Articles

This paper traces the historical origins of §65(g) of the Indian Evidence Act, 1872, which permits summaries of voluminous documents to be admitted in evidence. Even though it was the English common law which was ostensibly codified in British India, no such rule now exists in the U.K. It will be seen that the words contained in §65(g) were quietly borrowed, without attribution, by the Briton Sir James Fitzjames Stephen, Law Member of the Viceroy’s Council in British India, from a draft civil procedure code prepared in New York in 1850 by a prominent American lawyer, David Dudley Field. This paper will discuss the broader implications of the transplant of evidentiary rules from 19th century America or Britain to India (where the distinction between judge and jury is, and always has been, very narrow).

The Parliament enacted the Real Estate (Regulation and Development) Act, 2016 to regulate the real estate sector, protect innocent buyers and provide speedy redressal mechanism. This Act fills a large lacuna as real estate was hitherto unregulated. This Act seeks to provide respite to frustrated and helpless buyers who have so far been at the mercy of unscrupulous builders and years of litigation. Apart from protecting the buyers, this Act establishes a specialised body for its enforcement and also creates a dedicated forum for seeking compensation, which was earlier being awarded by consumer forums. Looking closely at the provisions of this Act and the procedure for filing of complaints, the creation of two separate forums for enforcement and compensation establishes an absurd position of law leading to multiplicity of complaints for the same cause of action, an unnecessary determination of jurisdiction and the possibility of conflicting views. Further, in the presence of specialised statutory forums for adjudication of disputes, the question of validity of arbitration clauses in real estate agreements and the arbitrability of disputes under this Act becomes a moot point. Given the lack of clarity over the arbitrability of such disputes, and in furtherance of the objectives of this Act, this paper argues in favour of ouster of the jurisdiction of arbitration tribunals for an effective enforcement and speedy redressal of disputes in the real estate sector.

With the increasing importance of human capital in the modern era, it has become quintessential for companies to shift from traditional channels of rewarding employees with cash, to channels which align the interest of the employees with long term interest of the companies. In addition to this, the need of the companies to retain their senior employees as well as attract top talents from the industry has compelled them to come out with profitable remuneration schemes. Employees’ benefit schemes have, in particular, become major tools for rewarding employees, either through cash or shares of the companies, as a part of their remuneration. Traditionally offered as only employees’ stock option or purchase schemes, the ambit of employees’ benefit schemes has widened over time to cover various other types of benefits. Against this backdrop, I seek to expatiate upon the scope of employees’ benefit schemes offered by both listed companies as well as unlisted companies in India, the manner in which these schemes are regulated and governed under the extant legal regime, and the possible drawbacks that may arise while implementing these schemes.

On December 22, 2015, the Juvenile Justice (Care and Protection of Children) Act, 2015 received parliamentary approval, bringing forth an entirely new regime with respect to juveniles above the age of sixteen, accused of committing heinous offences. The background for its introduction was set by the horrific rape of a young student in 2012. The government justified the law as a measure which would have a deterrent effect on potential juvenile offenders. However, the opponents argue that the law would defeat the objective of having a separate juvenile justice system, and would not serve the goal of deterrence. They instead suggest that efforts be expended in ensuring more effective implementation of the Juvenile Justice (Care and Protection) Act, 2000. The paper analyses the viability of the mechanism proposed by the new measure. It also evaluates the potency of the counter claim which proposes that the existing law be better implemented, and thereby examines the necessity for the introduction of a new approach governing juvenile policy in India.

Restricting women’s entry to places of religious worship has become a highly contentious issue of late. Though such practices have been persisting for decades in India, movements across the country have recently espoused these concerns, leading to several petitions being led in High Courts and in the Supreme Court. Demonstrating an encouraging trend, courts have emphatically upheld rights of women to equality and freedom of religion, thus striking down the restrictions imposed. The Bombay High Court, for instance, ruled that the inner sanctum of the Shani Shingnapur temple in Ahmednagar, Maharashtra be opened to women, as it is the fundamental right of women to enter all places of worship that allow entry to men, and the duty of the state to protect such right. The Court relied on the Maharashtra Hindu Places of Public Worship (Entry Authorisation) Act, 1956, which prohibits obstructing a section or class of the Hindu population from entering places of worship…

India is currently in the throes of developing legislation that would theoretically create simpler frameworks to resolves disputes. In creating and conceptualising these laws, there is a clear need for there to be a comprehensive assessment of all factors that would aid or debilitate the problem-solving at hand. The role of a legislature in a modern-day economy and polity is to ensure that regulatory and governance measures are passed in the country so as to benefit the citizenry, and ensure the smooth functioning of the government at all levels. In India today, legislation is often drafted and developed by think-tanks and policy research organisations who then work closely with prevailing governments and ministries to enact it into law. In many cases, the ministries themselves draft legislation and circulate them for public comments before at- tempting to pass them through Parliament. While these background organisations do much of the leg work that is involved in legislative drafting, it may be time for the country’s overall approach to legislative drafting to take place in a more systematic and structured manner. It is in this light that Regulatory Impact Assessment (‘RIA’) proves to be a useful tool in regulation and governance…

This article looks at market-initiated compulsory licences issued under patent regimes, the first of which came into force with the grant of the Nexavar licence in India. By classifying the various types of compulsory licences, this article brings out the differences between government-use and market-initiated licences. I argue that market-initiated licences have many advantages over government-use compulsory licences. Although factors like overcoming capacity barriers of local manufacturers and legislative preparedness of the nation seeking to implement the licences are important for the grant of market-initiated compulsory licences, such licences, when granted, can regulate competition, address non-emergency situations like lack of affordability of life-saving drugs by reducing drug prices, facilitate local production and encourage the practice of price discrimination, while simultaneously resolving antitrust concerns that arise out of a refusal to licence by the patent owner.

The 42nd Amendment to the Constitution is often blamed for opening the floodgates for ‘tribunalisation’ in the country. The rapid growth in tribunals following the enactment of this amendment, has been viewed as an attempt by the executive to gain control over judicial functions. This has spurred the judiciary to be cautious in preserving its independence and power of judicial review, and has led it to decide upon the constitutional status of various tribunals. As a result, a rich body of judicial precedents, dealing with the principles of separation of powers and independence of the judiciary, has emerged, which aims at counteracting the use of tribunals by the executive to enfeeble and incapacitate the judiciary. I argue that the latest functionaries that have fallen into the ‘tribunal trap’ are the Competition Commission of India and the Competition Appellate Tribunal. By vesting the Competition Commission of India and the Competition Appellate Tribunal with judicial powers akin to courts under the provisions of the Competition Act, 2002, the legislature necessarily had to also provide for the constitution and functions of the two bodies in a manner akin to courts. By failing to do so, it has infringed upon judicial independence that forms part of the basic structure of our Constitution, and therefore the Competition Act, 2002 is liable to be struck down as unconstitutional.

It is a proud privilege and great pleasure to be invited to deliver this Dr. Durga Das Basu Endowment Lecture at the West Bengal National University of Juridical Sciences (‘WBNUJS’). I deeply thank Professor (Dr.) Ishwara Bhat for inviting me so graciously. He has done an inestimable service by editing Durga Das Basu’s Limited Government and Judicial Review (Tagore Law Lectures) and also in bringing together many past memorial lectures, under the provocative book titled Constitutionalism and Constitutional Pluralism. The WBNUJS is indeed fortunate to have his able, scholarly, and continuing leadership…

With the increasing sophistication witnessed by financial markets, regulatory authorities across the globe have made conscious efforts to reorient their approach towards monitoring transactional activities; yet, they have failed to recognise the changes experienced by brokerage operations. This paper seeks to shed light on the emergence of advisory brokers in the con- temporary context which has exhibited substantial similarity to functions traditionally performed by investment advisers. While advisory relation- ships have been typically classified as fiduciary in the capital market jurisprudence, brokers have continued to evade such responsibility, despite operating in an unauthorised advisory capacity. This paper establishes a legal basis for harmonising rules of conduct governing advisers and brokers in order to respond effectively to the dynamic market practices in influencing broker-investor interactions. Demonstrating sensitivity to the issue of meaningful investor protection, this paper attempts to initiate a debate on questions of liability of advisers and brokers acting as fiduciaries in the Indian context, while culling out specific policy points surrounding the choice of a prescriptive/proscriptive model.