Articles

This year, the Supreme Court of India (‘SCI’) chose to allow a curative petition in Delhi Metro Rail Corporation v. Delhi Airport Metro Express (‘DMRC Judgment’) to set aside a disputed arbitral award. The decision is momentous as it marks the first arbitral award set aside at the curative stage, which is the final stage of review our Apex Court offers. This invites our attention to revisit and inspect judgments involving curative petitions to cull out the parameters the SCI considers before allowing one. Such an analysis would allow us to check whether the curative petition in the DMRC Judgment passed this threshold to be allowed. This is necessary as the DMRC Judgment has courted much criticism in its few months of existence. While most have directed their dissatisfaction at the increased ambit of setting aside arbitral awards, this note solely takes a look at it from a ‘curative’ perspective. It will restrict itself to tallying the DMRC Judgment against the other curative petitions that have been allowed by the SCI. In doing so, it might end up providing a contrarian view to the current discourse surrounding the decision.

The Karnataka High Court in its Virendra Khanna v. State of Karnataka (‘Virendra Khanna’) judgment pronounced that compelled decryption of electronic devices by the accused in a criminal case was not violative of the right against self-incrimination or the right to privacy. Though Virendra Khanna was subsequently held to be per incuriam in CBI v. Mahesh Kumar Sharma, India’s position on the intersection between self-incrimination and digital evidence is nascent at best. After analysing the incompatibility of Virendra Khanna with India’s established principles of self-incrimination, the paper argues for an adoption of principles of the Foregone Conclusion Doctrine from the United States. This adoption is demonstrated as viable in light of first, the similarity between Indian and American law on the subject of the right against self-incrimination and second, the petition submitted before the Supreme Court to lay down guidelines for seizure of electronic devices. The paper also argues for harmonising the law when it comes to different forms of decryption such as passwords or biometrics. An implication of the argument adopted by the paper is creating a new zone of privacy for cell phones, given their dynamic and intrusive nature. Ultimately, the paper pre-empts a rebuttal to its argument in the form of the Third-Party Doctrine and refutes that.

The present article discusses the role of the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) in influencing or “setting standards” for other commercial law conventions. Dr. Schroeter looks at this question from multiple perspectives. He considers CISG’s Articles on interpretation, applicability, ‘gap-filing’, rights and obligations of parties, among others, being adopted by conventions. His verdict on the influence of the CISG differs for each Part of the convention. He also discusses why he believes the CISG has attained such a “standard-setting” role. Continuing from this discussion, he debates whether the CISG, quite contrarily, may be an obstacle to the further unification of international commercial law. He recommends that this unification should be furthered by interpreting the CISG and supplementary conventions (possibly) but preserving its status as “the core international commercial law convention”.

The Indian securities market is, of late, plagued by fraudulent activities such as insider trading and front running, exacerbated by technological advancements such as instant messaging. To combat the same, SEBI had often placed reliance on disconnected circumstantial evidence in regulatory investigations, with the Supreme Court’s progressive deference. However, recent Supreme Court verdicts have reverted to imposing a heavy burden of proof on the securities regulator. As a reactionary measure to these curbs, the SEBI has proposed the draft SEBI (Prohibition of Unexplained Suspicious Trading Activities in the Securities Market) Regulations, 2023, which aim to alter the evidentiary standards in regulatory investigations by incorporating a presumption of guilt in order to facilitate easier prosecutions. In this paper, the authors analyse the changing evidentiary standards in the securities law context, effected through contemporary Supreme Court rulings, in light of the SEBI’s recent attempts to revert to a more permissive evidentiary regime on the probative value of circumstantial evidence. The authors seek to contextualise and speculate as to the intent of the draft SEBI PUSTA Regulations, arguing that they constitute a reactionary measure that must be viewed in light of  restrictive interpretations by the Supreme Court in recent times. The authors provide historical context to the various novel terminologies introduced by the draft PUSTA Regulations by critically analysing them from a constitutional and practical standpoint. The authors further attempt to reconcile the interpretations of ‘materiality’ and ‘price sensitivity’ in light of the draft PUSTA Regulations and contemporaneous proposals relating to the extant insider trading framework.

The presumption of innocence is foundational to criminal law and must operate as a safeguard against prejudice during bail proceedings. However, the Indian Supreme Court has historically been inconsistent in clarifying the presumption’s status as a right at bail, and has violated it in its bail jurisprudence, notably by prejudicially considering the seriousness of the alleged offence. Prejudice influenced by considerations of seriousness has also been explicitly legislated into the bail provisions of several of India’s ‘special criminal laws’, further compromising the presumption. In this regard, The Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) stands out, as it is a stringent special criminal law but with regular bail provisions. This paper undertakes to examine whether courts have nonetheless been prejudicial in bail adjudication under the POCSO Act. It finds that decisions of the Supreme Court, Kerala High Court and Delhi High Court (DHC) have erroneously applied the POCSO Act’s ‘reverse-onus’ clause to bail proceedings. The most detailed among these judgements — the DHC’s 2020 judgement in Dharmander Singh v. State (NCT of Delhi) — prompts this paper to undertake a detailed examination of the DHC’s POCSO bail jurisprudence in 2022 and 2023 to gauge the precedential/persuasive effect of Dharmander Singh, as well as general evidence of special prejudice at scale. However, the paper argues that the record reveals no significant special prejudice due to Dharmander Singh, the reverse-onus clause in §29 of the POCSO Act, or the ‘seriousness’ of POCSO offences. Since the presence of such prejudice under a statute with regular bail provisions would aggravate the threat to the proper operation of the presumption of innocence in Indian jurisprudence, the finding of its absence in the DHC’s judgements is welcomed.

Private enforcement is one of the lesser explored ways of enforcing competition law, wherein an entity is empowered to claim infringement of competition law and compensational remedies for the same. Although it is a popular practice in several jurisdictions, it has remained terribly underutilised in the competition law regime in India. The poor drafting of the provision, which entails establishment of a competition law infringement by an adjudicatory body as a precondition and requires calculation of damages beforehand, has resulted in widespread apprehension and the subsequent underutilisation of the concept in India. This Paper argues in favour of a strengthened mechanism for privately enforcing competition law in India and seeks to reconcile the several objectives of competition regime of the country. It delves into the reasons of the gross underutilisation of such a mechanism despite there being a primitive yet established provision. It analyses the unique position of India as a developing economy and attempts to place it against other world economies with established private enforcement mechanisms. It looks into the current Indian framework and uses a comparative analysis to find out the global best practices that India can adapt within its legal framework. It seeks to arrive at a viable regulatory framework that would further the growth of private enforcement within competition law, as well as achieve the objectives of the competition law regime in the country.

This note examines the Supreme Court’s approach to resolving conflicts between fundamental rights, particularly after the recent Electoral Bonds decision. The ‘double-proportionality test’, while an improvement, lacks a doctrinal foundation and can led to arbitrary decisions on constitutional questions. There are several issues with the Indian judiciary’s methodology to determine a conflict of rights, leading to a risk of arbitrary judicial policymaking. The note identifies key issues in Indian jurisprudence, including the absence of an objective metric to determine a conflict between fundamental rights as well as a context-specific approach to resolving them. The note proposes a criteria for determining genuine conflicts and the need for contextualisation when carrying out any balancing exercise. This note advocates for a structured and principled approach to adjudicating conflicts between fundamental rights, prioritising contextual analysis over abstract value judgement.

This paper aims to make a novel contribution to the literature on the roles and responsibilities of independent directors by examining the interpretive position adopted in case law dealing with the same. The paper discusses the Securities and Exchange Board of India (SEBI) and Securities Appellate Tribunal (SAT) decisions concerning the liability of independent directors as per §149(12) of the Companies Act, 2013, wherein their roles and responsibilities were discussed. Two trends in decision making regarding the scope of an independent director’s duties have emerged. First, as exemplified in SEBI’s decision in MPS Infotechnics v. SEBI and the SAT decision in Svam Software v. SEBI, the ‘day-to-day functioning’ test is used to hold that since the independent directors did not perform day-to-day functioning, they could not be held liable. Second, as illustrated by the reasoning of SEBI’s decisions in Dish TV and Bombay Dyeing, the diligence standard of §149(12) is used to hold the independent director liable based on whether they independently reviewed the Board and the company’s activities. The piece infers that in the first trend, the independent director’s role is considered analogous to, and even the same as, that of other directors. Simultaneously, as per the 2013 Act and the second trend, daily participation in the company’s affairs, being non-executive directors in the 2013 Act, lies outside the independent director’s ambit. This divergent SEBI and SAT jurisprudence concerning §149(12) further muddles the unclear landscape of the roles and responsibilities of independent directors vis-à-vis other directors.

The recent voluntary filing for insolvency by Go First Airlines has led to the imposition of a moratorium under §14 of the Insolvency and Bankruptcy Code. This has also affected all of Go First’s fifty-three leased aircraft. In the absence of any specialised framework governing airline insolvency, the moratorium has disabled lessors from repossessing their aircraft, tarnishing India’s image in the international aviation market. In response, the government exempted such leased assets from the moratorium under §14(c) of the Code via a notification dated October 3, 2023. This move also clears space for the passage of the long overdue Cape Town Convention Bill, 2018, aimed at ratifying the Cape Town Convention. More importantly, it poses policy questions regarding the legislative options available to the government with regard to dealing with the impending question of repossession upon insolvency. This article, firstly, provides an overview of the aviation industry itself; secondly, it analyses the extant legal regime governing the repossession of aircraft in the event of airline insolvency, including the recent changes to the law; thirdly, it evaluates available policy alternatives to resolve the conundrum and concludes by suggesting an alternative that suits the Indian aviation sector.

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.