Recent judgements of the Supreme Court of India have done away with presumption of constitutionality for pre-constitutional laws in India. Regarded as one of the core principles in the study of interpretation of statutes, presumption of constitutionality assumes great significance when constitutionality of any law is under challenge. Removal of this presumption for pre-constitutional laws has far-reaching potential on judicial scrutiny of vires of pre-constitutional laws. However, the implications of such removal on pre-constitutional laws have not been studied. This article is an attempt to study such implications. I shall take example of Indian law on sedition, which is a pre-constitutional law, to demonstrate the impact of removal of the presumption.
{"title":"Pre-constitutional Laws in India: Beyond Presumption of Constitutionality","authors":"S. Singh","doi":"10.1093/slr/hmaa022","DOIUrl":"https://doi.org/10.1093/slr/hmaa022","url":null,"abstract":"\u0000 Recent judgements of the Supreme Court of India have done away with presumption of constitutionality for pre-constitutional laws in India. Regarded as one of the core principles in the study of interpretation of statutes, presumption of constitutionality assumes great significance when constitutionality of any law is under challenge. Removal of this presumption for pre-constitutional laws has far-reaching potential on judicial scrutiny of vires of pre-constitutional laws. However, the implications of such removal on pre-constitutional laws have not been studied. This article is an attempt to study such implications. I shall take example of Indian law on sedition, which is a pre-constitutional law, to demonstrate the impact of removal of the presumption.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/slr/hmaa022","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46997846","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}
Indian Companies Act, 2013 addresses the director’s responsibility through specific statutory provisions. While highlighting certain nuances in the legislative design, the article argues for more clarification for the director’s responsibility, specifically for non-executive and independent directors. The normative contribution of this article stresses the need to reform the existing statutory framework for according protection to directors of a company. Operationalization of fiduciary responsibility based on common law principles, along with section 166, Companies Act, 2013 is not clear in the statutory design. Emerging concerns of the director’s responsibility include lack of adequate protection for non-executive and independent directors which deserve more policy deliberations. The recently introduced Insolvency and Bankruptcy Code, 2016 poses evolving responsibility on directors, forming yet another emerging concern in the Indian context.
{"title":"Legislative Design of Director’s Responsibility in India: In Search of Clarity","authors":"M. Deva Prasad, Salamah Ansari, S. Narayan","doi":"10.1093/slr/hmaa021","DOIUrl":"https://doi.org/10.1093/slr/hmaa021","url":null,"abstract":"\u0000 Indian Companies Act, 2013 addresses the director’s responsibility through specific statutory provisions. While highlighting certain nuances in the legislative design, the article argues for more clarification for the director’s responsibility, specifically for non-executive and independent directors. The normative contribution of this article stresses the need to reform the existing statutory framework for according protection to directors of a company. Operationalization of fiduciary responsibility based on common law principles, along with section 166, Companies Act, 2013 is not clear in the statutory design. Emerging concerns of the director’s responsibility include lack of adequate protection for non-executive and independent directors which deserve more policy deliberations. The recently introduced Insolvency and Bankruptcy Code, 2016 poses evolving responsibility on directors, forming yet another emerging concern in the Indian context.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/slr/hmaa021","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43522344","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}
Sir John Laws, the originator of the principle of constitutional statutes, suggests that the protection accorded to them has its roots in the protection from implied repeal given to the European Communities Act 1972 and to constitutional fundamentals. We argue that this suggestion is more convincing with regard to the latter than it is with the former. Further, we contend that founding constitutional statutes on the protection afforded to constitutional fundamentals rather than the 1972 Act may provide a stronger basis for the principle of such statutes if the United Kingdom leaves the European Union. We then provide evidence that the idea of constitutional statutes has been accepted across the three arms of state and argue that, as a consequence, the rule of recognition may be taken to have changed to encompass the amendment to the implied repeal rule that such statutes represent.
{"title":"Constitutional Statutes—Roots and Recognition","authors":"J. Mcgarry, Samantha Spence","doi":"10.1093/SLR/HMZ015","DOIUrl":"https://doi.org/10.1093/SLR/HMZ015","url":null,"abstract":"\u0000 Sir John Laws, the originator of the principle of constitutional statutes, suggests that the protection accorded to them has its roots in the protection from implied repeal given to the European Communities Act 1972 and to constitutional fundamentals. We argue that this suggestion is more convincing with regard to the latter than it is with the former. Further, we contend that founding constitutional statutes on the protection afforded to constitutional fundamentals rather than the 1972 Act may provide a stronger basis for the principle of such statutes if the United Kingdom leaves the European Union. We then provide evidence that the idea of constitutional statutes has been accepted across the three arms of state and argue that, as a consequence, the rule of recognition may be taken to have changed to encompass the amendment to the implied repeal rule that such statutes represent.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/SLR/HMZ015","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43766789","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}
On 19 July 2018, the Automated and Electric Vehicles Act 2018 (AEVA) received Royal Assent. As motor vehicles are becoming increasingly technologically based, with driving aids having taken over many of the more mundane (and possibly dangerous) aspects of driving from the driver, it is imperative that legislation keeps pace to determine the responsibilities of the parties. Motor insurance provides protection for those involved with vehicles and who may suffer harm, injury, and loss due to the negligence of the actors. This is most frequently driver error, but may also include manufacturing defects, which result in deaths and less serious injuries. It is also here where the intersection between torts and insurance laws needs careful management. It would be particularly unfair to ask drivers or third-party victims of motor vehicle accidents to seek redress from a manufacturer for losses incurred during the actions of an autonomous vehicle. Consumer law has historically removed this burden from affected consumers and it is entirely sensible for the law to protect individuals in an emerging field—and perhaps even more so given the trajectory of vehicles with driver-enabled qualities and the numbers of vehicles currently featuring such innovations. Yet, the AEVA consists of aspects which are troubling in respect of the motor insurance industry’s dominance of this market, the application of compulsory insurance, and exclusions and limitations to responsibility which expose policy holders and victims to EU-breaching levels of risk.
{"title":"The Automated and Electric Vehicles Act 2018 Part 1 and Beyond: A Critical Review","authors":"James Marson, K. Ferris, Jill Dickinson","doi":"10.1093/slr/hmz021","DOIUrl":"https://doi.org/10.1093/slr/hmz021","url":null,"abstract":"\u0000 On 19 July 2018, the Automated and Electric Vehicles Act 2018 (AEVA) received Royal Assent. As motor vehicles are becoming increasingly technologically based, with driving aids having taken over many of the more mundane (and possibly dangerous) aspects of driving from the driver, it is imperative that legislation keeps pace to determine the responsibilities of the parties. Motor insurance provides protection for those involved with vehicles and who may suffer harm, injury, and loss due to the negligence of the actors. This is most frequently driver error, but may also include manufacturing defects, which result in deaths and less serious injuries. It is also here where the intersection between torts and insurance laws needs careful management. It would be particularly unfair to ask drivers or third-party victims of motor vehicle accidents to seek redress from a manufacturer for losses incurred during the actions of an autonomous vehicle. Consumer law has historically removed this burden from affected consumers and it is entirely sensible for the law to protect individuals in an emerging field—and perhaps even more so given the trajectory of vehicles with driver-enabled qualities and the numbers of vehicles currently featuring such innovations. Yet, the AEVA consists of aspects which are troubling in respect of the motor insurance industry’s dominance of this market, the application of compulsory insurance, and exclusions and limitations to responsibility which expose policy holders and victims to EU-breaching levels of risk.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/slr/hmz021","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45769225","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}
It is a common arrangement in different legislatures that individual members who are not ministers can bring forward bills (private members’ bills), but the drafting of a bill may involve certain technicalities that are usually outside their knowledge. How, then, do legislators prepare the text of private members’ bills? This article presents the way in which support is provided to those members who seek to introduce their bills in the UK Parliament, the Scottish Parliament, the National Assembly for Wales, the Northern Ireland Assembly, and the National Diet of Japan. It then discusses two common challenges for such support: how to avoid the risk that demand will outstrip supply and how to make sure that the drafting of private members’ bills meets the quality standards (if any).
{"title":"Support for Private Members’ Bills in the United Kingdom and Japan","authors":"Shota Moriue","doi":"10.1093/SLR/HMY037","DOIUrl":"https://doi.org/10.1093/SLR/HMY037","url":null,"abstract":"\u0000 It is a common arrangement in different legislatures that individual members who are not ministers can bring forward bills (private members’ bills), but the drafting of a bill may involve certain technicalities that are usually outside their knowledge. How, then, do legislators prepare the text of private members’ bills? This article presents the way in which support is provided to those members who seek to introduce their bills in the UK Parliament, the Scottish Parliament, the National Assembly for Wales, the Northern Ireland Assembly, and the National Diet of Japan. It then discusses two common challenges for such support: how to avoid the risk that demand will outstrip supply and how to make sure that the drafting of private members’ bills meets the quality standards (if any).","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/SLR/HMY037","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48250398","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}
{"title":"Humpty Dumpty Rides Again: Using Voluntary Guidance to Fill Gaps in Legislation","authors":"D. Greenberg","doi":"10.1093/slr/hmaa020","DOIUrl":"https://doi.org/10.1093/slr/hmaa020","url":null,"abstract":"","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":"41 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/slr/hmaa020","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47562637","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}
{"title":"Assessing the Industrial Property Bill of Mauritius and its Impact on Access to Essential Medicines","authors":"Amar Roopanand Mahadew","doi":"10.1093/SLR/HMY036","DOIUrl":"https://doi.org/10.1093/SLR/HMY036","url":null,"abstract":"","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/SLR/HMY036","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45039566","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}
{"title":"Why Is There So Much Bad Legislation?*","authors":"Lord Lisvane","doi":"10.1093/slr/hmz019","DOIUrl":"https://doi.org/10.1093/slr/hmz019","url":null,"abstract":"","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":"41 1","pages":"291-303"},"PeriodicalIF":0.3,"publicationDate":"2020-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/slr/hmz019","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44351150","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}
This study examines how the Indian CSR law has been implemented and enforced by companies and industries situated in the Malwa region of Punjab state in India. Malwa region, one of the most industrialized clusters of the state, is also simultaneously one of its most polluted areas. Given the severe health effects that these polluting industries cause, implementing the law on CSR in its true spirit is of grave importance. This study uses in-depth interviews of the intended project beneficiaries to determine the state of implementation of the Indian CSR regulatory framework for the selected geographical region. Using the above methodology, this article suggests that businesses should strive at mitigation of the risks of their production and manufacturing activities to the community and the environment. Rather, CSR is viewed by companies as donating part of the companies’ profits to CSR activities, and undertaking social-welfare activities to meet statutory obligations. Hence, this article further determines that there is a need to implement the CSR law in its true spirit by developing an understanding among the companies on the concept and importance of CSR, which goes beyond profit donations. This article concludes with several policy recommendations that can be utilized by the government to strengthen the state of implementation of the law in not only the Malwa region, but also the entire country.
{"title":"Implementation of CSR Legislation in India through the Lens of Its Beneficiaries: A Case Study of Malwa Region, Punjab, India","authors":"Nishant Kumar, D. K. Chauhan","doi":"10.1093/slr/hmaa018","DOIUrl":"https://doi.org/10.1093/slr/hmaa018","url":null,"abstract":"\u0000 This study examines how the Indian CSR law has been implemented and enforced by companies and industries situated in the Malwa region of Punjab state in India. Malwa region, one of the most industrialized clusters of the state, is also simultaneously one of its most polluted areas. Given the severe health effects that these polluting industries cause, implementing the law on CSR in its true spirit is of grave importance. This study uses in-depth interviews of the intended project beneficiaries to determine the state of implementation of the Indian CSR regulatory framework for the selected geographical region. Using the above methodology, this article suggests that businesses should strive at mitigation of the risks of their production and manufacturing activities to the community and the environment. Rather, CSR is viewed by companies as donating part of the companies’ profits to CSR activities, and undertaking social-welfare activities to meet statutory obligations. Hence, this article further determines that there is a need to implement the CSR law in its true spirit by developing an understanding among the companies on the concept and importance of CSR, which goes beyond profit donations. This article concludes with several policy recommendations that can be utilized by the government to strengthen the state of implementation of the law in not only the Malwa region, but also the entire country.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/slr/hmaa018","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49061967","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}
In his 2017 Hamlyn Lectures, Professor (now Lord) Burrows set out his opinions about statutory interpretation. Given his recent appointment to the UK Supreme Court, these opinions now have more practical importance than those of most academic theorists. One of his main theses is that the modern approach to statutory interpretation, which focuses on text, context and purpose, should not include any reference to legislative intention. He dismisses this as ‘an unhelpful fiction or mask that should be avoided altogether’. I show that this thesis is mistaken, internally inconsistent, and might in practice undermine sound interpretation based on fundamental constitutional principles.
{"title":"Lord Burrows on Legislative Intention, Statutory Purpose, and the ‘Always Speaking’ Principle","authors":"Jeffrey Goldsworthy","doi":"10.1093/slr/hmaa019","DOIUrl":"https://doi.org/10.1093/slr/hmaa019","url":null,"abstract":"\u0000 In his 2017 Hamlyn Lectures, Professor (now Lord) Burrows set out his opinions about statutory interpretation. Given his recent appointment to the UK Supreme Court, these opinions now have more practical importance than those of most academic theorists. One of his main theses is that the modern approach to statutory interpretation, which focuses on text, context and purpose, should not include any reference to legislative intention. He dismisses this as ‘an unhelpful fiction or mask that should be avoided altogether’. I show that this thesis is mistaken, internally inconsistent, and might in practice undermine sound interpretation based on fundamental constitutional principles.","PeriodicalId":43737,"journal":{"name":"Statute Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2020-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/slr/hmaa019","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48026193","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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