Pub Date : 2020-09-01DOI: 10.1080/24730580.2020.1836749
A. Darr
Competition law – known as antitrust law in the United States and anti-monopoly law in China and Russia – aims to ensure market competition and consumer welfare by regulating anti-competitive condu...
{"title":"Introduction to the competition law special issue","authors":"A. Darr","doi":"10.1080/24730580.2020.1836749","DOIUrl":"https://doi.org/10.1080/24730580.2020.1836749","url":null,"abstract":"Competition law – known as antitrust law in the United States and anti-monopoly law in China and Russia – aims to ensure market competition and consumer welfare by regulating anti-competitive condu...","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90039016","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 : 2020-08-05DOI: 10.1080/24730580.2020.1800968
Ankur Singhal, Vasavi Janak Khatri
ABSTRACT Arbitrability in the context of IPR disputes has gained popularity worldwide. In India, there is no statutory provision that mandates the adoption of ADR when it comes to IPR disputes. The lack of any legislative insight thus stands as an impediment to efficient dispute resolution. The judiciary has also not taken a consistent stand in this regard. As a result, the law on this issue is a scattered version of what it could be. To improve the business environment and IPR protection, it is important to reform the law, keeping in mind the developments that are taking place in jurisdictions across the world. This paper studies the jurisprudence that has developed in India. It analyses the principles laid down by the Supreme Court of India in Booz Allen and Hamilton v SBI Home Finance, its inconsistent application by High Courts, and concludes that there exists scope for codification and uniformity.
{"title":"Recent developments concerning arbitrability of IPR disputes in India: a need for reform","authors":"Ankur Singhal, Vasavi Janak Khatri","doi":"10.1080/24730580.2020.1800968","DOIUrl":"https://doi.org/10.1080/24730580.2020.1800968","url":null,"abstract":"ABSTRACT Arbitrability in the context of IPR disputes has gained popularity worldwide. In India, there is no statutory provision that mandates the adoption of ADR when it comes to IPR disputes. The lack of any legislative insight thus stands as an impediment to efficient dispute resolution. The judiciary has also not taken a consistent stand in this regard. As a result, the law on this issue is a scattered version of what it could be. To improve the business environment and IPR protection, it is important to reform the law, keeping in mind the developments that are taking place in jurisdictions across the world. This paper studies the jurisprudence that has developed in India. It analyses the principles laid down by the Supreme Court of India in Booz Allen and Hamilton v SBI Home Finance, its inconsistent application by High Courts, and concludes that there exists scope for codification and uniformity.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90869606","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 : 2020-06-28DOI: 10.1080/24730580.2020.1776037
Joseph Wilson
ABSTRACT The liberalization of the electronic media in sub-continent brought new choices for the viewers, but also highlighted the complex interplay of rights of various actors when it came to the live broadcasting of cricket. There is “right to information” in viewing live transmission of championship matches, with a corresponding service obligation on the national TV to broadcast such matches. This public interest in watching live transmissions, which are carried over air waves –a public property– comes in conflict with auctioning broadcasting rights exclusively to a highest bidder. In India, the right of the viewers is protected through the Sports Act of 2007, which traces its origin in a series of superior courts’ judgments spanning over 22 years from 1995 to 2017. Pakistan is lagging behind in definitively protecting the right of viewing sports events, and through Indian experience, could avoid the difficult path of formulating public policy ex post facto.
{"title":"Live broadcasting of cricket in India & Pakistan: right to information, commercialization & competition issues","authors":"Joseph Wilson","doi":"10.1080/24730580.2020.1776037","DOIUrl":"https://doi.org/10.1080/24730580.2020.1776037","url":null,"abstract":"ABSTRACT The liberalization of the electronic media in sub-continent brought new choices for the viewers, but also highlighted the complex interplay of rights of various actors when it came to the live broadcasting of cricket. There is “right to information” in viewing live transmission of championship matches, with a corresponding service obligation on the national TV to broadcast such matches. This public interest in watching live transmissions, which are carried over air waves –a public property– comes in conflict with auctioning broadcasting rights exclusively to a highest bidder. In India, the right of the viewers is protected through the Sports Act of 2007, which traces its origin in a series of superior courts’ judgments spanning over 22 years from 1995 to 2017. Pakistan is lagging behind in definitively protecting the right of viewing sports events, and through Indian experience, could avoid the difficult path of formulating public policy ex post facto.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86077461","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 : 2020-05-03DOI: 10.1080/24730580.2020.1791520
Zaid Deva
ABSTRACT In August 2019, India revoked unilaterally the autonomous position of the State of Jammu & Kashmir. This came in the backdrop of multiple petitions before its Supreme Court challenging this autonomous status, particularly Article 35A of the Presidential Order of 1954 (Basic Order) on the ground that its “incorporation” in the “Indian Constitution” amounted to an “amendment” and the same was unconstitutional for violating the basic structure. The Indian union’s decision to supersede the Basic Order by employing the mechanism of Article 370 and the constitutional challenge against Article 35A raise a deeper question on the nature of J&K’s accession to India, the resultant Indo-J&K constitutional relationship, and the place of the Basic Order in the constitutional scheme. Without first situating the Basic Order in the constitutional scheme, the question of basic structure violation by Article 35A and the (un)constitutionality of the August decision cannot be fully appreciated.
{"title":"Basic without structure?: the Presidential Order of 1954 and the Indo-Jammu & Kashmir constitutional relationship","authors":"Zaid Deva","doi":"10.1080/24730580.2020.1791520","DOIUrl":"https://doi.org/10.1080/24730580.2020.1791520","url":null,"abstract":"ABSTRACT In August 2019, India revoked unilaterally the autonomous position of the State of Jammu & Kashmir. This came in the backdrop of multiple petitions before its Supreme Court challenging this autonomous status, particularly Article 35A of the Presidential Order of 1954 (Basic Order) on the ground that its “incorporation” in the “Indian Constitution” amounted to an “amendment” and the same was unconstitutional for violating the basic structure. The Indian union’s decision to supersede the Basic Order by employing the mechanism of Article 370 and the constitutional challenge against Article 35A raise a deeper question on the nature of J&K’s accession to India, the resultant Indo-J&K constitutional relationship, and the place of the Basic Order in the constitutional scheme. Without first situating the Basic Order in the constitutional scheme, the question of basic structure violation by Article 35A and the (un)constitutionality of the August decision cannot be fully appreciated.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78654689","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 : 2020-05-03DOI: 10.1080/24730580.2020.1768774
P. Dash
ABSTRACT This paper asesses the impact of the Criminal Law Amendment Act, 2013 (CLA-2013) on rape adjudication, by examining 1635 rape judgments from trial courts of Delhi pronounced between 2013 and 2018. Of these, 726 cases were adjudicated under the old law, of which 16.11% resulted in convictions and 909 cases were adjudicated under the CLA-2013, of which 5.72% resulted in convictions. Analysing this data, the paper argues that absence of engagement with criminal justice literature linking mandatory minimum punishments with higher acquittal rates, led to unintended consequences, like reduced convictions under the CLA-2013. The paper also finds similar patterns between nature of rapes and reasons for acquittal under both laws, highlighting that mere legal reform, unaccompanied by governance and social reform, does not yield far-reaching results. The paper concludes by questioning the use of criminal law as a site for feminist reform.
{"title":"Rape adjudication in India in the aftermath of Criminal Law Amendment Act, 2013: findings from trial courts of Delhi","authors":"P. Dash","doi":"10.1080/24730580.2020.1768774","DOIUrl":"https://doi.org/10.1080/24730580.2020.1768774","url":null,"abstract":"ABSTRACT This paper asesses the impact of the Criminal Law Amendment Act, 2013 (CLA-2013) on rape adjudication, by examining 1635 rape judgments from trial courts of Delhi pronounced between 2013 and 2018. Of these, 726 cases were adjudicated under the old law, of which 16.11% resulted in convictions and 909 cases were adjudicated under the CLA-2013, of which 5.72% resulted in convictions. Analysing this data, the paper argues that absence of engagement with criminal justice literature linking mandatory minimum punishments with higher acquittal rates, led to unintended consequences, like reduced convictions under the CLA-2013. The paper also finds similar patterns between nature of rapes and reasons for acquittal under both laws, highlighting that mere legal reform, unaccompanied by governance and social reform, does not yield far-reaching results. The paper concludes by questioning the use of criminal law as a site for feminist reform.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85953794","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 : 2020-05-03DOI: 10.1080/24730580.2020.1786639
N. G. Jayal
{"title":"India’s founding moment: the constitution of a most surprising democracy","authors":"N. G. Jayal","doi":"10.1080/24730580.2020.1786639","DOIUrl":"https://doi.org/10.1080/24730580.2020.1786639","url":null,"abstract":"","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75698948","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}
ABSTRACT The equality provisions of the Indian Constitution proscribe legislation that is arbitrary and, this paper argues, legislation that subordinates. The tests for arbitrariness and subordination are currently unclear. This paper articulates a test for arbitrariness, making sense of the doctrine of manifest arbitrariness under Article 14, using philosophical literature on arbitrary decision-making. The paper similarly articulates a test for the anti-subordination principle inherent in the equality provisions of the Constitution. The paper then demonstrates how the Citizenship (Amendment) Act 2019 is unconstitutional when measured against these tests. The paper demonstrates why, contrary to common assumption, the Act implicates Article 15, as well as Article 14, of the Constitution.
{"title":"Arbitrariness, subordination and unequal citizenship","authors":"Farrah Ahmed","doi":"10.2139/ssrn.3515056","DOIUrl":"https://doi.org/10.2139/ssrn.3515056","url":null,"abstract":"ABSTRACT The equality provisions of the Indian Constitution proscribe legislation that is arbitrary and, this paper argues, legislation that subordinates. The tests for arbitrariness and subordination are currently unclear. This paper articulates a test for arbitrariness, making sense of the doctrine of manifest arbitrariness under Article 14, using philosophical literature on arbitrary decision-making. The paper similarly articulates a test for the anti-subordination principle inherent in the equality provisions of the Constitution. The paper then demonstrates how the Citizenship (Amendment) Act 2019 is unconstitutional when measured against these tests. The paper demonstrates why, contrary to common assumption, the Act implicates Article 15, as well as Article 14, of the Constitution.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75632036","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 : 2020-05-03DOI: 10.1080/24730580.2020.1783941
Deirdre N. Dlugoleski
ABSTRACT In terms of land tenure security, forest dwellers in India, who own and manage less than 3% of forested land nationwide, are among the worst off in the world. Vulnerable to forced eviction at any point, they stand at risk of losing their homes and means of survival with little legal redress. The Forest Rights Act of 2006, an attempt to increase their security, recognizes both individual and community land claims and mandates a uniform process for granting legal title. Greater recognition of forest rights, however, implicates the interests of powerful extractive industries also seeking control over forest land. In the Niyamgiri case, the Indian Supreme Court defended an indigenous claim against a multinational corporation by tying cultural rights to land. This reasoning pushed Indian jurisprudence closer to developing international law on indigenous land rights, particularly that of the Interamerican system, which can offer guidance for building on this precedent.
在土地所有权保障方面，印度的森林居民拥有和管理的森林土地不到全国的3%，是世界上最糟糕的。他们在任何时候都很容易被强迫驱逐，面临着失去家园和生存手段的风险，几乎得不到法律补救。2006年的《森林权利法案》(Forest Rights Act)旨在加强森林的安全，承认个人和社区对土地的所有权要求，并规定了授予合法所有权的统一程序。然而，更大程度地承认森林权利意味着也寻求控制森林土地的强大采掘业的利益。在Niyamgiri案中，印度最高法院通过将文化权利与土地联系起来，为土著人对跨国公司的索赔进行了辩护。这一推理使印度法理学更接近于发展关于土著土地权利的国际法，特别是美洲体系的国际法，这可以为在这一先例的基础上建立法律提供指导。
{"title":"Undoing historical injustice: the role of the Forest Rights Act and the Supreme Court in departing from colonial forest laws","authors":"Deirdre N. Dlugoleski","doi":"10.1080/24730580.2020.1783941","DOIUrl":"https://doi.org/10.1080/24730580.2020.1783941","url":null,"abstract":"ABSTRACT In terms of land tenure security, forest dwellers in India, who own and manage less than 3% of forested land nationwide, are among the worst off in the world. Vulnerable to forced eviction at any point, they stand at risk of losing their homes and means of survival with little legal redress. The Forest Rights Act of 2006, an attempt to increase their security, recognizes both individual and community land claims and mandates a uniform process for granting legal title. Greater recognition of forest rights, however, implicates the interests of powerful extractive industries also seeking control over forest land. In the Niyamgiri case, the Indian Supreme Court defended an indigenous claim against a multinational corporation by tying cultural rights to land. This reasoning pushed Indian jurisprudence closer to developing international law on indigenous land rights, particularly that of the Interamerican system, which can offer guidance for building on this precedent.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81045814","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 : 2020-02-21DOI: 10.1080/24730580.2020.1732693
Prabhash Ranjan, Pushkar Anand
ABSTRACT Indian courts have had limited opportunities to deal with bilateral investment treaty (BIT) arbitrations. In this paper we examine the interactions between BIT arbitration and Indian courts through a study of three domestic court cases arising in context of anti-arbitration injunctions in BIT arbitration. These three cases are Port of Kolkata v LDA, India v Vodafone, and India v Khaitan. Through these three cases, for the first time, Indian courts have thrown light on issues such as jurisdiction of domestic courts on matters pertaining to BIT arbitration, the applicability of the Indian Arbitration and Conciliation Act, 1996 (‘A&C Act’) to BIT arbitration and questions surrounding “abuse of process” by foreign investors. Two out of three cases held that the A&C Act does not apply to BIT arbitration. On “abuse of process”, the courts held that these questions should be addressed by BIT arbitration tribunals and not by domestic courts.
{"title":"Indian courts and bilateral investment treaty arbitration","authors":"Prabhash Ranjan, Pushkar Anand","doi":"10.1080/24730580.2020.1732693","DOIUrl":"https://doi.org/10.1080/24730580.2020.1732693","url":null,"abstract":"ABSTRACT Indian courts have had limited opportunities to deal with bilateral investment treaty (BIT) arbitrations. In this paper we examine the interactions between BIT arbitration and Indian courts through a study of three domestic court cases arising in context of anti-arbitration injunctions in BIT arbitration. These three cases are Port of Kolkata v LDA, India v Vodafone, and India v Khaitan. Through these three cases, for the first time, Indian courts have thrown light on issues such as jurisdiction of domestic courts on matters pertaining to BIT arbitration, the applicability of the Indian Arbitration and Conciliation Act, 1996 (‘A&C Act’) to BIT arbitration and questions surrounding “abuse of process” by foreign investors. Two out of three cases held that the A&C Act does not apply to BIT arbitration. On “abuse of process”, the courts held that these questions should be addressed by BIT arbitration tribunals and not by domestic courts.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89279118","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}
ABSTRACT This paper examines the provisions of the recently enacted Citizenship (Amendment) Act, 2019 (CAA) against the backdrop of the citizenship provisions of the Indian Constitution. It argues that by articulating a preference towards non-Muslim immigrants and discriminating against Muslim immigrants, the CAA is vaguely reminiscent of policies adopted by the Indian government at the time of the partition of the country and the framing of the Constitution. However, this paper will then argue that the CAA is unconstitutional by today’s standards because the conditions which existed during the days of India’s dominionship, between August 1947 and January 1950, viz., partition-era housing shortages and a communal environment charged by millions of refugees, no longer exist in India today. It posits that the CAA is discriminatory for several reasons though not for the insidious, mala fide reasons that are usually attributed to the government in popular discourse.
{"title":"Secularism and the Citizenship Amendment Act","authors":"A. Chandrachud","doi":"10.2139/ssrn.3513828","DOIUrl":"https://doi.org/10.2139/ssrn.3513828","url":null,"abstract":"ABSTRACT This paper examines the provisions of the recently enacted Citizenship (Amendment) Act, 2019 (CAA) against the backdrop of the citizenship provisions of the Indian Constitution. It argues that by articulating a preference towards non-Muslim immigrants and discriminating against Muslim immigrants, the CAA is vaguely reminiscent of policies adopted by the Indian government at the time of the partition of the country and the framing of the Constitution. However, this paper will then argue that the CAA is unconstitutional by today’s standards because the conditions which existed during the days of India’s dominionship, between August 1947 and January 1950, viz., partition-era housing shortages and a communal environment charged by millions of refugees, no longer exist in India today. It posits that the CAA is discriminatory for several reasons though not for the insidious, mala fide reasons that are usually attributed to the government in popular discourse.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76716895","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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