Category: Volume 4 and Issue 1 of 2024

DOUBLE DISCRIMINATION: THE LIMITATIONS IN ADDRESSING THE INTERTWINED THREATS OF CLIMATE CHANGE AND SOCIAL DISCRIMINATION AGAINST INDIGENOUS SOCIETIES IN INDIA

AUTHOR – G DARSHITA, SCHOOL OF LAW, CHRIST (DEEMED TO BE UNIVERSITY), BANGALORE

BEST CITATION – G DARSHITA, DOUBLE DISCRIMINATION: THE LIMITATIONS IN ADDRESSING THE INTERTWINED THREATS OF CLIMATE CHANGE AND SOCIAL DISCRIMINATION AGAINST INDIGENOUS SOCIETIES IN INDIA, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (1) OF 2024, PG. 291-297, APIS – 3920 – 0001 & ISSN – 2583-2344.

ABSTRACT

Indigenous communities, already marginalized and discriminated against as minorities, face a double burden with the escalation of the climate crisis. Indigenous communities across the world are disproportionately affected by the adverse impacts of climate change, as they depend heavily on natural resources for their livelihood and have a strong cultural and spiritual connection to their land. In India, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and various International Conventions. They recognize and uphold the rights of forest-dwelling indigenous communities. This paper delves into the complex nexus of climate change and pre-existing social discrimination faced by indigenous communities in India, focusing on the limitations of legal frameworks in adequately addressing their intersecting vulnerabilities through quantitative research.  They often lack access to adequate healthcare, education, and socio-economic opportunities, further exacerbating their vulnerability. This paper argues that these issues are intertwined, with social marginalization leaving indigenous communities more vulnerable to climate-induced disasters and resource depletion. The paper examines the limitations of the current legal framework in addressing this double discrimination. It analyses existing legislation while highlighting their shortcomings in effectively protecting indigenous rights and mitigating climate change impacts. To address this issue, it is crucial to strengthen the implementation of these legislations and ensure that indigenous communities have effective participation in decision-making processes related to climate change adaptation and mitigation efforts. It is important to recognize and respect their traditional knowledge and practices, as they have proven to be sustainable and resilient over centuries. By examining the limitations of existing legal frameworks and advocating for inclusive, community-driven solutions, this paper aims to contribute to a more just and equitable approach to addressing the intertwined challenges faced by indigenous societies in India. Empowering these communities through stronger legal frameworks and proactive measures will not only ensure their resilience in the face of climate challenges but also uphold their human rights.

Keywords: Indigenous communities, Double Discrimination, Climate Change, Sustainable Development, Inclusion.

METAVERSE: MAPPING THE LEGAL AND REGULATORY VACUUM IN THE VIRTUAL DOMAIN

AUTHOR – ANJALI BUSAR, STUDENT AT RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PATIALA

BEST CITATION – ANJALI BUSAR, METAVERSE: MAPPING THE LEGAL AND REGULATORY VACUUM IN THE VIRTUAL DOMAIN, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (1) OF 2024, PG. 283-290, APIS – 3920 – 0001 & ISSN – 2583-2344.

ABSTRACT

For generations, technologists have dreamed of an era where our virtual lives become equally important as our physical realities. The ‘metaverse’ has the potential to be seen as the peak of evolutionary technological development that humankind can achieve in the foreseeable future. However, Metaverse is a pandora’s box. Numerous issues will grow and sustain like uncontrolled information accumulation that infringes on our confidential information, prolonged harassment and threats, widespread security inadequacies, biased intelligence mechanisms, and problems with the physical and psychic well-being of an individual. A radical and sophisticated approach should be undertaken to either develop fresh legislation concerning domestic and international legal rules or analyze the present wrongdoings and fit them into the current legal architecture. Additionally, installing a separate system of checks and balances in terms of regulatory protocols such as multi-factor authentication, regulation by analogy, ESP mechanism, Penetration testing tactic, etc. in order to control the ungoverned and rampant mischievous activities in the metaverse would be the most fitting solution. The author makes an attempt to uncover prevailing obstacles, provides present laws as a basis to efficiently understand and resolve the nuances, and explores diverse remedies including suggestions of certain security practices to utilize the metaverse resourcefully.

Keywords: Metaverse, Harassment, Injuries, Regulation by Analogy, Regulatory Protocols.

NON-CONVENTIONAL TRADEMARKS IN INDIA AND ITS INFLUENCE ON BUSINESSES: A COMPARATIVE ANALYSIS

AUTHOR – SAMRUDH. P, STUDENT AT SCHOOL OF LAW, CHRIST (DEEMED TO BE UNIVERSITY), BANGALORE

BEST CITATION – SAMRUDH. P, NON-CONVENTIONAL TRADEMARKS IN INDIA AND ITS INFLUENCE ON BUSINESSES: A COMPARATIVE ANALYSIS, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (1) OF 2024, PG. 275-282, APIS – 3920 – 0001 & ISSN – 2583-2344.

INTRODUCTION

A trademark is one of the various Intellectual Properties available. The purpose behind the existence of a Trademark is primarily to distinguish certain grades of products from other similar ones. This cuts down on consumer research costs and eradicates ambiguity amongst the masses regarding products. The quality promised by the trademark owner is preserved and can be relied on by the consumer during the purchase. A trademark primarily consists of graphically represented logos, words or short phrases that are unique to that certain product, making it distinguishable from the other competitors in the market. Some examples of a trademark include the logo of Apple, the colour purple of Cadbury, the bottle design of Coca-Cola, etc.^[1] Although it is not restricted only to the graphically representable characteristic of a Trademark, predominantly the idea of a Trademark revolves around it. However, the ambit of a trademark keeps increasing as the fundamental agenda is to distinguish products and as far as this is achieved and regulated, the possibilities are endless.^[2]

Apart from acting as an asset to businesses and establishments, it also benefits the consumers, which makes it a more attractive and lucrative investment. The types of trademarks are as follows: Word Marks, Device marks, Figurative Marks, Service marks, Collective Marks, Certification Marks, Well-Known marks, and non-conventional trademarks. For a trademark to be enforceable, it should be registered; Sec. 27 of the Trademarks Act, 1999 speaks about how there is no infringement with respect to any unregistered trademark. Nevertheless, common law remedies are still provided for the same. If registered, the value of the trademark increases as it achieves enforceability. Sec. 2(zb) of the Trademark Act, 1999 defines a trademark as a graphically depictable entity. However, restricting the applicability of a trademark only to a graphically representable one limits its perspective. The fundamental purpose of a trademark is satisfied even by a non-conventional trademark, yet the intricacies involved in registration, recognition, enforcement, applicability, and relief are abstruse

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[1] Sana Singh, Trademark Law in India – Types of Trademarks, Registration Procedure and Acquired Distinctiveness of Generic Words, S&P (accessed on 18 Oct. 2023).

[2] Ibid.

THE POSH ACT, 2013: A CRITICAL ANALYSIS OF ITS INCLUSIVITY

AUTHOR – HARSITH GANESAN, STUDENT AT CHRIST (DEEMED TO BE UNIVERSITY)

BEST CITATION – HARSITH GANESAN, THE POSH ACT, 2013: A CRITICAL ANALYSIS OF ITS INCLUSIVITY, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (1) OF 2024, PG. 269-274, APIS – 3920 – 0001 & ISSN – 2583-2344.

ABSTRACT

The vulnerable have always been targeted by perpetrators and they have been but in such a condition due to the lack legislative safeguards and supports that offer protection to them and provide them with redressal mechanisms. Sexual harassment has been widely prevalent throughout the history of mankind and women have always been targeted yet they are not the only victims of such harassment. In the modern world, the statistical data portrays that the sexual harassment against other genders is on the rise and therefore, gender inclusivity into the current legislation should be considered. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted to curb sexual harassment at the workplace, however owing to the gender specific nature of the act, it does not provide redressal to the members of the LGBTQ+ community. The Transgender Persons (Protection of Rights) Act provides that any ‘transgender person’ under the act is entitled to protection from any form of harassment and creates a binding obligation upon the POSH Act to ensure that such individuals are protected. This research paper aims to critically analyze this Act and judicial interpretations in providing protection to all victims of sexual harassment. Furthermore, relies on the judicial interpretation, existing literary works, and other authorities, to suggest that the Act needs to adopt gender inclusivity in its provisions. In order to achieve true gender inclusion, its shortcomings in recognizing and safeguarding people with varied gender identities, calls for a thorough reevaluation and reform.

Keywords: sexual harassment, gender identity, gender inclusivity, aggrieved woman

CONCEPT OF PLEA BARGAINING UNDER INDIAN LEGAL SYSTEM: STUDYING ITS EFFECTIVENESS

AUTHOR – VAIBHAV THAPLIYAL, STUDENT AT CHRIST (DEEMED TO BE UNIVERSITY), DELHI-NCR CAMPUS

BEST CITATION – VAIBHAV THAPLIYAL, CONCEPT OF PLEA BARGAINING UNDER INDIAN LEGAL SYSTEM: STUDYING ITS EFFECTIVENESS, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (1) OF 2024, PG. 257-268, APIS – 3920 – 0001 & ISSN – 2583-2344

ABSTRACT

In exchange for a guilty plea, defendants can barter with prosecutors to have their charges or sentences lowered. This procedure is known as plea bargaining. This study examines the idea of plea bargaining within the context of the Indian judicial system and seeks to determine whether it is effective in reaching the desired outcome. Plea bargaining was made permissible in India in 2005 thanks to the Criminal Law (Amendment) Act, whose main goals were to lighten the load on the courts, speed up the legal system, and provide people a chance to receive quick justice. This paper evaluates the efficacy of plea bargaining in the Indian context using a thorough evaluation of the legal literature, case law analysis, and empirical data. The paper explores the advantages and difficulties of plea bargaining. The load on crowded courts is reduced, cases are resolved more quickly, and a cost-effective approach to criminal proceedings is encouraged. On the other hand, difficulties include worries about openness, the possibility of abuse, the defense of the accused’s rights, and the possibility of pressure. This research evaluates whether the plea bargaining procedure actually promotes justice by striking a balance between speedy settlement and protecting the rights of the accused by looking at the outcomes of cases where plea bargaining has been used. For a complete knowledge of the criminal justice system’s operation, the study also considers the viewpoints of scholars, practitioners, and other interested parties. It is predicted that this research would lead to a detailed assessment of the efficiency of plea bargaining in the Indian legal system.

Keywords: Plea bargaining, Cost-effective approach, Criminal Law (Amendment) Act

CRITICAL ANALYSIS OF ENFORCEMENT OF INVESTMENT ARBITRAL AWARDS UNDER INDIAN REGIME

AUTHOR – NIRBHAY ARORA, STUDENT AT SCHOOL OF LAW, CHRIST (DEEMED TO BE UNIVERSITY), BENGALURU

BEST CITATION – NIRBHAY ARORA, CRITICAL ANALYSIS OF ENFORCEMENT OF INVESTMENT ARBITRAL AWARDS UNDER INDIAN REGIME, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (1) OF 2024, PG. 248-256, APIS – 3920 – 0001 & ISSN – 2583-2344

Abstract

Through this research paper, the author attempts to delve into the binding nature of arbitral awards and the corresponding compliance obligations imposed on parties to arbitration. It explores the prevalent belief that parties involved in investment treaty disputes generally adhere voluntarily to arbitral awards, with judicial enforcement rarely necessary. This inclination towards compliance is attributed to factors such as potential political repercussions, economic ramifications, and the desire to uphold a favourable image for prospective investors. The paper underscores the pivotal role played by efficient enforcement mechanisms, notably governed by two principal conventions: the New York Convention and the ICSID Convention. The New York Convention, applicable to both commercial and investment arbitration, facilitates the enforcement of awards rendered under various institutional or ad hoc arbitration rules. Conversely, the ICSID Convention exclusively governs enforcement for investment arbitration. Author has attempted to delineate distinct enforcement procedures under both regimes. Under the ICSID Convention, enforcement is straightforward and mandatory for contracting states, treating awards akin to national court judgments. The convention limits parties from seeking appeals outside its framework, emphasizing constrained review procedures. Enforcement proceedings may take place in the host state, the investor’s home state, or another contracting state. Whereas, in contrast to the same, the New York Convention mandates court proceedings for recognition and enforcement in the state where awards are sought and such a process entails submitting arbitral award documents and translations, subject to specified exceptions and challenge grounds outlined in Article V.

The paper highlights disparities in enforcement focus between the ICSID and New York Conventions, particularly underscoring challenges encountered by states adhering to the latter but not the former. Furthermore, it delves into India’s investment treaty journey, emphasizing challenges in attracting Bilateral Investment Treaties (BITs) and enforcing investment arbitration awards due to its non-party status to the ICSID Convention. In conclusion, the paper advocates for a re-evaluation of the scope of the Arbitration Act in India to encompass investment treaty arbitrations, drawing insights from the UNCITRAL Model Law and the New York Convention. It proposes adopting a broader interpretation of ‘commercial relationships’ to facilitate the enforcement of investment arbitration awards within India’s legal framework.

Keywords: Arbitral Award, Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID), Investment, New York Convention, United Nations Commission on International Trade Law (UNCITRAL)

A NEED FOR GENDER NEUTRAL LAW: SECTION 498A OF THE INDIAN PENAL CODE, 1860

 AUTHOR – PRERANA RACHAPPA CHAVADI, STUDENT AT CHRIST (DEEMED TO BE UNIVERSITY)

BEST CITATION – PRERANA RACHAPPA CHAVADI, A NEED FOR GENDER NEUTRAL LAW: SECTION 498A OF THE INDIAN PENAL CODE, 1860, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (1) OF 2024, PG. 243-247, APIS – 3920 – 0001 & ISSN – 2583-2344.

ABSTRACT

Gender-specific laws have long been a subject of debate in legal discourse, particularly within the context of addressing issues of domestic violence and marital discord. Section 498A of the Indian Penal Code of 1860 stands as a notable example, aimed ostensibly at protecting married women from cruelty and harassment by their husbands or in-laws. However, the implementation and consequences of this law have brought to light significant concerns regarding its gender-specific nature and its potential for misuse. The primary purpose of this study is to critically examine the efficacy and fairness of Section 498A in its current form, particularly in light of the changing dynamics of contemporary relationships and evolving societal norms. This paper explores the imperative for gender-neutral reforms within Section 498A, advocating for a more equitable legal framework that ensures justice for all parties involved. Through a comprehensive review of legal literature, case studies, the paper evaluates the impact of gender-specific legislation on the society. The findings of this study highlight several key shortcomings of the existing gender-specific approach of Section 498A. While designed to protect women from cruelty, the law often fails to acknowledge instances of male victimization and perpetuates gender stereotypes that hinder the pursuit of justice for all individuals. Moreover, the data shows a concerning trend of misuse of Section 498A for personal vendettas and extortion, resulting in the unjust persecution of innocent individuals, including women. This paper asserts the pressing need for gender-neutral reforms within Section 498A of the Indian Penal Code. By adopting a more inclusive approach that recognizes the diverse experiences and vulnerabilities of individuals regardless of gender, the legal system can fulfill its mandate of safeguarding the rights and dignity of all citizens.

Keywords: Section 498 A of Indian Penal Code 1860, Cruelty, Misuse, Gender Neutral Reforms.

BRIDGING THE GAP BETWEEN UNIFORM CIVIL CODE AND LEGAL PROTECTION TO QUEER COMMUNITY

AUTHOR – NIRBHAY ARORA, STUDENT AT SCHOOL OF LAW, CHRIST (DEEMED TO BE UNIVERSITY), BENGALURU

BEST CITATION – NIRBHAY ARORA, BRIDGING THE GAP BETWEEN UNIFORM CIVIL CODE AND LEGAL PROTECTION TO QUEER COMMUNITY, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (1) OF 2024, PG. 234-242, APIS – 3920 – 0001 & ISSN – 2583-2344.

Abstract

The longing for the creation of Uniform Civil Code has not only drawn deliberations on the integration of society whilst questioning the inclusivity of the queer perspective but also how people belonging to such segregated or marginalized sections would be able to enter spaces of public discourses. Such dialogues pertaining to their rights of marriage and to have a family, such as right to adopt and custody amongst others which are tenets of legal protection accorded to any other people but not them. Through this research paper, the author attempts to critically analyze such multifaceted discourse surrounding the right to marriage and the right to institute a family afforded to queer people and whether or not comprehensive legislation like uniform civil code could cater to such an inclusive practice which has not yet been explored under the ambit of personal laws in India. Through detailed research henceforth conducted, it was found that neither of the personal laws protects any interests or rights of queer persons pertaining to marriage and adoption, and the invisibility of such secluded people from their legal protection stems from social and cultural considerations in the country. In light of the same, Uniform Civil Code may correct anomalies of personal laws to include queer persons and such inclusivity is the need of the hour.

Keywords: LGBTQIA+, Queer Community, Right to Adopt, Right to Marry, Right to Institute Family, Uniform Civil Code

THE EVOLUTION OF AI IN THE COPYRIGHT DOMAIN: THE ARTISTRY OF ALGORITHMS

AUTHOR – ANIRUDDHA BAMAL¹ & DR SALTANAT SHERWANI²,

¹ STUDENT ^{& 2} ASSISTANT PROFESSOR, AMITY LAW SCHOOL, AMITY UNIVERSITY, NOIDA, UP

BEST CITATION – ANIRUDDHA BAMAL & DR SALTANAT SHERWANI, THE EVOLUTION OF AI IN THE COPYRIGHT DOMAIN: THE ARTISTRY OF ALGORITHMS, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (1) OF 2024, PG. 221-233, APIS – 3920 – 0001 & ISSN – 2583-2344.

Abstract

The field of artistic expression is changing as a result of artificial intelligence (AI) being included in creative sectors. This study investigates how artificial intelligence (AI) affects creativity, with a particular emphasis on the rise of AI-generated art and its consequences for copyright laws, ethical issues, and the creative process. This study explains how human creativity and machine intelligence have evolved by looking at key moments in AI development, from Alan Turing’s ground-breaking research to the introduction of contemporary generative AI models like ChatGPT and DALL-E 2.

This research paper confidently delves into the intricate relationship between AI and copyright protection in the world of arts. Along with this, the influence of artificial intelligence (AI) on innovation and copyright law is examined in this paper. Debates concerning originality, authorship, and fair use have been triggered by the introduction of generative AI systems that may generate innovative writing, pictures, and music. The legal issues surrounding AI-generated works are examined in this research, along with the possibility that AI is an author in and of itself. It looks at cases brought by artists against AI firms for purportedly training AI models without permission using copyrighted content.

The study looks at AI’s potential advantages for creative pursuits as well, arguing that technology should complement human creativity rather than take its place. In conclusion, it talks about current initiatives to create moral guidelines for AI research and possible legislative changes to handle copyright concerns in the era of artificial intelligence-generated art.

Keywords: Artificial Intelligence, Generative AI,Copyright Law, Creativity, Authorship, Fair Use, DALL-E

HISTORY & DEVELOPMENT OF DISPUTE RESOLUTION MECHANISM IN INDIA

AUTHOR – ADITI MAURYA, STUDENT AT IILM UNIVERSITY, GREATER NOIDA

BEST CITATION – ADITI MAURYA, HISTORY & DEVELOPMENT OF DISPUTE RESOLUTION MECHANISM IN INDIA, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (1) OF 2024, PG. 213-220, APIS – 3920 – 0001 & ISSN – 2583-2344.

ABSTRACT

Arbitration serves as a time-tested method of resolving disputes, with roots tracing back to ancient practices such as the panchayat system in India. This alternative dispute resolution system allows parties to present their conflicts to a neutral arbitrator, whose decision, known as an “award,” is binding upon both parties. In India, the Arbitration and Conciliation Act of 1996 governs this process, providing a framework for fair and efficient resolution.

India’s development in various sectors, including industry, agriculture, and international trade, has underscored the importance of effective dispute resolution mechanisms. In the realm of international commerce, contracts often include arbitration clauses to mitigate potential conflicts.

The 1996 Act aligns with the UNCITRAL model law, offering globally recognized standards for arbitration proceedings. However, procedural aspects of international commercial arbitration can vary significantly across jurisdictions due to the increasingly transnational and multi-jurisdictional nature of commerce.

The adoption of Alternative Dispute Resolution (ADR) mechanisms, including arbitration, aims to alleviate the burden on courts and ensure swift justice delivery. Among various ADR methods, arbitration stands out as the preferred choice, especially in business settings, fostering both national and international trade relations. International arbitration operates within a complex legal framework encompassing national laws, international conventions, and institutional rules. These mechanisms aim to provide a stable and predictable environment for commercial activities, facilitating international trade and investment by offering an effective legal recourse for dispute resolution. Arbitration plays a pivotal role in fostering economic cooperation and resolving conflicts in both domestic and international contexts, contributing to a more efficient and equitable global business environment.