Articles

Despite more than half of India’s convict population serving the sentence of life imprisonment, there exists little critical writing or scholarly debate about this punishment. Following the decision by a constitution bench of the Supreme Court in 2015 in Union of India v. V. Sriharan & Ors., and the Criminal Law Amendment Acts of 2013 and 2018, life imprisonment has acquired a new-found texture of harshness which leaves little room for shortening of sentences otherwise provided for in law. This article begins problematising life imprisonment since it is expected that its use will be more rather than less frequent in view of these legal developments. Apart from discussing recent developments in life imprisonment, this article examines life imprisonment in a historical context, surveys the development of prisons in India and maps the mutation of the punishment of transportation into life imprisonment. The article claims that while life imprisonment existed alongside transportation, Indian prisons were not designed to house large numbers of life convicts. The transition from transportation to life imprisonment was unsupported by a robust legislative framework which necessitated a complex but unsatisfactory patchwork of judicial pronouncements and executive orders to overcome legislative lacunae. Such arrangements have made the punishment highly susceptible to arbitrariness. It is apprehended that increased reliance on life imprisonment may only serve to exacerbate existing problems of the criminal justice system, rather than finding sustainable solutions.

The modern form of cryptography has pervaded nearly all levels of everyday technological use. It is used to secure online commercial transactions, ATM transactions, all modern technological devices like mobile phones and laptops, and instant messaging applications like WhatsApp. Though encryption provides a zone of privacy to users, it also presents the challenge of “going dark” before law enforcement agencies. Recently, there has been a growing debate in countries like the United States and India, to regulate the use of encryption so that the law enforcement agencies can have access to the encrypted data. However, the governments have not been able to figure out the modalities to do so. Since encryption is the most potent tool at the disposal of an individual to protect his or her privacy, any government policy which seeks to regulate its use must also take into consideration its potential impact on the privacy of citizens. This paper argues that a greater focus must be laid on adopting stronger encryption standards rather than weakening them. Empirical facts also prove that the binary of ‘privacy versus security’ is fallacious because the gains accrued from using strong cryptography easily outweigh the losses.

The present has begun to be revolutionised with the advent of 3D printing – technologically as well as socially. We are steadily gravitating away from the two-dimensional world of printing to a world of marvel, where 3D printed drugs, food products, hardware and even biological organs are no longer things of mere imagination. However, great innovation is accompanied by equally great regulatory challenges and debate. Printing with biological and non-biological materials results in a spectrum of policy challenges when compared to traditional ink-jet printing. For instance, the ambit of the existing legal framework governing organs and tissues in India is restricted to transplantation from another human being. Further, the legal framework on medical devices and drugs do not contemplate the possibility of additively manufactured devices and drugs.  Additionally, 3D printing also throws the conventional province of patent law into disarray since it does not provide any clarity on whether the infringement will be assessed based on the CAD file or the 3D printed product.  Likewise, the ease with which these products are manufactured turns the chain of product manufacturing into a complex web consisting of several potential defaulters. This paper strives to highlight some of these regulatory concerns and offers a framework wherein challenges will be translated into solutions, thus, balancing regulation with innovation.

The NUJS Law Review was uniquely founded as a wholly student-run journal, with the objective of familiarising students with the opportunities and responsibilities associated with the production of cutting-edge legal scholarship. The ethos of academic excellence instituted by Professor M. P. Singh has continually guided the editorial boards’ ventures into new avenues of creation and dissemination of knowledge. The Review has sought to stride forth in expanding the frontiers of how the law is envisaged to operate, and what its immense potential could be, in a rapidly evolving society grappling with complex interdisciplinary questions of power, politics, technology, and the law…

This paper argues that the Supreme Court of India has been sceptical about reservation in promotion since the State began making promotion policies in employment. The reasoning provided by the Court during the period from 1960s leading to the Indra Sawhney decision will reflect that the opinions of judges were premised on ‘what would be’ the effect of reservation in promotion or ‘what ought to be’ the contours of reservation as opposed to what is provided for in the Constitution. Subsequently, with introduction of more explicit amendments in the Constitution regarding promotion, the Supreme Court has only expanded its scope of judicial review. Invoking a rigorous form of judicial review akin to the strict scrutiny principle, the Supreme Court has since, struck down reservation policies for promotion on the ground of non-fulfilment of ‘objective’ prerequisites including proof of backwardness, under-representation of communities in services and administrative efficiencies. These prerequisites were actually and only meant to be for the subjective satisfaction of the State. However, the aggravated level of judicial review on this issue has resulted in the turning of Article 16(4-A) into a hollow promise which merely exists in the text of the Constitution of India.

Therapeutic Jurisprudence studies the manner in which law may be used as a tool for healing. By integrating law and psychological health, this field of legal scholarship seeks to evaluate the ameliorative effect of the legal process on the well-being of the participants. The object of its study is to determine how legal rules and procedures can and ought to be re-shaped to enhance their therapeutic potential, without having to compromise the due process of law. In the aforementioned context, this paper examines how the core principles underlying therapeutic jurisprudence were ignored by the District Court of New Jersey while dealing with the high-profile case of Anna Stubblefield, who was charged with criminal sexual assault for having an allegedly non-consensual sexual relationship with a man who had cerebral palsy. The paper will analyse the instances in the trial where his alleged ‘lack of intelligence’ was tried to be established at the cost of dehumanising the victim. Continuing in the same vein, this paper also attempts to look at how language used in our day-to-day lives is inherently loaded with ableist and sanist assumptions so as to maintain power structures – a hierarchy designed specifically to subject certain bodies reflective of any differentness to be considered undesirable, and tries to develop an interdisciplinary understanding to address the issue. We further suggest adopting a ‘situational approach’ in such cases to ensure that the intellectually disabled participants are treated with dignity. Further, the paper argues that the victim’s sexual autonomy was not considered in the wake of his disability, and considers the manner in which the ableist and patronising approach adopted by such policies disregards the agency of differently abled individuals.

The advisory committees and the capital market regulator in India have every so often tried to arrive at a definition of control that will allow them to fittingly mandate the release of takeover bids on acquisition of control over a company. Bearing in mind that merely a quantitative test to determine control may be easy to circumvent, the regulator has adopted the use of a qualitative test, along with the quantitative test, to determine the acquirers who may said to be in control of the company. However, this approach towards the interpretation of control has raised many issues, with the adjudicators failing to conclusively determine what constitutes control. This has subsequently led to the regulator necessitating or exempting the investors from coming out with an open offer in an incoherent way, injuring the interests of the investors or the minority shareholders, respectively. In light of this unsettled approach with respect to control and mandatory takeover bids under the takeover regulations, I decipher the actual purpose behind mandatory takeover bids to suggest what shall in fact result in a change of control that the minority shareholders had not assented to originally. Keeping in mind this change of control that mandates a takeover bid, I shall then attempt to show what actually constitutes control over a company, and why, partial equity ownerships below the numerical threshold may at times constitute control even if any additional right may only be reactive. Concurrently, I critique the approach taken by the advisory committees in suggesting the numerical threshold for triggering an open offer. I conclude by suggesting a germane approach with respect to the interpretation of control and the release of takeover bids, hypothesising an increased numerical threshold.

Universal Basic Income (‘UBI’) is a regular cash payment made to all individuals by the State without any means or work testing. It has historically been debated upon and more than a few justifications for UBI have been made. UBI has entered policy debate in India ever since UBI was proposed by the Economic Survey 2016-17 as a social welfare scheme suitable for India. In this paper, a normative justification for UBI is sought to be arrived at. A right to basic income, by promoting ‘real freedom’ of individuals is said to be a part of the conception of substantive dignity of all individuals. It is important for the actualisation of other rights and freedoms of an individual. Associated benefits of UBI include realizing the right to adequate standard of living, respecting autonomy rights of individuals and as a policy intervention in combating poverty and inequality. The lessons from UBI experiments conducted in different places also sufficiently highlight the advantages of UBI. The challenges in implementing UBI in India are discussed in the course of this paper alongside a critical analysis of a model that seeks to overcome these challenges.

The Law Review from its inception has worked to push the boundaries of academic literature, garnering literature from students, academicians and professionals. When Professor MP Singh, founded the journal back in 2008, he had a vision of an academic journal which provided a platform to academicians, professionals and students alike to express their views in a manner which would be conducive to educating readers about various dimensions of the law as it stands and the law as it should be. Professor Singh wished to create a journal which would be at par with foreign law school reviews in terms of quality. Throughout the years, the editorial boards have attempted to maintain the threshold of quality set by Professor Singh while ensuring the frequency of issues is consistent. The NUJS Law Review has sought to sustain and support legal excellence through its continued standards of publication…

In Shayara Bano v. Union of India, the Indian Supreme Court pronounced a split, though bold and progressive verdict setting aside the practice of instant triple talaq or talaq-e-biddat. Against the backdrop of this judgment, this paper traces the jurisprudence evolved by Indian courts vis-à-vis personal laws and the right to religious freedom. Two central arguments are presented in the course of this paper. First, the courts have not adopted a consistent approach when dealing with issues connected to personal laws. Second, the courts by means of the doctrine of essential religious practices have, besides interfering in the domain of personal laws, attempted to fashion the religion specific personal laws as per the understanding of the respective judges. In relation to this, the paper briefly considers the efficacy of the top-down approach of personal law reform which has been practised in India in the post-independence period. While showing that the top-down approach of personal law reform has not fared well in the Indian context, the paper suggests a different and more inclusive approach which can be adopted in the endeavour to reform personal laws.