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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 follow Naz, it brought into the Indian jurisprudence certain crucial, independent advancements in the understanding of equality and non-discrimination

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 within queer communities in the country along the lines of gender, caste, class, and religion. This is to show that the often opposing politics of these identities prevent us from constituting the ‘LGBT community’ as a singular subject of legal analysis, which the judgment of the Supreme Court in Navtej Singh Johar v. Union of India (2018) attempted to do but failed at. I argue that the judgment materially benefitted primarily gay men, while not applying to female sexuality (except symbolically), and having limited impact on the trans communities especially in the aftermath of National Legal Services Authority v. Union of India (2014). In a paradigm of limited funding and prioritised campaigning, acknowledging that funding and public discourse are among the primary ways in which many identities and lives have been made visible, I also point to possible focus areas that activist, legal and academic energies can be extended to going forward to benefit queer and trans women under the law. In keeping with the intersectional feminist understanding that if our freedoms are not interlinked, they are not freedoms at all, this paper highlights the urgent need to strengthen queer solidarities after the Navtej Singh Johar judgement.

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 wider recognition of LGBTQ+ rights because it views autonomy as liberty, and demands only non-interference in the individual’s private sphere. I argue that the second, and more profound, understanding of love acknowledges its transformative potential, its power to break down oppressive structures, and its role as an anchor of individual identity. This paves the way for the legal recognition of queer relationships on the one hand, and the reform of orthodox opposite- sex relationships, on the other.

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 published so far. Till 2018, when prestigious international law journal index Washington-Lee covered in Indian journals, we occupied the top spot in the student-edited category and the third spot in the over-all category in India. In the past two years alone, institutions like the Supreme Court of India, the Law Commission of India and judicial academies among others have relied on the scholarship produced and published by us. We have also left our imprint in the constitutional jurisprudence of our country, with multiple articles of the NUJS Law Review being cited in the historic judicial opinions in the Aadhaar and Navtej Singh Johar cases. We are deeply grateful to our contributors in helping us achieve such milestones. At the same time, we also attribute a significant share of the credit to the dedicated teams of students who have worked throughout the years to ensure that only the best quality and the most accurate legal scholarship passes the muster of our publication.

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 tax system that truly complies with the rule of law. Following this, the author surveys two major areas of disputes – namely, the distinction between a “tax” and “fees”, and the interpretation of exemption notifications. This demonstrates the significant likelihood of judicial activism by appellate courts in tax disputes, which contributes to a tax policy that is doctrinally incoherent. It is submitted that inconsistent tax jurisprudence contributes to a larger number of disputes since both the taxpayers and the revenue department are uncertain of the outcomes in a tax system where the judiciary enjoys extraordinary jurisdiction in tax disputes. The solution proposed is to identify and enforce a broad set of principles concerning an efficient and fair tax system at the level of the judiciary, in line with international best practices.

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 person to person. In the case of information technology, the concern for privacy is increasing day by day, as development in this field always brings misuse along with the betterment for human society. In India, privacy is an unenumerated fundamental right under the Constitution. The issue relating to privacy in the informational field is addressed by the Information Technology Act, 2000. However, even after that, a large number of disputes are coming to the fore. This article is primarily concerned with the concept of privacy, its recognition under the Constitution of India, and protection of informational privacy under the Information Technology Act, 2000.

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 of judicial intervention in the West has lead to the incapacitation of international human rights law. Despite robust jurisprudence including case law, comments by the United Nations, and widespread state practice on the right to privacy and the application of human rights obligations to extraterritorial stakeholders, extraterritorial surveillance continues with aplomb. Procedural safeguards and proportionality tests regularly sway towards a ‘ritual incantation’ of national security even in scenarios where a less intrusive option is available. The vulnerable citizen abroad is unable to challenge these processes and becomes an unwitting victim of nefarious surveillance practices that further widens global power asymmetry and entrenches geo-political fissures.

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 and Bankruptcy Code 2016, and amendments to the Banking Regulation Act 1949. However, we believe and propose through this paper that these efforts need to be effectively supplemented with the application of the doctrine of reverse piercing the corporate veil. The doctrine involves imposition of liability of the controllers of the corporation to the corporation itself, thereby leaving little room for the controller to misuse the corporate façade for wrongful purposes. Application of this doctrine certainly causes disruption in the present set up of debt recovery, i.e., priority of claims, but it can be tackled with adequate change of the distribution waterfall, as explained in detail in this paper. Lastly, the elusive aspect of ‘control’ which arises while determining the application of the doctrine also finds analysis with detailed elucidation. The recommendations are made keeping in mind the present legal framework surrounding the insolvency resolution process and keeping in mind the larger public interest involved in recovering the economy from the persisting crisis.

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 of Muslim marriages in India and the role of prenuptial agreements in determinations at the time of termination of Christian marriages is legally acknowledged. On the other hand, the enforcement of prenuptial agreements in relation to other religious communities has largely been dependent on judicial interpretation. Noticeably, in recent discussions concerning prenuptial agreements in India, societal perspectives have taken up a dominant role, in fact to the extent of overshadowing perspectives of the key stakeholders in the matter. In this paper, therefore, we endeavour to shift the focus back onto the key stakeholders by assessing the potential benefit that prenuptial agreements can have for couples in India and delineating the models of such agreements which prospective spouses can consider adopting for managing their marital relations.

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 than seventy articles and research papers in national and international journals. Moreover, he had also been the director of the Kalinga Institute of Industrial Technology (KIIT) University in Bhubaneshwar for nearly one decade. The newly selected Editorial Board and the other members of the journal look forward to working under his mentorship. This issue as well presents some ground-breaking scholarship by established authors and emerging voices in the legal academia on issues of national significance.