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Articles 1 - 22 of 22
Full-Text Articles in Law
Slipping Into Judicial Barbarism?, Pranav Verma
Slipping Into Judicial Barbarism?, Pranav Verma
Articles
Book Review | Gautam Bhatia, Unsealed Covers: A Decade of the Constitution, the Courts and the State, HarperCollins Publisher India, 2023
Navigating The Conundrum Of Mandatory Reporting Under The Pocso Act: Implications For Medical Professionals, Nanditta Batra
Navigating The Conundrum Of Mandatory Reporting Under The Pocso Act: Implications For Medical Professionals, Nanditta Batra
Articles
To address the under reporting of sexual offences against children, the Protection of Children from Sexual Offences (POCSO) Act, 2012, makes reporting of such offences mandatory. The duty to report such offences has been extended to healthcare professionals. The inclusion of healthcare professionals within mandatory reporting, however, strikes at the very foundation of the doctor-patient relationship based on trust and confidentiality and conflicts with the patient confidentiality safeguards of the Mental Healthcare Act, 2017. It also has unintended public health consequences, such as denial of medical termination of pregnancy due to fear of prosecution under POCSO. An urgent reassessment of …
Sovereignty Before Law, Salmoli Choudhuri, Moiz Tundawala
Sovereignty Before Law, Salmoli Choudhuri, Moiz Tundawala
Articles
Book review: Violent Fraternity: Indian Political Thought in the Global Age, by Shruti Kapila, Princeton, Princeton University Press, 2021, 328 pp., $37.00/£30.00, ISBN 9780691195223
Viability Of The ‘Democratic Liberalism’ Project, Prerna Dhoop
Viability Of The ‘Democratic Liberalism’ Project, Prerna Dhoop
Articles
Book Review: From Free to Fair Markets: Liberalism after COVID -19 by Rosalind Dixon and Richard Holden (Oxford University Press, 2022); pp 240, 24 GBP.
Grounding The Basic Structure In Legal Theory, Sanjay Jain
Grounding The Basic Structure In Legal Theory, Sanjay Jain
Articles
This article contributes to the everlasting debate on theorising the Basic Structure doctrine of the Indian Constitution. Having demonstrated that it cannot be justified either in orthodox positivism of Austin or Kelsenite normativity, the author makes the case to ground the debate in the modern avatar of analytical jurisprudence, popularly known as inclusive legal positivism.
Wto Security Exceptions: A Sliding Scale Approach To Protect The Rules-Based System For Global Free Trade, Ts Somashekar, Kanchan Yadav
Wto Security Exceptions: A Sliding Scale Approach To Protect The Rules-Based System For Global Free Trade, Ts Somashekar, Kanchan Yadav
Articles
Since the enforcement of the General Agreement on Tariffs and Trade (GATT) in 1947 and subsequently with the establishment of the World Trade Organization, the global community has been moving towards a more secure and rule-based international trade law regime. The cornerstones of the system are predictability and transparency, which ensure that a state, no matter how powerful, cannot undertake a discriminatory trade measure against another going above and beyond the rules. However, the recent instances of unilateral invocation of the security exceptions found in the various trade agreements endanger the very basis of the WTO system. The very first …
Employment Trajectories And Mental Health-Related Disability In Belgium, Sudipa Sarkar, Rebeka Balogh, Sylvie Gadeyne, Johanna Jonsson Et Al.
Employment Trajectories And Mental Health-Related Disability In Belgium, Sudipa Sarkar, Rebeka Balogh, Sylvie Gadeyne, Johanna Jonsson Et Al.
Articles
An individual’s quality of employment over time has been highlighted as a potential determinant of mental health. With mental ill-health greatly contributing to work incapacities and disabilities in Belgium, the present study aims to explore whether mental health, as indicated by registered mental health-related disability, is structured along the lines of employment quality, whereby employment quality is assessed over time as part of individuals’ labour market trajectories.
Transition From The Informal To The Formal Economy: The Need For A Multi-Faceted Approach, Kamala Sankaran
Transition From The Informal To The Formal Economy: The Need For A Multi-Faceted Approach, Kamala Sankaran
Articles
The recent international attention paid to the formalization of the informal economy finds reflection in ILO Recommendation No. 204 concerning the transition from the informal to the formal economy and the Sustainable Development Goals (Target 8.3). There is great diversity within the categories of the informal sector, informal employment, and informal economy in India. This paper examines the category of the ‘informal economy’ as understood in international instruments as well as in international statistics and maps these onto legal categories recognized within Indian law. The categories of ‘employed’, ‘engaged’, and ‘work arrangement’ used in Indian laws, and their interpretation by …
Product Liability Action: A Tooth To Strengthen Consumer Protection, Ashok R. Patil
Product Liability Action: A Tooth To Strengthen Consumer Protection, Ashok R. Patil
Articles
As the world shifts to technological advancements, the advent of e-commerce marks its peak, particularly in India, where it has been earmarked as the fastest growing market with an annual growth rate of 51%. While these developments are an important part of globalization, a few challenges come along. Issues like unfair contracts, privacy, data protection, faulty goods, refund or return remained unaddressed as the earlier existing Consumer Protection Act, 1986 did not elucidate on the same. Given the above, the Law Commission of India had recommended that a separate law be enacted for better consumer protection. Based on the recommendations …
Book Review Of ‘Women, Peace And Security And International Law’, Christine Chinkin, Cambridge University Press, Akhila Basalalli
Book Review Of ‘Women, Peace And Security And International Law’, Christine Chinkin, Cambridge University Press, Akhila Basalalli
Articles
The social neutrality and gender disregard of mainstream international law have motivated the pioneering works of Christine Chinkin in addressing the gender disparity, for instance, the book ‘The Boundaries of International Law: A Feminist Analysis’ co-authored with Hilary Charlesworth. The book ‘Women, Peace and Security and International Law’ by Chinkin is an updated and detailed version of the lecture delivered in the Lauterpacht Centre for International Law in October 2016 as a part of the Lauterpacht lecture series. It was subsequently published by Cambridge Publishers in 2022.
Justice Versus Judiciary: Justice Enthroned Or Entangled In India? (2019) By Sudhanshu Ranjan, Oxford University Press, New Delhi, Arun Thiruvengadam
Justice Versus Judiciary: Justice Enthroned Or Entangled In India? (2019) By Sudhanshu Ranjan, Oxford University Press, New Delhi, Arun Thiruvengadam
Articles
Justice Versus Judiciary: Justice Enthroned or Entangled in India? (2019) By Sudhanshu Ranjan, Oxford University Press, New Delhi
Shades Of Life In Indian Abortion Law, Gauri Pillai
Shades Of Life In Indian Abortion Law, Gauri Pillai
Articles
This case comment analyses the recent Kerala High Court decision in Cry of Life Society v Union of India, where a petition was filed to declare India's law on abortion unconstitutional for violating the right to life of the foetus. The High Court dismissed the petition, upholding the constitutionality of the legislation as protecting women's right to life. The author discusses the High Court's order, narrowing in on the right to life argument used by the Court, and the right to life argument that the Court missed. This analysis distills and responds to the 'shades of life' underlying abortion law …
Covid-19 And (Mis)Understanding Public Attitudes To Social Security: Re-Setting Debate, Sudipa Sarkar, Michael Orton
Covid-19 And (Mis)Understanding Public Attitudes To Social Security: Re-Setting Debate, Sudipa Sarkar, Michael Orton
Articles
The Covid-19 pandemic has seen emerging debate about a possible shift in ‘anti-welfare commonsense’ i.e. the orthodoxy previously described in this journal as solidifying negative public attitudes towards ‘welfare’. While a shift in attitudes might be ascribed to the circumstances of the crisis it would still be remarkable for such a strongly established orthodoxy to have changed quite so rapidly. It is appropriate, therefore, to reflect on whether the ‘anti-welfare’ orthodoxy was in fact as unequivocal as claimed? To address this question, challenges to the established orthodoxy that were emerging pre-pandemic are examined along with the most recently available survey …
National Medical Commission Act, 2019: The Need For Parity, Ov Nandimath, S. Suhas, Y. Malik, B.C. Malathesh
National Medical Commission Act, 2019: The Need For Parity, Ov Nandimath, S. Suhas, Y. Malik, B.C. Malathesh
Articles
The National Medical Commission (NMC) has replaced the erstwhile Medical Council of India with the intention of bringing about positive reforms in medical education and enforcing ethical standards in the practice of medicine in India. The NMC Act of 2019, under clauses 3 and 4 of Section 30, details the procedure of grievance redressal. However, these clauses in their current form empower doctors and patients unequally. While the Act empowers an aggrieved medical professional to approach the relevant appellate fora under the NMC, it is silent on a similar opportunity for an aggrieved patient or caregiver to appeal against the …
The Road Ahead For Environmental Impact Assessment In India: Insights From Expansion In Coal Mining, Sneha Thapliyal, Meenakshi Kapoor, Krithika Dinesh
The Road Ahead For Environmental Impact Assessment In India: Insights From Expansion In Coal Mining, Sneha Thapliyal, Meenakshi Kapoor, Krithika Dinesh
Articles
One of the most contentious changes proposed in the draft environmental impact assessment notification, 2020 in India is the circumvention of public consultations for the expansion of projects for up to 50% of their original capacity. Similar exemption from public hearing, albeit for 40% capacity expansion, has been permitted as a special case for the coal mining sector since 2017. The minutes of the meetings of the coal mining expert appraisal committee between August 2017 and January 2021, which reviewed the requests for coal mine expansion, are analysed herein. It was found that the expert appraisal committees had effectively sidelined …
A Continuing Constitutional Conversation: Locating Nitisha, Gauri Pillai
A Continuing Constitutional Conversation: Locating Nitisha, Gauri Pillai
Articles
In April 2021, the Supreme Court of India decided Nitisha v Union of India, holding that the gender neutral hiring procedure adopted by the Indian Army indirectly discriminated against women officers by disproportionately excluding them from promotion. This effect was experienced due to systemic discrimination against women built into the appointment criteria. To redress systemic discrimination, the State was required not only to abstain from direct or indirect discrimination but also to positively act to bring in structural change. Nitisha makes significant contributions to developing the constitutional understanding of non-discrimination. It identifies the essential nature of discrimination as systemic rather …
The Meld Model: The Holy Grail Of Indian Corporate Jurisprudence, Rahul Singh
The Meld Model: The Holy Grail Of Indian Corporate Jurisprudence, Rahul Singh
Articles
Is a model of a theory of Indian corporate jurisprudence effable? This paper posits that jurisprudence of Indian corporate law is desirable and possible. Given the relative nascence of the Companies Act 2013, Insolvency and Bankruptcy Code 2016 and the Competition Act 2002, this paper undergirds the possibility of jurisprudence through modelling-the meld model-which is, jurisprudentially speaking, a synthesis between 'exclusive legal positivism' and 'law and economics'. The paper instantiates the utility and desirability of the meld model through test suites - i.e. select case laws in the context of company, competition and insolvency laws. With the help of test …
Role Of Courts In Ensuring Water Justice In India: Brasilia Declaration On Water Justice And Beyond, Gayathri D. Naik
Role Of Courts In Ensuring Water Justice In India: Brasilia Declaration On Water Justice And Beyond, Gayathri D. Naik
Articles
Water being a scarce resource, questions of its allocation and distribution, coupled with concerns of its depletion have troubled policy makers, legislators, and judges alike. While, over the years there has been significant development on the discussion surrounding the rights-duty paradigm of water resources, by establishing the obligation of states, discussion surrounding a certain value-based approach to guide the minds of important stakeholders in creating and enforcing policy has gained far less traction comparatively. It is in this context that this paper explores an alternative justice-based approach to water, drawing from the works of Amartya Sen on capabilities and more …
Introduction: New Directions, New Voices In Family Law In India, Sarasu Esther Thomas, Jeffrey A. Redding, Rachel Taylor
Introduction: New Directions, New Voices In Family Law In India, Sarasu Esther Thomas, Jeffrey A. Redding, Rachel Taylor
Articles
In July 2019, select family law scholars from around India and the world gathered at the National Law School of India University (NLSIU) in Bengaluru, India to participate in a conference on “New Directions, New Voices in Family Law in India” jointly sponsored by NLSIU, the University of Oxford – Faculty of Law, and Melbourne Law School. The papers and presenters were diverse and the conference conversations were enthusiastic. As a result of this conference, four quite different but interlinked papers were eventually selected for inclusion in this special issue of the Indian Law Review. These papers bring much needed …
International Rule Of Law And Domestic Courts: A Few Concerns, Akhila Basalalli
International Rule Of Law And Domestic Courts: A Few Concerns, Akhila Basalalli
Articles
The manifestation of the international rule of law appears as one of the possible paths to check the rule of power and establish an egalitarian system. Many international organizations have emphasized on the international rule of law in their objectives and mandates and have called the states to act in their service. The domestic courts have resonated with the call by exhibiting internationalism in their decisions. The international norms have been domesticated by the courts by adopting several incorporation and interpretation methods. The domestic courts, therefore, have been called as the ‘agents’ in the service of international law and protectors …
Scandalizing The Judiciary: An Analysis Of The Uneven Response Of The Supreme Court Of India To Sexual Harassment Allegations Against Judges, Sanjay Jain, Saranya Mishra
Scandalizing The Judiciary: An Analysis Of The Uneven Response Of The Supreme Court Of India To Sexual Harassment Allegations Against Judges, Sanjay Jain, Saranya Mishra
Articles
The Supreme Court of India (SC) pronounced a momentous judgment in Vishaka v. State of Rajasthan in 1997, categorically recognizing the menace of sexual harassment (SH) at workplace and constitutionally rendering it as being in violation of fundamental rights guaranteed by Articles 15, 19, and 21 of the Constitution of India 1950. The Court also provided a mechanism for redressal against SH, which was ultimately reinforced by Parliament with the enactment of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act). However, when it comes to allegations of SH against judges in the SC and High Courts …
Debating The Interface Between International Law And Municipal Law: A Few Concerns Regarding The Relevance Of The Traditional Debate, Primary Of Law And Integration Of The Legal Systems, Akhila Basalalli
Articles
The interface between international and municipal legal systems has moved from segregation towards convergence and integration. The changing contours of sovereignty are evident by the blurring divide between the two legal systems. This process is manifested by relaxing the requisite of transformation of treaties and elevating status of customary norms to ‘law of the land’. The Indian Courts too have emanated a varied set of judicial techniques. Considering contemporary developments, the paper examines the relevance of the monist-dualist debate, questions the primacy of law in the event of conflict and pursues the trending integration.