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Cutting a rough stone into a gem: compositional and institutional reforms to establish constrained parliamentarianism in Sri Lanka 石破天成:在斯里兰卡进行成分和制度改革以建立受约束的议会制度
Indian Law Review Pub Date : 2020-12-14 DOI: 10.1080/24730580.2020.1856550
B. Perera
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引用次数: 0
Precedent, stare decisis and the Larger Bench Rule: Judicial Indiscipline at the Indian Supreme Court 先例、判例和大法官规则:印度最高法院的司法无纪律
Indian Law Review Pub Date : 2020-12-09 DOI: 10.1080/24730580.2021.1941688
Shrutanjaya Bhardwaj, Ayush Baheti
{"title":"Precedent, stare decisis and the Larger Bench Rule: Judicial Indiscipline at the Indian Supreme Court","authors":"Shrutanjaya Bhardwaj, Ayush Baheti","doi":"10.1080/24730580.2021.1941688","DOIUrl":"https://doi.org/10.1080/24730580.2021.1941688","url":null,"abstract":"ABSTRACT As a self-imposed norm of judicial discipline, the Supreme Court has held that a judgement may be overruled only by a bench larger than the bench which delivered the judgement. Being a facet of the doctrine of stare decisis, the “Larger Bench Rule” achieves certainty, equality, and efficiency in adjudication, and secures public legitimacy for the Court. The Rule also accords equal weight to the wisdom of every judge. But the Court has breached the Rule in some key cases. We trace seven instances where smaller or coordinate benches explicitly or impliedly overruled binding judgements. The Court did this, we show, by ignoring precedent, shoddily “distinguishing” precedent, expressly disagreeing with precedent on merits, or unfairly declaring the precedent invalid for itself contravening the Larger Bench Rule. Finally, we suggest – preliminarily – some measures to ensure adherence to the Rule in future.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84380020","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
Divine labours, devalued work: the continuing saga of India’s surrogacy regulation 神圣的劳动，贬值的工作:印度代孕监管的持续传奇
Indian Law Review Pub Date : 2020-11-08 DOI: 10.1080/24730580.2020.1843317
Snehasish Banerjee, Prabha Kotiswaran
{"title":"Divine labours, devalued work: the continuing saga of India’s surrogacy regulation","authors":"Snehasish Banerjee, Prabha Kotiswaran","doi":"10.1080/24730580.2020.1843317","DOIUrl":"https://doi.org/10.1080/24730580.2020.1843317","url":null,"abstract":"ABSTRACT This article offers a feminist critique of the Surrogacy (Regulation) Bill, 2019. Fifteen years since the first proposed regulation of assisted reproductive technologies and surrogacy, the 2019 Bill leaves much to be desired. It reflects a limited understanding of the complexities of surrogacy, is discriminatory in its approach, is plagued by lack of clarity, is unrealistic and most importantly, does not include adequate safeguards for the surrogate. Women’s reproductive labour in performing surrogacy is valorized but not compensated. Even though the Bill may well accept some recommendations of the Rajya Sabha select Committee, its failure to address issues that we highlight will mean that if passed, it will be challenged in the courts on constitutional grounds. This will generate uncertainty for years, for many infertile couples and individuals who look to the law for streamlined regulation, defeating its main purpose in facilitating a novel mode of reproduction.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82889882","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: 9
Dimensions and dilemmas: public participation in constitution-making in post-war settings 维度与困境:战后宪法制定中的公众参与
Indian Law Review Pub Date : 2020-09-21 DOI: 10.1080/24730580.2023.2231325
Dinesha Samararatne
{"title":"Dimensions and dilemmas: public participation in constitution-making in post-war settings","authors":"Dinesha Samararatne","doi":"10.1080/24730580.2023.2231325","DOIUrl":"https://doi.org/10.1080/24730580.2023.2231325","url":null,"abstract":"ABSTRACT Public participation is considered an essential ingredient in contemporary constitution-making processes. In this article, I am concerned with the implications of these assumptions in states that can be categorized, broadly, as post-war. Where an armed conflict has ceased, but a political solution to the conflict has not been reached, a state may be categorized as “post-war”. Focusing on Nepal, Sri Lanka, and to some extent Myanmar, I ask the following questions: How should the emerging norm of public participation in constitution-making be understood and applied? What approaches are most useful in dealing with the dimensions of public participation in constitution-making in states that are post-war? I argue that six dilemmas arise in public participation in constitution-making. They are 1) conflict resolution and state formation, 2) democratization, 3) transparency and accountability, 4) the transnational dynamic, 5) constitutional literacy, and 6) constraints of resources and time.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75603815","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
Arya Samaj marriages in Indian courts Arya Samaj在印度法庭上结婚
Indian Law Review Pub Date : 2020-09-12 DOI: 10.1080/24730580.2020.1821324
Anuja Agrawal
{"title":"Arya Samaj marriages in Indian courts","authors":"Anuja Agrawal","doi":"10.1080/24730580.2020.1821324","DOIUrl":"https://doi.org/10.1080/24730580.2020.1821324","url":null,"abstract":"ABSTRACT Contrary to what one may expect, some religious bodies such as Arya Samaj, are prominent in providing marriage services to Indian couples who marry in defiance of familial and social expectations. It is notable that with an increasing number of couples approaching courts to seek state protection after solemnizing their marriages via Arya Samaj, the latter has come under the judicial scanner. This has brought many issues related to such services to the fore. A detailed discussion of one of such cases has been undertaken and contextualized with reference to Arya Marriage Validation Act 1937 and Hindu Marriage Act 1955 to show how these services exist in a dynamic, accommodative, and conflicting relationship with the legal system. This has implications for those who use Arya Samaj services, in our case, couples in non-conformist marriages, as well as for our understanding and evaluation of the Indian variant of legal pluralism.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74266914","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
Revitalizing adoption laws 振兴收养法
Indian Law Review Pub Date : 2020-09-06 DOI: 10.1080/24730580.2020.1816705
S. Sriraam
{"title":"Revitalizing adoption laws","authors":"S. Sriraam","doi":"10.1080/24730580.2020.1816705","DOIUrl":"https://doi.org/10.1080/24730580.2020.1816705","url":null,"abstract":"ABSTRACT This paper is an analysis on the history of adoption in India and the machinery in place now. It also attempts to understand how far the adoption laws in India are in consonance with her international obligations. In particular, the paper will focus on how the LGBTQ+ community is unfairly affected by the system in place. It will also highlight the need to recognize the interests of rescuers of abandoned infants in case of adoption. The author will shed light on the importance of legalizing second parent adoption and permitting direct placement adoption. The paper proposes that necessary amendments must be carried out in the 2015 Juvenile Justice (Care and Protection) Act [JJ Act], thereby making the adoption laws in India more comprehensive and ensuring that the concerns are addressed. The study is limited to in-country adoptions alone.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76804985","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
The genesis and ailments of cartel regime in India: a critical analysis 印度卡特尔制度的起源与弊病:批判性分析
Indian Law Review Pub Date : 2020-09-01 DOI: 10.1080/24730580.2019.1703477
M. Chaudhuri, Sagardeep Rathi, Anisha Chand
{"title":"The genesis and ailments of cartel regime in India: a critical analysis","authors":"M. Chaudhuri, Sagardeep Rathi, Anisha Chand","doi":"10.1080/24730580.2019.1703477","DOIUrl":"https://doi.org/10.1080/24730580.2019.1703477","url":null,"abstract":"ABSTRACT The past 10 years witnessed rapid development in the jurisprudential framework of antitrust policy in India. The Competition Commission of India’s sector-agnostic approach in busting anti-competitive conduct has allowed it to drive pro-competitive reforms in various sectors. In this context, the Competition Commission of India has taken a keen interest in addressing the issue of cartelization. This article delineates the manner in which the Competition Commission of India identifies and imposes liability on cartels, with the aim of increasing regulatory compliance and promoting robust competitive markets. This involves a review of the evolving standards of proof adopted by the Competition Commission of India, and jurisprudential concepts introduced to address the peculiarities of Indian markets. The article also seeks to provide insight into the procedural hurdles typically encountered during cartel investigations. Finally, it addresses the constant conflict the Competition Commission of India faces with other fairly established sectoral regulators.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80051494","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
Chilling competition? Trade associations & the Indian competition regime 令人心寒的竞争?贸易协会和印度竞争制度
Indian Law Review Pub Date : 2020-09-01 DOI: 10.1080/24730580.2020.1836863
Dhanendra Kumar, Rahul Singh
{"title":"Chilling competition? Trade associations & the Indian competition regime","authors":"Dhanendra Kumar, Rahul Singh","doi":"10.1080/24730580.2020.1836863","DOIUrl":"https://doi.org/10.1080/24730580.2020.1836863","url":null,"abstract":"ABSTRACT This paper explores the competition implications of trade associations in modern India. The paper posits that like competition regimes elsewhere in the world, the Competition Commission of India (“CCI”) may distinguish between anti-competitive practices of trade associations and practices that facilitate and support competition in the country, including the use of the platform of a trade association for certain types of information exchange among competitors. The paper recommends that the CCI adopt guidelines to obviate the “chilling” effect on competition for both entities and individuals.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74831159","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
The Indian competition law experience– its history and its (digital) future 印度竞争法的经验——它的历史和它的(数字)未来
Indian Law Review Pub Date : 2020-09-01 DOI: 10.1080/24730580.2020.1843316
G. Gouri, Kalyani Pandya
{"title":"The Indian competition law experience– its history and its (digital) future","authors":"G. Gouri, Kalyani Pandya","doi":"10.1080/24730580.2020.1843316","DOIUrl":"https://doi.org/10.1080/24730580.2020.1843316","url":null,"abstract":"ABSTRACT Competition law is an economics-based law designed to regulate anti-competitive conduct of market participants. This article examines the economic circumstances in which India acquired its modern competition law and evaluates the sufficiency of this law for recent developments in India’s digital economy. Rapid technological developments and the emergence of virtual markets, networks and platforms in India suggest that the Indian competition authority, the Competition Commission of India (“CCI”), may need to adopt a more nuanced approach in identifying relevant markets than it has hitherto applied in respect of more traditional sectors. The rapid evolution of the digital economy also raises the basic issue of whether an economics-based law should have a definite structure or allow for flexibility of incorporating market dynamics. The article also reviews and analyses the recommendations made by the Competition Law Review Committee in this regard and the adequacy of the amendments proposed in the draft Competition Bill 2020.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77444791","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
Google and the evolution of CCI’s online platform market definition analysis 谷歌与CCI在线平台的演变市场定义分析
Indian Law Review Pub Date : 2020-09-01 DOI: 10.1080/24730580.2020.1819050
Aakash Kumbhat
{"title":"Google and the evolution of CCI’s online platform market definition analysis","authors":"Aakash Kumbhat","doi":"10.1080/24730580.2020.1819050","DOIUrl":"https://doi.org/10.1080/24730580.2020.1819050","url":null,"abstract":"ABSTRACT The popularity of multi-sided online platforms has risen exponentially in the last decade, and so have the number of competition cases involving such platforms. This paper examines how the Competition Commission of India (CCI) defines the relevant market in its landmark Google decision. It then traces how CCI’s analysis of market definitions has evolved over the time by comparing the Google decision with other cases concerning online platforms that have been decided before and after it. To trace this evolution, it also explores the relevant reports, studies, and proposed amendments to the existing legal framework in India and assesses how these may impact the future analysis of market definitions.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91442580","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
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