Articles

The Indian scholarship on female criminality, primarily based on research conducted in correctional homes, reveals that most of the crimes committed by women are due to stressful situations or past victimisation. However, given the rarity of women’s involvement in brutal crimes, extensive studies on the judicial response towards female killers have not yet found a place in feminist legal literature. This article will be a novel addition to the existing scholarship, as it examines the approach of the Indian Courts towards female killers, within the context of Intimate-Partner Homicide. The study aims to shed light on how the parallel use of provocation defence by men; who kill out of jealousy and anger, and women; who kill out of fear of violence, is problematic to the extent that they continue to perpetuate male aggression and the violent subordination of women. Additionally, the study also includes arguments for the inclusion of women’s experiences into the existing law, which will challenge the legal fiction of neutrality and universality.

The #MeToo movement in India suggests that in spite of the Vishaka guidelines, and the enactment of the Sexual Harassment of Women at Workplace Act, 2013, the Indian legal system has been ineffective in redressing sexual harassment claims. This paper argues, drawing on Professor Vicki Schultz’s theory for reconceptualising sexual harassment, that the sexual harassment law in India has failed, as it is based on a ‘desire-dominance’ paradigm. Under this paradigm, sexual harassment is conceived as a problem of unwelcome sexual behaviour rather than an indicator of broader workplace gender discrimination. Hence, internal complaint mechanisms are usually ineffective in redressing harassment as they focus more on penalasing individual sexual misconduct than holding employers responsible for remedying a hostile work environment. Moreover, these mechanisms are constituted of persons who may imbibe the same discriminatory attitudes as the respondent. Consequently, even though these mechanisms are meant to be a less onerous substitute to criminal trials, they end up replicating the costs of judicial proceedings for complainants. Hence this paper argues that the legal definition of sexual harassment ought to be changed to one that penalises all forms of behaviour which create a hostile work environment based on gender. Further, that internal complaint mechanisms should be substituted by external bodies which can regulate discriminatory employment practices. These bodies should be empowered to not only take action against employers but also provide an integrated range of remedial options to complainants.

Insider trading is a grave crime since it endangers investor interests and trust in the securities market. On the other hand, the charge is serious, especially where criminal liability is involved, and therefore those accused of insider trading need adequate protection from wrongful conviction. This makes it imperative for there to be adequate and compelling evidence to substantiate a charge of insider trading. The charge of insider trading is constituted of several elements, each of which require evidence to establish or disprove. This paper examines the evidences submitted by both, the prosecution and the defence in proving or disproving each prong of the charge of insider trading, and incidentally touch upon some key discussions and debates. First, it examines the evidences taken into account by adjudicating and appellate authorities while determining if the information in question is unpublished price sensitive information. Next, it explores the evidences that attest to or refute the status of a person as an insider with possession of unpublished price sensitive information. Lastly, it decodes the evidences that rebut the presumption that an insider trading with possession of unpublished price sensitive information traded on the basis of such information.

Third-party funding is a practice wherein an entity funds the procedural costs of one of the parties in a dispute in exchange for a share in the monetary award, if successful. Although it is a popular practice in several jurisdictions, it has remained unexplored territory in international arbitration in India. The lack of a regulatory mechanism has resulted in widespread apprehension and reluctance to engage in such practice, rendering arbitration an inaccessible method of dispute resolution for most, due to its notoriously extortionate nature. This paper argues in favour of third-party funding in arbitration in India and seeks to reconcile the conflicting opinions regarding the duty and extent of mandated disclosure of such funding, to arrive at a middle ground which balances the interests and rights of all the parties concerned. It proposes and justifies the establishment of a transparent mechanism for mandatory disclosure of such funding while suggesting a few provisions to respect the third-party funder’s interest in remaining behind the ‘funding veil’. It analyses this mechanism in light of the new confidentiality provisions introduced in India under the Arbitration and Conciliation (Amendment) Act, 2019 and seeks to arrive at a viable regulatory framework after comparing various international practices, in order to encourage the growth of third-party funding in India in furtherance of the country’s goal to establish itself as a hub for international arbitration.

The access to biological resources located within India is governed by the Biological Diversity Act, its Rules and Regulations, that were enacted in furtherance of the Convention on Biological Diversity (‘CBD’) and the Nagoya Protocol. One important aspect under them is fair and equitable ‘benefit sharing’ wherein, users of biological resources are required to share certain parts of the benefits accruing to them from such use, with the local communities that preserve those resources and impart their traditional knowledge relating to them. We argue that the current benefit sharing regime in India is problematic on various fronts and a recent judicial pronouncement has only aggravated these concerns further. Luckily, the CBD and Nagoya Protocol do not envision a singular model for benefit sharing and leave that for the member countries to decide. Therefore, we propose an alternative two- step ad-valorem royalty model that should be explored which addresses various problems prevalent in the current regime. The specifics of the proposed model can be worked out with due deliberation but our purpose is to highlight the existing problems in the system and initiate a discussion towards rebranding India’s benefit sharing regime into a more definite, credible, transparent and fairer regime. We believe that the proposed model is a concrete step towards the same.

Largely based on the ruling in R v. M’Naghten, §84 of the Indian Penal Code, 1860, and its jurisprudence, the defence of insanity continues to operate within anachronistic theories of the mind and its understanding in the law. This paper explores how the inconsistent interpretation and application of the test under §84, as a result of reliance on long discarded notions, has injected arbitrariness and vagueness into the jurisprudence. The lack of a uniform standard in turn impacts the burden on the defence even if such burden is to be discharged on a ‘preponderance of probabilities’. With courts inferring incapacity of the accused based on a host of factors, each of which may or may not be relevant, it becomes unclear how the defence must establish its plea. Ultimately, the paper concludes that resolving the issues outlined might well require rewording and updating the insanity defence in India.

End-to-end encrypted messaging allows individuals to hold confidential conversations free from the interference of states and private corporations. To aid surveillance and prosecution of crimes, the Indian Government has mandated online messaging providers to enable identification of originators of messages that traverse their platforms. This paper establishes how the different ways in which this ‘traceability’ mandate can be implemented (dropping end-to-end encryption, hashing messages, and attaching originator information to messages) come with serious costs to usability, security and privacy. Through a legal and constitutional analysis, we contend that traceability exceeds the scope of delegated legislation under the Information Technology Act, and is at odds with the fundamental right to privacy.