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A tale of India, diaspora and development 一个关于印度、移民和发展的故事
Indian Law Review Pub Date : 2020-01-02 DOI: 10.1080/24730580.2020.1728640
Robi Rado
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引用次数: 1
The doctrine of frustration under section 56 of the Indian Contract Act 《印度合同法》第56条规定的挫折原则
Indian Law Review Pub Date : 2020-01-02 DOI: 10.1080/24730580.2019.1709774
M. R. Ram Mohan, Promode Murugavelu, Gaurav Ray, Kritika Parakh
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引用次数: 2
Children of conflict: an analysis of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 冲突中的儿童:2013年《查谟和克什米尔少年司法(照顾和保护儿童)法》分析
Indian Law Review Pub Date : 2020-01-02 DOI: 10.1080/24730580.2019.1703490
Malika Shah
{"title":"Children of conflict: an analysis of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013","authors":"Malika Shah","doi":"10.1080/24730580.2019.1703490","DOIUrl":"https://doi.org/10.1080/24730580.2019.1703490","url":null,"abstract":"ABSTRACT Due to a long history of conflict in the state of J&K, children have fallen prey to the defective law and order machinery. Through this essay, the author aims to critically study the J&K Juvenile Justice (Care and Protection of Children) Act 2013 (‘J&K JJ Act, 2013ʹ). Part I analyses the shortcomings in the text of the law itself. Part II focuses on the implementation of the law on the ground. Due to the non-implementation of the Juvenile Justice System, children have become victims of illegal detentions in jails, torture, physical and mental ailments. Lastly, Part III makes a comparison between the State law and the Central law on the matter. Considering the compelling arguments drawn in Part II and III of the essay, the conclusion points out the need for proper implementation of the JJ Act, 2013 and its remodelling, in certain matters, on the Central legislation.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73141686","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
The Indian Supreme Court’s identity crisis: a constitutional court or a court of appeals? 印度最高法院的身份危机:是宪法法院还是上诉法院?
Indian Law Review Pub Date : 2020-01-02 DOI: 10.1080/24730580.2020.1730543
Tarunabh Khaitan
{"title":"The Indian Supreme Court’s identity crisis: a constitutional court or a court of appeals?","authors":"Tarunabh Khaitan","doi":"10.1080/24730580.2020.1730543","DOIUrl":"https://doi.org/10.1080/24730580.2020.1730543","url":null,"abstract":"ABSTRACT This article presents an empirical analysis of the Supreme Court’s discretionary appellate jurisdiction (triggered by a “special leave petition” or “SLP”). Based on an analysis of 1100 randomly selected civil SLP cases spread over 11 years, it argues that its expansive SLP docket has cannibalized the Court’s role as an effective constitutional court. It reveals that the admissibility of special leave petitions has a statistically significant relationship with the presence of a “senior advocate” during the admissions hearing. The article emphasizes the need for an institutional separation of the appellate and constitutional functions of the Supreme Court: either as two separate courts or as two separate divisions within a single Supreme Court. It also suggests reducing or eliminating the docket-distorting role of senior advocates – either by taking admission decisions on civil SLPs largely based on written briefs or barring senior advocates from appearing in oral admission hearings for civil SLPs.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75092438","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Regulatory mechanisms combating judicial corruption and misconduct in India: a critical analysis 印度打击司法腐败和不当行为的监管机制:批判性分析
Indian Law Review Pub Date : 2020-01-02 DOI: 10.1080/24730580.2020.1711498
Shivaraj S. Huchhanavar
{"title":"Regulatory mechanisms combating judicial corruption and misconduct in India: a critical analysis","authors":"Shivaraj S. Huchhanavar","doi":"10.1080/24730580.2020.1711498","DOIUrl":"https://doi.org/10.1080/24730580.2020.1711498","url":null,"abstract":"ABSTRACT The paper examines regulatory mechanisms for combating judicial corruption and misconduct in India. It aims at a critical analysis of the regulatory mechanisms for both subordinate and higher courts. The study, inter alia, concludes that the regulatory mechanisms for subordinate courts lack conceptual clarity, suffer role ambiguity, and are bereft of functional autonomy; the powers and functions of these mechanisms are not clearly prescribed, and the procedures concerning complaints, inquiries and disciplinary actions are ad hoc. The mechanisms for subordinate courts are opaque, inaccessible, slow and ineffective. The paper also argues that the “in-house procedure” in the higher judiciary is inadequate, opaque, informal and judge-centric; it terms the “removal procedure” as rigid and ineffective. This paper recommends structural, organizational and functional reforms to strengthen regulatory mechanisms for the subordinate judiciary. For the higher judiciary, it proposes a constitutional body having adequate representation from a broad spectrum of the population.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76608734","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
The case against the constitutional validity of mass surveillance programmes 反对大规模监视计划的宪法有效性的案件
Indian Law Review Pub Date : 2019-09-02 DOI: 10.1080/24730580.2019.1698279
Arushi Gupta
{"title":"The case against the constitutional validity of mass surveillance programmes","authors":"Arushi Gupta","doi":"10.1080/24730580.2019.1698279","DOIUrl":"https://doi.org/10.1080/24730580.2019.1698279","url":null,"abstract":"ABSTRACT In recent years, we have seen a rise in digital technology. In response to the tempestuous nature of technology and its manifold “threats”, the State has adopted fresh armoury. It has inducted mass surveillance programmes, which collect information on every citizen. In India, these measures were adopted in 2007. India’s bulk phone metadata collection programme, equivalent to the National Security Agency is called the Central Monitoring System. Additionally, India has created the Crime and Criminal Tracking and Network System, a nation-wide reposity of criminal data. This paper delves into a constitutional analysis of the validity of these programmes by identifying the key constitutional concerns and reviewing whether these programmes satisfy the test of proportionality. Finally, this paper critiques the ramifications of these measures on democracy. It argues that these measures stifle the exchange of information in the public sphere and reduce public space for reasoning.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85987592","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Abrogation of Article 370: can the president act without the recommendation of the constituent assembly? 废除第370条:总统可以不经制宪会议的建议行事吗?
Indian Law Review Pub Date : 2019-09-02 DOI: 10.1080/24730580.2019.1700592
Balu G. Nair
{"title":"Abrogation of Article 370: can the president act without the recommendation of the constituent assembly?","authors":"Balu G. Nair","doi":"10.1080/24730580.2019.1700592","DOIUrl":"https://doi.org/10.1080/24730580.2019.1700592","url":null,"abstract":"ABSTRACT Article 370 of the Constitution of India 1950, as it stood till recently, restricted the Parliament’s legislative powers over the erstwhile state of Jammu and Kashmir (“J&K”). The provision, which was recently abrogated was under challenge even prior to that. In 2018, a challenge to its constitutionality was mounted on the ground that it was meant to be a temporary arrangement. In this paper, it is argued that the attempts to abrogate the provision without the recommendation of a constituent assembly for J&K is constitutionally suspect. This has both textual and normative support. Textually, the asymmetrical federal arrangement embodied in Article 370 as well as the procedural limitations mean that it is not open to the Union to abrogate it unilaterally. Normatively too, a temporary provision such as Article 370 may only be abrogated if its detractors can garner sufficient political support in the form of a constituent assembly, which has not yet been achieved.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79668738","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 10
Contractual unfairness: another way of skinning the cat 契约不公平:另一种剥猫皮的方式
Indian Law Review Pub Date : 2019-09-02 DOI: 10.1080/24730580.2019.1699312
S. Swaminathan
{"title":"Contractual unfairness: another way of skinning the cat","authors":"S. Swaminathan","doi":"10.1080/24730580.2019.1699312","DOIUrl":"https://doi.org/10.1080/24730580.2019.1699312","url":null,"abstract":"ABSTRACT In Pioneer Urban Land and Infrastructure Ltd. v Govindan Raghavan [2019] 5 SCC 725, the Supreme Court of India excised an onerous term in a housing construction contract as “wholly one-sided, unfair and unreasonable”. This note examines the doctrinal basis for the exercise of such power. Common law courts have, for long, sought to relieve the weaker party to a bargain against contractual unfairness, but locating the basis of this power has proved elusive. The traditional categories of duress (or coercion) and undue influence have been of limited help here. And since scholarly and judicial treatment alike have read s 16 of the Indian Contract Act as dealing with undue influence, it has been passed over in debates on unfairness. However, it is argued that a closer study of the legislative design of s 16 reveals that it was meant by Mackenzie Chalmers (the architect of the 1899 amendment) to incorporate a “general principle” of contractual fairness which empowered courts to determine whether a transaction was “fair and reasonable”.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79227330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Iterations of law: legal histories from India, edited by Aparna Balachandran, Rashmi Pant and Bhavani Raman, New Delhi, Oxford University Press, 2018, viii + 302pp., INR 950 (hardback), ISBN 9780199477791
Indian Law Review Pub Date : 2019-09-02 DOI: 10.1080/24730580.2019.1694467
K. Gauba
{"title":"Iterations of law: legal histories from India, edited by Aparna Balachandran, Rashmi Pant and Bhavani Raman, New Delhi, Oxford University Press, 2018, viii + 302pp., INR 950 (hardback), ISBN 9780199477791","authors":"K. Gauba","doi":"10.1080/24730580.2019.1694467","DOIUrl":"https://doi.org/10.1080/24730580.2019.1694467","url":null,"abstract":"ABSTRACT Iterations of Law is a valuable resource on the legal history of colonial India. The essays in this edited volume uncover the lived experience of law in the tradition of social history. The contributors discuss and rework ideas of legal pluralism, law’s violence, and the legacy of colonial law. Their embrace of legal archives other than the judgment, such as the stamp paper, and political and bureaucratic speeches is a welcome methodological intervention in the field. This review examines the volume’s contribution to two persistent debates in legal history: the perceived continuity of the colonial law and legal system, and the agency of the colonial subject vis-à-vis law. Read this way, the contributions emphasise several points of contact between subject and government that allowed the consolidation and legitimisation of colonial rule. Though greater engagement with law and a South Asian emphasis would have added much value, the review concludes that the volume is essential reading for legal historians as well as scholars analysing the conditions of authority and legitimacy of law.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91340463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
India and bilateral investment treaties: refusal, acceptance, backlash 印度和双边投资条约:拒绝、接受、反弹
Indian Law Review Pub Date : 2019-09-02 DOI: 10.1080/24730580.2019.1667945
J. Hepburn
{"title":"India and bilateral investment treaties: refusal, acceptance, backlash","authors":"J. Hepburn","doi":"10.1080/24730580.2019.1667945","DOIUrl":"https://doi.org/10.1080/24730580.2019.1667945","url":null,"abstract":"The international law of investment protection is currently at a turning point. Since the first bilateral investment treaty (BIT) was concluded in 1959, states have concluded thousands more such tr...","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90702578","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 5
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