Ranjan on Restating the Law of Res Judicata in India

Brajesh Ranjan (Jindal Global Law School) has posted A Restatement of the Law of Res Judicata in India on SSRN.

Abstract:

The law of res judicata is a universal principle of law which requires that matters judicially determined must not be re-litigated. In India, this law is embodied in section 11 of the Code of Civil Procedure, 1908. However, the Indian courts have also resorted to what they call a ‘general law’ to affect res judicata when the statutory law is inapplicable. This paper employs two approaches to study the development of the law of res judicata in India: legislative and interpretational. It begins with a brief narration of the historical background to the statutory law. It then picks up three distinctive features of the statutory law to analyze how the content of the general law of res judicata, created and developed through judicial interpretations, compares to that of the textual law. Next, the paper maps the terminologies that Indian courts use for articulating this general law onto those used by the statute for defining the statutory law. Through a comparison of the vocabularies of the two laws, the paper shows the operating requirements of the general law. The paper then discusses the scope of application of general law by looking at the situations in which courts have invoked it. By studying the general law in contrast to the statutory law, the paper argues thus: (a) the general law neither answers to the common law of res judicata nor suffers the limitations of the statutory law. (b) This court-created general law is the law of res judicata reduced to its bare essentials which makes it applicable in almost all situations – even in situation where the statutory law is the controlling law (c) with its unfettered scope; the general law appears to have taken away the exclusivity of the statutory law. The paper then concludes by restating the principle clause of statutory law to bring it in conformity with the law of res judicata, as it stands today in India.

Varottil and Majumdar on Regulating Equity Crowdfunding in India

Umakanth Varottil (National University of Singapore-Faculty of Law) and Ariya B. Majumdar (Jindal Global Law School) have posted Regulating Equity Crowdfunding in India: Walking a Tightrope [in PM Vasudev and Susan Watson (eds), Global Capital Markets – A Survey of Legal and Regulatory Trends (Edward Elgar, 2016)] on SSRN.

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Abstract

Start-up companies face difficulties in raising finances, and the situation has exacerbated since the global financial crisis in 2008. As a result, crowdfunding has made its appearance as an attractive alternative capital-raising mechanism by harnessing technology (primarily the Internet) to access funding from the “crowd”.

In this chapter, we explore the core question of how should one regulate equity crowdfunding in a manner that enhances its appeal to engender the development of small and new-age businesses through accessible funding opportunities and at the same time protect investors against undue risks, such as fraud, which arise from the activity. We analyse the regulatory conundrum on equity crowdfunding by examining the legal regime for crowdfunding in India.

The rules relating to fundraising by companies in India have been considerably tightened under the Companies Act, 2013 that limits crowdfunding activity. However, the Securities and Exchange Board of India (SEBI) has issued a consultation paper that proposes a framework for ushering in crowdfunding in India. We find that the unduly onerous conditions imposed by SEBI have the effect of deterring rather than promoting the growth of crowdfunding. The existing (and proposed) legal framework in India have erred on the side of caution and sought to emphasise more on investor protection than to engender the market for crowdfunding.

CFP: Annual National Conference on Contemporary Legal Scholarship (SPS, Pune)

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Symbiosis Law School, Pune is organizing its Fifth Annual National Conference on Contemporary Legal Scholarship to be held on 10th September 2016. (The list of themes is available at the link).

CFP:

All  Ph.D, PG and UG students are cordially invited to submit papers or works in progress on any topic relating to the themes given below. To participate in the conference please send by email or surface mail an abstract of 300 words (max) to slspnc2016@symlaw.ac.in by 22nd of July, 2016. Paper presenters will be selected on the basis of the abstract submitted to Symbiosis Law School, Pune and email communication will be sent to the selected authors/researchers by 20th August, 2015. The final paper should reach Symbiosis Law School, Pune by 29th July, 2016. The final paper should not exceed 6,000 words. Within the conference theme, papers will be grouped within broad subject areas with sessions.

The conference will be held in Parallel tracks. The schedule of the conference is as follows:

Inaugural Session Plenary Session: Transnational Collaboration in Research: Significance & Opportunities

Track I: International Law and Human Rights

Track II: Public Law and Governance

Track III: Business Laws

Track IV: IPR, Technology and Innovation Laws

Concluding Session

An Indicative list of sub-themes under the broad themes can be found at Annexure 5 on which the papers may be written. It is an indicative list and not exhaustive.

Note:  Symbiosis Law School, Pune will not be providing any TA/DA and accommodation to the participants. However they are glad to provide assistance in locating the accommodation on prior information. Best three papers shall receive cash prize and certificate. Other presenters shall receive a certificate of participation Contact: For further queries or information please contact Mr. Kiran Sonar (Office Superintendent) at 020-66861125 or Raj Varma at 8380020927.

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Chopra on Seeking and Preserving Records relating to Mass Sectarian Violence in India

Surabhi Chopra (Chinese University of Hong Kong, Faculty of Law) has posted Archives of Violence: Seeking and Preserving Records Relating to Mass Sectarian Violence in India (forthcoming, National Law School of India Review 28.1) on SSRN.

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Abstract:

“Since India gained independence, it has experienced a number of episodes of targeted sectarian violence against religious minorities. The worst of these episodes have claimed hundreds of lives, injured hundreds, and displaced thousands from their homes. This article evaluates access to information about mass sectarian violence in India.

The article focuses on four occasions between 1983 and 2002 when religious minorities were attacked on a large scale. It discusses an attempt to secure official records related to these four episodes of mass violence using India’s Right to Information Act. The article considers why access to information about these grave atrocities is vital. It proposes that the state create public archives related to mass violence and suggests how it might do so.”

 

Fletcher and others on the Legal Regime Concerning Enforced Disappearances

Laurel E. Fletcher and others (University of California, Berkeley – School of Law, USA) have posted The Right to a Remedy for Enforced Disappearances in India: A Legal Analysis of International and Domestic Law Relating to Victims of Enforced Disappearances on SSRN.

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Abstract:

The practice of enforced disappearance has reached a global scale, and India is not immune to this human rights violation. Individuals and communities in several Indian states have been targeted for enforced disappearance and suffered injury as a consequence. Simultaneously, international law continues to develop norms to prevent, prohibit, and redress enforced disappearances. As a sovereign state in a global context, India has assumed some, but not all, of these international legal obligations. In order to assist advocates in developing strategies to promote redress for the victims of enforced disappearance, including women placed in the precarious position of losing their family breadwinners, this paper analyzes the international law applicable to enforced disappearances, examines Indian law in light of these international standards, and points to areas where advocates can use international legal standards to argue for reforms to Indian law and policy.

This paper proceeds in eight parts. First, it places enforced disappearances in its historical context. Second, it discusses the development of the International Convention for the Protection of All Persons from Enforced Disappearance, a recent treaty that significantly shapes modern international law on enforced disappearances. Third, it examines the international human rights framework for enforced disappearances in India. Fourth, it discusses India’s obligations under international humanitarian law, specialized law that applies during times of armed conflict. Fifth, it reviews the relationship between international human rights law and international humanitarian law, and explores the applicability of these bodies of law to enforced disappearances. Sixth, it examines the international right to a remedy and the various forms that remedies may take. Seventh, it analyzes Indian domestic law against the backdrop of India’s international legal obligations. This analysis offers Indian activists guidance in considering the role that international norms may play in developing an advocacy strategy to promote redress for victims of enforced disappearances and torture. Part eight concludes.

This Working Paper was prepared by students in the International Human Rights Law Clinic under the supervision of Laurel E. Fletcher. Angana Chatterji, Co-Chair of for the Project on Armed Conflict Resolution and People’s Rights (ACRes), Center for Social Sector Leadership, Haas School of Business at the University of California, Berkeley and Mallika Kaur, Director of Programs, ACRes provided helpful comments. Clinical Fellow Katrina Natale ’15 gave invaluable editorial assistance. We thank Olivia Layug, Associate Administrator for Berkeley Law’s clinical program for her help with production.

Note: This Working Paper was prepared by students in the International Human Rights Law Clinic under the supervision of Laurel E. Fletcher, Clinical Professor of Law and Director, International Human Rights Law Clinic for the Project on Armed Conflict Resolution and People’s Rights (ACRes), Center for Social Sector Leadership, Haas School of Business at the University of California, Berkeley. Angana Chatterji, Co-Chair of ACRes and Mallika Kaur, Director of Programs, ACRes provided helpful comments. Clinical Fellow Katrina Natale ’15 gave invaluable editorial assistance. We thank Olivia Layug, Associate Administrator for Berkeley Law’s clinical program for her help with production

 

 

Jakhu and Kaul on Regulating Space Activities in India

Ram Jakhu (Institute of Air and Space Law) and Ranjana Kaul (Dua and Associates) have posted Regulation of Space Activities in India on SSRN.

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Abstract:

Abstract by B. Goswami: “In the past decade India has emerged as a significant space player with its increasing and expansive space operations. India having taken international obligations under the space treaties, thus ought to confirm with the principles established thereof while carrying out its space operations. At present Indian space programs essentially remain a governmental activity and this approach has been witnessed to work well until now. However, with growing interest in space, involvement of private entities remains inevitable and thus, domestic regulatory mechanisms for space activities are due since long. This chapter addresses major avenues involving space viz. launch activities, satellite telecommunications and broadcasting, remote sensing, intellectual property rights and satellite navigational services, in whichIndia has performed extensive activity, but often lacks domestic regulations to balance the rights and obligations. Each activity is analyzed in depth along with the current state of law vis-à-vis existing international obligations to safeguard various interests at international level, through enactment of domestic laws.”

Ruparelia on Social Activism in the Supreme Court

Sanjay Ruparelia (New School for Social Research – Department of Politics, USA) has posted A Progressive Juristocracy? The Unexpected Social Activism of India’s Supreme Court on SSRN.

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Abstract:

Since 2005, India has introduced a series of progressive social acts that legislate a right to various socioeconomic entitlements. These range from information, work, and education to forest conservation, food, and public service. Three features distinguish these acts: the explicit use of rights-based claims; the design of innovative governance mechanisms that seek to enhance the transparency, responsiveness, and accountability of the state; and the role played by social activists and activist judges in spearheading these pieces of legislation with the help of progressive party politicians. This paper analyzes a key slow-burning stimulus of India’s new rights-based welfare paradigm: the socially activist turn of its Supreme Court. I address two main questions. First, what explains the rise of progressive socioeconomic jurisprudence inIndia in the late 1970s? Following the prevailing scholarly consensus, I analyze the role of antecedent conditions and particular causal mechanisms to explain high judicial activism in India: deepening political fragmentation, endogenous judicial change, and the strategic political retreat of elected representatives. None of these factors can fully explain the timing, sequence, and focus of the social activist turn of the Indian Supreme Court in the late 1970s, however, which owed much to the rise of popular social formations during these years and their proliferation in the 1980s. Thus the complex interaction effects of several causal factors, whose weight has differed over time, provides a more convincing explanation. Second, what have been the achievements and failures of high judicial activism in India regarding socioeconomic rights? As many scholars persuasively demonstrate, its direct impact has been limited, while its pro-poor posture has been inconsistent. However, by focusing excessively on direct material consequences in the short-run, these studies discount the powerful long-term ramifications, many of which are symbolic and indirect, of the Indian Supreme Court’s earlier progressive turn.

Mate on Globalisation, Rights and Judicial Review in the Supreme Court of India

Manoj Mate (Whittier Law School, USA) has posted Globalization, Rights, and Judicial Review in the Supreme Court of India on SSRN.

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Abstract:

“This article is part of Washington International Law Journal’s symposium issue on Asian Courts and the Constitutional Politics of the Twenty-First Century. The article examines the broader and evolving role of the Supreme Court of India in an era of globalization by examining the Court’s decision-making in rights-based challenges to economic liberalization, privatization, and development policies over the past three decades. While the Court has been mostly deferential in its review of these policies and projects, it has in many cases been active and instrumental in remaking and reshaping regulatory frameworks, bureaucratic structures, accountability norms, and in redefining the terrain of fundamental rights that non-governmental organizations (NGOs) and other litigants have invoked in challenges to these policies. This article argues that the Court has deployed rights as “structuring principles” in order to evaluate and review liberalization and privatization policies, based on constitutional or statutory illegality, arbitrariness or unreasonableness, or corruption, and framed rights as “substantive-normative principles” to assess development policies. This article argues that the Court’s particular approach to rights-based judicial review has resulted in the creation of “asymmetrical rights terrains” that privilege the rights and interests of private commercial and industrial stakeholders and government officials and agencies, above the rights and interests of labor, villagers, farmers, and tribes. The article concludes by suggesting that the Court’s approach to judicial review reflects a unique model of adjudication in which high courts play an active role in shaping the meaning of rights, regulatory structure and norms, and the legal-constitutional discourse of globalization.”

Jain and others on Student Demographics, Accessibility and Inclusivity at National Law School

Recommended! 

Chirayu Jain, Spadika Jayaraj, Sanjana Muraleedharan, Harjas Singh and Marc Galanter have posted The Elusive Island of Excellence – A Study on Student Demographics, Accessibility and Inclusivity at National Law School, 2015-16 on SSRN.

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Abstract:

“National Law School of India University set up by Dr. Madhava Menon in eighties, transformed the legal education in the country. Very soon, five-year integrated law course became the preferred option amongst students and National Law Universities (NLUs) now numbering eighteen, sprouted across the country. These autonomous law institutes are unique in their character and are different from traditional universities. One such characteristic is their low student intake, giving them an air of exclusivity. Former Prime Minister went to the extent of describing them as “Islands of excellence in vast ocean of institutionalised mediocrity”.

NLS by all popular parameters, is considered to be the premier law institute of the country. This feeling of belonging to an elite institution and an aura of exclusivity, prompted this study to assess student demographics to be undertaken. NLS Diversity Census 2015 covered 97.9% of the student body, tabulating data relating to socio-economic background and performance & participation at NLS. Using this data as the basis, supplemented with several rounds of interviews and specialised surveys – this report has been compiled, which looks at the correlations between background factors and performance at NLS.

The Report is divided into two parts. The first part looks at and tries to answer the question of accessibility, ie, who is likely to get admitted into NLS? The second half analyses and tries to assess influence of one’s background upon performance and participation within NLS, and impact on one’s future plans. Evaluating the existing support systems and structures-how they are currently and also how they once were, the Report concludes by making suggestions on how to make National Law School even more democratic institution where all can excel, equitably.”