Articles

Recently, in Lt. Col. Nitisha v. Union of India, (‘Nitisha’) the Supreme Court was concerned with the validity of the requirements that had been put in place by the army to decide upon the grant of a Permanent Commission to women Short Service Commission officers. While examining these requirements, the Court, for the first time, acknowledged ‘indirect discrimination’ and ‘structural discrimination’ as tools of Indian equality law. To this extent, the decision is indeed laudatory. However, when outlining the contours of indirect discrimination, the Court has identified ‘intention’ as an indicium that demarcates indirect from direct discrimination. In this note, I contend that the use of ‘intention’ as a differentiating point may have a curtailing effect on direct discrimination actions in the future. I argue that ‘intention’ ought not to be understood as a necessary component of direct discrimination in India for three reasons – first, it is not necessarily linked to the harms involved in discrimination; second, it adds to the evidentiary burden that a plaintiff needs to discharge, and third, it has been understood in an unduly narrow manner, at least in other jurisdictions. Therefore, I propose two alternate ways to understand and apply Nitisha in subsequent direct discrimination actions. The first is to hold that ‘intention’ is only a sufficient but not a necessary component of direct discrimination. The second is to construe ‘intention’ itself capaciously.

A thumb-rule for drafting any arbitration clause is to mention the seat of arbitration in the clearest fashion possible. When this thumb-rule is breached, the burden of determining or discerning a seat befalls an arbiter, be it a court or a tribunal. This paper aims to explain the ramifications of such an exercise by analysing English and Indian jurisprudence on the discernment of seat in such ‘seatless’ clauses. It demonstrates the internal conflicts within the decisions in each of these jurisdictions, attributing the conflicts in England to a ‘London bias’ and the conflicts in India to the perversity of the crude approaches taken by the Indian courts., The paper proposes a 10-part test that can function as a basic framework for the resolution of such conflicts in the future regarding discernment of ‘seat’. The paper also examines the utility of this test against the English and Indian judgments already discussed.

Every litigant who approaches the footsteps of the judiciary has the right to a free and fair trial. This right not only includes a just result but one achieved through fair means and by an impartial arbiter of law (commonly referred to as a ‘judge’). However, it is possible that doubts might arise against the possibility and potential of the judge being biased. Instead of engaging with these questions, the Indian courts have been defensive and have disregarded public confidence in the administration of justice. Moreover, the anomaly within the entire process of recusal is that the alleged judge reserves the final authority in deciding the matter of his disqualification. In the name of judicial accountability, the judges have adopted the ‘real danger’ test, which only allows the judges to recuse themselves on limited grounds. This paper attempts to critique the current position and highlights the need of importing the ‘reasonable suspicion’ test in our jurisprudence, which mandates judicial disqualification on the apprehension of bias. In the past, Indian courts have conveniently reasoned the adoption of the real danger test looking at the United States position and ignored the presence of the ‘reasonable suspicion’ test followed in other common law countries such as the United Kingdom, Canada, Australia and South Africa. However, with several changes in the jurisprudence surrounding the issue in these countries, we attempt to provide a comparative framework between the models posited by all the above countries. In light of the aforementioned developments, this paper argues for the evolution and the inculcation of the ‘reasonable suspicion’ doctrine.

The Central Government in the year 2020 initially refused states a recompense for both actual and notional losses in their GST revenues for the FY 2020-21. While the discombobulated state governments scrambled to find legal and fiduciary justification for their demands, the Centre simply cited situational expediency and the absence of any obligations, for their denial. It suggested two alternatives to the states, both of which evolved borrowing, as the only mechanisms for compensation. However, as the GST Council meetings and the 101^st Constitutional Amendment Act would collectively reveal, the Centre had promised to the contrary. The obligation of maintaining a constant supply of compensation-credit to states emanates from that promise and is all the more binding, given the huge sacrifice made by the states. The historically unique creation of legislative tax-fields outside of Schedule VII of the Indian Constitution and the overwhelmingly dominant role of the Centre in administering them, were both premised on this future consideration to the states. Herein, the proviso to Article 368(2) has the same outcome as its laterally inverted version, Article 252, insofar as it crafts a contract between two vertical government branches operating in a ‘federal market’. This, then, adumbrates the foundation of what presently prevails in American Constitutional jurisprudence as the ‘anti-coercion’ principle. This paper argues that the Indian Constitution has encapsulated this principle inceptively. GST compensation then becomes a contractual obligation at a Constitutional level, eliminating any legal space of revocability otherwise available to the Centre.

The Competition Act, 2002, regulates combinations that have an appreciable adverse effect on competition in the relevant market. During a Corporate Insolvency Resolution Process, a combination may form part of a resolution plan. This article explores the interplay of the Competition Act, 2002, with the Insolvency and Bankruptcy Code, 2016, for the purpose of sending the notice of such a combination to the Competition Commission of India as well as for receiving its approval. It examines the theory and practice relating to the 2018 Amendment to the Insolvency and Bankruptcy Code, 2016, which fixes the stage for securing the approval of the Competition Commission of India. It also analyses committee reports, recent judicial decisions on the interpretation of the Amendment, as well as industry practices before and after the Amendment. The article further assesses the viability of the newly introduced ‘Green Channel’ for combination approvals in the context of insolvency resolution. It also investigates the overlap of the Insolvency and Bankruptcy Code, 2016, with the Companies Act, 2013, and its implications thereto. The article aims to ascertain the optimum mechanism for obtaining approvals from the Competition Commission of India, for such combinations arising out of a Corporate Insolvency Resolution Process.

The NUJS Law Review was pleased to host Amita Dhanda and Saurabh Bhattacharjee for a conversation on the pedagogy of Law and Poverty on September 12, 2020. The Indian Academy, like Academies elsewhere, provides a privileged position to research and writing. Despite its labour intensiveness and long-time impact on the polity, teaching continues to be seen as an also-ran. In an effort to break this silence and to foreground the research and reflection that goes into teaching, Amita Dhanda and Saurabh Bhattacharjee decided to have a conversation on the pedagogic dilemmas of teaching Law and Poverty, a course both of them have been teaching for more than a decade in their respective institutions. The NUJS Law Review Board hosted the event as well as took responsibility to transcribe, edit and correct their loud thinking. In this dialogue piece, they reflect on their approaches to teaching the subject and discuss the various questions which they have encountered therein.

Reasonable conditions under §3(5) of the Competition Act, 2002, exempt a person with a valid, registered intellectual property right (‘IPR’) from the application of Indian competition law. They provide a limited exemption, allowing an IPR holder to take steps that are reasonable and necessary for the protection of one’s rights. The position, though, on how the reasonability of such a condition is to be assessed, still remains unsettled. This leads to ambiguity for IPR holders involved in antitrust litigation. It also creates a direct conflict between the objectives of competition law and intellectual property. We highlight the need for determining the extent of reasonability, undertaking an analysis of the trend of interpretations in this regard. In contrast to some sections of opinion and cross-jurisdictional analysis, we propose a development-oriented approach to ensure pro-competitive usage of IPRs.