Pub Date : 2022-09-02DOI: 10.1080/24730580.2022.2122253
Karan Gulati, R. Sane
ABSTRACT This paper studies how courts in India have dealt with consumer disputes in the financial sector. It reviews the most cited cases to study the position that courts have taken in banking and insurance disputes. For the cases studied, it finds that courts have generally granted relief to consumers in banking disputes. In the case of insurance cases, courts have emphasized contractual compliance. This is so even when the contracts themselves were opaque or had unfair terms. The paper also finds that courts award low compensation and take a long time for adjudication. These issues are compounded by the shortcomings in the framework of courts – they tend to award low compensation in banking and insurance cases, take a long time for adjudication, do not have systems for class action suits, and lack specialization to deal with consumer disputes in the financial sector.
{"title":"Consumer Disputes in the Financial Sector - Grievance Redress by Courts","authors":"Karan Gulati, R. Sane","doi":"10.1080/24730580.2022.2122253","DOIUrl":"https://doi.org/10.1080/24730580.2022.2122253","url":null,"abstract":"ABSTRACT This paper studies how courts in India have dealt with consumer disputes in the financial sector. It reviews the most cited cases to study the position that courts have taken in banking and insurance disputes. For the cases studied, it finds that courts have generally granted relief to consumers in banking disputes. In the case of insurance cases, courts have emphasized contractual compliance. This is so even when the contracts themselves were opaque or had unfair terms. The paper also finds that courts award low compensation and take a long time for adjudication. These issues are compounded by the shortcomings in the framework of courts – they tend to award low compensation in banking and insurance cases, take a long time for adjudication, do not have systems for class action suits, and lack specialization to deal with consumer disputes in the financial sector.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78839261","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-10DOI: 10.1080/24730580.2022.2085463
Maryam S Khan, Cynthia Farid
ABSTRACT Constitutional Foundings in South Asia is as important an addition to understanding constitutionalism in South Asia as it is a work of wider interest to scholars of comparative constitutional law everywhere, featuring all the eight countries of SAARC in one impressive volume for the first time. In this review, we critically explore the two larger premises of Constitutional Foundings: an inclusive-regional approach to comparative constitutionalism, and a history-centred method for theory-building on constitution-making and its aftereffects. We argue that if we are to truly look beyond western liberal constitutionalism for contextualizing constitution-making, we need to move in the direction of embedding the field as much as possible within the existing political history debates on South Asia. We accordingly suggest ways for bridging the gaps between case study, history and comparative theory in the context of constitutionalism in South Asia.
{"title":"Constitutional foundings in South Asia, edited by Kevin YL Tan and Ridwanul Hoque, Hart Publishing, 2021 Oxford GBP 58.50. Hardback","authors":"Maryam S Khan, Cynthia Farid","doi":"10.1080/24730580.2022.2085463","DOIUrl":"https://doi.org/10.1080/24730580.2022.2085463","url":null,"abstract":"ABSTRACT Constitutional Foundings in South Asia is as important an addition to understanding constitutionalism in South Asia as it is a work of wider interest to scholars of comparative constitutional law everywhere, featuring all the eight countries of SAARC in one impressive volume for the first time. In this review, we critically explore the two larger premises of Constitutional Foundings: an inclusive-regional approach to comparative constitutionalism, and a history-centred method for theory-building on constitution-making and its aftereffects. We argue that if we are to truly look beyond western liberal constitutionalism for contextualizing constitution-making, we need to move in the direction of embedding the field as much as possible within the existing political history debates on South Asia. We accordingly suggest ways for bridging the gaps between case study, history and comparative theory in the context of constitutionalism in South Asia.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79531082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-29DOI: 10.1080/24730580.2022.2082100
M. Ahmad
ABSTRACT The ship recycling industry has grown over the years, and it has become a major source of revenue for some developing states. Grave occupational and environmental problems have been associated with the industry during its growth in such countries. Due to growing occupational and environmental concerns, the International Maritime Organization adopted the Hong Kong Convention for the Safe and Environmentally Sound Recycling of Ship in 2009. This paper examines the existing shipbreaking regime in India, to determine, if the Recycling Act, 2019 contributes anything new to the existing framework, in terms of environmental protection. Even though the Act is a positive step towards making the ship recycling industry greener in India, a lot depends on the regulation and rules that may be developed to complement the Act. Therefore, its long-term benefits to the environment will have to be revisited.
{"title":"Ship recycling in India- environmental stock taking","authors":"M. Ahmad","doi":"10.1080/24730580.2022.2082100","DOIUrl":"https://doi.org/10.1080/24730580.2022.2082100","url":null,"abstract":"ABSTRACT The ship recycling industry has grown over the years, and it has become a major source of revenue for some developing states. Grave occupational and environmental problems have been associated with the industry during its growth in such countries. Due to growing occupational and environmental concerns, the International Maritime Organization adopted the Hong Kong Convention for the Safe and Environmentally Sound Recycling of Ship in 2009. This paper examines the existing shipbreaking regime in India, to determine, if the Recycling Act, 2019 contributes anything new to the existing framework, in terms of environmental protection. Even though the Act is a positive step towards making the ship recycling industry greener in India, a lot depends on the regulation and rules that may be developed to complement the Act. Therefore, its long-term benefits to the environment will have to be revisited.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91388106","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-10DOI: 10.1080/24730580.2022.2074708
Diksha Sanyal, Arijeet Ghosh
ABSTRACT This article critiques the centrality of heteronormative sex and “functional” bodies within marriage by analysing provisions on non-consummation andfault-based grounds of divorce, in codified personal laws. Such provisions, arguably, allows judges to construct marriage as an institution entrenched in heterosexual performatives. When heterosexual intercourse is construed as an obligation it leads to three problems. First, courts use such provisions to direct parties to undergo humiliating gender and impotency tests Second, it blurs the distinction between marital rape and marital sexuality. Finally, such provisions present a challenge to the recognition of non-normative,marriages as well, if they come to be recognized in India. Given this, we argue for de-essentialising of sex within marriage through the removal of consummation as a ground of annulment and more broadly, for the introduction of a no-fault regime of divorce. Reliance is placed on recent developments in the arena of privacy jurisprudence in India.
{"title":"Abolishing consummation: the need to de-essentialise sex within marriage","authors":"Diksha Sanyal, Arijeet Ghosh","doi":"10.1080/24730580.2022.2074708","DOIUrl":"https://doi.org/10.1080/24730580.2022.2074708","url":null,"abstract":"ABSTRACT This article critiques the centrality of heteronormative sex and “functional” bodies within marriage by analysing provisions on non-consummation andfault-based grounds of divorce, in codified personal laws. Such provisions, arguably, allows judges to construct marriage as an institution entrenched in heterosexual performatives. When heterosexual intercourse is construed as an obligation it leads to three problems. First, courts use such provisions to direct parties to undergo humiliating gender and impotency tests Second, it blurs the distinction between marital rape and marital sexuality. Finally, such provisions present a challenge to the recognition of non-normative,marriages as well, if they come to be recognized in India. Given this, we argue for de-essentialising of sex within marriage through the removal of consummation as a ground of annulment and more broadly, for the introduction of a no-fault regime of divorce. Reliance is placed on recent developments in the arena of privacy jurisprudence in India.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82920016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-24DOI: 10.1080/24730580.2022.2068887
Shivaraj S. Huchhanavar
ABSTRACT In India, judicial discipline is exclusively enforced by the judiciary through in-house mechanisms, except for the constitutional removal procedure. The founding justification for in-house mechanisms is that they are indispensable to uphold judicial independence. In this milieu, the paper attempts to answer the following question: do in-house mechanisms in India uphold judicial independence and effectively enforce judicial conduct? The study, by analysing quantitative and qualitative data from 110 subject experts (judges, lawyers, and academics), offers an initial assessment of the implications of in-house mechanisms on judicial independence and judicial conduct regulation in India. The study lays special emphasis on the efficacy of in-house mechanisms in upholding “individual” and “internal” judicial independence. It also assesses the effectiveness of in-house mechanisms in enforcing judicial conduct. It concludes that in-house mechanisms, for both higher and subordinate judiciary, undermine individual and internal judicial independence. They are also ineffective in enforcing judicial conduct.
{"title":"Judicial conduct regulation: do in-house mechanisms in India uphold judicial Independence and effectively enforce judicial accountability?","authors":"Shivaraj S. Huchhanavar","doi":"10.1080/24730580.2022.2068887","DOIUrl":"https://doi.org/10.1080/24730580.2022.2068887","url":null,"abstract":"ABSTRACT In India, judicial discipline is exclusively enforced by the judiciary through in-house mechanisms, except for the constitutional removal procedure. The founding justification for in-house mechanisms is that they are indispensable to uphold judicial independence. In this milieu, the paper attempts to answer the following question: do in-house mechanisms in India uphold judicial independence and effectively enforce judicial conduct? The study, by analysing quantitative and qualitative data from 110 subject experts (judges, lawyers, and academics), offers an initial assessment of the implications of in-house mechanisms on judicial independence and judicial conduct regulation in India. The study lays special emphasis on the efficacy of in-house mechanisms in upholding “individual” and “internal” judicial independence. It also assesses the effectiveness of in-house mechanisms in enforcing judicial conduct. It concludes that in-house mechanisms, for both higher and subordinate judiciary, undermine individual and internal judicial independence. They are also ineffective in enforcing judicial conduct.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73654709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-28DOI: 10.1080/24730580.2022.2057107
Sanjayan Rajasingham
ABSTRACT If a constitution with a federal label is politically impossible in Sri Lanka, might an innominate constitution be the next-best alternative? This article draws on comparative experience in India, South Africa and Spain to argue in favour of an innominate constitution for Sri Lanka. The experience of these states suggests pathways that can both federalize an innominate constitution and build the constitutional culture necessary for a future, explicitly federal, Sri Lankan constitution.
{"title":"Innominate constitutions and power-sharing in Sri Lanka","authors":"Sanjayan Rajasingham","doi":"10.1080/24730580.2022.2057107","DOIUrl":"https://doi.org/10.1080/24730580.2022.2057107","url":null,"abstract":"ABSTRACT If a constitution with a federal label is politically impossible in Sri Lanka, might an innominate constitution be the next-best alternative? This article draws on comparative experience in India, South Africa and Spain to argue in favour of an innominate constitution for Sri Lanka. The experience of these states suggests pathways that can both federalize an innominate constitution and build the constitutional culture necessary for a future, explicitly federal, Sri Lankan constitution.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86451748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-02DOI: 10.1080/24730580.2022.2039489
R. Rao
ABSTRACT The book under review argues that Indian secularism does not and cannot work without the assistance of non-state Islamic legal actors. It contends that this dependence engenders an ambivalent politics of need and antipathy on the part of Indian secularism vis-à-vis Muslims. This review article summarises the book’s key claims. It then explores what it means for gender to be a central terrain on which the authority of non-state Islamic legal institutions is asserted and contested. The article takes issue with the book’s suggestion that the Supreme Court has distanced itself from the non-state Islamic arena in some ways, finding more illuminating its demonstration of the many ways in which the secular state remains dependent on and entangled with the Islamic non-state. In conclusion, it speculates on the differences and overlaps between secular judicial antipathy towards Muslims and the more overt expressions of such hatred emanating from the Hindu Right.
{"title":"A Secular Need: Islamic Law and State Governance in Contemporary India","authors":"R. Rao","doi":"10.1080/24730580.2022.2039489","DOIUrl":"https://doi.org/10.1080/24730580.2022.2039489","url":null,"abstract":"ABSTRACT The book under review argues that Indian secularism does not and cannot work without the assistance of non-state Islamic legal actors. It contends that this dependence engenders an ambivalent politics of need and antipathy on the part of Indian secularism vis-à-vis Muslims. This review article summarises the book’s key claims. It then explores what it means for gender to be a central terrain on which the authority of non-state Islamic legal institutions is asserted and contested. The article takes issue with the book’s suggestion that the Supreme Court has distanced itself from the non-state Islamic arena in some ways, finding more illuminating its demonstration of the many ways in which the secular state remains dependent on and entangled with the Islamic non-state. In conclusion, it speculates on the differences and overlaps between secular judicial antipathy towards Muslims and the more overt expressions of such hatred emanating from the Hindu Right.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85570290","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-02-17DOI: 10.1080/24730580.2022.2029018
Anup Surendranath, G. Andrew
ABSTRACT While the crisis in India’s legal aid system is well documented, the extent of utilization of legal aid lawyers for representation in court has received little attention. In this article, based on existing public data, we seek to demonstrate the extent of underutilization of legal aid services among prisoners nationally. The data reveals that over a period of 4 years, between 2016 and 2019, only 7.91% of the undertrials admitted into prisons utilized the legal aid services they were entitled to. This phenomenon of underutilization raises uncomfortable questions about the performance of India’s legal aid system, particularly in the context of socio-economic vulnerability of prisoners. However, the limitations of the data mean that it is not possible to determine the reasons for such underutilization – whether underutilization is being driven by lack of awareness of legal aid or by socio-economically vulnerable undertrial prisoners choosing other options despite being aware of free legal aid.
{"title":"State legal aid and undertrials: are there no takers?","authors":"Anup Surendranath, G. Andrew","doi":"10.1080/24730580.2022.2029018","DOIUrl":"https://doi.org/10.1080/24730580.2022.2029018","url":null,"abstract":"ABSTRACT While the crisis in India’s legal aid system is well documented, the extent of utilization of legal aid lawyers for representation in court has received little attention. In this article, based on existing public data, we seek to demonstrate the extent of underutilization of legal aid services among prisoners nationally. The data reveals that over a period of 4 years, between 2016 and 2019, only 7.91% of the undertrials admitted into prisons utilized the legal aid services they were entitled to. This phenomenon of underutilization raises uncomfortable questions about the performance of India’s legal aid system, particularly in the context of socio-economic vulnerability of prisoners. However, the limitations of the data mean that it is not possible to determine the reasons for such underutilization – whether underutilization is being driven by lack of awareness of legal aid or by socio-economically vulnerable undertrial prisoners choosing other options despite being aware of free legal aid.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85118593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-22DOI: 10.1080/24730580.2021.1998754
Anupama Kumar
ABSTRACT This paper examines Centrally Sponsored Schemes (CSS) as a means of Union-State fiscal transfers in light of Article 282 of the Constitution. CSS are programmes designed and funded by the Union government on subjects in the State and Concurrent Lists, to be implemented by various State governments. In this paper, I argue that CSS permit the Union to exercise a high degree of control over the use of finances by the States. In effect, therefore, the Union’s spending power to frame CSS can intrude on States’ powers to frame and execute programmes on subjects that ought properly to be in their exclusive competence. I argue that even though CSS are constitutional under Article 282, they nevertheless have important practical consequences for Indian federalism
{"title":"The limits of constitutionality? Centrally Sponsored Schemes in law and policy","authors":"Anupama Kumar","doi":"10.1080/24730580.2021.1998754","DOIUrl":"https://doi.org/10.1080/24730580.2021.1998754","url":null,"abstract":"ABSTRACT This paper examines Centrally Sponsored Schemes (CSS) as a means of Union-State fiscal transfers in light of Article 282 of the Constitution. CSS are programmes designed and funded by the Union government on subjects in the State and Concurrent Lists, to be implemented by various State governments. In this paper, I argue that CSS permit the Union to exercise a high degree of control over the use of finances by the States. In effect, therefore, the Union’s spending power to frame CSS can intrude on States’ powers to frame and execute programmes on subjects that ought properly to be in their exclusive competence. I argue that even though CSS are constitutional under Article 282, they nevertheless have important practical consequences for Indian federalism","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83693016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-15DOI: 10.1080/24730580.2021.1996078
J. Redding, Rachel S. Taylor, S. Thomas
In July 2019, select family law scholars from around India and the world gathered at the National Law School of India University (NLSIU) in Bengaluru, India to participate in a conference on “New Directions, New Voices in Family Law in India” jointly sponsored by NLSIU, the University of Oxford – Faculty of Law, and Melbourne Law School. The papers and presenters were diverse and the conference conversations were enthusiastic. As a result of this conference, four quite different but interlinked papers were eventually selected for inclusion in this special issue of the Indian Law Review. These papers bring much needed attention to neglected aspects of a wide range of contemporary Indian family law issues and move us beyond seeing Indian family law as necessarily about the constitutional dimensions of personal law and the nationalistic directions that these constitutional discussions have often taken. The following four papers are to be commended for the nuance and sensitivity each brings to complicated legal and social issues relating to family.
{"title":"Introduction: new directions, new voices in family law in India","authors":"J. Redding, Rachel S. Taylor, S. Thomas","doi":"10.1080/24730580.2021.1996078","DOIUrl":"https://doi.org/10.1080/24730580.2021.1996078","url":null,"abstract":"In July 2019, select family law scholars from around India and the world gathered at the National Law School of India University (NLSIU) in Bengaluru, India to participate in a conference on “New Directions, New Voices in Family Law in India” jointly sponsored by NLSIU, the University of Oxford – Faculty of Law, and Melbourne Law School. The papers and presenters were diverse and the conference conversations were enthusiastic. As a result of this conference, four quite different but interlinked papers were eventually selected for inclusion in this special issue of the Indian Law Review. These papers bring much needed attention to neglected aspects of a wide range of contemporary Indian family law issues and move us beyond seeing Indian family law as necessarily about the constitutional dimensions of personal law and the nationalistic directions that these constitutional discussions have often taken. The following four papers are to be commended for the nuance and sensitivity each brings to complicated legal and social issues relating to family.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85582764","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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