Monday, April 19, 2021

Calcutta and the ‘Real’ Last Jury Trial in India

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In NLSIR Online’s latest piece, Professor James Jaffe sheds light on the ‘real’ last jury trial in India, which he argues came thirteen years after Commander K. M. Nanavati’s murder trial in September 1959. He states that film, television, and the print media has retained for Bombay’s Nanavati trial, a unique but unwarranted position in legal, historical, and popular lore. Professor Jaffe traces the “real” last jury trial in India to the less glamorous and more dangerous streets of Calcutta to the case of communist activists Prakash Chandra De and his brother Rabindranath, who were tried for the murder of Dipak Sarkar in 1967.

ARCs cannot be Resolution Applicants under IBC — Says Who?

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The author argues that ‘ARCs can be resolution applicants within both IBC and SARFAESI frameworks, provided they act within their permitted realm of activities’. In doing so, the piece examines the merits of RBI’s objection by analysing the position of ARCs as resolution applicants under the IBC and SARFAESI framework and concludes that the public discourse is heading in the wrong direction. The question, she says, is not whether an ARC can submit a resolution plan, but what restructuring measures can be resorted to in an ARC’s resolution plan?

Anti-Conversion Laws: Lessons From Pakistan

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The relatively older anti-conversion laws have broadly defined forced conversion as conversion through inducement, force, or other fraudulent means. However, the recent anti-conversion laws enacted by the States of Uttar Pradesh, Madhya Pradesh, Himachal Pradesh, and Uttarakhand also include conversion before and after marriage under the ambit of forced conversion.

Legal Frameworks And Their Impact On Housing Affordability

This piece argues that the problem of affordable housing in major Indian cities is a function of the legal restrictions on the use of land. Regulatory restrictions inhibit the appropriate use of land for housing in metropolitan cities in India. We argue that in order to increase the affordability of housing in metropolitan cities in India, such restrictions need to be significantly liberalised through appropriate legal modifications.

Introductory Note: Jumpstarting the Study of Constitutional Amendment

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At their core, amendment rules reflect both faith and distrust in political actors: they authorize alterations to the constitution, though they limit how and when constitutional modifications are permissible. Given the many functions served by these essential rules of amendment, we would expect constitutions to entrench them, and indeed almost all of them do.

A Research Agenda For The Future Of Constitutional Amendment

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How should constitutional designers build the rules of constitutional amendment? Surprisingly and unfortunately, scholars have offered few answers to this all-important question. Constitutional designers are instead left with few resources to which they can turn for guidance in constructing the procedures of constitutional change. My recent book on Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019) is an effort to help.

A Roadmap for Constitutional Amendment – Reviewing Constitutional Amendments: Making, Breaking and Changing Constitutions by Richard Albert

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Many countries in the modern world face constitutional changes. Sometimes these changes are related to the formation of a new political system, the transformation of a democracy, or changes in consolidated democracies. Constitutional amendments are a very complex issue, and many important circumstances need to be taken into account in their implementation. Richard Albert's book is the latest brilliant and complex study that shows countries the way in which constitutional amendments should be drafted, adopted, implemented, and under what conditions this process should be based.

Mapping Constitutional Dismemberment: Reviewing Constitutional Amendments: Making, Breaking and Changing Constitutions

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By mapping out the intellectual scenery of constitutional amendment rules, Constitutional Amendments: Making, Breaking, and Changing Constitutions offers a remarkable theoretical, doctrinal, and comparative study of the most pressing questions on constitutional change.

Digital Transformation of Constitutions – Reviewing Constitutional Amendments: Making, Breaking and Changing Constitutions by Richard Albert

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The book by Richard Albert on Constitutional Amendments: Making, Breaking and Changing Constitutions is an outstanding achievement, which should not come as a surprise. Albert is one of the most imaginative and prolific authors writing on constitutional change, and his new book does not disappoint. In Constitutional Amendments, Albert comprehensively examines the design of formal amendment rules, informal change, constitutional unamendability, and more.

Constitutional Amendments: Making, Breaking and Changing Constitutions – A Review

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What is the most important part of a constitution? In the introductory chapter of his book ‘Constitutional Amendments: Making, Breaking, and Changing Constitutions’, Richard Albert provides an unlikely response: amendment procedures. The remainder of the book offers a compelling defense for this position and makes a case for placing the often-forgotten subject of constitutional amendment at the center of the modern study of constitutional change.

CHANGING THE CONSTITUTION Interpreting The Book Constitutional Amendments: Making, Breaking, and Changing Constitutions, by Richard Albert.

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Constitutional change is not a totally discretionary derived constituent power (a power generally held by the legislature and, when called upon to elect representatives, by the citizenry); it is an activity carried out following specified procedures while preserving consistency with respect to delineations set out as fundamental constitutional principles by the originating holder of constituent power.

NLSIR Online Book Symposium 2021: Introduction

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The National Law School of India Review is proud to announce NLSIR Online’s first Book Symposium. In a series of NLSIR Online posts over the upcoming weeks, constitutional law experts from across the globe will engage with Professor Richard Albert’s (William Stamps Farish Professor in Law, Professor of Government, and Director of Constitutional Studies - University of Texas) latest book, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press 2019), through book reviews.

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

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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

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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

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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

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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

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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

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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?

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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.

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). [...]

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

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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, [...]

Reorganisation of Special Courts under the Maharashtra Control of Organised Crime Act – A Step Forward

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This article evaluates the Government of Maharashtra’s initiative of state-wise decentralisation of the MCOCA Special Courts. To substantiate the argument, I analyse the judicial business of the MCOCA Special court, Pune, which caters to five districts of Western Maharashtra, namely, Sangli, Kolhapur, Satara, Pune and Solapur [...]

The Jammu and Kashmir Public Safety Act: Looking into the Failure of Human Rights Challenges Against the Law

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Farooq and Omar Abdullah, Mehbooba Mufti, and Shah Faesal are some of the well-known names who have been detained by the state, time and again, under the Jammu and Kashmir Public Safety Act (‘PSA’). Even though these people too have faced a harrowing experience, they have still been fortunate enough to get the media attention, the resources, as well as the support to legally challenge their detentions.

Treading the Line Between Arbitrability and Serious Fraud: An Analysis of Avitel Post Studioz Ltd. v. HSBC PI Holdings (Mauritius) Ltd.

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The judgment in Avitel Post Studioz Ltd.v. HSBC PI Holdings (Mauritius) Ltd.is the latest in a series of judgments delivered by the Supreme Court of India in recent years engaging with the question of arbitrability of fraud. This article discusses the thematization of the arbitrability of fraud by the Supreme Court in this judgment, analyzing its contribution to the jurisprudence on the topic.

Trading in Guilt: Unreliability and Institutional Abuse of Sec. 30, Indian Evidence Act

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In India, the confession of a co-accused has been provided in Section 30 of the Indian Evidence Act. Section 30 provides that courts may consider the confession of a co-accused against the accused if the confession affects both of them when they are tried jointly. However, such confession may only be used as an additional support [...]

Bright-Lines, Blurred-Lines, and Between-the-Lines: Interpretative Dogmas in Service Law

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In practice, not all Service Rules are read alike. Intertwined with political considerations, these Rules raise several jurisprudential difficulties of interpretational consistency, jurisdictional competence, and realpolitik effect. While some Rules are proclaimed as absolute, others are spoken with negotiability; and on rarer occasions, there are whispers of surreptitiousness. The question that arises is whether there exists a uniform judicial approach in Service Law interpretation

Structural Interpretations in Article 25 – Clarifying the Meaning of ‘Freedom’

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what is the extent of freedom that is guaranteed under A. 25 (‘the question’)? Prima facie, it may seem as if the answer to this question is very easy. I argue that the opening words of Art. 25 ‘subject to’ can indeed be given differing interpretations, and that the SC has adopted a certain approach implicitly (in that it does not form a part of the court’s analysis explicitly) in Sabarimala. I will clarify the exact meaning (and implications) of the question posed above [...]

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,

Who Killed Berta Cáceres? Dams, Death Squads, and an Indigenous Leaders’ Battle for the Planet by Nina Lakhani: A Review

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Nina Lakhani in this riveting book stitches together a textured narrative of Honduras, a country whose political economy thrives on extraction, its hostility towards environmental defenders, and the heavily militarised security forces that guard these development projects[..]

‘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 [...]

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”)

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.