Articles

Lobbying is a complex phenomenon, generally used to refer to activities related to influencing policy-making, particularly to influence a legislator’s vote to meet personal interests. Different countries have taken distinct approaches to understand and address lobbying. However, conceptually lobbying has remained difficult to address, due to the difficulty in identifying those interactions with legislators that constitute lobbying and those that are merely regarded as forms of advocacy. However, a large part of the debate stems from the negative perception of lobbying, which arises primarily due to the lack of clarity in the type of policy that is derived from such activities.

In the wake of the horrors wrought during the Bhopal gas tragedy, the issue of environmental justice was catapulted to the forefront of public discourse in India. Numerous studies and surveys conducted thereafter shed light on the unequal distribution of environmental benefits and harms between middle-to-high income communities and the low-income communities. While certain regulatory initiatives have been undertaken thereafter to mitigate these harms, the concerns of the marginalised communities are yet to be fully integrated into every environmental decision that affects them. This is specifically true in the context of industrial siting, where the concerns of the poor are given superficial consideration. In this paper, I attempt to assess the Indian legal framework on industrial siting through the lens of environmental justice, and to justify the need for incorporating principles of environmental justice within the Indian legal and regulatory framework. I seek to examine the extent to which the current framework on industrial siting decisions incorporates these principles, and to explore the ways in which environmental justice concerns have been incorporated into the domestic law of the USA, and how they are relevant for India. This analysis enables in outlining the recommendations on the measures that Indian regulatory authorities should take, so as to accord greater emphasis on environmental justice under laws relating to industrial siting. The proposed measures could be implemented by regulatory authorities by virtue of their duties under Articles 21, 19(1)(a), 14 and 15(4) of the Constitution.

Under the existing constitutional scheme in India, for a bill to be enacted into a law, it has to be approved by both Houses of the Parliament – the Lower House (Lok Sabha) and the Upper House (Rajya Sabha). However, one significant exception to this general rule is the certification of a bill as a ‘money bill’ by the Speaker of the Lower House, whereupon the bill can be enacted into a law by the Lower House alone, without any approval from the Upper House. Although the scope of a ‘money bill’ is broadly delineated in the Constitution, it is possible that a bill could be incorrectly certified as a ‘money bill’ by the Speaker and enacted into a law without the approval of the Upper House. Further, the Constitution accords finality to the decision of the Speaker as to whether the bill is a ‘money bill’, thus raising issues such as whether such finality would bar the Supreme Court from reviewing the accuracy of the Speaker’s decision in this regard; and whether the Supreme Court can strike down such a law as being unconstitutional, if the Speaker’s decision is indeed found to be incorrect. In this paper, we examine these questions which are of immense contemporary relevance in India, and attempt to posit our conclusions to the same.

The Personal Law System (‘PLS’) refers to the legal arrangement through which distinct laws are applied to individuals within a single polity, keeping in view their peculiar religious identities. It co-exists with the general territorial law, and pertains to the sphere of family laws (relating to marriage, divorce, maintenance, guardianship, adoption), as well as regulation of inter-generational transfer of property (succession, inheritance, wills) and religious establishments…

Beginning with the Constituent Assembly, the issue of gubernatorial discretion has often invited great debate, which has only intensified over time. In this paper, we attempt to identify the need to continue with the position of the Governor as the Centre-appointed Head of the state. Considering that the debates in this field remain highly polarised even today, we trace the trajectory of the Constituent Assembly Debates regarding the creation of the post of the Governor, so as to examine what this position was envisaged to entail. Further, we revisit the controversies surrounding the exercise of ‘gubernatorial discretion’, and analyse the Supreme Court’s decisions emphasising the limits to the same, as well as the recommendations of the Sarkaria and Punchhi Commissions on Centre-State relations. Our analysis culminates in a discussion regarding the ultimate utility of retaining this position in the future in light of the recent political developments. We seek to espouse a fresh perspective towards understanding the continued relevance and significance of this office, and aim to provide holistic suggestions for maintaining its apolitical mandate, as conceived by the Founding Fathers of India and as manifested in the text of our Constitution.

In contemporary times, there has been constant debate on the legitimacy and efficacy of caste-based affirmative action systems in India. The Supreme Court has laid down the ‘creamy layer’ exclusionary principle that has caused a nation-wide stir. Additionally, in March 2016, the Supreme Court issued a controversial judgment on reservation in promotions in the matter of Suresh Chand Gautam v. State of Uttar Pradesh. In the backdrop of these developments, this paper is an intervention that locates affirmative action policies within the Rawlsian theoretical framework on justice. In the course of this paper, we provide a critique of the 2016 judgment. Additionally, we demonstrate that although an exclusion of the ‘creamy layer’ from the scheme of reservations may be constitutionally valid, it is important for the law to respond to the social stigmatisation and caste-based discrimination that members of these groups face. We extend the Rawlsian frame, using the idea of reflective equilibrium, to suggest how actors behind the veil of ignorance would respond to the question of the ‘creamy layer’ and the question of reservation in promotions. We also make some legal recommendations on these issues that would further the consensus arrived at and cater, responsibly and holistically, to the linkages between caste, power and justice in present-day India.

Philosophical research is an indispensable instrument in the toolbox of a legal researcher. In spite of being abstract in the higher levels of reasoning, the philosophical approach to legal research is expected to be rooted in social realities. In this paper, I seek to demonstrate that at both lower and higher levels of jurisprudence, and in specific and general research inquiries, the possible assistance that can be derived from philosophical research is substantial. By delineating its key features, and by abstracting instances through ‘reverse engineering’, I attempt to assert the indispensability of philosophical research in law. I also undertake an interdisciplinary analysis to demonstrate its potential for facilitating the development of the legal system through employment of tools and processes such as intuitionism, dialectical method and reflective thinking. Thus, deconstructing the philosophical research in law through the lens of adjudicative and norm-building processes has practical advantages.

An amendment to the Income Tax Act, 1961 has introduced the General Anti-Avoidance Rules (‘GAAR’), which came into force from April 1, 2017. The GAAR seeks to clamp down on tax avoidance generally, including through Direct Taxation Avoidance Agreements (‘DTAA’). However, the application of the GAAR to treaties is likely to be arbitrary and to result in severe consequences. It is also likely to lead to harassment of assesses on account of a scrutiny of genuine transactions and lengthy procedural compliances. A constitutional challenge to the GAAR is likely on grounds that it overrides India’s international obligations. We analyse that under the constitutional scheme, treaty override is permissible, as Articles 253 and 246 are at the same pedestal, where a law made in pursuance of international obligations does not override other national laws. The validity of national laws is not affected by the presence of international obligations either. Breach of those obligations only gives rise to suitable remedies in international law. As a result, it is likely that such a challenge would fail, and GAAR would apply to DTAAs. Simultaneously, there has been another development that merits consideration; several of India’s new and re-negotiated DTAAs, including the India-Mauritius treaty, contain Limitation of Benefits clauses to prevent the use of these treaties as devices for tax avoidance. To prevent the harassment that would ensue from an application of GAAR to DTAAs, we argue that the GAAR should not apply to treaties having Limitation of Benefits clauses, as the latter can accomplish the same purpose without the accompanying uncertainty and harassment. This can be done by excluding these treaties from the scope of GAAR.

In December 2016, the Supreme Court passed its judgment in the controversial case, Shyam Narayan Chouksey v. Union of India. The Supreme Court ruled that all cinema halls in India have to play the National Anthem before the screening of a feature film. The Court also stated that all viewers present in the cinema hall would be obliged to stand up for the National Anthem as a sign of respect. This judgment has created a stir amongst Indians. Proponents of the judgment argue that the judgment is a positive step towards inculcating a culture of patriotic cohesion in the Indian masses. On the other hand, critics of the judgment seemingly adopt either one, or sometimes both, of the following lines of argument. First, they argue that the singling out of the cinema halls is arbitrary as an imposition of a duty to sing the national anthem in a space meant for entertainment lacks justifiable basis. Second, and more importantly, critics argue that the mandatory enforcement of patriotic values is indicative of a worrying trend towards aggressive nationalism in the Supreme Court…

This article critically analyses the challenges e-commerce poses to the traditional source- and residence-based taxation systems. It presents an exploratory study of two fundamental taxation principles that apply to international transactions in general and, more specifically, to e-commerce: the choice of residence-based or source-based taxation in governing the tax treatment of both domestic income accruing to non-residents and foreign income accruing to residents; and use of permanent establishment (PE) status in instituting the economic nexus required to assert jurisdiction over tax business profits. It is argued that in the interpretation and application of the rules, a clear distinction should be made between conceptual and practical issues. While there may be overlap between them, distinct issues exist regarding the normative questions of how and where profits arising from e-commerce should best be taxed as a matter of principle, as well as how such taxes should be implemented. The formulary apportionment of income earned by e-commerce business based on an economically justifiable formula provides a viable solution.