Articles

The Indian tax system suffers from an excessive incidence and pendency of tax disputes before civil courts. A certain degree of disputes is unavoidable since the tax code and policy of any jurisdiction (being the outcome of various competing factors) inevitably contains a certain degree of ambiguity. However, a significant amount of unnecessary tax litigation is caused by the development of inconsistent tax jurisprudence. The author details the permissible scope of litigation expected in a tax system that truly complies with the rule of law. Following this, the author surveys two major areas of disputes – namely, the distinction between a “tax” and “fees”, and the interpretation of exemption notifications. This demonstrates the significant likelihood of judicial activism by appellate courts in tax disputes, which contributes to a tax policy that is doctrinally incoherent. It is submitted that inconsistent tax jurisprudence contributes to a larger number of disputes since both the taxpayers and the revenue department are uncertain of the outcomes in a tax system where the judiciary enjoys extraordinary jurisdiction in tax disputes. The solution proposed is to identify and enforce a broad set of principles concerning an efficient and fair tax system at the level of the judiciary, in line with international best practices.

Privacy as a concept is going through a metamorphosis in this era of technology. The discussion relating to privacy generally involves what it entails and how it is to be valued. Discourse on privacy as a right involves the extent to which it is, or should be legally protected. However, nowadays, it is generally accepted that everybody has a need for privacy, although the way it is appreciated differs from culture to culture, and from person to person. In the case of information technology, the concern for privacy is increasing day by day, as development in this field always brings misuse along with the betterment for human society. In India, privacy is an unenumerated fundamental right under the Constitution. The issue relating to privacy in the informational field is addressed by the Information Technology Act, 2000. However, even after that, a large number of disputes are coming to the fore. This article is primarily concerned with the concept of privacy, its recognition under the Constitution of India, and protection of informational privacy under the Information Technology Act, 2000.

Our networked data trails dictate, define and modulate societies in hitherto inconceivable ways. The ability to access and manipulate that data is a product of stark power asymmetry in geo-politics, leading to a dynamic that privileges the interests of a few over the right to privacy and dignity of the many. I argue that the persistent de facto violation of human rights norms through extraterritorial surveillance conducted by western intelligence agencies, compounded by the failure of judicial intervention in the West has lead to the incapacitation of international human rights law. Despite robust jurisprudence including case law, comments by the United Nations, and widespread state practice on the right to privacy and the application of human rights obligations to extraterritorial stakeholders, extraterritorial surveillance continues with aplomb. Procedural safeguards and proportionality tests regularly sway towards a ‘ritual incantation’ of national security even in scenarios where a less intrusive option is available. The vulnerable citizen abroad is unable to challenge these processes and becomes an unwitting victim of nefarious surveillance practices that further widens global power asymmetry and entrenches geo-political fissures.

India being a country with a large number of closely held companies, the chances of fund diversion, siphoning, and financial mismanagement are high, since the control of companies largely lies in the hands of a few individuals. The bad loan crisis, especially, has plagued the Indian economy, with the willful defaulters causing a wreckage of the Indian banking sector. Several steps have been taken to address this mounting concern, including the enactment of the Insolvency and Bankruptcy Code 2016, and amendments to the Banking Regulation Act 1949. However, we believe and propose through this paper that these efforts need to be effectively supplemented with the application of the doctrine of reverse piercing the corporate veil. The doctrine involves imposition of liability of the controllers of the corporation to the corporation itself, thereby leaving little room for the controller to misuse the corporate façade for wrongful purposes. Application of this doctrine certainly causes disruption in the present set up of debt recovery, i.e., priority of claims, but it can be tackled with adequate change of the distribution waterfall, as explained in detail in this paper. Lastly, the elusive aspect of ‘control’ which arises while determining the application of the doctrine also finds analysis with detailed elucidation. The recommendations are made keeping in mind the present legal framework surrounding the insolvency resolution process and keeping in mind the larger public interest involved in recovering the economy from the persisting crisis.

Prenuptial agreements are now being widely used across the world as effective instruments of delineating spousal rights in the course of subsistence of marriage as well as in the event of termination of marital relations. Yet the Indian State has demonstrated reluctance in attributing legal status to such instruments. The Indian position on prenuptial agreements can be described as uniquely ambiguous. On one hand, the nikahnama, a prenuptial agreement is recognised as an essential feature of Muslim marriages in India and the role of prenuptial agreements in determinations at the time of termination of Christian marriages is legally acknowledged. On the other hand, the enforcement of prenuptial agreements in relation to other religious communities has largely been dependent on judicial interpretation. Noticeably, in recent discussions concerning prenuptial agreements in India, societal perspectives have taken up a dominant role, in fact to the extent of overshadowing perspectives of the key stakeholders in the matter. In this paper, therefore, we endeavour to shift the focus back onto the key stakeholders by assessing the potential benefit that prenuptial agreements can have for couples in India and delineating the models of such agreements which prospective spouses can consider adopting for managing their marital relations.

The publication of the 12^th Volume of the NUJS Law Review represents the dedication and hard work of the different generations of students, professors, and practitioners. From this year onwards, the Editorial Board and other members of the journal shall work under the leadership of the new Editor-in-Chief – Professor N. K. Chakrabarti, the new vice chancellor of the West Bengal National University of Juridical Sciences. Professor Chakrabarti has published seven books and authored more than seventy articles and research papers in national and international journals. Moreover, he had also been the director of the Kalinga Institute of Industrial Technology (KIIT) University in Bhubaneshwar for nearly one decade. The newly selected Editorial Board and the other members of the journal look forward to working under his mentorship. This issue as well presents some ground-breaking scholarship by established authors and emerging voices in the legal academia on issues of national significance.

The ‘transfer system’ envisioned under the provisions of the Juvenile Justice Act, 2015 is purportedly meant to address the commission of heinous offences, particularly sexual assault by adolescent boys. It is worth noting that the provisions of the Juvenile Justice Act, 2015 and criticisms thereof are majorly based on the principles of the best interest of the ‘child’ and ‘society’. This paper undertakes a different route, providing a feminist critique of the transfer system with reference to the best interests of women, particularly survivors of sexual assault. It argues that the problem is not that children are increasingly committing sexual assault but that sexual violence overall remains prevalent. The transfer system, in this context, is part of a project of ‘governance feminism’ which seeks to divert attention from institutional failures at preventing sexual violence to external ‘sexual predators’. It operates on assumptions of hegemonic masculinity by treating child offenders as inherently ‘deviant’. Consequently, current rehabilitation measures are framed in accordance with masculine norms and do not specifically address sexual offending behaviour. Further, they provide no agency to the victim. This paper proposes a ‘restorative justice’ approach as an alternate solution. This not only gives victims the opportunity to seek closure and decide methods of restitution but also involves the use of multi-systemic methods to ensure specific redressal of juvenile sex offending.

Safe abortion ought to be considered a non-criminal healthcare procedure, accessible to everyone and decided upon between a patient and their physician. The current legal framework jeopardises the complete wellbeing of women and girls, leaving them confused, scared and unable to attain medically safe and affordable health services. In this paper, I argue that there is an urgent need for decriminalising abortions in order to allow women to have full power over the decisions regarding their health. Criminalisation has a chilling effect on the provision of sexual and reproductive health services. Further, I argue  that abortion ought to be removed from the criminal domain and be considered an issue of equal access to healthcare within a gender justice framework.. Not only do barriers to abortion access lead to unsafe abortions and high maternal mortality rates, they also place an extraordinary burden of childrearing on women. The right to bodily autonomy and integrity is a fundamental right, and includes the right to reproductive and decisional  autonomy. Additionally, if women are forced to carry unwanted pregnancies to term, their right to equality and non-discrimination is also violated due their inability to exercise other basic rights. Decriminalisation of abortion would mean that women, girls and gender diverse people are unable to exercise all their rights freely and would specifically ensure that their right to health is fulfilled as well.

The deplorable state of the criminal justice administration system in India has been highlighted time and again with several possible measures being suggested to remedy the same. However, even within these discussions, the possibility of the introduction of community sentence as a restorative justice reform has not been given much consideration. At the same time, various jurisdictions have successfully tested community service as a form of alternative sentencing. Notably, community service not only reduces the burden on the system of incarceration, but also disburdens the state exchequer. While there is ample literature debating other alternatives to custodial sentencing, community sentencing in India remains a relatively unexplored domain. In recognition of this situation, this paper examines the attempts made in India to introduce community sentencing. This is juxtaposed against the experiences with the system of community sentencing in different legal jurisdictions. On this basis, a suggested model for the introduction of community service in India has been outlined in this paper.

In nearly a decade of its existence, the National Green Tribunal (‘NGT’ or ‘Tribunal’) has positively changed environmental adjudication in India. The push for its creation came from the judiciary rather than the legislature, as the former is not adequately equipped to tackle complex environmental issues involving a high degree of scientific uncertainty. While the NGT – having technical expertise – may be better equipped to handle complex environmental matters, it lacks an effective framework for determining compensation. This is primarily due to three reasons, as will be discussed in this paper. First, despite the wide discretion provided by the NGT Act 2010 with respect to determining compensation, the NGT’s unreasoned trend of pegging initial compensation at five percent of the project cost or at INR five crore does not bear semblance with ground realities and intricacies of a case. Second, the NGT, in many cases, fails to establish an environmental baseline condition prior to the alleged damage and accordingly is unable to quantify environmental damage. Third, the NGT frequently fails to hold the governmental authorities accountable. In this paper, we endeavour to demonstrate this lack of framework through the relevant case laws. In particular, we will analyse Manoj Mishra v. Delhi Development Authority (‘the Art of Living Case’) – arguably one of the most controversial cases decided by the NGT – and will demonstrate how it exemplifies this.