Articles

The National Identification Authority of India Bill (‘the Bill’) leaves many things unsaid. It has delegated most key areas relating to the institution of the system of unique identification (‘UID’) numbers (officially known as ‘aadhar’ numbers) to rules to be framed by the authority subsequently. Its definitions are almost all open-ended. Right from the public announcement of the project, to the drafting of the Bill, the furore over the introduction of this system of identification has only been growing. Those critical, as well as those in support of the project have based their opinions on the various hypothetical outcomes they believe this project could have on welfare schemes, privacy of individuals and indeed, the nature of governance in India. Such critiques are based on the ambiguities in the law and a suspicion that such ambiguity will prove to be particularly dangerous with respect to information privacy. In this context we will examine the exact contours of what this draft legislation does say, and the system of identification it envisions. Whether inevitable privacy concerns arising out of such a data collection excercise have been dealt with in a meaningful and comprehensive manner and furthermore, the manner in which the national security rationale has manifested itself in the project as well as the legislation.

Rent Control has been one of the foremost welfare measures that have survived in India. The governments of various countries have tried from time to time to make sure the laws are apt to meet the requirements. In the first decade of the 21st century, however, rent control has been seen as an obstacle to urban reforms. The paper takes a look at the extant legal regime and the proposed changes. It needs to be noted that the proposed reform was introduced in the form of the Model Rent Control Legislation in 1992, yet only five states have implemented the same. The only upside is that about ten states have proposed bills as of 2010. In the course of this paper we attempt to analyse as to what extent the proposed changes tackle the problems faced under the extant regime. Further, in light of the examples put forth by the existing states that have implemented new age laws, we seek to suggest improvements.

This paper discusses the problem of international child abduction by parents, a growing phenomenon owing to several reasons. It discusses the attempts made through the Hague Convention and points out the shortcomings of the Convention in dealing with the problem. It is argued that the ambiguity in and varying interpretations accorded to the treaty provisions, undue delays in enforcement of judgments and the limited acceptance of the Convention largely undermine the effectiveness of the Convention.

Tribunalisation has been accorded constitutional legitimacy by the courts in India. It has evolved from serving as an alternate institutional mechanism, to one that is integrated within the judicial framework. However, even in their supplemental roles, tribunals have been used as a tool by the executive to undermine judicial independence. It is in the background of such unfettered transfer of judicial power to quasi-judicial bodies, and the Copyright (Amendment) Act, 2012 that the paper examines the constitutionality of two specific tribunals, namely, the Copyright Board and the Intellectual Property Appellate Board. The two bodies are vested with judicial powers to effectively discharge their functions. Their competence is however undermined by their lack of independent and transparent mechanisms. The Copyright (Amendment) Act, 2012, while claiming to enhance the competence of the Copyright Board, seems to have done little to iron out the constitutional infirmities. In fact, its silence on specifications of stringent qualification requirements for the members of the Board and the issue of their tenure only seeks to increase the infirmities. The issue is further compounded by the fact that the Amendment seeks to vest the Board with unbridled powers. In order to ensure effective adjudication, the systemic overhaul of these infirmity ridden institutions is imperative. The law should strive towards structuring a transparent and an independent institution, as opposed to one with unbridled powers but no mechanism to control such power.

With enhanced access to cheaper communication technology, a large majority of the public has moved from being mere passive consumers to active creators and re-mixers of content. The Copyright (Amendment) Act of 2012 has also extended the ‘ fair dealing’ provision to all works. In this context, a crucial question that arises is what constitutes ‘ fair dealing’ of cinematograph films and sound recordings, especially in the context of ‘criticism
and review’. This paper examines the ambit of ‘criticism’ and the extent to which re-contextualised works such as parodies would be protected as a critique of the original. The provision for fair dealing is also analysed through the prism of the right to freedom of speech and expression. The possibility of conflict between the moral rights of the author of a work and the fair dealing provision is also explored. Through this paper, the author argues for a wider reading of the term ‘criticism’ along with the recognition of quotation rights, to ensure that the grant of the copyright does not become an unreasonable restriction on free speech and expression.

Libraries, especially those which are universally accessible and funded by the state, have been seen as important means to democratize access to knowledge, and have gained renewed relevance in the information age as agents through which the digital divide can be addressed, particularly in developing countries. India’s system of statutorily established libraries has seen considerable State attention since independence through policymaking,
legislation and financial investment through the successive Five Year Plans aimed at ameliorating infrastructure. Nevertheless, much still remains to be achieved. Creating the legal infrastructure as well as the technological edifice for an effective, sustainable and relevant system of public and national libraries, is crucial for ensuring that these institutions are capable of preserving and sharing content (whether it is books, art or audio and/or visual content) effectively. This paper examines the amended Indian Copyright Act, 1957 for its compatibility with the project of modernizing our libraries, and attempts to suggest how the vacuum should be filled in.

‘Trademark Dilution Doctrine’ is basically a trademark law concept that permits the owner of a famous mark to forbid others from using that mark in a way which would harm its uniqueness. A trademark is diluted when the use of similar or identical trademarks in other noncompeting markets means that the trademark in and of itself will lose its capacity to signify a single source. In other words, unlike ordinary trademark law, dilution protection extends to trademark uses that do not confuse consumers regarding who has made a product. Instead, dilution protection law aims to protect sufficiently strong trademarks from losing their singular association in the public mind with a particular product, perhaps imagined if the trademark were to be encountered independently of any product. The aim of this paper is to study in detail this doctrine as it stands today after the enactment of the Trademark Dilution Revision Act 2005 in the United States, and indicate key issues which require detailed inquiry and analysis.

The corporate sphere, globally, has been known for its power tussle. There have been numerous instances where corporate enterprises have witnessed clashes within different ranks of its substructure, with a view to gain as much control as possible. The focus of corporate governance, in most cases, has been to curb the struggle between the management and the share/stake holders of the company by trying to even out the inherent imbalance be- tween the two camps of the corporation. One of the key mechanisms to do the same has been the evolving concept of a separate Chairman of the board and a Chief Executive Officer. Traditionally, the role had been bestowed on a single individual who was to be the ultimate repository of power, but owing to some catastrophic financial failures witnessed in various nations, the distinction in the two functions was proposed. The present paper maps out the trajectory of advances in the said field of corporate governance in three nations, i.e. the United States, United Kingdom and India. The aim is to juxtapose the advancement in the three countries and analyse the justification advanced by regulators worldwide, in keeping the two positions separate. A cross-national study shall help demystify the corporate temperament in the aforementioned regard and shall present a broad sample space to base the observations. We have argued through the course of the paper that a functional leeway, if made available to the corporations, shall help them to realistically achieve protability and shall also ensure compliance, in letter and spirit, with global corporate governance norms.

The amenability of educational activities to the provisions of the Consumer Protection Act, 1986 is one of the quintessentially tumultuous areas of Indian consumer law, falling in the penumbral area thereof. The Indian Supreme Court has through a series of three decisions gradually decreased the amenability of educational institutes and the educational activities per- formed thereby from the purview of the 1986 Act, with its most recent order – P.T. Koshy v. Ellen Charitable Trust – ostensibly excluded them altogether from the purview of the Act. In light of these developments, this article shall evaluate the tenability of the Supreme Court’s position, by undertaking a critical analysis of the legal correctness of the exclusion of educational activities from the purview of the 1986 Act, and determine the practical implications that are bound to ensue therefrom. Further, it shall rebut the multifarious lines of reasoning that have been advanced, in support of such exclusion, and establish conclusively, why educational institutions (of every class) and the activities rendered by them should, to the extent that they are otherwise classifiable as ‘services’ as defined in §2(1)(o) of the 1986 Act, not be excluded from the purview thereof, and thus demonstrate the fallaciousness of the Supreme Court’s position in this respect.

§§65A and 65B of the Evidence Act, 1872 were introduced in 2000 with the aim to lay down admissibility standards for electronic evidence in courts. However, this attempt at standardization has not seen much success and there has been significant divergence in practice in courts across India. Recently the Supreme Court in P.V. Anvar v. P.K. Basheer attempted to address this problem by explaining and laying down the requirements under §65B.

This paper argues that while the Supreme Court in Anvar may have been well-intended, it has misstated the position of law. First, the provision has been read in a manner that contravenes principles of statutory interpretation. Second, the Supreme Court has improperly restricted the possible methods of authentication to only ‘certi cates’ under §65B(4). At the same time, there are problems with how §65B, as originally drafted, attempts to offset questions of accuracy and reliability. Accordingly, this paper, on an examination of practices followed by other common law countries, recommends the adoption of an entirely different model of authenticating electronic evidence.