refugees of Chakma origin fled to India from the erstwhile East Pakistan- modern-day Bangladesh. While their counterparts in other Indian states were eventually granted citizenship, the status has eluded the Chakmas in Arunachal Pradesh for over 50 years. The Chakmas have since claimed- or applied for -citizenship, through multiple pathways. After briefly addressing the history of the Chakmas’ relocation in Arunachal Pradesh, the paper assesses the Chakmas’ claim to citizenship
Volume 15 Issue 2
Editorial Note
Editorial Note
by Board of Editors
In this note, the authors navigate through the papers published in Volume 15(2) of the NUJS Law Review. The authors succinctly summarise the arguments made in the said papers and conclude by expressing gratitude to the contributors of this issue.
Editorial Note
by Board of Editors
In this note, the authors navigate through the papers published in Volume 15(2) of the NUJS Law Review. The authors succinctly summarise the arguments made in the said papers and conclude by expressing gratitude to the contributors of this issue.
Article
Need for Exemptions for Trade Unions under Indian Competition Law
by Vasu Aggarwal & Pratyush Singh
Trade unions were formed to collectively represent the interests of workers. They help in achieving parity in bargaining powers for the workers to negotiate for adequate working terms and conditions. The activities of trade unions are based on collective action which often clashes with competition law, thus prohibiting collective actions in commercial spaces. Currently, there is no clarity on the nature of liability of trade unions under the current Competition Law. The Supreme Court has
Need for Exemptions for Trade Unions under Indian Competition Law
by Vasu Aggarwal & Pratyush Singh
Trade unions were formed to collectively represent the interests of workers. They help in achieving parity in bargaining powers for the workers to negotiate for adequate working terms and conditions. The activities of trade unions are based on collective action which often clashes with competition law, thus prohibiting collective actions in commercial spaces. Currently, there is no clarity on the nature of liability of trade unions under the current Competition Law. The Supreme Court has
Article
§166(3) of the Companies Act, 2013: Filling the Gaps of an Incomplete Provision
by Rishabh Mohnot & Hrithik Merchant
Companies are the predominant vehicle through which businesses operate. They have a tremendous impact on the society, and in this context, it is important to understand the responsibility placed on the decision-makers – the directors – of companies. In India, the key provision that places responsibility on company directors is §166(3) of the Companies Act, 2013 (‘the Indian Companies Act’), which codifies the duty of care owed by company directors. In this paper, we analyse
§166(3) of the Companies Act, 2013: Filling the Gaps of an Incomplete Provision
by Rishabh Mohnot & Hrithik Merchant
Companies are the predominant vehicle through which businesses operate. They have a tremendous impact on the society, and in this context, it is important to understand the responsibility placed on the decision-makers – the directors – of companies. In India, the key provision that places responsibility on company directors is §166(3) of the Companies Act, 2013 (‘the Indian Companies Act’), which codifies the duty of care owed by company directors. In this paper, we analyse
Article
Analysing the Liability of Digital Medical Platforms for Medical Negligence by Doctors
by Debayan Bhattacharya
Medical platforms have witnessed a massive rise since the beginning of the COVID-19 pandemic. In order to introduce clarity and certainty to the field of telemedicine, the Telemedicine Practice Guidelines were introduced. While it has addressed liability in different respects, the question of platform liability for the negligence of doctors remains unanswered. Liability for a doctor's negligence can be considered under both tort law and intermediary regulation. Under tort law, the standard test for vicarious
Analysing the Liability of Digital Medical Platforms for Medical Negligence by Doctors
by Debayan Bhattacharya
Medical platforms have witnessed a massive rise since the beginning of the COVID-19 pandemic. In order to introduce clarity and certainty to the field of telemedicine, the Telemedicine Practice Guidelines were introduced. While it has addressed liability in different respects, the question of platform liability for the negligence of doctors remains unanswered. Liability for a doctor's negligence can be considered under both tort law and intermediary regulation. Under tort law, the standard test for vicarious
Article
The Tokenisation Framework and Its Privacy Discontents: Issues and Solutions
by Sohini Banerjee, Shobhit Shukla & K.S. Roshan Menon
The Reserve Bank of India’s recent push for card-on-file tokenisation attempts to solve for the privacy and data security risk in India’s payments sector. This article argues that while the tokenisation framework is motivated by necessary considerations, it is a sub-optimal method to solve for such risk as it does not meaningfully engage with the privacy-related dimensions of financial data protection. The optimal method to address such risk, we argue, is the enactment of a
The Tokenisation Framework and Its Privacy Discontents: Issues and Solutions
by Sohini Banerjee, Shobhit Shukla & K.S. Roshan Menon
The Reserve Bank of India’s recent push for card-on-file tokenisation attempts to solve for the privacy and data security risk in India’s payments sector. This article argues that while the tokenisation framework is motivated by necessary considerations, it is a sub-optimal method to solve for such risk as it does not meaningfully engage with the privacy-related dimensions of financial data protection. The optimal method to address such risk, we argue, is the enactment of a
Note
A High Court Rendering A Supreme Court Judgment 'Per Incuriam' and 'Sub-Silentio'?: A Pressing Concern in Haris KM v. Jahfar
by Ankur Singhal
The doctrine of stare decisis is an essential facet of India’s judicial framework. Generally, judicial precedents of the higher courts are binding on the lower courts. This is not only a constitutional mandate, but also ensures consistency, certainty, and discipline in the huge judicial system that India has. However, there are certain exceptions, such as the rules of per incuriam and sub-silentio. An interesting question which has cropped up in Indian jurisprudence is the power
A High Court Rendering A Supreme Court Judgment 'Per Incuriam' and 'Sub-Silentio'?: A Pressing Concern in Haris KM v. Jahfar
by Ankur Singhal
The doctrine of stare decisis is an essential facet of India’s judicial framework. Generally, judicial precedents of the higher courts are binding on the lower courts. This is not only a constitutional mandate, but also ensures consistency, certainty, and discipline in the huge judicial system that India has. However, there are certain exceptions, such as the rules of per incuriam and sub-silentio. An interesting question which has cropped up in Indian jurisprudence is the power
Volume 15 Issue 1
Editorial Note
Editorial Note: Scrutinising the Criminal Procedure (Identification) Act, 2022, and its Conformity with Privacy Principles
by Aaryan Mithal & Abhinav Gupta
In this note, the authors analyse the recent Criminal Procedure (Identification) Act, 2022, ('Act') against the principles laid down under the General Data Protection Regulation, 2016. These principles relate to data protection and are namely the principles of purpose limitation, storage limitation and accountability, and are also applicable in the Indian legal framework. The authors conclude that the Act fails to abide by the aforesaid three principles and, therefore, there is an urgent need for
Editorial Note: Scrutinising the Criminal Procedure (Identification) Act, 2022, and its Conformity with Privacy Principles
by Aaryan Mithal & Abhinav Gupta
In this note, the authors analyse the recent Criminal Procedure (Identification) Act, 2022, ('Act') against the principles laid down under the General Data Protection Regulation, 2016. These principles relate to data protection and are namely the principles of purpose limitation, storage limitation and accountability, and are also applicable in the Indian legal framework. The authors conclude that the Act fails to abide by the aforesaid three principles and, therefore, there is an urgent need for
Article
The Impact of the Puttaswamy Judgement on Law Relating to Searches
by Pratyay Panigrahi & Eishan Mehta
The landmark Puttaswamy judgement has declared the right to privacy as a fundamental right. Such a right will have a significant impact on the construction of provisions that empower law enforcement authorities to undertake searches. In this paper, we exhaustively delineate the jurisprudence in India that relates to the overlap between the power to conduct searches and the right to privacy. Search provisions in India are present in various statutes such as the Code of
The Impact of the Puttaswamy Judgement on Law Relating to Searches
by Pratyay Panigrahi & Eishan Mehta
The landmark Puttaswamy judgement has declared the right to privacy as a fundamental right. Such a right will have a significant impact on the construction of provisions that empower law enforcement authorities to undertake searches. In this paper, we exhaustively delineate the jurisprudence in India that relates to the overlap between the power to conduct searches and the right to privacy. Search provisions in India are present in various statutes such as the Code of
Article
Zameen Zameen Ki Ladai: The Contemporary Implications of the Property Law Inconsistencies In ‘M. Siddiq v. Mahant Suresh Das’
by Devanshi Gupta & Shalini Prem
The Babri Masjid– Ram Janmabhoomi dispute is a land ownership dispute which came to life over 134 years ago between two of India’s most numerically-dominant religious communities. A 1045 page long judgement, M. Siddiq v. Mahant Suresh Das (‘Siddiq’) is riddled with socio-political and religious complications, given the centuries-old tension between the two communities. This burdened the Supreme Court to disintegrate these complications and focus on the proprietary rights issues, including, inter alia, Title of
Zameen Zameen Ki Ladai: The Contemporary Implications of the Property Law Inconsistencies In ‘M. Siddiq v. Mahant Suresh Das’
by Devanshi Gupta & Shalini Prem
The Babri Masjid– Ram Janmabhoomi dispute is a land ownership dispute which came to life over 134 years ago between two of India’s most numerically-dominant religious communities. A 1045 page long judgement, M. Siddiq v. Mahant Suresh Das (‘Siddiq’) is riddled with socio-political and religious complications, given the centuries-old tension between the two communities. This burdened the Supreme Court to disintegrate these complications and focus on the proprietary rights issues, including, inter alia, Title of
Article
The Need to Re-Think the Group of Companies Doctrine in International Commercial Arbitration
by Tejas Chhura
Based largely on party autonomy and consent, over the past two decades, arbitration has emerged as the top pick for corporations to resolve their disputes. Unlike other forms of adjudication, an arbitral tribunal derives its power from the consent the parties themselves provide. Hence, the question of impleading non-signatories in arbitral proceedings has continued to be a matter of great controversy with tribunals generating several ‘creative’ solutions to implead non-signatories. One such solution created is
The Need to Re-Think the Group of Companies Doctrine in International Commercial Arbitration
by Tejas Chhura
Based largely on party autonomy and consent, over the past two decades, arbitration has emerged as the top pick for corporations to resolve their disputes. Unlike other forms of adjudication, an arbitral tribunal derives its power from the consent the parties themselves provide. Hence, the question of impleading non-signatories in arbitral proceedings has continued to be a matter of great controversy with tribunals generating several ‘creative’ solutions to implead non-signatories. One such solution created is
Article
Analysis of the Indirect Discrimination Test in the Light of COVID-19 Restrictions
by Ashika Jain & Astha Rath
The Indian government imposed a countrywide lockdown in the wake of the COVID-19 pandemic. As a result of the lockdown, India witnessed the deplorable plight of thousands of migrant workers who were unable to avail transportation to return to their native places, and were forced to either travel back on foot, or survive in the city they worked in, without their daily wages. The plight of the migrant workers brought to light the importance of
Analysis of the Indirect Discrimination Test in the Light of COVID-19 Restrictions
by Ashika Jain & Astha Rath
The Indian government imposed a countrywide lockdown in the wake of the COVID-19 pandemic. As a result of the lockdown, India witnessed the deplorable plight of thousands of migrant workers who were unable to avail transportation to return to their native places, and were forced to either travel back on foot, or survive in the city they worked in, without their daily wages. The plight of the migrant workers brought to light the importance of
Article
Covid-19 and the International Response: An Inquiry into the Possibility of a Global Pandemic Treaty
by Natasha Gooden
We are currently living in an unprecedented time where the global COVID-19 pandemic has caused havoc to everyday life and claimed innumerable fatalities. Rightly, the world is seeking answers and truths during a time when there have been more unknowns than knowns regarding the virus. States are attempting to curb the virus, regain control, and most importantly, protect the lives of as many citizens as possible. While each State has the responsibility to protect its
Covid-19 and the International Response: An Inquiry into the Possibility of a Global Pandemic Treaty
by Natasha Gooden
We are currently living in an unprecedented time where the global COVID-19 pandemic has caused havoc to everyday life and claimed innumerable fatalities. Rightly, the world is seeking answers and truths during a time when there have been more unknowns than knowns regarding the virus. States are attempting to curb the virus, regain control, and most importantly, protect the lives of as many citizens as possible. While each State has the responsibility to protect its
Volume 14 Issue 4
Editorial Note
Editorial Note: Fifteen Years of the NUJS Law Review
by Professor (Dr.) Mahendra P. Singh
As the NUJS Law Review enters its fifteenth year of existence, we cannot help but pause and reflect upon our journey as an institution since 2008, when the first issue of the Review was released. Our journal was primarily based on the model of legal journals in the west, having the aim of creating opportunities for young and creative minds to undertake legal research and expound their arguments. Since then, the Review has come a
Editorial Note: Fifteen Years of the NUJS Law Review
by Professor (Dr.) Mahendra P. Singh
As the NUJS Law Review enters its fifteenth year of existence, we cannot help but pause and reflect upon our journey as an institution since 2008, when the first issue of the Review was released. Our journal was primarily based on the model of legal journals in the west, having the aim of creating opportunities for young and creative minds to undertake legal research and expound their arguments. Since then, the Review has come a
Article
Asian Development Bank’s Equity Investments In South Asia: Case Studies In India And Bhutan
by Dr. Suresh Nanwani
This article discusses equity investments of the Asian Development Bank (‘ADB’ or ‘the Bank’) in South Asia, with primary reference to India and Bhutan. It considers ADB’s financing of private sector operations, including equity investments. It also focuses on case studies of equity investments in three commercial banks, namely, Centurion Bank Limited (‘CBL’) and Global Trust Bank Limited (‘GTB’) in India, and Bhutan National Bank (‘BNB’) in Bhutan. The issues and challenges in project implementation
Asian Development Bank’s Equity Investments In South Asia: Case Studies In India And Bhutan
by Dr. Suresh Nanwani
This article discusses equity investments of the Asian Development Bank (‘ADB’ or ‘the Bank’) in South Asia, with primary reference to India and Bhutan. It considers ADB’s financing of private sector operations, including equity investments. It also focuses on case studies of equity investments in three commercial banks, namely, Centurion Bank Limited (‘CBL’) and Global Trust Bank Limited (‘GTB’) in India, and Bhutan National Bank (‘BNB’) in Bhutan. The issues and challenges in project implementation
Article
Constitutional Dysfunctionalism
by Yash Sinha
The Rajya Sabha and the Indian judiciary share a functional link so as to maintain a constitutional equilibrium. Both their designs are oddly detailed for a reason, with no feature existing without purpose. The former is tasked with scrutinising and revising the social/moral policy initiatives of the Lok Sabha-executive combine. In parallel and with respect to the same legislative-executive actions, the judiciary has its task in reviewing recondite issues of constitutional compliance/competence. This paper elaborates
Constitutional Dysfunctionalism
by Yash Sinha
The Rajya Sabha and the Indian judiciary share a functional link so as to maintain a constitutional equilibrium. Both their designs are oddly detailed for a reason, with no feature existing without purpose. The former is tasked with scrutinising and revising the social/moral policy initiatives of the Lok Sabha-executive combine. In parallel and with respect to the same legislative-executive actions, the judiciary has its task in reviewing recondite issues of constitutional compliance/competence. This paper elaborates
Article
The Centre or State: Who Should Respond to Biological Disasters?
by Tasneem Zakir & Satrajeet Sen
The COVID-19 pandemic obligated governments across the world to adopt measures for containing the spread of the virus while preserving socio-economic stability. The Constitution of India, 1950 (‘the Constitution’) vests upon the State governments the exclusive authority on all matters relating to public health. Nevertheless, the Central Government spearheaded the response to the COVID-19 outbreak, invoking the provisions of the Disaster Management Act, 2005 (‘DM Act’). In this paper, we challenge the authority of the
The Centre or State: Who Should Respond to Biological Disasters?
by Tasneem Zakir & Satrajeet Sen
The COVID-19 pandemic obligated governments across the world to adopt measures for containing the spread of the virus while preserving socio-economic stability. The Constitution of India, 1950 (‘the Constitution’) vests upon the State governments the exclusive authority on all matters relating to public health. Nevertheless, the Central Government spearheaded the response to the COVID-19 outbreak, invoking the provisions of the Disaster Management Act, 2005 (‘DM Act’). In this paper, we challenge the authority of the
Article
Understanding Non-Consensual Dissemination of Intimate Images Laws in India with Focus on Intermediary Liability
by Vaishnavi Sharma
From the generally conservative and patriarchal approach of the courts towards pornography, to the paternalistic, welfare legislations enacted to ‘protect’ certain classes of the population, obscenity laws operate in and further churn an obscenity narrative that actively disables sexual autonomy, especially of women and minorities that often face the brunt of these exercises. This article argues that the extant legal regime relating to the non-consensual dissemination of intimate images is weak and non-developed in India,
Understanding Non-Consensual Dissemination of Intimate Images Laws in India with Focus on Intermediary Liability
by Vaishnavi Sharma
From the generally conservative and patriarchal approach of the courts towards pornography, to the paternalistic, welfare legislations enacted to ‘protect’ certain classes of the population, obscenity laws operate in and further churn an obscenity narrative that actively disables sexual autonomy, especially of women and minorities that often face the brunt of these exercises. This article argues that the extant legal regime relating to the non-consensual dissemination of intimate images is weak and non-developed in India,
Article
Emergency Arbitration In India: A Critical Appraisal Of The Institutional Framework
by Abhinav Gupta & Sriroopa Neogi
Over the years, the Indian government, as well as the courts, have consistently furthered a pro-arbitration approach in order to establish an efficient dispute resolution mechanism that can improve contract enforcement and the ease of doing business. Emergency arbitration is considered to be one such process that can assist in establishing an effective resolution mechanism. This paper attempts to focus on and understand the modalities of prominent domestic institutional rules which govern the emergency arbitration
Emergency Arbitration In India: A Critical Appraisal Of The Institutional Framework
by Abhinav Gupta & Sriroopa Neogi
Over the years, the Indian government, as well as the courts, have consistently furthered a pro-arbitration approach in order to establish an efficient dispute resolution mechanism that can improve contract enforcement and the ease of doing business. Emergency arbitration is considered to be one such process that can assist in establishing an effective resolution mechanism. This paper attempts to focus on and understand the modalities of prominent domestic institutional rules which govern the emergency arbitration
Article
Regulatory Power and the New (Im)Balance of Powers in Constitutional Liberal Democracies: Some Reflections on the Relevance of Norberto Bobbio's Thoughts from an Indian and European Perspective
by Emeric Prévost & Pratyush Kumar
This paper aims to provide conceptual tools and arguments, inspired by Norberto Bobbio’s rich legal and political theory, which appear particularly relevant to address today’s issues of democratic legitimacy and accountability of regulatory structures in the context of Indian and European liberal democracies. The analysis thus confronts from a comparative perspective the structures and modes of operation of Indian and European regulatory structures (in terms of competence, functions and means) with the model of constitutional
Regulatory Power and the New (Im)Balance of Powers in Constitutional Liberal Democracies: Some Reflections on the Relevance of Norberto Bobbio's Thoughts from an Indian and European Perspective
by Emeric Prévost & Pratyush Kumar
This paper aims to provide conceptual tools and arguments, inspired by Norberto Bobbio’s rich legal and political theory, which appear particularly relevant to address today’s issues of democratic legitimacy and accountability of regulatory structures in the context of Indian and European liberal democracies. The analysis thus confronts from a comparative perspective the structures and modes of operation of Indian and European regulatory structures (in terms of competence, functions and means) with the model of constitutional
Volume 14 Issue 3
Editorial Note
Editorial Note: Navigating Labour Law in the Gig Economy
by Isana Laisram & Ravi Shankar
The authors reflect on the interplay of law, economy and technology culminating in the question of classification of gig workers in labour law currently pending before the Supreme Court of India. They map relevant parameters for law makers and concerned stakeholders to take into consideration in addressing this question, against the backdrop of technology disruptions facilitating evolving forms of work arrangements.
Editorial Note: Navigating Labour Law in the Gig Economy
by Isana Laisram & Ravi Shankar
The authors reflect on the interplay of law, economy and technology culminating in the question of classification of gig workers in labour law currently pending before the Supreme Court of India. They map relevant parameters for law makers and concerned stakeholders to take into consideration in addressing this question, against the backdrop of technology disruptions facilitating evolving forms of work arrangements.
Article
Regulating The Ethics of the Unknown: Analysing Regulatory Regimes For AI-Based Legal Technology and Recommendations For its Regulation in India
by Anirudh Gotety
The emergence of artificial intelligence has disrupted almost every industry in the modern world. Experts have no doubt that AI is set to take the legal services industry by storm as well, a field that is otherwise notorious for its reluctance towards embracing technology. AI-based legal technologies are being increasingly used in technology assisted review and other applications. The use of AI also poses questions relating to the ethical duties of lawyers. Are regulators around
Regulating The Ethics of the Unknown: Analysing Regulatory Regimes For AI-Based Legal Technology and Recommendations For its Regulation in India
by Anirudh Gotety
The emergence of artificial intelligence has disrupted almost every industry in the modern world. Experts have no doubt that AI is set to take the legal services industry by storm as well, a field that is otherwise notorious for its reluctance towards embracing technology. AI-based legal technologies are being increasingly used in technology assisted review and other applications. The use of AI also poses questions relating to the ethical duties of lawyers. Are regulators around
Article
Re-evaluating Free Speech Protections of Elected Representatives: Addressing Responsibility Concerns vis-a-vis Individual Dignity
by Tanishk Goyal & Sarthak Sethi
In July 2016, when a 13-year-old girl and her mother filed an FIR alleging that they had been gang-raped by a group of criminals on NH-91 in Bulandsheher, Uttar Pradesh, the then Cabinet Minister of the State, Azam Khan made a statement terming it a 'political conspiracy against the State Government’. In August 2016, the victims approached the Supreme Court and filed a writ petition, seeking action against the minister for making such remarks about the
Re-evaluating Free Speech Protections of Elected Representatives: Addressing Responsibility Concerns vis-a-vis Individual Dignity
by Tanishk Goyal & Sarthak Sethi
In July 2016, when a 13-year-old girl and her mother filed an FIR alleging that they had been gang-raped by a group of criminals on NH-91 in Bulandsheher, Uttar Pradesh, the then Cabinet Minister of the State, Azam Khan made a statement terming it a 'political conspiracy against the State Government’. In August 2016, the victims approached the Supreme Court and filed a writ petition, seeking action against the minister for making such remarks about the
Article
Litigating Insider Trading: Decoding Evidences in Cases Under SEBI (Prohibition Of Insider Trading) Regulations, 2015
by Gayatri Puthran
Insider trading is a grave crime since it endangers investor interests and trust in the securities market. On the other hand, the charge is serious, especially where criminal liability is involved, and therefore those accused of insider trading need adequate protection from wrongful conviction. This makes it imperative for there to be adequate and compelling evidence to substantiate a charge of insider trading. The charge of insider trading is constituted of several elements, each of
Litigating Insider Trading: Decoding Evidences in Cases Under SEBI (Prohibition Of Insider Trading) Regulations, 2015
by Gayatri Puthran
Insider trading is a grave crime since it endangers investor interests and trust in the securities market. On the other hand, the charge is serious, especially where criminal liability is involved, and therefore those accused of insider trading need adequate protection from wrongful conviction. This makes it imperative for there to be adequate and compelling evidence to substantiate a charge of insider trading. The charge of insider trading is constituted of several elements, each of
Article
The Inefficacy of Internal Complaint Mechanisms in Resolving Sexual Harassment Claims - A Study in the Context of Sexual Harassment Law and #MeToo in India
by Megha Mehta
The #MeToo movement in India suggests that in spite of the Vishaka guidelines, and the enactment of the Sexual Harassment of Women at Workplace Act, 2013, the Indian legal system has been ineffective in redressing sexual harassment claims. This paper argues, drawing on Professor Vicki Schultz’s theory for reconceptualising sexual harassment, that the sexual harassment law in India has failed, as it is based on a ‘desire-dominance’ paradigm. Under this paradigm, sexual harassment is conceived
The Inefficacy of Internal Complaint Mechanisms in Resolving Sexual Harassment Claims - A Study in the Context of Sexual Harassment Law and #MeToo in India
by Megha Mehta
The #MeToo movement in India suggests that in spite of the Vishaka guidelines, and the enactment of the Sexual Harassment of Women at Workplace Act, 2013, the Indian legal system has been ineffective in redressing sexual harassment claims. This paper argues, drawing on Professor Vicki Schultz’s theory for reconceptualising sexual harassment, that the sexual harassment law in India has failed, as it is based on a ‘desire-dominance’ paradigm. Under this paradigm, sexual harassment is conceived
Article
Defending Women Who Kill: Analysing 'Provocation' in the Context of Intimate-Partner Homicide
by Aishwarya Deb
The Indian scholarship on female criminality, primarily based on research conducted in correctional homes, reveals that most of the crimes committed by women are due to stressful situations or past victimisation. However, given the rarity of women’s involvement in brutal crimes, extensive studies on the judicial response towards female killers have not yet found a place in feminist legal literature. This article will be a novel addition to the existing scholarship, as it examines the
Defending Women Who Kill: Analysing 'Provocation' in the Context of Intimate-Partner Homicide
by Aishwarya Deb
The Indian scholarship on female criminality, primarily based on research conducted in correctional homes, reveals that most of the crimes committed by women are due to stressful situations or past victimisation. However, given the rarity of women’s involvement in brutal crimes, extensive studies on the judicial response towards female killers have not yet found a place in feminist legal literature. This article will be a novel addition to the existing scholarship, as it examines the
Volume 14 Issue 2
Editorial Note
Editorial Note: Deconstructing Our Able-Normative Institutional Structures
by Chandrika Bothra & Tanishk Goyal
If we truly believe that legal academia guides law and policy making, the abject failure of our institutions to provide reasonable accommodations to persons with disabilities strikes at the heart of their assurance of inclusiveness and equal citizenship in the society. A by-product of the lack of such accommodations is the creation of a chilling effect on persons with disabilities which seriously affects their ability to litigate and prevents them from attempting to contribute to
Editorial Note: Deconstructing Our Able-Normative Institutional Structures
by Chandrika Bothra & Tanishk Goyal
If we truly believe that legal academia guides law and policy making, the abject failure of our institutions to provide reasonable accommodations to persons with disabilities strikes at the heart of their assurance of inclusiveness and equal citizenship in the society. A by-product of the lack of such accommodations is the creation of a chilling effect on persons with disabilities which seriously affects their ability to litigate and prevents them from attempting to contribute to
Article
Shape Shifting And Erroneous: The Many Inconsistencies in the Insanity Defence in India
by Soumya AK, Maitreyi Misra & Anup Surendranath
Largely based on the ruling in R v. M’Naghten, §84 of the Indian Penal Code, 1860, and its jurisprudence, the defence of insanity continues to operate within anachronistic theories of the mind and its understanding in the law. This paper explores how the inconsistent interpretation and application of the test under §84, as a result of reliance on long discarded notions, has injected arbitrariness and vagueness into the jurisprudence. The lack of a uniform standard
Shape Shifting And Erroneous: The Many Inconsistencies in the Insanity Defence in India
by Soumya AK, Maitreyi Misra & Anup Surendranath
Largely based on the ruling in R v. M’Naghten, §84 of the Indian Penal Code, 1860, and its jurisprudence, the defence of insanity continues to operate within anachronistic theories of the mind and its understanding in the law. This paper explores how the inconsistent interpretation and application of the test under §84, as a result of reliance on long discarded notions, has injected arbitrariness and vagueness into the jurisprudence. The lack of a uniform standard
Article
The Ministry And The Trace: Subverting End-To-End Encryption
by Gurshabad Grover, Tanaya Rajwade & Divyank Katira
End-to-end encrypted messaging allows individuals to hold confidential conversations free from the interference of states and private corporations. To aid surveillance and prosecution of crimes, the Indian Government has mandated online messaging providers to enable identification of originators of messages that traverse their platforms. This paper establishes how the different ways in which this ‘traceability’ mandate can be implemented (dropping end-to-end encryption, hashing messages, and attaching originator information to messages) come with serious costs to
The Ministry And The Trace: Subverting End-To-End Encryption
by Gurshabad Grover, Tanaya Rajwade & Divyank Katira
End-to-end encrypted messaging allows individuals to hold confidential conversations free from the interference of states and private corporations. To aid surveillance and prosecution of crimes, the Indian Government has mandated online messaging providers to enable identification of originators of messages that traverse their platforms. This paper establishes how the different ways in which this ‘traceability’ mandate can be implemented (dropping end-to-end encryption, hashing messages, and attaching originator information to messages) come with serious costs to
Article
Third-Party Funding in International Arbitration: Devising a Legal Framework for India
by Kaira Pinheiro & Dishay Chitalia
Third-party funding is a practice wherein an entity funds the procedural costs of one of the parties in a dispute in exchange for a share in the monetary award, if successful. Although it is a popular practice in several jurisdictions, it has remained unexplored territory in international arbitration in India. The lack of a regulatory mechanism has resulted in widespread apprehension and reluctance to engage in such practice, rendering arbitration an inaccessible method of dispute
Third-Party Funding in International Arbitration: Devising a Legal Framework for India
by Kaira Pinheiro & Dishay Chitalia
Third-party funding is a practice wherein an entity funds the procedural costs of one of the parties in a dispute in exchange for a share in the monetary award, if successful. Although it is a popular practice in several jurisdictions, it has remained unexplored territory in international arbitration in India. The lack of a regulatory mechanism has resulted in widespread apprehension and reluctance to engage in such practice, rendering arbitration an inaccessible method of dispute
Article
‘Benefit Sharing’ Regime in India Regarding the use of Biological Resources – An Alternative Model
by Dr. Raju Narayana Swamy & Kumari Saloni
The access to biological resources located within India is governed by the Biological Diversity Act, its Rules and Regulations, that were enacted in furtherance of the Convention on Biological Diversity (‘CBD’) and the Nagoya Protocol. One important aspect under them is fair and equitable ‘benefit sharing’ wherein, users of biological resources are required to share certain parts of the benefits accruing to them from such use, with the local communities that preserve those resources and
‘Benefit Sharing’ Regime in India Regarding the use of Biological Resources – An Alternative Model
by Dr. Raju Narayana Swamy & Kumari Saloni
The access to biological resources located within India is governed by the Biological Diversity Act, its Rules and Regulations, that were enacted in furtherance of the Convention on Biological Diversity (‘CBD’) and the Nagoya Protocol. One important aspect under them is fair and equitable ‘benefit sharing’ wherein, users of biological resources are required to share certain parts of the benefits accruing to them from such use, with the local communities that preserve those resources and
Note
Contours of Corporate Social Responsibility amidst COVID-19
by Arindam Sarkar, Anwesha Sinha & Malika Nanduru
The outbreak of the COVID-19 pandemic has resulted in significant global ramifications. India’s health infrastructure as well as the economy are facing serious challenges. Since March 2020, corporates and business leaders have attempted to build a COVID-19 response plan in various capacities. In this note, the authors analyse the initiatives undertaken by Indian companies to alleviate the impact of the pandemic on the Indian population as well as the pandemic response of the Ministry of
Contours of Corporate Social Responsibility amidst COVID-19
by Arindam Sarkar, Anwesha Sinha & Malika Nanduru
The outbreak of the COVID-19 pandemic has resulted in significant global ramifications. India’s health infrastructure as well as the economy are facing serious challenges. Since March 2020, corporates and business leaders have attempted to build a COVID-19 response plan in various capacities. In this note, the authors analyse the initiatives undertaken by Indian companies to alleviate the impact of the pandemic on the Indian population as well as the pandemic response of the Ministry of
Volume 14 Issue 1
Editorial Note
Editorial Note: Taking Navtej Singh Johar v. Union of India to its Logical Conclusion
by Kaira Pinheiro & Tanishk Goyal
The Navtej Singh Johar verdict by the Hon’ble Supreme Court of India brought with itself, an affirmation that the values of individual dignity, autonomy and privacy were not just ‘frozen concepts’ which could be eroded at the altar of societal morality. This was a significant holding by the Court inasmuch as it set into motion the process of granting visibility to all those persons who had been living their lives under the shadows of §377
Editorial Note: Taking Navtej Singh Johar v. Union of India to its Logical Conclusion
by Kaira Pinheiro & Tanishk Goyal
The Navtej Singh Johar verdict by the Hon’ble Supreme Court of India brought with itself, an affirmation that the values of individual dignity, autonomy and privacy were not just ‘frozen concepts’ which could be eroded at the altar of societal morality. This was a significant holding by the Court inasmuch as it set into motion the process of granting visibility to all those persons who had been living their lives under the shadows of §377
Article
Who Judges the Judges?: Viewing Judicial Recusal and Disqualification as a Litigant
by Anshul Dalmia & Pratyay Panigrahi
Every litigant who approaches the footsteps of the judiciary has the right to a free and fair trial. This right not only includes a just result but one achieved through fair means and by an impartial arbiter of law (commonly referred to as a ‘judge’). However, it is possible that doubts might arise against the possibility and potential of the judge being biased. Instead of engaging with these questions, the Indian courts have been defensive
Who Judges the Judges?: Viewing Judicial Recusal and Disqualification as a Litigant
by Anshul Dalmia & Pratyay Panigrahi
Every litigant who approaches the footsteps of the judiciary has the right to a free and fair trial. This right not only includes a just result but one achieved through fair means and by an impartial arbiter of law (commonly referred to as a ‘judge’). However, it is possible that doubts might arise against the possibility and potential of the judge being biased. Instead of engaging with these questions, the Indian courts have been defensive
Article
Notice of Combinations in Insolvency Resolution
by Ribhav Pande
The Competition Act, 2002, regulates combinations that have an appreciable adverse effect on competition in the relevant market. During a Corporate Insolvency Resolution Process, a combination may form part of a resolution plan. This article explores the interplay of the Competition Act, 2002, with the Insolvency and Bankruptcy Code, 2016, for the purpose of sending the notice of such a combination to the Competition Commission of India as well as for receiving its approval. It
Notice of Combinations in Insolvency Resolution
by Ribhav Pande
The Competition Act, 2002, regulates combinations that have an appreciable adverse effect on competition in the relevant market. During a Corporate Insolvency Resolution Process, a combination may form part of a resolution plan. This article explores the interplay of the Competition Act, 2002, with the Insolvency and Bankruptcy Code, 2016, for the purpose of sending the notice of such a combination to the Competition Commission of India as well as for receiving its approval. It
Article
GST Compensation to States: An Ineluctable Obligation on the Union
by Yash Sinha
The Central Government in the year 2020 initially refused states a recompense for both actual and notional losses in their GST revenues for the FY 2020-21. While the discombobulated state governments scrambled to find legal and fiduciary justification for their demands, the Centre simply cited situational expediency and the absence of any obligations, for their denial. It suggested two alternatives to the states, both of which evolved borrowing, as the only mechanisms for compensation. However,
GST Compensation to States: An Ineluctable Obligation on the Union
by Yash Sinha
The Central Government in the year 2020 initially refused states a recompense for both actual and notional losses in their GST revenues for the FY 2020-21. While the discombobulated state governments scrambled to find legal and fiduciary justification for their demands, the Centre simply cited situational expediency and the absence of any obligations, for their denial. It suggested two alternatives to the states, both of which evolved borrowing, as the only mechanisms for compensation. However,
Note
Nitisha v. Union of India: Furthering A Discussion on Discriminatory Intent
by Dhruva Gandhi
Recently, in Lt. Col. Nitisha v. Union of India, (‘Nitisha’) the Supreme Court was concerned with the validity of the requirements that had been put in place by the army to decide upon the grant of a Permanent Commission to women Short Service Commission officers. While examining these requirements, the Court, for the first time, acknowledged ‘indirect discrimination’ and ‘structural discrimination’ as tools of Indian equality law. To this extent, the decision is indeed laudatory.
Nitisha v. Union of India: Furthering A Discussion on Discriminatory Intent
by Dhruva Gandhi
Recently, in Lt. Col. Nitisha v. Union of India, (‘Nitisha’) the Supreme Court was concerned with the validity of the requirements that had been put in place by the army to decide upon the grant of a Permanent Commission to women Short Service Commission officers. While examining these requirements, the Court, for the first time, acknowledged ‘indirect discrimination’ and ‘structural discrimination’ as tools of Indian equality law. To this extent, the decision is indeed laudatory.
Article
Treatment of Seatless Clauses By Indian And English Courts: A Comparative Analysis
by Soumil Jhanwar
A thumb-rule for drafting any arbitration clause is to mention the seat of arbitration in the clearest fashion possible. When this thumb-rule is breached, the burden of determining or discerning a seat befalls an arbiter, be it a court or a tribunal. This paper aims to explain the ramifications of such an exercise by analysing English and Indian jurisprudence on the discernment of seat in such ‘seatless’ clauses. It demonstrates the internal conflicts within the
Treatment of Seatless Clauses By Indian And English Courts: A Comparative Analysis
by Soumil Jhanwar
A thumb-rule for drafting any arbitration clause is to mention the seat of arbitration in the clearest fashion possible. When this thumb-rule is breached, the burden of determining or discerning a seat befalls an arbiter, be it a court or a tribunal. This paper aims to explain the ramifications of such an exercise by analysing English and Indian jurisprudence on the discernment of seat in such ‘seatless’ clauses. It demonstrates the internal conflicts within the
Article
Recovery of Currency Losses Caused By Exchange Rate Fluctuation: An Indian Law Perspective
by Sahil Malhotra
Currency exchange rate fluctuations are a common phenomenon in modern commerce, which can significantly impact monetary obligations in cross-border commercial transactions. Particularly, when a currency exchange rate fluctuates in a specific direction, it can negatively impact either the expenditure incurred by a party in the performance of a contractual obligation, or the quantum of money to be received by a party via the other party’s performance of a monetary obligation. If such loss is incurred
Recovery of Currency Losses Caused By Exchange Rate Fluctuation: An Indian Law Perspective
by Sahil Malhotra
Currency exchange rate fluctuations are a common phenomenon in modern commerce, which can significantly impact monetary obligations in cross-border commercial transactions. Particularly, when a currency exchange rate fluctuates in a specific direction, it can negatively impact either the expenditure incurred by a party in the performance of a contractual obligation, or the quantum of money to be received by a party via the other party’s performance of a monetary obligation. If such loss is incurred
Volume 13 Issue 4
Article
Exclusion Clauses Under the Indian Contract Law: A Need to Account for Unreasonableness
by MP Ram Mohan & Anmol Jain
The Indian contract law continues to follow the classical contract law model under which parties may, in exercise of their autonomy, limit or exclude their liability for breach of contract. As long as parties have freely contracted, an exclusion clause remains effective. Because of this, parties have started drafting wide exclusion clauses, highlighting creeping unreasonableness in contracting practices. In the absence of any statutory law governing the same the only way by which a party
Exclusion Clauses Under the Indian Contract Law: A Need to Account for Unreasonableness
by MP Ram Mohan & Anmol Jain
The Indian contract law continues to follow the classical contract law model under which parties may, in exercise of their autonomy, limit or exclude their liability for breach of contract. As long as parties have freely contracted, an exclusion clause remains effective. Because of this, parties have started drafting wide exclusion clauses, highlighting creeping unreasonableness in contracting practices. In the absence of any statutory law governing the same the only way by which a party
Article
Determining the Reasonability of Conditions under §3(5) of the Competition Act: Analysing the Intellectual Property Law Exemption
by Chandrika Bothra & Mehak Kumar
Reasonable conditions under §3(5) of the Competition Act, 2002, exempt a person with a valid, registered intellectual property right (‘IPR’) from the application of Indian competition law. They provide a limited exemption, allowing an IPR holder to take steps that are reasonable and necessary for the protection of one’s rights. The position, though, on how the reasonability of such a condition is to be assessed, still remains unsettled. This leads to ambiguity for IPR holders
Determining the Reasonability of Conditions under §3(5) of the Competition Act: Analysing the Intellectual Property Law Exemption
by Chandrika Bothra & Mehak Kumar
Reasonable conditions under §3(5) of the Competition Act, 2002, exempt a person with a valid, registered intellectual property right (‘IPR’) from the application of Indian competition law. They provide a limited exemption, allowing an IPR holder to take steps that are reasonable and necessary for the protection of one’s rights. The position, though, on how the reasonability of such a condition is to be assessed, still remains unsettled. This leads to ambiguity for IPR holders
Article
Locating Indirect Discrimination in India: A Case for Rigorous Review under Article 14
by Dhruva Gandhi
For long, disparate impact or indirect discrimination has been absent from Indian discrimination law jurisprudence. Recently though, some decisions by the Supreme Court and the High Courts have recognised this type of discrimination. However, even in this nascent jurisprudence we notice a dichotomy. While some judges situate indirect discrimination under Article 14, others have located it under Article 15(1). In this essay, I contend that indirect discrimination is textually, evidentially and normatively incompatible with Article
Locating Indirect Discrimination in India: A Case for Rigorous Review under Article 14
by Dhruva Gandhi
For long, disparate impact or indirect discrimination has been absent from Indian discrimination law jurisprudence. Recently though, some decisions by the Supreme Court and the High Courts have recognised this type of discrimination. However, even in this nascent jurisprudence we notice a dichotomy. While some judges situate indirect discrimination under Article 14, others have located it under Article 15(1). In this essay, I contend that indirect discrimination is textually, evidentially and normatively incompatible with Article
Article
Stationing Smart Contract as a 'Contract': A Case for Interpretative Reform of the Indian Contract Act, 1872
by Deepti Pandey & Harishankar Raghunath
Smart contracts have garnered indubitable popularity as a disruptive technology that provides an effective digital alternative to traditional contracts. Summed up pithily as ‘automated digital contracts’, smart contracts gain significant ground in terms of efficiency and transparency over their traditional counterparts, and are increasingly moving into the mainstream in several jurisdictions. The benefits of smart contracts by no means exclude India – various domestic and international forums have acknowledged that employing smart contracts could transform
Stationing Smart Contract as a 'Contract': A Case for Interpretative Reform of the Indian Contract Act, 1872
by Deepti Pandey & Harishankar Raghunath
Smart contracts have garnered indubitable popularity as a disruptive technology that provides an effective digital alternative to traditional contracts. Summed up pithily as ‘automated digital contracts’, smart contracts gain significant ground in terms of efficiency and transparency over their traditional counterparts, and are increasingly moving into the mainstream in several jurisdictions. The benefits of smart contracts by no means exclude India – various domestic and international forums have acknowledged that employing smart contracts could transform
Article
Conversation on the Pedagogy of Law and Poverty
by Amita Dhanda & Saurabh Bhattacharjee
The NUJS Law Review was pleased to host Amita Dhanda and Saurabh Bhattacharjee for a conversation on the pedagogy of Law and Poverty on September 12, 2020. The Indian Academy, like Academies elsewhere, provides a privileged position to research and writing. Despite its labour intensiveness and long-time impact on the polity, teaching continues to be seen as an also-ran. In an effort to break this silence and to foreground the research and reflection that goes
Conversation on the Pedagogy of Law and Poverty
by Amita Dhanda & Saurabh Bhattacharjee
The NUJS Law Review was pleased to host Amita Dhanda and Saurabh Bhattacharjee for a conversation on the pedagogy of Law and Poverty on September 12, 2020. The Indian Academy, like Academies elsewhere, provides a privileged position to research and writing. Despite its labour intensiveness and long-time impact on the polity, teaching continues to be seen as an also-ran. In an effort to break this silence and to foreground the research and reflection that goes
Note
Invocation of Arbitration Clauses in Shareholder Agreements for Disputes under Articles of Association
by Ravitej Chilumuri & Aaditya Gambhir
Indian company law has seen much debate on the enforceability of shareholder covenants not incorporated in the articles of association of a company, including covenants on matters of internal governance. This dissonance has carried over to the specific context of arbitration clauses, as it appears to be quite common (from the sheer amount of case law on this particular point) for parties to leave out the SHA’s arbitration clause while incorporating its other provisions verbatim
Invocation of Arbitration Clauses in Shareholder Agreements for Disputes under Articles of Association
by Ravitej Chilumuri & Aaditya Gambhir
Indian company law has seen much debate on the enforceability of shareholder covenants not incorporated in the articles of association of a company, including covenants on matters of internal governance. This dissonance has carried over to the specific context of arbitration clauses, as it appears to be quite common (from the sheer amount of case law on this particular point) for parties to leave out the SHA’s arbitration clause while incorporating its other provisions verbatim
Editorial Note
Editorial Note
by Aastha Malhotra
In 2020, the COVID-19 pandemic has brought its own set of unique challenges. One of these challenges has been a permanent alteration in the way the law is understood and applied across the world. It has forced lawyers, academics, policymakers and students alike to rethink what once seemed the norm, and has prompted us to open ourselves up to fresher and newer perspectives. At the NUJS Law Review, we have always taken pride in the
Editorial Note
by Aastha Malhotra
In 2020, the COVID-19 pandemic has brought its own set of unique challenges. One of these challenges has been a permanent alteration in the way the law is understood and applied across the world. It has forced lawyers, academics, policymakers and students alike to rethink what once seemed the norm, and has prompted us to open ourselves up to fresher and newer perspectives. At the NUJS Law Review, we have always taken pride in the
Volume 13 Issue 3
Other
Caste-ing Queer Identities
by Ujithra Ponniah & Sowjanya Tamalapakula
Are sexual identities caste marked? How does caste constitute same-sex desire? As a pilot study we interviewed men who identify as Dalit and gay in metropolitan cities. Our study shows that caste pervades the intimate both in how Dalit queer, desire and are desired. Ideas of purity and pollution which would be written off as caste practices found in the rural, constitute the everydayness of urban intimacy. Dalits bodies were transformed into objects of upper
Caste-ing Queer Identities
by Ujithra Ponniah & Sowjanya Tamalapakula
Are sexual identities caste marked? How does caste constitute same-sex desire? As a pilot study we interviewed men who identify as Dalit and gay in metropolitan cities. Our study shows that caste pervades the intimate both in how Dalit queer, desire and are desired. Ideas of purity and pollution which would be written off as caste practices found in the rural, constitute the everydayness of urban intimacy. Dalits bodies were transformed into objects of upper
Editorial Note
Editorial Note: Navtej Singh Johar Special Issue
by Devashri Mishra & Aashesh Singh
In Navtej Singh Johar v. Union of India the Court read down §377 of the Indian Penal Code, 1860, which criminalises “carnal intercourse against the order of nature with any man, woman or animal”, or commonly, unnatural intercourse. It is perhaps one of the most socially and constitutionally historic verdicts of our times. However, while acknowledging the verdict’s significance, it is crucial to also acknowledge the several questions thrown up by commentators in the decision’s anticipation and the
Editorial Note: Navtej Singh Johar Special Issue
by Devashri Mishra & Aashesh Singh
In Navtej Singh Johar v. Union of India the Court read down §377 of the Indian Penal Code, 1860, which criminalises “carnal intercourse against the order of nature with any man, woman or animal”, or commonly, unnatural intercourse. It is perhaps one of the most socially and constitutionally historic verdicts of our times. However, while acknowledging the verdict’s significance, it is crucial to also acknowledge the several questions thrown up by commentators in the decision’s anticipation and the
Article
Legal Imagination and Social Reform: Navtej Johar Revisited
by Dr. Saumya Uma & Samudyata Sreenath
A central concept in the Navtej Singh Johar judgement of the Supreme Court is that of ‘constitutional morality’. Through its framing of ‘constitutional morality’ juxtaposed with and pitted against ‘societal morality’, the judgement sought to bring about a transformation within the realm of ‘the social’. While the term and content of ‘constitutional morality’ have been the subject of intense legal discourse, emanating from Navtej Johar and in jurisprudence thereafter, the ramifications of the term ‘social
Legal Imagination and Social Reform: Navtej Johar Revisited
by Dr. Saumya Uma & Samudyata Sreenath
A central concept in the Navtej Singh Johar judgement of the Supreme Court is that of ‘constitutional morality’. Through its framing of ‘constitutional morality’ juxtaposed with and pitted against ‘societal morality’, the judgement sought to bring about a transformation within the realm of ‘the social’. While the term and content of ‘constitutional morality’ have been the subject of intense legal discourse, emanating from Navtej Johar and in jurisprudence thereafter, the ramifications of the term ‘social
Article
Uncloseting in Hindi Queer Cinema: One Law, Two Gay Male Protagonists
by Pawan Singh
The 2015 film Aligarh and the 2020 film Shubh Mangal Zyada Savdhan represent important cinematic interventions in the legal battle for the decriminalization of homosexuality through the reading down of §377 of the Indian Penal Code, 1860. Through the staging of gay male experiences in small-town India, the films are in dialogue with two landmark judgments on LGBT rights. Aligarh tells the real-life story of an Aligarh Muslim University professor, Siras, who was outed in
Uncloseting in Hindi Queer Cinema: One Law, Two Gay Male Protagonists
by Pawan Singh
The 2015 film Aligarh and the 2020 film Shubh Mangal Zyada Savdhan represent important cinematic interventions in the legal battle for the decriminalization of homosexuality through the reading down of §377 of the Indian Penal Code, 1860. Through the staging of gay male experiences in small-town India, the films are in dialogue with two landmark judgments on LGBT rights. Aligarh tells the real-life story of an Aligarh Muslim University professor, Siras, who was outed in
Article
The End of Criminality? The Synecdochic Symbolism of §377
by Aniruddha Dutta
The 2018 Navtej Singh Johar judgment of the Supreme Court of India that read down §377 of the Indian Penal Code, 1860 has been celebrated as a landmark moment heralding the progression of queer and transgender people from criminality to citizenship. However, this narrative is undermined by continuing forms of criminalisation and violence affecting trans and queer people, especially those from working class and Dalit backgrounds. In this context, this paper builds on an established
The End of Criminality? The Synecdochic Symbolism of §377
by Aniruddha Dutta
The 2018 Navtej Singh Johar judgment of the Supreme Court of India that read down §377 of the Indian Penal Code, 1860 has been celebrated as a landmark moment heralding the progression of queer and transgender people from criminality to citizenship. However, this narrative is undermined by continuing forms of criminalisation and violence affecting trans and queer people, especially those from working class and Dalit backgrounds. In this context, this paper builds on an established
Article
The Despised and Dishonoured: The Non-Human ‘Beast’ and the Non-Conforming ‘Khairati’
by Alok Hisarwala Gupta
Historically, the movements for queer and feminist liberation in India have been, at best, dismissive of and, at worst, antagonistic towards, activism on behalf of animals. This paper documents how a trans-species solidarity is emerging — even if in contested ways — among feminism, queer rights, and animal welfare, around the issue of animal sexual assault. This is articulated through a growing recognition that children, women, queers and animals exist on similar fault lines of gendered violence. This paper examines
The Despised and Dishonoured: The Non-Human ‘Beast’ and the Non-Conforming ‘Khairati’
by Alok Hisarwala Gupta
Historically, the movements for queer and feminist liberation in India have been, at best, dismissive of and, at worst, antagonistic towards, activism on behalf of animals. This paper documents how a trans-species solidarity is emerging — even if in contested ways — among feminism, queer rights, and animal welfare, around the issue of animal sexual assault. This is articulated through a growing recognition that children, women, queers and animals exist on similar fault lines of gendered violence. This paper examines
Article
Re-Cast(e)ing Navtej Singh v. Union of India
by Gee Imaan Semmalar
Taking inspiration from feminist judgment projects from around the world, this article provides an alternative judgment in the case around the decriminalisation of §377 in Navtej Singh v. Union of India, adjudicated by the Supreme Court of India in 2018. It places caste as central to the analysis of the persistence of §377, and its attendant legal and social denouncements of furtive sex especially along the lines of non-normative sexualities and genders
Re-Cast(e)ing Navtej Singh v. Union of India
by Gee Imaan Semmalar
Taking inspiration from feminist judgment projects from around the world, this article provides an alternative judgment in the case around the decriminalisation of §377 in Navtej Singh v. Union of India, adjudicated by the Supreme Court of India in 2018. It places caste as central to the analysis of the persistence of §377, and its attendant legal and social denouncements of furtive sex especially along the lines of non-normative sexualities and genders
Article
Navtej: A Queer Rights Jurisprudential Revolution?
by Gayathree Devi KT & Sameer Rashid Bhat
The Indian Supreme Court’s decision in Navtej was, no doubt, a significant step in the direction of recognising queer rights in India, particularly in the private space. However, was it the queer rights jurisprudential revolution it is made out to be? As the judgment turns two, this article answers this question by analysing how other courts – whether domestic or foreign – have reacted to Navtej in their queer rights jurisprudence. On the domestic front,
Navtej: A Queer Rights Jurisprudential Revolution?
by Gayathree Devi KT & Sameer Rashid Bhat
The Indian Supreme Court’s decision in Navtej was, no doubt, a significant step in the direction of recognising queer rights in India, particularly in the private space. However, was it the queer rights jurisprudential revolution it is made out to be? As the judgment turns two, this article answers this question by analysing how other courts – whether domestic or foreign – have reacted to Navtej in their queer rights jurisprudence. On the domestic front,
Article
Confinement at the Margins: Preliminary Notes on Transgender Prisoners in India
by Deekshitha Ganesan & Saumya Dadoo
Transgender persons in India have historically been subject to violence and erasure through laws that have criminalised their lives and livelihoods. Despite recent legal and judicial developments that have purported to correct these historical wrongs, transgender persons’ relationship with the penal state continues to be fraught, evident in laws and practices that either target them, or address them as a distinct category, or neglect them entirely. One such site of legal and policy exclusion is
Confinement at the Margins: Preliminary Notes on Transgender Prisoners in India
by Deekshitha Ganesan & Saumya Dadoo
Transgender persons in India have historically been subject to violence and erasure through laws that have criminalised their lives and livelihoods. Despite recent legal and judicial developments that have purported to correct these historical wrongs, transgender persons’ relationship with the penal state continues to be fraught, evident in laws and practices that either target them, or address them as a distinct category, or neglect them entirely. One such site of legal and policy exclusion is
Article
Interrogating the Freedoms of Queer Liberation in India
by Jason Keith Fernandes
The reception of the Supreme Court’s reading down of Section 377 should be more circumspect, since there is much in the decision that offers reasons for concern. Rather than making a rupture with the contemporary majoritarian political climate, the decision is, in fact, a continuation of a longer nationalist project aimed at consolidating the ideal citizen subject of the Indian nation state.
Interrogating the Freedoms of Queer Liberation in India
by Jason Keith Fernandes
The reception of the Supreme Court’s reading down of Section 377 should be more circumspect, since there is much in the decision that offers reasons for concern. Rather than making a rupture with the contemporary majoritarian political climate, the decision is, in fact, a continuation of a longer nationalist project aimed at consolidating the ideal citizen subject of the Indian nation state.
Article
Trans Equality in India: Affirmation of the Right to Self-Determination of Gender
by Jayna Kothari
In National Legal Services Authority v. Union of India (‘NALSA’) and Navtej Johar v. Union of India (‘Navtej’), the Supreme Court made grand declarations for equal rights for transgender and intersex persons and broadened sex discrimination to prohibit discrimination on the basis of gender identity and sexual orientation. The Supreme Court, most importantly, recognised that gender identity forms the core of one’s personal self and is based on self-determination, not on surgical or medical procedure.
Trans Equality in India: Affirmation of the Right to Self-Determination of Gender
by Jayna Kothari
In National Legal Services Authority v. Union of India (‘NALSA’) and Navtej Johar v. Union of India (‘Navtej’), the Supreme Court made grand declarations for equal rights for transgender and intersex persons and broadened sex discrimination to prohibit discrimination on the basis of gender identity and sexual orientation. The Supreme Court, most importantly, recognised that gender identity forms the core of one’s personal self and is based on self-determination, not on surgical or medical procedure.
Article
The L World: Legal Discourses on Queer Women
by Surabhi Shukla
This article looks at the issues faced by queer women in India through a legal lens. It identifies four issues for discussion– privacy, live-in relationships, allegations of lesbianism in matrimonial disputes, and the pressure to enter heterosexual marriages. It engages in-depth with the first two while laying down the groundwork for the last two. This article asks whether the law in its current form, is aware of, and equipped to, address these issues. First, it
The L World: Legal Discourses on Queer Women
by Surabhi Shukla
This article looks at the issues faced by queer women in India through a legal lens. It identifies four issues for discussion– privacy, live-in relationships, allegations of lesbianism in matrimonial disputes, and the pressure to enter heterosexual marriages. It engages in-depth with the first two while laying down the groundwork for the last two. This article asks whether the law in its current form, is aware of, and equipped to, address these issues. First, it
Volume 13 Issue 2
Article
Preventive Detention, Habeas Corpus and Delay at the Apex Court: An Empirical Study
by Shrutanjaya Bhardwaj
Based on a study of all reported habeas corpus judgments of the Supreme Court in the twenty-year period from 2000 to 2019, this article presents an empirical analysis of the delay in adjudication of habeas corpus petitions in preventive detention cases. Three indicators are used for the study: first, the total time spent between the date of detention order and the date of final disposal by the Supreme Court; second, the time spent at the
Preventive Detention, Habeas Corpus and Delay at the Apex Court: An Empirical Study
by Shrutanjaya Bhardwaj
Based on a study of all reported habeas corpus judgments of the Supreme Court in the twenty-year period from 2000 to 2019, this article presents an empirical analysis of the delay in adjudication of habeas corpus petitions in preventive detention cases. Three indicators are used for the study: first, the total time spent between the date of detention order and the date of final disposal by the Supreme Court; second, the time spent at the
Note
Decoding the Tribunal's Power to Grant Waiver under §244 of The Companies Act, 2013
by Ananya Verma, Kamakshi Puri, & Mehr Sidhu
Corporate democracy, like its political counterpart, espouses the will of the majority as a key for the decision-making of a company. At the same time, corporate democracy ensures protections for minority members of a company from unfair prejudice caused to their interests. The need to balance the rights of majority and minority members in order to secure collective interests in the company is recognised under §241 of the Companies Act, 2013. §241 empowers the minority
Decoding the Tribunal's Power to Grant Waiver under §244 of The Companies Act, 2013
by Ananya Verma, Kamakshi Puri, & Mehr Sidhu
Corporate democracy, like its political counterpart, espouses the will of the majority as a key for the decision-making of a company. At the same time, corporate democracy ensures protections for minority members of a company from unfair prejudice caused to their interests. The need to balance the rights of majority and minority members in order to secure collective interests in the company is recognised under §241 of the Companies Act, 2013. §241 empowers the minority
Article
Unjust Citizenship: The Law That Isn't
by Dipika Jain & Kavya Kartik
This article argues that the State enacts legislative violence upon transgender persons by establishing a regulatory framework that is paternalistic, cis-heteronormative and detrimental to transgender persons’ basic identity. The legislative violence inflicted on transgender persons is evident from the Transgender Persons (Protection of Rights) Act, 2019 and Draft Rules, which violate the fundamental rights of transgender persons. Such violence also medicalises transgender identities under the guise of biological determinism. In this article, we critically explore
Unjust Citizenship: The Law That Isn't
by Dipika Jain & Kavya Kartik
This article argues that the State enacts legislative violence upon transgender persons by establishing a regulatory framework that is paternalistic, cis-heteronormative and detrimental to transgender persons’ basic identity. The legislative violence inflicted on transgender persons is evident from the Transgender Persons (Protection of Rights) Act, 2019 and Draft Rules, which violate the fundamental rights of transgender persons. Such violence also medicalises transgender identities under the guise of biological determinism. In this article, we critically explore
Editorial Note
Editorial Note: A Court Beyond the Jurisdiction of Truth: Reflections in Light of the Prashant Bhushan Contempt Case
by Aashesh Singh & Isana Laisram
The authors examine the role of the truth defence in criminal contempt and address the reluctance of the judiciary in engaging with this defence, as evinced in the Prashant Bhushan contempt case.
Editorial Note: A Court Beyond the Jurisdiction of Truth: Reflections in Light of the Prashant Bhushan Contempt Case
by Aashesh Singh & Isana Laisram
The authors examine the role of the truth defence in criminal contempt and address the reluctance of the judiciary in engaging with this defence, as evinced in the Prashant Bhushan contempt case.
Note
In Memoriam: Late Prof. (Dr.) Shamnad Basheer
by Prof. (Dr.) NK Chakrabarti, Deepak Raju & Rishabh Mohnot
NUJS Faculty and Students remember late Intellectual Property Law professor’s contribution as a teacher, scholar, legal professional and activist.
In Memoriam: Late Prof. (Dr.) Shamnad Basheer
by Prof. (Dr.) NK Chakrabarti, Deepak Raju & Rishabh Mohnot
NUJS Faculty and Students remember late Intellectual Property Law professor’s contribution as a teacher, scholar, legal professional and activist.
Article
Reconceptualising Parenthood: A Model Regulatory Framework for Assisted Reproduction in India
by Aastha Malhotra & Arshia Roy
The idea of the modern-day family is constantly evolving, as is the conception of reproductive rights. While the right to have a family or the right to family life remain largely uncodified in India, these rights find a strong basis in other pre-existing rights. Through an analysis of three assisted reproductive techniques, namely, surrogacy, in-vitro fertilisation, and genetic manipulation, we study the interplay of technology, health, gender, commerce and sexuality and in turn, its implications
Reconceptualising Parenthood: A Model Regulatory Framework for Assisted Reproduction in India
by Aastha Malhotra & Arshia Roy
The idea of the modern-day family is constantly evolving, as is the conception of reproductive rights. While the right to have a family or the right to family life remain largely uncodified in India, these rights find a strong basis in other pre-existing rights. Through an analysis of three assisted reproductive techniques, namely, surrogacy, in-vitro fertilisation, and genetic manipulation, we study the interplay of technology, health, gender, commerce and sexuality and in turn, its implications
Article
Not a Numbers Game: A Constitutional Argument to Increase Coverage under The National Food Security Act, 2013
by Gautam Narayan & Asmita Singh
Is it constitutionally permissible to further constrict the already narrow right to access subsidised food grains by calculating the eligible beneficiaries on the basis of outdated population data? Although, the answer to this query must necessarily be in the negative; unfortunately, this is exactly what has been done through §9 of the NFSA which imposes an artificial restriction, unsupported by any ground level data. Legislatively, over 100 million people will be deprived of this most
Not a Numbers Game: A Constitutional Argument to Increase Coverage under The National Food Security Act, 2013
by Gautam Narayan & Asmita Singh
Is it constitutionally permissible to further constrict the already narrow right to access subsidised food grains by calculating the eligible beneficiaries on the basis of outdated population data? Although, the answer to this query must necessarily be in the negative; unfortunately, this is exactly what has been done through §9 of the NFSA which imposes an artificial restriction, unsupported by any ground level data. Legislatively, over 100 million people will be deprived of this most
Volume 13 Issue 1
Editorial Note
Editorial Note
by Chandrika Bothra & Ravi Shankar
Volume 13(1) occupies a special place in the lineage of the NUJS Law Review. All the articles featuring in this issue have been published amidst the COVID-19 pandemic. This required us to fulfill our editorial responsibilities in the qualified comfort of our homes, under stringent lockdowns stipulated by the Government. For us, the experience of working for the journal remotely has given us an insight as to how the NUJS Law Review, as an institution,
Editorial Note
by Chandrika Bothra & Ravi Shankar
Volume 13(1) occupies a special place in the lineage of the NUJS Law Review. All the articles featuring in this issue have been published amidst the COVID-19 pandemic. This required us to fulfill our editorial responsibilities in the qualified comfort of our homes, under stringent lockdowns stipulated by the Government. For us, the experience of working for the journal remotely has given us an insight as to how the NUJS Law Review, as an institution,
Article
Resolving Financial Firms in India: The Way Forward
by Pratik Datta, Varun Marwah & Ulka Bhattacharyya
The ongoing financial distress among some banks, Non-Banking Financial Companies (‘NBFCs’) and Housing Finance Companies (‘HFCs’) has once again drawn attention to the fragmented legal framework on resolution of Financial Service Providers (‘FSPs’) in India. The government was quick to extend the Insolvency and Bankruptcy Code, 2016 to the relatively bigger NBFCs and HFCs. This has renewed interest about the fate of the Financial Resolution and Deposit Insurance Bill, 2017 as well as the future
Resolving Financial Firms in India: The Way Forward
by Pratik Datta, Varun Marwah & Ulka Bhattacharyya
The ongoing financial distress among some banks, Non-Banking Financial Companies (‘NBFCs’) and Housing Finance Companies (‘HFCs’) has once again drawn attention to the fragmented legal framework on resolution of Financial Service Providers (‘FSPs’) in India. The government was quick to extend the Insolvency and Bankruptcy Code, 2016 to the relatively bigger NBFCs and HFCs. This has renewed interest about the fate of the Financial Resolution and Deposit Insurance Bill, 2017 as well as the future
Book Review
Shuvro Prosun Sarker’s Refugee Law in India: The Road from Ambiguity to Protection
by Atul Alexander & Ridima Sinha
The book ‘Refugee Law in India, The Road from Ambiguity to Protection’, written by Shuvro Prosun Sarker, published in the year 2017 by the Springer Nature in their Palgrave Macmillan imprint, richly deserves a review. This is even more so in light of the recently amended legislation on citizenship which will impact the lives of refugees living in India. The Citizenship Act, 1955 (‘Act’) was amended by the Parliament in December 2019. The Citizenship (Amendment)
Shuvro Prosun Sarker’s Refugee Law in India: The Road from Ambiguity to Protection
by Atul Alexander & Ridima Sinha
The book ‘Refugee Law in India, The Road from Ambiguity to Protection’, written by Shuvro Prosun Sarker, published in the year 2017 by the Springer Nature in their Palgrave Macmillan imprint, richly deserves a review. This is even more so in light of the recently amended legislation on citizenship which will impact the lives of refugees living in India. The Citizenship Act, 1955 (‘Act’) was amended by the Parliament in December 2019. The Citizenship (Amendment)
Article
Analysing the Overriding Effect of the Insolvency and Bankruptcy Code, 2016
by Sara Jain
The Insolvency and Bankruptcy Code, 2016 (‘IBC, 2016’) brought in a paradigm shift from the ‘debtor-in-possession’ regime to a ‘creditor-in-control’ regime. In order to accomplish this transformation and ensure the smooth functioning of the IBC, 2016, the legislature provided for a non-obstante clause under §238 of the IBC, 2016. The non-obstante clause has an overriding effect on any law for the time being in force which is inconsistent with the provisions of the IBC, 2016.
Analysing the Overriding Effect of the Insolvency and Bankruptcy Code, 2016
by Sara Jain
The Insolvency and Bankruptcy Code, 2016 (‘IBC, 2016’) brought in a paradigm shift from the ‘debtor-in-possession’ regime to a ‘creditor-in-control’ regime. In order to accomplish this transformation and ensure the smooth functioning of the IBC, 2016, the legislature provided for a non-obstante clause under §238 of the IBC, 2016. The non-obstante clause has an overriding effect on any law for the time being in force which is inconsistent with the provisions of the IBC, 2016.
Note
An Examination of the Inapplicability of Limitation to Claims under the Micro, Small and Medium Enterprises Development Act, 2006
by Shinoj Koshy & Purvi Khanna
The Micro, Small and Medium Enterprises Development Act, 2006 (‘MSMED Act’) aims to protect and promote interests of micro, small and medium enterprises (‘MSMEs’) by shortening their working capital cycle. The MSMED Act, inter alia, seeks to incentivise timely payments to MSMEs by mandating a relatively high interest, at three times the bank rate notified by the Reserve Bank of India (‘RBI’), to be paid by a buyer for the period of delay, over the
An Examination of the Inapplicability of Limitation to Claims under the Micro, Small and Medium Enterprises Development Act, 2006
by Shinoj Koshy & Purvi Khanna
The Micro, Small and Medium Enterprises Development Act, 2006 (‘MSMED Act’) aims to protect and promote interests of micro, small and medium enterprises (‘MSMEs’) by shortening their working capital cycle. The MSMED Act, inter alia, seeks to incentivise timely payments to MSMEs by mandating a relatively high interest, at three times the bank rate notified by the Reserve Bank of India (‘RBI’), to be paid by a buyer for the period of delay, over the
Article
Hilli Multipurpose II: Supreme Court ends Humpty Dumpty Jurisprudence on the Nature of §13(2)(A) of the Consumer Protection Act
by Shivam Singh & Harpreet Singh Gupta
The Constitution Bench of the Supreme Court in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Ltd. defined the scope of §13(2)(a) of the Consumer Protection Act, 1986. It held that the provision which lays down the timeline for filing of a reply by the opposite party is mandatory in nature. Prior to this ruling, the conflicting decisions in this regard led to immense delay in adjudication of consumer disputes at the district
Hilli Multipurpose II: Supreme Court ends Humpty Dumpty Jurisprudence on the Nature of §13(2)(A) of the Consumer Protection Act
by Shivam Singh & Harpreet Singh Gupta
The Constitution Bench of the Supreme Court in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Ltd. defined the scope of §13(2)(a) of the Consumer Protection Act, 1986. It held that the provision which lays down the timeline for filing of a reply by the opposite party is mandatory in nature. Prior to this ruling, the conflicting decisions in this regard led to immense delay in adjudication of consumer disputes at the district
Article
A Commentary on the Kulbhushan Jadhav Case – Explaining the Rules of the Vienna Convention on Consular Relations
by Muskan Arora
The international law doctrine of consular law was articulated from customary international law by international jurists to afford a lawful means by which states could respond to their obligations and violations pertaining to consular access. This paper critically analyses the theoretical value of law of consular relations as embodied in the Vienna Convention on Consular Relations (‘VCCR’) specifically in light of the recent case before the International Court of Justice (‘ICJ’) involving the detention incommunicado
A Commentary on the Kulbhushan Jadhav Case – Explaining the Rules of the Vienna Convention on Consular Relations
by Muskan Arora
The international law doctrine of consular law was articulated from customary international law by international jurists to afford a lawful means by which states could respond to their obligations and violations pertaining to consular access. This paper critically analyses the theoretical value of law of consular relations as embodied in the Vienna Convention on Consular Relations (‘VCCR’) specifically in light of the recent case before the International Court of Justice (‘ICJ’) involving the detention incommunicado
Volume 12 Issue 3-4
Editorial Note
Editorial Note: Navtej Singh Johar Special Issue
by Devashri Mishra & Aashesh Singh
In Navtej Singh Johar v. Union of India the Court read down Section 377, which criminalises “carnal intercourse against the order of nature with any man, woman or animal”, or commonly, unnatural intercourse. It is perhaps one of the most socially and constitutionally historic verdicts of our times. However, while acknowledging the verdict's significance, it is crucial to also acknowledge the several questions thrown up by commentators in the decision’s anticipation and the aftermath. As an
Editorial Note: Navtej Singh Johar Special Issue
by Devashri Mishra & Aashesh Singh
In Navtej Singh Johar v. Union of India the Court read down Section 377, which criminalises “carnal intercourse against the order of nature with any man, woman or animal”, or commonly, unnatural intercourse. It is perhaps one of the most socially and constitutionally historic verdicts of our times. However, while acknowledging the verdict's significance, it is crucial to also acknowledge the several questions thrown up by commentators in the decision’s anticipation and the aftermath. As an
Article
Identity as Data: A Critique of the Navtej Singh Johar Case and the Judicial Impetus towards Databasing of Identities
by Ramya Chandrasekhar
The Supreme Court in 2018 issued a landmark judgment, wherein section 377 of the Indian Penal Code, which criminalized unnatural sex against the order of nature, was read down to the extent it criminalised sexual actions between consenting adults. The judgment marked a victory for queer politics and rights of queer persons in India, especially given the long and continued struggle leading up to it. However, more than a year since the judgement, a critical
Identity as Data: A Critique of the Navtej Singh Johar Case and the Judicial Impetus towards Databasing of Identities
by Ramya Chandrasekhar
The Supreme Court in 2018 issued a landmark judgment, wherein section 377 of the Indian Penal Code, which criminalized unnatural sex against the order of nature, was read down to the extent it criminalised sexual actions between consenting adults. The judgment marked a victory for queer politics and rights of queer persons in India, especially given the long and continued struggle leading up to it. However, more than a year since the judgement, a critical
Article
Beyond Decriminalisation: Understanding Queer Citizenship through Access to Public Spaces in India
by Ajita Banerjie
Public spaces are often constructed around particular notions of “appropriate” codes of conduct which exclude those who do not conform to heteronormative ideals. In India, queer persons, especially those belonging to socio-economically disadvantaged backgrounds, experience hostility in public spaces and often start avoiding those spaces altogether. Further, there are certain laws that interact with other forms of societal censure to produce a climate of oppression where safe areas, in contrast, are marked off by lack
Beyond Decriminalisation: Understanding Queer Citizenship through Access to Public Spaces in India
by Ajita Banerjie
Public spaces are often constructed around particular notions of “appropriate” codes of conduct which exclude those who do not conform to heteronormative ideals. In India, queer persons, especially those belonging to socio-economically disadvantaged backgrounds, experience hostility in public spaces and often start avoiding those spaces altogether. Further, there are certain laws that interact with other forms of societal censure to produce a climate of oppression where safe areas, in contrast, are marked off by lack
Article
Naz to Navtej: Navigating Notions of Equality
by Gauri Pillai
This paper explores the extent to which Navtej advanced the equality and non-discrimination jurisprudence in India. To do so, it places Navtej besides Naz and traces the parallels and divergences between the two decisions in their interpretation of the equality and non-discrimination provisions. The paper looks at the following themes in Navtej: higher standard of review; indirect discrimination; constitutional morality; intelligibility of differentia; and, transformative constitutionalism. It is argued that while Navtej did not entirely
Naz to Navtej: Navigating Notions of Equality
by Gauri Pillai
This paper explores the extent to which Navtej advanced the equality and non-discrimination jurisprudence in India. To do so, it places Navtej besides Naz and traces the parallels and divergences between the two decisions in their interpretation of the equality and non-discrimination provisions. The paper looks at the following themes in Navtej: higher standard of review; indirect discrimination; constitutional morality; intelligibility of differentia; and, transformative constitutionalism. It is argued that while Navtej did not entirely
Article
How does the Centre appear from the Margins? Queer Politics after Section 377
by Radhika Radhakrishnan
A struggle against any form of margins is a feminist struggle, and it is incontrovertible that reading down §377 of the Indian Penal Code, 1860 (‘IPC’) was an important feminist struggle. However, I argue here that §377 must be located as just one among various other struggles towards queer liberation in the history of India, and must be viewed as harmful without such a location. In this article, I lay out the hierarchies and exclusions
How does the Centre appear from the Margins? Queer Politics after Section 377
by Radhika Radhakrishnan
A struggle against any form of margins is a feminist struggle, and it is incontrovertible that reading down §377 of the Indian Penal Code, 1860 (‘IPC’) was an important feminist struggle. However, I argue here that §377 must be located as just one among various other struggles towards queer liberation in the history of India, and must be viewed as harmful without such a location. In this article, I lay out the hierarchies and exclusions
Article
The Momentum of History – Realising Marriage Equality in India
by Satchit Bhogle
The Supreme Court in recent years has evolved a vocabulary of privacy, autonomy, and constitutional morality. This has culminated in the recognition of the right to privacy and the right to choose a life partner, among several. However, in Navtej Singh Johar v. Union of India, which confirmed the decriminalisation of same-sex relations, the Supreme Court outlined the contours of the right to intimate relations in a broad manner. The article argues that the next
The Momentum of History – Realising Marriage Equality in India
by Satchit Bhogle
The Supreme Court in recent years has evolved a vocabulary of privacy, autonomy, and constitutional morality. This has culminated in the recognition of the right to privacy and the right to choose a life partner, among several. However, in Navtej Singh Johar v. Union of India, which confirmed the decriminalisation of same-sex relations, the Supreme Court outlined the contours of the right to intimate relations in a broad manner. The article argues that the next
Article
Navtej Johar v. Union of India: Love in Legal Reasoning
by Shraddha Chaudhary
The Supreme Court of India in Navtej Singh Johar v. Union of India (2018), read down §377 of the Indian Penal Code, 1860. I argue that in reaching this verdict, the Court furthered the use of ‘love’ in legal reasoning. It did so, first, by reaffirming its position that an adult has the autonomy to choose whom to have sexual relations with. However, this individual autonomy-centric view, I argue, cannot become the foundation for the
Navtej Johar v. Union of India: Love in Legal Reasoning
by Shraddha Chaudhary
The Supreme Court of India in Navtej Singh Johar v. Union of India (2018), read down §377 of the Indian Penal Code, 1860. I argue that in reaching this verdict, the Court furthered the use of ‘love’ in legal reasoning. It did so, first, by reaffirming its position that an adult has the autonomy to choose whom to have sexual relations with. However, this individual autonomy-centric view, I argue, cannot become the foundation for the
Article
Lesbian, Gay, Bisexual and Transgender Human Rights in India: From Naz Foundation to Navtej Singh Johar and Beyond
by Robert Wintemute
Prof. Robert Wintemute, first authored an article for the NUJS Law Review, back in 2011. The article titled ‘Same-sex Love and Indian Penal Code §377: An Important Human Rights Issue for India’ was published in Volume 4, No. 1 (p. 31-65), focusing on the human rights issue concerning the criminalisation of same-sex marriage under §377, was written in the aftermath of the Delhi High Court reading down the provision and advocated the affirmation by the
Lesbian, Gay, Bisexual and Transgender Human Rights in India: From Naz Foundation to Navtej Singh Johar and Beyond
by Robert Wintemute
Prof. Robert Wintemute, first authored an article for the NUJS Law Review, back in 2011. The article titled ‘Same-sex Love and Indian Penal Code §377: An Important Human Rights Issue for India’ was published in Volume 4, No. 1 (p. 31-65), focusing on the human rights issue concerning the criminalisation of same-sex marriage under §377, was written in the aftermath of the Delhi High Court reading down the provision and advocated the affirmation by the
Volume 12 Issue 2
Editorial Note
Editorial Note
by NUJS Law Review
NUJS Law Review, as a journal exclusively edited and managed by students, continues to be one of the leading law journals of the country. We are one of the only leading law journals in the country that publishes regularly on a quarterly basis. Further, since the inception of the SCC monthly rankings of Indian law journals, we have occupied the top spot in two monthly rankings and the second spot in two other monthly rankings
Editorial Note
by NUJS Law Review
NUJS Law Review, as a journal exclusively edited and managed by students, continues to be one of the leading law journals of the country. We are one of the only leading law journals in the country that publishes regularly on a quarterly basis. Further, since the inception of the SCC monthly rankings of Indian law journals, we have occupied the top spot in two monthly rankings and the second spot in two other monthly rankings
Article
Role of The Judiciary in Indian Tax Policy – An Evaluation of the Efficiency of Judicial Outcomes
by Roopashi Khatri
The Indian tax system suffers from an excessive incidence and pendency of tax disputes before civil courts. A certain degree of disputes is unavoidable since the tax code and policy of any jurisdiction (being the outcome of various competing factors) inevitably contains a certain degree of ambiguity. However, a significant amount of unnecessary tax litigation is caused by the development of inconsistent tax jurisprudence. The author details the permissible scope of litigation expected in a
Role of The Judiciary in Indian Tax Policy – An Evaluation of the Efficiency of Judicial Outcomes
by Roopashi Khatri
The Indian tax system suffers from an excessive incidence and pendency of tax disputes before civil courts. A certain degree of disputes is unavoidable since the tax code and policy of any jurisdiction (being the outcome of various competing factors) inevitably contains a certain degree of ambiguity. However, a significant amount of unnecessary tax litigation is caused by the development of inconsistent tax jurisprudence. The author details the permissible scope of litigation expected in a
Article
Solving the Bad Loan Crisis in the Unconventional Way: Is Reverse Piercing the Corporate Veil a Solution?
by Naman Kamdar & Akash Srinivasan
India being a country with a large number of closely held companies, the chances of fund diversion, siphoning, and financial mismanagement are high, since the control of companies largely lies in the hands of a few individuals. The bad loan crisis, especially, has plagued the Indian economy, with the willful defaulters causing a wreckage of the Indian banking sector. Several steps have been taken to address this mounting concern, including the enactment of the Insolvency
Solving the Bad Loan Crisis in the Unconventional Way: Is Reverse Piercing the Corporate Veil a Solution?
by Naman Kamdar & Akash Srinivasan
India being a country with a large number of closely held companies, the chances of fund diversion, siphoning, and financial mismanagement are high, since the control of companies largely lies in the hands of a few individuals. The bad loan crisis, especially, has plagued the Indian economy, with the willful defaulters causing a wreckage of the Indian banking sector. Several steps have been taken to address this mounting concern, including the enactment of the Insolvency
Article
Extraterritorial Algorithmic Surveillance and the Incapacitation of International Human Rights Law
by Arindrajit Basu
Our networked data trails dictate, define and modulate societies in hitherto inconceivable ways. The ability to access and manipulate that data is a product of stark power asymmetry in geo-politics, leading to a dynamic that privileges the interests of a few over the right to privacy and dignity of the many. I argue that the persistent de facto violation of human rights norms through extraterritorial surveillance conducted by western intelligence agencies, compounded by the failure
Extraterritorial Algorithmic Surveillance and the Incapacitation of International Human Rights Law
by Arindrajit Basu
Our networked data trails dictate, define and modulate societies in hitherto inconceivable ways. The ability to access and manipulate that data is a product of stark power asymmetry in geo-politics, leading to a dynamic that privileges the interests of a few over the right to privacy and dignity of the many. I argue that the persistent de facto violation of human rights norms through extraterritorial surveillance conducted by western intelligence agencies, compounded by the failure
Article
Pre-Nuptial Agreements in India: An Analysis of Law and Society
by Amrita Ghosh & Pratyusha Kar
Prenuptial agreements are now being widely used across the world as effective instruments of delineating spousal rights in the course of subsistence of marriage as well as in the event of termination of marital relations. Yet the Indian State has demonstrated reluctance in attributing legal status to such instruments. The Indian position on prenuptial agreements can be described as uniquely ambiguous. On one hand, the nikahnama, a prenuptial agreement is recognised as an essential feature
Pre-Nuptial Agreements in India: An Analysis of Law and Society
by Amrita Ghosh & Pratyusha Kar
Prenuptial agreements are now being widely used across the world as effective instruments of delineating spousal rights in the course of subsistence of marriage as well as in the event of termination of marital relations. Yet the Indian State has demonstrated reluctance in attributing legal status to such instruments. The Indian position on prenuptial agreements can be described as uniquely ambiguous. On one hand, the nikahnama, a prenuptial agreement is recognised as an essential feature
Article
Privacy and its Protection in Informative Technological Compass in India
by Sougata Talukdar
Privacy as a concept is going through a metamorphosis in this era of technology. The discussion relating to privacy generally involves what it entails and how it is to be valued. Discourse on privacy as a right involves the extent to which it is, or should be legally protected. However, nowadays, it is generally accepted that everybody has a need for privacy, although the way it is appreciated differs from culture to culture, and from
Privacy and its Protection in Informative Technological Compass in India
by Sougata Talukdar
Privacy as a concept is going through a metamorphosis in this era of technology. The discussion relating to privacy generally involves what it entails and how it is to be valued. Discourse on privacy as a right involves the extent to which it is, or should be legally protected. However, nowadays, it is generally accepted that everybody has a need for privacy, although the way it is appreciated differs from culture to culture, and from
Volume 12 Issue 1
Editorial Note
Editorial Note
by NUJS Law Review
The publication of the 12th Volume of the NUJS Law Review represents the dedication and hard work of the different generations of students, professors, and practitioners. From this year onwards, the Editorial Board and other members of the journal shall work under the leadership of the new Editor-in-Chief – Professor N. K. Chakrabarti, the new vice chancellor of the West Bengal National University of Juridical Sciences. Professor Chakrabarti has published seven books and authored more
Editorial Note
by NUJS Law Review
The publication of the 12th Volume of the NUJS Law Review represents the dedication and hard work of the different generations of students, professors, and practitioners. From this year onwards, the Editorial Board and other members of the journal shall work under the leadership of the new Editor-in-Chief – Professor N. K. Chakrabarti, the new vice chancellor of the West Bengal National University of Juridical Sciences. Professor Chakrabarti has published seven books and authored more
Article
Determination of Environmental Compensation: The Art of Living Case
by Raghuveer Nath & Dr. Armin Rosencranz
In nearly a decade of its existence, the National Green Tribunal (‘NGT’ or ‘Tribunal’) has positively changed environmental adjudication in India. The push for its creation came from the judiciary rather than the legislature, as the former is not adequately equipped to tackle complex environmental issues involving a high degree of scientific uncertainty. While the NGT – having technical expertise – may be better equipped to handle complex environmental matters, it lacks an effective framework
Determination of Environmental Compensation: The Art of Living Case
by Raghuveer Nath & Dr. Armin Rosencranz
In nearly a decade of its existence, the National Green Tribunal (‘NGT’ or ‘Tribunal’) has positively changed environmental adjudication in India. The push for its creation came from the judiciary rather than the legislature, as the former is not adequately equipped to tackle complex environmental issues involving a high degree of scientific uncertainty. While the NGT – having technical expertise – may be better equipped to handle complex environmental matters, it lacks an effective framework
Article
Beyond the Prison Bars: Contemplating Community Sentencing in India
by Mitali Agarwal
The deplorable state of the criminal justice administration system in India has been highlighted time and again with several possible measures being suggested to remedy the same. However, even within these discussions, the possibility of the introduction of community sentence as a restorative justice reform has not been given much consideration. At the same time, various jurisdictions have successfully tested community service as a form of alternative sentencing. Notably, community service not only reduces the
Beyond the Prison Bars: Contemplating Community Sentencing in India
by Mitali Agarwal
The deplorable state of the criminal justice administration system in India has been highlighted time and again with several possible measures being suggested to remedy the same. However, even within these discussions, the possibility of the introduction of community sentence as a restorative justice reform has not been given much consideration. At the same time, various jurisdictions have successfully tested community service as a form of alternative sentencing. Notably, community service not only reduces the
Article
Time to Rethink Criminalisation of Abortion? Towards a Gender Justice Approach
by Dipika Jain
Safe abortion ought to be considered a non-criminal healthcare procedure, accessible to everyone and decided upon between a patient and their physician. The current legal framework jeopardises the complete wellbeing of women and girls, leaving them confused, scared and unable to attain medically safe and affordable health services. In this paper, I argue that there is an urgent need for decriminalising abortions in order to allow women to have full power over the decisions regarding
Time to Rethink Criminalisation of Abortion? Towards a Gender Justice Approach
by Dipika Jain
Safe abortion ought to be considered a non-criminal healthcare procedure, accessible to everyone and decided upon between a patient and their physician. The current legal framework jeopardises the complete wellbeing of women and girls, leaving them confused, scared and unable to attain medically safe and affordable health services. In this paper, I argue that there is an urgent need for decriminalising abortions in order to allow women to have full power over the decisions regarding
Article
Children No More? A Feminist Critique of the Juvenile Justice Transfer System in India
by Megha Mehta
The ‘transfer system’ envisioned under the provisions of the Juvenile Justice Act, 2015 is purportedly meant to address the commission of heinous offences, particularly sexual assault by adolescent boys. It is worth noting that the provisions of the Juvenile Justice Act, 2015 and criticisms thereof are majorly based on the principles of the best interest of the ‘child’ and ‘society’. This paper undertakes a different route, providing a feminist critique of the transfer system with
Children No More? A Feminist Critique of the Juvenile Justice Transfer System in India
by Megha Mehta
The ‘transfer system’ envisioned under the provisions of the Juvenile Justice Act, 2015 is purportedly meant to address the commission of heinous offences, particularly sexual assault by adolescent boys. It is worth noting that the provisions of the Juvenile Justice Act, 2015 and criticisms thereof are majorly based on the principles of the best interest of the ‘child’ and ‘society’. This paper undertakes a different route, providing a feminist critique of the transfer system with
Article
Legislating for Domestic 'Care' Workers in India – An Alternative Understanding
by Mihika Poddar & Alex Koshy
Neo-liberal agendas that dictate policy and lawmakers are fundamentally at odds with exploitative market forms that reinforce gender, class and caste hierarchies. Activities that are not purely economic, such as the domestic work industry, are especially incompatible with faith in free market forces, given the popular market-oriented notions that inform the valuation of forms of ‘productive’ work. Any attempt for the State to intervene, has to be more facilitative than regulatory. There needs to be
Legislating for Domestic 'Care' Workers in India – An Alternative Understanding
by Mihika Poddar & Alex Koshy
Neo-liberal agendas that dictate policy and lawmakers are fundamentally at odds with exploitative market forms that reinforce gender, class and caste hierarchies. Activities that are not purely economic, such as the domestic work industry, are especially incompatible with faith in free market forces, given the popular market-oriented notions that inform the valuation of forms of ‘productive’ work. Any attempt for the State to intervene, has to be more facilitative than regulatory. There needs to be
Volume 11 Issue 4
Editorial Note
Editorial Note
by NUJS Law Review
Ever since it was established, the NUJS Law Review has sought to foster a culture of legal scholarship in India. In addition to being one of the few Indian law journals that publish on a quarterly basis, the Review has the distinction of being wholly student-run. Moreover, by publishing articles that deal with a wide variety of topics and accommodate diverse perspectives, the Review has attempted to contribute meaningfully towards academic discourse. In previous years,
Editorial Note
by NUJS Law Review
Ever since it was established, the NUJS Law Review has sought to foster a culture of legal scholarship in India. In addition to being one of the few Indian law journals that publish on a quarterly basis, the Review has the distinction of being wholly student-run. Moreover, by publishing articles that deal with a wide variety of topics and accommodate diverse perspectives, the Review has attempted to contribute meaningfully towards academic discourse. In previous years,
Article
All India Judicial Services: Problems and Prospects
by Shivam Singh & Anushri Kaushik
The Preamble to the Constitution of India promises to all its citizens – social, economic and political justice. However, the judicial machinery configured to administer it has become the biggest hurdle in the dispensation of justice. This paper dwells into the desirability and the feasibility of adopting the idea of All India Judicial Services (‘AIJS’) to revitalise the lowest tier of judiciary, which is hopelessly plagued by humongous backlog and unmanageable vacancy. For a well-rounded
All India Judicial Services: Problems and Prospects
by Shivam Singh & Anushri Kaushik
The Preamble to the Constitution of India promises to all its citizens – social, economic and political justice. However, the judicial machinery configured to administer it has become the biggest hurdle in the dispensation of justice. This paper dwells into the desirability and the feasibility of adopting the idea of All India Judicial Services (‘AIJS’) to revitalise the lowest tier of judiciary, which is hopelessly plagued by humongous backlog and unmanageable vacancy. For a well-rounded
Article
Arbitrability Of Oppression, Mismanagement And Prejudice Claims In India: Need For Re-Think?
by Shreyas Jayasimha & Rohan Tigadi
This article seeks to re-evaluate the Indian legal position relating to arbitrability of oppression, mismanagement and prejudice claims taking into account developments in the United Kingdom and Singapore. In order to accomplish this objective, the article examines the law relating to the subject in these jurisdictions and the principles governing the arbitrability of disputes. Thereafter, the article examines whether the principles rendering oppression, mismanagement and unfair prejudice claims per se arbitrable in the United Kingdom
Arbitrability Of Oppression, Mismanagement And Prejudice Claims In India: Need For Re-Think?
by Shreyas Jayasimha & Rohan Tigadi
This article seeks to re-evaluate the Indian legal position relating to arbitrability of oppression, mismanagement and prejudice claims taking into account developments in the United Kingdom and Singapore. In order to accomplish this objective, the article examines the law relating to the subject in these jurisdictions and the principles governing the arbitrability of disputes. Thereafter, the article examines whether the principles rendering oppression, mismanagement and unfair prejudice claims per se arbitrable in the United Kingdom
Article
Second Bite at the Arbitration Apple: Analysing the Applicability and the Utility of the Internal Appeal Mechanisms in Commercial Arbitrations in India
by Aashesh Singh & Swarna Sengupta
Legal jurisdictions across the world promote the finality of arbitral awards by prohibiting any kind of substantive review of awards. Barring exceptional and enumerated circumstances, parties in arbitration get only one shot at arbitrating their disputes, the idiomatic ‘single bite at the apple’. However, such conceptions of arbitral finality have come under attack, as the tolerance for error in arbitration has decreased with increasing complexity and monetary stakes of the disputes involved. To this end,
Second Bite at the Arbitration Apple: Analysing the Applicability and the Utility of the Internal Appeal Mechanisms in Commercial Arbitrations in India
by Aashesh Singh & Swarna Sengupta
Legal jurisdictions across the world promote the finality of arbitral awards by prohibiting any kind of substantive review of awards. Barring exceptional and enumerated circumstances, parties in arbitration get only one shot at arbitrating their disputes, the idiomatic ‘single bite at the apple’. However, such conceptions of arbitral finality have come under attack, as the tolerance for error in arbitration has decreased with increasing complexity and monetary stakes of the disputes involved. To this end,
Article
Constitutionalism in India in Comparative Perspective
by Dr. Mahendra Pal Singh
Dr. Durga Das Basu was an illustrious son of Bengal and a legal scholar of universal eminence. Not only did he rise to be an Hon’ble judge of the High Court of Calcutta, but he also earned international recognition and fame for his monumental writings, especially, but not exclusively, on the Constitution of India which he started producing soon after the commencement of our Constitution in 1950. For his monumental works he was awarded numerous academic
Constitutionalism in India in Comparative Perspective
by Dr. Mahendra Pal Singh
Dr. Durga Das Basu was an illustrious son of Bengal and a legal scholar of universal eminence. Not only did he rise to be an Hon’ble judge of the High Court of Calcutta, but he also earned international recognition and fame for his monumental writings, especially, but not exclusively, on the Constitution of India which he started producing soon after the commencement of our Constitution in 1950. For his monumental works he was awarded numerous academic
Article
The Legislative Vacuum on the Honorary Position of a Chairman Emeritus: Assessing the Need to Introduce Statutory Regulations
by Priya Garg & Vishal Hablani
In India, where its companies, including the listed ones, face a ‘Type 2’ agency problem of corporate governance, the honorary position of Chairman Emeritus created by a company has far greater potential to influence the company and its governance than hitherto understood. However, unfortunately and interestingly, there is no provision in India under corporate law or other related areas of law to formally regulate this post. This creates a legal lacuna, a loophole which is
The Legislative Vacuum on the Honorary Position of a Chairman Emeritus: Assessing the Need to Introduce Statutory Regulations
by Priya Garg & Vishal Hablani
In India, where its companies, including the listed ones, face a ‘Type 2’ agency problem of corporate governance, the honorary position of Chairman Emeritus created by a company has far greater potential to influence the company and its governance than hitherto understood. However, unfortunately and interestingly, there is no provision in India under corporate law or other related areas of law to formally regulate this post. This creates a legal lacuna, a loophole which is
Book Review
Carter's Breach of Contract
by Dr. Lovely Dasgupta
The Carter’s Breach of Contract is an important addition to the existing literature on the issue. Considering that India draws heavily from Common law in the implementation of its contracts, this book is topical. The book, in its latest version, has taken into account all the developments in the field. The cases relied upon are primarily from England but there are notable references to the developments in Australia, New Zealand and the United States of
Carter's Breach of Contract
by Dr. Lovely Dasgupta
The Carter’s Breach of Contract is an important addition to the existing literature on the issue. Considering that India draws heavily from Common law in the implementation of its contracts, this book is topical. The book, in its latest version, has taken into account all the developments in the field. The cases relied upon are primarily from England but there are notable references to the developments in Australia, New Zealand and the United States of
Volume 11 Issue 3
Article
Editorial Note
by NUJS Law Review
The NUJS Law Review has sought to serve the purpose of endorsing analytical legal scholarship. As the Indian legal system witnesses periodic changes, through myriad statutory progressions and judicial innovations, the need for the simultaneous evolution of legal scholarship becomes pronounced. Noticeably, in recent times, contributions in legal literature have been playing a seminal role in aiding the development of legal positions in the Indian context. Our endeavour has been to constantly put forth original argumentation on
Editorial Note
by NUJS Law Review
The NUJS Law Review has sought to serve the purpose of endorsing analytical legal scholarship. As the Indian legal system witnesses periodic changes, through myriad statutory progressions and judicial innovations, the need for the simultaneous evolution of legal scholarship becomes pronounced. Noticeably, in recent times, contributions in legal literature have been playing a seminal role in aiding the development of legal positions in the Indian context. Our endeavour has been to constantly put forth original argumentation on
Article
Conceptualising Interaction between Cryptography and Law
by Pratik Prakash Dixit
The modern form of cryptography has pervaded nearly all levels of everyday technological use. It is used to secure online commercial transactions, ATM transactions, all modern technological devices like mobile phones and laptops, and instant messaging applications like WhatsApp. Though encryption provides a zone of privacy to users, it also presents the challenge of “going dark” before law enforcement agencies. Recently, there has been a growing debate in countries like the United States and India,
Conceptualising Interaction between Cryptography and Law
by Pratik Prakash Dixit
The modern form of cryptography has pervaded nearly all levels of everyday technological use. It is used to secure online commercial transactions, ATM transactions, all modern technological devices like mobile phones and laptops, and instant messaging applications like WhatsApp. Though encryption provides a zone of privacy to users, it also presents the challenge of “going dark” before law enforcement agencies. Recently, there has been a growing debate in countries like the United States and India,
Article
3D Printing – An Analysis of Liabilities and Potential Benefits Within the Indian Legal Framework
by Shardha Rajam & Adya Jha
The present has begun to be revolutionised with the advent of 3D printing – technologically as well as socially. We are steadily gravitating away from the two-dimensional world of printing to a world of marvel, where 3D printed drugs, food products, hardware and even biological organs are no longer things of mere imagination. However, great innovation is accompanied by equally great regulatory challenges and debate. Printing with biological and non-biological materials results in a spectrum
3D Printing – An Analysis of Liabilities and Potential Benefits Within the Indian Legal Framework
by Shardha Rajam & Adya Jha
The present has begun to be revolutionised with the advent of 3D printing – technologically as well as socially. We are steadily gravitating away from the two-dimensional world of printing to a world of marvel, where 3D printed drugs, food products, hardware and even biological organs are no longer things of mere imagination. However, great innovation is accompanied by equally great regulatory challenges and debate. Printing with biological and non-biological materials results in a spectrum
Article
Life Imprisonment in India: A Short History of a Long Sentence
by Nishant Gokhale
Despite more than half of India’s convict population serving the sentence of life imprisonment, there exists little critical writing or scholarly debate about this punishment. Following the decision by a constitution bench of the Supreme Court in 2015 in Union of India v. V. Sriharan & Ors., and the Criminal Law Amendment Acts of 2013 and 2018, life imprisonment has acquired a new-found texture of harshness which leaves little room for shortening of sentences otherwise
Life Imprisonment in India: A Short History of a Long Sentence
by Nishant Gokhale
Despite more than half of India’s convict population serving the sentence of life imprisonment, there exists little critical writing or scholarly debate about this punishment. Following the decision by a constitution bench of the Supreme Court in 2015 in Union of India v. V. Sriharan & Ors., and the Criminal Law Amendment Acts of 2013 and 2018, life imprisonment has acquired a new-found texture of harshness which leaves little room for shortening of sentences otherwise
Article
Privacy and Citizenship in India: Exploring Constitutional Morality and Data Privacy
by Dr. Nupur Chowdhury
This paper maps the current landscape of the nature and scale of the use of digital media in India through relationship typologies between citizens, intermediaries and the State. These typologies help explain the gamut of functions, both private and public in nature, which the internet has enabled in India. The implications of these typologies are sought to be understood in the broader context of judicial developments vis-à-vis the right to privacy. This study is undertaken
Privacy and Citizenship in India: Exploring Constitutional Morality and Data Privacy
by Dr. Nupur Chowdhury
This paper maps the current landscape of the nature and scale of the use of digital media in India through relationship typologies between citizens, intermediaries and the State. These typologies help explain the gamut of functions, both private and public in nature, which the internet has enabled in India. The implications of these typologies are sought to be understood in the broader context of judicial developments vis-à-vis the right to privacy. This study is undertaken
Article
Is being a ‘Person’ Essential for the Environment to hold Rights? Assessing the Legitimacy of Environmental Personhood and Alternative Approaches
by Akshita Jha & Adrija Ghosh
Over the course of history, personhood has been granted to various entities such as corporations, deities, ships, animals, etc. It has been noted by various scholars that such instances of attribution of personhood have been largely arbitrary. The latest addition to the list of entities that have been granted personhood is a river. The primary justification for this has been the need for effective conservation of these rivers, which are deemed to be of immense
Is being a ‘Person’ Essential for the Environment to hold Rights? Assessing the Legitimacy of Environmental Personhood and Alternative Approaches
by Akshita Jha & Adrija Ghosh
Over the course of history, personhood has been granted to various entities such as corporations, deities, ships, animals, etc. It has been noted by various scholars that such instances of attribution of personhood have been largely arbitrary. The latest addition to the list of entities that have been granted personhood is a river. The primary justification for this has been the need for effective conservation of these rivers, which are deemed to be of immense
Book Review
Rostam J. Neuwirth, Alexandr Svetlicinii & Denis De Castro Halis's The BRICS-Lawyers' Guide to Global Cooperation
by Dr. Sandeepa Bhat
The process of liberalisation and globalisation necessitated intensive cooperation among different countries, regionns and economies. Regional blocks started emerging towards the end of the twentieth century, to facilitate cross-border trade and development. While most of these integrations are based on the geographical proximity, BRICS stands distinct by covering five States – Brazil, Russia, India, China and South Africa, which are located in different continents. BRICS integration is amongst those new economies that are fast growing
Rostam J. Neuwirth, Alexandr Svetlicinii & Denis De Castro Halis's The BRICS-Lawyers' Guide to Global Cooperation
by Dr. Sandeepa Bhat
The process of liberalisation and globalisation necessitated intensive cooperation among different countries, regionns and economies. Regional blocks started emerging towards the end of the twentieth century, to facilitate cross-border trade and development. While most of these integrations are based on the geographical proximity, BRICS stands distinct by covering five States – Brazil, Russia, India, China and South Africa, which are located in different continents. BRICS integration is amongst those new economies that are fast growing
Volume 11 Issue 2
Article
Editorial Note
by NUJS Law Review
The NUJS Law Review was uniquely founded as a wholly student-run journal, with the objective of familiarising students with the opportunities and responsibilities associated with the production of cutting-edge legal scholarship. The ethos of academic excellence instituted by Professor M. P. Singh has continually guided the editorial boards’ ventures into new avenues of creation and dissemination of knowledge. The Review has sought to stride forth in expanding the frontiers of how the law is envisaged
Editorial Note
by NUJS Law Review
The NUJS Law Review was uniquely founded as a wholly student-run journal, with the objective of familiarising students with the opportunities and responsibilities associated with the production of cutting-edge legal scholarship. The ethos of academic excellence instituted by Professor M. P. Singh has continually guided the editorial boards’ ventures into new avenues of creation and dissemination of knowledge. The Review has sought to stride forth in expanding the frontiers of how the law is envisaged
Article
Therapeutic Jurisprudence and Disability Rights: A Case Study on the Trial of Anna Stubblefield
by Prerna & Vaagisha
Therapeutic Jurisprudence studies the manner in which law may be used as a tool for healing. By integrating law and psychological health, this field of legal scholarship seeks to evaluate the ameliorative effect of the legal process on the well-being of the participants. The object of its study is to determine how legal rules and procedures can and ought to be re-shaped to enhance their therapeutic potential, without having to compromise the due process of
Therapeutic Jurisprudence and Disability Rights: A Case Study on the Trial of Anna Stubblefield
by Prerna & Vaagisha
Therapeutic Jurisprudence studies the manner in which law may be used as a tool for healing. By integrating law and psychological health, this field of legal scholarship seeks to evaluate the ameliorative effect of the legal process on the well-being of the participants. The object of its study is to determine how legal rules and procedures can and ought to be re-shaped to enhance their therapeutic potential, without having to compromise the due process of
Article
Reviewing the Ambit of 'Control' Apropos to the Objective of 'Mandatory Bids': An Analysis under the Takeover Regulations
by Bhavya Nahar
The advisory committees and the capital market regulator in India have every so often tried to arrive at a definition of control that will allow them to fittingly mandate the release of takeover bids on acquisition of control over a company. Bearing in mind that merely a quantitative test to determine control may be easy to circumvent, the regulator has adopted the use of a qualitative test, along with the quantitative test, to determine the
Reviewing the Ambit of 'Control' Apropos to the Objective of 'Mandatory Bids': An Analysis under the Takeover Regulations
by Bhavya Nahar
The advisory committees and the capital market regulator in India have every so often tried to arrive at a definition of control that will allow them to fittingly mandate the release of takeover bids on acquisition of control over a company. Bearing in mind that merely a quantitative test to determine control may be easy to circumvent, the regulator has adopted the use of a qualitative test, along with the quantitative test, to determine the
Article
A Case for Universal Basic Income in India
by Shrikrishna Upadhyaya & Sukriti
Universal Basic Income (‘UBI’) is a regular cash payment made to all individuals by the State without any means or work testing. It has historically been debated upon and more than a few justifications for UBI have been made. UBI has entered policy debate in India ever since UBI was proposed by the Economic Survey 2016-17 as a social welfare scheme suitable for India. In this paper, a normative justification for UBI is sought to
A Case for Universal Basic Income in India
by Shrikrishna Upadhyaya & Sukriti
Universal Basic Income (‘UBI’) is a regular cash payment made to all individuals by the State without any means or work testing. It has historically been debated upon and more than a few justifications for UBI have been made. UBI has entered policy debate in India ever since UBI was proposed by the Economic Survey 2016-17 as a social welfare scheme suitable for India. In this paper, a normative justification for UBI is sought to
Article
Invalidating Instant Triple Talaq: Is the Top-Down Approach of Reforming Personal Laws Prudent?
by Niraj Kumar & Akhilendra Pratap Singh
In Shayara Bano v. Union of India, the Indian Supreme Court pronounced a split, though bold and progressive verdict setting aside the practice of instant triple talaq or talaq-e-biddat. Against the backdrop of this judgment, this paper traces the jurisprudence evolved by Indian courts vis-à-vis personal laws and the right to religious freedom. Two central arguments are presented in the course of this paper. First, the courts have not adopted a consistent approach when dealing
Invalidating Instant Triple Talaq: Is the Top-Down Approach of Reforming Personal Laws Prudent?
by Niraj Kumar & Akhilendra Pratap Singh
In Shayara Bano v. Union of India, the Indian Supreme Court pronounced a split, though bold and progressive verdict setting aside the practice of instant triple talaq or talaq-e-biddat. Against the backdrop of this judgment, this paper traces the jurisprudence evolved by Indian courts vis-à-vis personal laws and the right to religious freedom. Two central arguments are presented in the course of this paper. First, the courts have not adopted a consistent approach when dealing
Article
Judicial Review of Reservation in Promotion: A Fading Promise of Equality in Services Guaranteed by the Indian Constitution
by Arpita Sarkar
This paper argues that the Supreme Court of India has been sceptical about reservation in promotion since the State began making promotion policies in employment. The reasoning provided by the Court during the period from 1960s leading to the Indra Sawhney decision will reflect that the opinions of judges were premised on ‘what would be’ the effect of reservation in promotion or ‘what ought to be’ the contours of reservation as opposed to what is
Judicial Review of Reservation in Promotion: A Fading Promise of Equality in Services Guaranteed by the Indian Constitution
by Arpita Sarkar
This paper argues that the Supreme Court of India has been sceptical about reservation in promotion since the State began making promotion policies in employment. The reasoning provided by the Court during the period from 1960s leading to the Indra Sawhney decision will reflect that the opinions of judges were premised on ‘what would be’ the effect of reservation in promotion or ‘what ought to be’ the contours of reservation as opposed to what is
Volume 11 Issue 1
Article
The Case for Inclusion of 'Battered Woman Defence' in India
by Aman Deep Borthakur
The Battered Woman Syndrome (‘BWS’) was developed as a psychological tool to understand the mental state of battered women who kill their batterers. This article examines the BWS with the objective of placing it within the specific statutory framework of the Indian Penal Code (‘IPC’). It firstly describes the theoretical basis for BWS, as developed by Dr. Lenore Walker and relies on two key concepts, the cyclical theory of violence and learned helplessness. It then
The Case for Inclusion of 'Battered Woman Defence' in India
by Aman Deep Borthakur
The Battered Woman Syndrome (‘BWS’) was developed as a psychological tool to understand the mental state of battered women who kill their batterers. This article examines the BWS with the objective of placing it within the specific statutory framework of the Indian Penal Code (‘IPC’). It firstly describes the theoretical basis for BWS, as developed by Dr. Lenore Walker and relies on two key concepts, the cyclical theory of violence and learned helplessness. It then
Editorial Note
Editorial Note
by NUJS Law Review
The Law Review from its inception has worked to push the boundaries of academic literature, garnering literature from students, academicians and professionals. When Professor MP Singh, founded the journal back in 2008, he had a vision of an academic journal which provided a platform to academicians, professionals and students alike to express their views in a manner which would be conducive to educating readers about various dimensions of the law as it stands and the
Editorial Note
by NUJS Law Review
The Law Review from its inception has worked to push the boundaries of academic literature, garnering literature from students, academicians and professionals. When Professor MP Singh, founded the journal back in 2008, he had a vision of an academic journal which provided a platform to academicians, professionals and students alike to express their views in a manner which would be conducive to educating readers about various dimensions of the law as it stands and the
Article
Criminalisation of Marital Rape: Understanding its Constitutional, Cultural and Legal Impact
by Raveena Rao Kallakuru & Pradyumna Soni
The law in India does not criminalise marital rape, i.e. the Indian Penal Code, 1860 does not recognise that it is a crime for a husband to rape his wife. The reasons for this are manifold and can be found in various reports of the Law Commission, Parliamentary debates and judicial decisions. The reasons range from protecting the sanctity of the institution of marriage to the already existing alternative remedies in law. In this paper,
Criminalisation of Marital Rape: Understanding its Constitutional, Cultural and Legal Impact
by Raveena Rao Kallakuru & Pradyumna Soni
The law in India does not criminalise marital rape, i.e. the Indian Penal Code, 1860 does not recognise that it is a crime for a husband to rape his wife. The reasons for this are manifold and can be found in various reports of the Law Commission, Parliamentary debates and judicial decisions. The reasons range from protecting the sanctity of the institution of marriage to the already existing alternative remedies in law. In this paper,
Article
How the 'Permanent Establishment Rule' Outlived its Utility in a Digitized World
by Ashish Goel & Shilpa Goel
This article is written at a critical time when countries across the world are meaning to design effective ways to tackle the international tax challenges posed by digital economy. Although the Organisation for Economic Co-operation and Development’s final report on base erosion and profit shifting Action 1 discusses some of the key challenges, it does not provide concrete solutions or recommendations for world governments to act upon. We note that the traditional international tax rules
How the 'Permanent Establishment Rule' Outlived its Utility in a Digitized World
by Ashish Goel & Shilpa Goel
This article is written at a critical time when countries across the world are meaning to design effective ways to tackle the international tax challenges posed by digital economy. Although the Organisation for Economic Co-operation and Development’s final report on base erosion and profit shifting Action 1 discusses some of the key challenges, it does not provide concrete solutions or recommendations for world governments to act upon. We note that the traditional international tax rules
Article
Constitution, Supreme Court and Regulation of Coal Sector in India
by MP Ram Mohan & Shashikant Yadav
The paper maps four decades of coal sector litigation before the Supreme Court of India and draws a narrative on the constitutional contestation and the legal position as it stands today. Coal is one of the most important minerals from an economic perspective, accounting for over sixty percent of India’s energy requirement. The Constitution of India empowers both the Centre and states with legislative powers relating to regulation and control over mines and minerals, including
Constitution, Supreme Court and Regulation of Coal Sector in India
by MP Ram Mohan & Shashikant Yadav
The paper maps four decades of coal sector litigation before the Supreme Court of India and draws a narrative on the constitutional contestation and the legal position as it stands today. Coal is one of the most important minerals from an economic perspective, accounting for over sixty percent of India’s energy requirement. The Constitution of India empowers both the Centre and states with legislative powers relating to regulation and control over mines and minerals, including
Article
Formulating a Model Legislative Framework for Mediation in India
by Rashika Narain & Abhinav Sankaranarayanan
The Indian judicial system has often been criticised for high rates of pendency, inefficient functioning, and adoption of an archaic approach to dispute resolution. The need to establish alternate pathways of dispute resolution has been emphasised on numerous occasions by the Law Commission of India as well as acclaimed scholars. Mediation has been identified by legal practitioners as a suitable technique for resolving a variety of disputes. However, such an alternate form of dispute resolution
Formulating a Model Legislative Framework for Mediation in India
by Rashika Narain & Abhinav Sankaranarayanan
The Indian judicial system has often been criticised for high rates of pendency, inefficient functioning, and adoption of an archaic approach to dispute resolution. The need to establish alternate pathways of dispute resolution has been emphasised on numerous occasions by the Law Commission of India as well as acclaimed scholars. Mediation has been identified by legal practitioners as a suitable technique for resolving a variety of disputes. However, such an alternate form of dispute resolution
Volume 10 Issue 4
Editorial Note
Editorial Note
by NUJS Law Review
The celebrated verdict in Justice KS Puttaswamy v. Union of India, has raised two questions of relevance for gender and sexual minorities – first, the criminalisation of marital rape and second, the de-criminalisation of Section 377 of the Indian Penal Code. In the course of this section of the note, we provide a jurisprudential analysis of these two issues. In particular, we aim to analyse the complex debates on the relationship between privacy and marital
Editorial Note
by NUJS Law Review
The celebrated verdict in Justice KS Puttaswamy v. Union of India, has raised two questions of relevance for gender and sexual minorities – first, the criminalisation of marital rape and second, the de-criminalisation of Section 377 of the Indian Penal Code. In the course of this section of the note, we provide a jurisprudential analysis of these two issues. In particular, we aim to analyse the complex debates on the relationship between privacy and marital
Article
Trade Dress in the Commercial Kitchen: Exploring the Application of the Lanham Act to Food Plating in the Culinary Industry
by Kiran Mary George
The culinary industry has become a creative zone, with revered chefs from all around the world producing magnificently innovative plating designs that have, along with wide critical acclaim, also unintentionally birthed equally expensive and often rather impressively imitated culinary knockoffs. The laborious task that is the designing and plating of a beautifully presented dish has often come to result in the dish’s plating becoming the restaurant’s unique selling point, with its market tending to associate
Trade Dress in the Commercial Kitchen: Exploring the Application of the Lanham Act to Food Plating in the Culinary Industry
by Kiran Mary George
The culinary industry has become a creative zone, with revered chefs from all around the world producing magnificently innovative plating designs that have, along with wide critical acclaim, also unintentionally birthed equally expensive and often rather impressively imitated culinary knockoffs. The laborious task that is the designing and plating of a beautifully presented dish has often come to result in the dish’s plating becoming the restaurant’s unique selling point, with its market tending to associate
Article
Reforming the World Bank to Transform India
by Vivek Sehrawat
The World Bank and India can change their relationship by adopting the “Reform to Transform India” approach. In this paper I will focus on the World Bank’s conditional aspect of loans and voting power in relation to India. In addition, this will help other developing economies. In this paper I will focus on these two aspects because the aspects of conditionality and voting share can be legally reformed for better and successful governance of the
Reforming the World Bank to Transform India
by Vivek Sehrawat
The World Bank and India can change their relationship by adopting the “Reform to Transform India” approach. In this paper I will focus on the World Bank’s conditional aspect of loans and voting power in relation to India. In addition, this will help other developing economies. In this paper I will focus on these two aspects because the aspects of conditionality and voting share can be legally reformed for better and successful governance of the
Article
Determining the Constitutionality of Constitutional Amendments in India, Pakistan and Bangladesh: A Comparative Analysis
by Aratrika Choudhuri & Shivani Kabra
Unconstitutional constitutional amendments present an intractable conundrum in constitutional law theory and praxis, not the least because of the literal paradox in the term itself. The age-old tussle between the Parliament and the Judiciary, in delineating the scope of their powers, has had inevitable spill-over effects on determining how far a constitution can be altered and negated. We argue that a conflation of the variegated categories of constituent powers has led to the evolution of
Determining the Constitutionality of Constitutional Amendments in India, Pakistan and Bangladesh: A Comparative Analysis
by Aratrika Choudhuri & Shivani Kabra
Unconstitutional constitutional amendments present an intractable conundrum in constitutional law theory and praxis, not the least because of the literal paradox in the term itself. The age-old tussle between the Parliament and the Judiciary, in delineating the scope of their powers, has had inevitable spill-over effects on determining how far a constitution can be altered and negated. We argue that a conflation of the variegated categories of constituent powers has led to the evolution of
Article
Reinventing Regulation: The Curious Case of Taxation of Cryptocurrencies in India
by Hatim Hussain
Nearly twenty-five years ago, the internet disrupted the world and started a new era of technological supremacy. Today, with the rise of cryptocurrencies and its underlying technology, we stand at the helm of another such revolution. Cryptocurrencies like bitcoin are decentralised, digital currencies relying on a peer-to-peer network which operates without the need for a third-party intermediary like the Reserve Bank of India. Coupled with lack of regulatory guidance, its unique technical aspects create huge
Reinventing Regulation: The Curious Case of Taxation of Cryptocurrencies in India
by Hatim Hussain
Nearly twenty-five years ago, the internet disrupted the world and started a new era of technological supremacy. Today, with the rise of cryptocurrencies and its underlying technology, we stand at the helm of another such revolution. Cryptocurrencies like bitcoin are decentralised, digital currencies relying on a peer-to-peer network which operates without the need for a third-party intermediary like the Reserve Bank of India. Coupled with lack of regulatory guidance, its unique technical aspects create huge
Article
Locating a Moral Justification for State Funded Gender Affirmative Healthcare
by Diksha D Sanyal
The judgment of the Supreme Court in National Legal Services Authority v. Union of India while a landmark development in recognition of transgender rights, threw open a Pandora’s box full of questions having moral and legal dimensions. One such question pertains to the obligation of the state to fund gender affirmative healthcare services such as sex reassignment surgeries (‘SRS’). Given how prohibitively expensive they are, this paper interrogates whether the state has a duty to
Locating a Moral Justification for State Funded Gender Affirmative Healthcare
by Diksha D Sanyal
The judgment of the Supreme Court in National Legal Services Authority v. Union of India while a landmark development in recognition of transgender rights, threw open a Pandora’s box full of questions having moral and legal dimensions. One such question pertains to the obligation of the state to fund gender affirmative healthcare services such as sex reassignment surgeries (‘SRS’). Given how prohibitively expensive they are, this paper interrogates whether the state has a duty to
Note
Economic Approaches to Promotion of Clean Energy
by Dr. Armin Rosencranz, Kshitij Bansal, Aditya Vora & Shreyangshi Gupta
The uncontrolled exploitation of Earth’s resources has resulted in irreversible changes in the environment generally and the climate in particular. Therefore, a global and immediate policy response is urgently required to reduce greenhouse gas emissions and mitigate climate change. There is compelling evidence that climate change is the greatest and widest-ranging market failure ever seen. To combat the resultant market failure and externalities, there is a need to tackle climate change through economics. The paper
Economic Approaches to Promotion of Clean Energy
by Dr. Armin Rosencranz, Kshitij Bansal, Aditya Vora & Shreyangshi Gupta
The uncontrolled exploitation of Earth’s resources has resulted in irreversible changes in the environment generally and the climate in particular. Therefore, a global and immediate policy response is urgently required to reduce greenhouse gas emissions and mitigate climate change. There is compelling evidence that climate change is the greatest and widest-ranging market failure ever seen. To combat the resultant market failure and externalities, there is a need to tackle climate change through economics. The paper
Volume 10 Issue 3
Editorial Note
Editorial Note
by NUJS Law Review
Tribunals were created as administrative adjudication bodies with the objectives of expediting the process, reducing the workload on the courts, and ensuring that both experts and judicial members would form part of the forum. On March 31, 2017, the Finance Bill, 2017 which aimed at merging as many as eight tribunals with other tribunals received the assent of the President, thus giving birth to the Finance Act, 2017, one of the most controversial pieces of
Editorial Note
by NUJS Law Review
Tribunals were created as administrative adjudication bodies with the objectives of expediting the process, reducing the workload on the courts, and ensuring that both experts and judicial members would form part of the forum. On March 31, 2017, the Finance Bill, 2017 which aimed at merging as many as eight tribunals with other tribunals received the assent of the President, thus giving birth to the Finance Act, 2017, one of the most controversial pieces of
Article
Legislative Strategy for Setting up an Independent Debt Management Agency
by Radhika Pandey & Ila Patnaik
The Public Debt Management Agency is a body that issues public debt with the objective of keeping long term costs of government borrowing low. In India, the existing legal framework obliges the government to give the task of managing its debt to the Reserve Bank of India. Pursuant to its role as debt manager, the Reserve Bank of India set up market infrastructure, such as an exchange and a depository. Carve-outs were made in the
Legislative Strategy for Setting up an Independent Debt Management Agency
by Radhika Pandey & Ila Patnaik
The Public Debt Management Agency is a body that issues public debt with the objective of keeping long term costs of government borrowing low. In India, the existing legal framework obliges the government to give the task of managing its debt to the Reserve Bank of India. Pursuant to its role as debt manager, the Reserve Bank of India set up market infrastructure, such as an exchange and a depository. Carve-outs were made in the
Article
Triple Talaq – Gender Concerns and Minority Safeguards within a Communalised Polity: Can Conditional Nikahnama Offer a Solution?
by Flavia Agnes
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
Triple Talaq – Gender Concerns and Minority Safeguards within a Communalised Polity: Can Conditional Nikahnama Offer a Solution?
by Flavia Agnes
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
Article
Looking into the Black Box: Holding Intelligent Agents Accountable
by Srivats Shankar
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
Looking into the Black Box: Holding Intelligent Agents Accountable
by Srivats Shankar
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
Article
Broadening the Scope of Liabilities for Cruelty against Animals: Gauging the Legal Adequacy of Penal Sanctions Imposed
by Abha Nadkarni & Adrija Ghosh
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
Broadening the Scope of Liabilities for Cruelty against Animals: Gauging the Legal Adequacy of Penal Sanctions Imposed
by Abha Nadkarni & Adrija Ghosh
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
Article
‘Continuing Mandamus’ – A Judicial Innovation to Bridge the Right-Remedy Gap
by Mihika Poddar & Bhavya Nahar
The sanctity and credibility of the democratic legal system is intrinsically linked to the enforceability of rights, a task typically adjudged to the judiciary. However, the constitutional court’s image as the defender of rights has come into scrutiny due to its incapability of ensuring government compliance, especially in cases requiring enforcement of positive state duties. Socio-economic rights, for instance, propose a major challenge to the judicial and legal system where coercing state action is at
‘Continuing Mandamus’ – A Judicial Innovation to Bridge the Right-Remedy Gap
by Mihika Poddar & Bhavya Nahar
The sanctity and credibility of the democratic legal system is intrinsically linked to the enforceability of rights, a task typically adjudged to the judiciary. However, the constitutional court’s image as the defender of rights has come into scrutiny due to its incapability of ensuring government compliance, especially in cases requiring enforcement of positive state duties. Socio-economic rights, for instance, propose a major challenge to the judicial and legal system where coercing state action is at
Volume 10 Issue 2
Article
Philosophical Research in Law: The Possibilities
by Prof. Dr. Ishwara Bhat
Philosophical research is an indispensable instrument in the toolbox of a legal researcher. In spite of being abstract in the higher levels of reasoning, the philosophical approach to legal research is expected to be rooted in social realities. In this paper, I seek to demonstrate that at both lower and higher levels of jurisprudence, and in specific and general research inquiries, the possible assistance that can be derived from philosophical research is substantial. By delineating
Philosophical Research in Law: The Possibilities
by Prof. Dr. Ishwara Bhat
Philosophical research is an indispensable instrument in the toolbox of a legal researcher. In spite of being abstract in the higher levels of reasoning, the philosophical approach to legal research is expected to be rooted in social realities. In this paper, I seek to demonstrate that at both lower and higher levels of jurisprudence, and in specific and general research inquiries, the possible assistance that can be derived from philosophical research is substantial. By delineating
Editorial Note
Editorial Note
by NUJS Law Review
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
Editorial Note
by NUJS Law Review
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
Article
Reassessing the Role of the Rajpramukh: An Analysis of the Continuing Relevance of the Governor’s Position
by Agnidipto Tarafder & Avantik Tamta
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,
Reassessing the Role of the Rajpramukh: An Analysis of the Continuing Relevance of the Governor’s Position
by Agnidipto Tarafder & Avantik Tamta
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,
Article
GAAR to Override DTAAs: Can the Constitution or Limitation of Benefits Clauses Prevent this Menace?
by Dhruva Gandhi & Gaurav Bhawnani
An amendment to the Income Tax Act, 1961 has introduced the General Anti-Avoidance Rules (‘GAAR’), which came into force from April 1, 2017. The GAAR seeks to clamp down on tax avoidance generally, including through Direct Taxation Avoidance Agreements (‘DTAA’). However, the application of the GAAR to treaties is likely to be arbitrary and to result in severe consequences. It is also likely to lead to harassment of assesses on account of a scrutiny of
GAAR to Override DTAAs: Can the Constitution or Limitation of Benefits Clauses Prevent this Menace?
by Dhruva Gandhi & Gaurav Bhawnani
An amendment to the Income Tax Act, 1961 has introduced the General Anti-Avoidance Rules (‘GAAR’), which came into force from April 1, 2017. The GAAR seeks to clamp down on tax avoidance generally, including through Direct Taxation Avoidance Agreements (‘DTAA’). However, the application of the GAAR to treaties is likely to be arbitrary and to result in severe consequences. It is also likely to lead to harassment of assesses on account of a scrutiny of
Article
Caste and Justice in the Rawlsian Theoretical Framework: Dilemmas on the Creamy Layer and Reservations in Promotions
by Ira Chadha-Sridhar & Sachi Shah
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
Caste and Justice in the Rawlsian Theoretical Framework: Dilemmas on the Creamy Layer and Reservations in Promotions
by Ira Chadha-Sridhar & Sachi Shah
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
Article
The India – Solar Cells Dispute: Renewable Energy Subsidies under World Trade Law and the Need for Environmental Exceptions
by Vivasvan Bansal & Chaitanya Deshpande
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
The India – Solar Cells Dispute: Renewable Energy Subsidies under World Trade Law and the Need for Environmental Exceptions
by Vivasvan Bansal & Chaitanya Deshpande
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
Article
Religious Freedom under the Personal Law System, Farrah Ahmed, Oxford University Press, 2016
by Akhilendra Pratap Singh
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...
Religious Freedom under the Personal Law System, Farrah Ahmed, Oxford University Press, 2016
by Akhilendra Pratap Singh
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...
Article
Role of Indian Regulatory Authorities in Integrating Environmental Justice into Industrial Siting Decisions
by Yashaswini Mittal
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
Role of Indian Regulatory Authorities in Integrating Environmental Justice into Industrial Siting Decisions
by Yashaswini Mittal
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
Article
Judicial Review and Money Bills
by Pratik Datta, Shefali Malhotra & Shivangi Tyagi
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
Judicial Review and Money Bills
by Pratik Datta, Shefali Malhotra & Shivangi Tyagi
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
Volume 10 Issue 1
Article
Redressal Mechanism under the Real Estate (Regulation and Development) Act 2016: Ouster of the Arbitration Tribunal?
by Ajar Rab
The Parliament enacted the Real Estate (Regulation and Development) Act, 2016 to regulate the real estate sector, protect innocent buyers and provide speedy redressal mechanism. This Act fills a large lacuna as real estate was hitherto unregulated. This Act seeks to provide respite to frustrated and helpless buyers who have so far been at the mercy of unscrupulous builders and years of litigation. Apart from protecting the buyers, this Act establishes a specialised body for
Redressal Mechanism under the Real Estate (Regulation and Development) Act 2016: Ouster of the Arbitration Tribunal?
by Ajar Rab
The Parliament enacted the Real Estate (Regulation and Development) Act, 2016 to regulate the real estate sector, protect innocent buyers and provide speedy redressal mechanism. This Act fills a large lacuna as real estate was hitherto unregulated. This Act seeks to provide respite to frustrated and helpless buyers who have so far been at the mercy of unscrupulous builders and years of litigation. Apart from protecting the buyers, this Act establishes a specialised body for
Editorial Note
Editorial Note
by NUJS Law Review
In December 2016, the Supreme Court passed its judgment in the controversial case, Shyam Narayan Chouksey v. Union of India. The Supreme Court ruled that all cinema halls in India have to play the National Anthem before the screening of a feature film. The Court also stated that all viewers present in the cinema hall would be obliged to stand up for the National Anthem as a sign of respect. This judgment has created a
Editorial Note
by NUJS Law Review
In December 2016, the Supreme Court passed its judgment in the controversial case, Shyam Narayan Chouksey v. Union of India. The Supreme Court ruled that all cinema halls in India have to play the National Anthem before the screening of a feature film. The Court also stated that all viewers present in the cinema hall would be obliged to stand up for the National Anthem as a sign of respect. This judgment has created a
Article
Examining the Scope and Regulatory Framework Concerning Employees’ Benefit Schemes in India
by Pravesh Aggarwal
With the increasing importance of human capital in the modern era, it has become quintessential for companies to shift from traditional channels of rewarding employees with cash, to channels which align the interest of the employees with long term interest of the companies. In addition to this, the need of the companies to retain their senior employees as well as attract top talents from the industry has compelled them to come out with profitable remuneration
Examining the Scope and Regulatory Framework Concerning Employees’ Benefit Schemes in India
by Pravesh Aggarwal
With the increasing importance of human capital in the modern era, it has become quintessential for companies to shift from traditional channels of rewarding employees with cash, to channels which align the interest of the employees with long term interest of the companies. In addition to this, the need of the companies to retain their senior employees as well as attract top talents from the industry has compelled them to come out with profitable remuneration
Article
International Direct Taxation and E-Commerce: A Catalyst for Reform?
by Subhajit Basu
This article critically analyses the challenges e-commerce poses to the traditional source- and residence-based taxation systems. It presents an exploratory study of two fundamental taxation principles that apply to international transactions in general and, more specifically, to e-commerce: the choice of residence-based or source-based taxation in governing the tax treatment of both domestic income accruing to non-residents and foreign income accruing to residents; and use of permanent establishment (PE) status in instituting the economic nexus
International Direct Taxation and E-Commerce: A Catalyst for Reform?
by Subhajit Basu
This article critically analyses the challenges e-commerce poses to the traditional source- and residence-based taxation systems. It presents an exploratory study of two fundamental taxation principles that apply to international transactions in general and, more specifically, to e-commerce: the choice of residence-based or source-based taxation in governing the tax treatment of both domestic income accruing to non-residents and foreign income accruing to residents; and use of permanent establishment (PE) status in instituting the economic nexus
Article
Juvenile Maturity and Heinous Crimes: A Re-Look at Juvenile Justice Policy in India
by Gauri Pillai & Shrikrishna Upadhyay
On December 22, 2015, the Juvenile Justice (Care and Protection of Children) Act, 2015 received parliamentary approval, bringing forth an entirely new regime with respect to juveniles above the age of sixteen, accused of committing heinous offences. The background for its introduction was set by the horrific rape of a young student in 2012. The government justified the law as a measure which would have a deterrent effect on potential juvenile offenders. However, the opponents
Juvenile Maturity and Heinous Crimes: A Re-Look at Juvenile Justice Policy in India
by Gauri Pillai & Shrikrishna Upadhyay
On December 22, 2015, the Juvenile Justice (Care and Protection of Children) Act, 2015 received parliamentary approval, bringing forth an entirely new regime with respect to juveniles above the age of sixteen, accused of committing heinous offences. The background for its introduction was set by the horrific rape of a young student in 2012. The government justified the law as a measure which would have a deterrent effect on potential juvenile offenders. However, the opponents
Article
Summaries and Secondary Evidence: Transnational Legislative Borrowing in Colonial India
by Dr. Abhinav Chandrachud
This paper traces the historical origins of §65(g) of the Indian Evidence Act, 1872, which permits summaries of voluminous documents to be admitted in evidence. Even though it was the English common law which was ostensibly codified in British India, no such rule now exists in the U.K. It will be seen that the words contained in §65(g) were quietly borrowed, without attribution, by the Briton Sir James Fitzjames Stephen, Law Member of the Viceroy’s
Summaries and Secondary Evidence: Transnational Legislative Borrowing in Colonial India
by Dr. Abhinav Chandrachud
This paper traces the historical origins of §65(g) of the Indian Evidence Act, 1872, which permits summaries of voluminous documents to be admitted in evidence. Even though it was the English common law which was ostensibly codified in British India, no such rule now exists in the U.K. It will be seen that the words contained in §65(g) were quietly borrowed, without attribution, by the Briton Sir James Fitzjames Stephen, Law Member of the Viceroy’s
Volume 9 Issue 3-4
Editorial Note
Editorial Note
by NUJS Law Review
India is currently in the throes of developing legislation that would theoretically create simpler frameworks to resolves disputes. In creating and conceptualising these laws, there is a clear need for there to be a comprehensive assessment of all factors that would aid or debilitate the problem-solving at hand. The role of a legislature in a modern-day economy and polity is to ensure that regulatory and governance measures are passed in the country so as to
Editorial Note
by NUJS Law Review
India is currently in the throes of developing legislation that would theoretically create simpler frameworks to resolves disputes. In creating and conceptualising these laws, there is a clear need for there to be a comprehensive assessment of all factors that would aid or debilitate the problem-solving at hand. The role of a legislature in a modern-day economy and polity is to ensure that regulatory and governance measures are passed in the country so as to
Convocation Speech
Demosprudence and Socially Responsible/Response-Able Criticism: The NJAC Decision and Beyond
by Professor Upendra Baxi
It is a proud privilege and great pleasure to be invited to deliver this Dr. Durga Das Basu Endowment Lecture at the West Bengal National University of Juridical Sciences (‘WBNUJS’). I deeply thank Professor (Dr.) Ishwara Bhat for inviting me so graciously. He has done an inestimable service by editing Durga Das Basu’s Limited Government and Judicial Review (Tagore Law Lectures) and also in bringing together many past memorial lectures, under the provocative book titled
Demosprudence and Socially Responsible/Response-Able Criticism: The NJAC Decision and Beyond
by Professor Upendra Baxi
It is a proud privilege and great pleasure to be invited to deliver this Dr. Durga Das Basu Endowment Lecture at the West Bengal National University of Juridical Sciences (‘WBNUJS’). I deeply thank Professor (Dr.) Ishwara Bhat for inviting me so graciously. He has done an inestimable service by editing Durga Das Basu’s Limited Government and Judicial Review (Tagore Law Lectures) and also in bringing together many past memorial lectures, under the provocative book titled
Article
The Future of Asylum in India: Four Principles to Appraise Recent Legislative Proposals
by Bhairav Acharya
India has a long history of sheltering refugees. The number of forced migrants who have received protection in India is one of the highest in the world. For a variety of ideological and practical reasons, India has refused to sign the 1951 Refugee Convention and shows little interest in joining the evolving international refugee order. Without a formal asylum regime, the Foreigners Act, 1946, a stringent deportation-oriented law, governs refugees unless they are given special
The Future of Asylum in India: Four Principles to Appraise Recent Legislative Proposals
by Bhairav Acharya
India has a long history of sheltering refugees. The number of forced migrants who have received protection in India is one of the highest in the world. For a variety of ideological and practical reasons, India has refused to sign the 1951 Refugee Convention and shows little interest in joining the evolving international refugee order. Without a formal asylum regime, the Foreigners Act, 1946, a stringent deportation-oriented law, governs refugees unless they are given special
Article
Nexavar: The First Market Initiated Compulsory Licence
by Dr. Feroz Ali
This article looks at market-initiated compulsory licences issued under patent regimes, the first of which came into force with the grant of the Nexavar licence in India. By classifying the various types of compulsory licences, this article brings out the differences between government-use and market-initiated licences. I argue that market-initiated licences have many advantages over government-use compulsory licences. Although factors like overcoming capacity barriers of local manufacturers and legislative preparedness of the nation seeking to
Nexavar: The First Market Initiated Compulsory Licence
by Dr. Feroz Ali
This article looks at market-initiated compulsory licences issued under patent regimes, the first of which came into force with the grant of the Nexavar licence in India. By classifying the various types of compulsory licences, this article brings out the differences between government-use and market-initiated licences. I argue that market-initiated licences have many advantages over government-use compulsory licences. Although factors like overcoming capacity barriers of local manufacturers and legislative preparedness of the nation seeking to
Article
‘Tribunalisation’ of India’s Competition Regime
by Anusha Ramesh
The 42nd Amendment to the Constitution is often blamed for opening the floodgates for ‘tribunalisation’ in the country. The rapid growth in tribunals following the enactment of this amendment, has been viewed as an attempt by the executive to gain control over judicial functions. This has spurred the judiciary to be cautious in preserving its independence and power of judicial review, and has led it to decide upon the constitutional status of various tribunals. As
‘Tribunalisation’ of India’s Competition Regime
by Anusha Ramesh
The 42nd Amendment to the Constitution is often blamed for opening the floodgates for ‘tribunalisation’ in the country. The rapid growth in tribunals following the enactment of this amendment, has been viewed as an attempt by the executive to gain control over judicial functions. This has spurred the judiciary to be cautious in preserving its independence and power of judicial review, and has led it to decide upon the constitutional status of various tribunals. As
Article
Brokers and Investment Advisers - Addressing the Question of Fiduciary Standard in a Comparative Context
by Shantanu Dey
With the increasing sophistication witnessed by financial markets, regulatory authorities across the globe have made conscious efforts to reorient their approach towards monitoring transactional activities; yet, they have failed to recognise the changes experienced by brokerage operations. This paper seeks to shed light on the emergence of advisory brokers in the con- temporary context which has exhibited substantial similarity to functions traditionally performed by investment advisers. While advisory relation- ships have been typically classified as
Brokers and Investment Advisers - Addressing the Question of Fiduciary Standard in a Comparative Context
by Shantanu Dey
With the increasing sophistication witnessed by financial markets, regulatory authorities across the globe have made conscious efforts to reorient their approach towards monitoring transactional activities; yet, they have failed to recognise the changes experienced by brokerage operations. This paper seeks to shed light on the emergence of advisory brokers in the con- temporary context which has exhibited substantial similarity to functions traditionally performed by investment advisers. While advisory relation- ships have been typically classified as
Article
The GATT Security Exception: Systemic Safeguards Against Its Misuse
by Sandeep Ravikumar
Distinct from the heavily litigated General Exceptions enshrined in Article XX of the General Agreement on Tariffs and Trade, 1947, the Security Exception under Article XXI presents a unique challenge to the WTO Dispute Settlement Mechanism. As this provision governs a sensitive aspect of State sovereignty, namely, the preservation of national security, there is little consensus on the form or extent of scrutiny that the WTO can place on a member invoking Article XXI. At
The GATT Security Exception: Systemic Safeguards Against Its Misuse
by Sandeep Ravikumar
Distinct from the heavily litigated General Exceptions enshrined in Article XX of the General Agreement on Tariffs and Trade, 1947, the Security Exception under Article XXI presents a unique challenge to the WTO Dispute Settlement Mechanism. As this provision governs a sensitive aspect of State sovereignty, namely, the preservation of national security, there is little consensus on the form or extent of scrutiny that the WTO can place on a member invoking Article XXI. At
Volume 9 Issue 1-2
Article
Fundamental Errors in Fundamental Places: A Case for Setting Aside the Delhi University Photocopying Judgement
by Eashan Ghosh
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
Fundamental Errors in Fundamental Places: A Case for Setting Aside the Delhi University Photocopying Judgement
by Eashan Ghosh
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
Editorial Note
Editorial Note
by NUJS Law Review
Restricting women’s entry to places of religious worship has become a highly contentious issue of late. Though such practices have been persisting for decades in India, movements across the country have recently espoused these concerns, leading to several petitions being led in High Courts and in the Supreme Court. Demonstrating an encouraging trend, courts have emphatically upheld rights of women to equality and freedom of religion, thus striking down the restrictions imposed. The Bombay High
Editorial Note
by NUJS Law Review
Restricting women’s entry to places of religious worship has become a highly contentious issue of late. Though such practices have been persisting for decades in India, movements across the country have recently espoused these concerns, leading to several petitions being led in High Courts and in the Supreme Court. Demonstrating an encouraging trend, courts have emphatically upheld rights of women to equality and freedom of religion, thus striking down the restrictions imposed. The Bombay High
Article
Of Men’s Rights, Motherhood and Minors: Critical Feminist Reflections on Shared Parenting Laws in India
by Ira Chadha-Sridhar & Aratrika Choudhuri
In May 2015, the Law Commission of India drafted its 257th report titled ‘Reforms in Guardianship and Custody Laws in India’, in which it suggested several modifications to the custody framework in India. Within this report, the Law Commission also suggested the possible incorporation of shared parenting as a post-divorce custody model within India. This paper attempts to analyse the principle need as well as the practical ramifications of implementing such a model. In doing
Of Men’s Rights, Motherhood and Minors: Critical Feminist Reflections on Shared Parenting Laws in India
by Ira Chadha-Sridhar & Aratrika Choudhuri
In May 2015, the Law Commission of India drafted its 257th report titled ‘Reforms in Guardianship and Custody Laws in India’, in which it suggested several modifications to the custody framework in India. Within this report, the Law Commission also suggested the possible incorporation of shared parenting as a post-divorce custody model within India. This paper attempts to analyse the principle need as well as the practical ramifications of implementing such a model. In doing
Article
Capitalising the Benefits of Traditional Knowledge Digital Library (TKDL) in Favour of Indigenous Communities
by Abha Nadkarni & Shardha Rajam
The purpose of preserving Traditional Knowledge of indigenous communities is to allow its usage, but not monopolising it through patents. In light of this purpose, Traditional Knowledge Digital Library (TKDL) was recently developed by India with the view of protecting knowledge of indigenous communities of India and preventing others from unlawfully enriching from its usage. TKDL digitally codifies all possible known indigenous community knowledge of India that cannot be patented. To prevent instances of biopiracy,
Capitalising the Benefits of Traditional Knowledge Digital Library (TKDL) in Favour of Indigenous Communities
by Abha Nadkarni & Shardha Rajam
The purpose of preserving Traditional Knowledge of indigenous communities is to allow its usage, but not monopolising it through patents. In light of this purpose, Traditional Knowledge Digital Library (TKDL) was recently developed by India with the view of protecting knowledge of indigenous communities of India and preventing others from unlawfully enriching from its usage. TKDL digitally codifies all possible known indigenous community knowledge of India that cannot be patented. To prevent instances of biopiracy,
Article
The Loss of Industrial Character under the Sick Industrial Companies (Special Provisions) Act, 1985: Addressing the Jurisdictional Conundrum
by Harshad Pathak
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
The Loss of Industrial Character under the Sick Industrial Companies (Special Provisions) Act, 1985: Addressing the Jurisdictional Conundrum
by Harshad Pathak
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
Article
Public Trust Doctrine: Implications for Democratisation of Water Governance
by Paromita Goswami
A National Water Framework Law imbued with a thorough understanding of the Public Trust Doctrine has the potential to transform the existing state-centred water regime into a democratised space for people’s participation. However, the existence of two contradictory drafts of the law, both claiming to incorporate the public trust perspective and yet with divergent implications for social equity and ecological sustainability has led to a need for further discussions in the public domain. This article
Public Trust Doctrine: Implications for Democratisation of Water Governance
by Paromita Goswami
A National Water Framework Law imbued with a thorough understanding of the Public Trust Doctrine has the potential to transform the existing state-centred water regime into a democratised space for people’s participation. However, the existence of two contradictory drafts of the law, both claiming to incorporate the public trust perspective and yet with divergent implications for social equity and ecological sustainability has led to a need for further discussions in the public domain. This article
Article
Scope for Intersection Between Antitrust Laws and Corporate Governance Principles Vis-À-Vis Cartels Deterrence in India
by Sahithya Muralidharan and Chaitanya Deshpande
Competition law and corporate governance seem to analyse the external and internal operations of a firm respectively. This paper seeks to explore the scope for meaningful interaction between the two with respect to cartels. We believe that understanding the issue of cartel from the context of shareholder interest as an agency problem can help shape antitrust policy regarding the same. First, we propose a ‘carrot and stick’ approach to overhaul the antitrust policy. This involves
Scope for Intersection Between Antitrust Laws and Corporate Governance Principles Vis-À-Vis Cartels Deterrence in India
by Sahithya Muralidharan and Chaitanya Deshpande
Competition law and corporate governance seem to analyse the external and internal operations of a firm respectively. This paper seeks to explore the scope for meaningful interaction between the two with respect to cartels. We believe that understanding the issue of cartel from the context of shareholder interest as an agency problem can help shape antitrust policy regarding the same. First, we propose a ‘carrot and stick’ approach to overhaul the antitrust policy. This involves
Volume 8 Issue 3-4
Editorial Note
Editorial Note
by NUJS Law Review
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
Editorial Note
by NUJS Law Review
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
Article
Private and Yet Public: The Schizophrenia of Modern Sports and Judicial Review
by Saurabh Bhattacharjee
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
Private and Yet Public: The Schizophrenia of Modern Sports and Judicial Review
by Saurabh Bhattacharjee
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
Article
Towards a Tribunal Services Agency
by Pratik Datta
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
Towards a Tribunal Services Agency
by Pratik Datta
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
Article
The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention And Control) Bill, 2014 and Capability Approach
by Kritika Vohra & Srivats Shankar
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
The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention And Control) Bill, 2014 and Capability Approach
by Kritika Vohra & Srivats Shankar
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
Article
Revisiting the Shipbreaking Industry in India: Axing Out Environmental Damage, Labour Rights’ Violation and Economic Myopia
by Paridhi Poddar & Sarthak Sood
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
Revisiting the Shipbreaking Industry in India: Axing Out Environmental Damage, Labour Rights’ Violation and Economic Myopia
by Paridhi Poddar & Sarthak Sood
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
Article
Competition Law Regulation of Trade and Professional Associations
by Aishwarya Gupta & Vivasvan Bansal
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
Competition Law Regulation of Trade and Professional Associations
by Aishwarya Gupta & Vivasvan Bansal
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
Volume 8 Issue 1-2
Article
Promoting Clinical Legal Education and Democracy in India
by Sital Kalantry
Clinical legal education emerged in the United States in the 1960s to give valuable skill-based instructions to law students while providing legal ser- vices to people who could not otherwise afford them. This essay proposes another reason why both Indian and American law schools should support the development of law clinics. Drawing on the works of John Dewey and Martha Nussbaum, I argue that clinical legal education promotes democracy. Both elite American and Indian universities
Promoting Clinical Legal Education and Democracy in India
by Sital Kalantry
Clinical legal education emerged in the United States in the 1960s to give valuable skill-based instructions to law students while providing legal ser- vices to people who could not otherwise afford them. This essay proposes another reason why both Indian and American law schools should support the development of law clinics. Drawing on the works of John Dewey and Martha Nussbaum, I argue that clinical legal education promotes democracy. Both elite American and Indian universities
Article
Anatomy of the Great Divide – Separating the Roles of Chairman and CEO
by Shivam Bhardwaj & Shreyangshi Gupta
The corporate sphere, globally, has been known for its power tussle. There have been numerous instances where corporate enterprises have witnessed clashes within different ranks of its substructure, with a view to gain as much control as possible. The focus of corporate governance, in most cases, has been to curb the struggle between the management and the share/stake holders of the company by trying to even out the inherent imbalance be- tween the two camps
Anatomy of the Great Divide – Separating the Roles of Chairman and CEO
by Shivam Bhardwaj & Shreyangshi Gupta
The corporate sphere, globally, has been known for its power tussle. There have been numerous instances where corporate enterprises have witnessed clashes within different ranks of its substructure, with a view to gain as much control as possible. The focus of corporate governance, in most cases, has been to curb the struggle between the management and the share/stake holders of the company by trying to even out the inherent imbalance be- tween the two camps
Article
Place of Effective Management Test in The Income Tax Act, 1961: Is It the Right Way Forward?
by Ashrita Prasad Kotha
The Finance Act, 2015 amended §6(3)(ii) of the Income Tax Act, 1961 to introduce a new test for determining the residential status of companies. The new test is called the ‘Place of Effective Management’ test for interpretation of which, the Central Board of Direct Taxes has recently issued draft guide- lines. This test replaces the erstwhile control and management test which has common law origins and was laid down in a context that best suited
Place of Effective Management Test in The Income Tax Act, 1961: Is It the Right Way Forward?
by Ashrita Prasad Kotha
The Finance Act, 2015 amended §6(3)(ii) of the Income Tax Act, 1961 to introduce a new test for determining the residential status of companies. The new test is called the ‘Place of Effective Management’ test for interpretation of which, the Central Board of Direct Taxes has recently issued draft guide- lines. This test replaces the erstwhile control and management test which has common law origins and was laid down in a context that best suited
Article
Model Text for the Indian Bilateral Investment Treaty: An Analysis
by Manu Thadikkaran
The 2016 version of the Model Bilateral Investment Treaty unveiled by India reflects a major step towards clearing India’s not-so-attractive reputation in the world of international investment. The Model text however, though a revised version of the draft text released in 2015, still does not elevate India to the standard of an investment friendly country. Various provisions of the Model Bilateral Investment Treaty are a knee-jerk reaction to the investment claims faced by India in
Model Text for the Indian Bilateral Investment Treaty: An Analysis
by Manu Thadikkaran
The 2016 version of the Model Bilateral Investment Treaty unveiled by India reflects a major step towards clearing India’s not-so-attractive reputation in the world of international investment. The Model text however, though a revised version of the draft text released in 2015, still does not elevate India to the standard of an investment friendly country. Various provisions of the Model Bilateral Investment Treaty are a knee-jerk reaction to the investment claims faced by India in
Article
Authenticating Electronic Evidence: §65B, Indian Evidence Act, 1872
by Ashwini Vaidialingam
§§65A and 65B of the Evidence Act, 1872 were introduced in 2000 with the aim to lay down admissibility standards for electronic evidence in courts. However, this attempt at standardization has not seen much success and there has been significant divergence in practice in courts across India. Recently the Supreme Court in P.V. Anvar v. P.K. Basheer attempted to address this problem by explaining and laying down the requirements under §65B. This paper argues that
Authenticating Electronic Evidence: §65B, Indian Evidence Act, 1872
by Ashwini Vaidialingam
§§65A and 65B of the Evidence Act, 1872 were introduced in 2000 with the aim to lay down admissibility standards for electronic evidence in courts. However, this attempt at standardization has not seen much success and there has been significant divergence in practice in courts across India. Recently the Supreme Court in P.V. Anvar v. P.K. Basheer attempted to address this problem by explaining and laying down the requirements under §65B. This paper argues that
Article
Educational Activities as Service Under the Consumer Protection Act, 1986
by Axay Satagopan
The amenability of educational activities to the provisions of the Consumer Protection Act, 1986 is one of the quintessentially tumultuous areas of Indian consumer law, falling in the penumbral area thereof. The Indian Supreme Court has through a series of three decisions gradually decreased the amenability of educational institutes and the educational activities per- formed thereby from the purview of the 1986 Act, with its most recent order – P.T. Koshy v. Ellen Charitable Trust
Educational Activities as Service Under the Consumer Protection Act, 1986
by Axay Satagopan
The amenability of educational activities to the provisions of the Consumer Protection Act, 1986 is one of the quintessentially tumultuous areas of Indian consumer law, falling in the penumbral area thereof. The Indian Supreme Court has through a series of three decisions gradually decreased the amenability of educational institutes and the educational activities per- formed thereby from the purview of the 1986 Act, with its most recent order – P.T. Koshy v. Ellen Charitable Trust
Volume 7 Issue 3-4
Editorial Note
Editorial Note
by NUJS Law Review
Through the field of interdisciplinary studies, scholars have attempted to identify a nexus between the law and other areas of research. This is largely an endeavour which seeks to tangibly connect different aspects of human life and society to that which governs them - the law. This has been exemplified by the rise of ‘law ands’, which in turn has significantly contributed to the manner in which legal research and academia is conducted. This interdisciplinary
Editorial Note
by NUJS Law Review
Through the field of interdisciplinary studies, scholars have attempted to identify a nexus between the law and other areas of research. This is largely an endeavour which seeks to tangibly connect different aspects of human life and society to that which governs them - the law. This has been exemplified by the rise of ‘law ands’, which in turn has significantly contributed to the manner in which legal research and academia is conducted. This interdisciplinary
Article
The Parens Patriae Role of the Courts in the Matter of Public Trusts under §92 of the Civil Procedure Code: Expectations, Contributions, and Limitations
by P. Ishwara Bhat
The discourse on public trusts in India has been ridden with contradictions. In the absence of any specific laws governing them, trusts, and more importantly, trustees, are more often than not faced with conundrums to which the law may not always have solutions. In this paper, I examine this jurisprudence on the subject of public trusts, and delve into why the Judiciary ought to assume the duties of parens patriae in protecting the rights of
The Parens Patriae Role of the Courts in the Matter of Public Trusts under §92 of the Civil Procedure Code: Expectations, Contributions, and Limitations
by P. Ishwara Bhat
The discourse on public trusts in India has been ridden with contradictions. In the absence of any specific laws governing them, trusts, and more importantly, trustees, are more often than not faced with conundrums to which the law may not always have solutions. In this paper, I examine this jurisprudence on the subject of public trusts, and delve into why the Judiciary ought to assume the duties of parens patriae in protecting the rights of
Article
Penalising Anti-Competitive Agreements and Abuse of Dominance
by P.K. Basu Majumdar
With the liberalisation of the economy and trade in India, the new competition law – the (Indian) Competition Act, 2002 – modelled after the European law on competition and the UN Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, decriminalised antitrust offences, but enhanced the limits of penalties for certain anti-competitive practices. This paper notes that the Competition Commission of India, which has the responsibility of enforcing the
Penalising Anti-Competitive Agreements and Abuse of Dominance
by P.K. Basu Majumdar
With the liberalisation of the economy and trade in India, the new competition law – the (Indian) Competition Act, 2002 – modelled after the European law on competition and the UN Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, decriminalised antitrust offences, but enhanced the limits of penalties for certain anti-competitive practices. This paper notes that the Competition Commission of India, which has the responsibility of enforcing the
Article
Notes Towards a Theory of Implied Powers in (Indian) Constitutional Law
by Arun Sagar
“Implied powers” pose difficult conceptual problems for legal scholars. They are invoked in many contexts and appear to comprise several distinct legal phenomena. Yet there is no clear understanding of what we mean by an “implied power” - apart from the very basic notion that it is not an express power – and of what forms it may take, and no existing theoretical framework that can help us in this respect. This article takes a
Notes Towards a Theory of Implied Powers in (Indian) Constitutional Law
by Arun Sagar
“Implied powers” pose difficult conceptual problems for legal scholars. They are invoked in many contexts and appear to comprise several distinct legal phenomena. Yet there is no clear understanding of what we mean by an “implied power” - apart from the very basic notion that it is not an express power – and of what forms it may take, and no existing theoretical framework that can help us in this respect. This article takes a
Article
Treatment of Non-Compete Clauses in M&A: Finally Clarifying the Indian Position
by Shivam Bhardwaj & Samyak Sibasish
Barring a few legitimate exceptions, most non-compete covenants have been frowned upon by the competition regulating agencies worldwide. While reaching a conclusion, the agencies look at, inter alia, the temporal and geographical impact of the clause in the business transfer agreements in a Merger & Acquisition transaction. Any agreement having the ultimate effect of stifling legitimate competition in the relevant domestic market is condoned by regulating agencies worldwide. The European and American position regarding the
Treatment of Non-Compete Clauses in M&A: Finally Clarifying the Indian Position
by Shivam Bhardwaj & Samyak Sibasish
Barring a few legitimate exceptions, most non-compete covenants have been frowned upon by the competition regulating agencies worldwide. While reaching a conclusion, the agencies look at, inter alia, the temporal and geographical impact of the clause in the business transfer agreements in a Merger & Acquisition transaction. Any agreement having the ultimate effect of stifling legitimate competition in the relevant domestic market is condoned by regulating agencies worldwide. The European and American position regarding the
Article
Ma Patrie, C’est La Langue Francaise- Linguistic Imperialism and Minority Language Rights in International Law?
by Kartik Tripathi
Orwell’s dystopian masterpiece, 1984, describes a society where the government manipulates the thought process of its subjects by forcing them to communicate in a watered-down version of English called ‘newspeak’, incapable of expressing ideas like ‘liberty’. While a causative function between language and thought process has been debunked in modern-day linguistics, it is a reality that legal systems across the world accord gratuitous value judgments to one of the most primordial facets of human identity
Ma Patrie, C’est La Langue Francaise- Linguistic Imperialism and Minority Language Rights in International Law?
by Kartik Tripathi
Orwell’s dystopian masterpiece, 1984, describes a society where the government manipulates the thought process of its subjects by forcing them to communicate in a watered-down version of English called ‘newspeak’, incapable of expressing ideas like ‘liberty’. While a causative function between language and thought process has been debunked in modern-day linguistics, it is a reality that legal systems across the world accord gratuitous value judgments to one of the most primordial facets of human identity
Article
A Case Against Delay as a Ground for Commutation of Death Sentences
by Zubin Dash & Shashank Singh
With the pronouncement of the judgments in Triveniben v. State of Gujarat, Mahendra Nath Das v. Union of India and Shatrughan Chauhan v. Union of India, the Supreme Court has assumed to itself a ‘post-mercy rejection’ jurisdiction. Within the constitutional framework, on being awarded death penalty, convicts may, after exhausting certain judicial remedies, approach the President or the Governor, who are constitutionally empowered to grant pardons and reprieves. We argue that this right has often
A Case Against Delay as a Ground for Commutation of Death Sentences
by Zubin Dash & Shashank Singh
With the pronouncement of the judgments in Triveniben v. State of Gujarat, Mahendra Nath Das v. Union of India and Shatrughan Chauhan v. Union of India, the Supreme Court has assumed to itself a ‘post-mercy rejection’ jurisdiction. Within the constitutional framework, on being awarded death penalty, convicts may, after exhausting certain judicial remedies, approach the President or the Governor, who are constitutionally empowered to grant pardons and reprieves. We argue that this right has often
Article
Granting Animal Rights under the Indian Constitution: A Misplaced Approach? An Analysis in light of Union of India v. A Nagraja
by Jessamine Therese Mathew & Ira Chadha-Sridhar
In May 2014, the Supreme Court of India delivered a sensational judgment banning certain bull-fighting practices. The Court, in its analysis, sought to bring animals under the protection of the rights discourse by stating that Article 21 of the Constitution of India could be applied to animal life. The Court stated that the term ‘life’ must be expansively interpreted. As animals form a crucial part of human beings’ environment, their rights must also be protected
Granting Animal Rights under the Indian Constitution: A Misplaced Approach? An Analysis in light of Union of India v. A Nagraja
by Jessamine Therese Mathew & Ira Chadha-Sridhar
In May 2014, the Supreme Court of India delivered a sensational judgment banning certain bull-fighting practices. The Court, in its analysis, sought to bring animals under the protection of the rights discourse by stating that Article 21 of the Constitution of India could be applied to animal life. The Court stated that the term ‘life’ must be expansively interpreted. As animals form a crucial part of human beings’ environment, their rights must also be protected
Volume 7 Issue 2
Article
Editorial Note
by NUJS Law Review
Derived from Latin roots, the term ‘censorship’ means “to estimate, rate, assess, to be of opinion”. It has historically been justified on grounds such as the protection of children from exposure to sexual or violent content, the preservation of culture, and maintenance of social stability. Given the expanse of the Internet, such drastic measures derive justification from the needs of national interest, the protection of intellectual property, curbing child pornography, and preventing cyber-espionage. In practice,
Editorial Note
by NUJS Law Review
Derived from Latin roots, the term ‘censorship’ means “to estimate, rate, assess, to be of opinion”. It has historically been justified on grounds such as the protection of children from exposure to sexual or violent content, the preservation of culture, and maintenance of social stability. Given the expanse of the Internet, such drastic measures derive justification from the needs of national interest, the protection of intellectual property, curbing child pornography, and preventing cyber-espionage. In practice,
Article
PUCL v. Union of India Revisited: Why India’s Surveillance Law Must Be Revised for the Digital Age
by Chaitanya Ramachandran
The Supreme Court’s 1996 judgment in People’s Union for Civil Liberties (PUCL) v. Union of India was a significant attempt to solve the problem of widespread telephone tapping, and its influence has been strongly felt in subsequent laws designed to balance the right to privacy against the state’s power to conduct surveillance. The safeguards against arbitrariness in the exercise of the state’s surveillance powers designed by the Court continue to apply in the Internet age.
PUCL v. Union of India Revisited: Why India’s Surveillance Law Must Be Revised for the Digital Age
by Chaitanya Ramachandran
The Supreme Court’s 1996 judgment in People’s Union for Civil Liberties (PUCL) v. Union of India was a significant attempt to solve the problem of widespread telephone tapping, and its influence has been strongly felt in subsequent laws designed to balance the right to privacy against the state’s power to conduct surveillance. The safeguards against arbitrariness in the exercise of the state’s surveillance powers designed by the Court continue to apply in the Internet age.
Article
An Analysis of the Modern Offence of Sedition
by Nivedita Saxena & Siddhartha Srivastava
Of all the laws that were inherited from the colonial regime in India, few have been as controversial as those related to seditious offences. Since independence, the law has been modified and interpreted to incorporate safe guards so it may withstand constitutional scrutiny. However, it still acts as an effective means to restrict free speech, and has been used by contemporary governments for reasons that are arguably similar to those of our former oppressive rulers.
An Analysis of the Modern Offence of Sedition
by Nivedita Saxena & Siddhartha Srivastava
Of all the laws that were inherited from the colonial regime in India, few have been as controversial as those related to seditious offences. Since independence, the law has been modified and interpreted to incorporate safe guards so it may withstand constitutional scrutiny. However, it still acts as an effective means to restrict free speech, and has been used by contemporary governments for reasons that are arguably similar to those of our former oppressive rulers.
Article
TRAI’s Quantitative Advertisement Regulation: Ensuring a Quality Viewing Experience or Regulatory Overreach?
by Sohini Chatterjee & Gauri Pillai
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
TRAI’s Quantitative Advertisement Regulation: Ensuring a Quality Viewing Experience or Regulatory Overreach?
by Sohini Chatterjee & Gauri Pillai
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
Article
Rationalising Architectural Censorship: Examining TRAI’s Recommendations on Cross Ownership of Media
by Shashank Singh & Aishwarya Gupta
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
Rationalising Architectural Censorship: Examining TRAI’s Recommendations on Cross Ownership of Media
by Shashank Singh & Aishwarya Gupta
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
Article
Gatekeeper Liability and Article 19(1)(a) of the Constitution of India
by Chinmayi Arun
This paper argues that access and free flow of information need to be seen as significant parts of our freedom of expression jurisprudence. In particular, it highlights the role played by information gatekeepers in the free circulation of information. Starting from Ranjit D. Udeshi v. State of Maharashtra, in which the strict liability of gatekeepers was used to restrict the circulation of obscene material, up to the current system for government-ordered blocking of content by
Gatekeeper Liability and Article 19(1)(a) of the Constitution of India
by Chinmayi Arun
This paper argues that access and free flow of information need to be seen as significant parts of our freedom of expression jurisprudence. In particular, it highlights the role played by information gatekeepers in the free circulation of information. Starting from Ranjit D. Udeshi v. State of Maharashtra, in which the strict liability of gatekeepers was used to restrict the circulation of obscene material, up to the current system for government-ordered blocking of content by
Article
Our Unchained Sexual Selves: The Case for the Liberty to Enjoy Pornography Privately
by Geetha Hariharan
The article provides a response to the writ petition pending before the Supreme Court in Kamlesh Vaswani v. Union of India, which seeks to ban pornography in its entirety. A problematic part of the petition is its prayer to criminalise private consumption of pornography as well as the prayer seeking that intermediaries ban pornography. Systematically critiquing the arguments presented in the petition, the author points out that most claims made in the petition are speculative
Our Unchained Sexual Selves: The Case for the Liberty to Enjoy Pornography Privately
by Geetha Hariharan
The article provides a response to the writ petition pending before the Supreme Court in Kamlesh Vaswani v. Union of India, which seeks to ban pornography in its entirety. A problematic part of the petition is its prayer to criminalise private consumption of pornography as well as the prayer seeking that intermediaries ban pornography. Systematically critiquing the arguments presented in the petition, the author points out that most claims made in the petition are speculative
Volume 7 Issue 1
Article
Editorial Note
by NUJS Law Review
In the plethora of legal writing available, judgments rendered by courts as well as articles written by law professors and students occupy a crucial position. However, the writing in both these branches of legal scholarship is riddled with certain flaws which have the deleterious effect of lowering the overall quality of legal scholarship. We intend to shed light on these systemic defects. Addressing the defects would be beneficial for litigants, lawyers, judges, law students, law
Editorial Note
by NUJS Law Review
In the plethora of legal writing available, judgments rendered by courts as well as articles written by law professors and students occupy a crucial position. However, the writing in both these branches of legal scholarship is riddled with certain flaws which have the deleterious effect of lowering the overall quality of legal scholarship. We intend to shed light on these systemic defects. Addressing the defects would be beneficial for litigants, lawyers, judges, law students, law
Other
Expansion and Protection of Fundamental Rights by Judicial Interpretation and Intervention
by Soli J. Sorabjee
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...
Expansion and Protection of Fundamental Rights by Judicial Interpretation and Intervention
by Soli J. Sorabjee
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...
Article
Discovering Dworkin in the Supreme Court of India: A Comparative Excursus
by Abhishek Sudhir
This paper sets out to ascertain whether Ronald Dworkin’s jurisprudence has had an influence on the Supreme Court of India. Dworkin’s approach to constitutional adjudication is characterised by judges exercising a more judgmental and less mechanical role in interpreting the Constitution. This paper undertakes a comparative excursus by looking at a few landmark Indian cases where reliance has been placed on judgments from the United States of America that have been the subject of Dworkinian
Discovering Dworkin in the Supreme Court of India: A Comparative Excursus
by Abhishek Sudhir
This paper sets out to ascertain whether Ronald Dworkin’s jurisprudence has had an influence on the Supreme Court of India. Dworkin’s approach to constitutional adjudication is characterised by judges exercising a more judgmental and less mechanical role in interpreting the Constitution. This paper undertakes a comparative excursus by looking at a few landmark Indian cases where reliance has been placed on judgments from the United States of America that have been the subject of Dworkinian
Article
Circumventing Sankirtan: Public Spaces, Religious Solicitations and Decisions of the United States Supreme Court
by Amitava Ray
In this paper, I examine American juridical positions on the use of public spaces for religious propagation and solicitation. While the Hare Krishna movement’s ritual of sankirtan has been researched, legal reasoning on the right to solicit donations and preach in publicly accessible spaces that involve economic activities has been less studied. By analyzing these legal positions, this paper offers a glimpse of legal consciousness on the use of public spaces for a non-mainstream religious
Circumventing Sankirtan: Public Spaces, Religious Solicitations and Decisions of the United States Supreme Court
by Amitava Ray
In this paper, I examine American juridical positions on the use of public spaces for religious propagation and solicitation. While the Hare Krishna movement’s ritual of sankirtan has been researched, legal reasoning on the right to solicit donations and preach in publicly accessible spaces that involve economic activities has been less studied. By analyzing these legal positions, this paper offers a glimpse of legal consciousness on the use of public spaces for a non-mainstream religious
Article
Confessions, Police Officers and Section 25 of the Indian Evidence Act
by Abhinav Sekhri
The Indian Evidence Act, 1872, made significant derogations from common law on the topic of confessions. § 25, which makes confessions to police officers inadmissible, is an illustration of this. It has been regularly examined by courts for interpretative and clarificatory purposes. Thus, a vast body of judicial dicta today exists on how to construe this provision. Sifting through this, one notices persistent confusion with respect to a precondition for applying this exclusionary rule, i.e.,
Confessions, Police Officers and Section 25 of the Indian Evidence Act
by Abhinav Sekhri
The Indian Evidence Act, 1872, made significant derogations from common law on the topic of confessions. § 25, which makes confessions to police officers inadmissible, is an illustration of this. It has been regularly examined by courts for interpretative and clarificatory purposes. Thus, a vast body of judicial dicta today exists on how to construe this provision. Sifting through this, one notices persistent confusion with respect to a precondition for applying this exclusionary rule, i.e.,
Volume 6 Issue 4
Article
Constitutionality of Section 377, Indian Penal Code – A Case of Misplaced Hope in Courts
by M.P. Singh
Amidst strong reactions against the decision of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation, this paper argues that the Court has done all that it is expected to do under the Constitution and the law established under it. The respondents, especially the Union of India, have unsuccessfully asked it to do what the Constitution does not expect it to do. The remedy against § 377 lies with the people through their Parliament,
Constitutionality of Section 377, Indian Penal Code – A Case of Misplaced Hope in Courts
by M.P. Singh
Amidst strong reactions against the decision of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation, this paper argues that the Court has done all that it is expected to do under the Constitution and the law established under it. The respondents, especially the Union of India, have unsuccessfully asked it to do what the Constitution does not expect it to do. The remedy against § 377 lies with the people through their Parliament,
Article
Lost in Appeal: The Downward Spiral from Naz to Koushal
by Siddharth Narrain
The Supreme Court in Suresh Kumar Koushal v. Naz Foundation has missed an opportunity to build on the earlier Delhi High Court decision and shape rights jurisprudence in a creative and rights enhancing manner. Instead it has reverted to a restrictive reading of the law that is full of logical and analytical inconsistencies and the incorrect use of precedent. This demonstrates an unwillingness to appreciate and assess the compelling evidence that was placed before it.
Lost in Appeal: The Downward Spiral from Naz to Koushal
by Siddharth Narrain
The Supreme Court in Suresh Kumar Koushal v. Naz Foundation has missed an opportunity to build on the earlier Delhi High Court decision and shape rights jurisprudence in a creative and rights enhancing manner. Instead it has reverted to a restrictive reading of the law that is full of logical and analytical inconsistencies and the incorrect use of precedent. This demonstrates an unwillingness to appreciate and assess the compelling evidence that was placed before it.
Article
The Quality of Mercy, Strained: Compassion, Empathy and Other Irrelevant Considerations in Koushal v. Naz
by Danish Sheikh
The Supreme Court of India’s decision in Suresh Kumar Koushal v. Naz Foundation, besides lacking in legal logic, also displayed a marked absence of another essential judicial quality: that of empathy. It is also a virtue that was in abundant display before the Delhi High Court both during the Naz Foundation hearings and then again in the text of the judgment. In tandem with the Supreme Court’s lack of empathy was an attempt to annul
The Quality of Mercy, Strained: Compassion, Empathy and Other Irrelevant Considerations in Koushal v. Naz
by Danish Sheikh
The Supreme Court of India’s decision in Suresh Kumar Koushal v. Naz Foundation, besides lacking in legal logic, also displayed a marked absence of another essential judicial quality: that of empathy. It is also a virtue that was in abundant display before the Delhi High Court both during the Naz Foundation hearings and then again in the text of the judgment. In tandem with the Supreme Court’s lack of empathy was an attempt to annul
Article
Forswearing “Foreign Moods, Fads Or Fashions”? – Contextualising The Refusal Of Koushal To Engage With Foreign Law
by Arun K. Thiruvengadam
The judgment of the Supreme Court in Suresh Kumar Koushal v. NazFoundation engages only minimally with foreign and comparative law. This is in stark contrast to the Delhi High Court’s judgment in Naz Foundation v. Union of India that was consequently overruled. This essay focuses ont his lack of engagement with foreign law in Koushal from three perspectives. First, it critically examines the reasons advanced and the domestic precedents cited in Koushal to justify the
Forswearing “Foreign Moods, Fads Or Fashions”? – Contextualising The Refusal Of Koushal To Engage With Foreign Law
by Arun K. Thiruvengadam
The judgment of the Supreme Court in Suresh Kumar Koushal v. NazFoundation engages only minimally with foreign and comparative law. This is in stark contrast to the Delhi High Court’s judgment in Naz Foundation v. Union of India that was consequently overruled. This essay focuses ont his lack of engagement with foreign law in Koushal from three perspectives. First, it critically examines the reasons advanced and the domestic precedents cited in Koushal to justify the
Article
Love And Sex In The Time Of Section 377: Fantasising The ‘Other’, The ‘Natural’ And The ‘Normal’
by Esha Shah
The recent protests against the Supreme Court verdict on the constitutionality of § 377 of the Indian Penal Code, 1860 were based on the argument that matters of sexuality between consenting individuals is a matter of private orientation and choice and hence the state has no right to intervene and criminalize them. While I oppose the state’s right to intervene in consensual sexual relations, I want to argue against pushing matters of sexuality into the
Love And Sex In The Time Of Section 377: Fantasising The ‘Other’, The ‘Natural’ And The ‘Normal’
by Esha Shah
The recent protests against the Supreme Court verdict on the constitutionality of § 377 of the Indian Penal Code, 1860 were based on the argument that matters of sexuality between consenting individuals is a matter of private orientation and choice and hence the state has no right to intervene and criminalize them. While I oppose the state’s right to intervene in consensual sexual relations, I want to argue against pushing matters of sexuality into the
Article
The Heteronormative State and The Right To Health In India
by Dipika Jain & Kimberly Rhoten
The Supreme Court of India recently upheld the constitutionality of § 377of the Indian Penal Code and thus recriminalized adult consensual private same sex conduct. In doing so, the judgment overturned a four-year old Delhi High Court decision finding § 377 unconstitutional on the basis that the Section violated the rights to life and personal liberty of lesbian gay bisexual and transgender persons living in India. Evidence shows that antisodomy and same sex criminalization laws,
The Heteronormative State and The Right To Health In India
by Dipika Jain & Kimberly Rhoten
The Supreme Court of India recently upheld the constitutionality of § 377of the Indian Penal Code and thus recriminalized adult consensual private same sex conduct. In doing so, the judgment overturned a four-year old Delhi High Court decision finding § 377 unconstitutional on the basis that the Section violated the rights to life and personal liberty of lesbian gay bisexual and transgender persons living in India. Evidence shows that antisodomy and same sex criminalization laws,
Volume 6 Issue 3
Article
Regulation of Election Campaign Finance in India: Making Elections Truly Free and Fair
by Sidhant Chandalia & Anirudh Lekhi
The essence of any democratic system is the healthy functioning of political parties and, consequently, free and fair elections. Conducting fair elections requires not only a legal framework and a transparent electoral process, but an institutional structure regulating campaign finance which adequately ensures that governance caters to the welfare of general public and not special interests. This is true not only for India but for any other democratic country as well. This paper recognises the
Regulation of Election Campaign Finance in India: Making Elections Truly Free and Fair
by Sidhant Chandalia & Anirudh Lekhi
The essence of any democratic system is the healthy functioning of political parties and, consequently, free and fair elections. Conducting fair elections requires not only a legal framework and a transparent electoral process, but an institutional structure regulating campaign finance which adequately ensures that governance caters to the welfare of general public and not special interests. This is true not only for India but for any other democratic country as well. This paper recognises the
Article
The Future of the Similar Fact Rule in an Indian Evidence Act Jurisdiction: Singapore
by Chen Siyuan
In yet another attempt to bridge the gap between the rules of an antiquated statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence. While new provisions were introduced to act as a check against abuse, oddly some similar fact provisions were left intact. This paper explains why the 2012 amendments have rendered the future of these enactments very uncertain.
The Future of the Similar Fact Rule in an Indian Evidence Act Jurisdiction: Singapore
by Chen Siyuan
In yet another attempt to bridge the gap between the rules of an antiquated statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence. While new provisions were introduced to act as a check against abuse, oddly some similar fact provisions were left intact. This paper explains why the 2012 amendments have rendered the future of these enactments very uncertain.
Article
Legal Framework for the Parliamentary Oversight of the Executive in India
by Anirudh Burman
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,
Legal Framework for the Parliamentary Oversight of the Executive in India
by Anirudh Burman
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,
Article
Demystifying the Environmental Clearance Process in India
by Shibani Ghosh
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
Demystifying the Environmental Clearance Process in India
by Shibani Ghosh
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
Article
Taking Patentability Requirement a Notch Higher: A Law and Economics Perspective of “Therapeutic Efficacy”
by Sadhvi Sood & Aditya Ayachit
In 2013, the Supreme Court of India gave finality to the decision of Madras High Court by narrowly construing ‘efficacy’ under §3(d) of the Patent Act, 1970 as ‘therapeutic efficacy’. This paper comprehensively deliberates upon the impacts of ‘therapeutic efficacy’ in a law and economics frame- work. The focus lies on the patent breadth or scope and its link with such an interpretation, in light of the indigenous pharmaceutical industry’s dependence on incremental innovation. Finally,
Taking Patentability Requirement a Notch Higher: A Law and Economics Perspective of “Therapeutic Efficacy”
by Sadhvi Sood & Aditya Ayachit
In 2013, the Supreme Court of India gave finality to the decision of Madras High Court by narrowly construing ‘efficacy’ under §3(d) of the Patent Act, 1970 as ‘therapeutic efficacy’. This paper comprehensively deliberates upon the impacts of ‘therapeutic efficacy’ in a law and economics frame- work. The focus lies on the patent breadth or scope and its link with such an interpretation, in light of the indigenous pharmaceutical industry’s dependence on incremental innovation. Finally,
Article
The Divergence Between International Law and Indian Law Applicable in Counter Piracy Measures: Analysed Through the Decision of the Republic of Italy v. Union of India
by Arthad Kurlekar & Maithili Pai
The case of Republic of Italy v. Union of India, where two Italian marines were being tried for allegedly shooting two Indian fishermen, came up be- fore the Supreme Court of India in 2013. The case sparked a diplomatic row between the two countries, primarily due to a strong difference of opinion with regard to the question of which of the two countries have the legal jurisdiction to try the case. While the Supreme Court
The Divergence Between International Law and Indian Law Applicable in Counter Piracy Measures: Analysed Through the Decision of the Republic of Italy v. Union of India
by Arthad Kurlekar & Maithili Pai
The case of Republic of Italy v. Union of India, where two Italian marines were being tried for allegedly shooting two Indian fishermen, came up be- fore the Supreme Court of India in 2013. The case sparked a diplomatic row between the two countries, primarily due to a strong difference of opinion with regard to the question of which of the two countries have the legal jurisdiction to try the case. While the Supreme Court
Article
Inconsistent And Unclear: The Supreme Court Of India On Bail
by Vrinda Bhandari
This paper seeks to analyse the law in respect of bail and pre-trial detention in India, testing judicial precedent on the anvil of the presumption of innocence with specific reference to two contrasting decisions of the Supreme Court, earlier in Pappu Yadav v. Central Bureau of Investigation and more recently in the 2G case in Sanjay Chandra v. Central Bureau of Investigation. It focuses only on conditions of bail set forth in the Code of
Inconsistent And Unclear: The Supreme Court Of India On Bail
by Vrinda Bhandari
This paper seeks to analyse the law in respect of bail and pre-trial detention in India, testing judicial precedent on the anvil of the presumption of innocence with specific reference to two contrasting decisions of the Supreme Court, earlier in Pappu Yadav v. Central Bureau of Investigation and more recently in the 2G case in Sanjay Chandra v. Central Bureau of Investigation. It focuses only on conditions of bail set forth in the Code of
Article
Taxation Of Notional Income: A Comparison Of Tax Regimes
by Shreya Jain
Notional income is the flow of satisfactions from goods owned and used by the taxpayer. This paper explores the Indian and American approaches to taxation of notional income. It is argued that the Indian approach to taxation of notional income exhibits a distinct theoretical incoherence. Indian courts have refrained from allowing taxation of notional income, unless the same is expressly provided for in the Income Tax Act. This approach has resulted in divergent judicial reasoning
Taxation Of Notional Income: A Comparison Of Tax Regimes
by Shreya Jain
Notional income is the flow of satisfactions from goods owned and used by the taxpayer. This paper explores the Indian and American approaches to taxation of notional income. It is argued that the Indian approach to taxation of notional income exhibits a distinct theoretical incoherence. Indian courts have refrained from allowing taxation of notional income, unless the same is expressly provided for in the Income Tax Act. This approach has resulted in divergent judicial reasoning
Volume 6 Issue 2
Article
Post-Modern Constitutionalism in Asia: Perspectives from the Indian Experience
by Domenico Amirante
This paper is based on comparative constitutional law, with significant emphasis on the judicial decisions and laws formulated by the legislature in India. It discusses the path-breaking developments in the Indian legal system which strike at the root of the primitive notion that traditional ethnology and democracy are integrally antithetical to each other. The fact that the Indian Constitution provides for group as well as individual rights is highlighted as a revolutionary feature of India’s
Post-Modern Constitutionalism in Asia: Perspectives from the Indian Experience
by Domenico Amirante
This paper is based on comparative constitutional law, with significant emphasis on the judicial decisions and laws formulated by the legislature in India. It discusses the path-breaking developments in the Indian legal system which strike at the root of the primitive notion that traditional ethnology and democracy are integrally antithetical to each other. The fact that the Indian Constitution provides for group as well as individual rights is highlighted as a revolutionary feature of India’s
Article
The Independent Director: Has it been Indianised Enough?
by Madhuryya Arindam
This paper looks at the institution of the independent director as a corporate governance tool, and assesses its effectiveness in the Indian context. This analysis assumes significance in light of the fact that the independent director, i.e., a company director who has no ties with the company’s management, emerged in the US against a completely different backdrop, and to tackle a completely different problem than what afflicts Indian listed companies. The problem that the independent
The Independent Director: Has it been Indianised Enough?
by Madhuryya Arindam
This paper looks at the institution of the independent director as a corporate governance tool, and assesses its effectiveness in the Indian context. This analysis assumes significance in light of the fact that the independent director, i.e., a company director who has no ties with the company’s management, emerged in the US against a completely different backdrop, and to tackle a completely different problem than what afflicts Indian listed companies. The problem that the independent
Article
I Object Your Honour! The Moot Court Paradigm is Mootable
by Shreya Atrey
This paper critically examines moot court as a pedagogic tool to introduce law students to judicial processes. The purpose is to evaluate whether mooting, as a non-mandatory part of legal education in India, is successful in creating a cadre of competent and creative lawyers in the Bar. There are two inquiries which inform this endeavour—first, the normative structure of moot courts and the inherent limitations of it; second, the experiential flaws of mooting in the
I Object Your Honour! The Moot Court Paradigm is Mootable
by Shreya Atrey
This paper critically examines moot court as a pedagogic tool to introduce law students to judicial processes. The purpose is to evaluate whether mooting, as a non-mandatory part of legal education in India, is successful in creating a cadre of competent and creative lawyers in the Bar. There are two inquiries which inform this endeavour—first, the normative structure of moot courts and the inherent limitations of it; second, the experiential flaws of mooting in the
Article
Intellectual Property: Protecting The Intellect or The Property?
by Pervin Rusi Taleyarkhan
A careful consideration of the fundamentals of the mind’s creative processes shows us that arriving at an intellectual property (IP) is effectively like issuing a ‘share’ in IP’s business of exploiting knowledge and information. In consonance with Mr. Buffet’s philosophy that price of a company’s share should not be considered indicative of the value of the company, the process of creating an IP is not an appropriate indicator of the value of the IP. Therefore,
Intellectual Property: Protecting The Intellect or The Property?
by Pervin Rusi Taleyarkhan
A careful consideration of the fundamentals of the mind’s creative processes shows us that arriving at an intellectual property (IP) is effectively like issuing a ‘share’ in IP’s business of exploiting knowledge and information. In consonance with Mr. Buffet’s philosophy that price of a company’s share should not be considered indicative of the value of the company, the process of creating an IP is not an appropriate indicator of the value of the IP. Therefore,
Article
Cancellation of Telecom Licenses in the 2G Case: Claim for Indirect Expropriation?
by Sanya Malhotra
This paper focuses on the repercussions of the controversial 2G judgment, which resulted in cancellation of licenses held by telecom companies. Aggressive action is being undertaken by irate foreign companies in joint ventures with Indian telecom license-holder companies. Caught in an imbroglio of legal actions, most of the foreign investors have decided to resort to every possible legal measure to protect their investment in the Indian telecom sector. The paper examines whether the Supreme Court
Cancellation of Telecom Licenses in the 2G Case: Claim for Indirect Expropriation?
by Sanya Malhotra
This paper focuses on the repercussions of the controversial 2G judgment, which resulted in cancellation of licenses held by telecom companies. Aggressive action is being undertaken by irate foreign companies in joint ventures with Indian telecom license-holder companies. Caught in an imbroglio of legal actions, most of the foreign investors have decided to resort to every possible legal measure to protect their investment in the Indian telecom sector. The paper examines whether the Supreme Court
Book Review
Constitutional Identity, Gary Jeffrey Jacobsohn, Harvard University Press, Cambridge, Massachusetts. London, England, 2010. Pages XVII + 1 – 368. Price Not Stated
by Prof. MP Singh
Admitting that “identity can be a complicated matter”, Amartya Sen tells us: “The illusion of destiny, particularly about some singular identity or other (and their alleged implications), nurtures violence in the world through omissions as well as commissions.” Directly relevant to the core theme of the book under review is his further remark:“In fact, a major source of potential conflict in the contemporary world is the presumption that people can be uniquely categorized based on
Constitutional Identity, Gary Jeffrey Jacobsohn, Harvard University Press, Cambridge, Massachusetts. London, England, 2010. Pages XVII + 1 – 368. Price Not Stated
by Prof. MP Singh
Admitting that “identity can be a complicated matter”, Amartya Sen tells us: “The illusion of destiny, particularly about some singular identity or other (and their alleged implications), nurtures violence in the world through omissions as well as commissions.” Directly relevant to the core theme of the book under review is his further remark:“In fact, a major source of potential conflict in the contemporary world is the presumption that people can be uniquely categorized based on
Editorial Note
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
by NUJS Law Review
The monsoon session of the Parliament this year has been touted to be the harbinger of social reforms, as it witnessed the passing of several landmark legislations in quick succession. Noteworthy in this regard are legislations relating to food security, land acquisition and eradication of manual scavenging. The Parliament also passed a law codifying the rights and protecting the livelihood of street vendors, which is a very crucial legislation in the informal labour sector. What needs to be examined is whether
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
by NUJS Law Review
The monsoon session of the Parliament this year has been touted to be the harbinger of social reforms, as it witnessed the passing of several landmark legislations in quick succession. Noteworthy in this regard are legislations relating to food security, land acquisition and eradication of manual scavenging. The Parliament also passed a law codifying the rights and protecting the livelihood of street vendors, which is a very crucial legislation in the informal labour sector. What needs to be examined is whether
Volume 6 Issue 1
Editorial Note
Editorial Note
by NUJS Law Review
Soon after the Delhi rape case that took place in December 2012, the issue of sexual harassment gained prominence from its hitherto silence. A series of complaints of sexual harassment against retired Supreme Court Judges and an Editor of a magazine involved in investigative journalism evoked our legal and social consciousness towards sexual harassment...
Editorial Note
by NUJS Law Review
Soon after the Delhi rape case that took place in December 2012, the issue of sexual harassment gained prominence from its hitherto silence. A series of complaints of sexual harassment against retired Supreme Court Judges and an Editor of a magazine involved in investigative journalism evoked our legal and social consciousness towards sexual harassment...
Convocation Speech
Convocation Address
by Prof. Dr. Partha Chatterjee
The Chancellor and members of the General Council have done me a great honour by inviting me to be the Chief Guest at the Seventh Convocation of The West Bengal National University of Juridical Sciences. As a lifelong resident of Kolkata, and a member of the academic community of the city, I have watched with some pride the nation-wide reputation that NUJS has achieved in the last decade or so as a premier institution of
Convocation Address
by Prof. Dr. Partha Chatterjee
The Chancellor and members of the General Council have done me a great honour by inviting me to be the Chief Guest at the Seventh Convocation of The West Bengal National University of Juridical Sciences. As a lifelong resident of Kolkata, and a member of the academic community of the city, I have watched with some pride the nation-wide reputation that NUJS has achieved in the last decade or so as a premier institution of
Article
On India's Postcolonial Engagement with the Rule of Law
by Moiz Tundawala
By rescuing the rule of law from ideological abuse, this paper explores in its postcolonial career in India, continuities with and distinctiveness from the colonial experience. Specifically focusing on the jurisprudence of the Supreme Court on civil liberties, equality and social rights, it claims that ideas of the exceptional and of the outsider have been integral to the modern rule of law project, and that marked continuities can be noticed with the colonial past in
On India's Postcolonial Engagement with the Rule of Law
by Moiz Tundawala
By rescuing the rule of law from ideological abuse, this paper explores in its postcolonial career in India, continuities with and distinctiveness from the colonial experience. Specifically focusing on the jurisprudence of the Supreme Court on civil liberties, equality and social rights, it claims that ideas of the exceptional and of the outsider have been integral to the modern rule of law project, and that marked continuities can be noticed with the colonial past in
Article
Business Method Patents: An Oxymoron?
by Aparajita Lath & Shivam Bhardwaj
The practice of granting patents to business methods is antithetical to the core concepts of intellectual property rights. Patent protection is afforded to novel creations which have industrial and technical application. A business method can be understood as an effective method of conducting commercial transactions. These methods are a result of business instinct and creativity. An external ‘patent’ incentive is not required to motivate the creation of such methods. Competition and first mover advantage are
Business Method Patents: An Oxymoron?
by Aparajita Lath & Shivam Bhardwaj
The practice of granting patents to business methods is antithetical to the core concepts of intellectual property rights. Patent protection is afforded to novel creations which have industrial and technical application. A business method can be understood as an effective method of conducting commercial transactions. These methods are a result of business instinct and creativity. An external ‘patent’ incentive is not required to motivate the creation of such methods. Competition and first mover advantage are
Article
From Professional Responsibility to “Business of Law”: Regulating the Ethical Implications of Legal Process Outsourcing
by Pritika Rai Advani & Debkanya Naskar
The global business environment is increasingly concerned with reducing cost and increasing efficiency and legal process outsourcing (‘LPO’) is proving to be the perfect vehicle to achieve this. India has emerged as the most favourable destination amongst legal outsourcers as its developing economy, convenient time-zone, and large population of English-speaking and common law trained lawyers create unmatched cost incentives. Furthermore, LPO services are no longer restricted to providing administrative and support services as their role
From Professional Responsibility to “Business of Law”: Regulating the Ethical Implications of Legal Process Outsourcing
by Pritika Rai Advani & Debkanya Naskar
The global business environment is increasingly concerned with reducing cost and increasing efficiency and legal process outsourcing (‘LPO’) is proving to be the perfect vehicle to achieve this. India has emerged as the most favourable destination amongst legal outsourcers as its developing economy, convenient time-zone, and large population of English-speaking and common law trained lawyers create unmatched cost incentives. Furthermore, LPO services are no longer restricted to providing administrative and support services as their role
Article
Analyzing the Implications of Water Privatization: Reorienting the Misplaced Debate
by Pankti Vora, Maneka Khanna & Arthad Kurlekar
The recent public outcry against the Delhi Jal Board’s proposed public private partnership model has rekindled the contentious debate around water privatization and its impact on the urban poor. Several grass root level organisations and activists have coalesced to form the Water Privatization-Commercialization Committee that is actively opposing the project under the patronage of Retired Justice Rajinder Sachar. In this context, this paper seeks to explore the implications of privatization in the financing and management
Analyzing the Implications of Water Privatization: Reorienting the Misplaced Debate
by Pankti Vora, Maneka Khanna & Arthad Kurlekar
The recent public outcry against the Delhi Jal Board’s proposed public private partnership model has rekindled the contentious debate around water privatization and its impact on the urban poor. Several grass root level organisations and activists have coalesced to form the Water Privatization-Commercialization Committee that is actively opposing the project under the patronage of Retired Justice Rajinder Sachar. In this context, this paper seeks to explore the implications of privatization in the financing and management
Book Review
Intellectual Property Rights: Infringement and Remedies, Ananth Padmanabhan, Lexis Nexis- Butterworths.
by Yogesh Pai
At the heart of intellectual property (‘IP’) law are the ‘hard’ questions on infringement and remedies. Complex legal matters concerning IP validity (exclusion of subject-matter, qualification requirements), determination of scope of rights, availability of defences etc. are more likely to be determined when IP infringement suits seeking statutory and equitable remedies are initiated by market players.1 Today, Indian courts have to grapple with these issues on an ever-increasing scale. A focused legal commentary on the nuances of IP law has been much
Intellectual Property Rights: Infringement and Remedies, Ananth Padmanabhan, Lexis Nexis- Butterworths.
by Yogesh Pai
At the heart of intellectual property (‘IP’) law are the ‘hard’ questions on infringement and remedies. Complex legal matters concerning IP validity (exclusion of subject-matter, qualification requirements), determination of scope of rights, availability of defences etc. are more likely to be determined when IP infringement suits seeking statutory and equitable remedies are initiated by market players.1 Today, Indian courts have to grapple with these issues on an ever-increasing scale. A focused legal commentary on the nuances of IP law has been much
Other
Contribution of the Supreme Court to the Growth of Democracy in India
by Chief Justice (Retd.) S Rajendra Babu
I consider it a great privilege and honour to speak in memory of D.D. Basu. Justice M.N. Venkatachalaiah and Mr. K.K. Venugopal, who delivered lectures in previous years in the same forum, have elaborately referred to the life and works of D.D. Basu. Thus to avoid redundancy, I will refrain from reiterating what they have already elucidated on. I have not known D.D. Basu personally, but I have great admiration for the commentaries he has
Contribution of the Supreme Court to the Growth of Democracy in India
by Chief Justice (Retd.) S Rajendra Babu
I consider it a great privilege and honour to speak in memory of D.D. Basu. Justice M.N. Venkatachalaiah and Mr. K.K. Venugopal, who delivered lectures in previous years in the same forum, have elaborately referred to the life and works of D.D. Basu. Thus to avoid redundancy, I will refrain from reiterating what they have already elucidated on. I have not known D.D. Basu personally, but I have great admiration for the commentaries he has
Article
Situating The Right To Work In International Human Rights Law: An Agenda For The Protection Of Refugees And Asylum-Seekers
by Saurabh Bhattacharjee
The right to work has occupied a central place in the human rights discourse. Yet, a vast majority of the world population survives without meaningful employment. This crisis of employment is more acute among vulnerable communities like refugees and asylum-seekers who are often systematically denied access to the labour market and opportunities for self-employment, thus accentuating the trauma of forced migration. From this vantage point, this paper examines the status of the right to work
Situating The Right To Work In International Human Rights Law: An Agenda For The Protection Of Refugees And Asylum-Seekers
by Saurabh Bhattacharjee
The right to work has occupied a central place in the human rights discourse. Yet, a vast majority of the world population survives without meaningful employment. This crisis of employment is more acute among vulnerable communities like refugees and asylum-seekers who are often systematically denied access to the labour market and opportunities for self-employment, thus accentuating the trauma of forced migration. From this vantage point, this paper examines the status of the right to work
Article
Intervention Before The International Court of Justice – A Critical Examination of the Court's Recent Decision in Germany v. Italy
by Deepak Raju & Blerina Jasari
The International Court of Justice, in the Jurisdictional Immunities of the State: Germany v. Italy, had an opportunity to elaborate upon what qualified as an ‘interest of a legal nature’ to permit intervention in a proceeding before the Court. The argument put forth by the party seeking permission to intervene, i.e., Greece, was that a judgment favouring German claims may potentially affect its legal interests and rights. Greece was granted the permission to intervene. Yet, the Court omitted to answer what
Intervention Before The International Court of Justice – A Critical Examination of the Court's Recent Decision in Germany v. Italy
by Deepak Raju & Blerina Jasari
The International Court of Justice, in the Jurisdictional Immunities of the State: Germany v. Italy, had an opportunity to elaborate upon what qualified as an ‘interest of a legal nature’ to permit intervention in a proceeding before the Court. The argument put forth by the party seeking permission to intervene, i.e., Greece, was that a judgment favouring German claims may potentially affect its legal interests and rights. Greece was granted the permission to intervene. Yet, the Court omitted to answer what
Article
Understanding the Organization For Economic Cooperation and Development Anti Bribery Convention for India
by Varun Chablani
Corruption is one of the worst evils to have plagued the country and the world today. In order to tackle this problem, a number of international conventions dealing with matters of anti-corruption have emerged. The one which receives special attention in this paper is the Organization for Economic Cooperation and Development Anti Bribery Convention. This Convention aims at ending corruption by multinationals towards foreign public officials. Even though India is not a signatory to this
Understanding the Organization For Economic Cooperation and Development Anti Bribery Convention for India
by Varun Chablani
Corruption is one of the worst evils to have plagued the country and the world today. In order to tackle this problem, a number of international conventions dealing with matters of anti-corruption have emerged. The one which receives special attention in this paper is the Organization for Economic Cooperation and Development Anti Bribery Convention. This Convention aims at ending corruption by multinationals towards foreign public officials. Even though India is not a signatory to this
Article
NATCO Pharma Ltd v. Bayer Corporation and the Compulsory Licensing Regime in Indian
by Mansi Sood
The access versus profit debate is a worldwide phenomenon in the pharmaceutical industry and India is no exception. In recent times however, India’s increasingly visible, pro-access stance has developed new teeth. In a spate of patent cases, the judiciary has made it clear that public interest is of prime importance and India will not tolerate the exploitation of its masses by drug giants looking to reap benefits. It was in this vein that the IPAB
NATCO Pharma Ltd v. Bayer Corporation and the Compulsory Licensing Regime in Indian
by Mansi Sood
The access versus profit debate is a worldwide phenomenon in the pharmaceutical industry and India is no exception. In recent times however, India’s increasingly visible, pro-access stance has developed new teeth. In a spate of patent cases, the judiciary has made it clear that public interest is of prime importance and India will not tolerate the exploitation of its masses by drug giants looking to reap benefits. It was in this vein that the IPAB
Volume 5 Issue 4
Other
The Copyright (Amendment) Act 2012: A Fair Balance?
by Shamnad Basheer
With the recent passage of the Copyright (Amendment) Act 2012, India traversed yet another milestone in her intellectual property (IP) history. As with most other amendments, this too came with its fair share of controversy and contestations. Indeed, in many ways, it played out like a Bollywood script, complete with larger than life heroes, melodramatic plots, twists and shakes at every turn that required one to suspend logic, routine song and dance sequences and a
The Copyright (Amendment) Act 2012: A Fair Balance?
by Shamnad Basheer
With the recent passage of the Copyright (Amendment) Act 2012, India traversed yet another milestone in her intellectual property (IP) history. As with most other amendments, this too came with its fair share of controversy and contestations. Indeed, in many ways, it played out like a Bollywood script, complete with larger than life heroes, melodramatic plots, twists and shakes at every turn that required one to suspend logic, routine song and dance sequences and a
Article
The Background Score to the Copyright (Amendment) Act, 2012
by Prashant Reddy T.
The Copyright (Amendment) Act, 2012 stands to correct the legislative imbalance of rights assigned to composers and lyricists and is a path-breaking remedy for the copyright regime in India. The build-up to the amendment demonstrates the undying efforts of the otherwise passive composers and lyricists. In order to understand the context of the amendment and the manner in which these new provisions are likely to be interpreted by courts, the paper attempts to appreciate Mr.
The Background Score to the Copyright (Amendment) Act, 2012
by Prashant Reddy T.
The Copyright (Amendment) Act, 2012 stands to correct the legislative imbalance of rights assigned to composers and lyricists and is a path-breaking remedy for the copyright regime in India. The build-up to the amendment demonstrates the undying efforts of the otherwise passive composers and lyricists. In order to understand the context of the amendment and the manner in which these new provisions are likely to be interpreted by courts, the paper attempts to appreciate Mr.
Article
The Touch of ‘Jadoo’ in the Copyright (Amendment) Act, 2012: Assessment of the Amendments to Sections 17, 18 and 19
by Udit Sood
The Copyright (Amendment) Act 2012 resulted, in part, from concerted lobbying by composers/lyricists to foster a more equitable sharing of royalties by Bollywood producers and others in the entertainment business. The efforts resulted in the recognition of their right to equitable sharing in the royalties, primarily in the form of amendments to § 17, §18, and §19. This paper seeks to assess these provisions and their likely impact. By highlighting the existing lacunae in law,
The Touch of ‘Jadoo’ in the Copyright (Amendment) Act, 2012: Assessment of the Amendments to Sections 17, 18 and 19
by Udit Sood
The Copyright (Amendment) Act 2012 resulted, in part, from concerted lobbying by composers/lyricists to foster a more equitable sharing of royalties by Bollywood producers and others in the entertainment business. The efforts resulted in the recognition of their right to equitable sharing in the royalties, primarily in the form of amendments to § 17, §18, and §19. This paper seeks to assess these provisions and their likely impact. By highlighting the existing lacunae in law,
Article
Information Technology Act, 2000 and the Copyright Act, 1957: Searching for the Safest Harbor?
by Rajendra Kumar & Latha R Nair
This paper seeks to assess whether the safe harbor provisions for Internet intermediaries as enacted in the Information Technology Act, 2000 and the amended Copyright Act, 1957, reflect a correct balance between content owners and users. The paper begins by tracing the history of the Internet in its Web 1.0 and 2.0 avatars. Further, it examines how the current Internet architecture has facilitated e-commerce transactions as well as social speech. Moreover, the paper discusses whether
Information Technology Act, 2000 and the Copyright Act, 1957: Searching for the Safest Harbor?
by Rajendra Kumar & Latha R Nair
This paper seeks to assess whether the safe harbor provisions for Internet intermediaries as enacted in the Information Technology Act, 2000 and the amended Copyright Act, 1957, reflect a correct balance between content owners and users. The paper begins by tracing the history of the Internet in its Web 1.0 and 2.0 avatars. Further, it examines how the current Internet architecture has facilitated e-commerce transactions as well as social speech. Moreover, the paper discusses whether
Article
Disruptive (Technology) Law? Examining TPMs and Anti Circumvention Laws in the Copyright (Amendment) Act, 2012
by Swaraj Paul Barooah
This paper will explore in suitable depth, §65A which has introduced anticircumvention provisions into the Indian copyright law. It will begin with an introduction into the relevant terminology and scope of DRMs, TPMs and RMIs, and the typical issues associated with the introduction of anti-circumvention laws. After identifying and examining these issues, this paper will undertake a legal analysis of the problematic phrases in §65A, namely, ‘effective’, ‘purpose not expressly prohibited’, ‘intention’ etc; and examine
Disruptive (Technology) Law? Examining TPMs and Anti Circumvention Laws in the Copyright (Amendment) Act, 2012
by Swaraj Paul Barooah
This paper will explore in suitable depth, §65A which has introduced anticircumvention provisions into the Indian copyright law. It will begin with an introduction into the relevant terminology and scope of DRMs, TPMs and RMIs, and the typical issues associated with the introduction of anti-circumvention laws. After identifying and examining these issues, this paper will undertake a legal analysis of the problematic phrases in §65A, namely, ‘effective’, ‘purpose not expressly prohibited’, ‘intention’ etc; and examine
Article
The Disability Exception and the Triumph of New Rights Advocacy
by Rahul Cherian Jacob, Sam Taraporevala & Shamnad Basheer
In a momentous development, the Indian Copyright Act, 1957, was amended to introduce one of the most progressive provisions ever in the history of global copyright law. These amendments seek to foster access to copyrighted works for the disabled by providing for the conversion and distribution of copyrighted works without the risk of copyright infringement. It is important to appreciate that these amendments did not emerge overnight. Rather, they were the culmination of more than
The Disability Exception and the Triumph of New Rights Advocacy
by Rahul Cherian Jacob, Sam Taraporevala & Shamnad Basheer
In a momentous development, the Indian Copyright Act, 1957, was amended to introduce one of the most progressive provisions ever in the history of global copyright law. These amendments seek to foster access to copyrighted works for the disabled by providing for the conversion and distribution of copyrighted works without the risk of copyright infringement. It is important to appreciate that these amendments did not emerge overnight. Rather, they were the culmination of more than
Article
Exhaustion: Imports, Exports, and the Doctrine of First Sale in Indian Copyright Law
by Pranesh Prakash
In this article, I argue that Indian courts have fundamentally misunderstood the doctrine of first sale, and consequently have wrongly held that parallel importation is disallowed by Indian law. I further look at the ingenuity displayed by a court in prohibiting export of low-priced editions from India, and come to the conclusion that this is also incorrect in law. Finally, I note that there is an easy way out of this quagmire that we find
Exhaustion: Imports, Exports, and the Doctrine of First Sale in Indian Copyright Law
by Pranesh Prakash
In this article, I argue that Indian courts have fundamentally misunderstood the doctrine of first sale, and consequently have wrongly held that parallel importation is disallowed by Indian law. I further look at the ingenuity displayed by a court in prohibiting export of low-priced editions from India, and come to the conclusion that this is also incorrect in law. Finally, I note that there is an easy way out of this quagmire that we find
Article
The Libraries Exception: What the Amended Copyright Act Does (and Should do) for Preserving and Sharing Knowledge in the Digital Era
by Ujwala Uppaluri
Libraries, especially those which are universally accessible and funded by the state, have been seen as important means to democratize access to knowledge, and have gained renewed relevance in the information age as agents through which the digital divide can be addressed, particularly in developing countries. India’s system of statutorily established libraries has seen considerable State attention since independence through policymaking, legislation and financial investment through the successive Five Year Plans aimed at ameliorating infrastructure.
The Libraries Exception: What the Amended Copyright Act Does (and Should do) for Preserving and Sharing Knowledge in the Digital Era
by Ujwala Uppaluri
Libraries, especially those which are universally accessible and funded by the state, have been seen as important means to democratize access to knowledge, and have gained renewed relevance in the information age as agents through which the digital divide can be addressed, particularly in developing countries. India’s system of statutorily established libraries has seen considerable State attention since independence through policymaking, legislation and financial investment through the successive Five Year Plans aimed at ameliorating infrastructure.
Article
Fair Use of Cinematograph Films and Sound Recordings: Finding the Solution in the Amendment
by Lawrence Liang
With enhanced access to cheaper communication technology, a large majority of the public has moved from being mere passive consumers to active creators and re-mixers of content. The Copyright (Amendment) Act of 2012 has also extended the ‘ fair dealing’ provision to all works. In this context, a crucial question that arises is what constitutes ‘ fair dealing’ of cinematograph films and sound recordings, especially in the context of ‘criticism and review’. This paper examines
Fair Use of Cinematograph Films and Sound Recordings: Finding the Solution in the Amendment
by Lawrence Liang
With enhanced access to cheaper communication technology, a large majority of the public has moved from being mere passive consumers to active creators and re-mixers of content. The Copyright (Amendment) Act of 2012 has also extended the ‘ fair dealing’ provision to all works. In this context, a crucial question that arises is what constitutes ‘ fair dealing’ of cinematograph films and sound recordings, especially in the context of ‘criticism and review’. This paper examines
Article
Copyright Board and Constitutional Infirmities: Failure of the Copyright (Amendment) Act, 2012 and Suggestions for Reforms
by Ananth Padmanabhan
Tribunalisation has been accorded constitutional legitimacy by the courts in India. It has evolved from serving as an alternate institutional mechanism, to one that is integrated within the judicial framework. However, even in their supplemental roles, tribunals have been used as a tool by the executive to undermine judicial independence. It is in the background of such unfettered transfer of judicial power to quasi-judicial bodies, and the Copyright (Amendment) Act, 2012 that the paper examines
Copyright Board and Constitutional Infirmities: Failure of the Copyright (Amendment) Act, 2012 and Suggestions for Reforms
by Ananth Padmanabhan
Tribunalisation has been accorded constitutional legitimacy by the courts in India. It has evolved from serving as an alternate institutional mechanism, to one that is integrated within the judicial framework. However, even in their supplemental roles, tribunals have been used as a tool by the executive to undermine judicial independence. It is in the background of such unfettered transfer of judicial power to quasi-judicial bodies, and the Copyright (Amendment) Act, 2012 that the paper examines
Volume 5 Issue 3
Article
Keeping the Spirit of Common Law Alive
by Justice M. N. Venkatachaliah
Western law has two great systems, the civil law and the common law. The system of civil law comprises a number of national or local laws, each of which has, at its core, a civil code based largely on Roman law. The common law is not contained in a code but is continually distilled from the stream of a large number of cases decided by the courts of law, at first exclusively in England but
Keeping the Spirit of Common Law Alive
by Justice M. N. Venkatachaliah
Western law has two great systems, the civil law and the common law. The system of civil law comprises a number of national or local laws, each of which has, at its core, a civil code based largely on Roman law. The common law is not contained in a code but is continually distilled from the stream of a large number of cases decided by the courts of law, at first exclusively in England but
Article
Can Rights Undermine Trust? How Institutions Work and why they Fail
by André Béteille
A collective life in society is characterized by two constituent elements - rights and trust. In analysing these two elements, it is important to examine the balance existing between them. Despite their contrasting roles in society, the dialectical relationship between rights and trust is best understood when they are viewed as complementary to one another. While a framework of rights is necessary to instil a sense of deserved entitlement in people, what is instrumental for
Can Rights Undermine Trust? How Institutions Work and why they Fail
by André Béteille
A collective life in society is characterized by two constituent elements - rights and trust. In analysing these two elements, it is important to examine the balance existing between them. Despite their contrasting roles in society, the dialectical relationship between rights and trust is best understood when they are viewed as complementary to one another. While a framework of rights is necessary to instil a sense of deserved entitlement in people, what is instrumental for
Article
The Euro Zone and Sovereign Debt
by Rainer Kulms
Europe has to face the triple challenge of sovereign solvency, liquidity problems and the repercussions of the banking crisis. The Euro zone is pressurised into taking more decisive action on the institutional deficiencies of the European Monetary Union. This paper reviews the European trajectory from makeshift to more comprehensive strategies with resecue mechanisms for countries in distress, including an assessment of the role of the European Central Bank and the conflicting interests of the Member
The Euro Zone and Sovereign Debt
by Rainer Kulms
Europe has to face the triple challenge of sovereign solvency, liquidity problems and the repercussions of the banking crisis. The Euro zone is pressurised into taking more decisive action on the institutional deficiencies of the European Monetary Union. This paper reviews the European trajectory from makeshift to more comprehensive strategies with resecue mechanisms for countries in distress, including an assessment of the role of the European Central Bank and the conflicting interests of the Member
Article
Missing the Wood for the Trees: The Unseen Crisis in the Supreme Court
by Rishad Ahmed Chowdhury
It is a widely acknowledged reality that the Supreme Court today faces a crisis in the form of a severely over-burdened docket. This paper argues that, while the existence of the problem is well known, its genesis, underlying causes and broader impact are significantly misunderstood. It is in that sense that the crisis remains an unseen one. A core claim of the paper is that the burden on the Court is neither a historical inevitability
Missing the Wood for the Trees: The Unseen Crisis in the Supreme Court
by Rishad Ahmed Chowdhury
It is a widely acknowledged reality that the Supreme Court today faces a crisis in the form of a severely over-burdened docket. This paper argues that, while the existence of the problem is well known, its genesis, underlying causes and broader impact are significantly misunderstood. It is in that sense that the crisis remains an unseen one. A core claim of the paper is that the burden on the Court is neither a historical inevitability
Article
Inadequacies of Clinical Trial Regulations in India
by Ashna Ashesh & Zubin Dash
Madhya Pradesh has gained its fair share of media attention of late owing to the unethical drug trials being conducted on mentally challenged patients and children in the ‘heart of Incredible India’. In the wake of these trials, the Swasthya Adhikar Manch, an Indore based NGO, has filed a public interest petition in the Supreme Court. The Court has issued notice to the Central Government and the Government of Madhya Pradesh and though the matter
Inadequacies of Clinical Trial Regulations in India
by Ashna Ashesh & Zubin Dash
Madhya Pradesh has gained its fair share of media attention of late owing to the unethical drug trials being conducted on mentally challenged patients and children in the ‘heart of Incredible India’. In the wake of these trials, the Swasthya Adhikar Manch, an Indore based NGO, has filed a public interest petition in the Supreme Court. The Court has issued notice to the Central Government and the Government of Madhya Pradesh and though the matter
Article
Protecting Patient Information in India: Data Privacy Law and its Challenges
by Nimisha Srinivas & Arpita Biswas
Electronic storage of medical records has exposed individuals to the risk of identification at various stages of data collection and data processing. Two options are available to data-miners: to either anonymise information that poses a risk of identification or make such information available to physicians alone. The second option is no longer feasible in a world where the physician-patient relationship is complicated by the presence of other stakeholders, such as insurers and pharmaceutical manufacturers. Finding
Protecting Patient Information in India: Data Privacy Law and its Challenges
by Nimisha Srinivas & Arpita Biswas
Electronic storage of medical records has exposed individuals to the risk of identification at various stages of data collection and data processing. Two options are available to data-miners: to either anonymise information that poses a risk of identification or make such information available to physicians alone. The second option is no longer feasible in a world where the physician-patient relationship is complicated by the presence of other stakeholders, such as insurers and pharmaceutical manufacturers. Finding
Article
Combination Control: Strengthening the Regulatory Framework of Competition Law in India?
by Tanaya Sanyal & Sohini Chatterjee
Combination control is a relatively new concept in Indian competition law. Although its roots can be traced to India’s erstwhile antitrust legislation, the Monopolies and Restrictive Trade Practices Act, a sophisticated form of combination control was put into force only in 2011. A study of its working since enforcement offers interesting results. In this exercise, the drafting history of the legislation provides useful insights, especially into the objectives propelling the introduction of this system. Post
Combination Control: Strengthening the Regulatory Framework of Competition Law in India?
by Tanaya Sanyal & Sohini Chatterjee
Combination control is a relatively new concept in Indian competition law. Although its roots can be traced to India’s erstwhile antitrust legislation, the Monopolies and Restrictive Trade Practices Act, a sophisticated form of combination control was put into force only in 2011. A study of its working since enforcement offers interesting results. In this exercise, the drafting history of the legislation provides useful insights, especially into the objectives propelling the introduction of this system. Post
Book Review
The Indian Constittittitutition (Oxford India Short Introductictictions), Madhav Khosla, Oxford Universitity Press, 2012. Pages 191. Price ` 195
by Raju Ramachandran
It is legitimate to assume that the readers of this journal are familiar with the formidable scholarship that the Constitution of India has engendered. And so, if she wonders what another work on the Constitution can contribute, her cynicism would be understandable. But she is in for a surprise, as she turns the pages of this little work that sheds great light in the field of constitutional law...
The Indian Constittittitutition (Oxford India Short Introductictictions), Madhav Khosla, Oxford Universitity Press, 2012. Pages 191. Price ` 195
by Raju Ramachandran
It is legitimate to assume that the readers of this journal are familiar with the formidable scholarship that the Constitution of India has engendered. And so, if she wonders what another work on the Constitution can contribute, her cynicism would be understandable. But she is in for a surprise, as she turns the pages of this little work that sheds great light in the field of constitutional law...
Book Review
Democracy and its Institutions, André Béteille, Oxford University Press, Delhi, 2012. Pages 228. Price ` 595.
by Dr. Surajit C. Mukhopadhyay
Writing on institutions of modern democracy in the Indian context is inherently problematic. Institutions are by their very nature conservative. They are often viewed as stately ships moored in the harbour inspiring awe rather than as vessels that would undertake a voyage which would leave them battered and weary. Institutions in India are perennially on a rough voyage through the charted and more often than not, uncharted waters of democracy and discontent. The trick in
Democracy and its Institutions, André Béteille, Oxford University Press, Delhi, 2012. Pages 228. Price ` 595.
by Dr. Surajit C. Mukhopadhyay
Writing on institutions of modern democracy in the Indian context is inherently problematic. Institutions are by their very nature conservative. They are often viewed as stately ships moored in the harbour inspiring awe rather than as vessels that would undertake a voyage which would leave them battered and weary. Institutions in India are perennially on a rough voyage through the charted and more often than not, uncharted waters of democracy and discontent. The trick in
Volume 5 Issue 2
Convocation Speech
Convocation Address
by Upendra Baxi
Justice Altamas Kabir, Vice Chancellor Professor Ishwara Bhat, Justice Chittatosh Mukerjee, the learned members of the General Council, distinguished guests, colleagues and above all dear students, I am honoured by your gracious invitation to be with you on this occasion for many reasons. This event is a happy one for me as well because it is presided over by His Lordship Justice Altamas Kabir whose contribution to the ways of constitutional justicing remains an enduring
Convocation Address
by Upendra Baxi
Justice Altamas Kabir, Vice Chancellor Professor Ishwara Bhat, Justice Chittatosh Mukerjee, the learned members of the General Council, distinguished guests, colleagues and above all dear students, I am honoured by your gracious invitation to be with you on this occasion for many reasons. This event is a happy one for me as well because it is presided over by His Lordship Justice Altamas Kabir whose contribution to the ways of constitutional justicing remains an enduring
Article
The Judiciary in India: A Hunger and Thirst for Justice
by P.N. Bhagwati & C.J. Dias
India’s higher judiciary has created and overseen the evolution of public interest litigation in India. This paper presents a strong defence for the public interest litigation model as an instrument for the delivery of fair and equitable justice, resistant to governmental apathy as well as economic and social privilege. The first part of the paper provides an account of the evolution of India’s constitutional courts’, and particularly the Supreme Court’s, role prior to the emergence
The Judiciary in India: A Hunger and Thirst for Justice
by P.N. Bhagwati & C.J. Dias
India’s higher judiciary has created and overseen the evolution of public interest litigation in India. This paper presents a strong defence for the public interest litigation model as an instrument for the delivery of fair and equitable justice, resistant to governmental apathy as well as economic and social privilege. The first part of the paper provides an account of the evolution of India’s constitutional courts’, and particularly the Supreme Court’s, role prior to the emergence
Article
Limits to International Cooperation in Criminal Matters under the German Constitution
by Dr. Christina Globke
This paper explores the boundaries of international cooperation in criminal matters with respect to the German Constitution. The paper argues that a critical observation of developments in international cooperation in criminal matters is advisable. Cooperation in itself is not a guarantee for the protection of human rights. The guaranteed standard in the involved legal orders should be carefully studied and compared, before competences are “outsourced” to other international legal bodies. With respect to the German
Limits to International Cooperation in Criminal Matters under the German Constitution
by Dr. Christina Globke
This paper explores the boundaries of international cooperation in criminal matters with respect to the German Constitution. The paper argues that a critical observation of developments in international cooperation in criminal matters is advisable. Cooperation in itself is not a guarantee for the protection of human rights. The guaranteed standard in the involved legal orders should be carefully studied and compared, before competences are “outsourced” to other international legal bodies. With respect to the German
Article
Competition Law and Consumer Law: Identifying the Contours in Light of the Case of Belaire Owners Association v. DLF
by Jenisha Parikh & Kashmira Majumdar
Recent events suggest that the near-automatic consequence of being a dominant firm in a profitable market is abuse of that position by resorting to the imposition of unfair terms and conditions in standard contracts. Ostensibly, this may seem to be a consumer law problem due to the ‘unfairness’ of the conditions involved but such practices also have an impact on competition in the market, which justifies antitrust scrutiny too. The forum to which the matter
Competition Law and Consumer Law: Identifying the Contours in Light of the Case of Belaire Owners Association v. DLF
by Jenisha Parikh & Kashmira Majumdar
Recent events suggest that the near-automatic consequence of being a dominant firm in a profitable market is abuse of that position by resorting to the imposition of unfair terms and conditions in standard contracts. Ostensibly, this may seem to be a consumer law problem due to the ‘unfairness’ of the conditions involved but such practices also have an impact on competition in the market, which justifies antitrust scrutiny too. The forum to which the matter
Article
The Constitutional Potential Of European Court Of Human Rights
by Scott James Meyer
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
The Constitutional Potential Of European Court Of Human Rights
by Scott James Meyer
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
Article
The Land Acquisition Bill, 2011: One Step Forward and Two Steps Back
by Nihal Joseph & Shrinidhi Rao
On September 7, 2011, the Land Acquisition, Rehabilitation and Resettlement Bill was introduced in the Lok Sabha in the backdrop of several large scale protests by farmers across the country. This paper provides a brief comparison of the new bill with the present Land Acquisition Act, 1894, introducing the key features of the bill. It discusses the legal framework relating to the power of acquisition and argue that it suffers from shortcomings in not fully
The Land Acquisition Bill, 2011: One Step Forward and Two Steps Back
by Nihal Joseph & Shrinidhi Rao
On September 7, 2011, the Land Acquisition, Rehabilitation and Resettlement Bill was introduced in the Lok Sabha in the backdrop of several large scale protests by farmers across the country. This paper provides a brief comparison of the new bill with the present Land Acquisition Act, 1894, introducing the key features of the bill. It discusses the legal framework relating to the power of acquisition and argue that it suffers from shortcomings in not fully
Article
Future Focus Infotech – A Critique vis-à-vis Classification Principles
by Ashwita Ambast
Certainty lies at the heart of taxation law as individuals must be aware of what might be taxable and thus be given the liberty to plan their finances accordingly. It is in this light that the principles of classification in service tax law assume importance as they provide guidance regarding what head a service may be taxable under. So, how are these principles that can now be found in the text of the Finance Act
Future Focus Infotech – A Critique vis-à-vis Classification Principles
by Ashwita Ambast
Certainty lies at the heart of taxation law as individuals must be aware of what might be taxable and thus be given the liberty to plan their finances accordingly. It is in this light that the principles of classification in service tax law assume importance as they provide guidance regarding what head a service may be taxable under. So, how are these principles that can now be found in the text of the Finance Act
Volume 5 Issue 1
Other
Farewell Message
by Prof. (Dr.) Mahendra P. Singh
My dear students, colleagues from the faculty and administration, and everyone else who is and has been directly or indirectly associated with NUJS (including, definitely, the current and former honourable members of the managing bodies of the University), I have immense pleasure in being with you this afternoon on the completion of my term as the head of this upcoming institution. This afternoon, and for quite some time during the last several days, weeks and
Farewell Message
by Prof. (Dr.) Mahendra P. Singh
My dear students, colleagues from the faculty and administration, and everyone else who is and has been directly or indirectly associated with NUJS (including, definitely, the current and former honourable members of the managing bodies of the University), I have immense pleasure in being with you this afternoon on the completion of my term as the head of this upcoming institution. This afternoon, and for quite some time during the last several days, weeks and
Article
Anti-Defection Law: A Death Knell for Parliamentary Dissent?
by Kartik Khanna & Dhvani Shah
Paragraph 2(1)(b) of Schedule X of the Constitution of India seeks to ad- dress defection by preventing parliamentarians from defying the direction of the party whip during times of voting. The wide phraseology of the provi- sion has led to misuse of this power, which has resulted in a chilling effect on the freedom of speech of the members of the house. The provision con- fuses dissent for defection and thereby, stifles a vital cog
Anti-Defection Law: A Death Knell for Parliamentary Dissent?
by Kartik Khanna & Dhvani Shah
Paragraph 2(1)(b) of Schedule X of the Constitution of India seeks to ad- dress defection by preventing parliamentarians from defying the direction of the party whip during times of voting. The wide phraseology of the provi- sion has led to misuse of this power, which has resulted in a chilling effect on the freedom of speech of the members of the house. The provision con- fuses dissent for defection and thereby, stifles a vital cog
Article
Anti-Acquirer and Pro-Shareholder? An Analysis of the SEBI (Substantial Acquisition of Shares And Takeovers) Regulations, 2011
by Karan Talwar & Nivedita Saksena
In September 2011, the Securities and Exchange Board of India (‘SEBI’) notified an overhaul of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, by introducing the 2011 Regulations. The changes introduced in the new regulations are based substantially on the recommendations of a committee that it had set up to review the working of the 1997 Regulations. Three fundamental changes have been introduced by the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations,
Anti-Acquirer and Pro-Shareholder? An Analysis of the SEBI (Substantial Acquisition of Shares And Takeovers) Regulations, 2011
by Karan Talwar & Nivedita Saksena
In September 2011, the Securities and Exchange Board of India (‘SEBI’) notified an overhaul of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, by introducing the 2011 Regulations. The changes introduced in the new regulations are based substantially on the recommendations of a committee that it had set up to review the working of the 1997 Regulations. Three fundamental changes have been introduced by the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations,
Article
Preserving Constitutive Values in the Modern Panopticon: The Case for Legislating toward a Privacy Right in India
by Ujwala Uppaluri & Varsha Shivanagowda
As on date, the only meaningful, if arguably broad, affirmation of a right to privacy has been in the context of the Supreme Court’s treatment of Art. 21 of the Constitution, which embodies the guarantee of a right to life and personal liberty. No substantial legislative measures granting and detailing a broad and general right of privacy presently exist in the Indian context, although some measures are scattered across context-specific legislation. Recent events have brought
Preserving Constitutive Values in the Modern Panopticon: The Case for Legislating toward a Privacy Right in India
by Ujwala Uppaluri & Varsha Shivanagowda
As on date, the only meaningful, if arguably broad, affirmation of a right to privacy has been in the context of the Supreme Court’s treatment of Art. 21 of the Constitution, which embodies the guarantee of a right to life and personal liberty. No substantial legislative measures granting and detailing a broad and general right of privacy presently exist in the Indian context, although some measures are scattered across context-specific legislation. Recent events have brought
Article
Interpretation of Reverse Onus Clauses
by Juhi Gupta
The principle that a person should be presumed innocent until proven guilty is a fundamental principle of procedural fairness in criminal law. Its justifications lie in the socio-legal consequences of convicting an individual for the commission of a crime. This principle acts as a protection against erroneous convictions and ensures that an accused is not oppressed by the immense power and resources of the State. The opposite rule – a presumption of guilt – imposes
Interpretation of Reverse Onus Clauses
by Juhi Gupta
The principle that a person should be presumed innocent until proven guilty is a fundamental principle of procedural fairness in criminal law. Its justifications lie in the socio-legal consequences of convicting an individual for the commission of a crime. This principle acts as a protection against erroneous convictions and ensures that an accused is not oppressed by the immense power and resources of the State. The opposite rule – a presumption of guilt – imposes
Article
Regulating the Growing Commercialisation of Microfinance Institutions inIndian
by Aditya Alok & Nihal Joseph
The Forest Rights Act, 2006: Settling Land, Unsettling Conservationists Microfinance Institutions (‘MFIs’) have always been considered as one of the frontline institutions for the propagation of financial services to the poor. Over the years, however, Indian MFIs have not seen the kind of success as their counterparts in Latin America, Europe and Bangladesh. Blind adoption of international models and subsequent commercialization by offering IPOs has not seen desired results. The critics say that MFIs, rather
Regulating the Growing Commercialisation of Microfinance Institutions inIndian
by Aditya Alok & Nihal Joseph
The Forest Rights Act, 2006: Settling Land, Unsettling Conservationists Microfinance Institutions (‘MFIs’) have always been considered as one of the frontline institutions for the propagation of financial services to the poor. Over the years, however, Indian MFIs have not seen the kind of success as their counterparts in Latin America, Europe and Bangladesh. Blind adoption of international models and subsequent commercialization by offering IPOs has not seen desired results. The critics say that MFIs, rather
Article
Towards a No-Force Paradigm in Mental Health Law
by Malavika Prasad
Protection against the unlawful deprivation of life and liberty, assured to persons with disabilities in the United Nations Convention on the Rights of Persons with Disability, is a negative freedom, unrealisable unless the right-bearer has the ability to realise such a freedom. This is rooted in the proposition that we cannot be considered free to do that which we are una- ble to do. Law’s recognition of ability to transact freely with the world is
Towards a No-Force Paradigm in Mental Health Law
by Malavika Prasad
Protection against the unlawful deprivation of life and liberty, assured to persons with disabilities in the United Nations Convention on the Rights of Persons with Disability, is a negative freedom, unrealisable unless the right-bearer has the ability to realise such a freedom. This is rooted in the proposition that we cannot be considered free to do that which we are una- ble to do. Law’s recognition of ability to transact freely with the world is
Article
Legality of Poker and other Games of Skill: A Critical Analysis of India’s Gaming Laws
by Jay Sayta
Gambling and wagers have always enthralled people ever since the beginning of civilisation. Instances of gambling can be found in the Mahabharata, Quran and other religious texts. The law and the judiciary, in modern times, have looked at card games as a pernicious and immoral activity. In the last two centuries, sophisticated card games involving a great degree of skill and intellect have become highly popular among the masses. The laws regulating and prohibiting gambling,
Legality of Poker and other Games of Skill: A Critical Analysis of India’s Gaming Laws
by Jay Sayta
Gambling and wagers have always enthralled people ever since the beginning of civilisation. Instances of gambling can be found in the Mahabharata, Quran and other religious texts. The law and the judiciary, in modern times, have looked at card games as a pernicious and immoral activity. In the last two centuries, sophisticated card games involving a great degree of skill and intellect have become highly popular among the masses. The laws regulating and prohibiting gambling,
Volume 4 Issue 4
Article
Investment Agreements in India: Is There an “Option”?
by Umakanth Varottil
Put and call options are ubiquitous in modern investment agreements, such as those involving joint ventures as well as private equity and venture capital investments. The enforceability of put and call options in Indian companies has been the subject matter of debate due to the existence of stringent securities legislation that has been supported by strict judicial interpretation. Moreover, pronouncements by India’s securities regulator, the Securities and Exchange Board of India, have expressly disallowed options
Investment Agreements in India: Is There an “Option”?
by Umakanth Varottil
Put and call options are ubiquitous in modern investment agreements, such as those involving joint ventures as well as private equity and venture capital investments. The enforceability of put and call options in Indian companies has been the subject matter of debate due to the existence of stringent securities legislation that has been supported by strict judicial interpretation. Moreover, pronouncements by India’s securities regulator, the Securities and Exchange Board of India, have expressly disallowed options
Article
Corporate Human Rights Accountability and the Human Right to Develop: The Relevance and Role of Corporate Social Responsibility
by Dr. Clarence J. Dias
By employing a human rights perspective, this paper focuses on Corporate Social Responsibility (‘CSR’) and its impact and relevance in the globalized, commercialized world. The discussion around CSR takes into consideration three important developments: enormous growth of corporate power (without commensurate accountability), a paradigm shift in the nature of development and emerging claims from victims of corporate activities. The paper responds to these considerations by concluding that CSR has been the preferred model for achieving
Corporate Human Rights Accountability and the Human Right to Develop: The Relevance and Role of Corporate Social Responsibility
by Dr. Clarence J. Dias
By employing a human rights perspective, this paper focuses on Corporate Social Responsibility (‘CSR’) and its impact and relevance in the globalized, commercialized world. The discussion around CSR takes into consideration three important developments: enormous growth of corporate power (without commensurate accountability), a paradigm shift in the nature of development and emerging claims from victims of corporate activities. The paper responds to these considerations by concluding that CSR has been the preferred model for achieving
Article
Competition Law and Policy in India: The Journey in a Decade
by Vijay Kumar Singh
With the notification of §§43A and 44 of the Competition Act, 2002 the competition law of India comes into full force nearly a decade after its inception. Within this decade of evolution, competition law and policy in India has seen an active interpretational exercise. This paper seeks to summarize the evolution of competition law and policy in India, discusses the main issues involved in this area of law, and opens up issues for discussion in
Competition Law and Policy in India: The Journey in a Decade
by Vijay Kumar Singh
With the notification of §§43A and 44 of the Competition Act, 2002 the competition law of India comes into full force nearly a decade after its inception. Within this decade of evolution, competition law and policy in India has seen an active interpretational exercise. This paper seeks to summarize the evolution of competition law and policy in India, discusses the main issues involved in this area of law, and opens up issues for discussion in
Article
The Business of Privacy: From Private Anxiety to Commercial Sense? A Broad Overview of why Privacy Ought to Matter to Indian Businesses
by Malavika Jayaram
Eco warriors and wildlife enthusiasts subscribe to the green credo that, while journeying through wide-open spaces, one should “take nothing but memories and leave behind nothing but footprints”. This is getting harder and harder to do in the electronic frontier. Intimate details of one’s personal life are being captured, copied, accessed and preserved all the time, everywhere, instantly. The corporate greed for capturing personal data, coupled with increasing surveillance by governments, makes privacy a critical
The Business of Privacy: From Private Anxiety to Commercial Sense? A Broad Overview of why Privacy Ought to Matter to Indian Businesses
by Malavika Jayaram
Eco warriors and wildlife enthusiasts subscribe to the green credo that, while journeying through wide-open spaces, one should “take nothing but memories and leave behind nothing but footprints”. This is getting harder and harder to do in the electronic frontier. Intimate details of one’s personal life are being captured, copied, accessed and preserved all the time, everywhere, instantly. The corporate greed for capturing personal data, coupled with increasing surveillance by governments, makes privacy a critical
Article
Minimum Alternate Tax: Is There Any Alternative?
by Sanjay Kumar
Minimum alternate taxation is a measure to address the growing problem of companies that declare high profits, but pay low or no taxes (‘zero-tax’ companies). Parliament has experimented with its approach to MAT since 1983 and continues to do so in the proposed Direct Tax Code. This paper charts the various changes in the MAT regime made over the years and the interpretational problems that have arisen with provisions for MAT credit, advance payment of
Minimum Alternate Tax: Is There Any Alternative?
by Sanjay Kumar
Minimum alternate taxation is a measure to address the growing problem of companies that declare high profits, but pay low or no taxes (‘zero-tax’ companies). Parliament has experimented with its approach to MAT since 1983 and continues to do so in the proposed Direct Tax Code. This paper charts the various changes in the MAT regime made over the years and the interpretational problems that have arisen with provisions for MAT credit, advance payment of
Article
Vertical Restraints in Competition Law: The Need to Strike the Right Balance Between Regulation and Competition
by Tilottama Raychaudhuri
The regulation of vertical agreements by competition law is anything but straightforward. Economic theories suggest that if inter brand competition exists, then restrictions on intra brand competition should not be capable of restricting competition and the efficiency enhancing effects of vertical agreements would outweigh any possible risks. Yet experience reveals that vertical agreements can have anticompetitive effects which outweigh their pro-competitive effects, and hence they have to be brought within the purview of antitrust law.
Vertical Restraints in Competition Law: The Need to Strike the Right Balance Between Regulation and Competition
by Tilottama Raychaudhuri
The regulation of vertical agreements by competition law is anything but straightforward. Economic theories suggest that if inter brand competition exists, then restrictions on intra brand competition should not be capable of restricting competition and the efficiency enhancing effects of vertical agreements would outweigh any possible risks. Yet experience reveals that vertical agreements can have anticompetitive effects which outweigh their pro-competitive effects, and hence they have to be brought within the purview of antitrust law.
Article
Goods and Services Tax: Will the Proposed Indirect Tax Reform Change Business and Tax Dynamics In India?
by Sriram P. Govind
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
Goods and Services Tax: Will the Proposed Indirect Tax Reform Change Business and Tax Dynamics In India?
by Sriram P. Govind
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
Article
Arbitration and the Supreme Court: A Tale of Discordance Between the Text and Judicial Determination
by Badrinath Srinivasan
There is considerable dissonance between the text of the Arbitration and Conciliation Act, 1996 and the judicial decisions interpreting it. This discordance has a significant impact on arbitration in India. This paper analyses the possible impact of these discrepancies through eight cases decided by the Supreme Court in the past decade.
Arbitration and the Supreme Court: A Tale of Discordance Between the Text and Judicial Determination
by Badrinath Srinivasan
There is considerable dissonance between the text of the Arbitration and Conciliation Act, 1996 and the judicial decisions interpreting it. This discordance has a significant impact on arbitration in India. This paper analyses the possible impact of these discrepancies through eight cases decided by the Supreme Court in the past decade.
Article
Decoding the New Business Vehicle of India: The Limited Liability Partnership
by Nivedita Sen & Neha Mathen
Considered to be a convenient hybrid between a partnership and company, the Indian limited liability partnership is a business association that merges certain advantages of a partnership with those of a company. This paper traces the evolution of this business vehicle from its genesis in the American state of Texas to the form in which it has been adopted in India. The paper also attempts to give a detailed analysis of the statutory provisions and
Decoding the New Business Vehicle of India: The Limited Liability Partnership
by Nivedita Sen & Neha Mathen
Considered to be a convenient hybrid between a partnership and company, the Indian limited liability partnership is a business association that merges certain advantages of a partnership with those of a company. This paper traces the evolution of this business vehicle from its genesis in the American state of Texas to the form in which it has been adopted in India. The paper also attempts to give a detailed analysis of the statutory provisions and
Volume 4 Issue 3
Article
Compensation and Human Rights (from a French perspective)
by Christophe Quézel-Ambrunaz
In French law, an award of damages is a means to enforce human rights, such that the breach of such a right urges the payment of compensation. This situation is reinforced by the fact that the European Court of Human Rights alone has the means to ensure the protection of the rights guaranteed by the European Convention. Moreover, a strong debate has occurred on whether to consider the right to obtain compensation in the form
Compensation and Human Rights (from a French perspective)
by Christophe Quézel-Ambrunaz
In French law, an award of damages is a means to enforce human rights, such that the breach of such a right urges the payment of compensation. This situation is reinforced by the fact that the European Court of Human Rights alone has the means to ensure the protection of the rights guaranteed by the European Convention. Moreover, a strong debate has occurred on whether to consider the right to obtain compensation in the form
Article
The Right to Pornography in India: An Analysis in Light of Individual Liberty and Public Morality
by Vallishree Chandra & Gayathri Ramachandran
Sex is a controversial subject in the social fabric of India, often being linked to immoral and prurient values. The current laws criminalise selling, distributing and publicly displaying obscene or pornographic material. The primary concern underlying this is safeguarding of public morality and decency. But such laws lead to the violation of individual liberty and moral independence of a person who wishes to enjoy pornography as his right to view, read or enjoy pornography (that
The Right to Pornography in India: An Analysis in Light of Individual Liberty and Public Morality
by Vallishree Chandra & Gayathri Ramachandran
Sex is a controversial subject in the social fabric of India, often being linked to immoral and prurient values. The current laws criminalise selling, distributing and publicly displaying obscene or pornographic material. The primary concern underlying this is safeguarding of public morality and decency. But such laws lead to the violation of individual liberty and moral independence of a person who wishes to enjoy pornography as his right to view, read or enjoy pornography (that
Other
Evolution of a Happy Society
by Dr. A.P.J. Abdul Kalam
While the country is moving towards realizing the goal of achieving the vision of a developed India by 2020, there are still many challenges to be met for accelerating the progress and realizing the goal within nine years. Since I am amidst students and patrons of law, I will discuss the relationship between the importance of building a society with dignity of life and national economic development which will result in people living in a
Evolution of a Happy Society
by Dr. A.P.J. Abdul Kalam
While the country is moving towards realizing the goal of achieving the vision of a developed India by 2020, there are still many challenges to be met for accelerating the progress and realizing the goal within nine years. Since I am amidst students and patrons of law, I will discuss the relationship between the importance of building a society with dignity of life and national economic development which will result in people living in a
Article
Combating Adversarialism in Negotiation: An Evolution Towards More Therapeutic Approaches
by Andrew F. Amendola
Many negotiators—as well as their clients—hold fast to the traditional, adversarial approach to negotiation as necessary to achieve maximum gains while avoiding exploitation by their opponent. This approach has been proven ineffective in many negotiation situations and may contribute to adverse effects to the psychological well-being of both the practitioner and the client. This paper advocates the application of therapeutic jurisprudence principles to the techniques of negotiation, much in line with the gradual evolution the
Combating Adversarialism in Negotiation: An Evolution Towards More Therapeutic Approaches
by Andrew F. Amendola
Many negotiators—as well as their clients—hold fast to the traditional, adversarial approach to negotiation as necessary to achieve maximum gains while avoiding exploitation by their opponent. This approach has been proven ineffective in many negotiation situations and may contribute to adverse effects to the psychological well-being of both the practitioner and the client. This paper advocates the application of therapeutic jurisprudence principles to the techniques of negotiation, much in line with the gradual evolution the
Article
Duty Of The Union Under Article 355 Of The Constitution: Remembering The Constitutional Ideal Of Co-operative Federalism
by Jaideep Reddy
The Constituent Assembly debates inform us that the duty of the Union towards the States under Art. 355 of the Constitution was incorporated in order to justify the drastic shift in the balance of Union-State relations caused by emergency action under Art. 356. An analysis of various legal authorities’ interpretation and employment of Art. 355, however, reveals a gradual but stark evolution in its character, one which significantly widens the scope of Union action contemplated
Duty Of The Union Under Article 355 Of The Constitution: Remembering The Constitutional Ideal Of Co-operative Federalism
by Jaideep Reddy
The Constituent Assembly debates inform us that the duty of the Union towards the States under Art. 355 of the Constitution was incorporated in order to justify the drastic shift in the balance of Union-State relations caused by emergency action under Art. 356. An analysis of various legal authorities’ interpretation and employment of Art. 355, however, reveals a gradual but stark evolution in its character, one which significantly widens the scope of Union action contemplated
Article
Delivering the Right to Health to the Rural Sector
by Karthy Nair & Pallavi Sharma
One of the top medical schools in Karnataka offers a pocket pinching bond of Rs. 6,00,000 to the medical students if they refuse the compulsory rural service after their graduation. What is even more striking is students often opt for forfeiture of the bond than agree to a secondment in a village! The Ministry of Health, by considering the proposal of compulsory rural internships for students of medicine in 2007, has opened a can of
Delivering the Right to Health to the Rural Sector
by Karthy Nair & Pallavi Sharma
One of the top medical schools in Karnataka offers a pocket pinching bond of Rs. 6,00,000 to the medical students if they refuse the compulsory rural service after their graduation. What is even more striking is students often opt for forfeiture of the bond than agree to a secondment in a village! The Ministry of Health, by considering the proposal of compulsory rural internships for students of medicine in 2007, has opened a can of
Article
Human Rights Provisions In The Forthcoming India-EU Free Trade Agreement
by Nivedita Sen & Balu G. Nair
Trade has played a vital role in the evolution and development of the human race. Human rights on the other hand, though considered universal and inherent, were formally recognized much later in human history. Even today much is left to be desired regarding the implementation of these rights. One way in which few nations believe it can be implemented is by including such provisions in trade agreements. This paper focuses on the importance of the
Human Rights Provisions In The Forthcoming India-EU Free Trade Agreement
by Nivedita Sen & Balu G. Nair
Trade has played a vital role in the evolution and development of the human race. Human rights on the other hand, though considered universal and inherent, were formally recognized much later in human history. Even today much is left to be desired regarding the implementation of these rights. One way in which few nations believe it can be implemented is by including such provisions in trade agreements. This paper focuses on the importance of the
Article
Fraternity and the Constitution: A Promising Beginning in Nandini Sundar V. State of Chattisgarh
by Smaran Shetty & Tanaya Sanyal
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
Fraternity and the Constitution: A Promising Beginning in Nandini Sundar V. State of Chattisgarh
by Smaran Shetty & Tanaya Sanyal
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
Book Review
Moral Rights: Principles, Practice and New Technology, Mira T. Sundara Rajan, Oxford University Press
by Anirban Mazumdar
“An exploration of moral rights in the world’s legal systems reveals a robust doctrine.” This is how Dr. Mira T. Sundara Rajan concludes her seminal work on moral rights. Though moral rights appear to be a small component of copyright law, this book portrays the development of the concept on the world canvass. Moral rights did not find place in the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) but it resurfaced through the
Moral Rights: Principles, Practice and New Technology, Mira T. Sundara Rajan, Oxford University Press
by Anirban Mazumdar
“An exploration of moral rights in the world’s legal systems reveals a robust doctrine.” This is how Dr. Mira T. Sundara Rajan concludes her seminal work on moral rights. Though moral rights appear to be a small component of copyright law, this book portrays the development of the concept on the world canvass. Moral rights did not find place in the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) but it resurfaced through the
Volume 4 Issue 2
Article
Staying True to the Indian Penal Code: A Case Study on Judicial Laxity
by Stanley Yeo
This article examines an unfortunate judicial tendency to depart from the precise wording of the Indian Penal Code by referring to non-Code sources of authority and introducing words and concepts which differ from the Code provisions. This is well illustrated by studying the recent Supreme Court of India judgment in Darshan Singh v. State of Punjab, (2010) 2 SCC 333: AIR 2010 SC 1212 concerning the plea of private defence. The dangers created by this
Staying True to the Indian Penal Code: A Case Study on Judicial Laxity
by Stanley Yeo
This article examines an unfortunate judicial tendency to depart from the precise wording of the Indian Penal Code by referring to non-Code sources of authority and introducing words and concepts which differ from the Code provisions. This is well illustrated by studying the recent Supreme Court of India judgment in Darshan Singh v. State of Punjab, (2010) 2 SCC 333: AIR 2010 SC 1212 concerning the plea of private defence. The dangers created by this
Article
Reflections on Judicial Enforcement of Social and Economic Rights in the 21st Century
by Mark Tushnet
At the present time a consensus has emerged on two points involving the constitutional status of social and economic rights, the so-called “second generation” rights. First, such rights are properly included in modern constitutions, and second, they are enforceable to the same extent as first-generation rights to political participation, free expression, equality, and the like. After explaining the current status of social and economic rights in modern constitutions, these reflections identify two important matters that
Reflections on Judicial Enforcement of Social and Economic Rights in the 21st Century
by Mark Tushnet
At the present time a consensus has emerged on two points involving the constitutional status of social and economic rights, the so-called “second generation” rights. First, such rights are properly included in modern constitutions, and second, they are enforceable to the same extent as first-generation rights to political participation, free expression, equality, and the like. After explaining the current status of social and economic rights in modern constitutions, these reflections identify two important matters that
Article
Administrative Litigation in China: Parties and their Rights and Obligations
by Dr. LIU Jianlong
The rights and obligations of the parties involved in an administrative litigation in China are important for realizing the targets, to protect the individuals’ rights and to limit the public powers set up by the Administrative Procedure Law, 1989. According to the law in China, a plaintiff refers to an individual, a legal person or other lawful organizations, whose rights have been directly affected by a defendant, viz. a public authority or its employee exercising
Administrative Litigation in China: Parties and their Rights and Obligations
by Dr. LIU Jianlong
The rights and obligations of the parties involved in an administrative litigation in China are important for realizing the targets, to protect the individuals’ rights and to limit the public powers set up by the Administrative Procedure Law, 1989. According to the law in China, a plaintiff refers to an individual, a legal person or other lawful organizations, whose rights have been directly affected by a defendant, viz. a public authority or its employee exercising
Article
The Fraudulent Trading Offence: Need for a Relook
by Preetha S.
The main focus of the article is on the effectiveness of the criminal sanctions for fraudulent trading as a creditor protection mechanism. The article begins with an examination of the evolution of the duty of directors towards the creditors of the company. Then it seeks to address the main arguments advanced for and against penalising fraudulent trading. This is followed by an analysis of the fraudulent trading provision in India and UK. The study reveals
The Fraudulent Trading Offence: Need for a Relook
by Preetha S.
The main focus of the article is on the effectiveness of the criminal sanctions for fraudulent trading as a creditor protection mechanism. The article begins with an examination of the evolution of the duty of directors towards the creditors of the company. Then it seeks to address the main arguments advanced for and against penalising fraudulent trading. This is followed by an analysis of the fraudulent trading provision in India and UK. The study reveals
Article
Gendering Tax
by Danish Sheikh & Raadhika Gupta
A close look at tax systems demonstrates how fiscal policies affect pat- terns of marriage, childbearing, work and education. Coupled with social norms and biases, the fiscal system can be seen to exercise coercive force, entrenching social life patterns in an endless feedback loop. The liberal feminist perspective throws light on how, amongst other factors, a regressive taxation system, many of the special tax deductions, and even tax benefits for savings, benefit women less than
Gendering Tax
by Danish Sheikh & Raadhika Gupta
A close look at tax systems demonstrates how fiscal policies affect pat- terns of marriage, childbearing, work and education. Coupled with social norms and biases, the fiscal system can be seen to exercise coercive force, entrenching social life patterns in an endless feedback loop. The liberal feminist perspective throws light on how, amongst other factors, a regressive taxation system, many of the special tax deductions, and even tax benefits for savings, benefit women less than
Article
The Validity of Retrospective Amendments to the Income Tax Act: Section 9 of the Act and the Ishikawajima Harima Case
by Prateek Andharia
This article discusses the contemporary issues surrounding §9 of the Income Tax Act, 1961. The core issue is discussed, giving specific importance to the ambivalent nature of the law in this area since Ishikawajima’s case, such ambivalence lasting until the amendment in 2010, which has been bemoaned by lawyers across the country as a step too far in the exercise of Parliament’s legislative powers. Three aspects of the constitutional validity of the section as amended
The Validity of Retrospective Amendments to the Income Tax Act: Section 9 of the Act and the Ishikawajima Harima Case
by Prateek Andharia
This article discusses the contemporary issues surrounding §9 of the Income Tax Act, 1961. The core issue is discussed, giving specific importance to the ambivalent nature of the law in this area since Ishikawajima’s case, such ambivalence lasting until the amendment in 2010, which has been bemoaned by lawyers across the country as a step too far in the exercise of Parliament’s legislative powers. Three aspects of the constitutional validity of the section as amended
Article
The Role of Independent Directors In Corporate Governance
by Prana Mittal
India’s higher judiciary has created and overseen the evolution of public interest litigation in India. This paper presents a strong defence for the public interest litigation model as an instrument for the delivery of fair and equitable justice, resistant to governmental apathy as well as economic and social privilege. The first part of the paper provides an account of the evolution of India’s constitutional courts’, and particularly the Supreme Court’s, role prior to the emergence
The Role of Independent Directors In Corporate Governance
by Prana Mittal
India’s higher judiciary has created and overseen the evolution of public interest litigation in India. This paper presents a strong defence for the public interest litigation model as an instrument for the delivery of fair and equitable justice, resistant to governmental apathy as well as economic and social privilege. The first part of the paper provides an account of the evolution of India’s constitutional courts’, and particularly the Supreme Court’s, role prior to the emergence
Article
Facebook and the Right to Privacy: Walking a Tight Rope
by Arun Mal & Jenisha Parikh
While there has been a spate of public outcry against rampant privacy violations on social networking sites in the recent past, the current law of privacy appears to be ill-equipped to reinvent itself in the internet age and rise to the emerging challenge of affording adequate protection to personal information online. This article seeks to identify the various in- stances of privacy abuse that have become common on social networks and explores various social and
Facebook and the Right to Privacy: Walking a Tight Rope
by Arun Mal & Jenisha Parikh
While there has been a spate of public outcry against rampant privacy violations on social networking sites in the recent past, the current law of privacy appears to be ill-equipped to reinvent itself in the internet age and rise to the emerging challenge of affording adequate protection to personal information online. This article seeks to identify the various in- stances of privacy abuse that have become common on social networks and explores various social and
Article
Twisting the Dragon’s Tale: India’s Path to Successful SEZs? The Answer May Lie in China
by Iram Huq & Pratyush Saha
A flourishing group of SEZs, otherwise known as Special Economic Zone, seems to be a golden goal for every developing nation that aspires to be one of the giants in international trade. Both India and China had realized the same, possibly three decades back. What differs is the way these two countries have approached this issue. The reason why China is reaping the success now is because of appropriate policy measures that she adopted from
Twisting the Dragon’s Tale: India’s Path to Successful SEZs? The Answer May Lie in China
by Iram Huq & Pratyush Saha
A flourishing group of SEZs, otherwise known as Special Economic Zone, seems to be a golden goal for every developing nation that aspires to be one of the giants in international trade. Both India and China had realized the same, possibly three decades back. What differs is the way these two countries have approached this issue. The reason why China is reaping the success now is because of appropriate policy measures that she adopted from
Book Review
Family Law- Volume I: Family Laws & Constitutional Claims And Volume II: Marriage, Divorce, And Matrimonial Litigation, Flavia Agnes, Oxford University Press, New Delhi, 2011
by Vaneeta Patnaik
Matrimonial jurisprudence, being the main theme of the volumes, has been well explored...
Family Law- Volume I: Family Laws & Constitutional Claims And Volume II: Marriage, Divorce, And Matrimonial Litigation, Flavia Agnes, Oxford University Press, New Delhi, 2011
by Vaneeta Patnaik
Matrimonial jurisprudence, being the main theme of the volumes, has been well explored...
Volume 4 Issue 1
Convocation Speech
The Chancellor's Address
by Justice Altamas Kabir
Friends, On the occasion of your Annual Convocation, I felt that instead of giving you a scholarly lecture on a legal topic, it would be more appropriate to give you a bit of information, some of which you may already have, that may help you in making a decision in pursuing in law...
The Chancellor's Address
by Justice Altamas Kabir
Friends, On the occasion of your Annual Convocation, I felt that instead of giving you a scholarly lecture on a legal topic, it would be more appropriate to give you a bit of information, some of which you may already have, that may help you in making a decision in pursuing in law...
Article
Intellectual Property and Compettition Law: Divergence, Convergence, and Independence
by Gitanjali Shankar & Nitika Gupta
Intellectual property rights grant a degree of exclusivity to the owners, necessarily restricting access of others to the same. On the other hand, anti-trust law seeks to promote competition and increase access to the market. There is a seemingly inherent conflict between the two. Yet, there is increasing opinion that the two realms can, not only co-exist but also complement each other. This article seeks to trace the shift from divergence of the two areas
Intellectual Property and Compettition Law: Divergence, Convergence, and Independence
by Gitanjali Shankar & Nitika Gupta
Intellectual property rights grant a degree of exclusivity to the owners, necessarily restricting access of others to the same. On the other hand, anti-trust law seeks to promote competition and increase access to the market. There is a seemingly inherent conflict between the two. Yet, there is increasing opinion that the two realms can, not only co-exist but also complement each other. This article seeks to trace the shift from divergence of the two areas
Article
Comparative Advertising in India: Evolving a Regulatory Framework
by Parth Gokhale & Shriyani Datta
The increasing role of advertising in the consumer goods market with multiple players has resulted in the phenomenon of comparative advertising, wherein a seller attempts to derive pecuniary benefit by drawing a comparison between his product or service and that of a competitor. Comparative advertising may be restricted to simple puffery, which involves the seller making superlative statements of opinion about the utility of his own product. In case such puffery crosses the limits of
Comparative Advertising in India: Evolving a Regulatory Framework
by Parth Gokhale & Shriyani Datta
The increasing role of advertising in the consumer goods market with multiple players has resulted in the phenomenon of comparative advertising, wherein a seller attempts to derive pecuniary benefit by drawing a comparison between his product or service and that of a competitor. Comparative advertising may be restricted to simple puffery, which involves the seller making superlative statements of opinion about the utility of his own product. In case such puffery crosses the limits of
Article
Constitutional Adjudication and Constitutional Interpretation: Between Law and Politics
by Dieter Grimm
This article aims to deal with the evolution of constitutional adjudication as a formal mechanism for resolving disputes in the area of constitutional law. The interface between law and politics is rather evident in the interpretation offered by courts. This can create obstacles mainly because of the differences that exist between constitutional law and ordinary law. While this interaction has always existed, at times, it gives rise to certain inevitable conflicts in interpretation thus casting
Constitutional Adjudication and Constitutional Interpretation: Between Law and Politics
by Dieter Grimm
This article aims to deal with the evolution of constitutional adjudication as a formal mechanism for resolving disputes in the area of constitutional law. The interface between law and politics is rather evident in the interpretation offered by courts. This can create obstacles mainly because of the differences that exist between constitutional law and ordinary law. While this interaction has always existed, at times, it gives rise to certain inevitable conflicts in interpretation thus casting
Article
A Case for Enacting Adequate Sports Legislation Through an Analysis of the Legal Debacle of the 2010 Common Wealth Games
by Shan Kohli
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
A Case for Enacting Adequate Sports Legislation Through an Analysis of the Legal Debacle of the 2010 Common Wealth Games
by Shan Kohli
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
Article
Same-Sex Love and Indian Penal Code § 377: An Important Human Rights Issue for India
by Robert Wintemute
The paper discusses the relatively new phenomena of “sexual orientation” and “gender identity”, the reasons why criminalisation of same-sex sexual activity by IPC §377 is an important human rights issue for India, the roots of §377 in Christian religious law, and the repeal of its equivalent in English criminal law. It then examines the trends in international and comparative human rights law that would support a decision by the Supreme Court of India to affirm
Same-Sex Love and Indian Penal Code § 377: An Important Human Rights Issue for India
by Robert Wintemute
The paper discusses the relatively new phenomena of “sexual orientation” and “gender identity”, the reasons why criminalisation of same-sex sexual activity by IPC §377 is an important human rights issue for India, the roots of §377 in Christian religious law, and the repeal of its equivalent in English criminal law. It then examines the trends in international and comparative human rights law that would support a decision by the Supreme Court of India to affirm
Convocation Speech
Meritocracy and its Discontents
by Pratap Bhanu Mehta
Hon’ble Chief Justice of India, Professor M.P. Singh, Vice-Chancellor, NUJS, dignitaries, distinguished faculty of NUJS, guests and above all, students, it is truly humbling to be asked to speak on this occasion for several reasons. The most important reason is that convocation includes many things. It marks an important day in the life of an institution, a signal that the institution has completed its part in a pedagogic mission that brought you here. For the
Meritocracy and its Discontents
by Pratap Bhanu Mehta
Hon’ble Chief Justice of India, Professor M.P. Singh, Vice-Chancellor, NUJS, dignitaries, distinguished faculty of NUJS, guests and above all, students, it is truly humbling to be asked to speak on this occasion for several reasons. The most important reason is that convocation includes many things. It marks an important day in the life of an institution, a signal that the institution has completed its part in a pedagogic mission that brought you here. For the
Article
Copyright v. Copyleft: A Feminist Perspective on Marginalization under Copyright Laws
by Radhika Gupta
Copyright law grants certain exclusive rights to the author of a work, aiming to encourage creativity. This article uses jurisprudential theory, particularly the feminist perspective, to bring out the fallacies in the existing copyright regime and advocates in favour of the emerging copyleft regime, which is against granting exclusive rights to the creator of the work. The article argues that copyright law is inadequate in incorporating the varied kinds of works of different and diverse
Copyright v. Copyleft: A Feminist Perspective on Marginalization under Copyright Laws
by Radhika Gupta
Copyright law grants certain exclusive rights to the author of a work, aiming to encourage creativity. This article uses jurisprudential theory, particularly the feminist perspective, to bring out the fallacies in the existing copyright regime and advocates in favour of the emerging copyleft regime, which is against granting exclusive rights to the creator of the work. The article argues that copyright law is inadequate in incorporating the varied kinds of works of different and diverse
Article
Rent Control in India – Obstacles for Urban Reform
by Aditya Alok & Pankti Vora
Rent Control has been one of the foremost welfare measures that have survived in India. The governments of various countries have tried from time to time to make sure the laws are apt to meet the requirements. In the first decade of the 21st century, however, rent control has been seen as an obstacle to urban reforms. The paper takes a look at the extant legal regime and the proposed changes. It needs to be
Rent Control in India – Obstacles for Urban Reform
by Aditya Alok & Pankti Vora
Rent Control has been one of the foremost welfare measures that have survived in India. The governments of various countries have tried from time to time to make sure the laws are apt to meet the requirements. In the first decade of the 21st century, however, rent control has been seen as an obstacle to urban reforms. The paper takes a look at the extant legal regime and the proposed changes. It needs to be
Article
Cross-Border Mergers In Light Of The Fallout Of The Bharti – MTN Deal
by Esha Shekhar and Vasudha Sharma*
Mergers and acquisitions are increasingly being used and getting accepted by Indian business entities as a critical tool of business strategy. In recent times, with globalization being the byword of success, cross-border mergers are looked upon as a one way solution to gaining access to foreign market and creating an image to compete with big corporates. The attempt by Bharti enterprises to integrate with the South African giant, MTN Ltd., however, brought many lacunae in
Cross-Border Mergers In Light Of The Fallout Of The Bharti – MTN Deal
by Esha Shekhar and Vasudha Sharma*
Mergers and acquisitions are increasingly being used and getting accepted by Indian business entities as a critical tool of business strategy. In recent times, with globalization being the byword of success, cross-border mergers are looked upon as a one way solution to gaining access to foreign market and creating an image to compete with big corporates. The attempt by Bharti enterprises to integrate with the South African giant, MTN Ltd., however, brought many lacunae in
Volume 3 Issue 4
Article
Enhancement of Maritime Law Education in the Indian Context
by Proshanto K. Mukherjee
Trade is the life blood of a nation and shipping is the predominant mode through which international trade is carried out. India, as an emerging economic superpower, enjoys a rich maritime heritage in trade and commerce and its associated law is firmly rooted in historical antiquity. While modern Indian jurisprudence enjoys a high degree of repute and recognition in common law circles, in the maritime law field, India is yet to secure a position of
Enhancement of Maritime Law Education in the Indian Context
by Proshanto K. Mukherjee
Trade is the life blood of a nation and shipping is the predominant mode through which international trade is carried out. India, as an emerging economic superpower, enjoys a rich maritime heritage in trade and commerce and its associated law is firmly rooted in historical antiquity. While modern Indian jurisprudence enjoys a high degree of repute and recognition in common law circles, in the maritime law field, India is yet to secure a position of
Article
Liability and Compensation for Oil Pollution Damage: An Examination of IMO Conventions
by R. Bhanu Krishna Kiran
The universal regime addressing the issues of ship-source oil spill liability and compensation are primarily governed by International Maritime Organization (‘IMO’) conventions. The IMO regime imposes liability on the shipping industry based on the principle that the polluter must pay. The civil liability conventions lay down the principle of strict liability for ship owners and create a system of compulsory liability insurance. Claims for compensation for oil pollution damage (including clean-up costs) may be brought
Liability and Compensation for Oil Pollution Damage: An Examination of IMO Conventions
by R. Bhanu Krishna Kiran
The universal regime addressing the issues of ship-source oil spill liability and compensation are primarily governed by International Maritime Organization (‘IMO’) conventions. The IMO regime imposes liability on the shipping industry based on the principle that the polluter must pay. The civil liability conventions lay down the principle of strict liability for ship owners and create a system of compulsory liability insurance. Claims for compensation for oil pollution damage (including clean-up costs) may be brought
Article
The Judicial Recognition and Enforcement of the Right to Environment: Differing perspectives from Nigeria and India
by Rhuks Temitope
Environmental rights are one of the emerging rights in the arena of international human rights law and international environmental law. This paper analyses the judiciary’s roles in advancing the right to a healthy environment in Nigeria and India. These two countries have certain similarities and yet there exists a remarkable difference between the levels of recognition of the right to environment in both countries. The concept of environment rights will be traced by drawing the
The Judicial Recognition and Enforcement of the Right to Environment: Differing perspectives from Nigeria and India
by Rhuks Temitope
Environmental rights are one of the emerging rights in the arena of international human rights law and international environmental law. This paper analyses the judiciary’s roles in advancing the right to a healthy environment in Nigeria and India. These two countries have certain similarities and yet there exists a remarkable difference between the levels of recognition of the right to environment in both countries. The concept of environment rights will be traced by drawing the
Article
Legal Intervention in Poverty Alleviation: Enriching the Poor Through Law
by Vikrant Narayan Vasudeva
Poverty can be regarded as the single most universal phenomenon forming an unvarying and uniform thread that transcends all boundaries and nations. A whole gamut of complexities is encompassed by the single word ‘poverty’. India’s plunge into mass poverty manifested during the colonial era and markedly accelerated throughout that phase. A poverty alleviation agenda involves several distinct essentials: first, it is crucial to define poverty for a particular region, which can be done only if the specific causative factors are underlined. Based on
Legal Intervention in Poverty Alleviation: Enriching the Poor Through Law
by Vikrant Narayan Vasudeva
Poverty can be regarded as the single most universal phenomenon forming an unvarying and uniform thread that transcends all boundaries and nations. A whole gamut of complexities is encompassed by the single word ‘poverty’. India’s plunge into mass poverty manifested during the colonial era and markedly accelerated throughout that phase. A poverty alleviation agenda involves several distinct essentials: first, it is crucial to define poverty for a particular region, which can be done only if the specific causative factors are underlined. Based on
Article
Privacy and the National Identification Authority of Indian Bill: Leaving Much to the Imagination
by Amba Uttara Kak & Swati Malik
The National Identification Authority of India Bill (‘the Bill’) leaves many things unsaid. It has delegated most key areas relating to the institution of the system of unique identification (‘UID’) numbers (officially known as ‘aadhar’ numbers) to rules to be framed by the authority subsequently. Its definitions are almost all open-ended. Right from the public announcement of the project, to the drafting of the Bill, the furore over the introduction of this system of identification
Privacy and the National Identification Authority of Indian Bill: Leaving Much to the Imagination
by Amba Uttara Kak & Swati Malik
The National Identification Authority of India Bill (‘the Bill’) leaves many things unsaid. It has delegated most key areas relating to the institution of the system of unique identification (‘UID’) numbers (officially known as ‘aadhar’ numbers) to rules to be framed by the authority subsequently. Its definitions are almost all open-ended. Right from the public announcement of the project, to the drafting of the Bill, the furore over the introduction of this system of identification
Article
The Vodafone Judgement-Wider Concerns of Withholding Tax under the Income Tax Act
by Anisha Keyal & Pritika Rai Advani
The decision of the Bombay High Court in Vodafone’s challenge to a $1.7-billion tax notice served on the company related with the acquisition of majority stake in Hutchison Essar Limited has wide ramifications for large, cross-border transactions. The ruling states that the Income Tax Department has the jurisdiction to send notice to Vodafone to pay Rs 12,297 crore as tax liability for its 2007 Hutch- Vodafone deal. It based its ruling on the reason that
The Vodafone Judgement-Wider Concerns of Withholding Tax under the Income Tax Act
by Anisha Keyal & Pritika Rai Advani
The decision of the Bombay High Court in Vodafone’s challenge to a $1.7-billion tax notice served on the company related with the acquisition of majority stake in Hutchison Essar Limited has wide ramifications for large, cross-border transactions. The ruling states that the Income Tax Department has the jurisdiction to send notice to Vodafone to pay Rs 12,297 crore as tax liability for its 2007 Hutch- Vodafone deal. It based its ruling on the reason that
Article
Rendering India into an Arbitration Friendly Jurisdiction- Analysis of the Proposed Amendments to the Arbitration and Conciliation Act, 1996
by Vasudha Sharma & Pankhuri Agarwal
The Arbitration and Conciliation Act, 1996 was enacted by the Parliament with an objective to minimise intervention by courts in the process of arbitration. However, over a period of time the interpretation adopted by the higher judiciary to various provisions of the Act has been contrary to this objective. With a view to rectify this situation, the Ministry of Law and Justice released a Consultation Paper proposing amendments to the Arbitration and Conciliation Act, 1996. The present paper attempts to summarise
Rendering India into an Arbitration Friendly Jurisdiction- Analysis of the Proposed Amendments to the Arbitration and Conciliation Act, 1996
by Vasudha Sharma & Pankhuri Agarwal
The Arbitration and Conciliation Act, 1996 was enacted by the Parliament with an objective to minimise intervention by courts in the process of arbitration. However, over a period of time the interpretation adopted by the higher judiciary to various provisions of the Act has been contrary to this objective. With a view to rectify this situation, the Ministry of Law and Justice released a Consultation Paper proposing amendments to the Arbitration and Conciliation Act, 1996. The present paper attempts to summarise
Book Review
Law of Sale of Goods by Avtar Singh, Eastern Book Company, Lucknow, 2011
by Lovely Dasgupta
A book which is intended to be nothing more than a commentary on an area of law is expected to have specific objectives. Firstly, the book should map out the general principles that are a part and parcel of the concerned field of study. Secondly, the book should provide explanatory notes with lucid illustrations, explaining the various situations where the general principles have been applied. Thirdly, the book should give an updated account of case
Law of Sale of Goods by Avtar Singh, Eastern Book Company, Lucknow, 2011
by Lovely Dasgupta
A book which is intended to be nothing more than a commentary on an area of law is expected to have specific objectives. Firstly, the book should map out the general principles that are a part and parcel of the concerned field of study. Secondly, the book should provide explanatory notes with lucid illustrations, explaining the various situations where the general principles have been applied. Thirdly, the book should give an updated account of case
Volume 3 Issue 3
Article
Right to have Rights - The German Constitutional Concept of Human Dignity
by Christoph Enders
The German constitution declares in its first Amendment that human dignity is inviolable and declares its protection a duty of the state. The following text explores the concept of human dignity as “a right to have rights” that can be derived from this constitutional passage. References to different decisions of the German Federal Constitutional Court reveal the importance and complexity of this concept and its meaning for the understanding and interpretation of the German Constitution
Right to have Rights - The German Constitutional Concept of Human Dignity
by Christoph Enders
The German constitution declares in its first Amendment that human dignity is inviolable and declares its protection a duty of the state. The following text explores the concept of human dignity as “a right to have rights” that can be derived from this constitutional passage. References to different decisions of the German Federal Constitutional Court reveal the importance and complexity of this concept and its meaning for the understanding and interpretation of the German Constitution
Article
Law as a Medium of Democratic Discourse
by Rajeev Kadambi
The article proposes to argue a philosophical foundation of legal legitimacy descriptively basing it from Jürgen Habermas’ idea of the discourse theory. It addresses two closely connected questions: firstly,how is legitimacy of law possible? Legitimacy of law is possible through the democratic medium. The second section briefly charts the differing viewpoints of Hobbes, Locke, Rousseau, and Kant on the lines of reconciling individual autonomy and collective autonomy. Further, similarly, justifications of legal legitimacy receive an
Law as a Medium of Democratic Discourse
by Rajeev Kadambi
The article proposes to argue a philosophical foundation of legal legitimacy descriptively basing it from Jürgen Habermas’ idea of the discourse theory. It addresses two closely connected questions: firstly,how is legitimacy of law possible? Legitimacy of law is possible through the democratic medium. The second section briefly charts the differing viewpoints of Hobbes, Locke, Rousseau, and Kant on the lines of reconciling individual autonomy and collective autonomy. Further, similarly, justifications of legal legitimacy receive an
Article
Public Procurement Law in Bangladesh: From Bureaucratisation to Accountability
by Ridwanul Hoque
Bangladesh’s public procurement law has sought to ensure transparency, accountability and fairness in government procurements. Whether its accountability goal has been satisfactorily achieved is, however, a debatable issue. The author argues that the procurement rules are somewhat de-effected both by bureaucratisation and technical avoidance of the rules. On the other hand, the judiciary does not follow a searching review of public contracts. In this background, the author analyses the Bangladeshi procurement laws and practices with
Public Procurement Law in Bangladesh: From Bureaucratisation to Accountability
by Ridwanul Hoque
Bangladesh’s public procurement law has sought to ensure transparency, accountability and fairness in government procurements. Whether its accountability goal has been satisfactorily achieved is, however, a debatable issue. The author argues that the procurement rules are somewhat de-effected both by bureaucratisation and technical avoidance of the rules. On the other hand, the judiciary does not follow a searching review of public contracts. In this background, the author analyses the Bangladeshi procurement laws and practices with
Article
Litigation versus Non-Litigation: ‘Practice of Law' under the Advocates Act
by Gitanjali Shankar & Amba Uttara Kak
This article seeks to analyse the decision of the Bombay High Court in Lawyers Collective v. Bar Council of India (hereinafter Lawyers’ Collective judgement). The petitioners had challenged the permission granted by the RBI to certain foreign firms to set up liaison offices in India. The Court went on to examine whether non-litigious practice comes within the ambit of ‘practice of law’ under the Advocates Act. In this article, the authors seek to examine the
Litigation versus Non-Litigation: ‘Practice of Law' under the Advocates Act
by Gitanjali Shankar & Amba Uttara Kak
This article seeks to analyse the decision of the Bombay High Court in Lawyers Collective v. Bar Council of India (hereinafter Lawyers’ Collective judgement). The petitioners had challenged the permission granted by the RBI to certain foreign firms to set up liaison offices in India. The Court went on to examine whether non-litigious practice comes within the ambit of ‘practice of law’ under the Advocates Act. In this article, the authors seek to examine the
Article
Gene Patents and Right to Health
by Mathews P. George & Akanksha Kaushik
Genes hold the blueprint of the human body. Since genetic code contains all the necessary information for the continued physiological functions of the organism, patent over a gene can potentially determine all the downstream inventions. In light of genes modified with significant human intervention being considered a valid patentable subject matter under the Patents Act, 1970, this article explores the conflicts between gene patents and the right to health at four different levels, viz., availability,
Gene Patents and Right to Health
by Mathews P. George & Akanksha Kaushik
Genes hold the blueprint of the human body. Since genetic code contains all the necessary information for the continued physiological functions of the organism, patent over a gene can potentially determine all the downstream inventions. In light of genes modified with significant human intervention being considered a valid patentable subject matter under the Patents Act, 1970, this article explores the conflicts between gene patents and the right to health at four different levels, viz., availability,
Article
WTO Ramifications of Internet Censorship: the Google-China Controversy
by Ritika Patni & Nihal Joseph
On January 12, 2010, Google threatened to quit China over internet censorship demands. The incident was triggered by a ‘highly sophisticated’ cyber attack that was allegedly launched by the Chinese government on Google’s website. This controversy has unleashed a raging debate on the issue of internet freedom versus regulation of internet by states. Another interesting dimension of this hotly contested issue is whether censorship of the internet is in violation of the norms of international
WTO Ramifications of Internet Censorship: the Google-China Controversy
by Ritika Patni & Nihal Joseph
On January 12, 2010, Google threatened to quit China over internet censorship demands. The incident was triggered by a ‘highly sophisticated’ cyber attack that was allegedly launched by the Chinese government on Google’s website. This controversy has unleashed a raging debate on the issue of internet freedom versus regulation of internet by states. Another interesting dimension of this hotly contested issue is whether censorship of the internet is in violation of the norms of international
Article
Anatomy of a Death Penalty Defence Lawyer: Reflections on Legal Representation and Reform in Three Biographies
by Andrew Novak
The statistics would be shocking enough even if death were not involved. Large numbers of prisoners have inadequate legal counsel and, in later stages of the appellate process, no counsel at all. Death sentences, in the aggregate, continue to be disproportionately imposed on persons of limited economic means and members of disadvantaged minority communities...
Anatomy of a Death Penalty Defence Lawyer: Reflections on Legal Representation and Reform in Three Biographies
by Andrew Novak
The statistics would be shocking enough even if death were not involved. Large numbers of prisoners have inadequate legal counsel and, in later stages of the appellate process, no counsel at all. Death sentences, in the aggregate, continue to be disproportionately imposed on persons of limited economic means and members of disadvantaged minority communities...
Article
Invocation of Strict Scrutiny in Indian: Why the Opposition?
by Moiz Tundawala
The primary focus of this paper is to analyse the suitability and applicability of the United States doctrine of strict scrutiny to Indian constitutional jurisprudence. Courts in India have employed the principle of presumption of constitutionality as well as the rational nexus test to ascertain the constitutionality of laws allegedly violating the rule of equality. In contradistinction, the strict scrutiny doctrine subjects laws based on certain suspect classifications or infringing fundamental rights to higher judicial
Invocation of Strict Scrutiny in Indian: Why the Opposition?
by Moiz Tundawala
The primary focus of this paper is to analyse the suitability and applicability of the United States doctrine of strict scrutiny to Indian constitutional jurisprudence. Courts in India have employed the principle of presumption of constitutionality as well as the rational nexus test to ascertain the constitutionality of laws allegedly violating the rule of equality. In contradistinction, the strict scrutiny doctrine subjects laws based on certain suspect classifications or infringing fundamental rights to higher judicial
Volume 3 Issue 2
Article
Pre-British Human Rights Jurisprudence
by Justice B.N. Srikrishna
Human rights are the basic rights and freedoms to which all humans are entitled. The concept of human rights has existed under several names in European thought for many centuries, though perhaps coming into prominence since the time of King John of England. After the king violated a number of ancient laws and customs by which England had been governed, there was a popular upheaval and his subjects forced him to sign the Magna Carta,
Pre-British Human Rights Jurisprudence
by Justice B.N. Srikrishna
Human rights are the basic rights and freedoms to which all humans are entitled. The concept of human rights has existed under several names in European thought for many centuries, though perhaps coming into prominence since the time of King John of England. After the king violated a number of ancient laws and customs by which England had been governed, there was a popular upheaval and his subjects forced him to sign the Magna Carta,
Article
Islam, Terrorism and Modern Liberal Societies
by Dr. Mohammed Saif-Alden Wattad
This paper seeks to find an answer to the longstanding dilemma of whether there is room for Islam in modern liberal societies by posing rhetorical questions to Western democracies and members of the Islamic faith alike. Written from the neutral perspective of an outsider, it argues that a misplaced notion of self-censorship and a mentality of constant rejection of criticism characterise Islamic responses to contemporary world controversies. The paper regards such behaviour to be hypocritical to notions of free speech and expression
Islam, Terrorism and Modern Liberal Societies
by Dr. Mohammed Saif-Alden Wattad
This paper seeks to find an answer to the longstanding dilemma of whether there is room for Islam in modern liberal societies by posing rhetorical questions to Western democracies and members of the Islamic faith alike. Written from the neutral perspective of an outsider, it argues that a misplaced notion of self-censorship and a mentality of constant rejection of criticism characterise Islamic responses to contemporary world controversies. The paper regards such behaviour to be hypocritical to notions of free speech and expression
Article
India’s Response to Climate Change: The 2009 Copenhagen Summit and Beyond
by Autri Saha & Karan Talwar
The 15th Conference of the Parties (COP 15) of the United Nations Framework Convention on Climate Change (UNFCCC) in Copenhagen was meant to work out an international response to climate change and develop a cooperative long-term plan to address climate change. The outcome of the summit was a three-page ‘Copenhagen Accord’. Termed by many as the ‘dead deal’, and bitterly criticized by many environmentalists, it fails to map a clear path towards a treaty with
India’s Response to Climate Change: The 2009 Copenhagen Summit and Beyond
by Autri Saha & Karan Talwar
The 15th Conference of the Parties (COP 15) of the United Nations Framework Convention on Climate Change (UNFCCC) in Copenhagen was meant to work out an international response to climate change and develop a cooperative long-term plan to address climate change. The outcome of the summit was a three-page ‘Copenhagen Accord’. Termed by many as the ‘dead deal’, and bitterly criticized by many environmentalists, it fails to map a clear path towards a treaty with
Article
Viability of the Auction Method of French Public Offerings in India – An Analysis
by Harsh Kabra & Yash Bansal
The initial months of 2010 witnessed a new method, called the French Auction, being used for the pricing of subsequent share issues of several public sector undertakings. This was admittedly brought about with a view to maximizing the divestment proceeds of the undertakings. The method was used in place of the book building method, where the issuer would specify a price band and allocate shares at a specific price within that band, depending on the
Viability of the Auction Method of French Public Offerings in India – An Analysis
by Harsh Kabra & Yash Bansal
The initial months of 2010 witnessed a new method, called the French Auction, being used for the pricing of subsequent share issues of several public sector undertakings. This was admittedly brought about with a view to maximizing the divestment proceeds of the undertakings. The method was used in place of the book building method, where the issuer would specify a price band and allocate shares at a specific price within that band, depending on the
Article
Use of the Corporate Vehicle for Tax Planning: the Vodafone Case and Direct Taxes Code
by Mathews P. George & Pankhuri Agarwal
The use of corporate entity in tax planning is permissible as long as it is not used as a colourable device. The Vodafone judgment in 2009 applied lax standards to lift the corporate veil. If the tax claim eventually becomes successful, it can make any tax planning involving a corporate entity difficult. From provisions related to General Anti- Avoidance Rule, residence of a foreign company, Controlled Foreign Corporations and Double Tax Avoidance Agreements under the
Use of the Corporate Vehicle for Tax Planning: the Vodafone Case and Direct Taxes Code
by Mathews P. George & Pankhuri Agarwal
The use of corporate entity in tax planning is permissible as long as it is not used as a colourable device. The Vodafone judgment in 2009 applied lax standards to lift the corporate veil. If the tax claim eventually becomes successful, it can make any tax planning involving a corporate entity difficult. From provisions related to General Anti- Avoidance Rule, residence of a foreign company, Controlled Foreign Corporations and Double Tax Avoidance Agreements under the
Article
Parody of National Anthem: Ram Gopal Varma Ki Nayi Aag
by Shan Kohli
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
Parody of National Anthem: Ram Gopal Varma Ki Nayi Aag
by Shan Kohli
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
Article
Inter-Country Abductions and Private International Law
by Abhijit Kumar Pandey & Roshan Santhalia
This paper discusses the problem of international child abduction by parents, a growing phenomenon owing to several reasons. It discusses the attempts made through the Hague Convention and points out the shortcomings of the Convention in dealing with the problem. It is argued that the ambiguity in and varying interpretations accorded to the treaty provisions, undue delays in enforcement of judgments and the limited acceptance of the Convention largely undermine the effectiveness of the Convention.
Inter-Country Abductions and Private International Law
by Abhijit Kumar Pandey & Roshan Santhalia
This paper discusses the problem of international child abduction by parents, a growing phenomenon owing to several reasons. It discusses the attempts made through the Hague Convention and points out the shortcomings of the Convention in dealing with the problem. It is argued that the ambiguity in and varying interpretations accorded to the treaty provisions, undue delays in enforcement of judgments and the limited acceptance of the Convention largely undermine the effectiveness of the Convention.
Book Review
The Judge Speaks, Dr. Justice A.R Lakshmanan Universal Law Publishing Co., New Delhi, 2009
by Daniel Mathew
There are many reasons why one should peruse a judge’s writing. For one it is an excellent source for gauging a judge’s thought process - the way a judge perceives an issue, his biases, his manner of comprehension, etc. Secondly, for insider information that would otherwise be hard to come along, and finally, how things had unfolded during the hearing of important judgments that the judge was involved with. Such information is almost impossible to
The Judge Speaks, Dr. Justice A.R Lakshmanan Universal Law Publishing Co., New Delhi, 2009
by Daniel Mathew
There are many reasons why one should peruse a judge’s writing. For one it is an excellent source for gauging a judge’s thought process - the way a judge perceives an issue, his biases, his manner of comprehension, etc. Secondly, for insider information that would otherwise be hard to come along, and finally, how things had unfolded during the hearing of important judgments that the judge was involved with. Such information is almost impossible to
Volume 3 Issue 1
Article
The Chancellor’s Address
by Hon’ble Justice K.G. Balakrishnan
Since its establishment in 2000, this institution has emerged as a prominent centre of legal education. The graduates from this institution have indeed made a very bright start to their careers. The wider socio-economic changes that have been taking place since the beginning of the economic liberalization in our country have created many promising career avenues for young lawyers. The choices range from mainstream litigation to opening s in commercial law firms and companies in
The Chancellor’s Address
by Hon’ble Justice K.G. Balakrishnan
Since its establishment in 2000, this institution has emerged as a prominent centre of legal education. The graduates from this institution have indeed made a very bright start to their careers. The wider socio-economic changes that have been taking place since the beginning of the economic liberalization in our country have created many promising career avenues for young lawyers. The choices range from mainstream litigation to opening s in commercial law firms and companies in
Article
Grant of Geographical Indication Designation to Tirupati Laddu: Commercialisation of Faith?
by Meghna Banerjee & Susanah Nausahd
Geographical Indications (GI) are signs which identify goods as originating in a specific geographic location. Being a collective right, it seeks to protect the economic interests of an entire community of producers from a particular region who specialize in the making or manufacturing of a native product. Although many products of Indian origin such as Basmati are not adequately protected under TRIPS, at the domestic level India ensures that GI protection is uniformly available to
Grant of Geographical Indication Designation to Tirupati Laddu: Commercialisation of Faith?
by Meghna Banerjee & Susanah Nausahd
Geographical Indications (GI) are signs which identify goods as originating in a specific geographic location. Being a collective right, it seeks to protect the economic interests of an entire community of producers from a particular region who specialize in the making or manufacturing of a native product. Although many products of Indian origin such as Basmati are not adequately protected under TRIPS, at the domestic level India ensures that GI protection is uniformly available to
Book Review
Legal Grounds: Natural Resources, Identity and the Law in Jharkhand, 1st Edition, Editor: Nandini Sundar. Oxford University Press, New Delhi, 2009
by Rukmini Sen
The unusual, yet perceptive interface between law and love connection sets the tone of the journey through Jharkhand. This is a journey not just of the formation of the state but a contested terrain of contestation, struggles and transformations that is what is stated in the introductory chapter by Nandini Sundar Laws, Policies and Practices in Jharkhand. Discussing the creation and modification of adivasi identity and its’ direct connection to law, Sundar metaphorically and convincingly
Legal Grounds: Natural Resources, Identity and the Law in Jharkhand, 1st Edition, Editor: Nandini Sundar. Oxford University Press, New Delhi, 2009
by Rukmini Sen
The unusual, yet perceptive interface between law and love connection sets the tone of the journey through Jharkhand. This is a journey not just of the formation of the state but a contested terrain of contestation, struggles and transformations that is what is stated in the introductory chapter by Nandini Sundar Laws, Policies and Practices in Jharkhand. Discussing the creation and modification of adivasi identity and its’ direct connection to law, Sundar metaphorically and convincingly
Article
Trade Law as a Form of Human Rights Protection?
by Lisa Yarwood
Many argue that there are linkages between trade and human rights regimes. The author takes the argument one step further and enquires whether trade regime itself can be termed a form of human right protection. In addition to examining individual WTO Agreements and provisions like Article XX of GATT, the author also argues how the broad principles underpinning the trade regime, like non-discrimination, right of market access and right of participation go on to further
Trade Law as a Form of Human Rights Protection?
by Lisa Yarwood
Many argue that there are linkages between trade and human rights regimes. The author takes the argument one step further and enquires whether trade regime itself can be termed a form of human right protection. In addition to examining individual WTO Agreements and provisions like Article XX of GATT, the author also argues how the broad principles underpinning the trade regime, like non-discrimination, right of market access and right of participation go on to further
Article
Bringing Clarity to Private Defence: The Singapore Experience
by Stanley Yeo
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.
Bringing Clarity to Private Defence: The Singapore Experience
by Stanley Yeo
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.
Convocation Speech
Convocation Address: The Viable University
by André Béteille
Are there any basic conditions that have to be met if the university is to be viable as an institution for the pursuit of science and scholarship? This is a difficult and contentious subject on which those who occupy positions of authority and dignity rarely speak on ceremonial occasions such as a university convocation. Since I occupy no such position, I shall take the liberty of addressing this question plainly and candidly...
Convocation Address: The Viable University
by André Béteille
Are there any basic conditions that have to be met if the university is to be viable as an institution for the pursuit of science and scholarship? This is a difficult and contentious subject on which those who occupy positions of authority and dignity rarely speak on ceremonial occasions such as a university convocation. Since I occupy no such position, I shall take the liberty of addressing this question plainly and candidly...
Article
The ‘3 IDIOTS’ Controversy - Focusing on the Contractual Liabilities and Moral Rights of the Author
by Debadyuti Banerjee & Parth Gokhale
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
The ‘3 IDIOTS’ Controversy - Focusing on the Contractual Liabilities and Moral Rights of the Author
by Debadyuti Banerjee & Parth Gokhale
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
Article
Towards Protection of Children Against Sexual Abuse: No Child’s Play
by Pallavi Nautiyal & Arun Mal
Indian society has tried very hard to sweep the issue of child sexual abuse under the carpet. It starts with the family hushing up instances of sexual abuse of children within the family, resulting in underreporting of the issue and a gross underestimation of the gravity of the problem. In a democracy, unless the society recognizes the need for a law to regulate an issue, the issue is not addressed. But the first step is
Towards Protection of Children Against Sexual Abuse: No Child’s Play
by Pallavi Nautiyal & Arun Mal
Indian society has tried very hard to sweep the issue of child sexual abuse under the carpet. It starts with the family hushing up instances of sexual abuse of children within the family, resulting in underreporting of the issue and a gross underestimation of the gravity of the problem. In a democracy, unless the society recognizes the need for a law to regulate an issue, the issue is not addressed. But the first step is
Article
The SEZ Act, 2005 – Issues of Conformity with WTO Rules 2005
by Rukmini Das & Kartik Khanna
The Special Economic Zones Act, 2005 is a legislation which was aimed at overcoming the shortcomings of an unstable fiscal regime and to attract larger foreign investments in India. With a view to avoiding multiplicity of controls and clearances and to incentivize entrepreneurs to manufacture goods in these zones, the Act gives certain exemptions in the form of various subsidies. There is thus a danger that the SEZ Act may fall foul of provisions of
The SEZ Act, 2005 – Issues of Conformity with WTO Rules 2005
by Rukmini Das & Kartik Khanna
The Special Economic Zones Act, 2005 is a legislation which was aimed at overcoming the shortcomings of an unstable fiscal regime and to attract larger foreign investments in India. With a view to avoiding multiplicity of controls and clearances and to incentivize entrepreneurs to manufacture goods in these zones, the Act gives certain exemptions in the form of various subsidies. There is thus a danger that the SEZ Act may fall foul of provisions of
Volume 2 Issue 4
Book Review
Ahmad Siddique’s Criminology & Penology, S M A Quadri Bhavani Prasad Panda, Eastern Book Company, Lucknow, 2009
by Bhavani Prasad Panda
Ahmad Siddique’s Criminology & Penology is a successful book on the subject, used extensively by the law students in India. The author has attempted to update and has successfully incorporated the emerging changes, thus providing a new look to the earlier treatise. The book under review is a walk through the subject ‘criminology and penology’ and is concerned with the nature, causes, prevention, punishment, administration etc., of crime. It largely focuses on the definitions of
Ahmad Siddique’s Criminology & Penology, S M A Quadri Bhavani Prasad Panda, Eastern Book Company, Lucknow, 2009
by Bhavani Prasad Panda
Ahmad Siddique’s Criminology & Penology is a successful book on the subject, used extensively by the law students in India. The author has attempted to update and has successfully incorporated the emerging changes, thus providing a new look to the earlier treatise. The book under review is a walk through the subject ‘criminology and penology’ and is concerned with the nature, causes, prevention, punishment, administration etc., of crime. It largely focuses on the definitions of
Article
Juvenile Justice: Securing the Rights of Children During 1998 - 2008
by Ved Kumari
This article seeks to assess functioning of the legislative framework for juvenile offenders over the past ten years. It discusses various technical issues under the Juvenile Justice Act, 2000 such as the date of application of the Act, whether it overrides other special Acts in its application to children, methods for determination of age of children and procedural relaxations for raising the plea that the offender is a child, and concludes that significant reform has been achieved in these areas. The absence of an
Juvenile Justice: Securing the Rights of Children During 1998 - 2008
by Ved Kumari
This article seeks to assess functioning of the legislative framework for juvenile offenders over the past ten years. It discusses various technical issues under the Juvenile Justice Act, 2000 such as the date of application of the Act, whether it overrides other special Acts in its application to children, methods for determination of age of children and procedural relaxations for raising the plea that the offender is a child, and concludes that significant reform has been achieved in these areas. The absence of an
Article
Juvenile Justice Administration in Nigeria
by Hakeem Ijaiya
This article seeks to analyse the state of the system of juvenile justice administration in Nigeria against the background of international framework and guidelines. The author finds the Nigerian setup to be inadequate for ensuring juvenile justice because of inconsistencies and ambiguities in municipal legislation – for example, the age of criminal responsibility is different under various statutes, and the bail provisions are capable of being abused. Further, policemen are known to have been brutal in their dealings with juvenile offenders, and lack of specially trained
Juvenile Justice Administration in Nigeria
by Hakeem Ijaiya
This article seeks to analyse the state of the system of juvenile justice administration in Nigeria against the background of international framework and guidelines. The author finds the Nigerian setup to be inadequate for ensuring juvenile justice because of inconsistencies and ambiguities in municipal legislation – for example, the age of criminal responsibility is different under various statutes, and the bail provisions are capable of being abused. Further, policemen are known to have been brutal in their dealings with juvenile offenders, and lack of specially trained
Article
Judicial Intervention in International Arbitration
by Rukmini Das & Anisha Keyal
Domestic laws of different countries adopt varying approacheson how much power of adjudication can be vested in tribunalswhich function outside the States’ monopoly in administeringjustice. This is reflected in varying positions adopted indifferent jurisdictions on the permissibility and scope ofintervention by domestic judiciary in international commercialarbitrations. Indian judiciary has taken an expansionarystance in respect of its power of intervention. This articleanalyses this expansionary outlook of the Indian judiciary inthe context of interim measures and argues
Judicial Intervention in International Arbitration
by Rukmini Das & Anisha Keyal
Domestic laws of different countries adopt varying approacheson how much power of adjudication can be vested in tribunalswhich function outside the States’ monopoly in administeringjustice. This is reflected in varying positions adopted indifferent jurisdictions on the permissibility and scope ofintervention by domestic judiciary in international commercialarbitrations. Indian judiciary has taken an expansionarystance in respect of its power of intervention. This articleanalyses this expansionary outlook of the Indian judiciary inthe context of interim measures and argues
Article
Patentability of Incremental Innovation vis-à-vis § 3(d) of the Indian Patents Act: Striking a Balance
by Meghna Banerjee & Yajnaseni Roy
The strict standards of patentability envisaged by TRIPS posed a challenge to India’s pharmaceutical industries, whose success depended on the ability to produce generic drugs at much cheaper prices than their patented counterparts. A robust patent system would severely curtail access to expensive life saving drugs. Therefore, although India amended the Indian Patent Act, 1970 to protect genuine innovations, it did not extend protection to “incremental innovation” on existing medicines unless such innovation significantly increased
Patentability of Incremental Innovation vis-à-vis § 3(d) of the Indian Patents Act: Striking a Balance
by Meghna Banerjee & Yajnaseni Roy
The strict standards of patentability envisaged by TRIPS posed a challenge to India’s pharmaceutical industries, whose success depended on the ability to produce generic drugs at much cheaper prices than their patented counterparts. A robust patent system would severely curtail access to expensive life saving drugs. Therefore, although India amended the Indian Patent Act, 1970 to protect genuine innovations, it did not extend protection to “incremental innovation” on existing medicines unless such innovation significantly increased
Article
From Roe v. Wade to Fetal Pain Legislation: A Reflection of American Jurisprudence on the Indian Milieu of Liberalised Abortion Policies
by Debadyuti Banerjee & Ujwala Uppaluri
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
From Roe v. Wade to Fetal Pain Legislation: A Reflection of American Jurisprudence on the Indian Milieu of Liberalised Abortion Policies
by Debadyuti Banerjee & Ujwala Uppaluri
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
Article
The Death Penalty: A New Perspective in Light of Santosh Bariyar Case
by Autri Saha & Pritika Rai Advani
The recent decision of the Supreme Court in Santosh Bariyar is a welcome step in India’s death penalty jurisprudence, in that it revisits the case of Bachan Singh as the defining law on the subject. The judgment calls for the prosecution to show by leading evidence that there is no possibility of rehabilitation of the accused and that life imprisonment will serve no purpose. This article essentially seeks to explore the ramifications of this judgment
The Death Penalty: A New Perspective in Light of Santosh Bariyar Case
by Autri Saha & Pritika Rai Advani
The recent decision of the Supreme Court in Santosh Bariyar is a welcome step in India’s death penalty jurisprudence, in that it revisits the case of Bachan Singh as the defining law on the subject. The judgment calls for the prosecution to show by leading evidence that there is no possibility of rehabilitation of the accused and that life imprisonment will serve no purpose. This article essentially seeks to explore the ramifications of this judgment
Article
Protection and Utilisation of Public Funded Intellectual Property Bill 2008 – A Critical Analysis of the Indian Bayh-Dole Act
by Karthy Nair & Balu Nair
On the face of it, The Protection and Utilisation of Public Funded Intellectual Property Bill, 2008 appears to be a progressive piece of legislation. Modelled on the American Bayh-Dole Act of the 1980s, the Act makes it mandatory for institutions to create well-defined intellectual property rights over any innovation arising out of publicly funded research and also to exploit these innovations commercially. Universities, research centres, laboratories etc. would thus be able to reap the financial
Protection and Utilisation of Public Funded Intellectual Property Bill 2008 – A Critical Analysis of the Indian Bayh-Dole Act
by Karthy Nair & Balu Nair
On the face of it, The Protection and Utilisation of Public Funded Intellectual Property Bill, 2008 appears to be a progressive piece of legislation. Modelled on the American Bayh-Dole Act of the 1980s, the Act makes it mandatory for institutions to create well-defined intellectual property rights over any innovation arising out of publicly funded research and also to exploit these innovations commercially. Universities, research centres, laboratories etc. would thus be able to reap the financial
Article
Dawn of a New Democracy in Pakistan: Legal and Political Implications of Nadeem Ahmed v. Federation of Pakistan
by Madhulika Kanaujia & Rimi Jain
In July 2009, a Fourteen-Judge Bench of the Supreme Court of Pakistan in Nadeem Ahmed v. Federation of Pakistan, headed by Chief Justice Iftikhar Mohammad Chaudhry, has come out strongly in support of democratic principles hitherto neglected in Pakistan, by issuing a stern and categorical rebuke to the constitutional excesses by the former President and Army Chief, General Pervez Musharraf during his rule. The judgment also facilitates the initiation of the subsequent parliamentary process of
Dawn of a New Democracy in Pakistan: Legal and Political Implications of Nadeem Ahmed v. Federation of Pakistan
by Madhulika Kanaujia & Rimi Jain
In July 2009, a Fourteen-Judge Bench of the Supreme Court of Pakistan in Nadeem Ahmed v. Federation of Pakistan, headed by Chief Justice Iftikhar Mohammad Chaudhry, has come out strongly in support of democratic principles hitherto neglected in Pakistan, by issuing a stern and categorical rebuke to the constitutional excesses by the former President and Army Chief, General Pervez Musharraf during his rule. The judgment also facilitates the initiation of the subsequent parliamentary process of
Article
Regulation of Hate Speech
by Ritika Patni & Kasturika Kaumudi
On March 7, 2009, Varun Gandhi, the great-grandson of India’s first prime-minister, Jawaharlal Nehru, also the potential Bharatiya Janata Party candidate from Pilibhit in Uttar Pradesh, made disturbing remarks against a minority community in condemnable hate speech to polarise voters on communal basis and gain electoral leverage. Not only did the incident ignite violent protests and incur the wrath of the ElectionCommission, it also attracted several provisions of the election and criminal laws. Though the
Regulation of Hate Speech
by Ritika Patni & Kasturika Kaumudi
On March 7, 2009, Varun Gandhi, the great-grandson of India’s first prime-minister, Jawaharlal Nehru, also the potential Bharatiya Janata Party candidate from Pilibhit in Uttar Pradesh, made disturbing remarks against a minority community in condemnable hate speech to polarise voters on communal basis and gain electoral leverage. Not only did the incident ignite violent protests and incur the wrath of the ElectionCommission, it also attracted several provisions of the election and criminal laws. Though the
Article
Judicial Accountability and Independence: Exploring the Limits of Judicial Power
by Shayonee Dasgupta & Sakshi Agarwal
Given the need and urgency of a transparency measure in governance in the light of the controversy surrounding the elevation of Justice P. Dinakaran to the Supreme Court ,the present article seeks to examine the accountability-independence continuum in the context of the Indian judiciary .Through the course of this article, we opine that judicial independence and accountability are a necessary concomitant of the process of governance and an isolated evaluation of the two is undesirable
Judicial Accountability and Independence: Exploring the Limits of Judicial Power
by Shayonee Dasgupta & Sakshi Agarwal
Given the need and urgency of a transparency measure in governance in the light of the controversy surrounding the elevation of Justice P. Dinakaran to the Supreme Court ,the present article seeks to examine the accountability-independence continuum in the context of the Indian judiciary .Through the course of this article, we opine that judicial independence and accountability are a necessary concomitant of the process of governance and an isolated evaluation of the two is undesirable
Volume 2 Issue 3
Article
Decriminalisation of Homosexuality and the Constitution
by Mahendra P. Singh
Without making any value judgment or taking sides on the propriety or otherwise of consensual homosexuality between adults, this paper examines the constitutionality of Section 377 of the Indian Penal Code. It concludes that Section 377 does not violate the Constitution. Therefore, the Delhi High Court decision in Naz Foundation cannot be sustained unless the Supreme Court overrules the existing interpretation of the Constitution or reinterprets Section 377.
Decriminalisation of Homosexuality and the Constitution
by Mahendra P. Singh
Without making any value judgment or taking sides on the propriety or otherwise of consensual homosexuality between adults, this paper examines the constitutionality of Section 377 of the Indian Penal Code. It concludes that Section 377 does not violate the Constitution. Therefore, the Delhi High Court decision in Naz Foundation cannot be sustained unless the Supreme Court overrules the existing interpretation of the Constitution or reinterprets Section 377.
Article
Out of the Colonial Closet, But Still Thinking ‘Inside the Box': Regulating ‘Perversion’ and the Role of Tolerance in De-Radicalising the Rights Claims of Sexual Subalterns
by Ratna Kaupur
This paper primarily intends to throw light on the postcolonial reading of the legal engagements of sexual subgroups that depicts the complex layering of sexual subjectivities in a postcolonial context, which are not captured in a straightforward ‘lesbian’ or ‘gay’ reading. The use of the term ‘sexual subaltern’ in this paper is mainly intended to capture this complexity. Through the discussions on the engagement of the sexual subaltern with law, the author draws on subaltern
Out of the Colonial Closet, But Still Thinking ‘Inside the Box': Regulating ‘Perversion’ and the Role of Tolerance in De-Radicalising the Rights Claims of Sexual Subalterns
by Ratna Kaupur
This paper primarily intends to throw light on the postcolonial reading of the legal engagements of sexual subgroups that depicts the complex layering of sexual subjectivities in a postcolonial context, which are not captured in a straightforward ‘lesbian’ or ‘gay’ reading. The use of the term ‘sexual subaltern’ in this paper is mainly intended to capture this complexity. Through the discussions on the engagement of the sexual subaltern with law, the author draws on subaltern
Article
Navigating the Noteworthy and Nebulous in Naz Foundation
by Vikram Raghavan
The paper is an exhaustive critique of the Nazareth Foundation judgment – besides a comprehensive evaluation of the Court’s treatment of applicable constitutional rights and doctrines, such as the right to privacy, equality, constitutional morality, severability and many others, it also makes interesting observations on the style in which the judgment has been written, and the Court’s treatment of legal sources, such as legislative history, prior decisions and foreign materials, some of which are characterised
Navigating the Noteworthy and Nebulous in Naz Foundation
by Vikram Raghavan
The paper is an exhaustive critique of the Nazareth Foundation judgment – besides a comprehensive evaluation of the Court’s treatment of applicable constitutional rights and doctrines, such as the right to privacy, equality, constitutional morality, severability and many others, it also makes interesting observations on the style in which the judgment has been written, and the Court’s treatment of legal sources, such as legislative history, prior decisions and foreign materials, some of which are characterised
Article
Reading Swaraj into Article 15: A New Deal for All Minorities
by Tarunabh Khaitan
The recent judgement of the Delhi High Court in the Naz Foundation case goes beyond merely decriminalising homosexuality. The progressive reinterpretation of Article 15 of the Constitution has brought out its distinct character, which has for long been buried under Article 14 and the general promise of equality it offers. Four key innovation shave been introduced by this reformulation of Article 15, which are likely to give unparalleled protection to all minorities from discrimination. These
Reading Swaraj into Article 15: A New Deal for All Minorities
by Tarunabh Khaitan
The recent judgement of the Delhi High Court in the Naz Foundation case goes beyond merely decriminalising homosexuality. The progressive reinterpretation of Article 15 of the Constitution has brought out its distinct character, which has for long been buried under Article 14 and the general promise of equality it offers. Four key innovation shave been introduced by this reformulation of Article 15, which are likely to give unparalleled protection to all minorities from discrimination. These
Article
Section 377 and the ‘Order of Nature’: Nurturing ‘Indeterminacy’ in the Law?
by Shamnad Basheer, Sroyon Mukherjee & Karthy Nair
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 and the ‘Order of Nature’: Nurturing ‘Indeterminacy’ in the Law?
by Shamnad Basheer, Sroyon Mukherjee & Karthy Nair
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
Article
The Public and Constitutional Morality Conundrum: A Case-Note on the Naz Foundation judgement
by Rohit Sharma
The paper discusses the role public morality has played in developing the fundamental rights jurisprudence in India. Restriction of fundamental rights has been justified on the basis of the doctrine of compelling state interest. The author argues that reading public morality into the ground of compelling state interest may make fundamental rights susceptible to the personal interpretations of judges or considerations of a politically motivated legislature. However, the present case makes an interesting point by
The Public and Constitutional Morality Conundrum: A Case-Note on the Naz Foundation judgement
by Rohit Sharma
The paper discusses the role public morality has played in developing the fundamental rights jurisprudence in India. Restriction of fundamental rights has been justified on the basis of the doctrine of compelling state interest. The author argues that reading public morality into the ground of compelling state interest may make fundamental rights susceptible to the personal interpretations of judges or considerations of a politically motivated legislature. However, the present case makes an interesting point by
Article
Crystallising Queer Politics- The Naz Foundation Case and Its Implications for India’s Transgender Communities
by Siddharth Narrain
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
Crystallising Queer Politics- The Naz Foundation Case and Its Implications for India’s Transgender Communities
by Siddharth Narrain
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
Article
Divided Laws in a Unified Nation: Territorial Application of High Court Decisions
by Jasmine Joseph
The fate of the Naz Foundation decision, until the Supreme Court decides on the appeal before it, rests upon the territorial applicability of the Delhi High Court judgment. This paper argues that at present the question of territorial application of a High Court judgment is unsettled as the existing precedent of the Kusum Ingots case is not decisive on the point. The paper evaluates the merits and demerits of various solutions, such as reintroduction of
Divided Laws in a Unified Nation: Territorial Application of High Court Decisions
by Jasmine Joseph
The fate of the Naz Foundation decision, until the Supreme Court decides on the appeal before it, rests upon the territorial applicability of the Delhi High Court judgment. This paper argues that at present the question of territorial application of a High Court judgment is unsettled as the existing precedent of the Kusum Ingots case is not decisive on the point. The paper evaluates the merits and demerits of various solutions, such as reintroduction of
Article
Breaking Silences, Celebrating New Spaces: Mapping Elite Responses To The 'Inclusive' Judgment
by Rukmini Sen
This paper analyses the Naz Foundation judgment and the reaction of the Indian society to it from a sociological angle.The initial parts of the paper traces the evolution of gay rights movement as a social movement and the past attempts by this movement to use the institution of law and courts of law as an agent of the social change it sought to bring about. Thereafter,the paper concerns itself with the analysis of responses to
Breaking Silences, Celebrating New Spaces: Mapping Elite Responses To The 'Inclusive' Judgment
by Rukmini Sen
This paper analyses the Naz Foundation judgment and the reaction of the Indian society to it from a sociological angle.The initial parts of the paper traces the evolution of gay rights movement as a social movement and the past attempts by this movement to use the institution of law and courts of law as an agent of the social change it sought to bring about. Thereafter,the paper concerns itself with the analysis of responses to
Article
Logic and Coherence in Naz Foundation: The Arguments of Non-Discrimination, Privacy and Dignity
by Pritam Baruah
In this paper I evaluate three arguments of the Delhi High Court’s decision in the Naz Foundation case. First is the argument that sexual orientation is analogous to ‘sex’ in Article 15 of the constitution. I term this argument ‘the sex-based’ argument and argue that though it is logically sound , it is not supported by the judgments that the court cites; nor thus the court properly lay out the exact nature of this powerful
Logic and Coherence in Naz Foundation: The Arguments of Non-Discrimination, Privacy and Dignity
by Pritam Baruah
In this paper I evaluate three arguments of the Delhi High Court’s decision in the Naz Foundation case. First is the argument that sexual orientation is analogous to ‘sex’ in Article 15 of the constitution. I term this argument ‘the sex-based’ argument and argue that though it is logically sound , it is not supported by the judgments that the court cites; nor thus the court properly lay out the exact nature of this powerful
Article
'Right To Privacy' In Naz Foundation: A Counter-Heteronormative Critique
by Saptarshi Mandal
The link between sex and privacy is not self-evident. The protection of the ‘right to privacy’ is accorded to only those sex acts that have the normative qualities of patriarchal, heterosexual marriage. Additionally, a privacy-focused legal intervention to extend protection and recognition to non-normative sexualities, could have problematic implications for queer politics itself. This article is an assessment of the ‘privacy argument’ as articulated in the Naz Foundation judgment, against the backdrop of this troubled
'Right To Privacy' In Naz Foundation: A Counter-Heteronormative Critique
by Saptarshi Mandal
The link between sex and privacy is not self-evident. The protection of the ‘right to privacy’ is accorded to only those sex acts that have the normative qualities of patriarchal, heterosexual marriage. Additionally, a privacy-focused legal intervention to extend protection and recognition to non-normative sexualities, could have problematic implications for queer politics itself. This article is an assessment of the ‘privacy argument’ as articulated in the Naz Foundation judgment, against the backdrop of this troubled
Article
Judicial Interpretation of Article 21 in the Naz Foundation Case: Privacy - A Moral Right or a Creature of an Amoral Constitution?
by Bhargav K. Joshi & Neha Mary Koshy
This paper is an appraisal of the interpretation of the law of precedent, international human rights law and morality put forth by the landmark judgment of Naz Foundation in the context of the homosexuals’ right to privacy. First, this paper will summarize the judicial history of the ‘right to privacy’ in India and proceed to argue that the current interpretation of the law as stated by the Supreme Court previously in Kharak Singh’s case is
Judicial Interpretation of Article 21 in the Naz Foundation Case: Privacy - A Moral Right or a Creature of an Amoral Constitution?
by Bhargav K. Joshi & Neha Mary Koshy
This paper is an appraisal of the interpretation of the law of precedent, international human rights law and morality put forth by the landmark judgment of Naz Foundation in the context of the homosexuals’ right to privacy. First, this paper will summarize the judicial history of the ‘right to privacy’ in India and proceed to argue that the current interpretation of the law as stated by the Supreme Court previously in Kharak Singh’s case is
Book Review
Handbook on Law, Women and Employment, Surinder Mediratta, Oxford University Press, New Delhi, 2009
by Salonika Kataria & Ushasi Khan
Women have entered the domain of paid employment in huge numbers since the beginning of the nineteenth century. There has been a gradual upliftment in the status of women as they have gained economic independence. Although the acquisition of human rights by women has had a positive impact on society, there remain significant inequalities creating an impediment in the path of full realization of social justice. A substantial sex differential in earnings still remains. Patriarchy
Handbook on Law, Women and Employment, Surinder Mediratta, Oxford University Press, New Delhi, 2009
by Salonika Kataria & Ushasi Khan
Women have entered the domain of paid employment in huge numbers since the beginning of the nineteenth century. There has been a gradual upliftment in the status of women as they have gained economic independence. Although the acquisition of human rights by women has had a positive impact on society, there remain significant inequalities creating an impediment in the path of full realization of social justice. A substantial sex differential in earnings still remains. Patriarchy
Volume 2 Issue 2
Article
Right to Water: Debating the Human Rights Perspective
by Abhishek Tripathy & Prajna R. Mohapatra
Water is the elixir of life – it is as fundamental as the air we breathe or the food we eat. In light of the role that it plays in sustaining life and the daily needs of people around the world, right to water manifests itself in the form of a basic human right. Right to water exists in close association with other related aspects like sanitation and basic cleanliness of the community. Without ensuring
Right to Water: Debating the Human Rights Perspective
by Abhishek Tripathy & Prajna R. Mohapatra
Water is the elixir of life – it is as fundamental as the air we breathe or the food we eat. In light of the role that it plays in sustaining life and the daily needs of people around the world, right to water manifests itself in the form of a basic human right. Right to water exists in close association with other related aspects like sanitation and basic cleanliness of the community. Without ensuring
Article
Human Rights in the Indian Tradition: An Alternative Model
by Mahendra P. Singh
Picking up the debate on cultural relativism of human rights, this paper traces the Indian tradition of human rights, which is found to be fully supportive of the idea of human rights. The state in the Indian tradition did not, however, acquire or wield the kind of monopoly of power in the secular sphere of society as it did in the West. Consequently, in the Indian tradition the state was not perceived as the sole
Human Rights in the Indian Tradition: An Alternative Model
by Mahendra P. Singh
Picking up the debate on cultural relativism of human rights, this paper traces the Indian tradition of human rights, which is found to be fully supportive of the idea of human rights. The state in the Indian tradition did not, however, acquire or wield the kind of monopoly of power in the secular sphere of society as it did in the West. Consequently, in the Indian tradition the state was not perceived as the sole
Article
The Recent Emergency and the Politics of the Judiciary in Bangladesh
by Ridwanul Hoque
The recent state of Emergency in Bangladesh (2007-08) put the country’s judiciary under certain challenges with a far-reaching bearing on judicial statesmanship, resurfacing the old but difficult question of the proper judicial role in Emergency. The 2007 Emergency regime initiated an array of reforms in politics, and legal and judicial spheres, but at the same time clipped the rights of the people and the judiciary’s protective authority. The proper role of the judiciary in such
The Recent Emergency and the Politics of the Judiciary in Bangladesh
by Ridwanul Hoque
The recent state of Emergency in Bangladesh (2007-08) put the country’s judiciary under certain challenges with a far-reaching bearing on judicial statesmanship, resurfacing the old but difficult question of the proper judicial role in Emergency. The 2007 Emergency regime initiated an array of reforms in politics, and legal and judicial spheres, but at the same time clipped the rights of the people and the judiciary’s protective authority. The proper role of the judiciary in such
Article
Anti Satellite Missile Testing: Challenge to Article IV of the Outer Space Treaty
by Sandeepa Bhat & Kiran Mohan V.
Although Article IV of the Outer Space Treaty (OST) prohibits the deployment of nuclear weapons and any other kinds of weapons of mass destruction in the outer space, owing to serious drafting faults and interpretative conundrums, ground-based Anti-Satellite (ASAT) missiles have been left out of its purview. The failure of the states to adopt an agreed definition of ‘peaceful uses’, stipulated under Article IV, has left scope for attributing the colour of legitimacy to ASAT
Anti Satellite Missile Testing: Challenge to Article IV of the Outer Space Treaty
by Sandeepa Bhat & Kiran Mohan V.
Although Article IV of the Outer Space Treaty (OST) prohibits the deployment of nuclear weapons and any other kinds of weapons of mass destruction in the outer space, owing to serious drafting faults and interpretative conundrums, ground-based Anti-Satellite (ASAT) missiles have been left out of its purview. The failure of the states to adopt an agreed definition of ‘peaceful uses’, stipulated under Article IV, has left scope for attributing the colour of legitimacy to ASAT
Article
Hurdles in Way of Compulsory Licensing by Developing Nations: Multilateral Murder or Bilateral Suicide?: An Empirical Analysis of Bilateral Investment Treaties of India, Bangladesh and Pakistan
by Deepak Raju & Ayesha Ali Khan
The Agreement on Trade Related Aspects of Intellectual Property Rights is often said to raise hurdles in the path of developing countries in attaining their public health objectives. One of the concerns has been that the Article 31 of TRIPS is inadequate in allowing issuance of compulsory licenses as a regulatory tool by developing countries for meeting public health requirements. However, a close perusal of the Bilateral Investment Treaties of India, Pakistan and Bangladesh demonstrate how these countries voluntarily accepted more onerous requirements for issuance
Hurdles in Way of Compulsory Licensing by Developing Nations: Multilateral Murder or Bilateral Suicide?: An Empirical Analysis of Bilateral Investment Treaties of India, Bangladesh and Pakistan
by Deepak Raju & Ayesha Ali Khan
The Agreement on Trade Related Aspects of Intellectual Property Rights is often said to raise hurdles in the path of developing countries in attaining their public health objectives. One of the concerns has been that the Article 31 of TRIPS is inadequate in allowing issuance of compulsory licenses as a regulatory tool by developing countries for meeting public health requirements. However, a close perusal of the Bilateral Investment Treaties of India, Pakistan and Bangladesh demonstrate how these countries voluntarily accepted more onerous requirements for issuance
Article
Striving Towards a Green Indian INC: A Critical Essay on the Environmental Policies of the Indian Corporations
by Mriganka Shekhar Dutta & Rashmi Bothra
Sustainable development aims at improving the quality of human life while living within the carrying capacity of supporting ecosystems. The rhetoric raised by the advocates of sustainable development has compelled States and corporations alike to take initiatives to ensure compliance with standards believed to be consensually accepted. However, because of their immediate commitment to enhancing shareholder value and other structural flaws, corporations have inevitably turned out to be major defaulters. Hence in many instances, it
Striving Towards a Green Indian INC: A Critical Essay on the Environmental Policies of the Indian Corporations
by Mriganka Shekhar Dutta & Rashmi Bothra
Sustainable development aims at improving the quality of human life while living within the carrying capacity of supporting ecosystems. The rhetoric raised by the advocates of sustainable development has compelled States and corporations alike to take initiatives to ensure compliance with standards believed to be consensually accepted. However, because of their immediate commitment to enhancing shareholder value and other structural flaws, corporations have inevitably turned out to be major defaulters. Hence in many instances, it
Article
Compensation As Equity In Context Of Common Heritage Of Mankind: A Key To Sustainability And Inter-Generational & Inter-Regional Equity
by Rukmini Das
The principle of inter-generational equity, a recognised legal norm, is being threatened in the current global scene of rapid climate when those human resources which are common property are being destroyed at a very fast rate. At present, countries with more resources and technical knowhow are able to exploit the existing natural resources, thus depriving present as well as future generations of the same. This paper proposes a system of compensation to be paid by
Compensation As Equity In Context Of Common Heritage Of Mankind: A Key To Sustainability And Inter-Generational & Inter-Regional Equity
by Rukmini Das
The principle of inter-generational equity, a recognised legal norm, is being threatened in the current global scene of rapid climate when those human resources which are common property are being destroyed at a very fast rate. At present, countries with more resources and technical knowhow are able to exploit the existing natural resources, thus depriving present as well as future generations of the same. This paper proposes a system of compensation to be paid by
Article
Limits of the Pardoning Power under the Indian Constitution
by Rohan Sahai
The President’s power of Pardon is granted, limited and controlled by the Constitution, both expressly and impliedly. The sweep of this power therefore has to be gauged with the Constitutional Scheme in mind, and not by repeated references to the power enjoyed by the British Crown. This paper seeks to examine several issues determining the scope of the pardoning power of the President under the Indian Constitution, including the stage at which it can be
Limits of the Pardoning Power under the Indian Constitution
by Rohan Sahai
The President’s power of Pardon is granted, limited and controlled by the Constitution, both expressly and impliedly. The sweep of this power therefore has to be gauged with the Constitutional Scheme in mind, and not by repeated references to the power enjoyed by the British Crown. This paper seeks to examine several issues determining the scope of the pardoning power of the President under the Indian Constitution, including the stage at which it can be
Article
Fixing the Fixers: The Justification of Criminal Liability for Match-fixing
by Nishant Gokhale
Allegations of match-fixing are not new to sport and have been around for a considerable period of time.However, it is still not clear what, if at all anything, can be done by the law, about match-fixing as it is a form of conduct which does not neatly fall into any particular category. However, considering the fact that commercial sport occupies an increasingly important position in society today, it is quite clear that something must be
Fixing the Fixers: The Justification of Criminal Liability for Match-fixing
by Nishant Gokhale
Allegations of match-fixing are not new to sport and have been around for a considerable period of time.However, it is still not clear what, if at all anything, can be done by the law, about match-fixing as it is a form of conduct which does not neatly fall into any particular category. However, considering the fact that commercial sport occupies an increasingly important position in society today, it is quite clear that something must be
Article
How to Square a Circle: Exploring the Legality of Financial Derivatives in India
by Deepaloke Chatterjee & Ranjini Das
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
How to Square a Circle: Exploring the Legality of Financial Derivatives in India
by Deepaloke Chatterjee & Ranjini Das
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
Volume 2 Issue 1
Convocation Speech
Convocation Address
by Justice J. S. Verma
It is a privilege to be invited to address a group of young men and women who are at the threshold of their career in the profession of law. This event marks a watershed in the life of those graduating today, but it is only the beginning of an arduous journey of life. I am grateful to the Chancellor and the Vice-Chancellor for the invitation to deliver this convocation address...
Convocation Address
by Justice J. S. Verma
It is a privilege to be invited to address a group of young men and women who are at the threshold of their career in the profession of law. This event marks a watershed in the life of those graduating today, but it is only the beginning of an arduous journey of life. I am grateful to the Chancellor and the Vice-Chancellor for the invitation to deliver this convocation address...
Article
Rehabilitation of the Displaced Persons in Indian
by Bulbul Khaitan & Nitya Priya
Developmental projects in India have displaced millions of people and yet there is not a single national legislation on rehabilitation. Though the judiciary has recognised the right to be rehabilitated as a fundamental right under Article 21 of the Constitution of India, the right was not granted in reality, as has been seen in the cases of Narmada and Tehri dams. This paper aims to propose a solution to the present situation by suggesting an
Rehabilitation of the Displaced Persons in Indian
by Bulbul Khaitan & Nitya Priya
Developmental projects in India have displaced millions of people and yet there is not a single national legislation on rehabilitation. Though the judiciary has recognised the right to be rehabilitated as a fundamental right under Article 21 of the Constitution of India, the right was not granted in reality, as has been seen in the cases of Narmada and Tehri dams. This paper aims to propose a solution to the present situation by suggesting an
Article
‘Quit or be Disqualified’: Does Continuing as Speaker Inviting Expulsion from One's Party Warrant Disqualification Under the Tenth Schedule?
by Deepak Raju & Karthy Nair
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
‘Quit or be Disqualified’: Does Continuing as Speaker Inviting Expulsion from One's Party Warrant Disqualification Under the Tenth Schedule?
by Deepak Raju & Karthy Nair
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
Book Review
DNA technology in administration of justice by Dr. Jyotirmoy Adhikary. Lexis Nexis (Butterworths). New Delhi, 2007
by Professor Amit Sen
The book under review presents an excellent exposition of the new science relating to DNA Technology in the administration of justice. This book is divided into six chapters...
DNA technology in administration of justice by Dr. Jyotirmoy Adhikary. Lexis Nexis (Butterworths). New Delhi, 2007
by Professor Amit Sen
The book under review presents an excellent exposition of the new science relating to DNA Technology in the administration of justice. This book is divided into six chapters...
Article
Use of Modern Scientific Tests in Investigation and Evidence: Mere Desperation or Justifiable in Public Interest?
by Abhyudaya Agarwal & Prithwijit Gangopadhyay
Recent times have witnessed a spate in the use of modern scientific techniques such as the lie detector, brain mapping and narco analysis, for use in criminal investigation. Although the legal and ethical propriety of their use has been in doubt, they may in fact be a solution to many a complicated investigation. This article describes how the techniques may be used against an accused and concludes that although the legal setup in India may
Use of Modern Scientific Tests in Investigation and Evidence: Mere Desperation or Justifiable in Public Interest?
by Abhyudaya Agarwal & Prithwijit Gangopadhyay
Recent times have witnessed a spate in the use of modern scientific techniques such as the lie detector, brain mapping and narco analysis, for use in criminal investigation. Although the legal and ethical propriety of their use has been in doubt, they may in fact be a solution to many a complicated investigation. This article describes how the techniques may be used against an accused and concludes that although the legal setup in India may
Article
Contempt of Court: Finding the Limit
by Mriganka Shekhar Dutta & Amba Uttara Kak
The propensity of the judiciary in recent times to frequently exercise its contempt jurisdiction has led to a burning debate on the justifiability of such powers of the court. In this context, we have made a humble attempt to examine the genesis of this power of the court, which has been subject to many an academic debate. This paper also throws light on the contentious issues concerning the recent cases where the authority and integrity
Contempt of Court: Finding the Limit
by Mriganka Shekhar Dutta & Amba Uttara Kak
The propensity of the judiciary in recent times to frequently exercise its contempt jurisdiction has led to a burning debate on the justifiability of such powers of the court. In this context, we have made a humble attempt to examine the genesis of this power of the court, which has been subject to many an academic debate. This paper also throws light on the contentious issues concerning the recent cases where the authority and integrity
Article
Making Transnational Corporations Accountable for Human Rights Violations
by Debosmita Nandy & Niketa Singh
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
Making Transnational Corporations Accountable for Human Rights Violations
by Debosmita Nandy & Niketa Singh
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
Article
The Executive Power to Pardon: Dilemmas of the Constitutional Discourse
by Parul Kumar
The discretionary power to pardon finds recognition in the Indian Constitution, which confers this power on the President of India and the Governors of States. This article traces the boundaries of the power stipulated under the Indian Constitution, as well as the jurisprudence developed by the Supreme Court of India. It commences with an enquiry into the rationale underlying the power to pardon and goes on to engage with a number of issues that the
The Executive Power to Pardon: Dilemmas of the Constitutional Discourse
by Parul Kumar
The discretionary power to pardon finds recognition in the Indian Constitution, which confers this power on the President of India and the Governors of States. This article traces the boundaries of the power stipulated under the Indian Constitution, as well as the jurisprudence developed by the Supreme Court of India. It commences with an enquiry into the rationale underlying the power to pardon and goes on to engage with a number of issues that the
Article
Smoking, Public Health and Law: Deliberating the Contours of a Moratorium on Smoking
by Shekhar Sumit & Abhishek Tripathy
This paper attempts to delineate the myriad contours of a moratorium on smoking as examined from the point of view of public health and law. In pursuance of the same, it analyzes the topic from the following perspectives: firstly, an identification of the classes of society primarily imperilled by the practise of smoking; secondly, an enunciation of the various arguments present for and against a moratorium on smoking, and thirdly, the current legal position with
Smoking, Public Health and Law: Deliberating the Contours of a Moratorium on Smoking
by Shekhar Sumit & Abhishek Tripathy
This paper attempts to delineate the myriad contours of a moratorium on smoking as examined from the point of view of public health and law. In pursuance of the same, it analyzes the topic from the following perspectives: firstly, an identification of the classes of society primarily imperilled by the practise of smoking; secondly, an enunciation of the various arguments present for and against a moratorium on smoking, and thirdly, the current legal position with
Volume 1 Issue 4
Article
Resolving the ‘Paradox of Constituent Power and Constitutional Form’ from a Schmittian Account of Sovereignty: Its Relevance to the Understanding of ‘Constituent Power’ and ‘Amending Power’
by Kumarjit Banerjee & Bulbul Khaitan
Power to amend the constitution is distinct from the power to amend any other legislative instrument in view of the fact that the former is a power to alter the most significant instrument in the polity. The apex court of the country has also recognized this distinction while equating the power to amend the constitution with constituent power. In our opinion, this position needs to be reviewed since there is significant difference between the concept
Resolving the ‘Paradox of Constituent Power and Constitutional Form’ from a Schmittian Account of Sovereignty: Its Relevance to the Understanding of ‘Constituent Power’ and ‘Amending Power’
by Kumarjit Banerjee & Bulbul Khaitan
Power to amend the constitution is distinct from the power to amend any other legislative instrument in view of the fact that the former is a power to alter the most significant instrument in the polity. The apex court of the country has also recognized this distinction while equating the power to amend the constitution with constituent power. In our opinion, this position needs to be reviewed since there is significant difference between the concept
Article
Does the Right to Property Create a Constitutional Tension in Socialist Constitutions: An Analysis with Reference to India and China
by Surya Deva
While both China and India began their independent history rooted in a socialist ideology, albeit with some local customisation, they are today in some measure leaning towards free market capitalism. The development of the right to property in the two countries, however, has been diametrically opposite. While on the one hand India had, in pursuance of its ideological goals, relegated the right to property, China on the other hand, has progressively accorded it a stronger
Does the Right to Property Create a Constitutional Tension in Socialist Constitutions: An Analysis with Reference to India and China
by Surya Deva
While both China and India began their independent history rooted in a socialist ideology, albeit with some local customisation, they are today in some measure leaning towards free market capitalism. The development of the right to property in the two countries, however, has been diametrically opposite. While on the one hand India had, in pursuance of its ideological goals, relegated the right to property, China on the other hand, has progressively accorded it a stronger
Article
Creating Old Peoples’ Friendly Society: Promoting Economic, Social and Cultural Rights of Old People in Nigeria
by O. S. Oyelade & T. A. Ogunleye
The old people are very important in Africa like in any part of the world. They are held in high esteem fortheir wisdom, knowledge and dexterity in dispute settlement, governance, guidance for the young and custody of our historical values. It is therefore important that utmost care and protection is given to them to protect these legacies, which they have to bequeath to the younger generation. Human Rights are a veritable instrument that can help
Creating Old Peoples’ Friendly Society: Promoting Economic, Social and Cultural Rights of Old People in Nigeria
by O. S. Oyelade & T. A. Ogunleye
The old people are very important in Africa like in any part of the world. They are held in high esteem fortheir wisdom, knowledge and dexterity in dispute settlement, governance, guidance for the young and custody of our historical values. It is therefore important that utmost care and protection is given to them to protect these legacies, which they have to bequeath to the younger generation. Human Rights are a veritable instrument that can help
Article
Protecting Celebrity Rights Through Intellectual Property Conceptions
by Souvanik Mullick & Swati Narnaulia
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
Protecting Celebrity Rights Through Intellectual Property Conceptions
by Souvanik Mullick & Swati Narnaulia
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
Article
Trademark Dilution Doctrine: The Scenario Post TDRA
by Brajendu Bhaskar
‘Trademark Dilution Doctrine’ is basically a trademark law concept that permits the owner of a famous mark to forbid others from using that mark in a way which would harm its uniqueness. A trademark is diluted when the use of similar or identical trademarks in other noncompeting markets means that the trademark in and of itself will lose its capacity to signify a single source. In other words, unlike ordinary trademark law, dilution protection extends
Trademark Dilution Doctrine: The Scenario Post TDRA
by Brajendu Bhaskar
‘Trademark Dilution Doctrine’ is basically a trademark law concept that permits the owner of a famous mark to forbid others from using that mark in a way which would harm its uniqueness. A trademark is diluted when the use of similar or identical trademarks in other noncompeting markets means that the trademark in and of itself will lose its capacity to signify a single source. In other words, unlike ordinary trademark law, dilution protection extends
Article
Insurance Policy Plus Services (P) Ltd. v. Life Insurance Corporation of India: Can Life Insurance Policies Be Traded?
by Debosmita Nandy & Avisha Gupta
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,
Insurance Policy Plus Services (P) Ltd. v. Life Insurance Corporation of India: Can Life Insurance Policies Be Traded?
by Debosmita Nandy & Avisha Gupta
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,
Article
Impact of the Morgan Stanley Decision on the Outsourcing Industry: Uncertainty of Taxation of Multinational Enterprises in India Further Deepened?
by Deepti Jayakrishnan & Rukmini Das
The ever increasing presence of multi national enterprises (hereinafter MNEs) in India coupled with the status of software as a focal area for increase of India’s exports, makes the Morgan Stanley decision by the Supreme Court extremely significant. The decision holds far reaching tax implications for outsourcing activities of foreign companies as they are no more required to pay tax on their global income earned from business related to their outsourcing arms/units if these are
Impact of the Morgan Stanley Decision on the Outsourcing Industry: Uncertainty of Taxation of Multinational Enterprises in India Further Deepened?
by Deepti Jayakrishnan & Rukmini Das
The ever increasing presence of multi national enterprises (hereinafter MNEs) in India coupled with the status of software as a focal area for increase of India’s exports, makes the Morgan Stanley decision by the Supreme Court extremely significant. The decision holds far reaching tax implications for outsourcing activities of foreign companies as they are no more required to pay tax on their global income earned from business related to their outsourcing arms/units if these are
Article
The Scheme of Open Texture of Legal Language: Towards Finding a Solution for Ambiguous Cases?
by Medha Vinayak Marathe
Certain legal terms are only capable of illustration and lack a precise definition. Definitions provide clarity but where the definition is not exhaustive there is uncertainty regarding its ambit. H.L.A Hart has attributed this indeterminacy to the ‘open texture’ of certain legal terminology. According to him, every term applies to a standard set of circumstances contemplated by the Legislator and in unforeseen situations giving rise to ‘hard cases’ the Court has to resolve this ambiguity.
The Scheme of Open Texture of Legal Language: Towards Finding a Solution for Ambiguous Cases?
by Medha Vinayak Marathe
Certain legal terms are only capable of illustration and lack a precise definition. Definitions provide clarity but where the definition is not exhaustive there is uncertainty regarding its ambit. H.L.A Hart has attributed this indeterminacy to the ‘open texture’ of certain legal terminology. According to him, every term applies to a standard set of circumstances contemplated by the Legislator and in unforeseen situations giving rise to ‘hard cases’ the Court has to resolve this ambiguity.
Volume 1 Issue 3
Article
Foreword
by The Basic Structure Research Group
The idea of academé is not merely one of settlement of contentions; it is in fact and more importantly, to describe the truthfulness of what exists. The challenge of “what should happen and how” hides in it, a deeper challenge about our understanding of “what is happening around us”. Each one of us may have interesting recipes for the future of Indian polity, but a sensible measure of their strength lies only in their interconnectedness with the truths of our
Foreword
by The Basic Structure Research Group
The idea of academé is not merely one of settlement of contentions; it is in fact and more importantly, to describe the truthfulness of what exists. The challenge of “what should happen and how” hides in it, a deeper challenge about our understanding of “what is happening around us”. Each one of us may have interesting recipes for the future of Indian polity, but a sensible measure of their strength lies only in their interconnectedness with the truths of our
Article
Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’, Constitutional Transformations And The Future Of Political Progress In India
by Satya Prateek
The judgment in Kesavananda Bharati is considered by many as an attempt to rewrite the Indian Constitution. In arriving at the conclusions, the court propounded the ‘basic structure doctrine’ that identified certain constitutional features as so essential that they could not be altered. In this essay, I recount the development of Kesavananda’s doctrine and the implications that might follow. In particular, I explore the limits of constitutional development in India and sketch out a broader
Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’, Constitutional Transformations And The Future Of Political Progress In India
by Satya Prateek
The judgment in Kesavananda Bharati is considered by many as an attempt to rewrite the Indian Constitution. In arriving at the conclusions, the court propounded the ‘basic structure doctrine’ that identified certain constitutional features as so essential that they could not be altered. In this essay, I recount the development of Kesavananda’s doctrine and the implications that might follow. In particular, I explore the limits of constitutional development in India and sketch out a broader
Article
Test of Basic Structure: An Analysis
by Navajyoti Samanta & Sumitava Basu
Basic Structure as a concept evolved from rights jurisprudence aligned to natural law theory. Indian judiciary brought in this concept to stem executive overreach. However, deliberately or not, the concept was always kept vague. Judiciary had rarely tried to rein in the concept of basic structure which was to be the last bulwark against an over possessive legislature. This article tries to find a link between the concepts of natural law and basic structure-both immutable
Test of Basic Structure: An Analysis
by Navajyoti Samanta & Sumitava Basu
Basic Structure as a concept evolved from rights jurisprudence aligned to natural law theory. Indian judiciary brought in this concept to stem executive overreach. However, deliberately or not, the concept was always kept vague. Judiciary had rarely tried to rein in the concept of basic structure which was to be the last bulwark against an over possessive legislature. This article tries to find a link between the concepts of natural law and basic structure-both immutable
Article
Contextual Interpretation and Constitutional Inalienables
by Siddharth
That the judicial prerogative of Constitutional interpretation should not render itself into a zealous imposition of personal values remains a fundamental tenet of representative governance. In a society of diverse, and often conflicting ways of life, and a judiciary that lays claim to widest possible legal creativity, and a polity of consociation, it is nothing but the construction of the provisions of the Constitution that acts as the binding gel between competing claims. The article
Contextual Interpretation and Constitutional Inalienables
by Siddharth
That the judicial prerogative of Constitutional interpretation should not render itself into a zealous imposition of personal values remains a fundamental tenet of representative governance. In a society of diverse, and often conflicting ways of life, and a judiciary that lays claim to widest possible legal creativity, and a polity of consociation, it is nothing but the construction of the provisions of the Constitution that acts as the binding gel between competing claims. The article
Article
Constitution: Amended it Stands?
by Shouvik Kumar Guha & Moiz Tundawala
Unlike almost all legislative creations, the Constitution of a nation is intended to provide an enduring instrument to serve through aeons of time without frequent revision. Yet it is true nonetheless that the very purpose for its formation is to meet the needs of all generations alike, past, present or future. Fulfilment of such lofty goals cannot be dreamt of unless the constitutional text is subjected to modifications designed to meet the needs of the
Constitution: Amended it Stands?
by Shouvik Kumar Guha & Moiz Tundawala
Unlike almost all legislative creations, the Constitution of a nation is intended to provide an enduring instrument to serve through aeons of time without frequent revision. Yet it is true nonetheless that the very purpose for its formation is to meet the needs of all generations alike, past, present or future. Fulfilment of such lofty goals cannot be dreamt of unless the constitutional text is subjected to modifications designed to meet the needs of the
Article
Constituent Power & Sovereignty: In Light of Amendments to the Indian Constitution
by Snigdha Nahar & Abhishek Dadoo
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
Constituent Power & Sovereignty: In Light of Amendments to the Indian Constitution
by Snigdha Nahar & Abhishek Dadoo
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
Volume 1 Issue 2
Article
Ashoka Thakur v. Union of India: A Divided Verdict on an Undivided Social Justice Measure
by Professor Mahendra P. Singh
Starting with Thakur, this paper travels through the mediatory role of the courts in resolving serious controversies over reservation; it examines if opposition to reservation has any constitutional basis; and argues that the 93rd Amendment to the Constitution is valid in its entirety. It also argues that a casteless society cannot be read in the Constitution, the fifty-percent limit on reservations is not a binding norm, and that the determination of the validity of laws
Ashoka Thakur v. Union of India: A Divided Verdict on an Undivided Social Justice Measure
by Professor Mahendra P. Singh
Starting with Thakur, this paper travels through the mediatory role of the courts in resolving serious controversies over reservation; it examines if opposition to reservation has any constitutional basis; and argues that the 93rd Amendment to the Constitution is valid in its entirety. It also argues that a casteless society cannot be read in the Constitution, the fifty-percent limit on reservations is not a binding norm, and that the determination of the validity of laws
Article
The WTO Agreement and the Right to Health: Conflict or Consensus? A Developing Country Perspective
by Shameek Sen
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
The WTO Agreement and the Right to Health: Conflict or Consensus? A Developing Country Perspective
by Shameek Sen
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
Article
Civil Death of Prisoner: Disenfranchising the Prisoner in Reality Causes his Civil Death
by Kavita Singh
The author by way of this paper has attempted to argue that disenfranchisement of prisoners often tantamounts to their civil death. In pursuance of the same, the author has attempted to correlate diverse strands of thought such as the principle of universal suffrage, qualifications for voting as well as the comparative poitions in other countries. The author has then attempted to correlate the aforementioned strands of thought to the Indian position and the effect of
Civil Death of Prisoner: Disenfranchising the Prisoner in Reality Causes his Civil Death
by Kavita Singh
The author by way of this paper has attempted to argue that disenfranchisement of prisoners often tantamounts to their civil death. In pursuance of the same, the author has attempted to correlate diverse strands of thought such as the principle of universal suffrage, qualifications for voting as well as the comparative poitions in other countries. The author has then attempted to correlate the aforementioned strands of thought to the Indian position and the effect of
Article
Free-Market Environmentalism and Global Emission Trading: A Way to Generate Greener Wealth in India
by Vardaan Ahluwalia & Esha Shekhar
Competitive Market theory suggests that all relevant cost of an ‘activity’ must be internalized. Further, according to Ronald Coase, in a system where ‘transaction costs’ are negligible and property rights are well defined, resources would be utilized in an economically efficient manner irrespective of the legal regime. Borrowing from these theories, this paper seeks to explore the possibility of reduction of emission in India under a regime which permits emission trading. In this paper it
Free-Market Environmentalism and Global Emission Trading: A Way to Generate Greener Wealth in India
by Vardaan Ahluwalia & Esha Shekhar
Competitive Market theory suggests that all relevant cost of an ‘activity’ must be internalized. Further, according to Ronald Coase, in a system where ‘transaction costs’ are negligible and property rights are well defined, resources would be utilized in an economically efficient manner irrespective of the legal regime. Borrowing from these theories, this paper seeks to explore the possibility of reduction of emission in India under a regime which permits emission trading. In this paper it
Article
The Contemporary Commons Theory: A Debate in Modern Telecommunication Law
by Apoorva Anubhuti & Rashmi Bothra
The word ‘Commons’, traditionally has been used to connote the joint ownership of certain resources by the people. Such resources include gifts of nature and other ‘free’ resources like water, air and land. Today however, the concept of Commons has been given a new connotation so as to propound a movement that envisages more public participation in the management of things and systems other than just natural resources. In the legal realm, this translates into
The Contemporary Commons Theory: A Debate in Modern Telecommunication Law
by Apoorva Anubhuti & Rashmi Bothra
The word ‘Commons’, traditionally has been used to connote the joint ownership of certain resources by the people. Such resources include gifts of nature and other ‘free’ resources like water, air and land. Today however, the concept of Commons has been given a new connotation so as to propound a movement that envisages more public participation in the management of things and systems other than just natural resources. In the legal realm, this translates into
Article
The Forest Rights Act, 2006: Settling Land, Unsettling Conservationists
by Antara Roy & Sroyon Mukherjee
After more than a year of high-pitched campaigning by rival lobbies of forest conservationists and tribal rights activists, the Scheduled Tribes and Other Traditional Forest-Dwellers (Recognition of Forest Rights) Act, 2006 came into force on December 31, 2007. The Act aims to provide a framework which recognizes and vests forest rights in forest-dwelling tribes, and to foster a new forest conservation regime which actively seeks the participation of forest-dwelling communities in conservation efforts. Tribals of
The Forest Rights Act, 2006: Settling Land, Unsettling Conservationists
by Antara Roy & Sroyon Mukherjee
After more than a year of high-pitched campaigning by rival lobbies of forest conservationists and tribal rights activists, the Scheduled Tribes and Other Traditional Forest-Dwellers (Recognition of Forest Rights) Act, 2006 came into force on December 31, 2007. The Act aims to provide a framework which recognizes and vests forest rights in forest-dwelling tribes, and to foster a new forest conservation regime which actively seeks the participation of forest-dwelling communities in conservation efforts. Tribals of
Article
Criminal Liability of Corporations: Does the Old Order Need to Change?
by Shouvik Kr. Guha & Abhyudaya Agarwal
The evolution of the concept of criminal liability of corporations is characterized by the judiciary’s relentless struggle to overcome the problem of assigning criminal blame to fictional entities. This is particularly relevant in a legal system based on the moral accountability of individuals. This article outlines the broad range of principles governing the law related to corporate criminal liability and the essential elements required to incur such liability in a comparative perspective. A balance is
Criminal Liability of Corporations: Does the Old Order Need to Change?
by Shouvik Kr. Guha & Abhyudaya Agarwal
The evolution of the concept of criminal liability of corporations is characterized by the judiciary’s relentless struggle to overcome the problem of assigning criminal blame to fictional entities. This is particularly relevant in a legal system based on the moral accountability of individuals. This article outlines the broad range of principles governing the law related to corporate criminal liability and the essential elements required to incur such liability in a comparative perspective. A balance is
Article
Cameras In Indian Courtrooms: A Bliss Or A Misery?- Learning From The American Experience
by Salonika Kataria & Aneesh Sharma
The debate surrounding the Indian Judicial System has been deliberating on the means and ways that can be employed to improve its efficiency and functioning. Ina new development, the theme of these debates has focused on the feasibility of having cameras in courtrooms. This proposal can be traced to the United States of America, where camera access to court room proceedings has been in place for the last three decades with the objective of promoting
Cameras In Indian Courtrooms: A Bliss Or A Misery?- Learning From The American Experience
by Salonika Kataria & Aneesh Sharma
The debate surrounding the Indian Judicial System has been deliberating on the means and ways that can be employed to improve its efficiency and functioning. Ina new development, the theme of these debates has focused on the feasibility of having cameras in courtrooms. This proposal can be traced to the United States of America, where camera access to court room proceedings has been in place for the last three decades with the objective of promoting
Book Review
V.N. Shukla’s Constitution of India 11th edition, Edited by Mahendra P. Singh. Eastern Book Company, Lucknow, 2008
by Pritam Baruah
Description, analysis, evaluation and prescription have a dilemmic relationship. Overtly relying on any one is often a reason for criticism of an academic work. A purely descriptive work is accused of adding no value to existing knowledge or even being political by pretending to be apolitical. An analytical work based on inadequate, or worse still, an erroneous description would be a sitting duck at best for critics. An evaluation based on a ‘sitting duck’ analysis
V.N. Shukla’s Constitution of India 11th edition, Edited by Mahendra P. Singh. Eastern Book Company, Lucknow, 2008
by Pritam Baruah
Description, analysis, evaluation and prescription have a dilemmic relationship. Overtly relying on any one is often a reason for criticism of an academic work. A purely descriptive work is accused of adding no value to existing knowledge or even being political by pretending to be apolitical. An analytical work based on inadequate, or worse still, an erroneous description would be a sitting duck at best for critics. An evaluation based on a ‘sitting duck’ analysis
Article
Intellectual Property and Hegelian Justification
by Kanu Priya
Property is a contingent fact within our world. It is neither ordained by nature nor is necessary for human survival. So the development of virtual worlds gives us an excellent opportunity to experiment with the legal relationships, transactions, and obligations that, in the real world, fall within the category of property. Virtual worlds are places where millions of people come to play, trade, create, and socialize. In this Article, the author examines the most debated
Intellectual Property and Hegelian Justification
by Kanu Priya
Property is a contingent fact within our world. It is neither ordained by nature nor is necessary for human survival. So the development of virtual worlds gives us an excellent opportunity to experiment with the legal relationships, transactions, and obligations that, in the real world, fall within the category of property. Virtual worlds are places where millions of people come to play, trade, create, and socialize. In this Article, the author examines the most debated
Article
Equality: An Analysis into its Cultural Component
by Siddharth
The cause of equality is not one of creating contiguous compartments. Humans are equal not as isolated bits, but as mutually interacting summations of different processes. The paper here argues this same understanding of social cultures and myths as inalienable components of human equality, and the need for orienting our take as one that values hierarchy and difference as much as equal access to material modes of survival. Basing on the idea of psychologism, the
Equality: An Analysis into its Cultural Component
by Siddharth
The cause of equality is not one of creating contiguous compartments. Humans are equal not as isolated bits, but as mutually interacting summations of different processes. The paper here argues this same understanding of social cultures and myths as inalienable components of human equality, and the need for orienting our take as one that values hierarchy and difference as much as equal access to material modes of survival. Basing on the idea of psychologism, the
Book Review
Towards Legal Literacy: An Introduction to Law in India. Edited by Kamala Sankaran and Ujjwal Kumar Singh. Oxford University Press. New Delhi, 2007
by Kamala Sankaran
There are introductions and introductions. Some introductions seem to be purely descriptive, e.g. stating the manner in which one’s work is organised. Some are used as disclaimers- “Mine is only an introduction!” Some aim at setting the tone for subsequent events. Whatever be the kind of introduction, they aim to familiarize the object of the introduction to the subjects. Drawing from the philosophical arguments on the impossibility of descriptive projects, it is unlikely that an
Towards Legal Literacy: An Introduction to Law in India. Edited by Kamala Sankaran and Ujjwal Kumar Singh. Oxford University Press. New Delhi, 2007
by Kamala Sankaran
There are introductions and introductions. Some introductions seem to be purely descriptive, e.g. stating the manner in which one’s work is organised. Some are used as disclaimers- “Mine is only an introduction!” Some aim at setting the tone for subsequent events. Whatever be the kind of introduction, they aim to familiarize the object of the introduction to the subjects. Drawing from the philosophical arguments on the impossibility of descriptive projects, it is unlikely that an
Book Review
Human Rights and Basic Needs: Theory and Practice. Editors by Mahendra P. Singh, Helmut Goerlich and Michael von Hauff. Universal Law Publishing Co., Delhi, 2008
by Kamala Sankaran
The moral and conceptual underpinnings of human rights have been the subject of study starting from the time the idea of universal rights, natural or human, were put forward. The extents to which such underpinnings are present in countries with differing religious, cultural and social traditions have been a matter of debate. In recent years we have seen strong opposition concerning the universalism of human rights from those who defend the cultural relativism of rights
Human Rights and Basic Needs: Theory and Practice. Editors by Mahendra P. Singh, Helmut Goerlich and Michael von Hauff. Universal Law Publishing Co., Delhi, 2008
by Kamala Sankaran
The moral and conceptual underpinnings of human rights have been the subject of study starting from the time the idea of universal rights, natural or human, were put forward. The extents to which such underpinnings are present in countries with differing religious, cultural and social traditions have been a matter of debate. In recent years we have seen strong opposition concerning the universalism of human rights from those who defend the cultural relativism of rights
Volume 1 Issue 1
Other
Foreword
by Mahendra P. Singh
NUJS Law Review is the sprouting of a seed long embedded in my heart. Ever since the early years of my entry into law, when I came across some of the law school reviews from abroad, especially the United States, I have longed for similar reviews from our law schools. Some of the law schools such as Lucknow, Delhi, Jaipur; some organizations such as the All India Law Teachers’ Association and some enterprising law teachers took the initiative of bringing
Foreword
by Mahendra P. Singh
NUJS Law Review is the sprouting of a seed long embedded in my heart. Ever since the early years of my entry into law, when I came across some of the law school reviews from abroad, especially the United States, I have longed for similar reviews from our law schools. Some of the law schools such as Lucknow, Delhi, Jaipur; some organizations such as the All India Law Teachers’ Association and some enterprising law teachers took the initiative of bringing
Article
International Criminal Justice: An Analysis of International Criminal Judicial Institutions
by T.V.G.N.S. Sudhakar
The focus of this article will be on the prosecution and punishment of perpetrators of violations of international criminal law. The article will analyze the desirability and viability of international judicial institutions as a matter of enforcement of international criminal law. In the course of the present article an attempt will also be made to study the principles of state sovereignty and international criminal jurisdiction. It will also make overall assessment of the role played
International Criminal Justice: An Analysis of International Criminal Judicial Institutions
by T.V.G.N.S. Sudhakar
The focus of this article will be on the prosecution and punishment of perpetrators of violations of international criminal law. The article will analyze the desirability and viability of international judicial institutions as a matter of enforcement of international criminal law. In the course of the present article an attempt will also be made to study the principles of state sovereignty and international criminal jurisdiction. It will also make overall assessment of the role played
Article
Sacred but Vulnerable: A Critical Examination of the Adequacy of the Current Legal Framework for Protection of Tribal Sacred Traditional Knowledge
by Prakruthi P. Gowda & Ushashi Khan
Western intellectual property laws have come to dominate the global landscape in the age of commodification of information. The rights of indigenous persons and the sanctity of their traditions is one of the biggest casualties of granting proprietary rights to individual creators as envisaged by the current intellectual property regime. In article, we, shall attempt to explain the concept of sacred traditional knowledge through the prism of cultural relativism, emphasize the need for their protection,
Sacred but Vulnerable: A Critical Examination of the Adequacy of the Current Legal Framework for Protection of Tribal Sacred Traditional Knowledge
by Prakruthi P. Gowda & Ushashi Khan
Western intellectual property laws have come to dominate the global landscape in the age of commodification of information. The rights of indigenous persons and the sanctity of their traditions is one of the biggest casualties of granting proprietary rights to individual creators as envisaged by the current intellectual property regime. In article, we, shall attempt to explain the concept of sacred traditional knowledge through the prism of cultural relativism, emphasize the need for their protection,
Article
Policing the Nation in the 21st Century: An Appraisal of the Proposed Reforms
by Mriganka Shekhar Dutta & Marico Baruah
The subject matter of this paper deals with the status of police reforms being implemented in India. The issue has been addressed in a number of Supreme Court cases and also in several Committee Reports, which have prepared the groundwork for a radical change in the Indian Police system. These recommendations form the crux of this paper, and we have made a critical analysis of those recommendations to moot a feasible mechanism for the effective
Policing the Nation in the 21st Century: An Appraisal of the Proposed Reforms
by Mriganka Shekhar Dutta & Marico Baruah
The subject matter of this paper deals with the status of police reforms being implemented in India. The issue has been addressed in a number of Supreme Court cases and also in several Committee Reports, which have prepared the groundwork for a radical change in the Indian Police system. These recommendations form the crux of this paper, and we have made a critical analysis of those recommendations to moot a feasible mechanism for the effective
Article
Reforming Election Funding
by Namit Oberoi
The tremendous influence of money power especially black money on elections is one of the major evils associated with the electoral process. Urgent reforms are required to curb this menace which threatens the foundation of our democracy. It is in this context that the present paper seeks to examine the Supreme Court judgments on the issue of election funding, the regulatory system as given in the Representation of Peoples Act, 1951 and the various aspects
Reforming Election Funding
by Namit Oberoi
The tremendous influence of money power especially black money on elections is one of the major evils associated with the electoral process. Urgent reforms are required to curb this menace which threatens the foundation of our democracy. It is in this context that the present paper seeks to examine the Supreme Court judgments on the issue of election funding, the regulatory system as given in the Representation of Peoples Act, 1951 and the various aspects
Article
Make No Promises and Tell Me No Lies: A Critique of Deelip Singh v. State Of Bihar AIR 2005 SC 203
by Surya Bala & Rahul Saha
The question of whether sexual intercourse, consent to which has been obtained by a false promise of marriage, amounts to rape or not is a question that has come before the Indian judiciary a number of times in recent years. The question has been addressed by the Supreme Court in two recent cases, Uday v. State of Karnataka and Deelip Singh v. State of Bihar. While the former held that the abovementioned situation did not
Make No Promises and Tell Me No Lies: A Critique of Deelip Singh v. State Of Bihar AIR 2005 SC 203
by Surya Bala & Rahul Saha
The question of whether sexual intercourse, consent to which has been obtained by a false promise of marriage, amounts to rape or not is a question that has come before the Indian judiciary a number of times in recent years. The question has been addressed by the Supreme Court in two recent cases, Uday v. State of Karnataka and Deelip Singh v. State of Bihar. While the former held that the abovementioned situation did not
Article
‘Hire and Fire’ in 2nd National Commission on Labor
by Kumarjit Banerjee & Bulbul Khaitan
Since the release of the report of 2nd National Commission on Labour in 2002, there has been a major apprehension regarding its philosophy among scholars, political parties and general public alike. There has been a general apprehension that this report espouses a philosophy of ‘hire and fire’ and in doing so, it compromises the aspect of labour welfare. In the present paper, we have attempted to understand and analyse the real philosophy espoused by this
‘Hire and Fire’ in 2nd National Commission on Labor
by Kumarjit Banerjee & Bulbul Khaitan
Since the release of the report of 2nd National Commission on Labour in 2002, there has been a major apprehension regarding its philosophy among scholars, political parties and general public alike. There has been a general apprehension that this report espouses a philosophy of ‘hire and fire’ and in doing so, it compromises the aspect of labour welfare. In the present paper, we have attempted to understand and analyse the real philosophy espoused by this
Book Review
The Constitution of India: Popular Sovereignty and Democratic Transformations. By Sarbani Sen. Oxford University Press. New Delhi, 2007
by Jasmine Joseph
Constitutions are generally considered to be the fundamental law of the land across jurisdictions. Whether written or unwritten, they mirror an amount of certainty. Constitutions usually contain the philosophy of a nation, rights, duties and liabilities of the state as well as its citizens, and the structure of governance. Within the paradigm of certainty, these documents need to imbibe flexibility for the purpose of endurance. The demand for certainty and flexibility may sound contradictory but
The Constitution of India: Popular Sovereignty and Democratic Transformations. By Sarbani Sen. Oxford University Press. New Delhi, 2007
by Jasmine Joseph
Constitutions are generally considered to be the fundamental law of the land across jurisdictions. Whether written or unwritten, they mirror an amount of certainty. Constitutions usually contain the philosophy of a nation, rights, duties and liabilities of the state as well as its citizens, and the structure of governance. Within the paradigm of certainty, these documents need to imbibe flexibility for the purpose of endurance. The demand for certainty and flexibility may sound contradictory but
Book Review
Human Rights and the Private Sphere: A Comparative Analysis. Edited by Dawn Oliver & Jorge Fedtke. Routeledge-Cavendish. London and New York, 2007
by Ruchira Goswami
In the contemporary world human rights has emerged as one of the most significant and powerful discourses. Notwithstanding the fact that human rights violations are not uncommon, states are compelled than ever before to adhere to international human rights standards. While human rights are primarily designed to give protection against the state, in today’s globalised world, it is important to develop human rights norms and standards to protect individuals against powerful non-state actors as well.
Human Rights and the Private Sphere: A Comparative Analysis. Edited by Dawn Oliver & Jorge Fedtke. Routeledge-Cavendish. London and New York, 2007
by Ruchira Goswami
In the contemporary world human rights has emerged as one of the most significant and powerful discourses. Notwithstanding the fact that human rights violations are not uncommon, states are compelled than ever before to adhere to international human rights standards. While human rights are primarily designed to give protection against the state, in today’s globalised world, it is important to develop human rights norms and standards to protect individuals against powerful non-state actors as well.
Article
Legal Exclusion through ‘Criminalization’, ‘Stigmatization’ and ‘Invisibilization’ in the Pre and Post Independence India
by Professor B. B. Pande
Law as an institution strives to perform both inclusionary and exclusionary functions in any societal structure. In the present paper, the author highlights the exclusionary role performed by law in Pre and Post Independent India with the help of three primary modalities; ‘Criminalization’, ‘Stigmatization’ and finally ‘Invisibilization’, and then proceeds to offer a possible explanation to such societal exclusion along with advancing a critique to the same.
Legal Exclusion through ‘Criminalization’, ‘Stigmatization’ and ‘Invisibilization’ in the Pre and Post Independence India
by Professor B. B. Pande
Law as an institution strives to perform both inclusionary and exclusionary functions in any societal structure. In the present paper, the author highlights the exclusionary role performed by law in Pre and Post Independent India with the help of three primary modalities; ‘Criminalization’, ‘Stigmatization’ and finally ‘Invisibilization’, and then proceeds to offer a possible explanation to such societal exclusion along with advancing a critique to the same.
Article
The European Union and the Ambivalence towards the Process of European Integration
by Rostam J. Neuwirth
The European Union (EU) was established by the Maastricht Treaty in 1993 but its origins date back, in an unbroken line of institutional continuity, first to the establishment of the European Coal and Steel Community in 1952 and second to the European Atomic Energy Community (EURATOM) as well as the European Economic Community (EEC), both established in 1958. There is no doubt that in the overall process of European integration, understood as referring to the
The European Union and the Ambivalence towards the Process of European Integration
by Rostam J. Neuwirth
The European Union (EU) was established by the Maastricht Treaty in 1993 but its origins date back, in an unbroken line of institutional continuity, first to the establishment of the European Coal and Steel Community in 1952 and second to the European Atomic Energy Community (EURATOM) as well as the European Economic Community (EEC), both established in 1958. There is no doubt that in the overall process of European integration, understood as referring to the
Article
The Case of Death Penalty – A Hypothetical Perspective from German Constitutional Law
by Helmut Goerlich
Highlighting the European tradition of providing special protection against amendments of basic principles of the Constitution, I will dwell upon the application and interpretation of that tradition in the German Constitution with a view to help in the understanding of the basic structure doctrine of the Indian Constitution.
The Case of Death Penalty – A Hypothetical Perspective from German Constitutional Law
by Helmut Goerlich
Highlighting the European tradition of providing special protection against amendments of basic principles of the Constitution, I will dwell upon the application and interpretation of that tradition in the German Constitution with a view to help in the understanding of the basic structure doctrine of the Indian Constitution.
Article
The Case of Death Penalty: A Hypothetical Perspective from German Constitutional Law
by Helmut Goerlich
The Basic Law of the Federal Republic of Germany was properly put into force as constitution in 1949. It is well known that there has been no death penalty in Germany ever since. Less known is that it is Art.102 of this Basic Law of Germany (GG) that has abolished the death penalty in Germany. This was the result of then convincing considerations after the disaster of the former regime in Germany and its outrageous
The Case of Death Penalty: A Hypothetical Perspective from German Constitutional Law
by Helmut Goerlich
The Basic Law of the Federal Republic of Germany was properly put into force as constitution in 1949. It is well known that there has been no death penalty in Germany ever since. Less known is that it is Art.102 of this Basic Law of Germany (GG) that has abolished the death penalty in Germany. This was the result of then convincing considerations after the disaster of the former regime in Germany and its outrageous
Article
Some Economic and Philosophical Considerations in Protection of Intellectual Property: A Perspective from India
by Ankur Sood & Vardaan Ahluwalia
Borrowing from Jurisprudence and Law and Economics, this paper seeks to establish that the existing intellectual property rights regime under TRIPS stipulates inefficient and overly stringent forms of protection. It has been suggested that an ideal regime must not afford a homogeneous protection. Distinction must be drawn, for instance, between want-based and need-based (life saving) products. It has been submitted that a weak IPR regime in need-based products is a reasonable restriction upon the individual
Some Economic and Philosophical Considerations in Protection of Intellectual Property: A Perspective from India
by Ankur Sood & Vardaan Ahluwalia
Borrowing from Jurisprudence and Law and Economics, this paper seeks to establish that the existing intellectual property rights regime under TRIPS stipulates inefficient and overly stringent forms of protection. It has been suggested that an ideal regime must not afford a homogeneous protection. Distinction must be drawn, for instance, between want-based and need-based (life saving) products. It has been submitted that a weak IPR regime in need-based products is a reasonable restriction upon the individual
Other
Market and the Boardroom: The Indian Experience
by Samik K. Chakraborty & Shaswata Datta
The rules of the game of investment in the stock markets have more to it than what meets the eye. The real position and scope of powers enjoyed by a shareholder vis-à-vis the management of the company is nowhere strictly defined. However the developed markets have incorporated rules governing the relationship between a shareholder and the management of the company. Thus, a huge gap seems to exist between the required results that have been obtained
Market and the Boardroom: The Indian Experience
by Samik K. Chakraborty & Shaswata Datta
The rules of the game of investment in the stock markets have more to it than what meets the eye. The real position and scope of powers enjoyed by a shareholder vis-à-vis the management of the company is nowhere strictly defined. However the developed markets have incorporated rules governing the relationship between a shareholder and the management of the company. Thus, a huge gap seems to exist between the required results that have been obtained