LEGAL
FOCUS ARCHIVES
COMPARATIVE FAMILY LAW IN INDIA AND THE UK: THE PWDVA (2005) AND FAMILY LAW ACT (1996)
In 2005, the Indian Parliament passed the Protection of Women from Domestic Violence Act (PWDVA). This Act, as the preamble states, is aimed at protecting the rights of women who are victims of violence within the family. The consequent litigation has raised some interesting questions about the rights and obligations of spouses with regard to the matrimonial home. These questions focus on the rights of the non-owning spouse with respect to third parties, the jurisdiction (or lack thereof) of Family Courts, and the scope of terms such as “shared household” and “matrimonial home.” Furthermore, the litigation has revealed various gaps in the Act, and brought to light a number of contesting interpretations of various provisions.> READ MORE...
Comparative Analysis of the Role of Members in Indian Company Law and European Union Company Law
When the European Economic Community was established in the middle of the 1950s, it was anticipated that one of its consequences would be the opportunities it would generate for companies incorporated in one Member State to do business in other Member States. Indeed, freedom of establishment for Community companies, as it was termed, was explicitly embodied in the Rome Treaty. Corporation is a legal entity, an artificial person created by the law, and its characteristics are dependent upon the law. In Western Europe, including the twelve nations of the EC, it has been found convenient to develop two general types of companies.. The corporate form used for larger companies, or “marketable share companies,” is called the public limited company in England and Wales.> READ MORE...
Exploring the contours of the right to privacy
With the overwhelming power of the internet to centralize information, it is possible to collate all kinds of information about individuals - from communications to medical information to financial records. Coupled with an explosion in the audio-visual media, the question of privacy now permeats almost all fields of human activity. In this article, the author explores the comparative contours of the controversial and vague right.> READ MORE...
Recognition of a trade union
The need for recognition of trade unions by employers was felt by the working class to ensure that appropriate modes of collective bargaining took place and that the agreements, which were collectively reached, were mutually observed. It was considered that recognition of trade unions was a step towards securing reasonable levels of pay and working conditions, which would be achieved if workers stood united in representing their demands through a trade union, which is adequately recognised. > READ MORE...
Examining Sri Lankan and UK judgments on aspects of the banker-customer contract
Rapid evolution of the consumers demands has compelled service providers to seek new methods of modernising and diversifying its day-to-day activities. Banks have had to re-visit the traditional banker-customer relationship (the contract) and somehow place these new demands within its confines. Both parties need to bear in mind what implications these modern concepts have on their traditional contract. > READ MORE...
Common law and civil law aspects of the Vienna Convention
The CISG represents a compromise between the civil law and common law systems, sometimes reflecting concepts that are unique to one system and not the other. As a result of the divergence between the two systems, several issues became the subject of debate during negotiations. In certain provisions, the rules of common law prevailed, while in others, the rules of civil law, writes Aashish Srivastava. > READ MORE...
Election law: campaign funds and taxpayer resources
In recent times, the dominant concern of election regulation in the United Kingdom has been political campaign funding, which Parliament and the Electoral Commission have sought to regulate to ensure that funding does not become a powerful lobbying tool in the hands of interested individuals or organizations. In India, the focus of election law has been the use of government or Parliamentary resources in an election campaign.
Suhas Baliga examines the Indian and UK law of elections.> READ MORE...
Discussing the rule against bias
Principles of natural justice are universal in nature, and are fundamental to every legal system. The rule against bias is an ideological derivative of the belief that there should be great public confidence in the judicial process. Jaydeep Singh Yadav discusses this principle.> READ MORE...
London Calling!
2007 may well go down as the year where the British law firm grew bullish about its Indian aspirations, writes Aju John > READ MORE...
Contempt power: The need for better-defined boundaries
The contempt power is an extraordinary power and is exercised only when public interest demands its use. The Supreme Court’s jurisprudence on the matter has attempted to bring out the boundaries and limitations of the power of contempt, emphasizing the role the free speech guarantee contained in Article 19. However, the precise limits of the power of contempt are still vague and controversial, writes Mrityunjay Biswas.> READ MORE...
Scripting new directions in rape law
Rape laws in India are antiquated, and the culture of branding the victim as a woman of loose morals continues to flourish. Instances where justice has failed the victim because of interpretation of law, assessment of evidence, long delays at the trial and harsh and humiliating cross-examination of the victim are reported with alarming frequency. Problems of witnesses refusing to testify against offenders or men in power, rampant in India’s criminal justice system, make it even more difficult for a victim to get justice, writes Mehak Khanna.> READ MORE...
Comparative advertising: Exploring the dos and don'ts
The law on comparative advertising will be determined by balancing clashing principles. On the one hand, brand owners will be concerned for their goodwill and, on the other, consumer benefits flow from the information they receive and the stimulation of competition through comparative advertisements. Navpreet Panjrath and Kanwardeep Singh explore the legal position.> READ MORE...
Regulating public service broadcast: Lessons from Ofcom
The importance of the broadcast medium has ensured that governments across the world have attempted to inject an element of 'public service' into it. For many democracies, it has proved a difficult task to fashion public service broadcasters who are truly independent from the government. With several changes being contemplated to broadcast regulation, India can learn a lot from Ofcom's work in the UK, writes Chandan Nagaraj> READ MORE...
A regulator for private higher education
Policymakers have recognized the need to overhaul India's higher education system and almost everyone accepts that private initiative in education is desirable. However, what kind of a regulator will spur the growth of many more universities, improve accountability and ensure quality and better access to education? Aju John explores a few examples from UK and studies a National Knowledge Commission note on higher education. > READ MORE...
Competition Law and Innovation: The debate over compulsory licences
Both competition law and Intellectual Property Rights (IPRs) seek to promote innovation and thus efficiency in the economy. Through the grant of limited monopoly rights, IPRs exclude others from using the intellectual property of the innovator. On the other hand, competition law, but for exceptional situations, strives to keep markets open; and the conflict between the two methods used to achieve innovation is evident. Ashi Bhat and Aju John take a look at how competition law systems in UK and the European Union have attempted to resolve this dilemma. > READ MORE...
Human Rights: Adjudication of complaints
The growing worldwide recognition of ‘human rights’ has seen the consolidation of support groups - state and non-state - in the international arena, that believed that what a government did with its citizens, was of interest and concern to the international community as well. However, there have been marked differences in how the various legal systems have incorporated what has largely been considered 'soft law'. Atreyee Majumder and N Chandrashekharayya examine these approaches.> READ MORE...
Skills and the making of a good lawyer
A good lawyer would have the skills to build and strengthen relationships with clients. The true test of effective interviewing and counseling is not only the amount of critical information that the lawyer is able to glean, but also the mental satisfaction of the client in being convinced that there is a “legal” solution to the problem. Very often, it is assumed that lawyers have these skills. Even a cursory glance at the quality of legal professionals in India would disprove this, Dhruv Sahai writes.> READ MORE...
Leniency in cartel investigation: lessons for Indian competition policy
Amnesty to firms that give enough evidence to commence an investigation against cartelists have proved successful in the UK. Fines running into millions of dollars and euros have been recorded in the US and in the EU. Neither the Indian Competition Act, nor the proposed amendments have understood the rationale that underpin these programmes, argues Aju John.
> READ MORE...
Cohabitees: A tightrope to legal recognition
All debates over the legal recognition of cohabitation, and the role of law and policy, need to tread a thin line. On the one hand, it is vital that certain indispensable protections are available for the partners to this arrangement. It is equally important that the reasons why a couple did not choose the regulated institution of marriage are respected. Parul Kumar studies the UK experience to see what India can learn.> READ MORE...
Food Safety Regulation in India
The Domestic Violence Act, 2005: A new direction
Significant lacunae have existed in the capacity of any legal system to accommodate for cases of everyday domestic violence in the lives of women – something that had been restricted to the private domain. The step forward came in understanding domestic violence as a human rights violation, and attempting to dissolve the public-private divide in this regard.
In this essay, Sanhita Ambast and Srijoni Sen examine the provisions of the new domestic violence legislation and find that in some aspects, the approach to the problem in the UK and other jurisdictions could have been instructive. There are also hurdles in the path of effective implementation. > READ MORE...
Capital punishment: revisiting the abolition-retention debate
Penology debates have consistently questioned the appropriateness of retribution and societal vengeance as a drive-force behind punishment. Atreyee Majumder revisits the case for humane punishment, that measures punishment not against the brutality of the crime, but against the aims of punishment itself. > READ MORE...
Public interest journalism: the dying defamation threat
The October 2006 decision by the House of Lords in the case of Jameel was hailed by media of all hues as another decisive blow to end the rigidity of defamation law. Not only did the judges have to respect the highest traditions of free speech needed to enliven a democracy, but they had to do so in the British context where the culture of sensationalist journalism gets more entrenched by the day.
How has law approached the need to ensure that vital investigative journalism remains responsible?
Aju John compares the approach to this issue in the UK, the United States and India > READ MORE...
Batting for the Victim
The neglected and strained voices of the victims are finally finding an audience in the hallowed halls of the criminal justice systems across the world. Akshaya Suresh has more to say about the progress made on this front. > READ MORE...
Judicial appointments debate misses the elephant in the room
Having abrogated to itself the constituent power, can the judiciary have the sole say in its appointment? Is the power of judicial review in the hands of such an undemocratic body legitimate? Does the proposed National Judicial Commission have solutions to the present problems? A debate with a history of two decades of controversial litigation at the Supreme Court shows no sign of closure. Aju John takes a look at the story so far in light of the UK's decisive steps towards guaranteed judicial independence.> READ MORE...
Is Drug Abuse a Criminal Justice Issue?
Drug abuse is both a social inclusion and a criminal justice issue. Sociologists have long advocated that the Government should address the issue not as a crime but as a societal malaise. The United Kingdom has early this year introduced a new law which makes treatment of drug addiction a priority rather than just focus on the criminalization of the act.> READ MORE...
Crime in Mercy: Debates Surrounding Legalisation of-- Euthanasia
Criminal law, medical ethics, religion and philosophy get intertwined in any discussion on ‘euthanasia’. Variously referred to as ‘assisted suicide’ or ‘mercy- killing’, it poses many questions in the realm of law and ethics. Atreyee Majumder addresses several of these questions in this article> READ MORE...
Will Broadcasting Laws take the Sting out of the Operation?
Sting operations have dominated media technique in India over the past decade, creating defining moments of Indian history in the process. Several media houses and even political parties have resorted to undercover methods of uncovering information. Aju John takes a look at the ethics and legal framework, in the context of the proposed Broadcasting Bill> READ MORE...
Privatisation in India and UK: Mixed Success. Different Constraints
United Kingdom has been a forerunner in the exercise of undertaking privatisation of public sector undertakings and utility companies. Some of the earliest privatisation examples relied upon in India were from the United Kingdom. In this focus article, Nazia Ali and Saurabh Suman Sinha examine the concept of privatisation and how United Kingdom and India have dealt with the legal issues surrounding this politically and socially sensitive subject. > READ MORE...
Plea-bargaining – Guilty, but of a lesser offence?
Effective July 5, 2006, a new tool in the form of “plea-bargaining” has been added to address some of the ills, which ail the Criminal Justice system in India. Atreyee Majumder reviews the changes brought about in the Law since the introduction of “Plea Bargaining” by the Criminal Law (Amendment) Act, 2005 and highlights the several interesting deviations the law has made from the common law principles. > READ MORE...
TERROR LAWS : A Comparative Overview
India and the UK in recent history have faced the wrath of terrorism which has inflicted serious losses of life and property. Both countries have had their own share of a series of legislations and repeals meant to counter terrorism. In this article, Nazia Ali and Saurabh S. Sinha, Advocates have reflected on the counter-terrorism laws in both countries.> READ MORE...
The Office of Profit Bill
The Law on Office of Profit is expected to be promulgated in the monsoon session of Parliament. In all the media frenzy, relating to the personalities involved, there has been little debate on the crux of the issue which is to protect the independence and impartiality of the legislature. Little is also known about the history of the law that evolved in England in the context of struggle between the Crown and the House of Commons. In this article, Shashank Krishna reviews the issues involved in light of judicial decisions on the point.> READ MORE...
Alternatives to Custody – The Case For Community Sentencing
Alternative sentencing is a pressing need given the overcrowding of prisons and the pressures faced by the Criminal Justice System in India or for that matter most countries worldwide. The focus this week is on the possible alternatives to Custody and Imprisonment. This speech by the Lord Phillips Of Worth Matravers, the Chief Justice of England and Wales delivered at the Centre For Criminology, Oxford University on 10 May 2006 makes for compelling reading on some of radical thinking on sentencing policies which is currently engaging the higher judiciary in England. > READ MORE...
Witness Retraction : Need For Legal Reform
The Supreme Court judgment in the Best Bakery case and the public outcry following the verdict in the Jessica Lal case, highlighted the issue of retraction of statements made by witnesses in Criminal Proceedings. The present article by Ananth Padmanabhan calls for a revamp of the procedural and evidence laws and has explored how courts and the Parliament in UK have address this issue.> READ MORE...
The UK experience on mediation- Can it be an alternative to Court based litigation?
Mediation is a very popular form of an Alternate Dispute Resolution (ADR) mechanism
where a neutral third party (the mediator) assists parties to come to an agreement
whereby they could settle their dispute on terms which each party finds acceptable.
Two experts from UK Philip
Bartle QC and Oscar Del Fabbro
were recently in India to share UK experience on mediation as an alternative to Court based
litigation. The following articles share some of the salient features and essential
elements of mediation. Read more...
Protecting Employee Rights On Transfer Of Undertakings
Recent media attention has focussed on instances where a transfer of undertakings has raised a few eyebrows. The UPA government’s decision to modernize the Delhi and Mumbai airports through privatization and the takeover of Sahara Airlines by Jet Airways paralysed air traffic. The dust was yet to settle after the strike was called off when industrialist Lakshmi N Mittal made a surprise 18.6 billion euro bid on Arcelor Steel, raising the spectre of job losses in Europe. In this article, Aju John focuses on the laws protecting workers in cases of transfer of undertakings or in case of a takeover in India and the UK.> READ MORE...
The Arbitration Act 1996 – an overview and proposals for reform
Both UK and India revised their arbitration laws in 1996, with a view to enhance party autonomy and the finality of arbitral decisions. In this article Khawar Qureshi looks at the challenges facing the UK law. The author has extensive experience with arbitration and represented India in the Dabhol arbitration.> READ MORE...
Intellectual Property Law- Common Challenges
Intellectual property has influenced and will continue to influence world trade for years to come. In this newsletter, we are carrying two recent speeches addressed by The Right Honourable Sir Robin Jacob, Lord Justice of Appeal England and Wales . These speeches were delivered during his recent visit to India organized by the British Council.
Public Interest Litigation - A Comparative Perspective
Public Interest Litigation or PIL in India has a much wider connotation than anywhere else in the world. PIL is a legal action initiated in a court of law for the enforcement in the interests of the
general public or a community
. It can be brought by anyone in the interest of general public or a community or a class within a community having an interest which is being affected by action/s or inaction/s of the government. In this article Saurabh Sinha explore the legal position in India and UK with respect to PILs. > READ MORE...
Medical Negligence: "SC Comes to the Aid of Doctors?"
In a major ruling last year, the Supreme Court directed law enforcement agencies not to proceed against doctors accused of rash or negligent acts without obtaining an independent and competent medical opinion to support the charges. The Court relied on the judgment of the House of Lords in the celebrated Bolam’s case and framed the guidelines for determination of medical negligence in India. The theme article this week focuses on the comparative law in India and UK with respect to medical negligence cases.> READ MORE...
Parliamentary Privileges - A Comparative Study
Though not expressly stated, Article 105(3) of the Constitution of India has conferred Parliament with all powers and privileges vested in the House of Commons. The Constitution further gave the Parliament freedom to define its powers, privileges and immunities. The recent scandal relating to payment of money to parliamentarians to ask questions in Parliament raises several interesting legal issues which appear to be common to both India and UK. > READ MORE...
A Primer to the Right To Information Act, 2005
On 12 October 2005, the Right To Information Act, 2005 came into force in India. The objective of the Act was revolutionary when seen in the Indian context, as it opened all official departments across the country to public scrutiny. Since lawyers and the civil society are the most important stakeholders in the successful implementation of the Right to Information Act, 2005 the newsletter for this fortnight focuses on the Right to Information Act. See More...
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