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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 involved in antitrust litigation. It also creates a direct conflict between the objectives of competition law and intellectual property. We highlight the need for determining the extent of reasonability, undertaking an analysis of the trend of interpretations in this regard. In contrast to some sections of opinion and cross-jurisdictional analysis, we propose a development-oriented approach to ensure pro-competitive usage of IPRs.

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 contract enforcement and harness economic growth in the country. In this backdrop, it is imperative to ascertain precisely where the Indian Contract Act, 1872 positions smart contracts. Placing smart contracts into the unchartered waters of autonomous and anonymous digital contracting in India entails testing them for contractual validity as provided under the Indian Contract Act. Several concerns crop up during this exercise, particularly in the context of a rigid procedural framework under the law. In this article, we rebut the argument of ‘self-regulation’ frequently mooted as the best regulatory response to smart contracts. We favour an approach that harmonises smart contracts within the Indian Contract Act through a liberal interpretation of substantive contractual law, in line with the flexibility offered by common law. We illustrate that a smart contract is constituted of the same building blocks as that of a traditional contract under common law, and subsequently refine our analysis in the context of Indian laws and attendant precedent. This interpretation is strengthened through reference to similar approaches adopted in foreign jurisdictions. Notwithstanding the need for reform across a broad spectrum of statutes, we argue that a law catering specifically to the legitimisation and regulation of smart contracts is not necessary. The article concludes by suggesting remedies to the potential challenges that arise from our approach.

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 could be relieved from the performance of an onerous contract in India is by arguing procedural unconscionability. This paper comprehensively traces the development and understanding of exclusion clauses as they have evolved under the Indian Contract law and through the adoption of common law by the courts. This being a time series study, we examine all the Indian Supreme Court and High Court decisions reported until early 2020 and find that courts have attempted to instil just- contracting by adopting ad-hoc mechanism against the unfair use of the exclusion clauses. However, uncertainty continues to prevail regarding the enforceability of unconscionable exclusion clauses. Therefore, taking a comparative approach, we argue in favour of adopting certain legislative reforms in the Indian contract law towards empowering the court to adjudicate on claims based on substantive unconscionability. A first step in this direction, specifically for consumer contracts, is the statutory recognition of ‘unfair contract terms’ under the new Consumer Protection Act, 2019.

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 in the articles of the subject company. Expectedly, this substantial body of case law is also divided into two irreconcilable views on whether such an arbitration clause will govern the violations of a Company’s articles without being incorporated into the same. Of the two predominant views – the contractual view and the incorporation view – this paper argues that the contractual view is preferable, being consistent with the principle of party autonomy as well as settled law in arbitration-friendly jurisdictions such as Singapore and Hong Kong.

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 15(1). Article 15(1) must only cover cases of direct discrimination. Nevertheless, discrimination along the lines of certain prohibited markers which are tied to individual dignity and autonomy ought to be treated differentially even under Article 14. I argue for a heightened standard of review under Article 14.

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.

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 desire through stigma and violence. Caste pre-constitutes desire, curtailing its radical potential for self and societal transformational. Furthermore, the queer movement by emptying out caste is a space of upper-caste queer persons. The demands of the queer movement hence are limited to what our interlocutors referred to as “bland” politics of legalising marriage. The everyday struggles of safety and livelihood of Dalit queer and trans persons does not find a mention. The Dalit movement, while more accepting also continues to be a masculine, alienating space through its inadequate engagement with sexuality and gender. Two years after the reading down of §377, the realisation of constitutional morality and democracy in same-sex intimacies and politics remains thwarted by the graded hierarchies of caste.

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 the privacy of his bedroom by colleagues and media persons. The professor sued the University administration under the 2009 Delhi Hight Court Naz judgment that decriminalized same-sex relations. The 2018 Johar judgment that decriminalized homosexuality once and for all forms the backdrop of Shubh Mangal Zyada Savdhan, set in small-town Allahabad. The paper argues that the films represent two distinct gay male protagonists whose stories constitute opposing regimes of gay male visibility and identification in relation to the legal reform of homosexuality from 2009-2018. The out and proud lovers of Shubh Mangal Zyada Savdhan stand in stark contrast to the victimhood of Siras, whose legal empowerment leaves him visible and vulnerable. The paper demonstrates how gay-themed twenty-first century Hindi cinema mediates the relationship between law and society.