Articles

Distinct from the heavily litigated General Exceptions enshrined in Article XX of the General Agreement on Tariffs and Trade, 1947, the Security Exception under Article XXI presents a unique challenge to the WTO Dispute Settlement Mechanism. As this provision governs a sensitive aspect of State sovereignty, namely, the preservation of national security, there is little consensus on the form or extent of scrutiny that the WTO can place on a member invoking Article XXI. At the outset, arguments can be made to exclude any determination of the invocation of Article XXI from the WTO Panel review altogether. Even if the Panel’s jurisdiction is accepted, Member States would have impenetrable discretion to invoke the exception, if the ambiguously drafted provision is stretched to its widest ambit. This leads to the opening up of dangerous avenues of misuse of the provision, threatening the integrity of the multilateral trading system. In this paper, I will seek to argue that the risk of misuse of this provision is overstated, because of, rather than in spite of, its ambiguity and political complexity, and will establish that the modern WTO regime provides strong systemic safeguards, both direct and indirect, against its misuse.

India has a long history of sheltering refugees. The number of forced migrants who have received protection in India is one of the highest in the world. For a variety of ideological and practical reasons, India has refused to sign the 1951 Refugee Convention and shows little interest in joining the evolving international refugee order. Without a formal asylum regime, the Foreigners Act, 1946, a stringent deportation-oriented law, governs refugees unless they are given special leave to stay in India. In a few unconvincing cases, some courts have given asylum seekers a small measure of due process. Any suggestion that the courts have recognised the principle of non-refoulement is false.

In late 2015, Shashi Tharoor MP introduced the Asylum Bill, 2015 in the Lok Sabha with the aim of putting India “at the forefront of asylum management in the world.” While the bill is welcome in principle, it has several shortcomings. Future asylum law should be based on four principles which Tharoor’s bill should be measured against. The principles are: (i) asylum is multifaceted requiring different categories of protection; (ii) mixed migratory flows demand flexible processing mechanisms; (iii) mass in influxes call for greater attention than individualised procedures; and, (iv) the goals of legislation are asylum management and refugee governance.

Asylum is conceptually diverse and predates refugee status but the two are often conflated. India has a sovereign right to grant asylum to a person who does not qualify for refugee status. Protection should be given to persecuted individuals, groups forced to flee, as well as those escaping environmental phenomena. ‘Disguised extraditions’ should be stopped. Mixed migration has only recently captured attention because of events in Europe even though it is an old reality in South Asia. The law should differentiate between various categories of refugees and migrants, assign each a relevant form of protection – if applicable, anticipate secondary movements, and protect the most vulnerable.

The failure to protect mass in fluxes has damaged the credibility of the international refugee regime. India’s experience calls for promoting the principle of non-refoulement, using differentiated protection procedures, intelligently managing refugee populations, and addressing secondary movements. Refugee situations should be proactively governed. Processing centres should be efficiently located. Evidence-based impacts on home com- munities should determine how refugee communities are hosted. Refugee camps must be demilitarised. The right against statelessness must be actualised. Durable solutions should be strategically pursued. Participatory citizenship models should be developed.

Competition law and corporate governance seem to analyse the external and internal operations of a firm respectively. This paper seeks to explore the scope for meaningful interaction between the two with respect to cartels. We believe that understanding the issue of cartel from the context of shareholder interest as an agency problem can help shape antitrust policy regarding the same. First, we propose a ‘carrot and stick’ approach to overhaul the antitrust policy. This involves imposing threat of individual liability through administrative sanctions and improving the predictability of the current antitrust leniency policy. Second, we argue for a shift in approach of CCI in viewing cartels as an agency problem linked to the corporate culture of the rm. Thus, we argue that CCI needs to draw on international experience and incentivise firms to adopt an antitrust compliance policy by promising reduced penalties for companies that implement effective antitrust compliance policy. CCI may also encourage companies to complement the antitrust compliance policy with an internal leniency policy protecting confessors from adverse work related consequences and proving antitrust leniency. Therefore, we believe that an understanding of cartels from corporate governance angle can steer antitrust policy on the track to effective deterrence.

A National Water Framework Law imbued with a thorough understanding of the Public Trust Doctrine has the potential to transform the existing state-centred water regime into a democratised space for people’s participation. However, the existence of two contradictory drafts of the law, both claiming to incorporate the public trust perspective and yet with divergent implications for social equity and ecological sustainability has led to a need for further discussions in the public domain. This article argues that the details of legislation will determine the future trajectory of democratisation of water governance in the country rather than a mere invocation of the Public Trust Doctrine.

In May 2015, the Law Commission of India drafted its 257th report titled ‘Reforms in Guardianship and Custody Laws in India’, in which it suggested several modifications to the custody framework in India. Within this report, the Law Commission also suggested the possible incorporation of shared parenting as a post-divorce custody model within India. This paper attempts to analyse the principle need as well as the practical ramifications of implementing such a model. In doing so, this paper contextualises the demands for shared parenting made by men’s rights groups and provides a feminist jurisprudential critique to the underlying basis of these demands. Finally, this paper recommends modifications to the report, suggesting mandatory child support orders and a rebuttable presumption model against shared parenting in cases of domestic violence. In doing so, the paper attempts to provide tangible suggestions in order to ensure that such a model meets the goals of justice and care in laws related to parenting in India.

The purpose of preserving Traditional Knowledge of indigenous communities is to allow its usage, but not monopolising it through patents. In light of this purpose, Traditional Knowledge Digital Library (TKDL) was recently developed by India with the view of protecting knowledge of indigenous communities of India and preventing others from unlawfully enriching from its usage. TKDL digitally codifies all possible known indigenous community knowledge of India that cannot be patented. To prevent instances of biopiracy, TKDL enters into agreements with various Patent Offices, so as to intervene in patent applications involving Indian TK. Unfortunately, in the current scenario the functioning of TKDL is devoid of commercial benefits. It is neither designed to commercially benefit the indigenous communities, nor to allow proper use of the knowledge through monetary payment. In this paper, TKDL will be analysed based on its functioning in light of commercial aspects. Then it shall critique the flaws that emanate from features like ‘Free Access Agreements’, not financially benefiting indigenous communities, and treating TKDL as a part of the freely available the ‘Public Domain’. And finally this paper shall also put forth viable solutions in the form of access and benefit sharing agreement, paying public domain and an approach similar to Patent left, which can commercially protect TK under TKDL.

In September 2016, a single judge of the Delhi High Court dismissed a copyright infringement suit brought by a group of international publishers, against the University of Delhi, and a photocopying shop licensed to the university. In doing so, it liberally interpreted ‘ fair dealing for academic purposes’ as an exception to copyright infringement in India. The Court ruled that photocopies which are made a part of students’ reading material, even without the permission of the copyright holder, are non-infringing. In itself, this would have been a path-breaking conclusion. However, the Court went further and noted that it does not matter how much a copyrighted work is photocopied, distributed or sold, who orders or does the photocopying or, indeed, who profits from it and how much – so long as it is “in the course of instruction”, it is legal.

Now, as an appeals court of the Delhi High Court navigates through the dispute, I attempt what is perhaps the most detailed legal inspection yet of this remarkable judgment. I find that, while possibly sustainable on merits, the ruling is riddled with fundamental errors and confusions. Notably, it muddles the exceptions under Indian law which protect photocopying of copyrighted literary works for academic purposes. It potentially extends the academic fair dealing exception, to persons who are not remotely academic, nor have the slightest interest in fair dealing. It is a judgment that mischaracterizes key factors underpinning the economics of academic publishing in India. I argue that it urgently needs to be re-written – India’s students, universities, and certainly, its publishers, deserve much better.

The jurisdiction of the Board for Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act, 1985 rests on the twin pillars of ‘industrial character’ and ‘sickness’ of a company making the reference. While much of the judicial deliberation till date has been focussed on aspects concerning the sickness of a company, Indian courts are now being increasingly asked to determine the effect of a sick company’s subsequent loss of industrial character. Through this paper, I critically examine whether the loss of industrial character of a sick company subsequent to the registration of its reference before the Board for Industrial and Financial Reconstruction ousts it from the purview of the Sick Industrial Companies (Special Provisions) Act, 1985 so as to deprive the Board for Industrial and Financial Reconstruction of its jurisdiction over the said company.

The response of the Indian State to address an increasing variety of problems appears to be ‘the more the better’. New categories of crimes are being created, conduct which earlier fell under civil or administrative law is being criminalised through state and judicial complicity, and new institutions are being formed where existing ones are ailing. The vehicle of criminal law is being used to enforce majoritarian morals, regulate dietary preferences and adjudicate private disputes. The insidious trend not only overlooks the unsuit- ability of criminal law to address many of these matters, but also contributes to the decay of our already overburdened criminal justice system…

Presence of trade and professional associations contributes significantly towards the development of market players in any industry. Since such associations have the power to influence the decisions of its member entities, many of their seemingly benign activities can be effectively unscrupulous under anti-trust law. However, Competition Commission of India’s flawed, narrow and non-uniform interpretation of the Act has enabled the associations to take advantage of the lacunae in law. In this article, we examine the anti-competitive nature of the practices carried on by trade and professional associations. Thereafter, while scrutinising the extent to which such practices are regulated, we critique the position taken by the Competition Commission of India. Further, we argue for wide interpretation of the term ‘enterprises’ which should be adopted by the authorities to hold associations as enterprises under the Competition Act, 2002.