Law Commons^™

River Water Regulation In India: The Challenges Of The Entangled State, Mia M. Rahim, Guy C. Charlton, Abhay Kanwar

University of Pennsylvania Asian Law Review

The inland river water regulations in India have become complicated by debates over river ownership, environmental sustainability, native aspirations, and industrial growth. This Article argues that such complexities surrounding the river water regulations inform a “state of entanglement” which cannot be addressed without invoking the unique way the Indian state is embedded within Indian society. This Article suggests that public interest litigation and increased participation for stakeholders and the common people may offer an effective mechanism to overcome the obstacles of the entanglement of state and society in India.

Restorative Constitutionalism, David E. Landau, Rosalind Dixon

Washington and Lee Law Review

Cass Sunstein and other scholars have distinguished between two forms of constitutionalism: preservative constitutionalism, which looks to maintain the status quo, and transformative constitutionalism, which aims to transcend a flawed constitutional history and achieve a better future. In this Article, we introduce a third, undertheorized mode of constitutionalism, which we call restorative. Restorative constitutionalism seeks a return to a lost, more authentic constitutional past, whether real or imagined. Restorative discourse in modern United States constitutionalism is dominated by conservative calls for originalist judicial interpretation. But originalism is only one subset of restoration, and indeed restorative discourse has been present at …

Democracy And Defections, Madhav Khosla, Milan Vaishnav

Faculty Scholarship

Within comparative constitutional law, there is an emerging consensus that political fragmentation has weakened political parties and hindered the functioning of legislative bodies. This article examines legal efforts to curb fragmentation in parliamentary systems by prohibiting floor crossing, or “defections” — a constitutional approach that concentrates power within party leaders. It conducts a detailed case study of India, exploring what is arguably the most exten¬sive experiment in anti-defection law and its impact on accountability and representation. The article goes on to analyze similar laws in Israel and South Africa, highlighting the challenges of self-regulation. After evaluating the limitations of narrow …

Model For Understanding Cedaw's Impact On Implementing Gender Equality Reforms: Lessons From Canada And India, Amanda L. Stephens

Faculty Articles

This Article provides a model for examining the impact of the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") on implementing gender equality reforms using Canada and India, two CEDAW State Parties, as case studies. It also explores the influence of heteropatriarchy, deeply rooted cultural norms perpetuating gender inequality, on hindering CEDAW's ratification in the United States, as well as CEDAW's effectiveness in implementing reforms in Canada and India. The analysis showcases how non-governmental organizations ("NGOs") in these countries have nevertheless achieved limited successes through their mobilization of CEDAW to address specific gender injustices, such as …

The Use Of Arbitration Clauses By Social Media Websites: A Critique, Kavya Jha, Ananya Singh

Pepperdine Dispute Resolution Law Journal

The arbitration clauses contained in the Terms of Services (ToS) of most social media websites mandate arbitration and the waiver of class arbitration.1 In light of this reality, this article seeks to analyze the legal position with respect to mandatory arbitration and class arbitration waiver in the United States, India, and European Union (EU). It compares and juxtaposes the respective positions in these three jurisdictions to find that whereas the United States has been pro-arbitration to the extent of being detrimental to consumer interest, India has adopted an overly protectionist approach, while the EU has adopted an effective model to …

A Reckoning For Religious Freedom: India's Bjp And The International Implications Of Anti-Muslim Leadership, Heather Holman

American University International Law Review

Currently, the Bharatiya Janata Party (BJP) holds the majority in the Indian Parliament, where it exercises its authority by passing legislation that comports with Hindutva. Hindutva is a political ideology that champions policies intended to make India a Hindu state. Toward this end, BJP leaders use harmful rhetoric and pass legislation that harms Muslim citizens of India. However, India is a party to the International Covenant on Civil and Political Rights (ICCPR), which protects the freedom to manifest one’s religion and prevents the advocacy of religious hatred that constitutes incitement to hostility, discrimination, or violence.

This Comment argues that India …

Is A Duty To Pay Tax Inherent In Affirmations Of Human Rights?, Jonathan M. Barrett

Washington and Lee Journal of Civil Rights and Social Justice

The United Nations’ Universal Declaration of Human Rights 1948 (the Universal Declaration), as the preeminent statement of human rights, informs numerous cognate covenants and declarations of rights, and charters of rights included in national constitutions. Unlike the rights declarations of the Enlightenment, the Universal Declaration affirms broad welfare rights, in addition to civil and political rights. No right or set of rights is superior to another; they are indivisible, interdependent and interrelated.

Declarations of rights may also include duties. The Organization of American States’ American Declaration of the Rights and Duties of Man 1948 (“the American Declaration”), for example, includes …

Confronting State Violence: Lessons From India's Farmer Protests, Smita Narula

Elisabeth Haub School of Law Faculty Publications

In December 2021, following a year of sustained mass protests, farmers in India forced the repeal of three controversial Farm Laws that attempted to deregulate India’s agricultural sector in service of corporate interests. Farmers feared that the laws would dismantle price supports for key crops, jeopardize their livelihoods, and facilitate a corporate takeover of India’s agrarian economy. This Article situates India’s historic farmer protests in the context of the country’s longstanding agrarian crisis and the corporate capture of agriculture worldwide. I argue that the protests arose in response not only to the Farm Laws, but also to decades of state-sponsored …

Riding The Wave: Fairness For Foreign Investors In India’S Impending Insolvency Tsunami, Nicole Mecca

Fordham Journal of Corporate & Financial Law

Reminiscent of the warning signs of a tsunami, bankruptcy and insolvency courts across the globe have been eerily calm despite unprecedented conditions during the COVID-19 pandemic. The full extent of the pandemic’s effect, including a tidal wave of wide-spread corporate and financial sector harm and wide-spread economic distress, remains to be seen. Much like victims of natural disasters, unsuspecting and increasingly delayed courts will find themselves totally overwhelmed. The inconvenience felt by the courts is distinct, however, from potential harm to financial investors. Although investors could also be harmed by these judicial conditions, they knowingly assumed certain financial risk when …

Cross-Border Mergers: Is India Ready? Lessons From The Us And Eu, Varghese G. Thekkel

Indiana Journal of Global Legal Studies

Indian corporate law now permits both inbound and outbound crossborder mergers. Since India broadly follows the incorporation theory, it is now possible that the country could be part of a market for incorporation/reincorporation consisting of countries following similar corporate laws. But India, like most other big countries, does not have the right incentives to develop itself as a serious player in such a market. Overall, with the current set of incentives and laws, India is unlikely to emerge as a reincorporation destination.

While permitting cross-border mergers, the Indian law envisages that merger schemes may provide for issuing depository receipts to …

India’S Removal Of Kashmir’S Special Protection Status: An Internationally Wrongful Act?, Gita Howard

University of Miami International and Comparative Law Review

India abrogated Articles 370 and 35A of its Constitution in August of 2019, effectively removing Kashmir’s longstanding special protection status. Kashmir’s special protection status provided Kashmiris with an additional degree of autonomy than India’s states, and its revocation left Kashmir under greater control of Delhi.1 Several organizations flagged human rights concerns regarding the sudden revocation of the region’s special protection status and the subsequent lockdown. This article seeks to narrowly address whether the removal of Kashmir’s special protection status was a violation of international law. This article demonstrates that although Kashmiris’ internal right to self-determination may serve as a theory …

The Faux Pas Of Automatic Stay Under The Indian Arbitration Act, 1996 - The Hcc Dictum, Two-Cherry Doctrine, And Beyond, Sai Ramani Garimella, Gautam Mohanty

Pepperdine Dispute Resolution Law Journal

In the matter of Hindustan Construction. Co. v. Union of India, the Honorable Supreme Court of India (“SCI”) was presented with an opportunity to adjudicate upon a petition challenging the constitutional validity of Section 87 of the Arbitration and Conciliation Act of 1996 (“1996 Act”) as inserted by Section 13 of the Arbitration and Conciliation (Amendment) Act of 2019 (“2019 Act"). The legislative insertion stated that amendments made to the 1996 Act by the Arbitration and Conciliation Act of 2015 (“2015 Act”) would not apply to court proceedings arising out of, or in relation to, arbitral proceedings initiated before the …

No Amendment? No Problem: Judges, “Informal Amendment,” And The Evolution Of Constitutional Meaning In The Federal Democracies Of Australia, Canada, India, And The United States, John V. Orth, John Gava, Arvind P. Bhanu, Paul T. Babie

Pepperdine Law Review

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” …

Bargaining Justice: Negotiating Law In An Indian Bazaar, Andy Rotman

Seattle University Law Review

This Symposium Article details the bazaars in the city of Banaras and explains why it is an especially good test case for considering the topic at hand: Corporate Capitalism and the City of God. The article explores how Banaras challenges normative views of “corporate capitalism,” both in terms of how it is practiced in the city and the rules that govern it. It further focuses on the legal system that is mobilized to guide commercial exchange and daily life in the bazaars of Banaras, this legal system’s relationship to the city’s courts and police, and the relationship between these two …

Municipal Bonds In Three Countries: India, South Africa And The United States, Matt Glasser

Journal of Comparative Urban Law and Policy

No abstract provided.

Addressing Transplant Tourism Problems And Proposed Solutions: Regulation Instead Of Prohibition, Colleen Naumovich

Indiana Journal of Global Legal Studies

Medical tourism, as defined by scholar Glenn Cohen, is "the travel of residents of one country to another country for treatment."' Transplant tourism, a type of medical tourism, is traveling abroad to purchase an organ for transplant. Although organ sale is currently illegal in every country except Iran, many countries-such as India, the Philippines, Pakistan, Bangladesh, and Egypt-have thriving black markets for these goods. Organ transplants are often the only effective means of treating end state organ failure, and the demand for transplants is especially high in developed and middle-income countries. Shortages of available donors and organs, however, have caused …

Two Popular Democracies' "Energy Independence" Initiatives Through The Lenses Of Constitutionalism, Environmentalism, And Judicial Activism Oeuvres--A Comparative Study Of The Trump And Modi Administrations, Vidhya V. Iyer

William & Mary Environmental Law and Policy Review

The energy independence approaches by two popular democracies, the United States and India, have recently been the center of attention. This Article examines whether two Democratic leaders, the President of the United States, Donald Trump, and Prime Minister of India, Narendra Modi, have maintained constitutionalism in light of executive orders and ordinances that focus on energy independence by way of promoting coal-fired power plants rather than focusing on the environment and human health. Based on constitutional underpinnings, this Article concludes that although both leaders and their administrations may not have violated their respective constitutions, they have certainly violated notions of …

Regulating International Surrogacy Arrangements Within The United States: Is There A Conceivable Solution?, Laura R. Golden

Georgia Journal of International & Comparative Law

No abstract provided.

In Whose Interests Should A Company Be Run? Fiduciary Duties Of Directors During Corporate Failure In India: Looking To The West For Answers, Gautam Sundaresh

Michigan Business & Entrepreneurial Law Review

This Comment looks at the debate as it has played out in the legal jurisprudence of the U.S. and the U.K. The analysis of each considers the three financial stages of a corporation’s existence that are specifically addressed in the debate today, i.e.: (i) solvency; (ii) insolvency; and (iii) the zone of insolvency. After setting out the current position, this Comment specifically addresses the various shortcomings and criticisms of the models adopted by each jurisdiction and offers observations on the status quo and the implementation of these models. On this basis, this Comment goes on to propose a model to …

Freedom Of Religion And Belief In India And Australia: An Introductory Comparative Assessment Of Two Federal Constitutional Democracies, Paul T. Babie, Arvind P. Bhanu

Pace Law Review

This article considers the freedom of religion and belief (“free exercise”) in two secular federal constitutional democracies: India and Australia. Both constitutional systems emerged from the former British Empire and both continue in membership of the Commonwealth of Nations, which succeeded it. However, the similarities end there, for while both separate church and state, and protect free exercise, they do so in very different ways. On the one hand, the Indian Constitution contains express provisions which comprehensively deal with free exercise. On the other hand, while one finds what might appear a protection for free exercise in the Australian Constitution, …

Stock Market Reactions To India's 2016 Demonetization., Vikramaditya S. Khanna, Dhammika Dharmapala

Articles

On November 8, 2016, the Indian government made a surprise announcement that certain currency notes (representing 86 percent of the currency then in circulation) would no longer be legal tender (although they could be deposited in banks over a limited period). The stated reason for this sudden “demonetization” was to combat tax evasion and corruption associated with “unaccounted for” cash. We compute abnormal returns for different subsamples of firms—defined by industry, ownership structure, and other characteristics—on the Indian stock market around this event. There is little evidence that sectors thought to be associated with greater tax evasion or corruption experienced …

Public Interest Litigation & Women’S Rights: Cases From Nepal & India, Jordan E. Stevenson

2019 Symposium

As a complex, diverse and dynamic region with diverging, constantly changing constitutional and jurisprudential contexts as well as lasting legacies of patriarchy, South Asia’s traditions of public interest litigation are one of the most well-studied institutions by Western audiences due to their contradictory progressive and innovative nature. Particularly in India, where public interest litigation gives ordinary citizens extraordinary access to the highest courts of justice, questions have been raised as to the effectiveness of public interest litigation as a tool to address gender disparities across the region. Although Supreme Court justices have been a key ally in eliminating legal barriers …

Biometric Identification In India Versus The Right To Privacy: Core Constitutional Features, Defining Citizens’ Interests, And The Implications Of Biometric Identification In The United States, Madison Julia Levine

University of Miami Law Review

In 2009, the Indian government introduced a widespread biometric identification system called Aadhaar—a national scheme that issues Indian citizens and residents a unique identification number while collecting and storing their most personal biometric and demographic information. As the Aadhaar system was implemented and promoted in India, widespread concerns grew regarding the storage and protection of such private information. How can Indian citizens enforce and protect their privacy rights? In 2017, the Indian Supreme Court attempted to address this issue by holding that an individual’s right to privacy is an inherent part of the right to life and personal liberty and …

Hostile Takeover Regimes In Asia: A Comparative Approach, Umakanth Varottil, Wai Yee Wan

Research Collection Yong Pung How School Of Law

The market for corporate control is animportant corporate governance mechanism for the discipline of corporatemanagers. However, the process and substance of the regulation of hostiletakeovers differs remarkably among various jurisdictions. Existing andinfluential scholarship has focused on the differences in regulation between UnitedStates (US) and the United Kingdom (UK), with the explanations being founded ininterest group politics. Influential as it is, the question is whether thetheory can be extended outside of the US and the UK, particularly to theirlegal transplants in Asia? In the last few decades, many of the Asianjurisdictions have drawn heavily from the US and the UK when …

The Role Of The Courts In Guarding Against Privatization Of Important Public Environmental Resources, Melissa K. Scanlan

Michigan Journal of Environmental & Administrative Law

Drinking water, beaches, a livable climate, clean air, forests, fisheries, and parks are all commons, shared by many users with diffuse and overlapping interests. These public natural resources are susceptible to depletion, overuse, erosion, and extinction; and they are under increasing pressures to become privatized. The Public Trust Doctrine provides a legal basis to guard against privatizing important public resources or commons. As such, it is a critical doctrine to counter the ever-increasing enclosure and privatization of the commons as well as ensure government trustees protect current and future generations. This Article considers separation of powers and statutory interpretation in …

Dispute Resolution Mechanisms: An Analysis Of The Indus Waters Treaty, Waseem Ahmad Qureshi

Pepperdine Dispute Resolution Law Journal

Since India and Pakistan’s independence in 1947, both states have fought over the occupied territories of Kashmir to gain control of water supplies, which are strategically valuable. Even in recent times, the countries are facing constant threats from each other over several separate issues. India and Pakistan’s water conflicts are long-standing and relate to Indian infrastructure on the western tributaries. Pakistan is of the view that India is robbing Pakistan’s water supplies and building its water management capacity only as a political maneuver to gain political supremacy by practicing hydro-hegemony. On the other hand, India maintains that it is only …

Uniting Foes Of A Single Nation: Religious Dispute Resolution For India And Pakistan, Abraham Reinherz

Pepperdine Dispute Resolution Law Journal

This article will bring forth the argument that a religious-based dispute resolution mechanism should be employed to, at a bare minimum, build bridges between the two countries that are dominated by Hinduism and Islam. This article is not suggesting that religious-based dispute resolution will be a panacea to the India-Pakistan conflict, but simply a method of putting the countries on a step towards reconciliation. Section II of the article will detail the historical background of the conflict. Section III will highlight existing ADR in both India and Pakistan. Section IV will go over the Islamic perspective on dispute resolution. Section …

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional …

Background Note: Standard Essential Patents, Innovation And Competition: Challenges In India, Arpan Banerjee

IP Theory

In September 2014, a few months after a landslide election victory, the Indian Prime Minister Narendra Modi announced the launch of “Make in India,” an ambitious program designed to turn India into a global manufacturing hub. One of the factors widely thought to be responsible for Modi’s victory was support from India’s “neo-middle class”—a young, newly- urbanized section of the electorate seeking employment and improved living standards but struggling amidst an economic downturn. In a speech inaugurating Make in India, Modi linked the program with the aspirations of this section of society. Modi stated the need to elevate the status …

No Matter Who Draws The Lines: A Comparative Analysis Of The Utility Of Independent Redistricting Commissions In First-Past-The-Post Democracies, Katherine L. Ekstrand

Georgia Journal of International & Comparative Law

No abstract provided.