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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 its key features, and by abstracting instances through ‘reverse engineering’, I attempt to assert the indispensability of philosophical research in law. I also undertake an interdisciplinary analysis to demonstrate its potential for facilitating the development of the legal system through employment of tools and processes such as intuitionism, dialectical method and reflective thinking. Thus, deconstructing the philosophical research in law through the lens of adjudicative and norm-building processes has practical advantages.

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 genuine transactions and lengthy procedural compliances. A constitutional challenge to the GAAR is likely on grounds that it overrides India’s international obligations. We analyse that under the constitutional scheme, treaty override is permissible, as Articles 253 and 246 are at the same pedestal, where a law made in pursuance of international obligations does not override other national laws. The validity of national laws is not affected by the presence of international obligations either. Breach of those obligations only gives rise to suitable remedies in international law. As a result, it is likely that such a challenge would fail, and GAAR would apply to DTAAs. Simultaneously, there has been another development that merits consideration; several of India’s new and re-negotiated DTAAs, including the India-Mauritius treaty, contain Limitation of Benefits clauses to prevent the use of these treaties as devices for tax avoidance. To prevent the harassment that would ensue from an application of GAAR to DTAAs, we argue that the GAAR should not apply to treaties having Limitation of Benefits clauses, as the latter can accomplish the same purpose without the accompanying uncertainty and harassment. This can be done by excluding these treaties from the scope of GAAR.

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 stir amongst Indians. Proponents of the judgment argue that the judgment is a positive step towards inculcating a culture of patriotic cohesion in the Indian masses. On the other hand, critics of the judgment seemingly adopt either one, or sometimes both, of the following lines of argument. First, they argue that the singling out of the cinema halls is arbitrary as an imposition of a duty to sing the national anthem in a space meant for entertainment lacks justifiable basis. Second, and more importantly, critics argue that the mandatory enforcement of patriotic values is indicative of a worrying trend towards aggressive nationalism in the Supreme Court…

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 required to assert jurisdiction over tax business profits. It is argued that in the interpretation and application of the rules, a clear distinction should be made between conceptual and practical issues. While there may be overlap between them, distinct issues exist regarding the normative questions of how and where profits arising from e-commerce should best be taxed as a matter of principle, as well as how such taxes should be implemented. The formulary apportionment of income earned by e-commerce business based on an economically justifiable formula provides a viable solution.

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 Council in British India, from a draft civil procedure code prepared in New York in 1850 by a prominent American lawyer, David Dudley Field. This paper will discuss the broader implications of the transplant of evidentiary rules from 19th century America or Britain to India (where the distinction between judge and jury is, and always has been, very narrow).

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 its enforcement and also creates a dedicated forum for seeking compensation, which was earlier being awarded by consumer forums. Looking closely at the provisions of this Act and the procedure for filing of complaints, the creation of two separate forums for enforcement and compensation establishes an absurd position of law leading to multiplicity of complaints for the same cause of action, an unnecessary determination of jurisdiction and the possibility of conflicting views. Further, in the presence of specialised statutory forums for adjudication of disputes, the question of validity of arbitration clauses in real estate agreements and the arbitrability of disputes under this Act becomes a moot point. Given the lack of clarity over the arbitrability of such disputes, and in furtherance of the objectives of this Act, this paper argues in favour of ouster of the jurisdiction of arbitration tribunals for an effective enforcement and speedy redressal of disputes in the real estate sector.

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 schemes. Employees’ benefit schemes have, in particular, become major tools for rewarding employees, either through cash or shares of the companies, as a part of their remuneration. Traditionally offered as only employees’ stock option or purchase schemes, the ambit of employees’ benefit schemes has widened over time to cover various other types of benefits. Against this backdrop, I seek to expatiate upon the scope of employees’ benefit schemes offered by both listed companies as well as unlisted companies in India, the manner in which these schemes are regulated and governed under the extant legal regime, and the possible drawbacks that may arise while implementing these schemes.

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 argue that the law would defeat the objective of having a separate juvenile justice system, and would not serve the goal of deterrence. They instead suggest that efforts be expended in ensuring more effective implementation of the Juvenile Justice (Care and Protection) Act, 2000. The paper analyses the viability of the mechanism proposed by the new measure. It also evaluates the potency of the counter claim which proposes that the existing law be better implemented, and thereby examines the necessity for the introduction of a new approach governing juvenile policy in India.

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 Court, for instance, ruled that the inner sanctum of the Shani Shingnapur temple in Ahmednagar, Maharashtra be opened to women, as it is the fundamental right of women to enter all places of worship that allow entry to men, and the duty of the state to protect such right. The Court relied on the Maharashtra Hindu Places of Public Worship (Entry Authorisation) Act, 1956, which prohibits obstructing a section or class of the Hindu population from entering places of worship…

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 benefit the citizenry, and ensure the smooth functioning of the government at all levels. In India today, legislation is often drafted and developed by think-tanks and policy research organisations who then work closely with prevailing governments and ministries to enact it into law. In many cases, the ministries themselves draft legislation and circulate them for public comments before at- tempting to pass them through Parliament. While these background organisations do much of the leg work that is involved in legislative drafting, it may be time for the country’s overall approach to legislative drafting to take place in a more systematic and structured manner. It is in this light that Regulatory Impact Assessment (‘RIA’) proves to be a useful tool in regulation and governance…