Indian Jurisprudence Research Articles

Intellectual Property and Standardisation: Key Aspects for an Innovative India

The telecom sector has been a pivotal force behind India’s digital transformation. Surge in data consumption and rapid adoption of new technologies continue to redefine connectivity and engagement dynamics in India. As the largest data consumer and the second largest smartphone market, India is carving out a new digital identity globally. At the same time such a digital transformation has been brought by innovative companies who wish to be compensated for their efforts, often via licensing. The first part of this paper will explain the impact of standardization on the Indian market. The second part will focus on the key role of an effective patent enforcement system in balancing standardisation contributors and implementers’ interests. On this regard, the paper analyses the changing patent landscape in India. It follows a brief review of the Indian jurisprudence relating to patents essential to a technical standard. Third, the paper will identify some of the main strengths and obstacles of the patent litigation system in this particular field, including some concrete proposals or suggestions for improvement in the latter. Finally, the paper will sketch some general conclusions.

Galvanisation of the Right to Development within the Shared Constitutional Space in India

This article accentuates the concept of the right to development (rtd) and focuses on the various facets of rtd as developed by the Supreme Court of India in its multiple pronouncements since the advent of the last decade of the 20th century. The apex court, through a conjoint reading of various aspects provided in the Constitution’s Preamble, Fundamental Rights, Directive Principles and Fundamental Duties with the Declaration on rtd has interpreted various cases that have opened new horizons of curative developmental jurisprudence in India. The main aim of this study is to capture the various trends and directions of discourse on rtd and explore the constitutional space for rtd in India. This article also evaluates the impact that Declaration of rtd has had on the Supreme Court of India and to what extent has the Supreme Court of India galvanised rtd to provide remedies to millions of Indians. The article emphasises the holistic view taken by the Supreme Court in matters of private rights versus the developmental rights of millions. Another significant aspect of rtd that has been emphasised in this article is the conflict between human rights of the marginalised group with the burgeoning rtd. The discourse on economic growth and rtd within the constitutional space will remain in the heart of politicians, social scientists and the populace in the coming years.

Professor of pathos: Upendra Baxi’s minor jurisprudence

What is Upendra Baxi’s contribution to jurisprudence in India? Baxi’s single-most important contribution to jurisprudence in India has been to infuse legal scholarship with pathos – the pathos of suffering, resistance, responsibility and care. An apocryphal reading of Baxi’s work might make us consider his passionate heft as a sentimental inflection, but it will not necessarily lead us to consider this as a jurisprudence. Baxi’s pathos endeavors to unmask law’s violence and silence about the suffering of those on the margins (even as he has offered ways of working with law); and in turn Baxi’s pathos has become marginal to the teaching and learning of jurisprudence in India. Indian legal education is marked by a simultaneous presence and absence of Baxi. His work is acclaimed for its rigorous content, but not necessarily for its innovative forms. While his politics is contingently celebrated, his aesthetics is considered removed from jurisprudential insight. It might be well accepted that Baxi writes with pathos, but does that pathos constitute a jurisprudence? In this essay, I offer some illustrations of Baxi’s minor jurisprudence by looking at three particular forms of writings which don’t get counted as part of his jurisprudential oeuvre: his lesser known works in the field of law, acknowledgements and footnotes that appear on the margins of major works, and tributes written by him on the passing of his mentors and comrades. My choice of the selected references has to do particularly with how these writings have helped me think through my own work as a law teacher and scholar.

Judicial borrowing and creeping influences: Indian jurisprudence in Sri Lankan public law

ABSTRACTThe significant developments in Sri Lankan public law in the last three decades have been due to the explicit or implicit influence of Indian jurisprudence. This influence can be seen in Sri Lanka’s jurisprudence on the right to equality, the habeas corpus writ, the “basic structure” doctrine, the interpretation of the rules of standing, and in the fundamental rights jurisprudence. Since the establishment of British colonial rule, English common law has been the foundation and source for the development of Sri Lanka’s public law. Three methods characterize a recent turn to Indian jurisprudence in the development of public law. One method is of direct judicial borrowing. The second method is reinforcement of judicial reasoning by reliance on Indian jurisprudence. The third is the creeping influence of Indian jurisprudence. I argue that these developments unsettle, if not replace, the historical reliance on English law. These developments are arguably an indication of a nascent Sri Lankan common law that draws its inspiration, at least in part, from a jurisprudence that bears constitutional proximity to India. Consequently, the place of English common law as the “main source of law” in Sri Lankan public law has now been weakened.

Approach of Indian Judiciary towards Sustainable Development in India

Sustainable development is increasingly promulgated in international and national legal contexts, but there is a long way to go in terms of implementation. In recent years, there has been a sustained focus on the role played by the higher judiciary in devising and monitoring the implementation of measures for pollution control, conservation of forests and wildlife protection. Many of these judicial interventions have been triggered by the persistent incoherence in policy-making as well as the lack of capacity-building amongst the executive agencies. However, recently, Judiciary is playing the vital role in the protection of environment. One of the main developments in the Indian Judiciary is the Public Interest Litigation. It is the new jurisprudence and is called “Jurisprudence of Masses”. The role of Indian Supreme Court in resolving environmental disputes has contributed immensely to the evolution of environmental jurisprudence and principles in India. This includes recognizing right to healthy environment as a part of fundamental rights and the various principles of environmental protection. It appears that the international environmental law principles have been utilized by the Indian courts not only to ‘formulate’ much of the contemporary environmental jurisprudence in India but also to ‘enrich’ the same. This process is still going on and is a strong approach towards the achievement of sustainable development.

Speech, Association, Personal Liberty, and the State of Exception: Jyoti Chorge v. State of Maharashtra

This essay examines the judgment of the Bombay High Court in Jyoti Chorge v State of Maharashtra, in which the Court granted bail to members of the Kabir Kala Manch, who were accused of being Naxalites, under the provisions of the Unlawful Activities Prevention Act. I shall argue that Jyoti Chorge vs State of Maharashtra was a transformative judgment, because it represents the clearest and most coherent example of judicial resistance to an almost overwhelming trend in Indian constitutional jurisprudence: the Courts’ willingness to uphold and endorse laws that severely curtail civil liberties by citing “exceptional situations.” I shall begin by outlining the gradual evolution of the Supreme Court’s jurisprudence on the freedom of speech and association, which is meant to apply to times of “normalcy.” Over time, the Court has incrementally strengthened free speech and association rights under the Constitution (culminating in Shreya Singhal v Union of India) (I); these protective standards, however, have never been applied by the Court to two legal regimes that are specified under the Constitution: preventive detention under Article 22 (II), and the state of “Emergency” (III). In the context of the relationship between individual rights and State power, both these situations have seen the Court invert its “normal” legal and constitutional standards. However, while preventive detention and Emergencies are defined within the Constitution itself, over time, the Court has allowed its approach to these exceptional situations to become a norm. The Court’s scrutiny of laws that are neither preventive detention laws, nor passed under an Emergency, but are justified on the touchstone of fighting terrorism, has replicated its jurisprudence of the states of exception. Instead of testing anti-terror laws on the touchstone of the Constitution, the Court has modified constitutional doctrine in order to “fit” anti-terror laws, thus endorsing the creation of “a permanent state of emergency.” (IV) It is in this context that I shall argue that Justice Thipsay’s judgment in Jyoti Chorge repudiated every element of this “permanent state of exception jurisprudence.” (V). Furthermore, this approach was the correct one: the framing of the Constitution marked a decisive break from a permanent state of exception under the authoritarian British regime, to rule-bound regime where exceptions were to be strictly and narrowly defined. The Supreme Court’s interpretation of anti-terror laws has mirrored colonial legal practices in legitimizing a permanent state of exception, and has therefore failed to maintain fidelity with the transformative character of the Constitution. By contrast, Jyoti Chorge’s judgment did so (VI). I shall conclude by examining the impact of Justice Thipsay’s approach upon other restrictive legal regimes such as the Goonda Acts and the Public Safety Acts that exist in various states, and argue that its transformative vocabulary provides us with the language and resources to think afresh about these laws, and to challenge their continued existence on the statute books, on grounds of personal liberty. (VII).

The Evolution of India’s Environmental Jurisprudence and the Role of the Judiciary

This Research Paper traces the evolution of Environmental Jurisprudence in India and its close relationship with the Judiciary of the country. Various landmark environmental case laws are closely examined and also the opinions of the Judiciary are taken into view.

Traditional Jurisprudence and Protection of Our Society: A Jurisgenerative Tail

This Article organizes thoughts from a long period of work and life exploring some of what uniquely guides traditional Euchee and Muscogee society. My participation in Euchee ceremonial life is a lens by which I view tribal, federal, and human rights law and processes. I hope to begin articulating a modern traditional Indian jurisprudence and find some source(s) to aid in preservation of Native society. In order to truly reform federal Indian law, not only must traditional tribal jurisprudence be acknowledged, but the processes used by ceremonial people must be understood and utilized in a transformative effort. I am informed by discussions with friends from other tribes who hold similar beliefs to my Euchee people; I write from the perspective, however, of a Polecat Euchee ceremonial stomp ground member. I believe the validity of my observations depends upon tribal specificity, meaning I do not simply refer to “Indian” traditions but rather to Euchee, Muscogee, or Shawnee traditions. Traditional jurisprudence must be a foundation of the current international indigenous rights efforts regarding sacred sites and artifacts, religious practices, and culture. If Indian advocates are unable to articulate what we believe and the nature of the society being destroyed, it is more difficult to argue for its continuity. More importantly, we must be able to explain to ourselves what we believe, teaching our own people and incorporating those beliefs into our tribal institutions. Doing so will ensure an indigenous based social-legal system that carries us into the future. I hope this process will also be of interest to my friends and colleagues exploring federal Indian law and international human rights.

Bifurcation, unification and calibration: a comparison of Indian and English approaches to proportionality

ABSTRACTAt least in name, proportionality is a global doctrine. Indeed, though there are 4000+ miles between them, England and India share the concept in their administrative law. Nevertheless, there is increasing recognition that just because the word proportionality is used globally, that is not to say that it has a global meaning. Sharing this perspective, this article will compare Indian and English proportionality jurisprudence and demonstrate one way that the doctrine is materially different. Specifically, this relates to the relationship between proportionality and rationality review. Notably, Indian jurists conceptualize this relationship as a bifurcated one; they conceive the two doctrines as involving very different forms of judicial scrutiny. By contrast, in contemporary English jurisprudence, the relationship is increasingly a unified one, involving potentially similar forms of scrutiny. With these insights, the article will be of interest to comparative proportionality scholars and to Indian lawyers exploring the character of domestic proportionality.

The erring trends shaping Indian FRAND case law: towards a new approach

Smiriti Tripathi is a student at the National University of Study and Research in Law, Ranchi. FRAND (fair, reasonable and non-discriminatory) litigation, unlike every other traditional litigation, requires some clarity on the background. It is important to understand what standard essential patents (SEPs) are, how they differ from regular patents or even compulsory licences and why they are so important. And most importantly, it is vital to understand the standing of relevant standard-setting organizations (SSOs), their functioning, policies, approach and their limitations. With a brief review of such concepts, I explain why the determination of royalty rates is a tricky concept in FRAND and that they should be left to technical bodies like the Intellectual Property Appellate Board (IPAB). Then again, there is no written word of law which prohibits the courts from adjudicating upon royalty rates. It is advisable, however, if the same is referred to the technical bodies instead, which becomes more imperative from the Hon’ble Delhi High Court’s act of granting temporary injunction in SEP litigation unlike any other leading court, thus influencing the ongoing negotiation process between the parties. Furthermore the Competition Commission of India is the only anti-trust body which has assumed jurisdiction in a FRAND matter. I have provided a number of recommendations and the approach that should have been followed by the Hon’ble High Court and the Competition Commission of India. With issues like non-disclosure agreements, double dipping, issuance of interim injunctions and rates, it might not be possible to ascertain the direction in which Indian jurisprudence is moving, but one thing is sure: FRAND litigation is under the spotlight!

Competition and Antitrust Enforcement Against Standard Essential Patents in India

Competition authorities and courts across the world have assessed issues at the interface between competition law and intellectual property rights. India is no longer a stranger to this debate and has witnessed the initiation of multiple proceedings involving the exercise of standard essential patents. Further, a long-pending jurisdictional conflict has now been resolved by a court decision, paving the way for the Indian competition authority and courts to concurrently examine the exercise of standard essential patents. While these developments represent a step in the evolution of antitrust jurisprudence in India, several foundational issues in relation to the competition enforcement against standard essential patents are yet to be decided.

Anti-dumping practice in India: due process, confidentiality and the WTO standards

The trade remedy laws of India, as a Member to the World Trade Organisation, are governed by provisions of the relevant Agreements, including the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, commonly referred to as the AD Agreement. India deserves special mention as the highest user of trade remedy laws in the world. One would imagine that such a rich history of anti-dumping investigations would have resulted in highly sophisticated jurisprudence in India and by now, India should have added to the jurisprudence and understanding of the AD Agreement. Reality disagrees and this article explores recent, but interesting, developments highlighting progress and regress of Indian anti-dumping law and practice.

Whither evidence (Act) based reasoning?: towards an effects-based approach in Indian competition jurisprudence

Whither evidence (Act) based reasoning?: towards an effects-based approach in Indian competition jurisprudence

The concept of dharma in Indian jurisprudence

This paper deals with the concept of Dharma and its application in the field of Jurisprudence. How Dharma has influenced the law, is one such aspect which has been explained in this paper. Dharma, basically refers to the virtuous conduct of a person and relationship with his religion. The notion of Dharma, draws its inspiration from sources like the Vedas, and thus is a concept which is time immemorial. Dharma is closely related to Jurisprudence as it deals with what is right and what is wrong. Dharma has been explained, in the Mahabharata to be that which helps the upliftment of living beings. Therefore, that which ensures the welfare of living beings is surely Dharma. The learned rishis have declared that which sustains is Dharma2

AMP Expenditure, Location Savings and Guarantee Fee Aspects of Transfer Pricing

This article examines the AMP expenditure, location savings and guarantee fee elements of the transfer pricing debate. In particular, the authors discuss the three components in the context of United States and Indian jurisprudence, various government pronouncements, recent BEPS developments and changes to the OECD transfer pricing guidelines.

Redressal of Consumer Grievances: A Case Study of State Consumer Disputes Redressal Commission, Chandigarh

Our society has, essentially, been dynamic though its speed of dynamism is found to be varying between that of the bullock-carts to that of the space travel. Man, being a social and rational animal has ever tried to improve upon everything he laid hands on or anything he had invented or discovered.1 His special faculty to thoughtfulness has always been inspiring to channelize all his energies to reach a destination of perfection in life. The inherent virtues of interaction and interdependence of the human beings2 are taken to be the symbol of dynamism of a civilization. The existing commercialization of every sphere of life gives much more prominence to the most subtle and indispensable interaction between the trader and the consumer. Consumer is all of us and all of us are consumers. Guided, instinctively, by the stomach,3 we are first the consumers and later the producers. And consumers we remain forever, not merely from cradle to grave, but even beyond these two extremes of our physical existence while producers we remain for a comparatively shorter period of our full life cycle. The simplest sharing of one’s surplus produce in
 1 Anoop K. Kaushal, (2005), Medical Negligence and Legal Remedies, Universal Law Publishing Co. Pvt. Ltd., Delhi, pp. 2-3. 2 Justice Rama Jois, (2000), Seeds of Modern Public Laws in Ancient Indian Jurisprudence and Human Right, Bhartiya Values, Lucknow, p. 1. 3 A very nice Conclusion of Swami Vivekanand Ji.
 exchange for the reciprocated surpluses of different commodities of use, produced by others, was the origin proper of the Barter trade which is as old the society itself.4

A Progressive Juristocracy? The Unexpected Social Activism of India's Supreme Court

Since 2005, India has introduced a series of progressive social acts that legislate a right to various socioeconomic entitlements. These range from information, work, and education to forest conservation, food, and public service. Three features distinguish these acts: the explicit use of rights-based claims; the design of innovative governance mechanisms that seek to enhance the transparency, responsiveness, and accountability of the state; and the role played by social activists and activist judges in spearheading these pieces of legislation with the help of progressive party politicians. This paper analyzes a key slow-burning stimulus of India’s new rights-based welfare paradigm: the socially activist turn of its Supreme Court. I address two main questions. First, what explains the rise of progressive socioeconomic jurisprudence in India in the late 1970s? Following the prevailing scholarly consensus, I analyze the role of antecedent conditions and particular causal mechanisms to explain high judicial activism in India: deepening political fragmentation, endogenous judicial change, and the strategic political retreat of elected representatives. None of these factors can fully explain the timing, sequence, and focus of the social activist turn of the Indian Supreme Court in the late 1970s, however, which owed much to the rise of popular social formations during these years and their proliferation in the 1980s. Thus the complex interaction effects of several causal factors, whose weight has differed over time, provides a more convincing explanation. Second, what have been the achievements and failures of high judicial activism in India regarding socioeconomic rights? As many scholars persuasively demonstrate, its direct impact has been limited, while its pro-poor posture has been inconsistent. However, by focusing excessively on direct material consequences in the short-run, these studies discount the powerful long-term ramifications, many of which are symbolic and indirect, of the Indian Supreme Court’s earlier progressive turn.

Choreographic Occultation and Petrification of Meaning: Post-colonial Law and Alternative Subject

Post-colonial law and legal institutions are inscribed in the history of colonial power, its legal epistemology and the ways in which these constructed colonial and consequently post-colonial legal subjects. Employing the concept of choreographic occultation, 1 1 Choreography here refers to a designed management of people or events to effect consent, control and domination. Occultation refers to a designed concealment of intents. However, choreographic occultation as a concept constitutes a deeper meaning as we shall see further in the text. the article examines the ways in which law—as it has evolved over a long span of time—contributes, as an occultating constitutive, crucially in the construction of inverted truth, meaning and subject through an examination of various domains of legal practices such as capital punishment, rule of law, trial and alternative subject formation in post-colonial India. Although the article deals with specific examples from Indian jurisprudence, the general concerns with the colonial/post-colonial legacy of juridical/legal practice and critique of the Western/liberal notion of law as choreographed give it a general focus as well.

Jurisprudence of Emergence: Neo-Liberalism and the Public as Market in India

Highlighting legal–governmental techniques by which the public is conceptualised as the market and market activity as public agency, this article poses India as a key site for a globalised analysis of neo-liberal governance. It opens a genealogy for India's ‘emerging market’ governance that extends back to colonial modernisation, highlighting ties between a coercive state, its benevolent performance and the making of a market society. Such a long view challenges the free market vs. strong state opposition so central to contemporary neo-liberal thought. It also calls attention to the nexus between powers of emergency and emerging markets. Elaborating, the essay engages Foucault's analysis of neo-liberal political economy to read recent Indian jurisprudence on financial markets, the rule of law, and public interest.

FRAND in India: The Delhi High Court's emerging jurisprudence on royalties for standard-essential patents

Indian jurisprudence on fair, reasonable, and nondiscriminatory (FRAND) licensing practices for standard-essential patents (SEPs) is at a relatively nascent stage. Unlike US and EU courts, which have dealt with cases concerning calculating a FRAND royalty for a considerable time, Indian courts and the Indian antitrust authority—the Competition Commission of India (CCI)—have only just begun to decide such cases. In its initial orders in the first two antitrust complaints concerning SEPs, the CCI seemed to favour using the smallest salable patent-practising component (SSPPC) as the royalty base to determine a FRAND royalty. However, in the short time since the CCI's orders, the Delhi High Court has rendered contrary decisions in two SEP infringement suits. The Delhi High Court's decisions use the value of the downstream product as a royalty base and rely on comparable licences to determine a FRAND royalty. The Delhi High Court's decisions are not only consistent with sound economic principles, but also indicate that the court is responding to the judicial and industry trends in the rest of the world. Because the CCI is still investigating the antitrust complaints with respect to the same SEPs, the CCI could benefit from considering the legal and economic arguments in the Delhi High Court's decisions. It would be counterproductive for the emerging FRAND jurisprudence in India if the judiciary and the competition authority take opposing views toward the rights of SEP holders and SEP implementers.