Articles

The interface between competition law and sports has been gathering increasing prominence in recent years, propelled by commercialisation and rising viewer interest. This interface often arises in the form of unrecognised private competitions and the regulator’s attempts to flex its power by threatening to sanction players who participate in such tournaments. Two recent major cases in the European Union (‘EU’), European Superleague Company v. Fédération internationale de football association (‘Superleague’) and Union of European Football Associations, and International Skating Union v. European Commission (‘ISU’) have transformed this interface and have laid down a pathway for the future. While these cases have been transformative for EU competition law, there are also lessons that Indian competition law can draw from them. These pertain to the legitimate objectives that regulators must protect, the lifetime of players, and the commercial viability of the sport. Each of these has significant areas of competition analysis that remain underutilised in India at present, leading to a missed opportunity. Therefore, it is argued that the incorporation of the EU’s analysis in the Superleague and ISU cases stands to enrich Indian competition law analysis.

Cryptocurrencies have become increasingly popular in India. To transfer and store their cryptocurrencies, users rely on platforms or applications known as crypto exchanges. However, the exact contours of the legal relationship between the users and the exchanges remain unclear. Other jurisdictions have classified this relationship in a variety of different ways such as a trust, debtor-creditor relationship or even creating new innovative concepts like control-based proprietary interest. However, this paper argues that considering the Indian contractual framework, this relationship can be best classified as a bailment. The paper also attempts to provide a normative justification for this claim by highlighting its utility in scenarios where crypto exchanges go insolvent.

The Competition Commission of India (CCI) has always been vested with the jurisdiction of delineating the relevant market in cases of abuse of dominance. However, recently, in the case of Telefonaktiebolaget Lm Ericsson (Publ) v. Competition Commission of India, it was held that the Patents Act, 1970 and the courts would prevail over the CCI in the assessment of the rights of a patentee. Within the case text, one of the contentions that ultimately paved the path for such a detrimental ruling was that the calculation of Fair, Reasonable and Non-Discriminatory rates (‘FRAND’) does not require the delineation of a relevant market and hence, the CCI does not exercise jurisdiction over it. However, figuring out a rightful FRAND rate (which deters the abuse) depends entirely on the comparative analysis of substitutes of a product in a given relevant market since such a rate cannot be fixed arbitrarily and has to be equal for all licensees. Hence, in this article, the authors argue that the jurisdiction of the determination of licensing royalties in the cases of abuse of dominance by a patent holder lies with the CCI alone.

The recent legal vendetta of Supriya Chakraborty v. Union of India (‘Supriya Chakraborty’) yearns for the recognition of the right to marriage equality through a judicial reinterpretation of various personal and secular laws. Curiously, the respondents have argued that the Supreme Court’s declaration on this matter would trespass into the realm of the Legislature, challenging the sacred principle of separation of powers and endangering the Constitution’s Basic Structure. This essay contends that the respondents’ argument bears considerable merit since the higher judiciary has defiantly stepped beyond its conventional boundaries, venturing into the domains traditionally reserved for the legislature and executive. Nevertheless, the quest for resolving India’s separation of powers conundrum leads this essay to open the door to the Basic Structure doctrine’s application to judicial review — an expansion of scope that neither defies nor eludes possibility — thanks to the Supreme Court’s adept utilisation of the doctrine to review ordinary legislation and executive action. Building upon this, to counter the innate drawbacks of the traditional options available to the Supreme Court in Supriya Chakraborty, the essay proposes a balanced approach: blending the doctrine’s application to Judicial Review with the finesse of dialogic constitutionalism.

The basic structure doctrine first theorised in the case of Kesavananda Bharati v. State of Kerala (‘Kesavananda Bharati’), is a judicial tool to protect and preserve the foundation of the Indian Constitution, 1950. It originated to complement further the idea of exercising restraint upon the constituent power of the Parliament. This paper is a study of the academic and historical genesis of the basic structure doctrine, developments in the doctrine post the case of Kesavananda Bharati and the constitutional and jurisprudential questions that surround it in today’s time and age. The study of these questions is situated in four contemporary issues – applicability of the doctrine upon the legislative power of the Parliament, questioning the precedential validity of the Kesavananda Bharati case upon the touchstone of the doctrine of stare decisis, the doctrine of legislative overruling and the gaps it creates in achieving constitutional governance, and the overlap between constitutional morality and the doctrine of basic structure. All the aforesaid questions are elements in the larger scheme of separation of powers and judicial review. The paper critically evaluates these broad questions while situating them in the realities of the country today.

Articles 123 and 213 of the Indian Constitution, 1950 (‘the Constitution’) grant the power of promulgating ordinances to the President and the Governor respectively. The intent behind carving such powers is to deal with sudden emergencies when the existing laws fail to resolve it. However, this intent has been ransacked due to the grave misuse of the power in promulgating non-urgent ordinances only to bypass legislative scrutiny. This practice is further marred by a formalistic judicial review of the promulgating powers which obstructs a substantive scrutiny of ordinance-making powers. Therefore, to prevent the misuse of these provisions, this article suggests an application of the basic structure doctrine to the powers of promulgating ordinances. It argues that such an application would test the effect of the ordinance on the anvil of the basic principles of the Constitution instead of scrutinising the motive behind promulgation, which is advantageous for rigorous scrutiny of the promulgating powers. Moreover, it presents a framework laying down an independent substantive model of basic structure review with elaborate methods and arguments to apply the basic structure doctrine to the ordinances. Lastly, it urges us to adopt this basic structure review to preserve the foundational ideals and supremacy of our Constitution.