Indian Jurisprudence Research Articles

Public Secrets of Law: Rape Trials in India. By Pratiksha Baxi. New Delhi: Oxford University Press, 2014. 434 pp. ₹1,150.00, $59.95, cloth.

Public Secrets of Law: Rape Trials in India. By Pratiksha Baxi. New Delhi: Oxford University Press, 2014. 434 pp. 1,150.00, $59.95, cloth.In the aftermath of the brutal gang rape in Delhi in 2012 and the international scrutiny of Indian rape culture that followed, protests against sexual violence quickly turned to the law as the primary site of reform. But what are the possibilities and limits of law in addressing the issue of sexual violence in India today? In its detailed analysis of rape cases, forensic medical practice, and the working of criminal courts, Pratiksha Baxi's Public Secrets of Law is a remarkable study of the life of rape in Indian trial courts. As one of the first comprehensive studies of the working of criminal courts in contemporary India, Public Secrets of Law gives critical insights about the nature of the Indian criminal court that extend beyond cases of rape. The detailed ethnography demonstrates the contingent and highly subjective process of decision making by legal authorities in the adjudication of rape cases in local courts. She marks through her case studies the highly performative nature of power in courts in India today.The introduction situates her study in relation to comparative ethnographic work on the law and a growing critical literature on law in postcolonial India. Baxi argues that the rape trials reinforce deeply violent phallocentric notions of 'justice' in a performance of the public secret of rape in Indian trial courts. Baxi's study is based on extensive archival and ethnographic work conducted in the city of Ahmedabad, Gujarat from the late 1990s. The location of Baxi's study is key, the highly volatile city of Ahmedabad, defined by communal violence in 1992 and 2002 that resulted in horrific acts of sexual violence committed against minority communities in Gujarat. Baxi's introduction incorporates her own experiences of patriarchal hierarchy, sexual harassment, and even her violation at the hands of a judge, who describes how women's bodies ask for sexual violation by becoming physically aroused. Through this dialogue, Baxi reveals how danger and fear pervaded her ethnographic work. The judge expressed sexual excitement in his enactment of the rape narrative to Baxi and implied that he himself was aroused by the facts of violated women's bodies.In the second chapter, Baxi focuses on the medicalization of victim's bodies and the way norms of forensic evidence medicalize consent and falsity. She critically examines the deployment of the two-finger in case law, a from the British colonial period where medical doctors test the elasticity of the victim's vagina to determine a woman's habituation to sexual intercourse. Medical jurisprudence in India imagines the victim's body as the primary site of truth, where evidence on the body reveals the possibility of the truth of sexual violence. Baxi demonstrates how medico-legal evidence becomes a primary mode through which the defense cross-examines victims and reinforces the idea that women in India often bring false charges of rape.Throughout her study, Baxi is acutely conscious of the vulnerability of victims who declare acts of sexual violence and seek recourse in the law. In Chapter Three, she emphasizes how the question of childhood is key in the determination of the truth of rape, where courts sexualize children and force children to testify to sexual violence in language that inscribes blame on the body of the child. The ethnography attends to the effects of this declaration, marking, for example, the profound meanings of the complaint in Gujarati, fariyad [literally, an appeal], a cry of pain or the naming of a violation. …

An Analysis on Fight Against Climatic Changes in India

The great Indian ancestors were highly concern not only with environment but also with climate, we have lot of evidences available but later on we forgotten that is why we followed the world community in nineteen century. India enacted vital laws for environmental concern since after independency even though there was lacuna for environmental concern during framing of Indian Constitution, but India became caution after participating in fighting of environmental devil at world level. However, the development of Indian environmental law is bit-by-bit and answering to certain Spark off the events. These can be identified in the evolution of the Indian environmental law. The U.N conference on human environment held at Stockholm in 1972 was path finder for legislation in the field of environmental laws and climatic changes. On that base line Indian parliament enacted various Act and included some of provisions relating to the environment in the Constitution like Articles 48 A and 51 A (g). Now Indian society having hidden but deep impact of climate change, Recently a bill on climate change that aims at bringing about a comprehensive change to the country's existing laws, On the other hand In Lima conference UN member’s countries agreed on curbing Earth-warming greenhouse gas emissions.But a mere enumeration of the strategy at various International or National level will sufficient. The starring role being played by the Indian judiciary has strengthened the environmental jurisprudence in India.

Regulating India’s blood-sport: an examination of the Indian Supreme Court’s decision in Animal Welfare Board of India v. A. Nagaraja

The recent verdict of the Indian Supreme Court (SC) banning Jallikattu, bullock cart races and ‘other such events’ has won accolades amongst several animal rights activists and environment enthusiasts. The decision blends ecocentric principles towards recognition of ‘intrinsic worth’ of animals into the Indian jurisprudence drawing its essence from several international covenants and recognised legal position on animal welfare in other jurisdictions. The case-note analyses this decision in the context of previous interpretations of the Supreme Court and the Madras High Court on this issue as well as drawing parallels from the recent cases of the International Court of Justice and the World Trade Organisation. The note then critiques the Supreme Court’s decision which instead of objectively choosing a recognised criteria of harm done to the bulls, self-assumed its own ‘standard of harm’ premised on studies of behavioural ethology presented by the Animal Welfare Board of India. Finally, the authors analyse the efficacy of the recommendations given by the SC and study whether the ideals as endorsed in its overall reasoning would align with the actual implementation of the decision on ground.

Building national initiatives of compulsory licences

Purpose– The purpose of this paper is to examine the extent to which developing countries could build national initiatives of compulsory licences.Design/methodology/approach– The focus of this article is only on developing countries. The author reflects on the Indian patent jurisprudence regarding the operational relationship between the general principles applicable to working of patented inventions locally and the grant of compulsory licences. The discussion that follows is based on a review of the case: Bayer Corporation versus Natco Pharma with a view to presenting a model for developing countries to maintain that the public interest principle of patent law is well-founded in their domestic patent regimes.Findings– The analysis confirms that failure to work locally continues to be abusive of the patent right under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, and remains a valid condition on which to grant a compulsory licence. Thus, this reverses the often-contrary misconception that has become almost a unanimous assumption that failure to work basis for granting compulsory licensing would violate Article 27(1) of TRIPS and its enforcement provisions on patent.Originality/value– The author argues that as no member state has challenged the legality of Indian’s decision in the World Trade Organisation, under the dispute settlement understanding (DSU) system is more supportive of the contention that failure to work locally continues to be permissible under TRIPS and remains valid conditions on which member states can grant compulsory licences. This further adds weight to the understanding that nothing in the light of TRIPS would, in fact, preclude any possibility of developing countries amending their patent laws accordingly to maintain that the public interest principle underlining patent law is well-founded in their domestic patent regimes.

Future of Tribunals in India: An Analysis of Recent Judicial Response

The case comment seeks to understand the verdict of the Supreme Court in Madras Bar Association v. Union of India wherein it declared the National Tax Tribunals Act 2005 to be unconstitutional. The Apex Court while upholding the power of the Parliament to create Tribunals has circumscribed it with limitations aimed at preserving the independence of the judiciary as well as efficacy of such Tribunals. The decision holds key lessons for the future of tribunals in India and goes at the foundation of the concepts of ‘separation of power,’ ‘rule of law’ and ‘judicial review’ in Indian jurisprudence.

Four Feet of Legal Procedure and the Origins of Jurisprudence in Ancient India


 
 
 The well-known classification of legal procedure into “four feet” presents certain conceptual problems for the Indian legal tradition that various Smṛtikāras and commentators have attempted to resolve in different and sometimes contradictory ways. These difficulties arise because the four feet originally referred in Indian legal theory to four distinct, hierarchical legal domains rather than procedural means for reaching a verdict. The earliest attested discussion of the four feet, found in Kauṭilya’s Arthaśāstra, indicates that early legal theorists understood the greater legal order as being comprised of four hierarchical domains and that these domains were ordered by the state as expressed in the original formulation of the four feet. Among the four legal domains, that of vyavahāra was developed by the state itself as a realm of public, transactional law meant to address disputes that could not be resolved in other legal forums. From this we can conclude that the origin of Indian jurisprudence lies with state efforts to formalize and enforce the laws of public transactions. The reinterpretation of the four feet by later jurists was motivated perhaps by resistance to one of the fundamental relationships expressed in the four feet, namely that royal authority possessed the greatest legal authority, independent of Brāhmaṇical law.
 
 

Protecting Free Exercise of Religion under the Indian and the United States Constitutions: the Doctrine of Essential Practices and the Centrality Test

Abstract Free Exercise of Religion is a protected constitutional right under the democratic constitutions of both the biggest democracy in the world ie India and the most powerful democracy in the world ie United States of America. Despite textual similarities in the free-exercise clauses of Constitutions of both of these democracies, there is a big difference in the standards of review whereby free exercise claims are judicially reviewed by their re­spective Supreme Courts. Whereas the US Supreme Court does not give much weight to the sincerity of the religious belief and employs the ‘religion-neutral’ test, the Supreme Court of India gives due weight to the sincerity of the religious belief and employs a ‘reli­gion-central’ test known in Indian free-exercise jurisprudence as the Doctrine of Essential Practices. However, a closer examination of judicial opinions on the point discloses that sincerity of religious belief is not entirely unimportant in US free-exercise jurisprudence but still is not given the kind of importance that it is given in India - a nation that is and has historically been religiously diverse. This paper closely examines the free-exercise jurisprudence as developed by the respec­tive Supreme Courts and argues that in view of the changing religious diversity in the United States perhaps time has come to re-examine the reluctance of the American courts to give its due weightage to the sincerity of religious belief while judicially reviewing free-exercise claims. Relying on several judicial opinions of the US Supreme Court and its sub­ordinate courts in the US and by demonstrating their factual and doctrinal equivalents in the Supreme Court of India, this paper argues that free-exercise clauses of both the US and Indian Constitutions protect not just the right to believe in whichever religion an indi­vidual chooses but also acts in pursuit of religion. The belief-act distinction - an idea at the core of much of US free-exercise jurisprudence is not what is truly protected by the free-exercise clause. What is protected indeed are the acts done in pursuance of religious belief. A line has to be drawn between the acts that are sincerely done in pursuance of religion and those that are not. This line has to be drawn by the Courts on a case to case basis. And that is where US free-exercise jurisprudence would be well assisted in examining Indian free-exercise jurisprudence on the point.

The Evolution of the Constitutional Right to Free Speech in India (1800-1950): The Interplay of Universal and Particular Rationales

This paper seeks to provide a descriptive account of the evolution of free speech in colonial and post-independence India, while remaining alert to significant analytical considerations. The paper focuses on crucial periods in the evolution of Indian constitutional jurisprudence on the right to free speech. It starts its narrative with the introduction of the printing press in India in 1778 and the creation of the first Indian newspapers and newsletters in the early 19th century. The bulk of the paper focuses on the debates within the framers of the Constitution of India on the issue of free speech that occurred between 1947-50. The principal argument advanced in this paper is that while both universal and particularist arguments played vital roles in preparing the ground for public support for free speech and the eventual adoption of a constitutional right to free speech, there are specific phases where the dominance of one over the other was markedly felt. Broadly speaking, universal arguments for free speech were dominant during the colonial era, when intellectuals and nationalists drew on universal and comparative understandings (mixed often with local and particular reasons that played a lesser role) to advance arguments for free speech. By contrast, when the framers of Independent India began drafting the rights provisions, the overall influence of universal arguments for free speech was considerably moderated by the pressing demands of the social, political and economic conditions in mid-twentieth India, which led them to permit several grounds of restrictions of rights in response to such conditions. This is not to suggest, however, that universal influences were always towards expansion of free speech, or that particularlist influences were only towards restrictions on speech. As we will see, the story is more complex and some particularist justifications for embodying a strong free speech right in India were also advanced. This paper is very much work-in-progress and is part of a larger project that tries to understand post-colonial Indian constitutionalism against a wider historical trajectory, which in my view is often lost sight of, and is not emphasized enough, in contemporary scholarship on Indian constitutional law.

Enforceability of Share Transfer Restrictions in India: Momentous Regulatory Shift

This paper focuses on the enforceability of share transfer restrictions under the ambit of company contracts including, inter alia, preemptive rights such as 'right of first refusal', or' tag-along' or 'dragalong' rights contained in shareholders' agreements or articles of association. With the enactment of the Indian Companies Act 2013 company law jurisprudence in India is set to take an efficacious leap as it addresses not only corporate governance issues but also introduces sweeping changes which, though sine qua non to rights of shareholders, have been consistently denied in India.

Feminist Jurisprudence in India with Reference to Individual Freedom of Women vis-a-vis State's Duty to Protect Them

In the history of mankind ‘equality' and ‘freedom' evaded women in comparison to men. Women always suffered subordinate status and were assigned a purely functional role in every society or civilisation of the world. Over the period this unequal status of women being offensive to human dignity and human rights steered to develop feminist jurisprudence. This research paper reflects the perspective of feminist jurisprudence with reference to individual freedom of women, its expansion under other various issues and State's / employer's duty to protect women's individual freedom and to empower them. This research paper exclusively deals with that feminist jurisprudence which has been developed by judicial decisions in India.

A Case Analysis on the Ramlila Maidan Incident, 2011

Being the first case wherein right to sleep was regarded as a fundamental right this is one of the landmark judgments in the Indian jurisprudence The original intent was to scrutinize the judgment pronounced by the Hon’ble Supreme Court of India by the unjust action of the Union of India.

Judicial Response on the Problem of Legal Status of Women in Invalid Wed-Locks or Live-in Relationships with Men

Everything is not strictly black or white or right or wrong when one treads the complex terrain of human relationships. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror. However, with changing social codes and a new-found sexual freedom, Indian society is waking up to the reality of relationships that are not defined under the ‘pious’ institution of marriage. Further, the Supreme Court of India has repeatedly observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of ‘adultery’), even though it may be perceived as immoral. But this leaves them in a vulnerable situation, socially as well as emotionally, if the relationship does not work out. When the relationship breaks, the female partner has no legal benefits accruing to her in terms of maintenance, alimony and share in property, all of which that a legally wedded wife has. The legal rights of the children born out of such relationship also throw up various intricate challenges before the courts every now and then. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting the Protection of Women from Domestic Violence Act, 2005. This paper aims to make an endeavour to take stock of various judgments of the higher judiciary in the light of constitutional provisions and statutory laws on the subject. It will also strive to put up a case for induction of the American concept of ‘palimony’ in the Indian jurisprudence.

Interface between Competition law and Intellectual Property Rights: A Comparative Study of the US, EU and India

It is generally viewed that Intellectual property protection and competition law are odds with each other. Is there really any tussle between intellectual property protection and competition law? Intellectual property law creates and protects monopoly power and the other seeks to exclude it. IP exclusion provisions are included in the Indian Competition Act, 2002 in Section 3(5). This is to provide enforcement to intellectual property rights. But protection of intellectual property rights are not per se violates any competition provisions. The objective of competition law is to prohibit anti-competitive practices and the objective of both the stream is wealth maximization in any economy. Intellectual property protection is necessary to foster innovation and choices of products in the market. It infuses efficiency in the market and increases consumer welfare. India is in the nascent state of its administration of competition laws. There are sizable number of cases came before the Indian competition authorities (CCI) and Indian courts. Cases against Microsoft India and abuse of dominant case against Ericsson filed by an Indian company named Micromax is only the beginning of the interface cases on intellectual property and competition law. There is no sufficient case laws and jurisprudence is available in India in guiding the Indian authorities and courts on the interface between intellectual property and competition. It is necessary to make an analysis of the jurisprudence in the US and EU. First part of this paper deals with the US Antitrust Act, 1890 and analysis of a number of cases dealt by the US courts. The EU Regulations and cases are clearer on issues of intellectual property and competition law. Indian jurisprudence is not clear so far and few cases are dealt by the CCI and Indian courts. The study concludes that Indian authorities should learn from other jurisdictions and the jurisprudence will act as guideline for Indian authorities.

Reference of Non-Signatories to Arbitration in Composite Transactions: Did the Indian Supreme Court Get it Right?

In Chloro Controls India Pvt. Ltd. v. Severn Trent Water Purification Inc. and others, the Indian Supreme Court ruled that non-signatories to arbitration agreements for foreign arbitrations can be referred to arbitration especially in the cases of composite transactions. This is possible when a non-signatory is claiming through a party to the arbitration agreement. Although this is another step towards the development of a pro-arbitration jurisprudence in India following the ruling in Bharat Aluminium Co. v. Kaiser Aluminium, the judgment raises many concerns, such as causing long delays in the conclusion of arbitral proceedings and creating uncertainty as to the nature of the proceedings under section 45 reference applications. This article critically examines the ruling, identifies the relevant law, and explains the limits of its application.

The Need for a Dynamic Jurisprudence of Right to “Life” Under Article 5(1) of the Federal Constitution

Abstract: Although “life” under Article 5(1) of the Federal Constitution is fundamental it was not clearly defined. Consequently, there is uncertainty on the ambit of this right in the Malaysian jurisprudence. Conversely, the Indian jurisprudence on right to “life” under Article 21 of the Constitution, which is equipollent to the Malaysian Article 5(1), is certain, and the judiciary had taken an active approach on the interpretation. Consequently, this broadens the ambit of fundamental rights. Hence, India is a source of reference in the adoption of a dynamic jurisprudence on right to “life”.

Growth and Development of Industrial Jurisprudence in India

The term industry has always been a very controversial point in the area of industrial jurisprudence. However, there have been some judgments in a string of cases, which have tried to resolve the dispute and lay down an adequate definition whenever question arose. Later it has been realized that these definitions have created huge confusion. To pacify the situation the definition of industry under section 2(j) of the IDA was considered by the Supreme Court in the land mark judgment of Bangalore Water Supply and Sewerage Board Vs A.Rajjapa and Ors 1 , wherein the court laid down the broad interpretation of the term industry. This judgment holds importance because it was for the first time that a comparatively clear definition of the term was given. The phrases labour laws' and 'industrial laws' are used synonymously and refer to those laws and legal rules which regulate the employer-employee relations. Some of these laws impose certain obligations or confer certain rights upon the employers or the employees so that in the ultimate analysis they can be deemed to impinge upon employer-employee relations.

Transfer Pricing Issues Relating to Marketing Intangibles

This article outlines the issues faced in India surrounding the transfer pricing issues of marketing intangibles. Indian jurisprudence as well as international guidance on these issues are also discussed.

Law and Governance in Mahabharata: The Lessons to Be Learnt from Indian Jurisprudence

Law and Governance in Mahabharata: The Lessons to Be Learnt from Indian Jurisprudence

The Indian Jurisprudence on Prison Admistration and the Legislative Concerns

The Indian Jurisprudence on Prison Admistration and the Legislative Concerns

The Quest for Appropriate Jurisdiction: Clash between Indian Patent and Competition Law

The Indian Patent Act, 1970 and the Indian Competition Act, 2002, both provide measures to curb anti-competitive practices.1 The Competition Act, 2002, provides a forum, which is quite dissimilar to that provided by the Indian Patent Act for the redressal of grievances pertaining to anti-competitive practices involved in exploitation of patents. Harmonious interpretation of different legislations is a fundamental tenet of the principle of interpretation of statutes. It has now been fairly established that the Laws dealing with intellectual property deal with establishment of rights whereas the competition law deals with the existence of rights. The leitmotif of this article is not to regurgitate the scholarly writings on the intersection between Intellectual Property Rights and the Competition law. This article aspires to provide a facet of the clash between the Patent Act and the Competition Act in searching the appropriate forum having jurisdiction to address issues pertaining to both the domains. It ends with a picture in which the author has endeavoured to provide possible solutions for untying the Gordian knot. Interpretation of statutes has served as a useful tool for the authors foray into unchartered territories defined under the article. Since, the Indian jurisprudence on the subject at issue has not yet been fully developed, this article, quotes some possible interpretations which might assist in building a legal jurisprudence.