Articles

This article argues that the State enacts legislative violence upon transgender persons by establishing a regulatory framework that is paternalistic, cis-heteronormative and detrimental to transgender persons’ basic identity. The legislative violence inflicted on transgender persons is evident from the Transgender Persons (Protection of Rights) Act, 2019 and Draft Rules, which violate the fundamental rights of transgender persons. Such violence also medicalises transgender identities under the guise of biological determinism. In this article, we critically explore State structures that monitor and survey trans bodies based on exclusionary cis-heteronormative standards, seeking particularly to regulate non-binary and non-traditional gender identities. The nation state itself is built through exclusion of various groups, leading to differential forms of citizenship. In the second part of the article, we explore recent efforts of the State to create citizenship structures hinging on documentary identification, through the Citizenship Amendment Act, 2019 -– National Register of Indian Citizens nexus. It is reasonable to predict that the majority of transgender persons and gender-variant persons will be excluded from citizenship due to lack of requisite documentation. Although civic citizenship of transgender persons is purportedly based on ‘equality’, the legal citizenship advanced by this nexus, is nothing more than performative citizenship. The legal framework enacted for the ‘protection of rights’ of transgender persons is excessively paternalistic in nature, ignoring the fact that transgender persons mobilise powerfully against the state to resist injustice and reclaim avenues of negotiation. Such resistance and negotiations are seen through protests, policy engagements and invoking of constitutional challenges, opening the door to alternative citizenship structures and changes in political participation.

The idea of the modern-day family is constantly evolving, as is the conception of reproductive rights. While the right to have a family or the right to family life remain largely uncodified in India, these rights find a strong basis in other pre-existing rights. Through an analysis of three assisted reproductive techniques, namely, surrogacy, in-vitro fertilisation, and genetic manipulation, we study the interplay of technology, health, gender, commerce and sexuality and in turn, its implications for public health rights, gender justice, sexual rights, disability rights, child rights, and bioethics. We argue that medical professionals, infertile individuals or couples, children born as a result of assisted reproduction, donors and surrogates across India suffer greatly due to the lack of a legal framework which adequately addresses their needs. These needs, such as protection of bodily autonomy for surrogates and donors, equitable access for commissioning couples or individuals, assurance of legal status for children, among many others, remain unaddressed in both individual and collective capacities. In an attempt to remedy this, we extensively discuss the various ways in which assisted reproduction ought to be regulated. We contextualise the concerns with assisted reproduction to the Indian context and suggest the core principles that should be a part of a national legally binding regulatory framework in the country.

Based on a study of all reported habeas corpus judgments of the Supreme Court in the twenty-year period from 2000 to 2019, this article presents an empirical analysis of the delay in adjudication of habeas corpus petitions in preventive detention cases. Three indicators are used for the study: first, the total time spent between the date of detention order and the date of final disposal by the Supreme Court; second, the time spent at the Supreme Court level alone; and third, the time spent in actual detention till the matter was finally disposed of by the Supreme Court (including an analysis of the extent to which Supreme Court was responsible for the delay). A more sharpened analysis of only ‘successful’ habeas corpus petitions – i.e. the twenty cases where the Supreme Court was the relief-granting court – is also presented. It is suggested that habeas corpus is reduced to a meaningless remedy in many cases.

Volume 13(1) occupies a special place in the lineage of the NUJS Law Review. All the articles featuring in this issue have been published amidst the COVID-19 pandemic. This required us to fulfill our editorial responsibilities in the qualified comfort of our homes, under stringent lockdowns stipulated by the Government. For us, the experience of working for the journal remotely has given us an insight as to how the NUJS Law Review, as an institution, transcends the physical precincts of the college campus into something much broader, more ethereal, and perhaps more enduring. This insight holds true not just for the NUJS Law Review, but also for institutions across the legal fraternity, such as courts, tribunals, law firms, and even universities. With the justice delivery system being under heavy duress due to the COVID-19 pandemic, these institutions have all transitioned to function remotely in order to eliminate the use of their physical infrastructure. Such a transition has only been possible because of the motivated adoption of internet and technology.

The international law doctrine of consular law was articulated from customary international law by international jurists to afford a lawful means by which states could respond to their obligations and violations pertaining to consular access. This paper critically analyses the theoretical value of law of consular relations as embodied in the Vienna Convention on Consular Relations (‘VCCR’) specifically in light of the recent case before the International Court of Justice (‘ICJ’) involving the detention incommunicado of Indian national, Kulbhushan Jadhav, at the behest of Pakistani authorities. It identifies several key shortcomings that problematise the implementation of the doctrine of consular relations. It subsequently examines the precedents before the ICJ invoking the application of the VCCR to preserve its nationals’ due process rights as well as the drafting history of the convention. It uses the same to also analyse the arguments presented by the parties and the decision thereof. It is concluded that the law on consular relations as codified in the VCCR is insufficient and extremely ambiguous in its application, leaving states unwilling to fulfil their obligations under the VCCR as also witnessed in the Kulbhushan Jadhav case. There is a need to remedy this either by further codifying its loose ends or clarifying the meaning of the law. Even though the ICJ had an opportunity to tie these ends in the Kulbhushan Jadhav case, it did not conclusively ascertain the failings of this doctrine and its effect in the international legal community.

The Constitution Bench of the Supreme Court in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Ltd. defined the scope of §13(2)(a) of the Consumer Protection Act, 1986. It held that the provision which lays down the timeline for filing of a reply by the opposite party is mandatory in nature. Prior to this ruling, the conflicting decisions in this regard led to immense delay in adjudication of consumer disputes at the district level, with certain cases reaching the Supreme Court at the interim stages itself. We argue that the decision of New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Ltd., has ended a decade and a half of humpty dumpty jurisprudence on the nature of §13(2)(a). We also argue that this decision will lead to a speedy disposal of consumer cases, and consumers will no longer have to rush to multiple forums at the interim stage itself.

The Insolvency and Bankruptcy Code, 2016 (‘IBC, 2016’) brought in a paradigm shift from the ‘debtor-in-possession’ regime to a ‘creditor-in-control’ regime. In order to accomplish this transformation and ensure the smooth functioning of the IBC, 2016, the legislature provided for a non-obstante clause under §238 of the IBC, 2016. The non-obstante clause has an overriding effect on any law for the time being in force which is inconsistent with the provisions of the IBC, 2016. However, this tool must be used cautiously and should be utilised only when the test of inconsistency, which has evolved through various case laws, gives positive results. This article discusses the scope and applicability of §238 of the IBC, 2016 and its effect on other statutes. It analyses the position of the IBC, 2016 vis-à-vis seven statutes including, the Maharashtra Relief Undertaking (Special Provisions) Act, 1958, Companies Act, 2013, Securities and Exchange Board of India Act, 1992, Advocates Act, 1961, Prevention of Money Laundering Act, 2002, Arbitration and Conciliation Act, 1996, Real Estate (Regulatory and Development) Act, 2016 and Electricity Act, 2003.

The Micro, Small and Medium Enterprises Development Act, 2006 (‘MSMED Act’) aims to protect and promote interests of micro, small and medium enterprises (‘MSMEs’) by shortening their working capital cycle. The MSMED Act, inter alia, seeks to incentivise timely payments to MSMEs by mandating a relatively high interest, at three times the bank rate notified by the Reserve Bank of India (‘RBI’), to be paid by a buyer for the period of delay, over the maximum prescribed time period for the payment. The interest mandated by the MSMED Act is compounded until the date of actual payment. The framework around this single provision of the MSMED Act creates a moral hazard of unduly delayed claims by the vendors, immense financial hardship for buyers due to mounting interest and an entirely unintended consequence of disincentivising buyers from dealing with MSMEs. In order to remedy this, the note examines whether, like all commercial claims, a claim under the MSMED Act must also, by passage of time, be barred by limitation.