Tuesday, August 11, 2020

‘Make in India’ or Suffer A Compulsory License: An Illegal Deterrent?

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Compulsory Licensing is a mechanism through which the State can force a patent-holder to grant a license for exploitation to a firm subject to certain conditions set by law. Article 31 of the Agreement on the TRIPs Agreement prescribes minimum conditions that must be incorporated by the Member States in their respective compulsory licensing legislations [...]

Towards An Anti-Zoo Jurisprudence (1/2)

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Part I of the article introduces the changing judicial landscape of animal rights. It analyses the negative impact of zoos on the physical and mental well-being of animals. [...]

Towards An Anti-Zoo Jurisprudence (2/2)

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Part II of the article critiques the traditional justifications for animal captivity in zoos. It further juxtaposes these justifications with an emerging anti-captivity jurisprudence. Section 38A of the Indian Wildlife (Protection) Act, 1972 provides for the establishment of the Central Zoo Authority (CZA). [...]

Judicial Interference and the IBC: The case of Embassy Property Developments

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While the law has been overhauled through the passage of the IBC, the trajectory of court interference is one that has to been seen in the coming few years. However, if the early signs are indicative of anything, it is that the judiciary has not learnt from the failure of the SICA regime – judicial interference continues unabated. [...]

Reconciling Reproductive Autonomy with the Public Interest Obligation of the State: A Look at the Prospect of a Two-Child Policy in India

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On March 14th, 2020, Dr. A.M Singhvi sought to introduce the Population Control Bill, 2020 in the Rajya Sabha. However, this is not the first time when a National Population Policy has been proposed for the Indian demographic setup[..]

Controlling India’s Population Explosion: The Constitutional Question

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Last year, in his address to the nation on Independence Day, the Prime Minister expressed concern over the prospect of a ‘population explosion’ in India, and went as far as to say that keeping small families was patriotic. There has since been a renewed[..]

For the Love of Food: The Role of Competition Law in the Indian Food Sector

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Hundreds of millions of Indians continue to have poor nutritional health despite the country being self-sufficient in a number of food crops. I argue that the shortcomings of the Indian food sector stem from limited ‘accessibility’ to food[..]

The Diluted Role of States in Teacher Education: An Analysis of the Conflicting Jurisprudence

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A decision of the Delhi High Court in Laxmi College of Education v. National Council for Teacher Education, has once again opened a pandora’s box with respect to the litigation surrounding regulation of teacher education institutions in the country.

Experiences with Pluralist Stakeholder Model in India: For Whom Should a Company be Run?

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This article seeks to trace the emergence and operation of a stakeholder model of corporate governance in India, that is sourced in directors’ fiduciary duties, Corporate Social Responsibility [‘CSR’], and the agency of Independent Directors [‘IDs’]

Need for a Separate Insolvency Regime for Banks in view of the Yes Bank Debacle in India

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The fiasco of financial service providers [“FSPs”], in particular, Infrastructure Leasing and Financial Services and Dewan Housing Finance Ltd., acted as a trigger for the government to bring these companies under the insolvency regime.

A Few Steps More: Supreme Court of India Further Evolves Its Jurisprudence on the Enforcement of Foreign Awards

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The Arbitration and Conciliation Act, 1996 (the ‘A&C Act’) places responsibility for enforcement of foreign awards on High Courts.[1] If a High Court decides to enforce a foreign award, then such decision is not subject to appeal,[..]

Analysis of Governor’s Powers under Paragraph 5(1), Schedule V of the Indian Constitution

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Schedule V and VI read with Article 244 of the Indian Constitution contain provisions for control and administration of Scheduled Tribes and Scheduled Areas. Paragraph 5(1) of Schedule V gives power to the Governor to apply with modification[..]

Article 17: Expanding Frontiers? (Part I)

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In Justice K.S. Puttuswamy (Retd.) v. Union of India and Ors., the oft-stated line that the Constitution ‘lives’ for its people was stressed upon (paragraph 31). The usage of the word ‘lives’ indicates that the reconceptualization of constitutional ideals in light of the ethos of each time period is the Constitutional function – essentially, it is a living and breathing document.

Article 17: Expanding Frontiers? (Part II)

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Notwithstanding the many feminist struggles that have embellished Indian history, many precepts of personal law in India are defined in terms of male prestige and preserving the status quo in tradition, which is a masculine construct in several ways.[1] Since male preferences govern institutional structures/working and constitutional interpretations, gender neutrality is a far cry.

TRF Ltd. & Perkins: Limiting ‘Freedom of Contract’ and the Choking of Party Autonomy

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In 2017, a three-judge bench of the Supreme Court of India in TRF Limited v. Energo Engineering Projects Limited (“TRF”) had the occasion to interpret the much-lauded Arbitration and Conciliation (Amendment) Act, 2015, incorporating the IBA Guidelines on Conflict of Interest into Schedule V and Schedule VII of the Arbitration and Conciliation Act, 1996 (“Act”)

Detain/Release: Teaching Law Students About AI Through Simulated Detention Hearings

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Today, law students cannot graduate with just an understanding of law and procedure. They need to leave university able to understand and vet how science and technology will affect their practice and clients. This is because technology systems are increasingly affecting legal systems in democracies around the globe: data informs litigation, probability ratios are admitted as evidence,

Territoriality, Tobacco, Trademarks, and the TRIPS Agreement

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Contemporary intellectual property rights can be described as ‘glocal’ rights i.e. they have the potential to have both global and local connections. For instance, it is not unusual to find instances where a multinational company owns a patent on the same invention in several countries or a trademark on the same product in several countries.

Rights to Mobility and Sustainable Urban Public Transportation in India

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This essay advocates for the recognition of legal rights to urban mobility and sustainable urban public transportation in India. Recognition of such mobility and transportation rights would guarantee rights-holders the ability to move through Indian cities (and access goods, services and opportunities) through transportation mechanisms and infrastructures that are affordable

Capital Structure of Indian Family-owned Companies: A Theoretical and Contemporary Perspective

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This article discusses the theoretical foundations of how family-owned companies procure finances and how they apply to Indian family-owned companies. Delving briefly into the macro picture of Indian family-owned companies, this article draws attention to the promoter-induced fraud-fraught Indian banking system.

Death Penalty: A Constitutional History Approach to the Debate

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The Union Cabinet amended the Protection of Children from Sexual Offences (POCSO) Act, 2012 which makes child rape an offence punishable by death. The Government had intended to pass this Bill earlier but it lapsed when the Parliament was dissolved in May.

Private Governments and the Indian Constitution – Rethinking ‘State’ under Article 12

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Constitutional rights have traditionally been applied vertically, acting as a citizen’s weapon against her State.[1] However, with the increased concentration of power in private hands and privatisation of hitherto State functions, there is a growing need for these rights to be applied horizontally, such that they also govern relationships between private citizens.

The Politics of the Voice Vote: Why the 2018 Trafficking Bill is cause for Worry – Part I/III

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The political economy of Indian criminal law is fast changing. Even as Section 377 of the IPC on sodomy and Section 497 on adultery have been read down to further the equality of LGBT persons and women, new forms of carcerality that threaten to marginalise the most vulnerable groups of society take shape.

The Politics of the Voice Vote: Why the 2018 Trafficking Bill is cause for Worry – Part II/III

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In this second part of the series on the Anti-Trafficking Bill, 2018, I shall deal exclusively with how the Bill departs from the core principles of Criminal Law and falls short of providing safeguards. The Bill introduces numerous other offences (Sections 33 to 45) and relies heavily on criminal law. However, it does so without many of the substantive and procedural safeguards that are integral to criminal law systems around the world,

The Politics of the Voice Vote: Why the 2018 Trafficking Bill is cause for Worry – Part III/III

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In this third, and final, part to the series on the Anti-Trafficking Bill, 2018, I address three concerns. The first, a critique of the ‘raid, rescue and rehabilitate’ model used by the Bill. The second, I discuss the ignorance of the Bill towards the rights of and impact on the victims of trafficking. Finally, I discuss the improper way in which the Bill was passed in the Lok Sabha.

Marriage, Morals, and the Constitution: Joseph Shine v. Union of India – Part I/II

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The judgment of the Supreme Court in Joseph Shine v. Union of India striking down Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure is monumental for reasons more than one. Rarely has the Court, in its institutional history, struck down a definitional provision of the Penal Code.

Marriage, Morals, and the Constitution: Joseph Shine v. Union of India – Part II/II

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An important argument of the Petitioner revolved around how the impugned provisions violated the fundamental right to privacy under Article 21 by interfering with the right to voluntary, consensual sexual intercourse between adults. This submission proceeded in three steps – first, the constitution guarantees a right to privacy

Article 22(3): A Constitutional Paradox?

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Of late, the transformative nature and potential of the Indian Constitution has been placed under the spotlight thanks to attention from both scholars and courts. The contours of this argument are contested, but according to most versions, the Constitution is an instrument designed to realise an India where the ideals of liberty, equality, and fraternity are fully expressed and protected against arbitrary deprivation.

GST – Levy of Compensation Cess & the Aspect Theory- Some Musings

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The introduction of the Goods and Services Tax (‘GST’) regime is a watershed event in the history of indirect taxation in India. This has been facilitated by many important changes in the Constitution of India. The power to levy GST flows directly from newly introduced Article 246A of the Constitution.

Tampon Tax Be Gone: What the US Can Learn from India’s #LahuKaLagaan Repeal (Part I/II)

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The United States has much to learn from India, including lessons about the relationship between taxation and gender equity. In June, 2018, India’s Goods and Services Tax (GST) Council agreed to eliminate the 12 percent tax imposed on menstrual hygiene products such as sanitary pads and tampons.

Tampon Tax Be Gone: What the US Can Learn from India’s #LahuKaLagaan Repeal (Part II/II)

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In this post, I will discuss how taxation of tampons may constitute gender discrimination and possibly amount to a human rights violation. I will also be discussing how disparate treatment in taxation is made visible in this situation and why choices made in taxation policy have significance outside of simple revenue collection

The Retroactive Effect of Statutory Amendments: Assessing The Impact of Recent Amendments to the Specific Relief Act, 1963

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A statute, unlike other forms of legal regulation, can be amended if the legislature is of the opinion that the statute is not serving its purpose. A statutory provision can be added to, subtracted from, substantially rewritten or even repealed. When a statute is amended, the law has to contend with pending litigation in courts that claim under the unamended statute.

Double Citizenship under Indian laws and Voting Rights for OCIs resident in India: A Constitutional Analysis

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In the late 1940s and 1950s, most of the world was just coming out of and recovering from the Second World War. Suspicions between nations ran high as the world eased into the Cold War, and nationalistic tensions, albeit dulled by the horrors and catastrophic consequences of the World War, still strongly influenced foreign policy.

Bail Decision Making in Karnataka’s Lower Criminal Courts: Why the Nature of the Offences Matters

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The rate of under-trial detention in India, at 67% of the total prison population (NCRB Prison Statistics, 2014-16), is a serious challenge to the effectiveness of the criminal justice system. Despite the regular intervention of the Supreme Court, most recently through In Re Inhuman Conditions in 1382 Prisons ((2016) 10 SCC 17)