Articles

While the Scheme of Arrangement (‘SoA’) has been widely accepted as a critical debt restructuring tool across the world, this mechanism has rarely been used in the Indian context. Often at crossroads with India’s regime under the Insolvency and Bankruptcy Code, 2016 (‘IBC’), tribunals have regularly taken a stance preferring insolvency proceedings under §7 of the IBC over ongoing proceedings under §230 of the Companies Act, 2013 (‘CA’) relating to the SoA. In addition to the low success rate of the corporate insolvency resolution process (‘CIRP’) regime, this phenomenon becomes increasingly relevant considering the jurisprudential precipice that Indian insolvency law finds itself at regarding minimum creditor entitlements vis-à-vis CIRP, and the extent of tribunal discretion in accepting §7 applications as seen in the recent Vidarbha Judgment. While there has been notable discourse identifying the need for India to leverage the benefits of SoA as a debt restructuring mechanism, this note examines the various jurisprudential developments which have and are taking place within the SoA and insolvency paradigms to identify a potential opportunity to induct §230 as a prominent debt-restructuring mechanism. Instead of advocating for the SoA over the insolvency regime, this note presents a model to potentially harmonise two regimes for a more effective and revival-oriented debt-restructuring paradigm in India.

Access to safe abortion in India is significantly hindered by a criminalising legal framework. §312 of the Indian Penal Code (‘IPC’), titled “Causing miscarriage”, penalises even voluntary abortions, despite exceptions provided under the Medical Termination of Pregnancy Act, 1971 (‘MTP Act’). The MTP Act permits abortion services under specific conditions, but it only exists as an exception to the overarching criminal law. This article analyses 262 abortion-related cases adjudicated in the trial courts in Punjab between January 2013 and August 2024 to assess the judicial interpretation and application of abortion laws. The authors’ findings reveal widespread judicial misapplication and misinterpretation, with many voluntary abortion services — well within the gestational limits and conditions prescribed by the MTP Act — being subject to prosecution. Alarmingly, pregnant women who willingly sought abortion services within the legal exceptions of the MTP Act were frequently prosecuted. These cases highlight significant human costs, as §312 of the IPC is often misused by aggrieved spouses in marital disputes to harass pregnant persons and challenge their decisional autonomy. In several cases, spousal consent was erroneously treated as a prerequisite for abortion, undermining the rights and agency of pregnant persons. Additionally, §312 has been wrongly applied in cases involving forced abortions, which should instead invoke §313 of the IPC — a provision explicitly designed to address such a situation. Registered Medical Practitioners (‘RMPs’) are also frequently prosecuted under §312, even when their actions fall within the legal framework of the MTP Act. This misuse creates a chilling effect, discouraging RMPs from providing lawful abortion services and further restricting access to safe abortion care. The article advocates for the decriminalisation of abortion services and proposes an anti-carceral, intersectional approach to abortion access. Such an approach should prioritise reproductive justice, uphold pregnant persons’ decisional autonomy, and ensure safe, legal, and stigma-free abortion services in India.

This paper examines the environmental degradation and humanitarian crisis in Gaza resulting from Israel’s military actions during its conflict with Hamas. The key issue is the extensive destruction of critical infrastructure, which has caused severe ecological damage, worsened public health risks, and deprived the population of essential services. These actions have not only contributed to widespread suffering but also constitute violations of international legal frameworks, including International Humanitarian Law (‘IHL’), International Human Rights Law (‘IHRL’), and the Paris Agreement. The legal problem arises from Israel’s status as an occupying power, which imposes specific responsibilities under the Hague Regulations and the Fourth Geneva Convention to protect the civilian population and their environment. Under IHL, Israel is required to ensure the safety and welfare of the population in the occupied territory, while under IHRL, it is obligated to uphold fundamental human rights, including the rights to life, health, and self-determination. However, Israel has failed to meet these obligations, particularly regarding environmental protection and public welfare. Additionally, Israel’s disregard for its commitments under the Paris Agreement has exacerbated the region’s climate vulnerability, further undermining global environmental goals. This paper analyses these legal violations, highlighting how Israel’s actions contravene its duties as an occupying power and breach international obligations. It explores these violations, emphasising the need for accountability. Ultimately, the paper calls for holding Israel responsible for its actions to ensure compliance with international obligations and to address the environmental destruction and human rights violations inflicted on the Palestinian population.

Recent litigation has seen personality rights jump to the forefront of legal debates. With no Supreme Court judgment on the same, the landscape is in the fray with several High Court decisions. The theoretical debate is where to ground the right — in privacy or in property. Some have argued that the courts in India have held personality rights to be part of privacy. This paper shows that the Indian doctrine is best explained as a functionalist approach —  neither grounding it exclusively on privacy, nor on property. It shows that Indian courts have based the right in privacy only when the context permitted the same. Therefore, it cannot be read to have grounded personality rights solely on privacy. The paper defends this approach and argues for a structured analysis of the same. Further, the paper highlights the erroneous expansion of personality rights in India by not following the ‘confusion’ test. It critiques the reasoning of the Court and its misunderstanding of the seminal American case of Haelan v. Topps, which has led to the expansion of the right. Finally, it suggests an additional layer of intentional analysis to refine application in an attempt to prevent over-inclusivity.

This article examines the potential for integrating conservation covenants within the framework of India’s Transfer of Property Act, 1882 (‘TPA’). Challenging the view of Indian property rights as crystallised and rigid, the article instead argues that the TPA can indeed incorporate environmental priorities, thereby reimagining property rights as valuable tools for conservation. Specifically, the article seeks to clarify both the scope and doctrinal basis for conservation covenants within Indian law, suggesting that these covenants could serve as permissible ‘burdens’ capable of running with the land. In examining the Act’s approach to restrictions on interests created by property transfers, specifically under §11 and §40, this article illustrates how conservation covenants could be integrated effectively within the doctrinal confines of the provisions. Further drawing on comparisons with the UK’s National Trusts Act, 1937, it evaluates the benefits of such integration within India’s legal landscape. In doing so, it provides an evaluation of how conservation covenants can be effectively implemented in India and argues for a reimagined approach to property rights and the ‘fusion’ of private rights with public environmental goals.

The Specific Relief (Amendment) Act, 2018 has fundamentally amended the law of specific performance in India by subordinating damages to specific performance as a contractual remedy. In 2023, the Supreme Court, in Katta Sujatha Reddy v. Siddamsetty Infra Projects Pvt. Ltd., held that the amendment applies prospectively. While the Court recently recalled the decision on merits, the finding on the applicability of the amendment was not dealt with and continues to remain good law. This article argues that the Court’s reasoning is unconvincing, both theoretically and doctrinally, and undermines the legislative intent to make specific performance a more widely available remedy. It is demonstrated that treating rights and remedies as interchangeable concepts results in inconsistent judicial approaches regarding the applicability of the Amending Act. Relying on theoretical literature distinguishing rights and remedies (with a distinctive focus on specific performance), as well as Indian doctrine, it is argued that specific performance ought to be treated as a remedy and not a right. Consequently, this article proposes an appropriate analytical framework for courts to decide the applicability of the Amending Act.

The NUJS Law Review was pleased to host Senior Advocate Gourab Banerji for an exclusive interview discussing key developments in arbitration in India, select international developments in arbitration, the recently inaugurated Arbitration Bar of India and careers in arbitration for Indian law students. The interview was hosted on December 23, 2024. The questions for the interview were prepared by the Board of Editors of the Review in discussion with Mr Banerji. The interview was conducted by Nimesh Singh and Ranak Banerji, both Editors at the NUJS Law Review, who took the freedom to ask additional questions where necessary. The discussion in the interview was recorded and then transcribed, edited and finalised by the Members of the NUJS Law Review. The free-flow discussion has been divided into four indicative topics, each of which contains further sub-topics for ease of navigation. The Review collectively hopes that this edited transcript positively contributes to the discussions on arbitration in India.

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”.