Monday, December 7, 2015

Capital Punishment, the Need or Necessity

The present condition in India is such that one should support the abolishing of capital punishment in all cases, except for cases in which public conscience and national security is at stake. Crimes such as treason, rape and mutiny tend to create public outrage in the society. The Supreme Court in its landmark judgment and the legislature in amending the Code of Criminal Procedure in 1976 made it clear that death sentence would be prescribed only in rarest of the rare case.

Sunday, December 6, 2015

Judicial Independence or Judicial Supremacy?

The Supreme Court has recently strike down NJAC (National Judicial Appointments Commission), a legal body that decides the appointment of Judges of Supreme Court and High Court. The Court in its categoric statement, held that the NJAC was ultra vires of the basic structure of the constitution, for not allowing Judicial to enjoy its independence, for reasons of unwarranted interference in deciding the appointments by the Executive. Before getting into the merits of their arguments, let’s just understand why the NJAC was made in the first place?

Tuesday, December 1, 2015

Constitutional Validity of Triple Talaaq System

On 16th October, 2015 the Supreme Court of India passed a verdict with regard to equal rights for daughter in relation to partition of ancestral properties in Hindu’s. The second part of the judgement however concentrated on the gender discrimination faced by Muslim women due to the “arbitrary divorce system and second marriage of their husbands during the prevalence of their first marriage”. The Supreme Court has directed the registration of a Public Interest Litigation as well as asked Chief Justice H. L. Dattu to put in place a special bench to contemplate gender discrimination which Muslim women are subjected to.

Saturday, November 28, 2015

Excess Reservation to Gujjars: Is it Costitutionally Valid?

Reservation in India superman quotes Category arm wrestlingIn the land mark case of Indra Sawhney, Supreme Court laid down that reservation should  not be  more than 50%.While the famous case stands to be constitutionally correct, the Rajasthan Government gives 68% reservation to Gujjars by passing two bills [the Rajasthan Economically Backward Classes  Bill, 2015 and and the Rajasthan Special Backward Classes Bill, 2015] in the legislative assembly aiming to provide reservation to this community which are considered to be a backward class by the Rajasthan Government.

Friday, November 27, 2015

HIV Stigma – The Modern Day Apartheid

Though HIV is widespread in almost all spheres of life, this paper will mainly focus on the stigmatization of AIDS victim in the public sphere. Finding a solution to these problems will lay a path to fighting such stigmatization in other areas of life.

A Clipped Bird

Clipped Bird freedom of speech silence article 19 twitterFreedom of speech and expression is a double-edged sword you can be offensive with it or you can use it to promote welfare. It’s undernourished of mankind remaining silent when you can identify problems and reflect a range of perspective with the right to freedom of speech and expression. There is confusion regarding the classification of news media. Is it an activity deserving protection under article 19(1)(a) or is it business under Article 19(1)(g) as due to this the Indian press has a two-fold protection. News paper and electronic media have enormous raw power and saying that press is abusing the power with justification of ethics and legal aspect doesn't reflect a confident rebuttal but lowers our confidence in the government.

Thursday, November 26, 2015

Constitutionally of Making Casinos Legal

The year 1976 marks a great year despite the emergency issues faced by the country. The Maharashtra Government was able to pass a historic piece of legislation which could make casinos in the state a possibility today. The Maharashtra Casinos Act, 1976 was a visionary bill passed by the Maharshtra Government which was supposed to override the provisions of the age old Bombay Prevention of Gambling Act, 1887. However, till date, the Act has not been implemented by the executive.

Wednesday, November 25, 2015

Battling Transphobia: Providing Healthcare to All

“Inside every man there is a potential woman and inside every woman resides a potential man.”
― John Maxwell Taylor
Gender variant people mark their existence in India since various centuries, these communities have several indigenous identities mostly based on their geographic location they are known as Hijras (north), Shivshakti (Andhra Pradesh) and Arvani’s (Tamil Nadu). Historically, they were considered as a downtrodden class and due to this they have been away from the mainstream employment opportunities. Majority of the community has to resort to begging, dancing and sex work which makes them prone to harassment and subjects to violent assaults. If we look at the current statistics provided by NACO and the research conducted by government STI clinics it can be found that more than 45% of TG population who go for a medical checkup has HIV. Also, other diseases such as syphilis and genital warts were found to be in large number amongst the community. Hence it is necessary that they should be provided with rights with regard to healthcare.

Monday, November 23, 2015

Time to re-think Capital Punishment: A regressive approach

The following article is written by Rashmi Bishnoi, a 3rd year law student of Jindal Global Law School.

“An eye for an eye will make the whole world blind”
..Mahatama Gandhi

guillotine beheading death penalty capital punishment
At the United Nations where majority of countries said that it was time to abolish the death penalty. India along with several south Asian nations voted against the resolution and argued in favour of death penalty. Till now, death penalty is continued to be imposed in the rarest of the rare cases but I contend that it should be abolished exhaustively for it to not only be barbaric, immoral and unconstitutional but also a regressive approach in a civilized world.

Saturday, November 21, 2015

Is Death Penalty discriminatory?

The following article is written by Ms. Barkha Yadav.
Death PentaltyStraight after hanging of Yakub Memon the death penalty debate again resurfaced. Everyone is talking about whether it acts as a deterrent or not? Whether it should be abolished and if not then how should it be applied? But very few have actually spoken about the barbaric and discriminatory way in which death penalty is applied in our country? In my opinion death penalty should be abolished because it gives too much discretion to the judges to decide whether a case falls under the rarest of rare provision or not?I think that the judges are not free from the caste and religious biases which are prevelant in our society while awarding death penalty to the convicts. According to a report by National Law University, Delhia vast majority of the prisoners,who are on death row belong to backward castes, economically weaker sections and Muslims. To prove my opinionI will bediscussing two cases that have very similar facts and circumstances but judgments given were very different.

Saturday, November 14, 2015

Sedition: An Anarchic Law Used to Suppress Freedom of Speech

"The following article is written by Mr. Rohan Yadav, a 3rd year law student at O.P Jindal University."
(Image taken from here.)
Sedition, defined as inciting of ‘public disorder’ or ‘hatred’ against a lawful authority, acts as a deterrent for the general public to express their views. Sedition laws mostly affect artists, media people, activists etc. The respective elected governments, politicians and ministers seem to enjoy the provisions of the sedition laws to the fullest as it acts as a shield for them. Thus living in the 21st Century there is a need for declaring Sedition as unconstitutional as it violates Article 19(1)(a) of the Indian Constitution which gives citizens the right to freedom of speech and expression.

Tuesday, April 14, 2015

SC: Limitation Not a Preliminary Issue under Section 9A (Per Incuriam?)

Supreme Court of India Section 9A Code of Civil Procedure Kamalakar Eknath Salunkhe Baburav Vishnu Javalkar & Ors Section 9A which was inserted by a State Amendment to the Code of Civil Procedure, 1908 provides that when at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the court as a preliminary issue and the court must first proceed to determine the issue of jurisdiction as a preliminary issue before granting for setting aside the order granting the interim relief.
Till date, the Judges of the Civil Courts in Maharashtra would entertain even issues of limitation in section 9A applications. However, the Hon’ble Supreme Court has recently held in Kamalakar Eknath Salunkhe vs. Baburav Vishnu Javalkar & Ors. (Civil Appeal No. 1085 of 2015) that the word ‘jurisdiction’ used in section 9A did not include issues of limitation. However, the judgement has received some criticism, even from the Judges of the Supreme Court itself.

Monday, March 23, 2015

CSR under Companies Act 2013: From Choice, to Necessity, to Compulsion

CSR is the activity which has to come from heart, executives strive day [and] night for the growth of the company by the help of customers, CSR is a perfect opportunity to pay back to society.”

-       Deepak Kapoor[1]

I.                   Introduction
CSR Corporate Social Responsibility Companies Act 2013 1956
Image taken from here.
The industrial families of the 19th century such as Tata, Birla, Bajaj and Godrej, were strongly devoted to philanthropically motivated, social and economic causes.[2]  Even Mahatma Gandhi’s Khadi movement, which was an integral part of the Swadeshi movement and which encouraged Indians to be self-reliant, received huge support from the Bajaj family.[3] During the Independence phase, Mahatma Gandhi introduced the notion of ‘trusteeship’ which encouraged businesses to establish trusts for educational institute and also helped in setting up training and scientific institutions.
However, according to a survey carried out by Forbes India, only six out of the top 100 companies of India contributed more than 2% of their profits after tax (PAT) to Corporate Social Responsibilities (CSR) activities.[4] It is for this reason that a provision for mandatory CSR spend has been included in the Companies Act 2013. According to industry estimates the mandatory CSR laws would apply to about 9,000-10,000 companies.[5] The new provision has received criticism not only from corporations but even from the supporters of CSR theory who believe that CSR activities, though a necessity, must be taken up voluntarily. This article analyses the impact of the Companies Act 2013 on the Corporate sector with respect to the new CSR provisions.

Wednesday, March 18, 2015

Intellectual Property Laws v. Anti Trust Laws

("This paper was awarded first prize in the Sir Dinshah Mulla Legal Essay Writing Competition 2011 and thereafter published in the annual college magazine of Government Law College, Mumbai".)

“The aim and objectives of patent and antitrust law may seem, at first glance, wholly at odds. However, the two bodies of law are actually complementary, as both are aimed at encouraging innovation, industry and competition.”[1]

 In today's economy, companies must innovate if they wish to succeed and endure. The emerging scenario in India appears to be one of domination of industries such as information technology, communication and other knowledge based industries. Companies generate capital and employment by producing new ideas and incorporate them into products to give rise advanced products which the consumers have not only not seen but not even imagined. Consumers, in turn, benefit enormously from these innovations. Hence, it is of the utmost importance that our economic laws, including Anti Trust and Intellectual Property Laws, create a legal environment that fosters and does not suppress innovation.

Friday, March 13, 2015

Fraud Claims in Arbitration

Arbitration improves access to justice. It enhances the likelihood of recovery. It delivers speedier results. It keeps costs down. For many, it is a superior option to the expensive, slow, cumbersome ways that have come to typify our civil justice system.”[1]

-           Peter B. Rutledge

Scales Justice Arbitration
Indian Courts have in several decisions held that matters, in which grave allegations of fraud, conspiracy or misappropriation are made, are too serious to be tried by arbitrators. Therefore, in India, and several other countries, such matters cannot be the subject-matter of arbitration. This view has also been upheld by the Supreme Court of India in N. Radhakrishnan vs Maestro Engineers[2] (“N Radhkrishnan”). The Courts have given various reasons for holding that arbitrators are incompetent to hear such matters. Reputation of the party, ineffectiveness of arbitration where substantial amount of documentary evidence needs to be produced and lack of legal knowledge of the arbitrator, are some of the most cited reasons for limiting the scope of arbitration by such a huge extent. It is also necessary to consider the impact of such a limitation on Indian arbitration law, from an international commercial arbitration perspective.

Sunday, March 1, 2015

Specific Performance of Agreement for Sale - Leave under clause XII of Letters Patent

Bombay High Court trademark lawThe Hon’ble Bombay High Court has held in Annete Bulchandani vs Mrs. Iris Fernandes & Ors that a suit for specific performance of an agreement for sale of land situated outside the jurisdiction of the Hon’ble Bombay High Court will be maintainable in the Court, after seeking leave under Clause 12 of the Letters Patent, even if the proposed Plaintiff has alternatively  prayed for setting aside sale of the land to a subsequent transferee. Judgment  can be found here

Saturday, January 24, 2015

When does the right to sue accrue? - Limitation Act, 1963

(Image taken from here.)
As per Article 58 of, under Part II of the Schedule of the Limitation Act, 1963, ("the Act") the period of limitation to obtain any declaration (other than those classes of declarations mentioned in Articles 56 and 57 of the Act) is three years from the date the 'right to sue first accrues'. 

Article 113, on the other hand, which is the residuary article states that the period of limitation for any suit for which no period of limitation is provided elsewhere the Schedule, is three years from the date the 'right to sue accrues'.

It is often difficult to ascertain when the right to sue accrues, especially in declaratory suits in which there may not even be a clear cause of action. Courts have analyzed these phrases and laid down guidelines to determine when the 'right to sue accrues' or when the 'right to sue first accrues'. 

Saturday, January 17, 2015

Shia Laws of Inheritance - Clases and Sharers

In respect of Shia Laws of Inheritance only the first marriage is considered to be valid.
Shia law divides legal heirs into two groups:-
(1) Heirs by consanguity and (2) Heirs by marriage.
The second group includes husband or wife. The first group can be further sub divided into three basic classes:-

Contempt of Order of Arbitration Tribunal

In the event that a party to an arbitration seeks to file a contempt to the arbitral tribunal committed by another party then Section 27(5) of the Arbitration and Conciliation Act, 1996 (“the Act”) allows such party to make an application before the Court with the approval of the arbitral tribunal.