NLUD Journal of Legal Studies - Volume 1
Full Volume
Front Matter
The Public Sphere (Forged) In the Era of Fake News and Filter Bubbles: The Brazilian Experience of 2018
Eduardo Magrani & Renan Medeiros De Oliviera
Abstract
In this article we intend to explore, through the bibliographical review and the study of poll of voter intentions in Brazil, a little of the new technological phenomena that, together, affect the way in which the citizen forms his opinion about the everyday facts significant for public life, in general, the electoral process and the candidates, in a discerning way. Firstly, we take into account a brief approach to the theoretical framework in which we are based to think of a communicative, rational public sphere and in which the ideal situation of speech is sought.
Secondly, we deal with fake news - which is about false news that desires to influence the way the population looks at a particular candidate - and deep fakes - which have a similar goal but act by altering the reality in a more profound way. Finally, we approach how the algorithms, especially the use of bots, are acting in order to create a forged public sphere which does not match the real desire and the real need of individuals. In addition, we deal with how the thinking of individuals is being distorted in the filter bubble scenario, which potentialises the effects of the phenomena studied in the preceding items. Throughout the development of this study and through the hypothetical-deductive method, we will seek to demonstrate that the new technologies have a great potential of impact on the electoral will, although this potential has not yet been explored in all its extension. It walks into a scenario where the electoral process is hackable.
Mapping Indian Judiciary’s Approach to Investment Treaty Arbitration
James Nedumpara, Aditya Laddha and Sparsha Janardhan
Abstract
Recent judicial decisions in India suggest that the Indian courts have taken a pro-arbitration stance in cases of investor protection claims under a Bilateral Investment Treaty (BIT). These decisions indicate a reluctance on the part of Indian courts to grant anti-arbitration injunctions ensuring limited judicial intervention in arbitration proceedings. The article analyses the approach of the Indian judiciary by mapping some of the recent disputes. Additionally, the article examines the mechanism of enforcement of investment treaty awards in light of the 'commercial reservation' that India has taken in the New York Convention. It also examines 'public policy' as a ground for refusing enforcement of investment treaty awards. The article concludes by observing that Indian courts have been favorable towards investor state arbitration proceedings. In doing so, however, courts have ousted the applicability the Arbitration & Conciliation Act leading to a legal vacuum for regulation of arbitration proceedings and enforcement of investment arbitration awards in India.
Back to the Drawing Board : What Should be the New Direction of the Intermediary Liability Law?
T. Prashant Reddy
Abstract
The primary objective of this article is to critically examine the rationale behind the current and proposed standards of legal liability for intermediaries in India. The article places immunities like 'safe harbour' provisions offered to intermediaries in the larger context of liability related law, showcasing them as subsidies suitable at the dawn of the internet era that cannot continue to be retained by today's internet behemoths. The paper progresses to analyse crucial debates surrounding existing Indian provisions on intermediary law, regarding enforceability and 'due diligence' requirements. Through this analysis, the author wishes to draw out inadequacies in the recently introduced Draft Information Technology [Intermediaries Guidelines (Amendment) Rules/ 2018 and propose an alternative legislative model that is closely tailored to Silicon Valley's existing encryption and moderation practices.
The Pragmatics Behind ‘Seat’/ ‘Place’and ‘Venue’ in an Arbitration Clause: Is Hardy A Discordant Note?
Adarsh Ramanujan
Abstract
The Supreme Court has, over the years, attempted to clarify the difference between the words, 'seat', 'place', and 'venue'. However, confusion still persists and a major debate relates to the implications of the absence of any of these words in an arbitration clause when referring to a territory or location, or alternatively, where the arbitration clause refers to a 'venue' without separately mentioning the 'seat'/'place'. This article shall examine the pragmatic meanings to be drawn from such arbitration clauses taking the recent judgement of the Supreme Court in the Hardy case as its central point. The author critically analyses the judgement in all its dimensions and delves into the position of law arising from a consistent line of cases before Hardy to argue that the decision is per incuriam and should be viewed as a deviation rather than as precedent.
Strict Liability and its Misapplication in India
Aditya Swarup
Abstract
The article critically analyses the development of the principle of strict liability' laid down in Rylands v Fletcher, and the manner in which it has been applied by the Indian Supreme Court. The author argues that common law and Indian courts have read in various exceptions to the principle, thereby diluting it to its bare bones. Critiquing the carve-out of the principle in MC Mehta v Union of India, the author argues that the Supreme Court's misinterpretation in recent jurisprudence has made the application of the principle inconsistent with its intended contours and limitations. The paper questions the conflation of 'strict liability' with negligence and the trends that have obscured the answer to pertinent questions regarding strict liability's application in India. In concluding that strict liability in its current form is no longer applicable in India due to such convoluted jurisprudence, the author suggests construing the rule of negligence and absolute liability in a manner so as to absorb strict liability, similar to the approach prescribed by the High Court of Australia in the Burnie case.
Where’s the Money? Paths and Patholigies and of the Law of Party Funding
Aradhya Sethia
Abstract
With an electoral competition involving around 902 million votes, 8049 candidates and more than 2200 registered parties, it is only obvious to expect that Indian General Election would be a staggeringly expensive affair. The 2019 Indian General Election was no different. According to some measures, it was the costliest election in democratic world, with total amount spent being close to 6 trillion. Indian electoral democracy, despite its acclaimed successes, faces a serious challenge in the form of its party funding regime. However, party funding has received scant attention in Indian legal scholarship. It is this vacuum that this article intends to fill. In India, party funding is regulated through a complex but disparate set of corporate, election and taxation laws. The article is divided into four parts. The first two parts will deal with two different axes of party funding regime in India - (a) corporate contributors: who can contribute funds to political parties? and (b) disclosures: what, if any, information about these transactions should be disclosed, and to whom should disclosures be made? Party funding reforms have been limited by entrenched practices, culture and political economy that are effects, as well as causes, of the path that party funding regime has traversed in India. I will further explore the constitutional responses to the electoral bonds and other laws that facilitate party funding opacity.
I will conclude with a cautionary note. Laying excessive emphasis on electoral bonds in the recent commentary, while ignoring other elements of party funding reform, is missing the forest for the tress. It is not to say that the policy of electoral bonds is insignificant or even desirable. Instead, I argue that if other elements of party funding law are left intact, merely doing away with electoral bonds may be far from fixing party finance.
Examining the Constitutionality of the Ban on Broadcast of News by Private FM and Community Radio Stations
Torsha Sarkar, Gurshabad Grover, Rajashri Seal and Neil Trivedi
Abstract
In 1995, the Supreme Court declared airwaves to be public property in the seminal case of The Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal, and created the stepping stones for liberalization of broadcasting media from government monopoly.
Despite this, community radio and private FM channels, in their nearly two decades of existence, have been unable to broadcast their own news content because of the Government's persisting prohibition on the same.
In this paper, we document the historical developments surrounding the issue, and analyse the constitutional validity of this prohibition on the touchstone of the existing jurisprudence on free speech and media freedom. Additionally, we also propose an alternative regulatory framework which would assuage the government's apprehensions regarding radicalisation through radio spaces, as well as ensure that the autonomy of these stations is not curtailed.