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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.

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 of the High Court to hold a Supreme Court judgment as per incuriam and sub-silentio. This has potentially disturbed the doctrine of stare decisis and might negatively impact the judicial hierarchy, creating inconsistency and uncertainty. This is precisely what the High Court of Kerala has held in Haris KM v. Jahfar. This note analyses the Haris KM case and the judicial position of the rules of per incuriam and sub-silentio in India. It argues that the High Court could not have rendered a Supreme Court judgment as per incuriam and sub-silentio. 

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 only further complicated the position of law through its judgment in the Coordination Committee Case. This article unpacks this complicated position of law and argues for a need to introduce exemptions for trade unions under the current competition law regime. The applicability of competition law to trade unions is then proposed to be determined by a three-step test which balances the role of the Competition Commission of India and the labour authorities. The test seeks to stabilise the collective bargaining of trade unions with the implementation of competition law.

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 liability is when there is an employer-employee relationship. However, courts have modified this test in the context of hospitals and now hold commercial hospitals vicariously liable for all negligence of their doctors. If this test is extended to medical platforms, it will lead to unreasonable over-regulation by holding all platforms liable. This paper suggests a three-part framework to assess the liability of these platforms under tort law that is fair and equitable. Under intermediary liability, the plain application of the law results in no liability for any medical platform. While this is a reasonable outcome, it highlights the lack of certainty in regulating medical platforms. To ensure that innovation is not stifled, this paper argues that liability of such platforms should be clarified.

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 comprehensive data protection law, which encodes guiding principles recognised in data protection legisprudence across jurisdictions. To substantiate this, the article analyses select aspects of data protection frameworks and demonstrates their value in creating privacy-preserving financial services in India. While the (Indian) Data Protection Bill, 2021 (‘DP Bill’)+ may serve as a useful template for such a framework, the question of whether the provisions of the DP Bill meet this threshold, is beyond the scope of this article. The observations of this article are relevant for FinTech firms, sectoral regulators in India, and scholars of privacy law and financial regulation.

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 Indian Companies Act in detail. In our analysis, we note that §166(3), in its current form, leaves important gaps in the director’s duty of care. First, §166(3) does not specify to whom the duty of care is owed, which significantly impacts the nature of the obligation. Second, the provision does not provide a standard for the duty of care. In this paper, we argue that the duty of care is and should only be owed to the company. This is in contrast to the duty of good faith in §166(2) of the Indian Companies Act and the duty of care in the United Kingdom (‘UK’), which is owed to all stakeholders. Further, we argue that absent any express standard for the duty of care, India would be best served in adopting the ordinary reasonable man standard developed under tort law, which is objective in nature. We argue that standards found elsewhere, such as the subjective standard, the subjective-objective standards of agency law, the UK Companies Act, 2006, and the business judgement rule in the United States of America, are not suitable for India. We conclude by postulating the objective reasonable man standard as best-suited to the Indian corporate landscape, which will bring much-needed clarity to the duty of care of the directors.

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 the legislature to remodel the law in order to safeguard the citizen’s right to privacy and data protection.

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 own citizens by implementing a range of domestic measures, there have also been international prohibitions on foreign travel, previously been unseen by many people. However, neither a single State nor an organisation can overcome the pandemic alone. This is where the academic attention turns towards public international law to shed light on the situation and gain insight into the international legal response. This is due to the decentralised nature of the international legal system that is vastly fragmented. International law and norms do not seamlessly fit together like a jigsaw and instead they often highlight gaps between regulations. The paper seeks to address whether the international legal regime is robust and effective enough to address these concerns. The paper addresses the role and response of the World Health Organisation, the United Nations Security Council, the United Nations General Assembly, and domestic courts, to the pandemic. The paper concludes that while international law is reactive to the societal needs, the legal regime does have the ability to adapt following the current pandemic. Thus, it argues that conducting an international deliberation and the formation of a ‘Pandemic Treaty’ would clearly display the potential and the possibility for international law to be effective during a future pandemic.

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 the discourse around the disparate impact of measures which are facially neutral. The Equality Code (Articles 14 to 18) under the Indian Constitution has endured the test of time to ensure that measures which directly discriminate between people on the enumerated protected grounds, are struck down. However, with evolving times, it is imperative to address neutral measures which, albeit applicable to all, affect different segments of the population differently. While the Supreme Court has analysed indirect discrimination in a recent judgement, this article is an attempt to analyse whether facially neutral measures can be considered discriminatory under our constitutional framework. The authors conclude that Article 15 can be interpreted to consist of safeguards against facially neutral laws with disparate impacts. The jurisprudence of certain countries regarding discriminatory facially neutral measures has been examined to bolster this analysis. At the end, a sliding scale theory is proposed to analyse the constitutionality of a facially neutral measure, while also examining the constitutional validity of the imposed lockdown vis-à-vis the disproportionate impact it has posed on the migrant workers.