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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 of Indian national, Kulbhushan Jadhav, at the behest of Pakistani authorities. It identifies several key shortcomings that problematise the implementation of the doctrine of consular relations. It subsequently examines the precedents before the ICJ invoking the application of the VCCR to preserve its nationals’ due process rights as well as the drafting history of the convention. It uses the same to also analyse the arguments presented by the parties and the decision thereof. It is concluded that the law on consular relations as codified in the VCCR is insufficient and extremely ambiguous in its application, leaving states unwilling to fulfil their obligations under the VCCR as also witnessed in the Kulbhushan Jadhav case. There is a need to remedy this either by further codifying its loose ends or clarifying the meaning of the law. Even though the ICJ had an opportunity to tie these ends in the Kulbhushan Jadhav case, it did not conclusively ascertain the failings of this doctrine and its effect in the international legal community.

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 level, with certain cases reaching the Supreme Court at the interim stages itself. We argue that the decision of New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Ltd., has ended a decade and a half of humpty dumpty jurisprudence on the nature of §13(2)(a). We also argue that this decision will lead to a speedy disposal of consumer cases, and consumers will no longer have to rush to multiple forums at the interim stage itself.

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. However, this tool must be used cautiously and should be utilised only when the test of inconsistency, which has evolved through various case laws, gives positive results. This article discusses the scope and applicability of §238 of the IBC, 2016 and its effect on other statutes. It analyses the position of the IBC, 2016 vis-à-vis seven statutes including, the Maharashtra Relief Undertaking (Special Provisions) Act, 1958, Companies Act, 2013, Securities and Exchange Board of India Act, 1992, Advocates Act, 1961, Prevention of Money Laundering Act, 2002, Arbitration and Conciliation Act, 1996, Real Estate (Regulatory and Development) Act, 2016 and Electricity Act, 2003.

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 maximum prescribed time period for the payment. The interest mandated by the MSMED Act is compounded until the date of actual payment. The framework around this single provision of the MSMED Act creates a moral hazard of unduly delayed claims by the vendors, immense financial hardship for buyers due to mounting interest and an entirely unintended consequence of disincentivising buyers from dealing with MSMEs. In order to remedy this, the note examines whether, like all commercial claims, a claim under the MSMED Act must also, by passage of time, be barred by limitation.

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 of FSP resolution in India. Yet, barring a few media pieces, the broader Indian academic legal literature has hardly attempted to contextualise these major developments within a conceptual framework. This paper attempts to address this lacuna. It analyses the recent Indian legal developments around FSP resolution within a conceptual framework and highlights relevant issues that may have a bearing on the future of FSP resolution in India.

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 attempt to answer some of these questions, supplement the growing body of literature on this matter and carry forward the legacy of previous editorial boards, we have put together the present Special Issue on the Navtej Singh Johar verdict. This consolidated Special Issue of the NUJS Law Review, is a humble addition to this growing body of literature, a celebration and criticism of the judgment through its various articles, and a tribute to those who have silently but arduously undertaken the grassroots movement which brought about the decision in Navtej. Through this Issue, the NUJS Law Review and the authors hope to respond to the Courts in a manner not possible within the Courtroom.

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 analysis of the principles upheld and the manner in which these principles have been transposed (or rather, ignored) in public policy merits equal discussion. Of importance here, is the ‘innateness’ approach to sexual orientation, which formed the foundation for the unanimous judgment passed by the bench, as this construct seeks to stabilise and essentialise queer identities. The translation of this construct into gender identity legislations such as the Transgender Persons (Protection of Rights) Act, 2019 and bills such as the Personal Data Protection Bill, 2018 is also worrying. The effect, of an ‘innateness’ approach to identity being codified into legislations, is to silo identities into neatly segregated and essentialised categories that can be easily ‘watched’ and protected as ‘data’, as opposed to individuals proclaiming and performing these identities being granted equal recognition before the law.

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 of detection and relative freedom from the law. By making queer identities invisible, it is understood that the sexual ‘others’ have no claims or lesser claims to citizenship alongside the ‘good’, law abiding, heterosexual subjects. In this sense, questions of gender and sexual identity can be seen to intertwine with those of citizenship in a number of profound ways for queer persons are often reduced to being ‘partial citizens’. This paper will look at how certain laws in India intersect with informal methods of social censure to produce a regime that has a disenfranchising impact on queer persons’ access to public spaces, and largely, their citizenship.

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 Indian Supreme Court of the Delhi High Court’s position. The article went on to become one of the academic articles to be cited by the Supreme Court of India when it finally read down §377 in 2018. In this article, Prof. Wintemute revisits the journey of §377, outlining the key takeaways from the discussions in Navtej Singh Johar v. Union of India, the decision of the Supreme Court of India which ultimately decriminalised same-sex intercourse under §377. A version of this article has also been published as a chapter in the book titled Human Rights in India, (Satvinder S. Juss (Satvinder Singh) ed., 1st ed.) published by Routledge (2019).

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 logical step is marriage equality, or the recognition of same-sex marriage on the same footing as traditional opposite-sex marriage, and that all the jurisprudential ingredients are already present for such recognition. The article argues that the restriction of the definition of marriage to ‘one man, one woman’ constitutes impermissible sex discrimination under Articles 14 and 15 and is also manifestly arbitrary. The article also recognises that the evolving concept of constitutional morality, which trumps social or popular morality as a means to interpret public morality as a restriction on fundamental rights, may be invoked to dispel arguments that same-sex marriage intrudes on the so-called sanctity of traditional opposite-sex marriage. It further argues that ‘one man, one woman’ violates the right to privacy and autonomy, and life with dignity under Article 21, along with the freedom of expression, which includes the expression of sexual orientation and self-identified gender. The article also argues that though the personal law that applies to a person depends on their religion, personal laws are religious neither in origin nor in character; though in any case, marriage equality should not be held to violate religious freedom based on the application of the significantly eroded ‘essential religious practices’ test. Lastly, the article argues that the Hindu Marriage Act and the Special Marriage Act are capable of being interpreted as is to permit same-sex marriage.