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2023 | Book

Comparative Approaches in Law and Policy

Editors: Joshua Aston, Aditya Tomer, Jane Eyre Mathew

Publisher: Springer Nature Singapore


About this book

This book encompasses areas of research like comparative constitution, transformative constitution, environmental law, family law, child rights and so on. The main theme of the book is comparative law. We intend to incorporate into this book laws pertaining to diverse field wherein it can be compared with the laws of other countries which brings in better understanding and conceptual clarity. The book focuses on the jurisprudence of different countries which enables the readers or clientele to get a better understanding of the principles of comparative law. The book showcases the comparative law jurisprudence prevalent across the globe so as to make use of the best practices for the betterment of humanity.

Table of Contents

Comparing Constitutionally: Modes of Comparison
Comparative Constitutional is a modern discipline which aims to enrich the contextual aspects of Constitutional Law. As the area of Comparative law is an emerging field it is pertinent to know the different modes of comparison so as to arrive at correct evaluations and minimise the pitfalls in comparative insights. The need for understand the different modes of comparison is emphasised in this paper along with the caution that ought to be taken.
Rosalind Dixon
Imperatives of the Basic Structure Doctrine: A Semi-centennial Concept
The Basic Structure doctrine is the most relevant mechanism in the hands of the Indian Judiciary to strike a balance of powers and maintain checks and balances among the organs of the State, which is imperative for the smooth functioning of any democracy. The doctrine was a milestone in the development of constitutional law in India. This paper aims to trace its origins, efforts to preserve and promote the concept at its nascent stages and highlight its ever-evolving dynamism. The text also tries to outline the continuous war between the Parliament and the Judiciary, resulting in various Constitutional Amendments and their subsequent review before the Courts of law. The aim of this paper is to highlight the importance of the basic structure and its relevance in the recent times. Additionally, the authors delve into the struggle of supremacy between the powers and functions of the Parliament and the Supreme Court and the role of the system of checks and balances.
Arvind P. Bhanu, Ambika Dilwali, Adityaraj Patodia
Equality, Merit and Affirmative Action: India and USA
Judicial affirmation of the reservations for OBCs and EWS in the All-India Quota Seats in NEET for UG and PG medical courses, in Neil Aurelio Nunes and Ors v. Union of India (2022) brought in the debate of ‘Merit v. Reservation’ again on to the limelight. The apex court’s view of ‘merit’ from the lens of social justice in Neil, again reminded India about its commitment to uplift the backward classes through affirmative action. If Hon’ble Supreme Court is only reiterating what is being already said through plethora of cases, then what led to the protest against reservation? Why reservation seen by the people of India as anti-meritorian? When the apex court in it’s previous judgments already approved the migration of meritorian backward classes to the merit class, why general classes are feeling it as encroachment on to their arena? Why this misunderstanding is prevalent in India that merit class is reserved only for General Class, and migration of meritorian backward classes will lead to encroachment on to their arena and narrow down of their opportunities? There are also questions that whether reservation will remain forever, or is there any chance of ending it? When affirmative action leads to reverse discrimination, it will affect rule of law, constitutionalism, egalitarianism, equality, social justice etc. Excessive reservation is dangerous and will distribute the social equilibrium, lead to social divide. In United States of America, after Brown, Bekke and Grutter, the recent judgment of the Supreme court in Students for Fair Admissions Inc. (SFFA), v. President and Fellows of Harvard College and Et Al., clarified that equality of opportunity should not be overshadowed by the over enthusiastic affirmative action which lacks any compelling reasons. The negative effect of affirmative action will lead to the destruction of the constitutional equality, and lead to segregation. The mooting question is how to lead the affirmative action towards egalitarian equality by balancing the merit and reservation? How to ensure equality of opportunity to both vulnerable and non-vulnerable sections, without compromising on merit? The objective of this paper is to understand the evolution of reservation system in India, judicial interpretation of the reservation system till 2022, analyzing and comparing the American affirmative action with Indian reservation system.
Sreenivasa Murthy M. R., Syamala Kandadai
Separation of Power and Judicial Independence in the Context of the United States and the Indian Constitution: A Cratologial Critique
Separation of power and judicial independence is invoked as an ideal to which the legal and constitutional arrangements of a modern state conform, if at all they confirm, and it occupies a position of deep ambivalence, the least that can be said. The relationship between power holders and power addresses is to be based on a purpose-driven arrangement of power. Power, being the ability to affect another by its exercise, needs to be structured and directed if the law is to serve as an instrument of social transformation. Political power, the ability to take decisions on behalf of other people is a primary power which is basically raw and unstructured and governed by fact, where its ability to affect another by its exercise will alone matter. On the other hand, Constitutions indicates the legally permitted matrix of power and to ensure that the set limits of power are respected by power-holders, it is distributed and channelized among different organs of the State. Also the creation of the culture of judicial independence has been a combined process of theory separation of power, and the ability of the judges to declare authoritatively what the law is. It may be noted that the duty in terms of cratology is to contain an unequal flow of power and within which it would be mandatory for the courts to eschew the model of leviathan in the study of power. Against this background, this article is an attempt to comparatively analyze the power mapping in the US and the Indian Constitution and to argue that a different power spectrum mapping is required to contain the unequal flow of.
Irfan Rasool Najar
Constitutional Obligation and Responsibilities of the Judges in a Contemporary Era: A Critical Study
Every democracy is governed under a set of fundamental values that apply to every branch of the government. The legislative, executive and judiciary are the three branches of government. There should be no disagreement in democracy on some basic principles that govern judge’s selection, promotion, and accountability mechanisms. This mechanism shall include the independence of the judiciary, not be arbitrary, and judges should be selected based on the right attributes. There should be some credible mechanism for holding the judiciary accountable for any possible misconduct. Therefore, it is often argued that judicial independence and accountability are contending ends. The issue of judicial accountability offers a particular perspective on the broader subject of public confidence in the courts and the justice system, in which everything from access to justice to judicial activism is discussed. However, it should emphasise at the outset that the accountability of the judiciary to the community is also a specific issue, concerned as it is with constitutional and ethical matters of a particular sort, in which a proper balance must be maintained between judicial independence, on one side, and judicial accountability, on the other. The author in this book chapter will try to highlight the procedural mechanism of judges and judicial accountability in various democratic nations. In any constitutional democracy, the priority is to select judges wisely and fairly so that the foundation of the justice delivery system remains strong. The author will also focus on the critical aspects of political interferences in judicial matters. The judges are not infallible; they may commit turpitude without accountability. It is imperative to make a thorough analysis of the judge’s appointment and their post-retirement benefits. The comparative analysis shows how essential the judiciary is to past, present, and future governance. The author contends that the nature of that function supports the requirement for judicial accountability in the transition process as a crucial step toward establishing full accountability for the past and facilitating institutional reform and transformation as a component of political change.
Showkat Ahmad Wani
The Rule of Law and Legal Controversies—The Impact of Covid-19 in Bhutan
Bhutan is considered a nation of happiness and it proved well during COVID-19. While even the developed nations struggled to cope with the pandemic, Bhutan made headlines as one of the successful nations with just over 20 deaths due to COVID-19. However, with three national lockdowns and stringent COVID-19 protocols, this small nation also faced numerous challenges. With the Executive taking over the nation, the impact on the separation of power and the rule of law became the most prominent features of concern. This article provides a brief summary of some of the most controversial legal issues during the pandemic in Bhutan. The article provides an analysis of how the state became powerful and how the rule of law took a back seat in the name of COVID-19 and its possible implications for Bhutan’s future.
Sonam Tshering
Cross Border Judicial Dialogue: A Look at Indian Supreme Court’s Engagement with Australian Jurisprudence in National Legal Services Authority V. Union of India
The use of foreign law and international law for constitutional interpretation is not new (Jackson Vicki C. Jackson, “Transnational Discourse, Relational Authority, and the US Court: Gender Equality” 37 Loyola of Los Angeles Law Review 271 (2003)) [While referring to the use of foreign law and international law for domestic purposes Prof. Jackson says that “looking outward to [such] transnational legal sources to encourage domestic adoption of and compliance with gender equality rights is an obvious legal strategy”, Id. at 277] (Glensy Rex D. Glensy, “Which Countries Count?: Lawrence v. Texas and the Selection of Foreign Persuasive Authority” 45 Virginia Journal of International Law 357 (2005); Hirschl Ran Hirschl, “Comparative Law: The Continued Renaissance of Comparative Constitutional Law” 45 Tulane Law Review 771 (2010)). Courts from all across the globe (Carolan Bruce Carolan, “The Supreme Court, Constitutional Courts and the Role of International Law in Constitutional Jurisprudence: The Search for Coherence in the Use of Foreign Court Judgments by the Supreme Court of Ireland” 12 Tulsa Journal of Comparative and International Law 123 (2004); Lollini Andrea Lollini, “The South African Constitutional Court Experience: Reasoning Patterns Based on Foreign Law” 8 Utrecht Law Review 55 (2012); Schneiderman David Schneiderman, “Exchanging Constitutions: Constitutional Bricolage in Canada” 40 Osgoode Hall Law Journal 401 (2002); Trang Duc. V. Trang, “Beyond the Historical Justice Debate: The Incorporation of International Law and the Impact on Constitutional Structures and Rights in Hungary” 28 Vanderbilt Journal of Transational Law 1 (1995); Ramraj Victor V Ramraj, “Comparative Constitutional Law in Singapore” 6 Singapore Journal of International and Comparative Law 302 (2002); Chen Wen-Chen Chang, “The Convergence of Constitutions and International Human Rights: Taiwan and South Korea in Comparison” 36 North Carolina Journal of International Law and Commercial Regulation 594 (2010); Mak Elaine Mak, “Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands : Explaining the Development of Judicial Practices” 8 Utrecht Law Review 20 (2012); Hammer Leonard M. Hammer, “Reconsidering the Israeli Courts’ Application of Customary International law in the Human Rights Context” 5 ILSA Journal of International and Comparative Law 23 (1998); Allan James Allan, Grant Huscroft, and Nessa Lynch, “The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?” 11 Otago Law Review 433 (2007)), including India (Smith Adam M. Smith, “Making Itself at Home: Understanding Foreign Law in Domestic Jurisprudence: The Indian Case” 24 Berkeley Journal of International Law 218 (2006)) [hereinafter Smith 2006] [Refers to the initial reliance of the Supreme Court of India on international law and the subsequent intensification of the same during 1990s because of the fact that “the Indian Court [...] amassed more power and the country [underwent] significant changes through its immersion in globalisation.” Id. at 259]; (Khosla Madhav Khosla, “Inclusive Constitutional Comparison: Reflections on Sodomy Decision” 59 American Journal Comparative Law 909 (2011)) [hereinafter Khosla 2011]; (Deva Surya Deva, “Human Rights Realisation in an Era of Globalisation: The Indian Experience” 12 Buffalo Human Rights Law Review 93 (2006); Balakrishnan Justice K.G. Balakrishnan, “The Role of Foreign Precedents in a Country’s Legal System” 22(1) National Law School of India Review 1 (2010); Shankar Shylashri Shankar, “The Substance of the Constitution: Engaging with Foreign Judgments in India, Sri Lanka and South Africa” 2 Drexel Law Review 373 (2010); Halabi Sam F. Halabi, “Constitutional Borrowing as Jurisprudential and Political Doctrine in Shri D.K. Basu v. State of West Bengal” 3 Notre Dame Journal International & Comparative Law 73 (2013)) and Australia (Lefler Rebecca Lefler, “A Comparison of Comparison: Use of Foreign Case Law as Persuasive Authority by the United States Supreme Court, The Supreme Court of Canada, and the High Court of Australia” 11 Southern California Interdisciplinary Law Journal 165 (2001); Aroney Nicholas Aroney, “Comparative Law in Australian Constitutional Jurisprudence” 26 University of Queensland Law Journal 317 (2007)), constantly engage in what has been referred to, among other things, as ‘transnational constitutionalism’ (Choudhry Sujit Choudhry, The Migration of Constitutional Ideas (Cambridge University Press, 1st edn., 2007); Yeh and Chang Jiunn-Rong Yeh and Wen-Chen Chang, “The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions” 27 Penn State International Law Review 89 (2008)). Globalisation of legal profession, for one, has led to the proliferation of this phenomenon (Mak Elaine Mak, Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts (Hart Publishing, 1st edn., 2014); Shah Prakash Shah, “Globalisation and the Challenge of Asian Legal Transplants in Europe” Singapore Journal of Legal Studies 348 (2005); Bell John Bell, “Researching Globalisation: Lessons from Judicial Citations” 3(3) Cambridge Journal of International and Comparative Law 961 (2014); Gelter and Siems Martin Gelter & Mathias Siems, “Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten of Europe's Highest Courts” 8 Utrecht Law Review 88 (2012)) [Stating that in a globalised world, ‘law’, which has traditionally been the prerogative of the sovereign nation state, also seems to see some cross-border interaction, Id. at 88]. Unlike some countries, where engagement with foreign law for interpretative purposes has met some skepticism (Rosenkrantz Carlos F. Rosenkrantz, “Against Borrowings and Other Non-authoritative Uses of Foreign Law” 1(2) International Journal of Constitutional Law 269 (2003); Law and Chang David S. Law & Wen-Chen Chang, “The Limits of Global Judicial Dialogue” 86 Washington Law Review 523 (2011); Saunders Cheryl Saunders, “The Use and Misuse of Comparative Constitutional Law” 13 Indiana Journal of Global Legal Studies 37, 39 (2006); Howard A.E. Dick Howard, “A Traveler from an Antique Land: The Modern Renaissance of Comparative Constitutionalism” 50 Virginia Journal of International Law 3 (2009)), the constitutional courts in India have accepted/adopted this practice with a lot of enthusiasm (Bandopadhyay Saptarishi Bandopadhyay, “Because the Cart Situates the Horse: Unrecognised Movements Underlying the Indian Supreme Court’s Internationalisation of International Environmental Law” 50 Indian Journal of International Law 204 (2010)), with the Supreme Court of India cautioning, from time to time, against the disproportionate and inconsiderate use of foreign authorities and international law for statutory (Mehta M.C. Mehta v. Union of India, (1987) 1 SCC 395, 421) [We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for that matter in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence, per Bhagwati CJ, Id. at 421] and constitutional (Thakur Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, 307) [The Hon’ble Supreme Court denied to apply the concept of “affirmative action” as it exists in U.S.A. to Indian conditions and stated that: “under these circumstances (where the social context in which the law is made is different), judgments from the US, while entitled to respect, must be approached with great caution, for their adoption would lead to jettisoning of over half a century of our jurisprudence.” Id. at 307] interpretation. In this article I attempt to look at the extent and the manner in which the Indian Supreme Court engaged with jurocomparatology (Defined for the purpose of this article as: “Jurocomparatology may be defined as the science of ‘comparative law’, the practice of engaging in ‘comparative analysis of laws’ and the practice of using ‘international law for domestic purposes.” For a detailed analysis of this definition, see Hakim Yasir Abbas, “The Muddled Science of Comparative Law: Mending Terminology and Mapping its’ Benefits within Indian Constitutional Discourse” 2(1) Catolica Law Review 39 (2018).) in National Legal Services Authority v. Union of India (AIR 2014 SC 1863) [hereinafter NLSA], particularly with Australian jurisprudence. The first part provides an overview of NLSA, discusses jurocomparatology in the context of Indian Constitution and discusses how it manifested itself in NLSA. The second part discusses court’s engagement with Australian jurisprudence in NLSA.
Hakim Yasir Abbas
Climate Change and Human Mobility: Responsibilities Under International Environmental Law
Natural climate variations have existed for thousands of years, but since the industrial revolution and particularly after World War II, anthropogenic climate change has gradually emerged due to the availability of cheap fossil fuels (coal, oil, and natural gas) and the dramatic rise in their consumption, especially in industrialized countries. Although historical and current global emissions of GHG have originated in developed countries, the negative effects of climate change have been unevenly and disproportionally visited upon mostly developing countries. Apparently, those who have generally contributed the least to anthropogenic climate change bear the most harm and responsibility stemming from its effects (i.e. managing climate-related human mobility, with the least capacity). However, international environmental law recognizes that those who contributed most to causing the harm bear both legal and moral obligations for mitigating it. The debate on shifting burdens for climate change pivots predominantly around three established principles of customary international law— the polluter pays principle, the principle of no-harm, and the principle of ‘common but differentiated responsibilities and respective capabilities’ (CDBR&RC). In this context, this chapter explores the responsibilities of the countries under international environmental law to provide compensation and assistance to the people displaced because of climate change and examine if the loss and damage mechanism within the Paris Agreement is an appropriate forum to ensure adequate compensation and assistance.
Hossain Mohammad Reza, Mostafa Mahmud Naser
Do Australian and Indian Courts Have ‘Get-Out-of-Text Free Cards’ Like the US Supreme Court in Order to Limit Environmental Executive Power?
The 2022 US Supreme Court case West Virginia v Environmental Protection Authority (EPA) has raised serious questions in relation to the extent to which a court can kerb executive power. In that case, the US Supreme Court majority of six judges propounded a novel ‘major questions’ test which effectively prevents the executive arm of government from making subsidiary legislation in the form of rules and regulations that address ‘major questions’ that would only be appropriate for the legislative arm of government (i.e. in the US, Congress) to address. More particularly, in this case, the US Supreme Court majority, after applying its ‘major questions’ test, found that the EPA, although charged under enabling legislation with a broad mandate to reduce emissions, lacked authority to make rules which required ‘generation shifting’ by emitters to reduce emissions by changing from one type of power generation to another (e.g. coal to renewables) on the basis that this was a ‘major question’ that Congress had reserved only to itself to address. The dissenting US Supreme Court minority of three judges said this test was not reflective of long established statutory interpretation principles, and was effectively a ‘get-out-of-text free card’ which the majority had devised to deploy whenever the objects of an Act were at odds with the majority’s conservative ideological views (in this case climate change scepticism). This Chapter analyses the decision in West Virginia v EPA and the ‘major questions’ test developed by the majority and its effects on executive power, in particular in the area of combating climate change. Given the US Supreme Court is the highest appeal court in the US, potentially it could impose its will to block any legislative attempt to confer power on the executive to combat climate change, no matter how explicit those powers are, simply by interpreting such powers away—especially considering the fact that there are no constitutional constraints given that the US Constitution is all but silent on the environment. This Chapter also examines if such judicial interference could similarly frustrate executive action in combatting climate change in Australia and India given their constitutions’ different treatment of the environment to the US and cautiously concludes that while there are no constitutional guarantees in those jurisdictions against such judicial interference, it would be significantly more difficult for courts in those jurisdictions to deploy ‘get-out-of-text-free-cards’ in the way the US Supreme Court majority has.
Haydn Rigby
Affirmative Action and Social Discrimination: A Functional Comparative Study of India, USA and South Africa
Commitment towards equality is a common thread between the Constitutions of India, The United States of America, and South Africa. The task of achieving equality and, more specifically, substantive equality becomes daunting for the said countries owing to the past discrimination based on race and caste, which permeates the social fabric. Each country has devised different legal and policy mechanisms commonly termed ‘affirmative action’ to promote substantive equality and level the playing field for society's vulnerable or discriminated section. The paper compares and identifies the foundational differences between the policy approach of each nation and possible reasons for such differences. The paper explores the feasibility of adopting some aspects of the affirmative action policies of the United States and South Africa into the Indian Constitutional and legal framework.
Sakshi Parashar
Maran Shipping: A Ray of Hope in a Darkening Landscape for Inter-state Civil Actions—Forum Non-conveniens Versus Duty of Care
The shipbreaking industry has become a matter of controversy in South Asia where ninety percent of the unseaworthy ships are sold and broken. It remains one of the main causes of environment pollution and violation of human rights as ships are broken by using dangerous manual methods that cause accidents and death and injuries to the workers. Imposing liability on foreign entities for their involvement in human harms remains problematic. In 2021, in the case of Hamida Begum (on behalf of MD Khalil Mollah) v Maran (UK) Limited (Maran Shipping), the England and Wales Court of Appeal has offered a much needed guidance on a victim’s right to receive adequate compensation from the foreign owner of a ship. Unlike the approach in the case of Re Union Carbide Corporation Gas Plant Disaster at Bhopal India (Bhopal) where an inter-State action was brought before the New York District Court in 1986, Maran Shipping demonstrates that allowing trial in this inter-State tort action is an important legal step from the perspective of a victim’s right to adequate remedy. Against this background, this chapter investigates the future policy implication of Maran Shipping in the context of inter-State tort actions. It seeks to answer the following question: Can Maran Shipping’s duty of care approach remove the doctrinal fossil established in Bhopal that inter-State harms are not compensable?
Mohammad Zulfikar Ali, Prafula Pearce
Impacts of the Use of a Family Violence Report to Determine Interests in Residential Tenancy Agreements: A Comparative Study Between Western Australian and Albertan (Canada) Legislation
This paper examines determination of interests in residential tenancy (‘RT’) agreements on grounds of family violence (FV) in Western Australia (WA). Principles of procedural fairness, contractual certainty, joint and several liability, and vicarious liability were altered when the provisions allowing for determination of interest in an RT on grounds of FV were amended. The alteration of these principles causes detriment for lessors and co-tenants, and the provisions may be misused by perpetrators and cause further harm to victims. A comparative method has been adopted to examine similar provisions found in Alberta, Canada, which prima facie offers a better balancing of the needs of FV victims with the rights and interests of co-tenants and lessors. While the detriment caused to lessors and co-tenants, and the potential for further harm to be caused to victims cannot likely be entirely mitigated, the paper proposes for a better balance of the needs, rights and interests of parties to RT agreements in Western Australia.
Laura Tripp, Tanzim Afroz
Live-in-Relationship Vis-À-Vis Marriage: A Congruence Among Indian and Australian Laws
Society envisages a social order emphasizing on the idea of abiding by the legal, ethical, moral codes of conduct so as to ensure a positive healthy development, devoid of deviant behaviour. Man being a social animal cannot live in isolation. He needs an infrastructure where his demands can be realized and goals can be achieved through laws equally ensuring protection of his rights and duties. Live in relationship visualizes a communion, an arrangement of convenience between two adults who though coming from diversified cultures but have a willingness to cohabit due to their mutual liking, compatibility and a strong belief that they are meant for one another. The concept though believed to be based on the western ideology primarily has its roots in Indian history as it was popular among the kings and elite class. It was not considered as an immoral act. The paper is a humble attempt to analyze the conceptualization of Live-in-relationship, its impact, advantages and disadvantages, legal impact, procedure, judicial appreciation and acceptance by the society in utter contrast to the institution of marriage which is threatened by such relationships. The researcher has assessed the concept in reference to Australia where defacto live -in- relationship is recognized by the Act of 1975. An attempt has been made to compare the existing legal approach in India and Australia and to appreciate whether it is a long lasting relationship in the nature of marriage or performance of necessary ceremonies is a pre requisite for a sacramental union or it can be evolved as an alternative to marriage or it is to be considered as a byproduct of misplaced sense of culture and decency giving open access to adultery, prostitution and exploitation. The researcher has broadly analyzed the law and has evolved few suggestions which can be inculcated to abate the menace in relationships emerging due to the globalized nature of the society.
Rupam Jagota, Rishma Bal
Tainted Chocolate? A Systemic Review of the Cocoa Industry in Ghana and Brazil
This Chapter is a desk-top review of publicly available documents on the regulatory regimes adopted by Ghana, a world producer of cocoa from the African continent and Brazil, which ranks among the top ten world cocoa producers from South America. The reason for a comparative study between these two countries is to learn the similarities and differences in the regulatory regime adopted to minimise child slavery in cocoa plantations. The finding of this study reveals non-surprisingly that the core reason for child slavery is premised on poverty. The general observation that can be made is that enforcement of laws and regulations concerning children in the worst form of labour is more effective in Brazil than in Ghana. However, more data is needed to ensure a conclusive result. The finding of this research may need to be corroborated by future primary study projects where empirical data is collected and analysed.
Cecilia Anthony Das, Joshua Aston
Metaverse and Non-fungible Tokens—A Comparative Study
The term Metaverse refers to a unified network of virtual worlds enabling multiple users to connect, interact, play games and buy stuffs. In general, the Metaverse is an extensive concept wherein Non-Fungible Tokens may serve an essential concept in the broad ecosystem of Metaverse. In order to comprehensively understand the concepts of Metaverse and NFT’s, it is important to be versed with a few other concepts as well. Before proceeding further with the chapter, few a conceptual and contextual introductions are provided below for better understanding of the Metaverse ecosystem.
Vikrant Rana
A Comparative Study of Blockchain and Cryptocurrency Regulations Between Western Australian and Albertan (Canada) Legislation
A blockchain is a sort of database. A blockchain is essentially a network of computer systems that have duplicated and disseminated a digital record of transactions, with each block in the chain containing different transactions. Digital or virtual currency in the form of cryptocurrencies, the majority of which are decentralized networks based on blockchain technology. The chapter gives a framework for understanding the origins and purposes of blockchain and cryptocurrency, as well as the advantages and disadvantages of blockchain. In this study, we also covered the blockchain and distributed ledger systems, which use a mentoring consensus technique to record and verify transactions. The global cryptocurrency regulation, as well as the legal challenges linked with blockchain, have been thoroughly examined. In addition, the present study discusses the current state of cryptocurrencies in India. As a result, cryptocurrency and the blockchain technology that powers it are frequently regarded as new and advanced.
Harsh Kumar, Pooja
A Comparative Analysis of Indian Pre-packaged Insolvency Process with that of US and UK
Pre-packs, as the name implies, are reorganisation plans that have been reached by the debtor and its creditors before declaring insolvency and have been subsequently recognised by adjudicatory authorities. Pre-packaged bankruptcy, or “Pre-packs,” has its origins in the United States and the United Kingdom but has lately been included into the Indian bankruptcy system. A casual settlement between creditors and debtors is reached in this type of restructuring before it is submitted for approval. MSMEs enterprises are often operated by medium and tiny promoters, making it not difficult to re-correct them, if the administration is removed under the regular CIRP. While the most recent Insolvency and Bankruptcy Code, 2016, has helped to improve the statistics on stressed assets, it is still going through some teething problems and has room for additional changes, such as the introduction of Pre-packs. In light of this context, the current study will concentrate on the fundamental aspects of the bankruptcy system in India and the market performance of prepacks under the current regulatory framework. Additionally, it examines the corporate insolvency procedure in India, identifies specific obstacles to prepack adoption, and presents a summary of the benefits and drawbacks of prepacks. Finally, it focuses on pre-packaged insolvency resolution processes in India using best practises from the US and UK.
Sujatha S. Patil
Entering into Food Processing Market in India—Methodology of Obtaining the Food Registration and Food Licenses
Food is considered as an inherent factor important for growth of any economy. India having a population of 1.38 billion people, food Industry is bound to grow and is one of the industries where long-term investment and returns can be projected. India’s total food import has risen from 18,780.98 ($ Million) in the year 2012–13 to 20,994.93 ($ Million) in the year 2020–21. The Indian food processing market reached height of INR 30,938 Billion in 2020 and is expected to grow at the rate of 12% during 2021–2026. There are many food operators intending to enter into Indian food markets. Below Article is an attempt to understand the legal nuances pertianing to enter into Indian food markets and setting up food oeprators in India. 
Rathna Malhotra Gaur
An Australian-Based View on Reconstructing Copyright Licensing Laws
In the new digital landscape, contemporary issues such as the need to promote online creativity, support digital live streaming, and develop effective computer hardware should be addressed by the copyright licensing scheme. The purpose of the paper is to consider the effectiveness of the copyright licensing scheme in Part IVA of Copyright Act 1968 (Cth) (‘the Act’) and analyse how it can be strengthened to support creativity and digital exchange. The first paper part discusses about justifications for open access, its desirability as a publishing model and lessons drawn from European institutions where efficient implementation of open access is applicable. Hence, such lessons should be considered in a future inquiry from the Australian Law Reform Commission and become part of The Future of Law Reform inquiry (2020). The second paper part considers the institutional perspective by examining specific Australian institutions and argues that ‘reconstruction’ of copyright licencing laws, will further access opportunities, and enhance scientific communication, in Australia. All in all, reconsideration of the final report on Intellectual Property Arrangements Inquiry issued from the Australian Productivity Commission (2016) potentially can lead to gradual integration of an open access provision in ‘the Act’, which will enhance copyright licencing laws.
Robert Cunningham, Marinos Papadopoulos, Nikos Koutras
Regulating Strategic Communications Investigation: The Investigatory Powers Act 2016 (UK) as an Exemplar for India
This chapter posits that India should consider reforming its strategic communications investigation regulatory framework using the UK’s Investigatory Powers Act 2016 (UKIPA) as an exemplar (Investigatory Powers Act 2016 (UK) c25). It offers three arguments. The first is founded on the UK government’s pre-enactment comprehensive ‘social evaluation’ process involving the publication of draft legislation, extensive stakeholder consultation, and the commissioning of two independent expert reviews (themselves consultative) (These are (i) DAVID ANDERSON QC, INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, A QUESTION OF TRUST: REPORT OF THE INVESTIGATORY POWERS REVIEW (2015, Her Majesty’s Stationery Office), hereafter IRTL, RIPR 2015. (ii) DAVID ANDERSON QC, INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, REPORT OF THE BULK POWERS REVIEW (Cm 9326, August 2016), hereafter IRTL, BPR 2016). Australia is currently replicating this social evaluation process in anticipation of electronic surveillance regulatory reform (See generally Richardson [1]). Social evaluation additionally involved avowing all formerly secret state investigative powers (Equipment Interference and bulk data access powers). The UKIPA’s comprehensive legislative candour has led to it being judicially endorsed as an exemplar of statutory compliance with international and regional human rights norms (See generally Big Brother Watch and Others v UK (Applications nos. 58170/13, 62322/14 and 24960/15) (Grand Chamber) 25 May 2021). The chapter argues that India would thus benefit from a similar legislative approach. A final ‘pro-homogeneity’ argument addresses why India might wish to undertake UK-modelled reform in this area. India’s progressive strategic relationships with the UK and with QUAD partner Australia and their rapidly developing trilateral relationship set the context (Discussed at length in Australian National University National Security Podcast, Working with India: Understanding the Limits and Potential (14 July 2022) https://​play.​acast.​com/​s/​the-national-security-podcast/​working-with-india-understanding-the-limits-and-potential). The argument is that, as their respective national security-focused policies increasingly homogenise, so should their respective national security (including communications surveillance) laws. The chapter concludes with a call for comparative scholarly critique.
Phil Glover
Analysis of Laws in Different Countries on Sedition
Freedom of speech and expression is not an absolute right as it has restrictions attached to it. One of the justifications for restricting freedom of speech and expression is sedition, which however, is not recognised as a restriction. The connotation of sedition is significantly different across the globe. In English law, the term “sedition” has had varied degrees of significance, as 150 years ago holding a meeting or taking out a procession was considered Sedition. In Roman times, the term “sedition” came from the Latin word “sedition,” which meant insurrectionary schism (military or political), civil unrest, insurgency, or mutiny. It should be emphasised that though the term “sedition” does not occur anywhere in the Indian constitution but under Article 19 it is envisaged as a crime against the state, however, in the Indian Penal Code it is considered as a state-sponsored crime though not specifically stated as such. In India’s current discernment, sedition refers to any act, whether verbal, physical, or written, that is believed to disrupt the state’s tranquilly and incite uninformed people to defame the government. Against this background it is pertinent to understand the law of sedition in different countries specifically in relation to pre-constitution rulings; regarding speech; publication; voting; statutory law; privileges and fundamental rights; non-fundamental rights issues; solutions to avoid conflicts and the complementary role of this chapter also elaborates upon the Sedition laws of countries like ‘USA’, ‘Australia’ and ‘England’.
Abhinav Tomer, Rupendra Singh, Sumitra Singh
Bargained Justice: Legal Psychological Analysis of Plea-Bargaining in India and USA
‘Nolo Contendere’ i.e., ‘do not wish to contend’ forms the basis of the concept of Plea Bargaining wherein the person accused acknowledges that the charges imposed against him are right and he will not contest the same in the court of law. The said concept originated in USA and because of its immense success therein, incorporation of the same in the Indian legal system was persistently recommended by the Law Commission via its 142nd, 154th, and 177th reports. The culmination of the efforts of the Law Commission was the insertion of a new chapter XXIA dealing with the concept of Plea Bargaining by Criminal Law (Amendment) Act, 2005. This paper briefly traces the origin of the concept of the Plea bargaining and thereby incorporation of the same in the Indian legal system. Thereafter, the paper critically analyses the provisions of Cr.P.C dealing with the concept highlighting that the amendment falls short of the achieving the objective plea bargaining, i.e., to reduce the pendency in criminal cases which results into deferment of justice. Further on, the paper goes on to analyse the role of Indian judiciary in application and implementation of the concept and also throws light on how the Indian Judiciary has implemented the concept of plea bargaining. The present work also does a comparative analysis of with law prevailing in the area in USA and highlights various psychological influences that affect the plea-bargaining process. The paper further analyse the concept with the USA. The paper concludes by giving suggestions for strengthening the system of plea bargaining as it an inevitable component of our adversarial form of criminal justice system.
Komal Vig, Ruchi Lal, Priyanka Ghai
Comparative Approaches in Law and Policy
Joshua Aston
Aditya Tomer
Jane Eyre Mathew
Copyright Year
Springer Nature Singapore
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