Journal of National Law University New Delhi

Publisher:
Sage Publications, Inc.
Publication date:
2021-09-06
ISBN:
2277-4017

Latest documents

  • Do Constitutions Matter? The Dilemma of a Radical Lawyer

    Constitutions do not make revolutions. Revolutions make constitutions. No constitution envisages its own death, for that is what a revolution entails. But constitutions matter. Some of the finest constitutions have been erected on ugly socio-economic formations wrought with extreme inequalities and inequities. South Africa and Kenya are examples. But constitutions do matter. They rarely herald fundamental transformations. They are the product of major transformations to consolidate a new status quo. Yet, constitutions do matter. Why do they matter? Why do we need them? Why does every revolution and major change in modern societies give birth to a new constitution? This is the question I want to reflect on: why do constitutions matter?

  • Courtroom Language and Article 19(1)(a)

    Many would agree that the State should try to ensure that the language used in its courtrooms is one that its subjects understand. The question is whether the subjects can claim this as a matter of right—specifically, as part of the right to free speech. Using the philosophical justifications of the freedom of speech, I argue that Article 19(1)(a) of the Indian Constitution assures a right to the litigant to communicate with the court in her own language. Even though the right may be restricted under Article 19(2), or even otherwise if it comes into conflict with another fundamental right, its threshold recognition under Article 19(1)(a) is significant to ensure a disciplined inquiry into the constitutional validity of official courtroom languages.

  • Arbitrating Intellectual Property Disputes in India

    Recent years have witnessed enhanced utilisation of varied means of alternative dispute resolution to resolve a variety of disputes. While many areas have seamlessly adapted and internalised such extension, intellectual property disputes continue to offer stubborn resistance. This is because on the one hand intellectual property represents substantial business asset, while on the other it is an outcome of a carefully constructed public policy. The tension between the two viewpoints has a profound effect on how intellectual property disputes are understood and resolved. As a result, jurisdictions, world over, including India, have struggled to suitably respond to concerns emanating from private adjudication (in particular use of arbitration), to resolve public policy issues (such as disputes pertaining to intellectual property). This article attempts (a) a critical appraisal of the efforts to arbitrate intellectual property disputes in India, (b) identify and analyse legal roadblocks to such attempts including contradictory approaches adopted by Indian courts and (c) finally, undertake an evaluation of a possible compromise that enables arbitration of intellectual property disputes in India.

  • Penological Justifications as Sentencing Factors in Death Penalty Sentencing

    When the Supreme Court of India upheld the constitutionality of the death penalty in Bachan Singh v. State of Punjab in 1980, it also laid down a sentencing framework for subsequent sentencing courts, guiding them in deciding between life imprisonment and the death penalty. This framework, popularly known as the ‘rarest of rare’ framework, was focused on individualised punishment. However, subsequent judgments have strayed away from Bachan Singh’s core framework, and the use of penological justifications as sentencing factors has contributed significantly to this deviation. This article argues that it is not within the mandate of sentencing judges to invoke penological theories as separate sentencing factors in individual cases when deciding between life imprisonment and the death sentence. The article begins by distinguishing between the penological justifications used to retain the death penalty in Bachan Singh and those underlying the sentencing framework developed in the judgment. It then examines subsequent judgments to trace the manner in which the capital sentencing framework was shaped to be crime-centric through the use of penological ideas like ‘collective conscience’ and deterrence. Examining the implications of penological justifications occupying a dominant place in death penalty sentencing, the article examines the broader concerns about the lack of clarity with sentencing goals. The failure in individual cases to distinguish between penological justifications as sentencing factors determining punishment, on the one hand, and viewing them as consequences arising out of an individualised sentencing process, on the other, lies at the core of the critique in this article.

  • What Is Wrong with a Rights-based Approach to Morality?

    There is a prominent streak of scholarship in moral and political philosophy which espouses the idea that morality is rights based. In this article, I argue that such an approach not only undermines but also operates against a range of other morally significant human relationships and attitudes such as community, solidarity, care, compassion and benevolence, which play an important role in our lives. The concept of rights is a product of historical circumstances, and it risks turning morality upside down if it encourages self-righteous claims. The notion of rights can be a constituent element of morality, but the entire moral phenomenon cannot be just rights based, and rights and duties need to remain balanced.

  • Strength and Challenges of OBOR Initiative: Indian Perspective

    The One Belt One Road (OBOR) initiative of China is an attempt to ‘remake’ or recreate the ancient Silk Road or Silk Route, symbolising not only trade network but more importantly cultural interaction. It is an ambitious Eurasian strategy with large financial support, which aims to draw linkages from China to various regions of the world. The connectivity and cooperation presented by China between itself and the rest of Eurasia has two main components: the land-based ‘Silk Road Economic Belt’ (SREB) and ocean-going ‘Maritime Silk Road’ (MSR). The ‘Belt’ includes countries geographically situated on the original Silk Road through Central Asia, West Asia, Russia and Europe and has six main corridors. Countries on the Belt and Road—especially those with underdeveloped infrastructure, low investment rates and per capita income—could experience a boost in trade flow and benefit from infrastructure development.  The main challenge for China and for the initiative is the potential for conflicts or geopolitical tensions that could emerge with other powers. This project will increase United States’ attention on Central Asia and South Asian region. This will have consequences for the smooth implementation of the strategy. There is an expected resistance from Russia and Russian-led Eurasian Union (EU) that may divide the relevant countries along the route, leaving them torn between choosing to pursue stronger ties with Russia or with China.  India also remains cautious of the project and still has not expressed its full support. It sees the initiative not as an opportunity, but as a threat or a form of competition. India’s objections are rooted in issues of sovereignty and territorial integrity. For instance, India opposes the China–Pakistan Economic Corridor (CPEC), a pilot project of the trade initiative, due to its route passing through Gilgit-Baltistan, which is a disputed area between Pakistan and India. India has its own agenda of connectivity and cooperation.  This article shall first discuss the strengths and challenges of this project and analyse the regional, national and international situations. The Chinese initiative will be discussed, focusing on China’s domestic constraints along with regional economic situation and political tensions in neighbourhood. The Indian perspective related to this initiative shall be discussed in detail, including the ‘Look East-Act East’ policy. Planning and implementation of the project and its impact on bilateral relations shall be discussed. The author shall also analyse the South Asian perspective as a whole, which is plagued by territorial conflicts, bad governance, security threats, impaired transparency, energy crisis, poor infrastructure, fragile institutions and limping economies.

  • Issues in Insolvency of Enterprise Groups

    Insolvency of enterprise groups has long remained an enigmatic and untouched issue in the realm of international insolvency law. Recently, the Working Group V of United Nations Commission on International Trade Law (UNCITRAL WG V) has taken up the onerous task to fill this void and to draft an instrument/model law to govern international aspects of insolvency resolution of enterprise groups (two or more enterprises that are interconnected by control or significant ownership)2 including obligations of directors of enterprise group companies for acts done in the ‘twilight zone’. This article attempts to introduce and outline certain key issues relating to insolvency resolution of enterprise group companies and discuss a few of them, reserving a comprehensive discussion shared in subsequent papers.

  • Integrating Mental Health Perspectives into the Legal Discourse on Reproductive Justice in India

    The reproductive justice framework envisions a world where all women, including those situated at the intersection of multiple structures of oppression such as class, caste, sexual orientation, disability and mental health, are able to exercise their right to decisional and reproductive autonomy. S. 3(4)(a) of the Medical Termination of Pregnancy Act, 1971, provides that an abortion cannot be performed on a mentally ill woman without the consent of her guardian. I analyse the Indian Supreme Court’s decision in Suchita Srivastava v. Chandigarh Administration [(2009) 9 SCC 1] in light of contemporary legal developments in the field of disability law and mental health law. The first argument that I make in this paper is that the Rights of Persons with Disabilities Act, 2016, covers persons with mental illness, with the rights in the Act applicable to those with mental illness as well. The second argument rests on the Mental Healthcare Act, 2017, which recognizes the right to privacy and dignity of mentally ill persons, including their capacity to make decisions affecting healthcare. I argue that the judgment, while path-breaking in its recognition of the reproductive rights of disabled women, is inimical to the rights of mentally ill women, perpetuating dangerous stereotypes about their ability to exercise choices, and dehumanizing them. It is imperative for the reproductive justice framework to inform legal discourse and judicial decision-making, to fully acknowledge the right to self-determination and bodily integrity of mentally ill persons.

  • Insolvency Resolution Plans: Right of Erstwhile Management, Corporate Debtor

    As the law under the Insolvency and Bankruptcy Code, 2016 progresses, many anomalies have surfaced which revolve around the resolution plans, which are meant for the survival of the corporate debtor. The National Company Law Appellate Tribunal recently held that it is permissible in law to give the opportunity to ‘resolution applicants’ for revising their offer before final approval.1 Resolution plans play a key role in the corporate insolvency resolution process; therefore, the objectives of the author in the present article is, first, to analyse the importance of resolution plans, second, to examine the law regarding resolution plans in the Insolvency Code and, in the end, to analyse whether there is any necessity to maintain secrecy in reference to ‘resolution plans’ or whether giving a copy of the resolution plans to the corporate debtor will actually help the corporate debtor in getting necessary information for the health of their business for its benefit.

  • Rights or Benefits? The Indian Supreme Court and Criminal Procedure

    This article suggests that the recent decisions by the Indian Supreme Court in Mohan Lal v. State of Punjab, and Varinder Kumar v. State of H.P., are perhaps indicative of a more pervasive trend that stretches back to the dawn of the due process era in Indian law. This trend is one where the Supreme Court is confronted with systemic issues in the criminal process while dealing with petitions brought by singularly oppressed litigants, and it treats the litigation itself as a means to solve the perceived problem. The tool to solve these problem in the criminal process is the creation of new criminal procedure rights through the vehicle of Article 21. In its reformist zeal, scant attention is paid to the several important questions of scope and consequential remedy that are inherent to any notion of rights. Over time though, the Court seems to realise that hard cases make bad law. And when cases involving seemingly undeserving litigants start invoking those procedural rights, the Court signals a retreat and transforms the ‘right’ into a ‘benefit’, that it can dole out in only the most deserving cases. This is not a definitive study, but only offers a different perspective to examine the Supreme Court’s contribution to the field of criminal procedure.

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