Articles

This paper seeks to assess whether the safe harbor provisions for Internet intermediaries as enacted in the Information Technology Act, 2000 and the amended Copyright Act, 1957, reflect a correct balance between content owners and users. The paper begins by tracing the history of the Internet in its Web 1.0 and 2.0 avatars. Further, it examines how the current Internet architecture has facilitated e-commerce transactions as well as social speech. Moreover, the paper discusses whether the standards of liability under the Information Technology Act for intermediaries reflect an internationally compatible ‘notice-and-take-down-regime’, thereby avoiding a situation which would effectively result in shooting the messenger. Moreover, it examines whether the standards of liability under the Indian Copyright Act, 1957 are consistent with those under the Information Technology Act, 2000. Lastly, it examines whether the Indian laws and judicial trends strike a fair and correct balance between right owners and users.

The Copyright (Amendment) Act 2012 resulted, in part, from concerted lobbying by composers/lyricists to foster a more equitable sharing of royalties by Bollywood producers and others in the entertainment business. The efforts resulted in the recognition of their right to equitable sharing in the royalties, primarily in the form of amendments to § 17, §18, and §19. This paper seeks to assess these provisions and their likely impact. By highlighting the existing lacunae in law, the author posits possible interpretations that would aid in the realization of the objectives of the amended provisions to a considerable extent. Towards that end, the inter-relation between these provisions is also elaborated on. The pivotal role of the new proviso in § 33(1) is also discussed. The paper also assesses whether the application of these amended provisions will be retrospective, prospective, or retroactive in nature

This paper is based on comparative constitutional law, with significant emphasis on the judicial decisions and laws formulated by the legislature in India. It discusses the path-breaking developments in the Indian legal system which strike at the root of the primitive notion that traditional ethnology and democracy are integrally antithetical to each other. The fact that the Indian Constitution provides for group as well as individual rights is highlighted as a revolutionary feature of India’s democracy which according to many legal scholars defies the orthodox notion of western constitutionalism. The paper then proceeds to evaluate the developments in constitutional law in India from three perspectives. Firstly, it appreciates the pragmatic approach adopted by the Constituent Assembly during the framing of the Constitution wherein the makers anticipated the post-modern approach of the current law makers. Secondly, the judicial activism of the Supreme Court is discussed which empowers the judges to engage in comparative law and develop new and original constitutional principles such as the ‘basic structure doctrine’ so as to expand the protective umbrella of the Indian Constitution for its citizens. Lastly, the paper discusses the practice of internalising international principles and control measures into our body of national legislations and institutions, particularly in the field of environmental law.

A collective life in society is characterized by two constituent elements – rights and trust. In analysing these two elements, it is important to examine the balance existing between them. Despite their contrasting roles in society, the dialectical relationship between rights and trust is best understood when they are viewed as complementary to one another. While a framework of rights is necessary to instil a sense of deserved entitlement in people, what is instrumental for the effective realization of rights is the recognition of such entitlement within groups of individuals; such recognition being factored in by the mutual respect forged by trust. Through the course of this paper, the author seeks to locate this dialectical relationship within societal institutions, examining how the interface between rights and trust serves as a determining factor for the failure or success of these institutions. The paper commences with viewing the importance of rights in the social scenario, highlighting the shift in the paradigm of the language of rights. It then looks at the relevance of the fiduciary component, establishing that trust, unlike rights, is not a legal mandate but rather a moral one which is implicit and not codified, and it is this moral mandate that regulates various social transactions that take place in the absence of rights. The paper culminates with analysing the interface between rights and trust within the framework of institutions such as family and academic institutions, in order to illustrate that how we understand the importance of the balance between the two, is what determines the success or failure of such institutions

I consider it a great privilege and honour to speak in memory of D.D. Basu. Justice M.N. Venkatachalaiah and Mr. K.K. Venugopal, who delivered lectures in previous years in the same forum, have elaborately referred to the life and works of D.D. Basu. Thus to avoid redundancy, I will refrain from reiterating what they have already elucidated on. I have not known D.D. Basu personally, but I have great admiration for the commentaries he has offered on various subjects in his classics, particularly on Constitutional Law. I was intrigued by his work on ‘Comparative Constitutional Law’ in which he makes thought provoking comments on important decisions of the Supreme Court such as A.D.M., Jabalpur v. S.S. Shukla (‘Habeas Corpus case’), Kesavananda Bharati v. State of Kerala ‘Kesavananda Bharati case’), and Indira Gandhi v. Raj Narain. He did not get influenced by the populist views on issues dealt with in the Habeas Corpus case. He criticizes both the majority and minority opinions in the first two cases, and the manner in which the latter was decided. He opines that the majority in the Habeas Corpus case ought to have taken note of the fact that Article 226 had not been suspended, and therefore judicial review on matters other than Article 21 could have been invoked in the ordinary course of judicial review. He feels that notwithstanding Justice Khanna’s heroic attempt to save the rights of the citizens to move for habeas corpus, his reasoning was based on aspects ultra vires the Constitution of India. Furthermore, he goes on to observe that in the presence of a written Constitution, taking note of situations outside the Constitution will not be sound in law.

The Copyright (Amendment) Act, 2012 stands to correct the legislative imbalance of rights assigned to composers and lyricists and is a path-breaking remedy for the copyright regime in India. The build-up to the amendment demonstrates the undying efforts of the otherwise passive composers and lyricists. In order to understand the context of the amendment and the manner in which these new provisions are likely to be interpreted by courts, the paper attempts to appreciate Mr. Javed Akhtar’s contribution to the movement and describes the long, contentious history between authors and music labels and the nature of their conflict. The panacea was sought in the form of a legislative amendment addressing the concerns of the composers and lyricists for the purpose of protecting their rights. These include protecting the composers and lyricist from unfair contracts through a statutory right to remuneration, protection from the assignment of copyrights in future technologies by the authors and a change in the manner in which copyright societies were administered, as they were primarily controlled by the music labels. However, the extent to which the amendments will succeed in achieving its objectives would largely depend upon the collective efforts of the authors and the judiciary alike.

With the recent passage of the Copyright (Amendment) Act 2012, India traversed yet another milestone in her intellectual property (IP) history. As with most other amendments, this too came with its fair share of controversy and contestations. Indeed, in many ways, it played out like a Bollywood script, complete with larger than life heroes, melodramatic plots, twists and shakes at every turn that required one to suspend logic, routine song and dance sequences and a happy ending (well, at least for some).

Western law has two great systems, the civil law and the common
law. The system of civil law comprises a number of national or local laws, each
of which has, at its core, a civil code based largely on Roman law. The common
law is not contained in a code but is continually distilled from the stream
of a large number of cases decided by the courts of law, at first exclusively in
England but later in other parts of the Commonwealth and the USA. This judge made
law is again divided into two parts, which bear the technical names of
‘common law’ and ‘equity’, both of which are from time to time modified by
local or national legislation.
Even centuries of Roman rule over Britain could not significantly
change or give flavour to Britain or its people. The Roman occupation left
“little permanent mark on the civilization and character of the island.”

Notional income is the flow of satisfactions from goods owned and used by the taxpayer. This paper explores the Indian and American approaches to taxation of notional income. It is argued that the Indian approach to taxation of notional income exhibits a distinct theoretical incoherence. Indian courts have refrained from allowing taxation of notional income, unless the same is expressly provided for in the Income Tax Act. This approach has resulted in divergent judicial reasoning which is not founded on the theoretical basis for inclusion of notional income. In contrast, the American law has progressed to an expansive conception of income that includes all economic gain. The focus on economic reality of transactions is clearly reflected in the economic substance doctrine of the American anti-avoidance law. This paper pre-empts that the introduction of General Anti-Avoidance Rules in India hint at a gradual shift towards the broader conception of income adopted in American law.

This paper seeks to analyse the law in respect of bail and pre-trial detention in India, testing judicial precedent on the anvil of the presumption of innocence with specific reference to two contrasting decisions of the Supreme Court, earlier in Pappu Yadav v. Central Bureau of Investigation and more recently in the 2G case in Sanjay Chandra v. Central Bureau of Investigation. It focuses only on conditions of bail set forth in the Code of Criminal Procedure and does not look at special legislation. The paper concludes by suggesting measures for legislative and judicial reform to harmonise law relating to bail across India.