Articles

On March 22, 2013, the Telecom Regulatory Authority of India released the Standards of Quality of Service (Duration of Advertisements in Television Channels) (Amendment) Regulations, 2013, which mandates that broadcasters restrict advertisements on television channels to a maximum of twelve minutes per clock hour. While the Ministry of Information and Broadcasting and the News Broadcasters Association vehemently oppose this measure as a draconian step that will adversely impact revenues and violate broadcasters’ freedoms of speech and business, the TRAI argues that the duration of advertisements is inversely proportional to the quality of the viewing experience, and that the measure is necessary to protect consumer interest. This paper analyses the debate surrounding the Standards of Quality of Service (Duration of Advertisements in Television Channels) (Amendment) Regulations, 2013, as a measure for advertising regulation. It examines the TRAI’s role as regulator and evaluates the legal and economic arguments for and against the measure.

Section 30 of the Indian Contract Act, 1872 makes agreements by way of wager void. In spite of the above provision declaring wagering contracts as void, there has existed for some time now, a practice of entering into derivative contracts in the financial market. Such contracts are especially resorted to when it comes to dealings with foreign exchange on account of fluctuations in the exchange rates. Numerous Indian companies who have made losses due to trading in derivatives, have argued that the contracts the banks entered into with them were illegal, in violation of Reserve Bank of India (“RBI”) guidelines, opposed to public policy and unenforceable, and not binding on them. Under Indian exchange control laws, an Indian corporate, being a person resident in India, can enter into a foreign currency derivative contract only to hedge an exposure to foreign exchange risk and not for speculating and chasing profits. The authors during the course of the present paper will examine the validity of such contracts in light of Sections 30 and 23 of the Indian Contract Act, 1872. The authors will seek to answer the question of whether these companies can at their convenience now state that such contracts are unenforceable or whether this has implications  on their past profits.

This article attempts to explore the links between sovereignty and constituent power. Both these concepts have deep-rooted links to amendments affected in any Constitution. Accordingly, their interplay with respect to the Indian Constitution is explored in this paper. The first section is concerned with a general introduction to the subject. The second section provides a jurisprudential understanding of the concepts explaining their relevance individually and further to  different theories notably that of Carl Schmitt, linking sovereignty with constituent power. The third section is devoted to understanding the link between sovereignty and constituent power, and the amending power. The fourth section works through a tentative solution suggesting that the amending power is something akin to constituent power and discusses briefly how sovereignty could be protected by exercise of the amending power. The concept of implied limitations is discussed with reference to the position prevailing indifferent countries, furthered with the aid of the basic structure doctrine prevailing in India. The conclusion ends on a cautionary note: that judges, who propose to be the self- designated guardians of sovereignty and the Constitution, could need some guarding as well

Fraternity as an ideological concept finds its birth in the French Revolution, as well as an express mention in the Preamble to the Indian Constitution. Despite this clear constitutional space, little has been said or done in its furtherance. This paper seeks to account for the development of fraternity from both a historical and judicial perspective. In looking towards the history of the French Revolution and the Supreme Court’s treatment of the same, we intend to provide some clarity as to the true purpose and meaning of fraternity. In analyzing the history of the Preamble and its legal status, the authors seek to understand how courts employ the Preamble as a mechanism to interpret the Constitution. This paper concludes that the decision of the Supreme Court in Nandini Sundar v. State of Chhattisgarh, is a remarkable improvement in the judicial use of fraternity, and presents certain compelling prospects for the use of the Preamble in the process of constitutional adjudication.

In this paper, it has been argued that the Naz Foundation judgment extends beyond the mere reading down of Section 377 of the Indian Penal Code and provides the plinth for elimination of all forms of discrimination against persons, not merely on the basis of their sexual orientation but also their gender identity. A close reading of the judgment along with the sources and affidavits that the courts have relied on to come to their decision makes it abundantly clear that the Naz Foundation decision has direct implications for hijras, kothis, FTMs, MTFs, transsexuals and intersexed persons. The use of the Yogyakarta Principles and the extension of recognition to the concept of decisional privacy by the judges go a long way in striking at the roots of homophobia and gender identity-based discrimination. Through the discussion of identity politics, references to instances of harassment faced by all the above mentioned communities and the expansion of notions of equality, autonomy and privacy to embrace both sexual orientation and gender identity, the judgment is truly a landmark in the realm of transformative remedies that forms the essence of queer politics.

The recent expulsion of Lok Sabha Speaker, Mr. Somnath Chatterjee from his party has raised not just a flutter in the political circles, but also many a constitutional question of significant import. There is a school of opinion which believes that if a person by not abiding by the dictum of his party to resign as the Speaker brings upon himself expulsion from his party, he should be considered to have given up his membership in the party voluntarily, and hence disqualified under the Tenth Schedule. This admittedly, is a radical position, and posits a very fundamental constitutional question. After analysing the position, we have come to form an opinion in opposition to the automatic expulsion theory. Through this paper, we have tried to objectively analyse the current legal position, and have tried to present an opinion based on constitutional provisions and parliamentary conventions.

That the judicial prerogative of Constitutional interpretation should not render itself into a zealous imposition of personal values remains a fundamental tenet of representative governance. In a society of diverse, and often conflicting ways of life, and a judiciary that lays claim to widest possible legal creativity, and a polity of consociation, it is nothing but the construction of the provisions of the Constitution that acts as the binding gel between competing claims. The article primarily presents arguments in relation to: firstly, ‘Interpretation For What?’, where it is argued that in the final hermeneutic appreciation, the meaning arrived at should be audience-centred and the interpretation should be reflective of the reasons for belief of the people and not the belief itself, and secondly, ‘Interpretation Of What?’, where it is argued that, ascribing hallowed values to mere textual assurances dangerously borders on misuse of interpretative discretion and as such judicial systems should not only temper the phrasal promises with social demands, but should not move beyond, in the guise of discovering universal humane absolutes. The present article thus seeks to limit the judicial interpretation of the Constitution by appreciating such meanings of the textual expression alone that portray the undercurrents of social existence.

The cause of equality is not one of creating contiguous compartments. Humans are equal not as isolated bits, but as mutually interacting summations of different processes. The paper here argues this same understanding of social cultures and myths as inalienable components of human equality, and the need for orienting our take as one that values hierarchy and difference as much as equal access to material modes of survival. Basing on the idea of psychologism, the argument developed is in opposition to hallowed promises of tomorrow, and their antithesis with the very functions of law as a social instrument.

The Agreement on Trade Related Aspects of Intellectual Property Rights is often said to raise hurdles in the path of developing countries in attaining their public health objectives. One of the concerns has been that the Article 31 of TRIPS is inadequate in allowing issuance of compulsory licenses as a regulatory tool by developing countries for meeting public health requirements. However, a close perusal of the Bilateral Investment Treaties of India, Pakistan and Bangladesh demonstrate how these countries voluntarily accepted more onerous requirements for issuance of compulsory licenses than what exists under the TRIPS agreement. These additional requirements under the Bilateral Investment Treaties have serious and far reaching implications which are not necessarily limited to a bilateral plane.

Unlike almost all legislative creations, the Constitution of a nation is intended to provide an enduring instrument to serve through aeons of time without frequent revision. Yet it is true nonetheless that the very purpose for its formation is to meet the needs of all generations alike, past, present or future. Fulfilment of such lofty goals cannot be dreamt of unless the constitutional text is subjected to modifications designed to meet the needs of the day. Any amendment to the ‘fundamental law of the land’, that is, the Constitution obviously has significant ramifications on the institutional structure of the nation. This article attempts to explore the reach of the amending power, its need thereof, its position vis-à-vis constituent power and the reason why it should be subjected to certain restrictions like the one that the Indian judiciary had attempted through the evolution of the Basic Structure Doctrine.