Articles

Property is a contingent fact within our world. It is neither ordained by nature nor is necessary for human survival. So the development of virtual worlds gives us an excellent opportunity to experiment with the legal relationships, transactions, and obligations that, in the real world, fall within the category of property. Virtual worlds are places where millions of people come to play, trade, create, and socialize. In this Article, the author examines the most debated legal question raised by virtual world societies. The author makes a modest attempt to explain whether virtual objects might be understood as constituting legal property by taking the Hegelian theory of Intellectual Property as the base of her argument, as according to Hegel, intellectual property need not be justified by analogy to physical property. In fact, the analogy to physical property may distort the very status Hegel ascribes to personality and mental traits in relation to the will. Property is a contingent fact within our world. It is neither ordained by nature nor is necessary for human survival. So the development of virtual worlds gives us an excellent opportunity to experiment with the legal relationships, transactions, and obligations that, in the real world, fall within the category of property. Virtual worlds are places where millions of people come to play, trade, create, and socialize. In this Article, the author examines the most debated legal question raised by virtual world societies. The author makes a modest attempt to explain whether virtual objects might be understood as constituting legal property by taking the Hegelian theory of Intellectual Property as the base of her argument, as according to Hegel, intellectual property need not be justified by analogy to physical property. In fact, the analogy to physical property may distort the very status Hegel ascribes to personality and mental traits in relation to the will.

Human rights are the basic rights and freedoms to which all humans
are entitled. The concept of human rights has existed under several names in
European thought for many centuries, though perhaps coming into prominence
since the time of King John of England. After the king violated a number of
ancient laws and customs by which England had been governed, there was a
popular upheaval and his subjects forced him to sign the Magna Carta, or Great
Charter, which enumerates a number of rights of the people, which later came to be
termed as human rights…

The principle that a person should be presumed innocent until proven guilty is a fundamental principle of procedural fairness in criminal law. Its justifications lie in the socio-legal consequences of convicting an individual for the commission of a crime. This principle acts as a protection against erroneous convictions and ensures that an accused is not oppressed by the immense power and resources of the State. The opposite rule – a presumption of guilt – imposes an unfair burden on the accused that requires him to prove his innocence, failing which he is convicted. Such a burden is envisaged by reverse onus clauses or reverse burdens, which supplant the hallowed presumption of innocence with the grossly unjust presumption of guilt. This paper argues that reverse onus clauses are both unconstitutional and a glaring contravention of a sacred principle of criminal law.

Recent events suggest that the near-automatic consequence of being a dominant firm in a profitable market is abuse of that position by resorting to the imposition of unfair terms and conditions in standard contracts. Ostensibly, this may seem to be a consumer law problem due to the ‘unfairness’ of the conditions involved but such practices also have an impact on competition in the market, which justifies antitrust scrutiny too. The forum to which the matter is taken influences the relief. This paper analyses the interface between competition law and consumer law in the theoretical framework and through the non-uniform understanding of ‘consumer welfare’ that informs both. This framework outlines the nature of such cases and reinforces the idea that a consumer law problem can be problematic for competition in the market too. Through the case study of Belaire Owners Association v. DLF, this paper seeks to identify the most appropriate regulatory tool between the two laws that would sufficiently regulate such market failures. It concludes that though both competition law scrutiny and consumer law intervention are justified, the question is with respect to their sufficiency. In this context, an analysis of the source of such market failure helps in identifying the correct remedy, which this paper argues, is consumer law.

Gambling and wagers have always enthralled people ever since the beginning of civilisation. Instances of gambling can be found in the Mahabharata, Quran and other religious texts. The law and the judiciary, in modern times, have looked at card games as a pernicious and immoral activity. In the last two centuries, sophisticated card games involving a great degree of skill and intellect have become highly popular among the masses. The laws regulating and prohibiting gambling, however, remain ambiguous and archaic. This paper analyses the laws prohibiting gambling in India and discusses the legality of card games involving a substantial degree of skill in the light of international discourse and analysis about the game of poker.

The fate of the Naz Foundation decision, until the Supreme Court decides on the appeal before it, rests upon the territorial applicability of the Delhi High Court judgment. This paper argues that at present the question of territorial application of a High Court judgment is unsettled as the existing precedent of the Kusum Ingots case is not decisive on the point. The paper evaluates the merits and demerits of various solutions, such as reintroduction of hitherto repealed Articles 131A and226A of the Constitution, or intervention by the legislature or the judiciary. The key problems with adopting solutions suggested hitherto would be the possibility of failure on part of the Supreme Court or the legislature to notice a situation where a disparity in the law exists in different states, increased delay in deciding an issue in case of an extra reference being made to the Supreme Court or the legislature for intervention, loss of a stage of appeal or possibly stripping the High Courts of jurisdiction to enforce Fundamental Rights when constitutionality of a Central legislation is in issue. The paper then suggests an interesting solution whereby High Courts, after granting interim relief where necessary, shall submit constitutional questions to Regional Benches of the Supreme Court for decision on the limited issue of constitutionality, and that the problem of delay caused by shuttling between the high court and the Supreme Court would be offset by the benefit of uniformity in the law.

The Constituent Assembly debates inform us that the duty of the Union towards the States under Art. 355 of the Constitution was incorporated in order to justify the drastic shift in the balance of Union-State relations caused by emergency action under Art. 356. An analysis of various legal authorities’ interpretation and employment of Art. 355, however, reveals a gradual but stark evolution in its character, one which significantly widens the scope of Union action contemplated by it. This paper ventures an explanation for this departure but does not criticize it, as the current position may still be used beneficially. With a substantially wide range of Union interference in the States’ domains amenable to be validated or invalidated on the touchstone of Article 355, however, the concern arises that such interference- and the calls for it– may often be tainted with mala fides or political unscrupulousness. To allay this fear, it is necessary that the constitutional ideal of co-operative federalism be taken note of with fresh vigour. The plea is not utopian as was recently illustrated by the Union’s responses to the Karnataka Governor’s recommendations for emergency action under Art. 356.

A flourishing group of SEZs, otherwise known as Special Economic Zone, seems to be a golden goal for every developing nation that aspires to be one of the giants in international trade. Both India and China had realized the same, possibly three decades back. What differs is the way these two countries have approached this issue. The reason why China is reaping the success now is because of appropriate policy measures that she adopted from time to time. But all is not well with the Chinese model either. India, on the other hand, had been a bit late in implementing the SEZ model. Initially it started emulating China but things just didn’t work the way they were expected to. Till dates he has not been successful in providing a flexible economic environment similar to that of the SEZs in China. An overview of the land laws, labour laws, and government policies clearly indicates why this is so. It is time to revisit our past and learn from our mistakes. There are a number of provisions of law that needs to be amended, reformulated and debated upon so that we can have a definite vision of our SEZs in future and meet our aspirations efficiently

Highlighting the European tradition of providing special protection against amendments of basic principles of the Constitution, I will dwell upon the application and interpretation of that tradition in the German Constitution with a view to help in the understanding of the basic structure doctrine of the Indian Constitution.

The article provides a response to the writ petition pending before the Supreme Court in Kamlesh Vaswani v. Union of India, which seeks to ban pornography in its entirety. A problematic part of the petition is its prayer to criminalise private consumption of pornography as well as the prayer seeking that intermediaries ban pornography. Systematically critiquing the arguments presented in the petition, the author points out that most claims made in the petition are speculative and uncorroborated. More importantly, any paternalistic State intervention, based on the petition, would lead to the curtailment of constitutionally guaranteed liberties and freedoms of citizens. Presenting socio-legal arguments based on the larger contours of liberal constitutional theory, the author argues that the privacy and free speech provisions in the Constitution of India are broad enough to protect private viewership of pornography.