Articles

Indian company law has seen much debate on the enforceability of shareholder covenants not incorporated in the articles of association of a company, including covenants on matters of internal governance. This dissonance has carried over to the specific context of arbitration clauses, as it appears to be quite common (from the sheer amount of case law on this particular point) for parties to leave out the SHA’s arbitration clause while incorporating its other provisions verbatim in the articles of the subject company. Expectedly, this substantial body of case law is also divided into two irreconcilable views on whether such an arbitration clause will govern the violations of a Company’s articles without being incorporated into the same. Of the two predominant views – the contractual view and the incorporation view – this paper argues that the contractual view is preferable, being consistent with the principle of party autonomy as well as settled law in arbitration-friendly jurisdictions such as Singapore and Hong Kong.

For long, disparate impact or indirect discrimination has been absent from Indian discrimination law jurisprudence. Recently though, some decisions by the Supreme Court and the High Courts have recognised this type of discrimination. However, even in this nascent jurisprudence we notice a dichotomy. While some judges situate indirect discrimination under Article 14, others have located it under Article 15(1). In this essay, I contend that indirect discrimination is textually, evidentially and normatively incompatible with Article 15(1). Article 15(1) must only cover cases of direct discrimination. Nevertheless, discrimination along the lines of certain prohibited markers which are tied to individual dignity and autonomy ought to be treated differentially even under Article 14. I argue for a heightened standard of review under Article 14.

The reception of the Supreme Court’s reading down of Section 377 should be more circumspect, since there is much in the decision that offers reasons for concern. Rather than making a rupture with the contemporary majoritarian political climate, the decision is, in fact, a continuation of a longer nationalist project aimed at consolidating the ideal citizen subject of the Indian nation state.

Are sexual identities caste marked? How does caste constitute same-sex desire? As a pilot study we interviewed men who identify as Dalit and gay in metropolitan cities. Our study shows that caste pervades the intimate both in how Dalit queer, desire and are desired. Ideas of purity and pollution which would be written off as caste practices found in the rural, constitute the everydayness of urban intimacy. Dalits bodies were transformed into objects of upper caste desire through stigma and violence. Caste pre-constitutes desire, curtailing its radical potential for self and societal transformational. Furthermore, the queer movement by emptying out caste is a space of upper-caste queer persons. The demands of the queer movement hence are limited to what our interlocutors referred to as “bland” politics of legalising marriage. The everyday struggles of safety and livelihood of Dalit queer and trans persons does not find a mention. The Dalit movement, while more accepting also continues to be a masculine, alienating space through its inadequate engagement with sexuality and gender. Two years after the reading down of §377, the realisation of constitutional morality and democracy in same-sex intimacies and politics remains thwarted by the graded hierarchies of caste.

The 2015 film Aligarh and the 2020 film Shubh Mangal Zyada Savdhan represent important cinematic interventions in the legal battle for the decriminalization of homosexuality through the reading down of §377 of the Indian Penal Code, 1860. Through the staging of gay male experiences in small-town India, the films are in dialogue with two landmark judgments on LGBT rights.  Aligarh tells the real-life story of an Aligarh Muslim University professor, Siras, who was outed in the privacy of his bedroom by colleagues and media persons. The professor sued the University administration under the 2009 Delhi Hight Court Naz judgment that decriminalized same-sex relations. The 2018 Johar judgment that decriminalized homosexuality once and for all forms the backdrop of Shubh Mangal Zyada Savdhan, set in small-town Allahabad. The paper argues that the films represent two distinct gay male protagonists whose stories constitute opposing regimes of gay male visibility and identification in relation to the legal reform of homosexuality from 2009-2018. The out and proud lovers of Shubh Mangal Zyada Savdhan stand in stark contrast to the victimhood of Siras, whose legal empowerment leaves him visible and vulnerable. The paper demonstrates how gay-themed twenty-first century Hindi cinema mediates the relationship between law and society.

Historically, the movements for queer and feminist liberation in India have been, at best, dismissive of and, at worst, antagonistic towards, activism on behalf of animals. This paper documents how a trans-species solidarity is emerging — even if in contested ways — among feminism, queer rights, and animal welfare, around the issue of animal sexual assault. This is articulated through a growing recognition that children, women, queers and animals exist on similar fault lines of gendered violence. This paper examines several publicized Indian case studies of animal sexual assault by human men in an attempt to raise real concern for violence against animals and their continued suffering. It also addresses debates around §377 of the Indian Penal Code, 1860,  the “unnatural acts” law, which was rendered partially unconstitutional in 2018 after a legal battle which has pitted these movements against one another and been the impetus for new forms of alliance. I demonstrate how class, gender, and animal lives intersect — violently and otherwise —in the Indian metropolis, through an examination of carnal politics and power. 

A central concept in the Navtej Singh Johar judgement of the Supreme Court is that of ‘constitutional morality’. Through its framing of ‘constitutional morality’ juxtaposed with and pitted against ‘societal morality’, the judgement sought to bring about a transformation within the realm of ‘the social’. While the term and content of ‘constitutional morality’ have been the subject of intense legal discourse, emanating from Navtej Johar and in jurisprudence thereafter, the ramifications of the term ‘social morality’ and its relationship with the law have been inadequately addressed in public discourse. It, therefore, becomes important to examine what the courts imagine when they talk of ‘the social’ to fully understand the extent to which they can bring about such transformations. In this article, we examine if the separation between constitutional morality and societal morality, as advocated in Navtej Johar, is philosophically and practically tenable and desirable. To do this, the article engages with the assumptions made by the courts in their framing of ‘constitutional morality’ and examines the validity of these assumptions.  

The questions raised and addressed in this article include the following – is societal morality qualitatively different and distinct from constitutional morality? If constitutional morality comprises of those principles of justice that the society envisions, are the two intrinsically not linked to each other, and feed into and reinforce each other? Consequently, is there a false dichotomy created between constitutional and social/societal morality? Additionally, is it desirable for and realistic to envision law – in its formulation, implementation and interpretation – to be devoid of societal morality? Navtej Johar presents constitutional morality to be progressive, liberating, counter-majoritarian and transformative and views societal morality to be majoritarian, restrictive, status-quoist and repressive. The article analyses this conception through not only a legal but also a social science perspective.

The Indian Supreme Court’s decision in Navtej was, no doubt, a significant step in the direction of recognising queer rights in India, particularly in the private space. However, was it the queer rights jurisprudential revolution it is made out to be? As the judgment turns two, this article answers this question by analysing how other courts – whether domestic or foreign – have reacted to Navtej in their queer rights jurisprudence. On the domestic front, the Supreme Court’s positioning in the constitutional system as an ‘apex court’ implies little scope for resistance from the lower judiciary. This mandatory influence of Navtej has led to a queer rights revolution within India, specifically through the recognition of the right of queer couples to cohabit. On the international front, Navtej’s comparative influence has been felt in courts in Commonwealth countries dealing with queer rights issues. Even though some foreign courts have refused to employ Navtej’s reasoning in their decisions, the fact that Navtej has inspired queer rights litigation abroad also signifies its revolutionary impact.