NLUD Journal of Legal Studies - Volume 3
Full Volume
Front Matter
The Gendered Contagion: Perspectives on Domestic Violence During Covid-19
Aradhana Cherupara Vadekkethil
Abstract
Centre for Women and Law's book, The Gendered Contagion, is a compilation of student essays, articles, transcripts of interviews with grassroot activists, and field notes from neighbouring countries. This book delves into an intersectional enquiry to understand the impact of domestic violence on various marginalised identities, and how the inequalities present in the society get further exacerbated during the pandemic. It meticulously analyses the shortcomings of the current legal frameworks and lays down a crucial foundation which can positively inform future law and reform policies. This book review assesses the structure and methodology of the book and critically evaluates the prominent themes that emerge in this book.
Keywords: pandemic; lockdown; domestic violence; women; children; gender diverse persons; intersectional violence; gender-sensitive response.
PASL v. GE: A Bittersweet End
Ashutosh Kumar
Abstract
This article analyses the Indian Supreme Court's recent decision in the case of PASL Wind Solutions Pvt. Ltd. v. GE Power Conversion India Pvt. Ltd, which conclusively held that Indian parties can opt for arbitration seated outside India in light of the principle of party autonomy. While this provided much needed clarity on the issue, the judgment creates confusion and controversy in relation to four crucial issues: (1) the tests for determining the seat of arbitration and distinguishing between the seat and the venue of arbitration; (2) the scope of the proviso to section 2(2) of the Arbitration and Conciliation Act, 1996; (3) the application of the public policy principle that Indian parties cannot derogate from Indian substantive law in respect of relationships between themselves; and (4) the relevance of the notification requirement under section 44(b) of the Arbitration and Conciliation Act, 1996. This article identifies this confusion while highlighting possible solutions to effectively address each of these issues. It concludes by advocating for legislative intervention and the Supreme Court's cognisance of the controversies created by the PASL decision, and notes that arbitration law can dynamically evolve to meet the expectations of users only via a process of timely review and reform.
Keywords: arbitration, seat of arbitration, venue of arbitration, party autonomy, public policy, foreign arbitral awards, closest connection test, PASL, the New York Convention, Indian Arbitration and Conciliation Act.
Waiting for Godot: The Much-Needed Overhaul of Indian Extradition Law
Dayan Krishnan and Sanjeevi Seshadri
Abstract
The regime of extradition law in India, requires serious reconsideration, in terms of both legislative amendments and also concerted executive action, in order to make the regime more effective. The present essay argues that the effective implementation of Chapter Ill of the Indian Extradition Act would create a streamlined and expedited extradition regime which dispenses with the onerous requirement of proving a prima facie case. This apart, it is argued that Chapter III must be amended to replicate some of the features available in the United Kingdom's Extradition Act, 2003.
However, as has been pointed out in this essay, it is insufficient to simply make legislative changes, in the absence of executive competence to apply those legislative changes. In the absence of a serious effort by the executive, to effectively implement even the existing legislative framework, any attempts to make the regime more effective will invariably end up being two strangers, waiting endlessly, for the arrival of Godot.
Keywords: extradition reform; Extradition Act, 1962; United Kingdom's Extradition Act, 2003; EAW regime; Fugitive Offenders Act, 1881.
A Case for Tethering Intellectual Property Appellate Board Cases to a Designs Act-Style Framework
Eashan Ghosh
Abstract
On August 3, the Lok Sabha approved The Tribunals Reforms Bill, 2021. It formalizes an April 2021 Ordinance which reset intellectual property litigation in two important ways. First, it dissolved the Intellectual Property Appellate Board. Second, it redirected cancellation actions against intellectual property registrations to High Courts. This reset was curiously executed. The Ordinance— and now the Bill-make no effort to re-organise cases vacated by the Appellate Board. Instead, they simply substitute the words 'Appellate Board' in the relevant statutes with 'High Court'.
I explain that this is a poor solution for three reasons. First, it erases large swathes of statutory law and Supreme Court case law for no upside. Second, registrations remain interlinked with cancellations and infringement. Simply transferring cancellations to High Courts without a statutory separation from infringement achieves little. Instead, this will, bizarrely, give cancellation courts a veto over the fate of corresponding infringement actions. Finally, this will needlessly entangle litigants in cancellation actions with litigants in infringement actions. Confusion is inevitable, and an alternative is necessary.
This alternative, I argue, comes from the Designs Act. Envisioned to exist outside the Appellate Board entirely, it budgets for both cancellation and infringement impeccably. It directs cancellations to a specialised forum. It permits infringement litigants to contest cancellation issues. It details a comprehensive scheme for transfers to High Courts where appropriate. The stylistic fit for other intellectual property cases is perfect.
To develop this alternative, I advance a three-stage framework. Under it, (i) the Intellectual Property Office holds sole original jurisdiction over cancellations; (ii) designated civil courts entertain infringement actions; and (iii) statutes offer a seamless interface between connected cancellation and infringement actions. This framework retains specialised forums, streamlines infringement actions, and efficiently executes transfers. Above all, it enables cleaner, better adjudication in intellectual property cases.
A Case of Ambiguities: Examining the Regulations Prohibiting Market Manipulations in India
Dr. Poornima Advani
Abstract
The article maps the SEBI's actions and policy-level changes to investigate and punish fraudulent and unfair trade practices. The author focuses on the PFUTP Regulations, 2003 and subsequent amendments to the same, to highlight market abuse. Adopting an analytical approach, the author reflects on the vagueness and consequent legal complications arising out of the definition of 'fraud' in the PFUTP Regulations. The author emphasizes on how the absence of any definition of an 'unfair trade practice' in the PFUTP Regulations forces the SEBI and other authorities to rely on interpretations of the term made outside the Regulations. This has a widespread impact on the SEBI's function of investigating and punishing any conduct which is detrimental in nature. The author directs the readers' attention to the manner in which the 2018 Amendment to the PFUTP Regulations brings clarity to the idea of unfair trade practices, by removing the loophole relating to the mens rea requirement when investigating market manipulation allegations. The 2020 Amendment builds on this clarity to elaborate the scope of SEBI's powers to launch investigations wherein allegations of any malcontent in financial disclosure are present. The author appreciates the SEBI's technology-driven outlook and concludes with hope of better regulation of the securities market.
Keywords: securities; unfair trade practices; market manipulation; market abuse, SEBI PFUTP Regulations.
Safeguarding Patient Rights under the National Digital Health Mission through a Feminist Framework of Embodiment
Radhika Radhakrishnan
Abstract
The datafication of health in India, in the age of Big Data, raises pertinent concerns regarding patient rights. Instead of meaningfully engaging with these concerns, the policy framework of the National Digital Health Mission (NDHM) fuels the datafication of health by resorting to conceptual frameworks of understanding data that pre-date the digital age. In this paper, I illustrate that NDHM policies conceptualise health data as a disembodied resource and an enabler for economic progress, without fully capturing the risks of the datafication of health upon the bodies and rights of patients. By building upon feminist scholarship on the embodiment of data and the lived experiences of patients within the NDHM ecosystem, I highlight the relationship between people's health data and their bodies. In this context, I analyse the rights of patients regarding consent, choice, privacy, and control over health data within a feminist framework to visibilise the risks of the datafication of health upon the bodies of patients and offer pathways for change to ensure that patient rights are safeguarded in the digital age.
The Case for an Independent Bank Resolution Framework: Identifying the Flaws in the Current Bank Insolvency Regime in India
Sarthak Sethi and Shashwat Baranwal
Abstract
As the COVID-19 financial crisis induces a bank credit contraction of over $54,000 crores, and with the RBI issuing a moratorium on Yes Bank deposit withdrawals as a result of insolvency, there is rising panic over the viability of Indian financial market infrastructure, exasperated through the systemic tremors caused by the failure of IL&FS. The introduction of the Insolvency and Bankruptcy Code, 2016, was supposed to ease Non-Performing Asset recovery pressure on banks by creating a time-bound and market-linked resolution mechanism for stressed assets. While the efficacy of the 'new era in Indian insolvency' remains in question, the ratio of gross NPAs continues to rise beyond 12.5%. Keeping cognizance of the precarious position of Indian banking, this paper argues that the risks of bank insolvency are now greater than ever before, while the system in law to contend with such risks continues to remain scattered and ineffective. It is imperative for the Indian economy to construct a new framework and question what would make such a framework effective.
Keywords: insolvency, banking, liquidation, financial resolution