Articles

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.

The Indian judicial system has often been criticised for high rates of pendency, inefficient functioning, and adoption of an archaic approach to dispute resolution. The need to establish alternate pathways of dispute resolution has been emphasised on numerous occasions by the Law Commission of India as well as acclaimed scholars. Mediation has been identified by legal practitioners as a suitable technique for resolving a variety of disputes. However, such an alternate form of dispute resolution is yet to gain popularity in India, with the lack of legislative sanction being cited as a key reason for its underdevelopment. This paper seeks to understand mediation as an alternate dispute resolution technique and explores reasons regarding why mediation will prove to be a suitable pathway for litigants in India to resolve disputes in an amicable and inexpensive manner. Additionally, this paper discusses the different forms of mediation regulation across jurisdictions and argues that the creation of a national legislative framework would be the ideal next step in India.

The Battered Woman Syndrome (‘BWS’) was developed as a psychological tool to understand the mental state of battered women who kill their batterers. This article examines the BWS with the objective of placing it within the specific statutory framework of the Indian Penal Code (‘IPC’). It firstly describes the theoretical basis for BWS, as developed by Dr. Lenore Walker and relies on two key concepts, the cyclical theory of violence and learned helplessness. It then presents a defence of BWS against a few points of criticism that the syndrome has attracted over the years. These include, inter alia, its negative impact on the deterrence of crimes against batterers and its symptomatic approach to the behaviour of battered women. Secondly, a cross-jurisdictional analysis of BWS cases in the USA, UK and Australia reveals how it has been used to fit battered women’s behaviour into existing legal defences such as provocation and self-defence by revealing insights from their mental state at the time of commission of the offence. After a consideration of three exceptions under IPC, namely private defence, provocation and necessity, it is concluded that since the experience of battered women does not fit within the literal requirements of these exceptions, there is a need to apply BWS to all the three exceptions, to allow women to claim these defences. This requires changes to the current form of these exceptions to expand their scope of applicability. To that end, the article concludes with a proposal for an amendment to the existing exceptions, and framing a new one generally or under §300 of IPC. It envisages the formal inclusion of the Battered Woman Defence in the Indian legal system.

This article is written at a critical time when countries across the world are meaning to design effective ways to tackle the international tax challenges posed by digital economy. Although the Organisation for Economic Co-operation and Development’s final report on base erosion and profit shifting Action 1 discusses some of the key challenges, it does not provide concrete solutions or recommendations for world governments to act upon. We note that the traditional international tax rules governing source-based taxation of business profits of foreign enterprises need to be reconceptualised in view of the recent advancements in information and communication technology. This could be done by supplementing the current “physical nexus” rule stipulated in the permanent establishment article of tax treaties with a new nexus to tax based on “significant economic presence”. We recommend two Options that countries can consider while drawing this new nexus.

The paper maps four decades of coal sector litigation before the Supreme Court of India and draws a narrative on the constitutional contestation and the legal position as it stands today. Coal is one of the most important minerals from an economic perspective, accounting for over sixty percent of India’s energy requirement. The Constitution of India empowers both the Centre and states with legislative powers relating to regulation and control over mines and minerals, including coal. The coal sector has witnessed highly contested and protracted litigation with respect to law-making powers between the Centre and state governments, and this has impacted business and society in many ways. Through a mapping of judicial decisions of Supreme Court, the contested nature of governance of Indian coal sector is detailed in the paper. The Court has consistently maintained a greater responsibility of regulating mines and mineral development on the Union government. However, advocating sustainable use of coal resources, the Court emphasised that the regulatory power vested with Centre and states must have its basis on public interest and coal must be treated as a material resource of the community.

The law in India does not criminalise marital rape, i.e. the Indian Penal Code, 1860 does not recognise that it is a crime for a husband to rape his wife. The reasons for this are manifold and can be found in various reports of the Law Commission, Parliamentary debates and judicial decisions. The reasons range from protecting the sanctity of the institution of marriage to the already existing alternative remedies in law. In this paper, we depict how these arguments advanced to not criminalise marital rape are erroneous. Through an analysis of Article 14 of the Constitution of India, we argue that the marital rape exception clause found in the Indian Penal Code, 1860 is wholly unconstitutional. Further, we note the lack of existing alternative remedies for a woman to seek redress under if she is raped by her husband. We conclude on the note that criminalisation of marital rape is wholly necessary. We propose a model for the same by suggesting amendments to criminal law as well as noting the changes required in civil law, particularly the law relating to divorce.

The judgment of the Supreme Court in National Legal Services Authority v. Union of India while a landmark development in recognition of transgender rights, threw open a Pandora’s box full of questions having moral and legal dimensions. One such question pertains to the obligation of the state to fund gender affirmative healthcare services such as sex reassignment surgeries (‘SRS’). Given how prohibitively expensive they are, this paper interrogates whether the state has a duty to provide for such healthcare services and attempts to provide a normative justification for the same. In the process, it rejects the two most popular reasons advanced for state funding – the identity thesis, and the autonomy framework. Drawing from Amartya Sen and Martha Nussbaum’s capability approach, it instead argues for a shift towards an assessment based on the impact healthcare services have on the ‘quality of life’ of transgender persons.

Nearly twenty-five years ago, the internet disrupted the world and started a new era of technological supremacy. Today, with the rise of cryptocurrencies and its underlying technology, we stand at the helm of another such revolution. Cryptocurrencies like bitcoin are decentralised, digital currencies relying on a peer-to-peer network which operates without the need for a third-party intermediary like the Reserve Bank of India. Coupled with lack of regulatory guidance, its unique technical aspects create huge complications in its taxation. While much ignorance still prevails in respect of cryptocurrencies, countries around the world have finally started taking notice and acting upon it. This paper focuses on what cryptocurrencies are, why they are important, and the prevailing regulatory structure concerning them. It overviews the complete landscape for taxation of cryptocurrencies like bitcoin, analysing the indirect and direct tax structure, particularly after the implementation of Central Goods and Services Tax Act, 2017, while also addressing the issues concerning the evasionary practices. The findings help in assessing the regulatory aspects in light of the technological, economic, social and financial forces, and establishing a set framework for taxation of cryptocurrencies.

Unconstitutional constitutional amendments present an intractable conundrum in constitutional law theory and praxis, not the least because of the literal paradox in the term itself. The age-old tussle between the Parliament and the Judiciary, in delineating the scope of their powers, has had inevitable spill-over effects on determining how far a constitution can be altered and negated. We argue that a conflation of the variegated categories of constituent powers has led to the evolution of misplaced critiques of implied restrictions on the Legislature’s constitution-amending powers, which characterise doctrines such as the Basic Structure Doctrine to be ‘counter-majoritarian’ checks on democracy and effective political change. In order to understand and engage with these criticisms more fully, we embark upon a comparative constitutional inquiry into the developments of the Basic Structure Doctrine in India, Bangladesh and Pakistan. In an effort to seek clarity as to the scope and limitations of these doctrines, we engage with the oft-reiterated criticisms levelled against this doctrine, not simply by evolving a cogent epistemology on constitutional amendments, but rather with a focus on the actual evolution of the doctrine by the courts themselves. Such comprehensive engagement helps to dispel much of the objections and convoluted interpretations of the long-winded jurisprudence in this sphere, and serves to bring out the versatility of the doctrine in different jurisdictions with different socio-political contexts. We also critically examine the development of the Salient Features Doctrine in Pakistan, to determine how far it can be distinguished from the Basic Structure Doctrine, and how far it overcomes the objections to constitutional borrowing and legal transplantation from foreign jurisdictions. We seek to answer questions, both old as well as emerging, that accompany the operation of these doctrines, and to delve into the implications that these answers hold for Constitution-making and Constitution-amending powers.

The World Bank and India can change their relationship by adopting the “Reform to Transform India” approach. In this paper I will focus on the World Bank’s conditional aspect of loans and voting power in relation to India. In addition, this will help other developing economies. In this paper I will focus on these two aspects because the aspects of conditionality and voting share can be legally reformed for better and successful governance of the World Bank in relation to developing economies especially India. The Reform to Transform approach encompasses altering lending conditions imposed on countries and governance changes. In this paper I will seek to alter the conditions imposed on India through World Bank loans. Additionally, in the Reform to Transform approach I will seek to alter voting power in the World Bank structure to allow borrowing countries such as India with more leverage in negotiating loan terms. In this paper I will examine the historical function of the World Bank, how the World Bank has affected the Indian economy since independence, the legality of loan conditions and governance structures among World Bank members, and provides recommendations for how the World Bank should engage developing countries like India in the future.