Abhiraj Das & Sarvotham Naik, Editors, The GNLU Law Review and students at Gujarat National Law University, Gandhinagar.
Keywords: Democracy, Participatory Democracy, Representative Democracy, ‘Pre-Independence Legislations’
Zhaoxia Deng, Ph.D. Candidate at the University of Hong Kong
Modern video games have transformed into diverse forms, possessing a higher degree of interactivity and freedom which allows players not only to select elements but also to combine and create. Despite the fact that PCCs can essentially meet the criteria of originality and fixation to be derivative works in the open world context, how to distribute the copyright ownership of those PCCs remains a tough issue. Firstly, placing gamers in a co-authors’ position is not a sound solution, because of the potential holdup problems and the high transaction costs; secondly, treating gamers as derivative creators is in danger, as there would be a risk of copyright infringement. The desire to promote game sales and the unwillingness to give up control push game developers to struggle between the delegation of right and the control of right. Facing the dual dilemma from theory and reality, parties generally resort to EULA for balancing their interests, which is proved to be a common but unsatisfactory regulatory mechanism. This paper proposes to apply a “parallel creation +CC license” mechanism to solve the problem. For PCC within the original game framework, a parallel creation model can best satisfy the needs of players and game developers; whilst for PCC beyond the original game framework, a simple CC licensing mechanism “BY-NC-SA (non-confronting to original game developer)” can best stimulate players’ creativity while maximising game the industry’s prosperity.
Keywords: Player Created Content; Copyright Ownership; Derivative Work; Parallel Creation; CC License
Nidhi Sinha, PhD scholar, National Law School of India University, Bengaluru, India
The entertainment industry is considered to be one of the most flourishing industries in almost all developed and developing nations and films form an important part of this industry. Law gives equal rights to people to express their thoughts and ideas and by virtue of this right, filmmakers bring a variety of ideas and portray their creativity through films. Nevertheless, since no right is absolute, certain restrictions have been placed on the exercise of this expression by filmmakers, in terms of what a filmmaker can and cannot show to the general audience. The restrictions are imposed through certification and censorship by film certification bodies across jurisdictions. With the advent of technology, internet platforms have proliferated, offering a cheaper movie experience to the audience, with the added advantage of convenience of time, place and device. However, in terms of legal regulations, while theatrical films are subjected to strict regulations through prior restraint, ‘films released online’ enjoy a comparatively liberal self and post-regulatory approach. Hence, the debate around equal treatment of theatrical and ‘films released online’ have continued doing the rounds since the past few years. This paper is thus an attempt to critically analyse the need for prior restraint of ‘films released online’ in India. The author has used doctrinal methods of research to study the present legal scenario in the country while also carrying out a cross jurisdictional analysis to understand the ‘online- films’ regulatory mechanism prevailing in other countries. The paper argues for minimum regulations over content on internet and proposes that prior restraint should not be the appropriate form of regulation for ‘films released online’.
Keywords:‘films released online’, Prior-restraint, Self-regulation VOD platforms
Aditya Rawat, PhD Scholar at the NALSAR University of Law, Hyderabad & Divyanshu Chaudhary, PhD Scholar at Gujarat National Law University, Gandhinagar and Assistant Professor of Law at Geeta Institute of Law, affiliated to Kurukshetra University
The Supreme Court recently rebuked the courts for practicing judicial stereotyping in the cases of gender-based sexual violence by using languages and comments which tend to trivialize, condone or diminish the suffering of the survivor. The court went further stating that even a solitary instance of such judicial stereotyping undermines the guarantee of fair justice. Now, this is when academic cynics started thinking about the Karnataka High Court’s observation in Rakesh B. v. State of Karnataka order. In the mentioned order, Justice Krishna S. Dixit remarked, “The explanation offered by the complainant that after The perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman”. He further stated that this is not how “our women react when ravished.” In this article, we join the bandwagon of criticism of the judicial approach towards sexual violence, especially in the context of recent jurisprudence. Through this research article, the authors contend that judges cement the misogynistic attitude and further the rape culture. The authors do so by bringing out the not-so-honourable record of the judiciary, particularly in cases of sexual violence. The authors argue that this problem in the judiciary is structural i.e. due to lack of female voices in the judiciary, and institutional i.e. failure of existing gender-sensitization training of judges. The authors have also explored other justice systems and how they responded to this challenge. The authors conclude by stating that there is an urgent need for recasting the judicial approach and ways in which we can learn from other jurisdictions on the gender issue.
Keywords: Judiciary, Misogyny, Sexual violence, Gender imbalance, Gender education.
Shantanu Pachauri, Lawyer and an LL.M. graduate of National Law University, Delhi
2018 is a significant year in death penalty jurisprudence in India as it has recorded the highest number of death sentences imposed by the trial courts in two decades. The state of Madhya Pradesh witnessed a dramatic increase in the number of death sentences from 6 in 2017 to 22 in 2018, which was the highest by any state in the year. In this article, I analyse the 22 death sentences awarded by the trial courts of Madhya Pradesh in 21 cases decided in 2018. This analysis is done in light of the principle of individualised sentencing and standard of collective conscience. I argue that the trial courts of Madhya Pradesh have moved further away from individualised sentencing especially after the legislative and executive developments in the State in 2018. I find that the courts have not appreciated the mitigating circumstances and have relied heavily on the aggravating circumstances, especially on the collective conscience of the society. While invoking the utilitarian justifications, the courts have extensively used rhetorical devices to justify the ‘elimination’ of the accused for the welfare of the society.
Keywords: aggravating circumstances, collective conscience standard, individualised sentencing, mitigating circumstances.
Tushar Behl, Advocate and Legal Consultant at the Supreme Court Committee on Road Safety, Ministry of Road Transport and Highway, Government of India, & Medha Patil, Final Year student, B.A. LL.B. (Hons.), Maharashtra National Law University. Nagpur, India
Armed Conflicts in the first century of the third millennium are full of friction, fluidity, complexity, and incalculableness. Countless changes have taken place in warfare with the advent of revolutions in science and technology. These changes have had the international community on its feet, especially the United Nations and the regional security organisations. However, Clausewitz’s notion of war as a “protraction of politics by other means” persists as it was back in the era of the cold war.
There has been a consistent debate over the age of hybrid warfare—a blend of conventional and non-conventional strategies to achieve military objectives. Yemen has been a part of various lateral and coincidental non-international armed conflicts (“NIAC”) with the ‘Houthi rebels’ and the ‘Al-Qaeda’. An international alliance led by Saudi Arabia has been intervening in the conflict under the President’s solicitation. The nature of the conflict stands unaffected, yet it is challenging from the perspective of the “intervention by invitation” doctrine. The legality and legal ramifications of the Saudi-led military intervention in Yemen are explored in this paper, following an overview of the very essence of this conflict, whether it is a proxy war or a self-fulfilling prophecy. Finally, the challenges faced by the civilian population owing to the impact of the deadly coronavirus are analysed.
Keywords: Non-international Armed Conflict, Alliance, Intervention, Warfare, Coronavirus
Madhubanti Sadhya, Teaching Associate, National Law School of India University, Bengaluru and PhD Scholar, West Bengal National University of Juridical Sciences, Kolkata
Cosmetic surgery among children is gaining popularity in India, with more and more teenagers opting to contour different parts of their bodies for varied reasons that are seldom therapeutic. This article discusses the reasons for the heightened demand for purely cosmetic procedures among children in India, a country that lacks comprehensive laws governing the field. The article also discusses the legal framework that governs a minor’s right to participate in the decision-making process to undergo cosmetic surgery and the role of parental consent. A comparison between the pros and cons of the consent approach to cosmetic surgery in minors is analysed. The need for adopting a regulatory framework that governs access to cosmetic surgery by children by taking into account different ethical and legal considerations that surround these procedures is emphasised upon. Recommendations to devise a regulatory framework that protects children from the inherent hazards of cosmetic surgeries are also made.
Keywords: minor, cosmetic surgery, informed consent, elective surgery, legal competence
Chitwan Sharma, Lawyer and graduate of National Law School of India University, Bengaluru, & Anshul Vats, Third Year student, National Law School of India University, Bengaluru
Every democracy in the world is based on some fundamental pillars. Police is one such crucial pillar. The idea of conceptualisation of any democracy is based on the fundamental belief of maintaining law and order in society. Even in the ancient period, numerous books mention law enforcing agencies that had the principal goal of maintaining peace in society. In this contemporary world, reforms are the need of the hour. According to the Greek philosopher Heraclitus, “the only constant in life is change,” and this quote is truly applicable to law and enforcement agencies. Contemporary legal development has helped carve out the true nature of democracy and every administrative agency needs to know its role in society.
India is the largest practicing democracy with over one million people serving in the defence forces. The complex framework of the Indian legal system is in itself challenging for the majority of the police officers in our country. It is hereby pertinent to know whether the police forces in the country are going along with the contemporary legal developments or not. The other argument in favour of reforms is the need to train the police personnel to combat terrorist activities in the country. In some of the major terror attacks that happened in our country, police force always led from the front but the number of casualties is also high every time India faces such a crisis. Hence, there is a serious need for change in the policies related to the reform in the Indian Police system. In this chapter, the researchers will analyse the challenges faced by the police in our country.
Keywords: Indian Police, Defence forces, Personnel, Reforms
Ankita Chakraborty, PhD Scholar, Rajiv Gandhi School of IP Law, IIT Kharagpur, India, & Dr. Dipa Dube, Professor, Rajiv Gandhi School of IP Law, IIT Kharagpur, India
Civil disobedience and mass agitations are deeply rooted in the history of India and have contributed significantly to the rise of the public sphere. However, civil disobedience may lead to chaos and loss of order, leading to a potential risk of casualties to life and property. The present paper examines the standard procedure of crowd control in India, in light of the 2018 Tamil Nadu firing incident, where police authorities had opened fire at a group of protestors leading to the deaths of several people. The incident was marked as one of the darkest days in the history of crowd control in independent India. The authors analyse the Indian legislative provisions and judicial guidelines, vis-à-vis international standards, which specify the procedure of dispersing an agitated crowd by focusing on the principle of ‘use of minimal force.’ The paper argues that crowd control measures should be implemented wisely and discreetly, with due regard to crowd psychology. It is of utmost necessity that consistent laws and policies are developed to ensure autonomy and police accountability. Police training at all levels may be a significant step towards a more effective and professional policing, enabling them to evolve alternative means of resolution while inculcating a human rights-based approach.
Keywords: Mass agitation, Crowd control, Minimal force, Police, Human rights
Yash Sinha, Advocate based out of Delhi and B.A. LL.B. (Hons.), National Law School of India University, Bengaluru
The Supreme Court of India generally distinguishes between content and its expression to judge the precise legal implications if the case so demands. In the twilight of the year 2020, it delivered a judgment that not only digresses from this healthy norm but is also heinously per incuriam. The process of elections in India is not taken to be complete until the votes are validly counted, and this is more so the case with Rajya Sabha elections. In Pradeep Kumar Sonthalia v. Dhiraj Sahu, the Court seems to have disagreed, without any justifiable basis. The Supreme Court, through this decision, unduly focuses on the voter’s status during voting, not the vote’s status by the stage of electoral scrutiny. It commits one more error in construing disqualification of a sitting legislative member as only applicable against the member, not her acts. Disqualification has always been a tool to mitigate damage to the democratic will, as soon as the knowledge of something illegal comes to light. Additionally, the public law evolved to preserve the actions taken in public interest was wrongly applied, especially when Parliamentary privileges have notably excluded voting for Rajya Sabha elections from its ambit. The other line of reasoning it adopted is also the most unusual: grafting the presumption of innocence in favour of the convict, post-conviction/sentencing, that too in a non-criminal proceeding. All three errors in reasoning occur since the Court mistakes such elections to be ethically oriented towards expressivism. In reality, these are more approximate to the epistemic-ethics of voting. The implication of this misplaced assumption is debilitating damage to de-criminalisation of politics.
Keywords: Criminal Law, Election Law, Presumption of Innocence, De facto Doctrine, Electoral Disqualification, Constitution of India
