Pub Date : 2021-11-10DOI: 10.1080/24730580.2021.1988241
Snehil Kunwar Singh, Harpreet Singh Gupta
ABSTRACT The freedom of speech and the right to information are crucial fundamental rights guaranteed by the Constitution of India. Various governments have committed to protecting these rights. However, most governments have acted in breach of this commitment by using vague laws for political reasons. Through this article, we look at one such law often used for political reasons to enforce broadcasting bans, namely the Cable Television Network (Regulations) Act, 1995. We argue that the legislative framework for broadcasting under the said Act is constitutionally suspect. The problems that make this framework constitutionally suspect are: procedural and substantive unreasonableness, lack of uniform enforcement and absence of an effective statutory remedy. After identifying the defects in this law, we develop a normative constitutionally compliant framework for the regulation of broadcasters. Among other things, we recommend: clearly defining the contours of grounds for imposing broadcasting bans and separating the “investigating” and “adjudicatory” functions.
{"title":"Telecast bans of television news in India: issues and reform","authors":"Snehil Kunwar Singh, Harpreet Singh Gupta","doi":"10.1080/24730580.2021.1988241","DOIUrl":"https://doi.org/10.1080/24730580.2021.1988241","url":null,"abstract":"ABSTRACT The freedom of speech and the right to information are crucial fundamental rights guaranteed by the Constitution of India. Various governments have committed to protecting these rights. However, most governments have acted in breach of this commitment by using vague laws for political reasons. Through this article, we look at one such law often used for political reasons to enforce broadcasting bans, namely the Cable Television Network (Regulations) Act, 1995. We argue that the legislative framework for broadcasting under the said Act is constitutionally suspect. The problems that make this framework constitutionally suspect are: procedural and substantive unreasonableness, lack of uniform enforcement and absence of an effective statutory remedy. After identifying the defects in this law, we develop a normative constitutionally compliant framework for the regulation of broadcasters. Among other things, we recommend: clearly defining the contours of grounds for imposing broadcasting bans and separating the “investigating” and “adjudicatory” functions.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85041515","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 : 2021-10-26DOI: 10.1080/24730580.2021.1992576
Kanika Jamwal, Charul Sharma
ABSTRACT The process of environmental clearance in India is currently regulated by the Environmental Impact Assessment Notification 2006. In March 2020, the Government of India issued the Draft Environmental Impact Assessment Notification 2020, which sought to replace the 2006 Notification. The most contested provision of the Draft Notification is the procedure to deal with cases of violation. While the 2006 Notification lays down a strong regulatory procedure to deal with such cases, the Draft Notification weakens it. In this context, this Note presents two arguments. First, the Draft Notification has altered the procedure such that its deterrent effect, and potential to immediately prevent environmental harm, is diluted. Consequently, it normalizes violation and ex-post facto clearances, and weakens its risk avoidance and risk management potential. Second, the proposed procedure is counterintuitive to the precautionary principle. Accordingly, the authors iterate that the Draft Notification amplifies the threat to India’s environmental conservation commitments.
{"title":"The curious case of “violation”: deconstructing the procedure under the Draft Environmental Impact Assessment Notification 2020","authors":"Kanika Jamwal, Charul Sharma","doi":"10.1080/24730580.2021.1992576","DOIUrl":"https://doi.org/10.1080/24730580.2021.1992576","url":null,"abstract":"ABSTRACT The process of environmental clearance in India is currently regulated by the Environmental Impact Assessment Notification 2006. In March 2020, the Government of India issued the Draft Environmental Impact Assessment Notification 2020, which sought to replace the 2006 Notification. The most contested provision of the Draft Notification is the procedure to deal with cases of violation. While the 2006 Notification lays down a strong regulatory procedure to deal with such cases, the Draft Notification weakens it. In this context, this Note presents two arguments. First, the Draft Notification has altered the procedure such that its deterrent effect, and potential to immediately prevent environmental harm, is diluted. Consequently, it normalizes violation and ex-post facto clearances, and weakens its risk avoidance and risk management potential. Second, the proposed procedure is counterintuitive to the precautionary principle. Accordingly, the authors iterate that the Draft Notification amplifies the threat to India’s environmental conservation commitments.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75845736","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 : 2021-10-26DOI: 10.1080/24730580.2021.1985810
D. McDonald-Norman
ABSTRACT India’s courts have proven cautious or ineffectual in protecting refugees and asylum seekers in India against refoulement. This article examines the courts’ approaches to the prospective removal of persons at risk of harm if removed from India and identifies a contradiction between the breadth of India’s constitutional guarantee of “life and liberty” and its courts’ narrow and inconsistent approach to questions of refoulement. This article argues that the right to non-refoulement has solely been recognized in India as a “procedural” right (merely requiring that persons at risk of persecution on return to their countries of origin be removed through “proper” procedures), and that this approach is unclear, inconsistent and unsatisfactory.
{"title":"DEPRIVED OF LIFE:Rohingya asylum seekers and the limits of constitutional protections in India","authors":"D. McDonald-Norman","doi":"10.1080/24730580.2021.1985810","DOIUrl":"https://doi.org/10.1080/24730580.2021.1985810","url":null,"abstract":"ABSTRACT India’s courts have proven cautious or ineffectual in protecting refugees and asylum seekers in India against refoulement. This article examines the courts’ approaches to the prospective removal of persons at risk of harm if removed from India and identifies a contradiction between the breadth of India’s constitutional guarantee of “life and liberty” and its courts’ narrow and inconsistent approach to questions of refoulement. This article argues that the right to non-refoulement has solely been recognized in India as a “procedural” right (merely requiring that persons at risk of persecution on return to their countries of origin be removed through “proper” procedures), and that this approach is unclear, inconsistent and unsatisfactory.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80395944","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 : 2021-10-26DOI: 10.1080/24730580.2021.1989791
K. Jhunjhunwala
ABSTRACT This Article critiques section 376AB of the Indian Penal Code 1860 and section 6 of the Protection of Children from Sexual Offences Act, 2012 which introduce the death penalty for the rape or aggravated penetrative sexual assault of children. It starts by analysing the incompatibility of the death penalty with the child-friendly procedures of the 2012 Act. It goes on to evaluate the constitutionality of the death penalty provisions under Articles 14 and 21 of the Indian Constitution. Further, it assesses the extent to which the extension of the death penalty for child sex abuse complies with deserts-based sentencing principle. Finally, it unpacks the implications of these penal provisions for the reformative goals of the criminal justice system.
{"title":"A case against the death penalty for child sexual abuse","authors":"K. Jhunjhunwala","doi":"10.1080/24730580.2021.1989791","DOIUrl":"https://doi.org/10.1080/24730580.2021.1989791","url":null,"abstract":"ABSTRACT This Article critiques section 376AB of the Indian Penal Code 1860 and section 6 of the Protection of Children from Sexual Offences Act, 2012 which introduce the death penalty for the rape or aggravated penetrative sexual assault of children. It starts by analysing the incompatibility of the death penalty with the child-friendly procedures of the 2012 Act. It goes on to evaluate the constitutionality of the death penalty provisions under Articles 14 and 21 of the Indian Constitution. Further, it assesses the extent to which the extension of the death penalty for child sex abuse complies with deserts-based sentencing principle. Finally, it unpacks the implications of these penal provisions for the reformative goals of the criminal justice system.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84500738","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 : 2021-10-07DOI: 10.1080/24730580.2021.1980271
Umakanth Varottil
ABSTRACT Although not codified under statute, the derivative action has been the mainstay of shareholder remedies for wrongs caused to the company. Conventional jurisprudence has recognized the derivative action under common law. However, the Delhi High Court in ICP Investments v Uppal Housing went against the grain to hold that derivative actions are subsumed within section 241 of the Companies Act, which deals with direct actions, and that a derivative action is per se not maintainable under common law. In this Note, I argue that this finding is unsustainable in law. First, it represents an inchoate appreciation of the distinction between wrongs to the company and wrongs to the shareholders. Second, it is not at all clear that the oppression, prejudice and mismanagement remedy under section 241 of the Act is wide enough to assimilate derivative actions. Third, the Court’s ruling fails to square up with procedural and remedial considerations.
{"title":"ICP Investments v Uppal Housing: Pushing Shareholder Derivative Actions to the Brink","authors":"Umakanth Varottil","doi":"10.1080/24730580.2021.1980271","DOIUrl":"https://doi.org/10.1080/24730580.2021.1980271","url":null,"abstract":"ABSTRACT Although not codified under statute, the derivative action has been the mainstay of shareholder remedies for wrongs caused to the company. Conventional jurisprudence has recognized the derivative action under common law. However, the Delhi High Court in ICP Investments v Uppal Housing went against the grain to hold that derivative actions are subsumed within section 241 of the Companies Act, which deals with direct actions, and that a derivative action is per se not maintainable under common law. In this Note, I argue that this finding is unsustainable in law. First, it represents an inchoate appreciation of the distinction between wrongs to the company and wrongs to the shareholders. Second, it is not at all clear that the oppression, prejudice and mismanagement remedy under section 241 of the Act is wide enough to assimilate derivative actions. Third, the Court’s ruling fails to square up with procedural and remedial considerations.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83379253","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 : 2021-09-13DOI: 10.1080/24730580.2021.1974768
Akshat Agarwal
ABSTRACT Challenging India’s secular marriage law, the Special Marriage Act (SMA), is the most popular approach for realizing marriage equality in India. I argue that it is important to think beyond judicial challenges to the SMA since only locating marriage equality in the SMA may be inadequate in realizing the potential of marriage equality for all LGBT+ persons. This is because focusing on the SMA ignores the intersectional nature of LGBT+ identity in India and also fails to account for the interconnectedness of Indian family laws. Focusing only on secular law ignores both the continuing relevance of religion-based personal laws in shaping individual identity and the legal reality that secular laws do not operate autonomously due to the interconnectedness of Indian family laws. Instead, I outline alternative approaches that range from reforming different personal laws to judicial challenges questioning the legal non-recognition of LGBT+ relationships in family law as a whole.
{"title":"Marriage equality in India: thinking beyond judicial challenges to secular marriage law","authors":"Akshat Agarwal","doi":"10.1080/24730580.2021.1974768","DOIUrl":"https://doi.org/10.1080/24730580.2021.1974768","url":null,"abstract":"ABSTRACT Challenging India’s secular marriage law, the Special Marriage Act (SMA), is the most popular approach for realizing marriage equality in India. I argue that it is important to think beyond judicial challenges to the SMA since only locating marriage equality in the SMA may be inadequate in realizing the potential of marriage equality for all LGBT+ persons. This is because focusing on the SMA ignores the intersectional nature of LGBT+ identity in India and also fails to account for the interconnectedness of Indian family laws. Focusing only on secular law ignores both the continuing relevance of religion-based personal laws in shaping individual identity and the legal reality that secular laws do not operate autonomously due to the interconnectedness of Indian family laws. Instead, I outline alternative approaches that range from reforming different personal laws to judicial challenges questioning the legal non-recognition of LGBT+ relationships in family law as a whole.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87780567","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 : 2021-09-02DOI: 10.1080/24730580.2021.1996077
Aparna Chandra, Jhuma Sen, Rachna Chaudhary
The Indian Feminist Judgements Project (IFJP) is a collaboration between feminist scholars, practitioners, and activists, drawn from law and other disciplines, who are using a feminist lens to write alternative opinions to existing judgements. The aim of this project is to critically examine judicial archives using feminist tools. The project aspires to be a blueprint for alternative feminist futures of juridical practices and critical lawyering. This special issue of the Indian Law Review presents a set of six re-written judgements and accompanying commentaries that were prepared as part of the IFJP. IFJP
{"title":"Introduction: the Indian feminist judgements project","authors":"Aparna Chandra, Jhuma Sen, Rachna Chaudhary","doi":"10.1080/24730580.2021.1996077","DOIUrl":"https://doi.org/10.1080/24730580.2021.1996077","url":null,"abstract":"The Indian Feminist Judgements Project (IFJP) is a collaboration between feminist scholars, practitioners, and activists, drawn from law and other disciplines, who are using a feminist lens to write alternative opinions to existing judgements. The aim of this project is to critically examine judicial archives using feminist tools. The project aspires to be a blueprint for alternative feminist futures of juridical practices and critical lawyering. This special issue of the Indian Law Review presents a set of six re-written judgements and accompanying commentaries that were prepared as part of the IFJP. IFJP","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81389274","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 : 2021-09-02DOI: 10.1080/24730580.2021.1986288
P. Dash, R. Thyagarajan, Tejasvini Puri
ABSTRACT This paper is an attempt to re-imagine a 2016 Division Bench judgement of the Supreme Court of India in an appeal against conviction for rape, through a feminist dissent. The imaginary dissent is situated in the time and place of when the majority decided the appeal and significantly departs, both methodologically and substantively, from the majority opinion. It does so by according primacy to the complainant’s testimony and evaluating it independently of the other evidence on record, including the medical evidence. The accompanying commentary sets the judgement in the context of the socio-legal framework in which it was delivered and highlights the ways in which the dissent demonstrates the possibility of writing a feminist judgment even while adhering to the limits set by applicable law.
{"title":"“That’s what she said”: centring women’s testimony in rape trials - re-writing Raja and Ors. v. State of State of Karnataka (2016) 10 SCC 506”","authors":"P. Dash, R. Thyagarajan, Tejasvini Puri","doi":"10.1080/24730580.2021.1986288","DOIUrl":"https://doi.org/10.1080/24730580.2021.1986288","url":null,"abstract":"ABSTRACT This paper is an attempt to re-imagine a 2016 Division Bench judgement of the Supreme Court of India in an appeal against conviction for rape, through a feminist dissent. The imaginary dissent is situated in the time and place of when the majority decided the appeal and significantly departs, both methodologically and substantively, from the majority opinion. It does so by according primacy to the complainant’s testimony and evaluating it independently of the other evidence on record, including the medical evidence. The accompanying commentary sets the judgement in the context of the socio-legal framework in which it was delivered and highlights the ways in which the dissent demonstrates the possibility of writing a feminist judgment even while adhering to the limits set by applicable law.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85773497","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 : 2021-08-12DOI: 10.1080/24730580.2021.1964873
Saptarshi Mandal
ABSTRACT Intercaste marriage is widely seen as an instrument for and an index of social equality. This article makes two interventions aimed at interrogating this perception. First, it shows that legalizing intercaste marriage became politically viable owing to its promise of modernizing Hindu marriage and fostering Hindu solidarity. Second, by turning to the anti-caste thought of B.R. Ambedkar, it shows that rather than prescribing intercaste marriage, as many scholars tend to claim, Ambedkar underscores its “futility” in the struggle for a casteless society. Removal of caste restrictions on marriage gave Hindus freedom in spouse selection, but left the material basis of caste unaltered. The article argues that the story of legislating this freedom bears out Ambedkar’s thesis that pursuing freedom in the negative sense in a caste society does little to destroy caste.
{"title":"Ambedkar’s illegal marriage: Hindu nation, Hindu modernity and the legalization of intercaste marriage in India","authors":"Saptarshi Mandal","doi":"10.1080/24730580.2021.1964873","DOIUrl":"https://doi.org/10.1080/24730580.2021.1964873","url":null,"abstract":"ABSTRACT Intercaste marriage is widely seen as an instrument for and an index of social equality. This article makes two interventions aimed at interrogating this perception. First, it shows that legalizing intercaste marriage became politically viable owing to its promise of modernizing Hindu marriage and fostering Hindu solidarity. Second, by turning to the anti-caste thought of B.R. Ambedkar, it shows that rather than prescribing intercaste marriage, as many scholars tend to claim, Ambedkar underscores its “futility” in the struggle for a casteless society. Removal of caste restrictions on marriage gave Hindus freedom in spouse selection, but left the material basis of caste unaltered. The article argues that the story of legislating this freedom bears out Ambedkar’s thesis that pursuing freedom in the negative sense in a caste society does little to destroy caste.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77708394","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 : 2021-08-12DOI: 10.1080/24730580.2021.1962083
Kanika Sharma, Laura Lammasniemi, Tanika Sarkar
ABSTRACT Through an examination of the late nineteenth century case of Dadaji Bhikaji v Rukhmabai this article traces the history of the doctrine of restitution of conjugal rights (“RCR”) in Hindu law in colonial India. It highlights the importance of caste in situating the life and trials of Rukhmabai in their wider social, colonial, and legal contexts. Following the methodology of the global feminist judgements projects, the paper also offers a re-written judgement for Rukhmabai’s case located in 1886. This new judgement, while bound by the legal rules of the time, puts forward an alternative application of the doctrine of RCR, one that treats the issue of consent as central to such suits. It argues that the legal transplant of RCR ought not to have been applied to Hindu marriages which are often entered into in childhood and makes a case for taking into account female consent to both marriage and to conjugal relations.
{"title":"Dadaji Bhikaji v Rukhmabai (1886) ILR 10 Bom 301: rewriting consent and conjugal relations in colonial India","authors":"Kanika Sharma, Laura Lammasniemi, Tanika Sarkar","doi":"10.1080/24730580.2021.1962083","DOIUrl":"https://doi.org/10.1080/24730580.2021.1962083","url":null,"abstract":"ABSTRACT Through an examination of the late nineteenth century case of Dadaji Bhikaji v Rukhmabai this article traces the history of the doctrine of restitution of conjugal rights (“RCR”) in Hindu law in colonial India. It highlights the importance of caste in situating the life and trials of Rukhmabai in their wider social, colonial, and legal contexts. Following the methodology of the global feminist judgements projects, the paper also offers a re-written judgement for Rukhmabai’s case located in 1886. This new judgement, while bound by the legal rules of the time, puts forward an alternative application of the doctrine of RCR, one that treats the issue of consent as central to such suits. It argues that the legal transplant of RCR ought not to have been applied to Hindu marriages which are often entered into in childhood and makes a case for taking into account female consent to both marriage and to conjugal relations.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90822653","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：