Articles

This paper aims to provide conceptual tools and arguments, inspired by Norberto Bobbio’s rich legal and political theory, which appear particularly relevant to address today’s issues of democratic legitimacy and accountability of regulatory structures in the context of Indian and European liberal democracies. The analysis thus confronts from a comparative perspective the structures and modes of operation of Indian and European regulatory structures (in terms of competence, functions and means) with the model of constitutional liberal democracies. The intended outcome of such comparison is to highlight the conditions and limits of the compatibility of current regulatory structures and their resultant regulatory powers on the one hand, with the constitutional liberal democratic order on the other. 

From the generally conservative and patriarchal approach of the courts towards pornography, to the paternalistic, welfare legislations enacted to ‘protect’ certain classes of the population, obscenity laws operate in and further churn an obscenity narrative that actively disables sexual autonomy, especially of women and minorities that often face the brunt of these exercises. This article argues that the extant legal regime relating to the non-consensual dissemination of intimate images is weak and non-developed in India, both, in terms of identification as an offence, and availability of remedies. Specifically, this article highlights the roles of certain sections of the Information Technology Act, 2000, that work in tandem to disable appropriate juridical and practical application of provisions that give due regard to privacy and consent concerns in matters concerning non-consensual dissemination of intimate images. Legislature and courts must give due regard to these concerns if they seek to curb the proliferation of cybercrimes online and build a more free and participative digital citizenship. 

The COVID-19 pandemic obligated governments across the world to adopt measures for containing the spread of the virus while preserving socio-economic stability. The Constitution of India, 1950 (‘the Constitution’) vests upon the State governments the exclusive authority on all matters relating to public health. Nevertheless, the Central Government spearheaded the response to the COVID-19 outbreak, invoking the provisions of the Disaster Management Act, 2005 (‘DM Act’). In this paper, we challenge the authority of the Parliament to regulate biological disasters through the DM Act on the basis that it violates the separation of powers envisaged under the Constitution. Upon a holistic review of all the legislative entries in the Constitution that may confer authority upon the Parliament to legislate on the subject of biological disasters, we conclude that the Parliament did not have the power to legislate upon the said subject. Hence, any matter arising out of biological disasters should be excluded from the scope of the DM Act. However, in the current scenario where both DM Act and the Epidemic Diseases Act, 1897 (‘ED Act’) apply, we use principles of statutory interpretation to address the conflicting provisions of these two statutes relating to the management of biological disasters. We thereby conclude that the ED Act, which accords primacy to the State governments in tackling a biological disaster, should have been applied instead of the DM Act to manage the COVID-19 pandemic. We propose that the DM Act’s provisions should be reasonably applied to events within the meaning of ‘disaster’ under the statute while leaving out the management of biological disasters, which are specifically covered within the scope of the ED Act. This is based on the principle of ‘generalia specialibus non derogant’ and the rationale that from a constitutional and policy perspective, the State governments are the appropriate authorities to manage biological disasters.

Over the years, the Indian government, as well as the courts, have consistently furthered a pro-arbitration approach in order to establish an efficient dispute resolution mechanism that can improve contract enforcement and the ease of doing business. Emergency arbitration is considered to be one such process that can assist in establishing an effective resolution mechanism. This paper attempts to focus on and understand the modalities of prominent domestic institutional rules which govern the emergency arbitration proceedings. It provides a comparative critique of the domestic rules as against their international counterparts through the identification of certain key features present in the latter. Thereafter, the paper recommends numerous amendments for the domestic institutional framework that can assist in formulating a robust emergency arbitration procedure in India. In conducting this analysis, the paper also analyses the concerns surrounding the recognition and enforcement of emergency arbitration orders, which arguably constitute the backbone of an efficient emergency mechanism. 

This article discusses equity investments of the Asian Development Bank (‘ADB’ or ‘the Bank’) in South Asia, with primary reference to India and Bhutan. It considers ADB’s financing of private sector operations, including equity investments. It also focuses on case studies of equity investments in three commercial banks, namely, Centurion Bank Limited (‘CBL’) and Global Trust Bank Limited (‘GTB’) in India, and Bhutan National Bank (‘BNB’) in Bhutan. The issues and challenges in project implementation are analysed. The salient lessons learned by the Bank in these equity investments are discussed by analysing the Bank’s project completion reports and evaluations. The participation by the International Finance Corporation, a member of the World Bank Group focused on private sector operations, in its investments in CBL, GTB and BNB is also discussed. The article concludes with lessons learned by the Bank with suggestions on how the Bank can better enhance its participation in equity investment operations in its member countries.

The Rajya Sabha and the Indian judiciary share a functional link so as to maintain a constitutional equilibrium. Both their designs are oddly detailed for a reason, with no feature existing without purpose. The former is tasked with scrutinising and revising the social/moral policy initiatives of the Lok Sabha-executive combine. In parallel and with respect to the same legislative-executive actions, the judiciary has its task in reviewing recondite issues of constitutional compliance/competence. This paper elaborates upon a state of peak crisis when the two constitutional bodies abandon these behavioural responsibilities, albeit, in different ways. The core of Rajya Sabha’s revisionary powers was premised in its unique ‘representativeness’. This exclusivity, and the concomitant powers, have been wrested away from it. Resultantly, it seems to have lost its efficacy as a legislative-executive watchman. In its stead, the judiciary has taken up the additional task of filling up moral vacuities in legislative/executive actions. It is not that this probable deviation was not constitutionally accounted for by the limits on the judiciary’s writ jurisdiction. However, in an act of defiant circumvention, the judiciary has pushed the relevant theoretical/procedural boundaries to nullify that foresight. Emerging moral-judicial doctrines supply this transgression with perceived legitimacy. These parallel yet different aberrations in both the institutions constitute a state of ‘constitutional dysfunctionalism’.

In July 2016, when a 13-year-old girl and her mother filed an FIR alleging that they had been gang-raped by a group of criminals on NH-91 in Bulandsheher, Uttar Pradesh, the then Cabinet Minister of the State, Azam Khan made a statement terming it a ‘political conspiracy against the State Government’. In August 2016, the victims approached the Supreme Court and filed a writ petition, seeking action against the minister for making such remarks about the incident. While the Court framed a wide range of issues in the petition ranging from collective responsibility of Ministers to the concept of Constitutional Torts, the scope of the present paper is only restricted to the conflict between the speech of elected representatives and individual dignity. Through the course of this paper, we try to determine the idea of individual dignity and use it to argue that the speech-acts of elected representatives should be restricted when they violate the two fundamental parameters of individual dignity embedded in the Constitution. It has been argued by the petitioners and the Amicus Curiae that Article 19(1)(a) rights can be restricted beyond Article 19(2) by Article 21 if they violate individual dignity. Contrastingly, through this paper, we shall be arguing that not only can the fundamental parameters of individual dignity be read into Article 19(2) of the Constitution of India, but they can withstand the rigorous standard of Constitutional scrutiny as well.