Articles

Competitive Market theory suggests that all relevant cost of an ‘activity’ must be internalized. Further, according to Ronald Coase, in a system where ‘transaction costs’ are negligible and property rights are well defined, resources would be utilized in an economically efficient manner irrespective of the legal regime. Borrowing from these theories, this paper seeks to explore the possibility of reduction of emission in India under a regime which permits emission trading. In this paper it shall be specifically argued that emission trading, a mechanism based on free market principles, can prove to be a useful tool in ensuring compliance to pollution laws and reduction of emissions. Secondly, it shall be emphasized that such a trading mechanism can also be used to ensure equitable distribution of wealth and allocation of resources.

Corruption is one of the worst evils to have plagued the country and the world today. In order to tackle this problem, a number of international conventions dealing with matters of anti-corruption have emerged. The one which receives special attention in this paper is the Organization for Economic Cooperation and Development Anti Bribery Convention. This Convention aims at ending corruption by multinationals towards foreign public officials. Even though India is not a signatory to this Convention, the terms of the Convention will apply to it if investments are made by signatory countries within the territory of India. Further, if India becomes a signatory, the Indian multinationals will also be subjected to it, and will have to ensure that they do not engage in corrupt activities when doing business abroad. This paper examines the various terms of the Convention by focusing on certain important Articles of the Convention. In this respect, the paper also brings out deficiencies in the current Indian laws which impede compliance with these terms. The paper also discusses the probable impacts on India’s foreign relations if it chooses to sign this Convention. It concludes with the argument that India should sign this Convention after the passage of a few years.

Sex is a controversial subject in the social fabric of India, often being linked to immoral and prurient values. The current laws criminalise selling, distributing and publicly displaying obscene or pornographic material. The primary concern underlying this is safeguarding of public morality and decency. But such laws lead to the violation of individual liberty and moral independence of a person who wishes to enjoy pornography as his right to view, read or enjoy pornography (that could be read into his freedom of speech and expression, and/or the right to privacy under the Indian constitution) is curtailed. This article tries to ascertain if there are certain identifiable standards of obscenity which could be applied to an analysis of a right to pornography. Substantively, however, this article undertakes an exercise in achieving a balance between arguments of public morality and individual liberty and to also address the larger question of whether legalisation of pornography is a viable option in the present Indian society

Justice Altamas Kabir, Vice Chancellor Professor Ishwara Bhat, Justice Chittatosh Mukerjee, the learned members of the General Council, distinguished guests, colleagues and above all dear students, I am honoured by your gracious invitation to be with you on this occasion for many reasons. This event is a happy one for me as well because it is presided over by His Lordship Justice Altamas Kabir whose contribution to the ways of constitutional justicing remains an enduring national asset indeed. To once again be in the presence of Justice Chittatosh Mookerjee enhances my joy, if only because without his sterling contribution to the life of NUJS, its many splendoured achievements would have had a more difficult passage…

Put and call options are ubiquitous in modern investment agreements, such as those involving joint ventures as well as private equity and venture capital investments. The enforceability of put and call options in Indian companies has been the subject matter of debate due to the existence of stringent securities legislation that has been supported by strict judicial interpretation. Moreover, pronouncements by India’s securities regulator, the Securities and Exchange Board of India, have expressly disallowed options in securities of Indian companies (except private companies).
This paper embarks on the modest task of mapping out the legal landscape that presently shapes the enforceability of put and call options in Indian companies. It seeks to review applicable legislation and analyze key judicial pronouncements that hold sway over the field. It finds that the current legal regime governing put and call options in investment agreements is fragmented and hazy and unnecessarily restricts the ability of investors in Indian companies to enter into such arrangements to protect their own interests. It calls for a reconsideration of the legal regime so that physically settled options that are customary in investment agreements may be treated as valid and legally enforceable.

As on date, the only meaningful, if arguably broad, affirmation of a right to privacy has been in the context of the Supreme Court’s treatment of Art. 21 of the Constitution, which embodies the guarantee of a right to life and personal liberty. No substantial legislative measures granting and detailing a broad and general right of privacy presently exist in the Indian context, although some measures are scattered across context-specific legislation. Recent events have brought to light the need to operationalise these judicial observations through a legislative statement of the right fleshing out the field within which the sanctity of the private domain will be recognised and upheld. This paper seeks to explore the contours of the notion of a general right to privacy. It confronts the critiques of such a right and discusses the predominant working models in other major jurisdictions. In the result, it asserts the need for an umbrella legislation addressing the varied areas in which the right of the individual to privacy, against governmental incursion into private spaces as well as against other forms of intrusion by the media and other citizens, must accrue.

The regulation of vertical agreements by competition law is anything but straightforward. Economic theories suggest that if inter brand competition exists, then restrictions on intra brand competition should not be capable of restricting competition and the efficiency enhancing effects of vertical agreements would outweigh any possible risks. Yet experience reveals that vertical agreements can have anticompetitive effects which outweigh their pro-competitive effects, and hence they have to be brought within the purview of antitrust law. Countries are still searching for the perfect way to regulate vertical agreements. This paper undertakes a brief study of the US and EC legal regimes for vertical agreements and analyses the problems faced in these jurisdictions while regulating vertical restraints. The paper then applies this analysis to critique the treatment given to vertical agreements under the Competition Act, 2002 (‘the Act’). The Act, which has very recently come into force, has several ambiguities with respect to vertical restraints. The Indian law is similar to the US law inasmuch as there is a clear scope for application of the rule of reason to vertical agreements. As US experience shows, however, there cannot be a uniform application of the rule of reason, since different vertical agreements would call for different standards. The Act is also similar to EC law in the sense that it lays down several criteria which can be taken into account for testing ‘adverse effects’ on competition. Unlike the EC, however, the competition authority in India is free to take into account all or any of the mentioned criteria. This is a dangerously open ended provision. The paper addresses these and various other loopholes in the present law, and finally aims at suggesting how the regulation of vertical agreements by competition law could be better achieved by the Act.

Combination control is a relatively new concept in Indian competition law. Although its roots can be traced to India’s erstwhile antitrust legislation, the Monopolies and Restrictive Trade Practices Act, a sophisticated form of combination control was put into force only in 2011. A study of its working since enforcement offers interesting results. In this exercise, the drafting history of the legislation provides useful insights, especially into the objectives propelling the introduction of this system. Post enforcement, sincere efforts are in place to make the mechanism more appealing to the corporate players. However, in an overzealous bid to review more transactions, the system is often accused of regulatory overreach. Through the course of this paper, we shall attempt to understand the combination regulation mechanism operating in India, with special focus on specific provisions of the Competition Act, 2002 and Combination Regulations, 2011 in their recently amended form. We shall investigate the viability of the mechanism and demarcate its contributions from its shortcomings in the regulatory landscape of Indian competition law. Our attempt shall be guided by a principle consideration, that of identifying potential drawbacks holding up the working of the nascent combination control mechanism in India.

This paper focuses on the repercussions of the controversial 2G judgment, which resulted in cancellation of licenses held by telecom companies. Aggressive action is being undertaken by irate foreign companies in joint ventures with Indian telecom license-holder companies. Caught in an imbroglio of legal actions, most of the foreign investors have decided to resort to every possible legal measure to protect their investment in the Indian telecom sector. The paper examines whether the Supreme Court verdict leads to an expropriatory act entailing compensation under a Bilateral Investment Treaty. The starting point of such an inquiry is based on the claim made by the Russian investor, Sistema under the BIT signed between Russia and India.

In this article, I argue that Indian courts have fundamentally misunderstood the doctrine of first sale, and consequently have wrongly held that parallel importation is disallowed by Indian law. I further look at the ingenuity displayed by a court in prohibiting export of low-priced editions from India, and come to the conclusion that this is also incorrect in law. Finally, I note that there is an easy way out of this quagmire that we find ourselves in due to judicial inventions, which is of accepting the proposed amendment to the Copyright Act, 1957.