Indian Law Research Articles

The Privacy–Equality Synthesis: Framing Reproductive Rights in India

Abstract Reproductive rights are typically framed as engaging one’s constitutional right to privacy. However, with increasing contestations around the right to privacy, the right to equality has been proposed as an alternate frame. Often, a choice tends to be constructed between the two. Challenging this, some argue for both privacy and equality to be included in framing constitutional reproductive rights. This approach places emphasis on the combined presence of the two rights. Indian constitutional law offers a third, distinct possibility, moving beyond mere rights addition to reading rights in ‘synthesis’. The synthesis pays close attention to the site of dynamic rights interaction, highlighting the effects of the rights on one another. This method of rights analysis, and its latent potential, remains dormant within constitutional doctrine in India. Resurrecting it, and studying examples of abortion and maternal mortality, I frame reproductive rights through the synthesis between privacy and equality. In functioning as a magnifier, a catalyst and a backstop, the synthesis alters the constitutional imagination of reproductive rights in India while, simultaneously, advancing an insightful paradigm for constitutional reproductive rights globally and rights analyses generally.

Reforming Post-Arrest Bail in Pakistan: Lessons from a Comparative Study with India

This research paper presents a comparative analysis of the legal frameworks governing post-arrest bail in India and Pakistan, with a focus on the statutory provisions, judicial interpretations, and procedural safeguards that are involved. Although both states share a common legal heritage which is rooted in British colonial law, however, they have diverged in their approaches to bail, which are influenced by their respective constitutional mandates, legislative developments, and sociopolitical landscapes. This comparison is essential in order to understand how these legal systems are balancing individual rights with societal security and how judicial discretion are shaping bail in each country. For this purpose, this paper examines constitutional provisions besides main statutory provisions of the Indian and Pakistani criminal procedural laws, the role of judicial discretion and evolving jurisprudence of the post-arrest bail. This study offers insights into potential legal reforms, with an aim to enhance fairness and consistency in bail practices, through juxtaposing these principles in India and Pakistan. This study concludes that Pakistan should consider restructuring its bail procedural laws and system, and it suggests reforms taking into account the benefits of India’s progressive legal framework, to ensure consistency, fairness, and the protection of individual rights. This research also recommends future studies on balancing bail and incarceration, through focusing on judicial discretion and the application of the principle of proportionality.

Bharatiya Sakshya Adhiniyam, 2023: An Overview of Key Amendments

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) represents a pivotal legislative development in Indian law, serving as a comprehensive update to the Indian Evidence Act of 1872. This new Act modernizes the approach to legal procedures, placing a particular emphasis on the handling and acceptance of electronic evidence in courts. Comprising 170 sections, the BSA replaces the antiquated colonial terminology found in previous legislation with more relevant and contemporary language that reflects current practices and technological realities. One of the most significant reforms introduced by the BSA is the broadened acceptance of digital records as admissible evidence, which acknowledges the rapid technological advancements that have transformed communication and documentation methods in recent years. The scope of the BSA extends to military courts, indicating a major overhaul in the legal framework of India. Furthermore, the Act redefines key concepts such as "documents" and "evidence," explicitly incorporating digital formats to ensure clarity and consistency in legal proceedings. These vital changes set the stage for a more technologically adept legal system in India, representing a substantial evolution in evidence law while addressing the pressing need for modernization in legal practices and procedures.

Nullius: The anthropology of ownership, sovereignty, and the law in India By Kriti Kapila. Chicago: Hau Books, 2022. 207 pp.

Nullius: The anthropology of ownership, sovereignty, and the law in India By Kriti Kapila. Chicago: Hau Books, 2022. 207 pp.

Evolution of Codified Criminal Laws in India: A Voyage from Colonialization to Decolonization

This research paper delves into the profound evaluation of criminal laws in Bharat from the Vedic era to the decolonization of criminal statutes. The narrative begins with evaluating the criminal justice system from the Vedic ages to today's new decolonized criminal laws in India. The paper scrutinizes the various time duration for evaluation of criminal laws in Bharat: Before the Vedic era (Vedas (Rig, Yajur, Sāma, and Atharva), Shrutis, Puranas, and many more), During the Vedic era (Dharamshastra and Arthshastra), Mughal period, British colonial period, and Decolonialization of criminal laws in India. The various objectives behind the decolonization of new criminal laws include Eradication of Colonial-Era law, Offence against the state, Modernization of the criminal justice system, Strengthening Accountability and Rule of Law, and Democratizing the Law. Understanding the evaluation of laws from the colonial era to the decolonization of criminal laws, importing critical legal changes brought under Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Act (BSA) in 2023, this study closely observes the backdrop, what inspires the law to launch such amendments and what subtleties result in these alterations. This historical analysis is taken up first that describes the colonial legacy of India's legal system, and how relics of archaic legislations are part of its system even today. With this background, the exam is placed against a backdrop of rising crime and changing characteristics of criminal behaviors occasioned by new technological breakthroughs that require all-around changes. The paper scrutinizes the supreme provisions of the BNSS towards replacing the archaic Code of Criminal Procedure, the BNS which is poised to replace the Indian Penal Code, and the BSA which is to replace the Evidence Act. This report will appraise the major changes in the number of sections that are incorporated into the new schemes, record digitalization, and the inevitable drift towards forensic science and collection of evidence.

The development of indirect discrimination law in India: Slow, uncertain, and unsteady

ABSTRACT On 25 March 2021, the Supreme Court of India formally recognized the legal concept of indirect discrimination in Lt Col Nitisha v Union of India. This article uses Nitisha as a point of inflexion to study the development of Indian indirect discrimination law and Nitisha’s contribution to this development. It shows that indirect discrimination law is more complex and contested than it appears when focusing solely on Nitisha. By zooming out and considering what Nitisha adds to pre-existing law and how it has been received in subsequent judgments, the article argues for a measured view of Nitisha’s contribution and, in turn, of the state of Indian indirect discrimination law. Importantly, judicial recognition of indirect discrimination remains slow, uncertain, and unsteady. Even in the few cases where it has been recognized, the concept of indirect discrimination remains abstract and indeterminate, and questions on its adjudication remain far from resolved.

Retrospective Analysis of the Anti Spitting Laws in Various Geographical Locations and Implementing Sectors in India

Objective: Public spitting attributable to Smokeless Tobacco (SLT) use not only causes a threat to public cleanliness but also to the people exposed around them. An electronic search on various anti-spitting laws and ban in India was done using Google search engine for duration of three months (November 2018 to January 2019). Material and Methods: The original state gazettes were reviewed to extract the data on spit ban and penalty. Renewals of Acts were also thoroughly checked for recent updates of penalty or severity of the act. The law implementing bodies were broadly classified as National, State, Municipal, Village councils (Gram Panchayat), Airports, Metro Railway, and Company Law Tribunal. Results: A total of 42 Anti-spitting laws were identified in this search and 16 states had anti spitting law under different sectors. Discussion: Under these laws, sign boards and warnings are placed commonly at Airports, Railway stations, and metro stations. States with high rates of SLT users like Tripura, Arunachal Pradesh and Mizoram did not have any policy on spitting. Conclusion: Strong enforcement of anti-spitting laws in India will not only reduce spread of communicable diseases but also indirectly will reduce the act of using SLT also.

Transplanting Absolute Priority in Indian Bankruptcy Law: Part I

In 2016, India revamped its bankruptcy legislation and introduced a new framework for resolution of financially distressed businesses. The Insolvency and Bankruptcy Code (IBC) was intended to usher in a new era of efficiency and galvanize India’s ailing bankruptcy regime. The results thus far have been mixed. One of the issues that has frequently arisen under the new regime is how to distribute the resolution proceeds amongst different classes of creditors. The doctrine evolved by courts and tribunals has been to leave any question on distribution to the discretion of the Committee of Creditors – an approach developed to insulate bankruptcy proceedings from excessive judicial interference. In this paper, which will be published across two volumes, I endeavour to show that this approach is flawed and contributes to the systemic problems afflicting the Indian bankruptcy regime. Drawing on doctrine developed in transnational bankruptcy law, I argue in favour of adopting the absolute priority rule as a fixed rule for distribution of resolution proceeds in India, which can augment value maximization and enable efficient resolution of distressed debt. Part I of this paper will trace the origins, evolution and migration of the absolute priority rule in transnational bankruptcy law. Part II, which will be published in the following volume, will make the case for transplanting absolute priority in Indian bankruptcy law.

Juvenile Justice and New Criminal Laws in India

Juvenile Justice and New Criminal Laws in India

EFFECTS OF MERGERS AND ACQUISITIONS ON COMPETITION IN INDIA

Competition law typically considers those merger cases where the main concern is that the merging parties would become so dominant in the market that they will increase the rates they charge the customers. This happens, mostly, because the merged entity has now gained a dominating position, as a consequence of the merger, to manipulate the market. Some mergers, on the other hand, minimize competition thus dropping rates that vendors demand. Thus, mergers and acquisitions have the capacity to hurt competition at both ends- from where the merged entity buys, and where it sells and this they can do in varied ways. Merger and Acquisitions can be anti-competitive where they include trends like limiting output or imposing price, fixing prices between competitors, or sale or supply terms on down the stream intermediaries. Merger and acquisition activity has been on a rise in India, and their impact on competition has led to many changes in the competition law. In this article we would be exploring how the merger and acquisition activity hurts competition and how the law in India has had to change to combat its damaging effects.

WHEN IP MEETS NFTs: THE CASE FOR INTELLECTUAL PROPERTY PROTECTION FOR NON-FUNGIBLE TOKENS

The world has seen enormous disruption by new age technologies in every domain of today's economy including the arena of art, music and entertainment. Furthermore, the impact of artificial intelligence and blockchain technology particularly the Non Fungible Tokens (NFTs) has overwhelmed scholars about their understanding of laws related to intellectual property. Advances in technology are expanding the scope of intellectual property beyond traditional patents, trademarks, designs, trade secrets, plant breeders' rights, and more. Various issues related to intellectual property have taken centre stage in the world of NFTs and Blockchains. Intellectual property disputes over virtual goods and NFTs are on the rise, and countries across the world are endeavoring to address the issues related to the protection of virtual goods. This article analyses the nature and scope of protection granted to virtual goods and NFTs in major jurisdictions viz the US and China. Further, the article analyses if the provisions of Indian IP Laws particularly the Trademarks and Designs Acts are sufficient to grant protection to the virtual goods.

Darker Patterns? AI-generated Persuasion and the Regulatory Void in Indian Law

Increased time spent by users in virtual environments globally coupled with the choice architectures created by artificial intelligence (AI) systems within these virtual environments means that the AI systems can ‘persuade’ users to take certain actions or abstain from them. In this article, we address this issue through the lens of ‘dark patterns’. Dark patterns are features of the user interface that shape the actions of the users in different ways, getting them to act in ways that they might not act otherwise and that are not necessarily beneficial for them. Recently, regulatory action has been undertaken in various jurisdictions to contain the menace of dark patterns, including in India. But can these measures prevent dark patterns that are powered by AI systems? In this article, we argue that they cannot, as AI-powered dark patterns work at a deep level of behavioural change, making users’ choices appear uninfluenced by manipulation. The laws pertaining to unfair trade practices, transparency and labelling obligations are also not sufficient to deal with these problems. We conclude with an appeal for a holistic approach to AI-powered dark patterns that engage in persuasive behaviour.

A potential model of national forest co-management: History of aspen management on the Leech Lake Reservation and Chippewa National Forest in Minnesota

Aspen exists as the most abundant and industrially important forest type in contemporary Minnesota. Historically, the species was seen as economically undesirable yet saw prolific increases in abundance due to pine harvest and fire. The Leech Lake Reservation exists as a unique case study of tribal-U.S. Forest Service co-management, with 90 % of reservation land within Chippewa National Forest boundaries. This large geographical intersection was created by a series of American Indian law policies and makes the relationship between the Chippewa National Forest and the Leech Lake Band of Ojibwe unique within the USDA National Forest System. Comparison of pre-reservation and more modern forest/land cover types within the modern-day boundaries of the Leech Lake Reservation were conducted alongside investigation of historical management authority documentation of Chippewa National Forest and Leech Lake Band of Ojibwe cooperation and broader historical management of aspen in Minnesota. Results suggest historical power dynamics between the Chippewa National Forest and Leech Lake Band of Ojibwe influenced decreasing pine and increasing aspen on the Leech Lake Reservation. However, the modern relationship between the Chippewa National Forest and the Leech Lake Band of Ojibwe shows the potential for successful co-management within the shared goals of aspen management.

The Colonial Construction of Indian Country: Native American Literatures and Federal Indian Law. By Eric Cheyfitz

The Colonial Construction of Indian Country: Native American Literatures and Federal Indian Law. By Eric Cheyfitz

Arbitrability of cryptocurrency disputes in India

Abstract Over the past decade, the growth of cryptocurrencies has amazed policymakers worldwide, prompting governments, international organizations, and corporations to address the increasing financial activity in this unregulated and decentralized industry. The murmurs of crypto disputes accelerated after the dramatic collapse of the crypto-trading platform Binance on the day Bitcoin was valued very low, leading to huge losses for its investors. This incident has led to discussions about the potential of using a private forum, such as arbitration, to resolve conflicts in the crypto world. However, adopting arbitration in cryptocurrency disputes raises complex questions, such as whether or not cryptocurrency disputes can be settled by arbitration. This article explores the issue of arbitrability of cryptocurrency-related disputes in India, particularly those related to payment and security tokens. Before discussing the issue of arbitrability, the article will first provide an overview of Indian law on cryptocurrencies, including their validity and regulation. Based on this legal background, it will examine the scope of arbitrability under the Arbitration and Conciliation Act of 1996, focusing on the subject matter in dispute and the public policy test.

A Study the Role of Water and the Sustainable Development

Water is a crucial natural resource that serves as a primary source of water for irrigation, drinking, and industrial use in India. Despite its importance, Water resources in India are rapidly depleting due to increasing demand, climate change, and unsustainable management practices. Sustainable development, which aims to harmonize economic growth, social inclusion, and environmental sustainability, is paramount in addressing these water challenges. In this context, it is crucial to revisit the Water laws in India to ensure sustainable resource management. The current legal framework for Water in India is fragmented, outdated, and ineffective. the significance of Water has grown. Currently, private-Water resources provide about 90% of the domestic and commercial water needs as well as around 65% of the irrigation needs. However, people frequently mistakenly believe that this valuable resource is boundless and unbounded. As a result, the general public frequently overlooks crucial Water issues such its scientific management, conservation, and augmentation.

Impact of state-level labour law reforms in India: an empirical analysis

The impact of Indian state labour law reforms on employment, output, new industrial units, investment and size of industrial units is examined from 2000–01 to 2017–18. States with inflexible labour laws had lower growth of large industrial units and regular employment. Contract worker hiring spiked in firms with 301–500 workers in both flexible and inflexible states. Capital growth was higher than growth of workers in all state categories. Rajasthan, the first state to carry out additional reforms in 2014, had good performance. Regressions carried out to control for factors that impact employment other than labour laws indicate that: (i) reforms had a positive impact on employment; (ii) good infrastructure, reduction in industrial disputes, low crime and better education resulted in significant employment generation. Difference-in-differences estimates show that post-reform, employment, fixed capital, and output were higher for flexible labour law states, when compared to inflexible labour law states.

Global Health Governance and International Law in India: A Socio-Legal Study

India is a culturally and historically rich nation. India has hosted several ancient civilizations that differed greatly from one another in many aspects of life due to its large geographic expanse, varied climate, and unique environmental conditions. India boasts a vast diversity and cultural ethos that is unmatched in comparison to other regions of the world, encompassing a wide range of faiths, dialects, cuisines, climates, cultures, and social systems. It is a well-established truth that health problems existed wherever there were humans. Given that India is the starting point of early organised communities and historical civilizations, it is evident that healthcare and health were prevalent there long before. Since the beginning of time, historical texts have been filled with references to a wide range of health-related topics. An attempt will be made to conduct a study on court rulings and reports of the Government of India in the proper places in order to support the proposed study and determine how the law pertaining to the right to health is being implemented. Thus, the study's technique, which is an analytical doctrinal approach, has been used.

Retribution for tribal sovereignty: Settler colonial policing and civil justice impacts

Unique among marginalized groups, American Indians are both citizens of the United States and citizens of sovereign tribal nations, as recognized (but not granted) by federal Indian law. However, even as tribal nations exert increasing economic and political power, criminal legal outcomes for tribal members—who interface with an array of tribal, local, state, and federal law enforcement and justice systems—remain detrimental or are worsened. These outcomes also include increased contact with state courts and the delegitimization of tribal courts, which uniquely implicate the civil justice context. We use the settler colonial framework to investigate how tools of state criminal law, such as heavy policing and disparate punishment, may impact the civil justice needs of Indigenous people, and more broadly, the very sovereignty these policies aim to protect. Drawing on interviews and observations in tribal and county-level courts, we examine the experiences of American Indians and other stakeholders in Indian country. We identify how enforcement practices, surveillance of space, and the complexities of layered policing within a “jurisdictional maze” contribute to the deterioration of tribal sovereignty. We contextualize our findings by considering the historical, cultural, and socio-economic factors that influence the experiences of American Indians in the criminal justice system, and by examining the civil justice implications.

Designing a mentorship curriculum for assisting social reintegration among youth in institutional care in India

Although child protection policies and laws in India recognise the importance of aftercare, there is still a significant lack of infrastructure, available services, and systematic preparation for the transition. The accelerated and compressed journey from adolescence to adulthood, coupled with limited options to return home if their initial endeavours falter, adds to the complexity of the transition process. To develop knowledge and skills for transition preparedness, this paper presents a step-by-step approach to designing an educative, mentorship-based curriculum. The curriculum is based on an exploratory study conducted across 17 child care institutions in Pune, India. Findings showed that the adolescents appreciate the existing support resources, but feel that much of the critical, practical, and seemingly more urgent transitional needs are still left out. Borrowing insights from the primary data and the available literature, the curriculum has been designed to target six core areas addressing needs for belongingness, preparation for life after transition, enabling clarity of future vision, life skills, enhancing employability, and problem-solving. To buffer the overall stress of the transition, the focus of the curriculum has been kept simultaneously on promoting overall well-being and providing professional and career development support. The study recommends a robust evaluation framework to assess the relevance and effectiveness of the curriculum.