Category: Volume 3 and Issue 1 of 2023

“DEVELOPMENT OF THE DOCTRINE OF SOVEREIGN IMMUNITY IN ENGLAND AND INDIA- COMPARATIVE ANALYSIS”

Author – Neelagowri, Student at Christ (deemed to be university) Bengaluru

BEST CITATION – Neelagowri, “DEVELOPMENT OF THE DOCTRINE OF SOVEREIGN IMMUNITY IN ENGLAND AND INDIA- COMPARATIVE ANALYSIS”, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 3 (1) OF 2023, PG. 772-777, ISSN – 2583-2344.

ABSTRACT

                According to the Doctrine of Sovereign Immunity, a king is immune from punishment. Around the world, this idea has been widely adopted. King is above the Law. Throughout the period of and during the reign of the monarchy, this principle was created. Today, it is considered that this theory must have lost its lustre in this era of democracy where voters make or break governments. But the sad reality is that governments all across the world have opted to rely on this antiquated principle even after proclaiming democracy. According to the Rule of Law No one is above the law, in essence, sovereign immunity protects a government from being sued in its own courts without its permission. The British Common Law has established sovereign immunity. “Rex non potest peccare” or “the king can do no wrong,” is a legal principle. However, most international constitutions prohibit holding politicians accountable in the same way as regular people. The idea has its origins in the notion that the King of England, who exercised divine power, was impervious to wrongdoing. The courts would not permit a lawsuit against the king as a result, with a few carefully stated exceptions. The English colonisers later took this idea of sovereign immunity to the Indian colonies, and it eventually made its way into our legal system as well. Sovereign immunity, in its most basic definition, is the legal immunity enjoyed by governmental bodies. The writings of Bodin, Austin, and Hege provided the philosophical foundation for the early concepts of sovereign immunity. The article charts the development of the doctrine of sovereign immunity in India and the UK, focusing in particular on the state’s tort responsibility. The emphasis is on using case law to draw analogies and define and explain the application and repeal of this concept.

KEYWORDS: Sovereign Immunity, State, King, India, US, Doctrine

Case Commentary – Reliance Life Insurance Co Ltd & Anr vs Rekhaben Nareshbhai Rathod, Civil Appeal No. 4261 of 2019 (SC)

Author – DEEPTHI RODDA, RESEARCH ASSISTANT at DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

BEST CITATION – DEEPTHI RODDA, Case Commentary – Reliance Life Insurance Co Ltd & Anr vs Rekhaben Nareshbhai Rathod, Civil Appeal No. 4261 of 2019 (SC), INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 3 (1) OF 2023, PG. 767-771, ISSN – 2583-2344.

ABSTRACT

This case highlights the principle of utmost good faith which is one of the foundational principles, which governs of any type of insurance. A contract of insurance is one of trust, and principle of utmost good faith by emphasizing on the disclosures helps to develop a trust between the insurers and insured which will ultimately help both the parties in settling the claim when it is made. It highlights how the principle of utmost good faith has evolved over time by highlighting the related cases. The relevant statutory provisions regarding the principle of good faith has also been discussed in this paper  by referring to the domestic insurance statutes in India. Different dimensions of principle of utmost good faith have also been discussed in this paper. The duties of insurer and the insured in consonance with principle of utmost good faith have been discussed in this paper. The case is about the non-disclosure of the information regarding previous insurance policy in the proposal form

CASE COMMENT- Imax Corporation v E-City Entertainment(I) Pvt. Ltd. & Ors., (Bombay High Court)

Author – RACHIT SHARMA, Faculty Associate at IILM University, Greater Noida

BEST CITATION – RACHIT SHARMA, CASE COMMENT- Imax Corporation v E-City Entertainment(I) Pvt. Ltd. & Ors., (Bombay High Court), INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 3 (1) OF 2023, PG. 764-766, ISSN – 2583-2344.

BOMBAY HIGH COURT: The Limitation Period for seeking execution of a foreign arbitral award is the same of execution of a Decree

CASE: Imax Corporation v E-City Entertainment(I) Pvt. Ltd. & Ors^[1]., (Bombay High Court, 13 November 2019)

BENCH: Single Judge Bench [G. S. Kulkarni J.]

ABSTRACT: In 2019, A Single Judge Bench of Bombay High Court clarified that the limitation period for enforcing a foreign award is twelve years from the date of the award, holding that the limitation period for foreign awards is same as that for the execution of a foreign decree as enforcement and execution proceedings are synonymous for foreign awards.

KEYWORDS: Challenge Petition, notice of motion seeking condonation of delay, Enforcement Petition, Execution Petition, period of limitation, Composite Proceedings

---

[1] Commercial arbitration petition no.414 of 2018

ACCUSED RIGHTS: A COMPARATIVE STUDY OF ACCUSED AND VICTIM RIGHTS IN INDIA

Author – Priya Yadav, Student at Deen Dayal Upadhyay Gorakhpur University

BEST CITATION – Priya Yadav, ACCUSED RIGHTS: A COMPARATIVE STUDY OF ACCUSED AND VICTIM RIGHTS IN INDIA, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 3 (1) OF 2023, PG. 756-763, ISSN – 2583-2344.

ABSTRACT

As Democracy and Rule of Law are fundamentals of the Indian constitution, the concept of fair trial is a constitutional mandate and the basic principle of criminal law revolves around the Natural Justice which gives the accused equal opportunity to present their side of the story along with the victim. The accused is also granted certain rights, provisions. In this paper, the author has gone through various journals, internet sources and research documents to present the various rights given to the accused and victim under the Indian legal system. Discussing all the rights given to accused and victims in India, the author has further comparatively analysed the rights enjoyed by the accused and the victim. Concluding with a conclusion, few suggestions are given to fill the gap between the provision and the practical application of the rights.

The Concept of Originality under the Copyright Law

Author – Aashi Jain, Student at National Law University and Judicial Academy

BEST CITATION – Aashi Jain, The Concept of Originality under the Copyright Law, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 3 (1) OF 2023, PG. 751-755, ISSN – 2583-2344.

Abstract

Originality in works protected by copyright is a requirement of every copyright regime in existence. The definition of “original” as it is generally understood is “new” or “not done before.” There has been more than one ideology that has attempted to define “originality,” but there isn’t a clear-cut, universal definition of the term and hence various doctrines have been introduced. The researcher in this article tries to talk about the concept of originality and its application in different jurisdictions. However, the researcher also believes that while giving copyright the standard set for originality should not be way too high so that it becomes difficult to get the right nor shall it be too low so that anyone by making a few modifications qualify for the copyright protection as this will only lead to the less qualified works. Hence, it is utterly important that a balance between the two is done so as to maintain decorum.

Keywords: Copyright, producer, original, doctrine, creative

CHALLENGES OF COMMERCIAL ELECTRONIC ARBITRATION IN E-COMMERCE

Author – UMA NARAYANAN, ASSISTANT PROFESSOR at PRESIDENCY UNIVERSITY

BEST CITATION – UMA NARAYANAN, CHALLENGES OF COMMERCIAL ELECTRONIC ARBITRATION IN E-COMMERCE, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 3 (1) OF 2023, PG. 743-750, ISSN – 2583-2344.

ABSTRACT

This paper talks about E-Commercial Arbitration and how online dispute resolution methods and in the world of E-commerce today that people purchase things it plays a very important role. This paper also talks about how the consumer should be aware of the facts regarding the process and his rights and remedies. E-Commercial contracts have become a major part in everyone’s life or just say it is unavoidable as the public today prefer to purchase majority through online and do their shopping online as it is very easy and home delivery is also provided. The services provided by such e-commerce chains are also subject to certain terms and conditions. The e-commerce may not always have a proper jurisdiction as the supply place and the recipient place may not be the same and basically both parties wouldn’t like to travel for such disputes. In all this case the online arbitration plays a great role and also it is easier, less time consuming and keeps in mind interest of both the parties while making an award. The submission of evidences is also easier in such cases. Online Dispute Resolution has become a important part of the ADR system in today’s fast pace of life.Keywords: Online arbitration, virtual arbitration, electronic means of communication, New York Convention of 1958, UNCITRAL Model Law on International Commercial Arbitration, seat of arbitration, agreement in writing

NARCOANALYSIS: CONNECTING SCIENCE WITH CRIMINAL JUSTICE

Author – Khusbu Priyadarshinee, Student at National Law University, Odisha

BEST CITATION – Khusbu Priyadarshinee, NARCO ANALYSIS: CONNECTING SCIENCE WITH CRIMINAL JUSTICE, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 3 (1) OF 2023, PG. 737-743, ISSN – 2583-2344.

ABSTRACT

Criminal justice system in India is conventional but criminals today are evolving, so we need to reconfigure the entire system. There needs to be incorporation of both science and the law, i.e., addition of scientific evidence to aid in the efficient administration of justice. The system of justice has become increasingly dependent on medical science to administer justice, yet it is still debatable to what extent this medical information should be considered admissible. An effort in this article to show so that this kind of evidence can be used for effective administration of justice. With the recent Shraddha Walker Murder Case, where the accused named Aftab Poonawala has murdered his live-in-partner and the court has ordered for the narcoanalysis test, the debate as to whether the usage of such procedures in investigation lead to violation of fundamental rights of the accused has surfaced again. This Article states the position of Narcoanalysis in India starting with its origin, the procedure, and its legality under the Indian Evidence Act. It also discusses about its admissibility as scientific evidence in Court with help of cases where such procedure has aided in investigation.

THE LIAISON BETWEEN DARK WEB AND HUMAN TRAFFICKING

Author – BUSAM PUSHYAMI, Student at Sastra Deemed University

BEST CITATION – BUSAM PUSHYAMI, THE LIAISON BETWEEN DARK WEB AND HUMAN TRAFFICKING, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 3 (1) OF 2023, PG. 730-736, ISSN – 2583-2344.

ABSTRACT

The world is sunk into the sea called advancement in technology. Unknown things are easy to understand but known things are difficult to understand. The dark web is a website that is unknown but which is easy to access and understand. It is considered to be the starting point where the person without expressing the true identity commits the crime by using technology. It is nothing but some illegal activity which is punishable under law and against the public. Human trafficking is one among the crimes. It came to the knowledge of the people in recent times. The reason is the advancement in accessing the information and relating it to the real or present conditions. There is a big chain of linkage between the dark web and human trafficking. Our paper establishes the relationship between dark web and human trafficking. The crime rate can be decreased to some extent and we will suggest some solutions not to prevent but to reduce it.

Critical Analysis of Maternity Benefit Act, 1961

Author – Anirudh Bhati, Student at Bennett University

BEST CITATION – Anirudh Bhati, Critical Analysis of Maternity Benefit Act, 1961, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 3 (1) OF 2023, PG. 723-729, ISSN – 2583-2344.

Abstract

This paper provides the analysis of the Maternity benefit Act, 1961 which provides for the various benefits to be received by woman employees during course of her pregnancy. This act aim to curb the problem of lesser participation of woman in workplace because of her pregnancy and promote the motherhood by providing health care and nourishment which infant child requires during initial age. Another aim is to provide her the protection against the loss of job and to have source of income during the period when is enable to work it makes the woman independent. The paper also discusses the amendment made in Maternity benefit Act in 2017 which made significant changes to provide better benefits to woman and encourage women in employment. The most significant change is maternity leave increased form 12 weeks to 26 weeks The purpose behind increasing the number of leave is provide woman sufficient time to recover and spent time in child care. This paper also provide the critical analysis of the Maternity benefit Act  such as for placing the full financial burden on the employer. Additionally, it says nothing regarding nursing breaks’ time, accessibility, or regularity. In this paper I have also discussed the various judicial interpretation and decision of the court. Another important part of this paper is that it discusses the international perspective with respect to maternity laws. It compares the position of various other countries such as Singapore, Malaysia, Indonesia etc. which provides a perspective as to where India stands globally with respect to Maternity benefits to woman.

Keywords: Maternity benefit Act, Maternity Leave, amendment, Social Security, Woman

MORALITY OF ARREST AND DETENTION IN CIVIL PRISONS AS A MODE OF EXECUTING A DECREE

Author – Chetan R, Student of National Law School of India University, Bangalore.

BEST CITATION – Chetan R, MORALITY OF ARREST AND DETENTION IN CIVIL PRISONS AS A MODE OF EXECUTING A DECREE, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 3 (1) OF 2023, PG. 715-722, ISSN – 2583-2344.

Abstract

All civil suits in India end with being brought to the execution court for being executed by the judgement-creditor. Among the many forms of executing the degree, the Civil Procedure Code, 1908 also provides for arrest and detention in civil prison among the execution proceedings for civil suits. This does not exist as a mode of executing the degree. Rather, arrest and detention under the Civil Procedure Code, 1908 merely acts as a tool at the hands of the judgement-creditor, of coercing the judgement-debtor to execute the degree if certain conditions mentioned in the law are met. The existence of this form of depriving person liberty by a civil court deciding on preponderance of probabilities has been a contentious and highly debated issue for it raises several questions of life and liberty under Article 21 and human rights under international conventions. This article will be venturing into this debate and will be arguing that the current form of arrest and detention existing in the Civil Procedure Code, 1908, is a flagrant violation of the right to life and liberty under Article 21 of the Constitution. It then proceeds to suggest alternatives to the current regime wherein arrest and detention can be done through appropriate procedures and standards of evidence.