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Volume 7 Issue 2

Editorial Note

July, 2017 stood witness to what was termed as the largest tax reform the country has seen post-independence. The Goods and Services Tax, mod- elled on the premise of one nation, one tax, was enacted to replace the slew of indirect taxes and levies to ensure efficiency in the taxation regime. The rollout was met with mixed reactions – with the opposition parties boycott- ing the midnight launch, and protests from small and medium enterprises, textile industry traders, to name a few, breaking out in certain parts of the country – and it will be a while till the impact of this measure can be properly assessed.

In the meantime, India continues to grapple with heightened ten- sions across its borders. An incident of alleged trespass by Indian troops from Sikkim into Tibet in response to Chinese road-building near Doka La, the China-India-Bhutan trijunction, has devolved into an increasingly bel- ligerent standoff between India and China. Relations between India and Pakistan continue to plummet, with continued cease-fire violations across the LoC. Furthermore, with the China-Pakistan Economic Corridor going ahead full throttle, and with China recently raking up the Kashmir dis- pute, India faces the distinct possibility of a two-pronged conflict.

The domestic front is also equally mired in strife. The ‘Not In My Name’ campaign inspired citizens from around the world to organise marches in their cities in solidarity. Students and artistes voiced their resistance against what the organisers called a “climate of fear” in the country through poetry, plays, songs and posters. The national narratives on religion and secularism have become deeply polarised, with particular blame apportioned to the incumbent government.

The Aadhar controversy continues to surface. The Supreme Court has cut straight to the heart of the issue when in K.S. Puttaswamy v. Union of India, a case that will go down in Indian legal history — the landmark judgment of the Supreme Court established privacy as a fundamental right.

On the International front 122 countries came together to adopt a treaty banning production, stockpiling, use or threatened use of nuclear weapons or other nuclear explosive devices. The outlawing of the threat or use of nuclear weapons is significant, particularly in light of the North Korean crisis, which further escalated on account of an intercontinental ballistic missile test in early July, amidst the usual rhetoric of a nuclear war. However, given the boycott of the nine nuclear-armed states, actual disarmament seems to be a long way off.

The fate of the Rohingya refugees hangs in the balance as the govern- ment sees them as a threat to national security. India can either deport the Rohingya to Myanmar or accept them as refugees as Bangladesh has done. If it chooses the first option it would be a part of the genocide and face the risks of international condemnation and India would seem moving away from well-established procedures and practices of international diplomacy.

The year ending will witness the outcome of the result for the assem- bly election in Gujarat and Himachal Pradesh. The political importance of the election is much more significant as the Party will attempt to con- solidate its strength on the wave of development and change. While India is definitely currently going through a phase of transition and while old ideas and institution are being challenged, there are much that needs to be done in terms of malnutrition, terrorism, farmers suicide, corruption, employment and also broadening of the liberal spaces.

The present issue attempts to cover subject matters that reflects the pluralism that we aspire to achieve by bringing researchers from various stream to contribute to the journal.


Latin America in Indian Foreign Policy

R. Viswanathan (HE Rengaraj Viswanathan, former Ambassador of India to Argentina, Uruguay and Paraguay)


An earlier version of the paper was presented at the Ambassador Lecture Series, organised by the Center for Foreign Policy and Security Studies, Gujarat National Law University, Gandhinagar in Collaboration with the Ministry of External Affairs, Govt. of India, on 13 July 2017.

Constitutional Governance of Extra- territorial Operation of Indian Law

Girish R (Girish R., Assistant Professor of Law, Gujarat National Law University, Gandhinagar)


Extra-territorial operation is a concept; for and against sovereignty, established in international law. This is embodied in the Constitution of many Nations. In Indian Constitution, Clause (2) of Article 245 validates laws which may have extraterritorial operation and, puts restrictions on judiciary from declaring such laws as ultra vires. The legal maxim “Expressio unius est exclusio alterius” which is ‘an express mention of one thing implies the exclusion of another’ provides a conclusion that parliamentary laws can have extra-territorial operation and therefore questions on legislating anything extraterritorially do not rise. Judiciary has been entrusted with functions of examining the validity of such laws to declare them invalid. However, exceptions are found in the Constitution itself as seen in Article 245 (2). The territorial jurisdiction of Indian law as provided under Article 245 of the Constitution of India provides that the enacted law must have nexus with India. Thus, Article 245(2) caters to extra-territorial operation only if there is a cause and effect related to India, welfare of the country and the Parliament is required to specify the degree of relationship of the people and the law.

Substance-Over-Form Doctrine: Reshaping India’s Corporate Tax Regime

Sanskriti Mohanty & Satyajeet Panigrahi (Sanskriti Mohanty, 5th Year, B.B.A, L.L.B(Hons.), School of Law, GITAM University, Satyajeet Panigrahi, 5th Year, B.B.A, L.L.B(Hons.), School of Law, GITAM University)


The legislative resolve of the Indian government to bring the General Anti-Avoidance Rule into force and the amendment of the India-Mauritius Double Taxation Avoidance Agreement, against the background of a tainted tax atmosphere, are symbolic of the massive paradigm shift towards a substance-over-form tax regime in India. These moves, therefore, warrant an inquiry into the functionality and merits of the substance-over-form doctrine, which is set to decide the future course of the tax system of India. Hence, given the relevance of the long-standing doctrine in present times, the current paper aims to ascertain whether the codification of the substance-over-form doctrine is consistent with India’s dual objective of combating tax avoidance and boosting economic progress. And towards this end, the paper in the first chapter traces the evolution of the doctrine by progressive judicial interpretations breaking through the narrow walls of the philosophy of tax imposition. In the second chapter, the paper sets out the meaning and broad scope of the doctrine which has developed as a result of discrete and diverse application and interpretation of the doctrine in different socio-economic set up. Further, the third chapter entails an elaborate analysis of the development of the doctrine in Indian context, from the crooked trajectory that the importation of the doctrine took in India due to the inconsistent approach of the judiciary in its application, to the codification of the doctrine by the introduction of the GAAR bill and the amendment of the India-Mauritius Double Taxation Avoidance Agreement. The paper concludes that the codification of the doctrine is an evil, necessary to uphold the integrity of the tax system of India.

Delays in Subordinate Judiciary as an Impediment in Materializing the Right to Speedy Justice

A Review

Jagadeesh Chandra T. G. (Jagadeesh Chandra T.G., Assistant Professor of Law, Gujarat National Law University, Gandhinagar)


Over the years, huge pendency of cases and inordinate delays are the most important problems, faced by the Indian Judiciary. Although, there is wide-spread praise for the quality of the judgments delivered, and the hard-work being done by Indian Judiciary, the problem of delay and huge arrears stares at us all. On the one hand, the causes of delay in criminal trials have been examined by various committees and academicians and have also been discussed in various judgments in plethora of cases. It is observed that unless we do something about it, the whole system would get crushed under its weight. Speedy Justice is a fundamental right, which is implicit within the broad arc and content of Article 21 of the Constitution of India. It is the constitutional obligation of the state to dispense speedy justice, more so in the field of criminal law. The Hon’ble Supreme Court in number of cases laid down certain important guidelines for the enforcement of speedy justice, but failed to implement the same by trial courts. Today, with rapid increase in commerce and trade, the disputes are likely to increase more. Therefore, this paper revisits and examines the judicial reflections on the causes for the delay and critically analyses the effectiveness of guidelines issued for ensuring speedy justice while attempting to make suitable suggestions for appropriate implementations.

Irregularity in Hindu Succession Act which Brings Forth Injustice

Annanya Mehan (Annanya Mehan, 3rd Year, B.A. LL.B. (Hons.) student at Jindal Global Law School)


The situation of India at the time of enactment of the Hindu Succession Act in 1956 was such that women were hardly allowed to go out of the house, let alone to work and earn a wage. Since women were not allowed to work, it couldn’t be fathomed that they could ever own property on their own accord. There has been a massive change in the social context since then. Women not only work and earn salaries, they own property which has their own complete control over it. Such situations had not been expected or foreseen by the legislators in 1956. The questions thus raised are that what have been the impact of such changes. Whether there is a need for the modification of laws relating to succession, especially succession relating to the property of a female Hindu dying intestate?

Establishing Linkages Between Imprisonment and Impoverishment: Reinstilling Punitive Sensibilities in the Carceral State

Paridhi Poddar & Winnu Das (Paridhi Poddar, 4th Year B.A LLB. Student, West Bengal National University of Juridical Sciences, Kolkata, Winnu Das, 4th Year B.A LLB. Student, West Bengal National University of Juridical Sciences)


Traditionally, the prison is seen as a means to protect the society from potential violence through isolation of prisoners, as well as a means of retribution, reformation and restoration. While there may be theoretical differences in the justifications and purposes of imprisonment, incarceration has been demonstrated to be one of the causal factors behind impoverishment and of destruction of the capabilities of the inmates. The aim of this paper is to establish the causal connections between imprisonment and poverty as well as to critique the penal policies of the state that perpetrate poverty, in the context of both income-related and other capabilities. In this background, this paper seeks to urge appropriate reforms in both the jurisprudence governing prisoners’ rights and the structure of prisons.

Renewable Energy: Recourse to Control Human Induced Climate Change

Ranidipa Ghosh (Ranidipa Ghosh, Junior Counsel, High Court of Delhi)


The subject matter of the paper is under the theme of Understanding Climate Change Causes. Further, the paper aims to analyze the Human Causes of Climate Change. In the proposed area of discussion, the author starts with giving a short introduction of Climate Change i.e. why and how it is a matter of global concern and the outcome of latest discussions held at CoP 21 at Paris. The second point of discussion is concerning India’s response towards Climate Change at past. The paper also gives insight of the existing legal framework of our country in order to curb emissions. The author eventually throws light over the role of Government i.e. certain goals set by Indian Government with respect to clean environment regime and the plans, programs and schemes announced by Ministry of New and Renewable Energy to attain such goals. Further, the status of India with respect to governance and implementation is discussed and certain hard realities in that connection are examined in the ambit of the paper. At last the author throws light over the renewable energy sector and how access to renewable energy is going to contribute to the cause of sustainable development. The paper also includes the principles of international law relating to sustainable development in its scope. Placing emphasis on the type of energy as a tool to fight back the pertinent developmental challenge, the author discusses the sources of renewable energy as a boon to sustainable survival. Furthermore, the author states as how switching to renewable energy through bottom–up approach can lead to reform in the present situation. In order to substantiate the proposed area of discussion a glimpse of certain not so popular sources of renewable energy, their potential, their utilization so far is given. Also, the paper states certain policies of this sector which have been introduced in order to increase private participation. Finally, to conclude with, an attempt is made to delve into certain innovative ideas of reducing carbon footprint in our daily life so as to contribute towards protecting environment and making our habitat a better place to live in.

Science isn’t a house of cards, ready to topple if you remove one line of evidence. Instead, it’s like a jigsaw puzzle. As the body of evidence builds, we get a clearer picture of what’s driving our climate. We now have many lines of evidence all pointing to a single, consistent answer - the main driver of global warming is rising carbon dioxide levels from our fossil fuel burning.

John Cook

Unpaid Care Work: Are We Forgetting the Women in Our Economy?

Madhavi Singh (Madhavi Singh, 2nd Year BA LLB (Hons.) student, National Law School of India University, Bangalore)


Unpaid care work refers to unremunerated domestic tasks which include housework, cooking and caring for dependants. Internationally women do the bulk of care work. Hence, it comes as no surprise that feminist economists have argued for a detailed study of the time spent by men and women on unpaid care work. A study that maps the manner in which people spend their time on a daily basis on different economic or non-economic activities with a view to understand the various social indicators which influence the disproportionate division of work are called Time Use Surveys (hereinafter ‘TUS’). Such a study would broadly serve two purposes.

(i) First, by drawing attention to the gendered roles that women continue to play in society, such studies can be used to formulate gender-sensitive labour and employment policies which would help draw a larger female population into the labour force and contribute to their economic empowerment.

(ii) Second, it would help in calculating the real income of a country.6

This paper deals specifically with the second objective of TUS in the Indian context, that is, it attempts to analyse the role of unpaid care work in India’s development indices. The question which the author seeks to answer at the end of this paper is: Whether India should include a measure of unpaid care work as a part of its GDP?

The paper is divided into two parts. The first part discusses some arguments in favour of inclusion of TUS statistics in the calculation of GDP (Part I). The second part discusses the feasibility of an all-India TUS by looking at the history of TUS in India and ongoing developments in the field (Part II). The arguments in both the parts have been discussed in the backdrop of conditions unique to the Indian context.