Articles

The Reserve Bank of India’s recent push for card-on-file tokenisation attempts to solve for the privacy and data security risk in India’s payments sector. This article argues that while the tokenisation framework is motivated by necessary considerations, it is a sub-optimal method to solve for such risk as it does not meaningfully engage with the privacy-related dimensions of financial data protection. The optimal method to address such risk, we argue, is the enactment of a comprehensive data protection law, which encodes guiding principles recognised in data protection legisprudence across jurisdictions. To substantiate this, the article analyses select aspects of data protection frameworks and demonstrates their value in creating privacy-preserving financial services in India. While the (Indian) Data Protection Bill, 2021 (‘DP Bill’)⁺ may serve as a useful template for such a framework, the question of whether the provisions of the DP Bill meet this threshold, is beyond the scope of this article. The observations of this article are relevant for FinTech firms, sectoral regulators in India, and scholars of privacy law and financial regulation.

Companies are the predominant vehicle through which businesses operate. They have a tremendous impact on the society, and in this context, it is important to understand the responsibility placed on the decision-makers – the directors – of companies. In India, the key provision that places responsibility on company directors is §166(3) of the Companies Act, 2013 (‘the Indian Companies Act’), which codifies the duty of care owed by company directors. In this paper, we analyse §166(3) of the Indian Companies Act in detail. In our analysis, we note that §166(3), in its current form, leaves important gaps in the director’s duty of care. First, §166(3) does not specify to whom the duty of care is owed, which significantly impacts the nature of the obligation. Second, the provision does not provide a standard for the duty of care. In this paper, we argue that the duty of care is and should only be owed to the company. This is in contrast to the duty of good faith in §166(2) of the Indian Companies Act and the duty of care in the United Kingdom (‘UK’), which is owed to all stakeholders. Further, we argue that absent any express standard for the duty of care, India would be best served in adopting the ordinary reasonable man standard developed under tort law, which is objective in nature. We argue that standards found elsewhere, such as the subjective standard, the subjective-objective standards of agency law, the UK Companies Act, 2006, and the business judgement rule in the United States of America, are not suitable for India. We conclude by postulating the objective reasonable man standard as best-suited to the Indian corporate landscape, which will bring much-needed clarity to the duty of care of the directors.

In this note, the authors analyse the recent Criminal Procedure (Identification) Act, 2022, (‘Act’) against the principles laid down under the General Data Protection Regulation, 2016. These principles relate to data protection and are namely the principles of purpose limitation, storage limitation and accountability, and are also applicable in the Indian legal framework. The authors conclude that the Act fails to abide by the aforesaid three principles and, therefore, there is an urgent need for the legislature to remodel the law in order to safeguard the citizen’s right to privacy and data protection.

We are currently living in an unprecedented time where the global COVID-19 pandemic has caused havoc to everyday life and claimed innumerable fatalities. Rightly, the world is seeking answers and truths during a time when there have been more unknowns than knowns regarding the virus. States are attempting to curb the virus, regain control, and most importantly, protect the lives of as many citizens as possible. While each State has the responsibility to protect its own citizens by implementing a range of domestic measures, there have also been international prohibitions on foreign travel, previously been unseen by many people. However, neither a single State nor an organisation can overcome the pandemic alone. This is where the academic attention turns towards public international law to shed light on the situation and gain insight into the international legal response. This is due to the decentralised nature of the international legal system that is vastly fragmented. International law and norms do not seamlessly fit together like a jigsaw and instead they often highlight gaps between regulations. The paper seeks to address whether the international legal regime is robust and effective enough to address these concerns. The paper addresses the role and response of the World Health Organisation, the United Nations Security Council, the United Nations General Assembly, and domestic courts, to the pandemic. The paper concludes that while international law is reactive to the societal needs, the legal regime does have the ability to adapt following the current pandemic. Thus, it argues that conducting an international deliberation and the formation of a ‘Pandemic Treaty’ would clearly display the potential and the possibility for international law to be effective during a future pandemic.

The Indian government imposed a countrywide lockdown in the wake of the COVID-19 pandemic. As a result of the lockdown, India witnessed the deplorable plight of thousands of migrant workers who were unable to avail transportation to return to their native places, and were forced to either travel back on foot, or survive in the city they worked in, without their daily wages. The plight of the migrant workers brought to light the importance of the discourse around the disparate impact of measures which are facially neutral. The Equality Code (Articles 14 to 18) under the Indian Constitution has endured the test of time to ensure that measures which directly discriminate between people on the enumerated protected grounds, are struck down. However, with evolving times, it is imperative to address neutral measures which, albeit applicable to all, affect different segments of the population differently. While the Supreme Court has analysed indirect discrimination in a recent judgement, this article is an attempt to analyse whether facially neutral measures can be considered discriminatory under our constitutional framework. The authors conclude that Article 15 can be interpreted to consist of safeguards against facially neutral laws with disparate impacts. The jurisprudence of certain countries regarding discriminatory facially neutral measures has been examined to bolster this analysis. At the end, a sliding scale theory is proposed to analyse the constitutionality of a facially neutral measure, while also examining the constitutional validity of the imposed lockdown vis-à-vis the disproportionate impact it has posed on the migrant workers.

Based largely on party autonomy and consent, over the past two decades, arbitration has emerged as the top pick for corporations to resolve their disputes. Unlike other forms of adjudication, an arbitral tribunal derives its power from the consent the parties themselves provide. Hence, the question of impleading non-signatories in arbitral proceedings has continued to be a matter of great controversy with tribunals generating several ‘creative’ solutions to implead non-signatories. One such solution created is the Group of Companies doctrine, a theory that allows the impleading of parent companies supposedly on the basis of implicit consent. However, the response to this doctrine has been lukewarm, with some jurisdictions choosing to adopt it while others vehemently opposing it, resulting in challenges with cross-border enforcement of arbitral awards. This paper aims to critically analyse this doctrine and attempts to show that it is irreconcilable with a fundamental principle of arbitration, namely consent. It begins by showing the inconsistent application of this doctrine across jurisdictions and then aims to dispute the claim that the doctrine is merely an extension of the principle of consent. Finally, the paper suggests an alternative route that could replace the Group of Companies Doctrine and act as a means to extend the arbitral tribunal’s jurisdiction without necessarily diluting the essence and need for consent by instead focusing on the rights and liabilities of the non-signatory with respect to the dispute before the tribunal.

The Babri Masjid– Ram Janmabhoomi dispute is a land ownership dispute which came to life over 134 years ago between two of India’s most numerically-dominant religious communities. A 1045 page long judgement, M. Siddiq v. Mahant Suresh Das (‘Siddiq’) is riddled with socio-political and religious complications, given the centuries-old tension between the two communities. This burdened the Supreme Court to disintegrate these complications and focus on the proprietary rights issues, including, inter alia, Title of Property, Exclusive Possession, and Dispossession of Property, which forms this dispute’s legal framework. In analysing this disintegration, certain visible inconsistencies occur within the legal reasonings used in the judgement with respect to the allocation of the 2.77 acres of land. However, in the process of delivering its verdict that the disputed fragment of land belonged to Bhagwan ShriRam Virajman, the Court reduced the questions of who has title over property to questions of which community’s faith is stronger, and thereby digressed from the legal framework of this dispute. This paper attempts to discover, disclose and discuss these very inconsistencies. It addresses the Supreme Court’s dilemma when resolving the property issues independent from the contemporary socio-religious issues. Finally, it also analyses the implications of the Siddiq Judgement on present and future mandir-masjid disputes in the backdrop of the Places of Worship Act, 1991.

The landmark Puttaswamy judgement has declared the right to privacy as a fundamental right. Such a right will have a significant impact on the construction of provisions that empower law enforcement authorities to undertake searches. In this paper, we exhaustively delineate the jurisprudence in India that relates to the overlap between the power to conduct searches and the right to privacy. Search provisions in India are present in various statutes such as the Code of Criminal Procedure, 1973. The established jurisprudence on privacy prior to Puttaswamy subjected search provisions to a relatively less rigorous standard of legality. In light of the Puttaswamy judgment, we discuss the normative content of the judgement itself, and draw an analysis of the comparative jurisprudence, to recommend the manner in which search provisions should be construed and their legality, analysed. We argue that search provisions are especially vulnerable to a privacy challenge when adequate procedural safeguards are not put in place, and further argue for a rigorous proportionality analysis. Finally, we test some pre-existing search provisions to demonstrate the manner in which Indian courts should determine the validity of searches and search provisions in light of the right to privacy.