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Volume 8 Issue 2

Editorial Note

With the loss of three giants of Indian politics, the month of August was tumultuous for the people of India. Atal Bihari Vajpayee, Somnath Chatterjee and M. Karunanidhi, hailing from polar opposites represented the diversity of the Indian political spectrum. Yet, their leadership was characterized by the intent they shared in common – to uphold democracy, and value the voices of all – and the intersection of their intellectual and political legacies has significantly shaped Indian politics..

Vajpayee, who rose to become one of the most beloved and respected Prime Ministers of India, led the country towards consensus during a time of fragmented politics. In leading the first Indian coalition government, Vajpayee left behind a legacy in nation-building due to his ability to be acceptable across the ideological spectrum without compromise on his ideals.

Chatterjee, a highly respected leader of the Communist Party of India (Marxist), and who was elected as the speaker of the Lok Sabha was known to be one of the firmest, and yet non-partisan occupants of the chair. His steadfast hold of his idealism and refusal to engage in partisan-politics despite being faced with his own party’s orders to step down over the Indo-US nuclear deal was representative of the strength of his convictions.

And Karunanidhi, a Tamil nationalist who had once sought a separate nation for the Tamil speakers of India, was deeply rooted in his commitment to democratic ideals. Having led his party for almost fifty years, he will be remembered for the strong opposition he put forward during Emergency and his dialogue and writing which had a lasting influence on the cultural and socio-political space of Tamil Nadu.

These political giants, whom the nation lost in the span of 10 short days, will be remembered for providing impetus to a democracy to flourish. In facilitating a political environment which allowed for voices from all ends of the spectrum to be raised, devoid of fear; they provided the space for the co-existence of ideologies, seeing it as imperative for the growth of Indian democracy.

In the evolving landscape we occupy today, the transformation of the political space is evident – gone is the mature thought which viewed alliance as a solution in critical times, and witnessed gestures from political leaders born of mutual respect – replaced instead by confrontational and hostile politics, with deepening rifts resultant of social media influence and differences which blur the line between the personal and the political.

As fissures deepen, the need for impartial, independent and rational decision making grows. The last week of September 2018, in being the most hectic week for the honourable Supreme Court of India, witnessed 20 seminal verdicts spanning criminalization of politics, the civil liberties of activists, the legality of Aadhaar, bar on the entry of women in Sabarimala and the religious aspect of Ram Janambhoomi title dispute.

These decisions display the progressive evolution of our justice delivery system, necessitated in order to match the pace of societal needs. They display the commencement of discourse on several issues of integral importance, such as the right to privacy, the right to worship, expansion of and limits to liberties, to name a few. More importantly, they display the vacuums in our legal system, a system in transition, and as discourse commences, so are several unanswered dilemmas, requiring responsible advocacy.

Not unlike our domestic context, the international space also finds itself characterized by certain pressing questions, born of the transforming nature of relations between States as well as the demands of multiple stakeholders in an evolving global society no longer characterized solely by sovereigns.

Not unlike our domestic context, the international space also finds itself characterized by certain pressing questions, born of the transforming nature of relations between States as well as the demands of multiple stakeholders in an evolving global society no longer characterized solely by sovereigns.

While on the one end, the United States of America’s sanctions against Iran’s oil exports in light of involvements in Middle Eastern conflicts have witnessed countries raising fundamental questions about the balance of the global order, on the other end of the spectrum, civil society organizations are seeking of States, data and progress on global goals 2030 and are lobbying for global laws to develop common international standards.

And if these developments in Law and Politics urged us all to the edge of our seats, with this issue of the Journal going to the press, the political pundit is eagerly awaiting to see how the vote swings with the assembly election result right around the corner. This is important as it could be the litmus test for the current Government, given that the country shall go for the general election by May 2019.

To keep your mind engaged in Law, Politics, more often than not intertwined, and their development, delve into this issue of the Journal which deals with some of the most contemporary issues in the local as well as global domains. In presenting argumentation and analysis of a wide spectrum of emerging issues ranging across global currency, ease of doing business in India, SARFAESI Act, implications of digitization of lands for the poor, divorce among multi-cultural societies in Britain, the socio-legal perspective of suicide in India, we are sure that this issue of the Journal shall provide you the impetus for further thinking and research.


October 2018

Legislative Backing for Augmentation of Ease of Doing Business in India -Special Reference to Corporate and Insolvency Legislation in India

Mamata Biswal


 ‘Ease of doing business’ without a conducive legal and regulatory environment is half-finished. According to the World Bank Ranking, India has been ranked 100 (World Bank Report, 2018) in ease of doing business. Despite India’s phenomenal progress its ranking comes below most of its fellow BRICS countries, Russia topped the BRICS with 35 rank, China with 78 rank, South Africa with 82 rank except Brazil which is lowered in rank than India i.e.125 rank according to the World Bank Ranking, 2018.

Prof. (Dr.) Mamata Biswal, is Professor of Law & ICSSR Senior Research Fellow, Gujarat National Law University, Email: mbiswal@gnlu.ac.in

Politics in Global Currency Regulations: IMF & WTO Cooperation in the Light of Currency Dispute Between USA And China

Ajit Kaushal


There is an ongoing political conflict between United States & China. The history of currency conflict between USA and China is more than two decades but it is still unresolved. Recently, USA President - Mr. Donald Trump - tweeted, “Russia and China are playing the Currency Devaluation game as the U.S. keeps raising interest rates, not acceptable!”

This Article identifies an important aspect of the ongoing currency conflict i.e. question relating IMF and WTO relationship. The IMF and WTO relation is highly contentious, complex and lacks clarity. WTO is the guardian of the international trade, and this Article attempts to decode the role of WTO in the cases where trade distortions arises out of manipulative currency policy adopted by a member. In the area of relationship between the IMF and WTO, an important change came by the act of USA calling Chinese policy of devaluation as an export subsidy (in its annual policy briefs). This Article identifies the feasibility of calling such a manipulation as subsidy.

Dr. Ajit Kaushal, Assistant Professor (Senior Scale), School of Law, UPES (Dehradun), India, Email: ajit-kaushal1@gmail.com

When Ethnic Minorities Divorce in Multicultural Britain: A Survey of Legal Challenges with a Focus on the South Asian Experience

Anirudh Belle


This paper explores divorcing patterns among ethnic minorities in England – with a special focus on South Asians – and the challenges these minorities face when their customs interact with the secular and official law of England. Its argument is developed through three thematic sections. The first section, divided into three subsections, explores a few problems South Asian minorities face domestically – i.e. from their practices in England. In the second section, challenges from a conflict of laws perspective – i.e. where an overseas angle is involved – is detailed and evaluated. The third section, with the example of what is widely called the angrezi shariat, looks into the possibility and challenges of a parallel legal realm among ethnic minorities. The final part summarises and concludes. While the overarching focus of this analysis is on the English context, a subtler motivation behind this effort is rooted in the domestic context of South Asia, particularly in India. The growing call, among some sections of Indian society today, for a Uniform Civil Code is one which must be evaluated in light of the possible consequences it may invite. Though my analysis has been restricted to customs of divorce, it is hoped that it offers a sense of the challenges that would emerge when official and secular family laws attempt to prevail over its counterparts in the religious/personal realm. Needless to say, the success of a possible Uniform Civil Code in India will depend on the extent to which it addresses pitfalls faced by similar multicultural societies like England.

Anirudh Belle, Final-year Student of the three-year Bachelor of Laws (LL.B.) programme at the Jindal Global Law School, Email: 16jgls-abelle@jgu.edu.in

Conflicting Rights of Secured Creditors and Tenants under the SARFAESI Act-Ambiguity Resolved: A Critical Analysis

Garima Goswami


The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, was enacted in the year 2002. The objective was to entitle the banks and financial institutions as secured creditors to take possession and sell the secured assets without resorting to filing cases in Courts or the Debt Recovery Tribunals. However, very often, the recovery through enforcement of security interest on the secured assets by the secured creditors has been impeded due to persons inducted into the secured properties as tenants, lessees etc. by the borrowers. The problem has its genesis in those situations where a property is mortgaged by the landlords for securing a loan from banks and financial institutions and when the landlords fails to pay the dues, the banks and financial institutions, after serving demand notice, can directly take possession of the secured asset under the SARFAESI Act. The secured creditors can thereafter sell the secured assets without the intervention of Courts or the Debts Recovery Tribunals. However, under such circumstances, the issue that arises is, whether the banks or financial institutions as secured creditors can evict the tenants or lessees from the secured properties under the provisions of the SARFAESI Act or not? In this light, the paper attempts to study and critically analyse the rights of the banks and financial institution as secured creditors to enforce their security interest versus the rights of the tenants or lessees to remain in the possession of the secured assets. This paper shall also examine the role of judiciary in resolving the controversy and further, how and to what extent the conflict has been resolved through the latest Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016.

Ms. Garima Goswami, Assistant Professor of Law, Gujarat National Law University, Gandhinagar, Email: ggoswami@gnlu.ac.in

Countering the Naxalite Movement in the State of West Bengal:-An Approach by the present Government

Arpon Sarki


Naxalism both as a movement and ideology strives to create an alternative social and economic structure by challenge principle, pace of change and outcome of Indian liberal democracy. The reemergence and rapid proliferation of naxalite activities in West Bengal since 2008 opened up new areas of discourse not just from the perspective of law and order but also in terms human security and policies, democratic development, social justice etc. The paper looks into various government initiatives implemented in the region of Junglemahal region to address the armed struggle that has emerged between the state and the Naxalites as a result of the social and economic injustice meted to the poor and oppressed sections of society. The paper seeks to probe the nature and impact in terms of success or failure of the process of resolution of this issue in the State of West Bengal.

Mr Arpon Sarki, M.Phil Student, University of North Bengal, Email: arpansarki@gmail.com

Suicide in India: A Socio-Legal Perspective

Saurabh Anand


An estimated 6-7% of the country’s population suffers from some kind of mental illness, while 1-2% has an acute condition. According to World Health Organisation (WHO) report (2017), “Mental Health Status of Adolescents in South-East Asia: Evidence for Action”, India has the highest suicide rate among ten South-East Asian countries. India’s suicide rate in the age group of 15-29 years, was 35.5 for every 1,00,000 persons which is the 12th highest in the world and is nearly double the global average. Suicide or self-harm is the second most common cause of mortality – after road-traffic injuries – among people aged 15-29 years in the South-East Asia Region. One in four children in the age group of 13-15 years in India suffers from depression, which affects 86 million people in South-East Asia region as reported by WHO. Whereas the official statistic collected by National Crime Records Bureau (NCRB) in its report stated that 15 suicides took place every one hour during the year 2015.When the problem of suicide is such magnanimous but our legal system under Section 309 of the Indian Penal Code consider committing suicide as a punishable offence instead of helping to overcome from the mental trauma. The historic blunder to save the individual from legal clutches have been removed by the government by passing the new Mental Healthcare Act 2017 which decriminalises suicide, stating that a person who attempts suicide should be presumed to have a severe stress, and shall not be punished. There are different sociological explanations for the cause of suicide along with the psychological ones. This paper shall discuss about the sociological understanding on suicide and need to explain the same from the existing laws for considering the suicide as a punishable offence to the decriminalisation of suicide.

Dr. Saurabh Anand, Assistant Professor of Sociology, Gujarat National Law University, Gandhinagar, E.mail: sanand@gnlu.ac.in

The De Soto Theory, Digitization of Land Records in India and its Implications on the Poor

P. Avinash Reddy


Land is often conceptualized as a resource which aids the poor in bringing about a significant positive change in their lives and this conception holds an even greater importance especially in agrarian and developing countries like India. The government of India is almost at the verge of digitizing all the land records and it is pertinent to understand the underlying theory as well as the procedure followed during this process.

As is rightly pointed out by Oliver Mendelsohn, accretion of rights over a piece of land has evolved to become so complex and indeterminable that land can be identified as the pathology of the Indian Legal system.1 This situation is inarguably a consequence of the absence of clear owner-ship rights over the land in contention. Building upon this understand-ing, granting/recording clear and indisputable ownership rights came to be identified as the only manner in which this issue of indeterminacy over property rights could be addressed.

In furtherance of the same, Government of India launched “The Digital India Land Records Modernization Programme (DILRMP)”, in 2008, for digitizing the land records with an ultimate objective of establishing conclusive title over immoveable properties.

This paper critically examines De Soto’s theory on modernization of property records which claims that “granting conclusive titles over property will alleviate the conditions of the poor”, which is the premise on which the ongoing land titling and digitization programme in India is based upon. Further, the paper puts forth the claim that ‘conclusive titles’ do not nec-essarily alleviate the conditions of the poor and can in fact deprive the poor and vulnerable people of their rights/interests over land (immoveable property), thereby adversely affecting their livelihood.

P. Avinash Reddy, 4th Year, B.A.,LLB (Hons.), NALSAR University of law, Hyderabad, India, Email: avireddy6@gmail.com

Legal Origin, Growth and Financial Market Development: Comparative Perspective

Abhishar Vidyarthi


The relation between the legal system of a country, its laws and its policies is an interesting one. Civil law countries tend to have more regulations in the market than the common law countries. Several economists have drawn a link between the legal system of a country and the growth of the financial market. The specific characteristics of the legal system impact the manner in which the market operates. Historically, the common law system has lesser regulations than its civil law counterparts. The assumption was that the pro-market characteristics of the common law system promoted investor rights and in turn lead to higher growth of financial markets. However, this fallacy has not proven true in the recent studies conducted by the economists. Several common law countries have failed to trigger financial market development owing to stringent financial policies. On the contrary, most civil law countries have prospered and grown at a substantial rate.

Studies show that the main determinant of the development of financial market is the monetary and financial regulations that are adopted by the government. On the other hand, the difference between the two legal systems stems from the limited role of the judiciary. This paper is divided into 2 parts. The first part of the paper will highlight the two school of thoughts, i.e. the law and finance theory and the political economy theory. The second part shall discuss the determinants of the financial market growth. Furthermore, this paper finds the correlation between the factors of development in the diverse legal systems and analyses whether the legal origin of the country has been a driver of economic and financial growth.

Abhishar Vidyarthi, 3rd Year, B.A. LL.B. (Hons.), Maharashtra National Law University, Mumbai, Email: avividyarthi@gmail.com