Every day you may make progress. Every step may be fruitful. Yet there will stretch out before you an ever- lengthening, ever-ascending, ever-improving path. You know you will never qec to the end of the journey. But this, so far from discouraging, only adds to the joy and glory of the climb.
- Sir Winston Churchill
Welcome to the second issue of 'The GNLU Law Review'. Drawing analogy from the quote of the great statesman Winston Churchill who single handedly oversaw Great Britain through the World War II, our journey which began with the first issue is now at the threshold of the second issue being released. The journal has witnessed considerable progress over the last six months and is proceeding with constant will and determination to be amongst the best in the world. The first issue of 'The GNLU Law Review' has been appreciated and critically acclaimed by all its readers which is testimony to the progress we have made. It is only due to the relentless support of our readers stretching across all fields of legal academia that we have reached this juncture.
'The GNLU Law Review' provides an ideal platform to showcase all aspects related to bringing about this change. It provides a forum for the in-depth study and research of legal issues of national and international importance. Contemporary developments are extremely important in a field such as law which constantly witnesses rapid changes in terms of analysis, interpretation and application. Therefore, the need for a law review becomes all the more important and relevant in such context. The review is following the same system of demarcating the issue into articles and notes and comments as done in the previous issue.
The articles section in this issue is highly diverse. It takes the reader on a thorough tour of the entire realm of law ranging from arbitration to criminal law to investment law. Benjamin Franklin had once stated, "When will mankind be convinced and agree to settle their difficulties by arbitration". The time in question has finally arrived and there is an article dedicated to the same. Arbitration is now a key and preferred mode of dispute resolution which most parties prefer. It is inexpensive, cost effective and speedy. The article discusses the aspects related to foreign arbitral awards in India. It gives an informative outlook on the enforcement and recognition aspects of these awards by correlating it with the domestic act. Foreign arbitral awards are especially important with regard to the increasing globalized transactions taking place especially in India. After addressing the more 'lenient' mode of arbitration, the next article deals with the burning issue of witness protection. There are several ways by which vulnerable witnesses can be protected from a powerful and influential accused person. But every law is only as good as it works. This is exactly the point conveyed by this article. It covers the whole realm of witness protection. Everything to do with it, comparisons with other countries, suitable law needed and the current position. Zaheera Sheikh may have been long forgotten due to the decreasing media coverage, but this article is sure to revive the issue again and force us to rethink on the lack of clarity of laws we have on the same. The article section would be incomplete without reflecting upon an emerging area of corporate law, popularly know as the MAC Clause. This article discusses in great detail the famed enabling clause of mergers and acquisitions and its implications.
Diversity is reflected even in the Notes and Comments section. In this section, firstly, The famed Paparazzi is put to test by analyzing as to what extent can a celebrity's life be called as an open book. Foreign laws have been looked into and the Indian scenario has been discussed in the light of the fundamental light of the freedom of expression. A war for the airspace would usually bring to a person's mind an air battle to control a territory but the modern war for the airspace refers to the vying of commercial players to gain control over the airspace. The corresponding aspects of commercialization and privatization involved have been addressed in the next note. The innovativeness of this article makes it all the more unique. "Intellectual Property is a shelf life of a Banana" quotes Bill Gates and it would only do us justice to include a note in order to protect this precarious shelf life. Peer to peer networking is one of the most important modes of downloading content over the internet. But, issues relating to copyright infringement are bound to arise for the same from the entertainment industry. These issues have been addressed thoroughly both in the international and the Indian context in the next note.
'The GNLU Law Review' has always strived to be a wholesome and integrated law review. Thus keeping in trend with our previous issue, along with the articles and notes which are informative, the Comments section caters to the need of readers with an analytical bend of mind. The first comment deals with the buzzword ringing in legal and corporate circles alike, the issue of one man companies which has been dealt with in great detail reflecting the discrepancies in the new Companies Bill. The final comment deals with the judgment of LR.Coelho which changed the entire perspective of judicial review and how the legal fraternity sees it.
Finally, the responsibility for nurturing the commitment to rule of law and sustainable reality is one which must be consistently addressed by each one of us, individually and as members of this Association. The law is one institution by which such ideas can be realized. Thus, an attempt is made to deliver thoughts of academicians, research scholars and law students to the existing legal masses and academia through this second issue of 'The GNLU Law Review'. We have tried to include all aspects catering to a variety of legal issues and have also tried to conform to the valuable feedback we received for the previous issue. We are still in a state of constant and relentless progress, so feedback for this Issue would also be welcome. We now take pleasure in welcoming you to the academic discourse called 'The GNLU Law Review'!
Editorial Board
The GNLU Law Review
R. Bhanu Krishna Kiran' (M.Sc in Strategic Studies (RSIS, NTU, Singapore); M.Phil and. Ph.D in International Law (JNU); M.L (Research), International lawand Strategic Affairs Analyst
An arbitral award rendered by an arbitrator in an international commercial arbitration is not a judgement of court and so, it is not self-executing as domestic court judgement in India. Courts in India pursue a consistent, well- articulated policy of recognizing and enforcing awards in international commercial arbitrations; in fact, arbitral proceedings are recognized and enforced in Indian courts more readily. The principal sources of authority in India for the recognition of foreign awards are the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927, New York Convention on Recognition and Enforcement of Foreign Award, 1958 and the Arbitration and Conciliation Act, 1996. As a result, an action to confirm an foreign arbitral award can be brought under Part II of the 1996 Act which deals with the enforcement of foreign awards in India, particularly conventions awards, i.e. made in countries that are signatories to Geneva Convention and New York Convention, and Part I applies when the place of arbitration proceedings is in India. But by virtue of Supreme Court's applicability of Part I of the 1996 Act also to foreign awards and broader interpretation of "public policy" introduced potentially limitless judicial review of arbitral awards. In this context this paper argues that scope of applicability of Part I of the Arbitration and Conciliation Act, 1996 has become contentious after the Supreme Court's recent rulings, and also admits that the Supreme Court has adopted 'broader view' of "public policy" instead of 'narrow view,' which is a move from its earlier decisions.
Vijay Kumar Singh (Assistant Professor (Law), Hidayatullah National Law University, Raipur, Chattisgarh)
It is a common scene in a movie where the villain detains the family members of the witness so as to stop him to depose. At times, offers money for not deposing or deposing in false. Sometimes, it is shown that after a deposition, the witness is killed by the survivors of gang or even in a situation villain comes out of jail after completion of his sentence and takes revenge. These are not only the instances shown in the Bollywood movies, but can be witnessed in real life, for example Zaheera Sheikh, Shayan Munshi, Sateyndra Dubey, and others. Witnesses play a vital role in prosecution of a criminal case. In absence of witnesses, no accused can be brought to conviction. There are various factors which make a witness to an incident reluctant to depose or to depose falsely or irrelevantly (hostile witness). Least level of protection afforded to witnesses is one of the major reasons for this. The present paper discusses the issue of protection of witnesses.
Jatro dharmo hyadharmena
Satyam Jatranrutenacha
Hanyate prekshyamananam
Hatastrata Sabhasadah
Padodharmasya Kartaram
Padah sakshinomruchhati
Padah sabhasadah sarban
Pado rajanmruchhati
The First Code in India provided for the qualification of witnesses, assessing testimony of witnesses, false testimony and punishment of perjury. At all times, witnesses have been a key to justice administration.
Ketan Mukhija (P & A Law Offices, New Delhi, India)
The present economic environment is stained by a severe credit crisis, volatile equity markets and continued corporate profits shortfalls. But this has not affected the situation of Mergers and Acquisitions, where the companies still expect profitable ventures but this has also initiated the era of MAC Clause or Material Adverse Change clause with renewed vigour. This clause empowers the acquirer company to exit the transaction before the closing of the agreement.
This article pertains to giving a conceptual framework of the pertinent issues of the MAC clause and its significance in the the economic slowdown period. An analysis has been done as to the reasons why MAC clause is initiated in this period in a larger scale. An overview is given of the various protection clauses which can be included under this provision to act as buyer protection clauses. The contents of a standard MAC clause has been discussed with an emphasis on the most important provisions which are being included in the contracts in this period. The critical issue of how to include the MAC clause in a contract has been provided in the article.
The article then makes an analysis of the various judicial opinions regarding MAC clause and how the Courts have been interpreting the MAC clause in this economic environment. An outlook has also been provided as to how the companies to escape the restrictive interpretation of the Judiciary have replaced broadly drafted MAC Clause with specific MAC clauses.
The article concludes by highlighting the important points to be considered while drafting a MAC clause.
Shouvik Kumar Guha' (IV Year, B.A./B.Sc. LLB. (Hons.), West Bengal National University of Juridical Sciences, Kolkata, West Bengal, India)
The two fundamental rights of privacy and freedom of expression share an underlying current of tension with respect to each other, with the media's efforts to pierce the veil of celebrity privacy seeking to undermine the former right on the basis of support from the latter. In this article, the author has sought to highlight the manner in which the aforementioned rights derive their global validity from Articles 8 and 10 of the European Convention on Human Rights. The popular notion of celebrity being a democratic honor awarded through the media begs attention as a logical corollary for the degree to which informational privacy should be accordedto the celebrity. In course of the present article, the author would like to trace the critical divergence in the evolution of the common law of information disclosure on either side of the Atlantic. The author further accepts the premise of a celebrity being a person, who is both famous as well as familiar, the illusion of familiarity being created by the one-way mirror through which people try to catch a glimpse of the lives of such celebrities. At the same time, efforts have been undertaken to reveal that the celebrity has to struggle to control the publicity without which his/her existence feels threatened, the familiarity, as well as to keep at least some parts of his/her life truly private. Through a careful examination of landmark decisions, the judiciary's efforts to reconcile the provisions of Articles 8 and 10 of ECHR have also been looked at. Finally, the project concludes with an overview of the manner in which legal recognition has been accorded to this right in India through a series of judicial pronouncements and a discussion regarding whether the prevailing legal scenario can be improved upon harmonizing statutory restrictions such as the Californian Anti-paparazzi legislation with privacy torts as a means of redressing invasions of solitude as well as the flexible confidentiality requirements under both the common law and the American regime. Such reconciliation assumes all the more significance in the light of the fact that the problem that arises in case of a conflict between privacy and freedom of expression is great in magnitude, hence necessitating a way to resolve the competing values encompassed in such rights.
Sahil Narang (I year, LL.M. in International Trade and Business Laws, NALSAR University of Law, Hyderabad, Andhra Pradesh, India)
This paper recognizes the necessity of appropriate rules and regulations to govern the field of Space Activities in India. This need is felt because of the greater than ever commercial activities and the possible entry of Private players in the major sectors of Space in India. It is quite evident that India with its technological advancement in communication satellites, remote sensing, data processing, support services, infrastructure and training personnel from other countries has made its presence felt in the International fraternity and has become world's one of the leading space faring nation. Although Indian space systems were mainly used by government organizations to begin with, the economic reforms adopted by the Government of India expanded the role of private industry in certain Space Activities and Services but without much of activity in the field of Space law. The commercial wing of Department of Space in India called the "Antrix Corporation" has taken a great leap in the field of commercial space activities and it has brought along with it the problems concerning commercialisation. It is apparent that law follows technology and if we look at the International legal scenario governing Space Activities we see that when the first satellite was launched into the Outer Space there were no principles or treaties to govern the space activities, but with time an International legal framework was established and it was only afterwards, that few states began framing their domestic space laws. But India has been very sluggish in its dealing with unification of Space Laws and it still does not have laws specifically dealing with Space activities. India needs to critically and objectively address all legal and commercial issues related to domestic and international space activities by enactment of space laws. This paper discusses few such issues. With the grand success of 'Chandrayaan-I' it has become evident that India has the capability of conducting the Space activities in an efficient but less expensive manner and it can further its partnership with various other countries who are looking at India's doors after this magnificent success. And this success can be furthered by providing a proper regulatory framework governing the Space Activities in India.
Abhay Bhaskar & Mishita Jethi' (Abhay Bhaskar (IV year, BE (Hons) Mechanical Engineering, Birla Institute of Technology and Sciences, Pilani, Rajasthan, India) & Mishita Jethi (IV year, BA, LLB (Hons), National Law Institute University, Bhopal, MP, India)
With technology breaking through all known barriers to an all engulfing digital interconnectivity, legality of electronic transactions has become very nebulous. The face of peer-to- peer (P2P) networks for sharing music was altered forever with the development of software's like Napster, Limewire, Kazaa to name a few. We are but a few years away from the day when digital devices can hook up to the mammoth P2P networks. However, usage of P2P to download and upload copyrighted materials without permission is prohibited. Despite the existence of various international treaties, there are still sufficient variations between countries to cause significant difficulties in the protection of intellectual property. This compounds the problems of various groups, mainly the entertainment industry, which has always been unequivocal in condemning the use of such networks and repeatedly rallies for punitive measures to be taken.
This paper aims to study the threat spelt out by the rampant sharing of files through the internet. The inspiration for this paper comes from observing our contemporaries look for newer and more advanced ways to share digital information. Various judgments of the US Courts have held P2P sharing as illegal, being a violation of copyrights. But do we understand what P2P is? The bigger issue is what is the real magnitude of losses? India may not have attained the mass-scale sharing heights reached by the US and UK, but proliferation of Broadband internet will certainly influence the frequency and volumes of data sharing. Finally the paper tries to answer whether Indian IPR laws understand the demands of technology and can rope in this multi headed monster within the grasp of statutory violations?
Bhavya Shalini and Vinamrata Shrivastava' (Students, IV year, B.A., LL.B. (Hons.), Gujarat National Law University, Gandhinagar, Gujarat, India)
The concept of One Person Companies (OPCs) is being introduced in India by the new Companies Bill. This concept is not the brainchild of the Indian Legislature. It has already been enforced in several countries across the globe. These single member companies would reduce the tyranny of unlimited liability which is faced by small entrepreneurs. Thus, it might prove to be an added incentive for them to start and also to expand. This would encourage self employment which in turn would lead to rise in income followed by demand. Rise in demand would help infighting against the recession in the economy. However, an insight into the Bill shows that the Legislature is introducing the concept of OPCs without any proper structure to make them operational. The paper analyses the impact of synthesis of the new concept of OPCs in the Indian corporate scenario in the backdrop of the Salomon case. It highlights that inflexible and strict application of the principle of limited liability and separate legal entity on one hand and various inconsistencies of the Bill on the other hand can prove detrimental to the creditors of the OPCs.
"Growth means change and change involves risk, stepping from the known to the unknown"- George Shinn
A modern corporate regulatory statute is required to harness entrepreneurship, foster investment and growth. But any kind of change involves risk and when it is related to the dynamic corporate world, the magnitude of the same amplifies. One such risky change is the decision to replace one of the lengthiest legislation of the country, the Companies Act, 1956.
Tanuj Hazari (IV year, National Law Institute University, Bhopal, Madhya Pradesh, India)
This comment deals with the famed I.R. Coelho judgment which created a stir among judicial circles. The issue of judicial review discussed in the judgment has been dealt with in great detail. It begins by highlighting the power of judiciary and discussing the noble task of how the judiciary is making sure that the governmental setup is functioning properly. Taking the judgment of I.R.Coelho as a base, the comment discusses in great detail the corrective steps taken by the judiciary in making sure that judicial review is exercised so that the legislature does not make arbitrary laws and escape scot-free for instance, by taking the defence of putting it in the 9th schedule where these laws cannot be touched. The real crux of the problem in the judgment was as to the extent and nature of immunity that Article 31B can validly provide. The said questions formed the main thrust of argument of the petitioners. The law of immunity which • confers immunity from scrutiny of various laws and also lowers the level of accountability has also been dealt with in great detail. Various judgments dealing with immunity discussed in I.R. Coelho have been discussed. In all these judgments, the fundamental rights aspect has been highlighted where a law which infringes a fundamental right has always been struck down.
The comment next discusses the questions of amendability of the constitution vis a vis fundamental rights and also the basic structure doctrine. On the question of amendability of the Fundamental Rights, the court further said that the correct test is whether such laws damage or destroy that part of fundamental rights which form part of the basic structure. The basic structure doctrine evolved by courts has always protected the constitution from arbitrariness. The Courts have held that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution. Therefore goals set out in Part IV have to be achieved without the abrogation of the means providedfor by Part III. It is in this sense that Part III and IV together constitute the core of our Constitution and combine to form its conscience and soul. The object of the fundamental rights under the constitution is to foster the social revolution by creating a society egalitarian to the extent that all citizens are to be equally free from coercion or restriction by the State. The Legislature is constitutionally permissible to amend the Ninth Schedule and grant a law the protection in terms of Article 3iB but subject to right of citizen to assail it on the enlarged judicial review concept. After the enunciation of the basic structure doctrine, the Legislature cannot grant illusory immunities and exclude the inspection of the Ninth Schedule law by the Court.
The comment concludes by discussing the views of protestants and supporters of the basic structure doctrine. The journey of the apex Court depicts that the Apex Court has succeeded in retaining to itself the safe custody and control of the Constitution, which has often been in danger of being carnaged away by the Parliament. The instant judgment is an immaculate masterstroke by the apex Court which might mark the dawn of judicial governance in true spirits adhering to the concept of separation of power and checks and balances.
