Saturday, January 16, 2021

LATEST PRINT

Kahler v. Kansas: Insanity and the Historical Understanding of Mens Rea

The decision in the recent case of Kahler v. Kansas before the SCOTUS involves important issues in criminal jurisprudence. In this paper, an attempt has been made to trace the nuances of the different forms of defence the insanity plea can take and the practical implications of the same against the background of the Kahler [...]

The Enduring Gaps and Errors in Capital Sentencing in India

In the forty years since Bachan Singh upheld the constitutional validity of the death penalty in May 1980, there have been numerous concerns about the fate of the death penalty sentencing framework laid down by the majority. Inconsistent application, interpretational errors, and judge-centric decision making have dominated these concerns [...]

How Stereotypes about Indians are used to promote Abortion Restrictions in the United States?

Many state legislatures in the United States have passed restrictions on abortion for purposes of selecting the sex of the child. Advocates for these bans are using the widespread crises of sex-selective abortion in India to push for the prohibitions in the U.S. They argue that immigrants from India abort female fetuses [...]

Crimes by Children in Conflict with the Law – Heinousness, Acceptability, and Age of Adulthood: A Comprehensive Critique of the Present Juvenile Justice System

The underlying nature of the Juvenile Justice system has undergone a substantial change with the adoption of the Juvenile Justice (Care and Protection of Children) Act, 2015. The new Act has widespread implications on the manner in which children in conflict with the law are understood and treated [...]

Admissibility and Proof of RTI Documents under the Indian Evidence Act

The Right to Information Act, 2005 (‘RTI Act’) is frequently used in civil and criminal litigation to obtain government documents. However, the RTI Act is silent about the admissibility and proof of such documents in a trial. High Courts across the country have interpreted the Indian Evidence Act, 1872 and handed down conflicting decisions in this regard [...]

An Empirical Assessment of the Collegium’s Impact on Composition of the Indian Supreme Court

With an analysis of data spanning over seventy-two years, we have highlighted how the collegium has altered the composition of the Supreme Court. While the regional diversity of the court has improved in a relative sense, professional diversity in the court has deteriorated alarmingly [...]

The General Executive Power of the Union of India and the Commonwealth of Australia: A Comparative Analysis

The substantive content and ambit of the general executive power of “the Union” of India and of “the Commonwealth” of Australia, provided for in Article 53 and section 61 respectively of their constitutions, is a most significant issue confronting constitutional law in both India and Australia. Reference is made to “general” executive [...]

Carbon Tax as Discrimination: Revisiting the Legal Standard of National Treatment in WTO Law

This paper explores the possibility of an alternative take on the current understanding of the GATT national treatment obligation, especially in the assessment of the possible discriminatory impact of a carbon tax [...]

Insider Trading: Circumstantial Evidence is Evidence Enough?

The Securities and Exchange Board of India (‘SEBI’) is under constant pressure to secure the integrity of the securities market while also ensuring that development of the securities market is not deterred by its overreach [...]

LATEST ONLINE

Confidentiality Clubs: Has The Delhi High Court Gone Too Far?

The recent judgement of the Delhi High Court in Interdigital Technology v. Xiaomi Corporationon the structure of ‘Confidentiality Clubs’ to ensure confidentiality of sensitive information/documents in litigation, has far-reaching implications. The Court rejected a prayer that suggested the preclusion of a Party’s in-house representative/employee (other than the advocate or independent expert) from access to the ‘Confidentiality Club’. This was a patent infringement case involving Standard Essential Patents (‘SEPs’) that cover technologies which are essential for devices to be standard-compliant.

Restricting Free Speech through Bail Orders

While government measures against free speech have some global history, a new phenomenon that has emerged is the attack by the judiciary on free speech. In this vein, Indian courts have started to impose speech restrictions as conditions of bail. In this post, I argue that the approach of restraining speech through bail orders is legally and politically problematic.

Combat Roles for Women in India’s Armed Forces – Constitutionality of the Prohibition

In 2019, the Supreme Court of India (‘the Court’) delivered seminal judgments with regard to the role of women in the armed forces. In two landmark rulings, The Secretary, Ministry ofDefencev. Babita Puniya, (‘Babita Puniya’) and Union of Indiav. Lt. Cdr. Annie Nagaraja, (‘Annie Nagaraja’), the Court struck down the discriminatory policy of not allowing permanent commission for women in the Army and Navy. This article argues that the recent judgments in Babita Puniyaand Annie Nagaraja only scratch the proverbial patriarchal surface of institutional roadblocks that the Constitution still preserves.

Kashmir and Transgender Rights

On August 5, 2019, India’s lower house of parliament, the Lok Sabha, passed the Transgender Persons (Protection of Rights) Bill of 2019 after little substantive debate. On the very same day, India’s president took steps to abrogate the erstwhile State of Jammu & Kashmir’s territorial integrity and autonomy. As I explain in this brief blog post, these two developments are not just temporally but substantively linked too.

Heathrow Runway and Mopa: The Limits of the Law’s Role in Environmental Impact Management

The way in which the law manages the environmental impact of major infrastructure projects is different in different jurisdictions. Despite the differences in legal culture, the following analysis of the two cases will be used to reflect on a single lesson about the limitations of the law’s role in managing the environmental impacts of major infrastructure projects.

The Problem with India’s Living Constitution

The Supreme Court of India has repeatedly held that our Constitution is a ‘living document’ which evolves according to the changing times. How does this evolution take place? Does this evolution mean a change in the text of the Constitution? Or does it mean a change in the way we understand the text of the Constitution?

Crisis Cartels During the Pandemic: A Beacon of Hope for the Indian Economy?

The COVID-19 pandemic has wreaked havoc on the global economy, thereby bringing various antitrust issues to light. One such issue pertains to whether competition authorities should consider allowing crisis cartels to function. I argue that an exemption for restructuring cartels is necessary to deal with the current economic crisis, specifically the problem of overcapacity. I substantiate my argument with examples of Indian industries that are currently plagued by overcapacity.

Indus Biotech v. Kotak: Interactions Between Insolvency and Arbitration Regimes In India

Across several jurisdictions, there is an ongoing discussion regarding the intersection and interaction between insolvency and arbitration laws. In the Indian context, recently, the National Company Law Tribunal (‘the NCLT’), Mumbai Bench, delivered an intriguing and pioneering judgement in Indus Biotech v.Kotak India.

Searching for the Goal of the Indian Competition Act, 2002

The overriding goal of Indian competition law is enhancement of end-consumer welfare. It is this that must consistently determine appreciable adverse effect on competition [‘AAEC’] and dominance analysis, in CCI decisional practice. To make this argument, I examine various aspects of the Act, concerning predatory pricing, monopsony power, mergers, [...]