Articles

Provisions in the Indian Constitution are capable of an ‘ecdysis’. That is, they may completely shed their skin to don another. Their text may acquire a new legal meaning without any formal change whatsoever. This provokes a unique concern: Constitutional provisions may get pitted against one another. The conflict is a given due to the presence of the ‘basic structure’ doctrine. It demands that all under the Constitution be ever-compliant with fixed Constitutional mores. Only select provisions carry this essence of indispensability. They constitute the core around which the Constitution thrives and was born for. Dynamism denotes that provisions outside of the core may don an unpalatable meaning. Basic provisions may conflict with the circumstantial ones. The concern only deepens from thereon. Even the essential text may not be eternal for posterity. That is, the core provisions may themselves switch meanings. As such, the circumstantial and static provisions may again be in a conflict with the core. This time, obsolescence is the latter’s undoing. Either way, interpretive fluidity heightens the risk of an inter-provisional conflict. A surgical scrutiny of the doctrine helps construct the conceptual aftermath. It was initially forged for unconstitutional amendments that attacked the core.  Time has wrought on it details that enable an enhanced function. It now tackles all forms a threat may shapeshift into.  The basis of this assertion is the doctrine’s design. It is best justified as a manifestation of ‘living-originalism’. This theoretical underpinning makes for a unique occurrence. India’s Constitution may cauterise its own text for self-preservation.

Inclusive education has been embedded into Goal 4 of sustainable development. The Sustainable Development Goals (‘SDGs’), 2030, developed by the United Nations and agreed upon by all its member States, explicitly integrate persons with disabilities and their voices, unlike the erstwhile Millennium Development Goals. In this paper, we assess the compliance and compatibility of India’s legal and policy framework for education of children with disabilities with the goals enumerated under SDG 4 on education. In order to make such an assessment, the paper focuses on the Rights of Persons with Disabilities Act, 2016, the Right to Education Act, 2007, and the National Education Policy, 2020. Data sources, studies, and ongoing litigations in India reveal that the needs of children with disabilities continue to be inadequately met by the State. Therefore, the government’s present policy initiatives towards early childhood interventions, school-going age initiatives, and integration into higher education are mapped and analysed in this paper. Lastly, the paper provides certain suggestions that could facilitate holistic and inclusive education of children with disabilities and ensure our achievement of SDG 4 on education.

Over one billion people worldwide suffer from a disability. Equal access in education and employment for this community of people is a  primary focus of the disability rights movement. The barriers to achieving this are compounded in developing nations, where jurisprudence on this issue remains lacking. Foremost among these barriers is the definition of disability adopted in varying jurisdictions, which often focuses on the medical, rather than social, model of disability. One of the most significant ways to combat discrimination against persons with disabilities remains the right of reasonable accommodation, first proposed in the United States of America (‘USA’) in the landmark Americans with Disabilities Act, 1990. This paper adopts a cross-jurisdictional approach to the issues of defining disability and adoption of the right of a reasonable accommodation in the spheres of education and employment, comparing the construct of the Americans with Disabilities Act, 1990 against the (Indian) Rights of Persons with Disabilities Act, 2016, with the aim of providing suggestions to fortify Indian jurisprudence in this area of law. 

Promise to marry cases involves instances where the prosecutrix alleges that her consent to sex is vitiated since it was given under a belief of the misrepresentation made by the defendant that he would marry her in spite of him having no such intention to do so from the start. This note adds to the discourse surrounding false promise to marry cases by assessing the harms inflicted by such deceptive acts and exploring whether a civil remedy could effectively center women’s agency within this context. The note challenges the prevailing notion that ‘vitiation of consent’ should serve as the litmus test for addressing these cases as this criterion falls short in capturing the nuanced dynamics inherent to such situations and perpetuates harmful stereotypes and outdated norms. Furthermore, a careful analysis of Clause 69 within the proposed Bharatiya Nyaya Sanhita Bill, 2023, reveals potential shortcomings associated with criminalisation, such as intrusive legal proceedings and the possibility of misuse. The note then looks at the possibility of a civil remedy highlighting certain advantages and disadvantages. The overarching aim remains the elevation of women’s subjectivity in both the perception of such conduct and the ultimate outcomes of these cases.

One can ponder whether blockchain technology can provide a viable new-age solution to the age-old growing concerns surrounding corporate governance. This paper argues that the integration of blockchain technology has the potential to revolutionise the way corporations manage their governance processes. It highlights how the issue of agency costs, information asymmetry and lack of shareholder activism can be addressed by the lightning quick, secure, transparent, and immutable records of transactions on the ledger, thereby making it an ideal tool for improving corporate transparency and accountability. The ability to lower shareholder voting costs and the organisation costs for companies, including holding of an annual general meeting benefits both the company and the erstwhile forgotten shareholders. Further, through the introduction of tokens, and its uniquely malleable nature, blockchain provides the company with an opportunity to get creative with its capital raising while allowing a tokenholder to reap such benefits over a similarly placed shareholder. Lastly, the paper showcases that by reinstating oversight over the managerial role in hands of those directly impacted by a company’s actions, blockchain allows us to call for the wringing back of control. Hence, the enhancement in a company’s overall efficiency allows us to eliminate corporate governance concerns through the implementation and integration of blockchain technology.

On January 24, 2023, shockwaves reverberated through the Indian stock market as the Hindenburg Research unveiled their report on the Adani Group. The report’s allegations of stock manipulation and fraudulent accounting against the Adani Group arrived just as the conglomerate prepared for a monumental INR 20,000 crore further public offer (‘FPO’) the following week. Swiftly responding to these allegations, Adani framed the accusations as an assault on the nation’s economic fabric, an assertion that disrupted the FPO, causing a seventy-percent collapse in Adani stocks and rattling retail investors. Adani’s counter also shed light on Hindenburg’s advantageous short selling tactics. This seismic event prompted a regulatory flurry, prompting three public interest litigations demanding a Supreme Court investigation, with both the Reserve Bank of India and the Securities and Exchange Board of India launching independent inquiries into the allegations against the Adani conglomerate. In this paper, the authors undertake a comprehensive analysis of the Adani-Hindenburg saga and the broader implications it carries. The authors navigate the intricate legal, regulatory, and ethical landscape to critically evaluate the existing mechanisms designed to safeguard investor interests from the finfluencers and research analyst organisations such as Hindenburg. By examining the strengths, gaps, and opportunities for improvement within these mechanisms, this paper seeks to provide a nuanced understanding of how the financial ecosystem can better shield investors against unforeseen market turmoil and manipulative practices.

Legal confusion in end-of-life care law has remained a key barrier before dying with dignity in India. The history of legal developments on end-of-life care, however, is not linear, and has been marked by continuities, shifts, and a lack of clarity.  This article excavates the history of Indian end-of-life care law to demonstrate how and why confusion has plagued Indian law. It argues that the Supreme Court’s guidelines in its landmark decision in Common Cause v. Union of India were practically unimplementable since they conflated “passive euthanasia” with the “withholding and withdrawing of life sustaining treatment,” disregarded patient autonomy and did not account for a surrogate decision-making framework for patients who lack decision-making capacity. Recently, the Supreme Court modified the Common Cause guidelines to address some of their practical issues, yet these substantive concerns remain relevant for any future legislative intervention on end-of-life care.

Consumers today readily divulge their personal data irrespective of the serious concerns regarding privacy. This paper argues for locating privacy as a parameter in Indian competition law for assessing claims of abuse of dominance. Relevant metrics such as maximisation of consumer welfare, data protection, and maintaining openness of markets are analysed in considering whether privacy can be accommodated within the goals of competition law. By showing how privacy is important from both economic and non-economic viewpoints, its relevance in antitrust analysis is sought to be established. This is done by arguing for its relevance in zero-price markets, and in noting the significance of privacy in driving competition for ‘free’ services. Having established privacy as an anti-trust parameter, this paper proceeds to determine the relationship between privacy and competition, their apparent anti-complementarity and its resolution. Finally, through an analysis of how various developed competition law regimes have incorporated provisions to reflect the nature of digital markets it draws lessons for a similar integration in India.

Fractional share investment has demonstrated its significance in advancing the growth and expansion of capital markets across multiple jurisdictions, as well as retail investor empowerment. In India, the regulatory framework for the clearing and settlement process of trades would necessitate technological and legal modifications to implement fractional share investment. This paper explores the legal and technological aspects of implementing fractional share investment in India. It addresses taxation, shareholder voting rights, and initial public offerings, and proposes changes to the roles of depositories and clearing houses. The paper advocates for the adoption of distributed ledger technology to facilitate fractional share investment, which will offer an efficient legal and technological model. It also examines the economic rationale and international best practices to present a comprehensive blueprint for fractional share investment in India.