Contemporary Issues in Law and Policy

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6 UPES LR (2021) 1
A Prologue - Contemporary Issues in Law and Policy - Ten Major Reflections

from 2021
A PROLOGUE — CONTEMPORARY ISSUES IN LAW AND POLICY — TEN MAJOR

REFLECTIONS FROM 2021
by
Vijay Kumar Singh*
India has a long historical tradition of research and knowledge creation, in
disciplines ranging from science and mathematics to art and literature to phonetics
and languages to medicine and agriculture. This needs to be further strengthened to
make India lead research and innovation in the 21st century, as a strong and
enlightened knowledge society and one of the three largest economies in the world.
National Education Policy (NEP, 2020, Para 17.7)
1. Legal Education and Research : Legal education and research in India calls for
an introspection, especially when it has not seen a single ‘distinguished jurist’
appointed as one of the judges of the Supreme Court of India1 even after 75 years of
its independence. Article 124 of the Constitution of India provides for three categories
of persons qualified to be a judge of the Supreme Court, i.e. (i) judges of the high
courts (ii) advocates with at least 10 years of experience, and (iii) distinguished
jurists. Most of the judges of the Supreme Court come from the first category, only
nine2 so far from the second category, and NIL from the ‘third category’. Legal
academia and legal profession has been kept at arm's length distance in India3 , which
is evident from the ‘one-way’ traffic Rule4 which allows only the advocates to perform
the role of teachers, that too not for more than 3 hours, however, a full-time teacher
cannot practice law (not even for three hours). Supreme Court has distinguished the
full-time employment of
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prosecutors and Government Pleaders from that of a Law Officer engaged by a

company5 .
NLU Consortium had petitioned the Bar Council of India (BCI) to consider their
request allowing the law teachers to practice in courts of law6 . The engagement may
be on a pro bono basis, or in case remuneration is charged for their services, the fee
shall be shared with the University and the law teacher concerned in the ratio of 60 :
40. There was also a proposal of payment of Non-Practice Allowance (NPA) of 25 per
cent on par with medical doctors. These proposals are yet to see the light of the day,
however, the need to implement these suggestions are imminent, given the fact that
the new age law professionals need to be taught by new age law teachers capable of
providing practical insights into the academic rigor of classroom teaching.
A very important resource in terms of law teachers is being left out by the relevant
stakeholders. It will be a win-win situation for the law teachers and society at large, if
they are allowed to practice in the court of law. A true ‘clinical legal education’ can be
brought into the classrooms only when the law teachers are aware about the practice
of law (in actual practice). Law teachers can support greatly under the mandate of
Legal Services Authorities Act, 1987, providing legal services to the poor and the
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needy. American law professors typically are members of two professions7 , holding the
eligibility to practice law if they wish to do so.
This connection of practice to academia will allow the law teachers to observe and
research practical socio-legal issues and problems. ‘Importance of research in law’
seems to be saying something which is obvious like sun rises in the east. It is
‘apparent on face of record’, as we say in legal language, that research forms bedrock
of legal profession, be it a lawyer, solicitor, barrister, professor, or student of law.
However, dealing with ‘research’ as a subject in law evokes different response,
because it involves technical jargons, definitions, and methodology.
Research-related Skills include a sense of inquiry and capability for asking
relevant/appropriate questions, synthesizing and articulating; ability to recognize
cause-and-effect relationships, define problems, formulate hypotheses, test
hypotheses, analyse, interpret and draw conclusions from data, establish hypotheses,
predict cause-and-effect relationships; ability to plan, execute and report the results of
an experiment or investigation (UGC-LOCF-Law, 2019).
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Legal research is “the process of identifying and retrieving information necessary to

support legal decision-making. In its broadest sense, legal research includes each step
of a course of action that begins with an analysis of the facts of a problem and
concludes with the application and communication of the results of the
investigation” (JSTOR). Legal research may be broadly categorized into the following
categories depending upon its utility:
• Legal research by a draftsman for legislative drafting.
• Legal research by a legal professional to service her client.
• Legal research by academician for analyzing impact of laws and legal reform
(academic lawyers).
S.N. Jain (1972) while comparing the legal research done by a lawyer and an
academician highlights how much greater burden falls on an academician to do legal
research8 . “As compared to an academician, the role of a practicing lawyer in legal
research is limited. His research is spasmodic as and when a case comes before him,
and is also colored by the need for winning the case for his client. He thus lacks a
wider perspective, objectivity and ability to draw a line on a graph depicting the
development of the law and to make predictions about law during his professional
career. Beyond his work, the lawyer lacks time to do legal research.”
However, nowadays this burden of doing legal research has turned into an
opportunity for legal research consultancies like Vidhi Center for Legal Policy, Bridge
Mediation, Observer Research Foundation, Center for Policy Research, etc.
1.1 Inter/Multi-disciplinary Legal Research: Legal research has now moved
away from the traditional notions of law as a self-contained discipline to
interdisciplinary approach of looking at intertwined legal issues in the areas of
economics, social sciences, politics, science and technology. The traditional bitter
debates between ‘doctrinalists’ and ‘interdisciplinarians’ have waned. Many
interdisciplinarians perceived doctrinalists to be intellectually rigid, inflexible, and
inward-looking; many doctrinalists regarded interdisciplinary research as amateurish
dabbling with theories and methods the researchers do not fully understand. (Vick,
2004)9 . The new fad takes pride in interdisciplinary legal research, however, the
challenge lies in whether legal researchers are equipped to deal with the quantitative
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and qualitative research methods. A great collaboration is needed for achieving a true
outcome to focus upon the human problems and find solutions to them.
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1.2 Empirical Legal Research: Legal Research generally have been doctrinal in
nature discussing the implications of judicial decision or critiquing a legal theory by
using the standard lawyers’ tools of language, theory, logic, and legislative history.
Current trend in legal scholarship is not only to integrate subject knowledge from
other disciplines, but also to import the tools and techniques of social and/or scientific
research into legal research. Much of the focus is towards understanding the human
behavior to explain why people act the way they do influenced by law, for e.g. white
collar criminals. Developments in neurosciences influences the legal scholarship
around the legal theories of how criminals behave or how disputants deal with
conflicts. Latest developments in Artificial Intelligence, Big Data and Internet of Things
have much more in store for legal scholars.
Law Commission of India took up the subject of ‘legal education’ in its 184th Report
noting that ‘the subject was fundamental to the very foundation of the judicial
system’10 . Bar Council of India has already acted on some of these recommendations,
and has also initiated the establishment of the following two institutions through its
Trust11 to further legal education in India:
• The Indian Institute of Law in Bhubaneshwar12
• India International University of Legal Education and Research in Goa13 .
Thus now there will be two more institutions in addition to the National Law School
of India University (NLSIU) at Bangalore which was established as the first Modern
Law School in the year 1986. It will not be out of place to mention about the Indian
Institute of Law (ILI) which was set up on 27th December, 1956 on the lines of
American Law Institute is another important institution promoting legal research and
training. It is headed by the Hon'ble Chief Justice of India as its Ex-officio President.
The Union Minister of Law & Justice is its Ex-officio Vice-President14 .
NEP has carved out ‘legal education’ from its purview categorising it under the head
‘professional education’, thus making Bar Council of India as the sole regulator.
However, NEP has emphasised that the professional education shall become an
integral part of the overall higher education system having
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multidisciplinary approach. NEP dedicates one paragraph on ‘legal education’ as

follows:
“20.4. Legal education needs to be competitive globally, adopting best practices

and embracing new technologies for wider access to and timely delivery of justice.
At the same time, it must be informed and illuminated with Constitutional values of
Justice - Social, Economic, and Political - and directed towards national
reconstruction through instrumentation of democracy, rule of law, and human
rights. The curricula for legal studies must reflect socio-cultural contexts along with,
in an evidence-based manner, the history of legal thinking, principles of justice, the
practice of jurisprudence, and other related content appropriately and adequately.
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State institutions offering law education must consider offering bilingual education
for future lawyers and judges - in English and in the language of the State in which
the institution is situated.”
Pursuant to this mandate, Bar Council of India reviewed the ‘One-Year LL.M.’
program. On January 4, 2021, BCI issued The Bar Council of India Legal Education
(Post Graduate, Doctoral, Executive, Vocational, Clinical and other Continuing
Education) Rules, 2020 which essentially abolishes the one year LL.M. and restores
back the two-year LL.M. program in India with a host of changes. These Rules also
provides a number of other professional development courses including the executive
LLM Program and Ph.D. The Rules were supposed to come into force from the year
2021-22, however, due to a challenge in Supreme Court15 , it could not be
implemented as BCI agreed to postpone the implementation of these Rules until 2022
-23. This will be an interesting development to watch for as the matter progresses
further.
Another important development in ‘legal education’ has happened on the front of
accreditation. Legal Education Rules provides for constitution of an ‘Accreditation
Committee’ and ‘norms of accreditation’, however, so far BCI's role is limited to
inspection and monitoring of law colleges/universities. There were challenges being
faced by the stand-alone law universities and colleges in obtaining the NAAC
Accreditation on the basis of criteria applicable to multidisciplinary universities.
Accordingly, NAAC had constituted an expert group to examine the matter which has
recommended a separate manual for legal education universities16 . The document is in
its final draft stage and any notification from Bar Council of India is yet to be received.
The aforesaid developments are indicators of good movement, focus and action
towards ensuring quality of legal education in India, which is the need of the hour,
keeping in view the requirements of ‘new age law professionals’.
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2. The Pandemic which is not yet over — Volume V of UPES Law Review was
dedicated to COVID-19 Law and Policy Regulations in India. Different law and policy
issues impacted by COVID were covered. The year 2021, slowly opened up the
economy, however with a caution to maintain social distancing and use of masks.
However, the public memory has always been short. Scenes from different market
places and public gatherings in election rallies defied all logic and precaution. The
concerns only limited to the educational institutions which were very cautious in
opening up, rather the stakeholders got used to the online mode of education.
Resistance to change was evident, whether it was moving from offline to online
then and from online to offline now. While we prepare for publishing the Volume VI
of UPES Law review the concern about pandemic is not over yet. In fact the new
variant of COVID, Omicron, has raised newfound concerns17 of third wave.
2.1 Apex Court on Covid management: During the second wave of the
pandemic in April 2021, there was a panic around for the shortage of oxygen and
drugs. Vaccinations were to be managed by the State Governments, however, there
was some confusion happening as regards payment and availability of vaccines.
Different High Courts18 took over the issue of ‘management of pandemic’ passing
directions regarding supply oxygen and ‘Remdesivir’ (ananti-viral drug used for
COVID treatment). In some cases, the High Courts were very critical and charged
with emotions in their orders. Nagpur Bench of the Bombay High Court while
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expressing displeasure on non-compliance of its order to supply 10,000 vials of

Remdesivir to COVID-19 hospitals in Nagpur, remarked19 , “if you do not feel
ashamed of yourself, then we feel ashamed of being a part of this nasty society. We
cannot do anything for the unfortunate patients of Maharashtra. This is how we are
shirking from our responsibilities. You are neglecting and ignoring our patients. We
give you a solution, you do not follow it. You do not give us a solution. What
absolute nonsense is going on here?”
In another case before Delhi High Court, while hearing an oxygen shortage plea
from Max Hospitals, observed20 “You (Centre) are not exploring other alternatives. You
may have only found out from industries if they can provide excess oxygen they
produce. You have to procure every metric tonne that is required for patients. It is
your responsibility. You have to go a step further.”
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Supreme Court of India took a suo motu cognizance of the matter on April 22,
2021, holding quick hearing on three days, on 30 April 2021, Supreme Court passed a
detailed order21 in relation, inter alia, to the following issues22 : vaccination policy,
supply of essential drugs, supply of medical oxygen, medical infrastructure,
augmentation of healthcare workforce and the issues faced by them, and issues of
freedom of speech and expression during the Covid 19 pandemic. Mr. Harish Salve did
not agree to act as the amicus curie in this case citing conflict of interest. Senior
Advocates Meenakshi Arora and Jaideep Gupta were nominated amicus in this case.
While recognizing the role of the executive in handling the COVID Situation, the
Apex Court emphasised upon its jurisdiction “to determine if the chosen policy
measure conforms to the standards of reasonableness, militates against manifest
arbitrariness and protects the right to life of all persons.” The court assumed a
‘dialogic jurisdiction’ providing forum to various stakeholders to raise constitutional
grievances with respect to the management of the pandemic23 . This is a new
jurisprudential development by the Supreme Court which brings forward a mechanism
other than the parliament to scrutinize public policy matters, which generally was kept
out of the purview of the courts.
By and large, handling of the pandemic by Government of India has been so far so
good when compared to the developed nation like the United State of America (USA)
24
. In terms of vaccinations, India has achieved 39% full vaccinations (both the doses)
and 20% people are partially vaccinated25 . The following table, and the figure of
COVID deaths, clearly demonstrates that India has been able to manage the pandemic
well, given its constraints of health infrastructure and preparation of such kind of a
pandemic:
COUNTRY INDIA UNITED STATES OF
AMERICA
Approximate Area 3,287,263 sq km 9,833,517 sq km
Population 1,366,417,754 328,461,000
Confirmed COVID Cases* 34,726,049 49,833,416
Number of deaths* 476,869 792,371
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Annual GDP (2020) 2,708,770M.$ 20,936,600M.$

GDP per capita 1,982$ 63,742$
*as on 18 December, 2021
th
2.2 COVID Compensation: Two writ petitions26 were filed before the Supreme
Court of India in public interest seeking directions to the respondents, i.e.
Central/State Governments to provide ex gratia monetary compensation of Rs. 4 lacs
or notified ex gratia monetary compensation to the families of the deceased who have
succumbed to the pandemic of Covid-19, in view of Section 12 of the Disaster
Management Act, 2005.
Supreme Court directed the National Disaster Management Authority to recommend
guidelines for ex gratia assistance on account of loss of life to the family members of
the persons who died due to Covid-19. However, what reasonable amount to be
offered towards ex gratia assistance is left to the wisdom of National Authority.
Further, directions were issued to frame simplified guidelines for issuance of Death
Certificates/official document stating the exact cause of death, i.e., “Death due to
Covid-19”, to the family members of the deceased who died due to Covid-19. Pursuant
to the directions of the Supreme Court, NDMA has fixed Rs. 50,000/- as the ex-gratia
amount. Supreme Court has agreed to this proposition, however, it has further
directed that a wide-scale publicity shall be given to the compensation scheme
including creation of an online portal27 . These cases further add to the existing
compensatory jurisprudence of the Supreme Court28 .
3. Sustainable Development Goals (SDGs) and Law: On 25 September 2015,
the 17 Sustainable Development Goals29 of the 2030 Agenda for Sustainable
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Development were adopted by leaders of 193 countries at an historic UN Summit.

Now, the private sector is stepping up its efforts to deliver the Global Goals for people,
planet and prosperity and Global Compact is assisting this transformation. Presenting
the business case for adopting SDGs, it is stated that by integrating sustainability
considerations across the value chain, companies can protect and create value for
themselves by, for example, increasing sales, developing new market segments,
strengthening the brand, improving operational efficiency, stimulating product
innovation and reducing employee turnover.30
Sustainable development and sustainability are used interchangeably, although

they have distinct meanings31 . While sustainability is a generic concept focusing upon
the capacity of humans to live with environmental constraints32 , sustainable
development refers to economic development keeping in view the ecological
dimensions and constraints in mind33 . Brundtland report34 defines ‘sustainable
development’ as development that meets the needs of the present generations
without compromising the ability of the future generations to meet their own needs.
Making the concept of sustainable development operational for public policies raises
important challenges that involve complex synergies and trade-offs35 .
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Easier said than done, practicing sustainable development involves several decisions
to be taken, balance to be maintained between short-term gain and long-term
losses36 . It is an economic decision and for corporates it cannot be achieved without
commitment of the leadership and a complete integration into the corporate culture
(“merging” of environment and economics in decision making)37 .
Sustainable Development Report38 of 2021 ranks India at 120 out of 165 countries.
Out of the 17 goals, India is moderately improving in scores on six goals, stagnated at
five goals, decreased in two goals (quality education and life on land), and it is on
track on two goals i.e. clean water and sanitation (SDG 6) and climate action (SDG
13). India is a country with a lot of diversity in its population, culture and political
affiliations. Rule of Law is seen from different contexts. If one looks at the World
Justice Project, India ranks 69th in Global Ranking, however, the ease of doing
business rankings for India has improved significantly over the years. Sustainable
Development Goals (SDGs) in its SDG 16 specifically mentions about peace, justice
and strong institutions. The major indicators being homicides, sentenced detainees,
safety perception of population, property rights, birth registrations, corruption
perception index, child labour, export of weapons and press freedom index. SDG
Report places India at 117 rank with an index score of 61.9. The score is said to be
stagnating or increasing at less than 50% of required rate and hence major challenges
remain (SDGindex.org).
India released its own SDG Index Report for 2020-21 indicating the performance of
its States and Union territories. On SDG 16 the performance is mostly in Green i.e.
they are front runners with a score between 65 and 99 (SDG Index Report). The
measurements have been conducted on the eight indicators which measure number of
murders, cognizable crimes against children, number of victims of human trafficking,
number of missing children, number of courts,
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cases under prevention of corruption Act, percentage of births registered, and

percentage of population covered under Aadhar.
Achieving SDG 16 is important for achieving and sustaining all other SDG goals
whether it may be ending poverty, ensuring education or climate protection. Peaceful
and just societies, based on the rule of law, are likely to have effective, accountable,
and inclusive institutions, which protect human rights and drive the type of
development that is truly sustainable39 . Legal professionals can play a significant role
in promoting SDGs, there is a need to integrate SDGs into the law curriculum. A
corporate counsel with an orientation towards SDGs is placed in a situation to
influence the action for his/her company towards the UN Global Compact and the UN
Guiding Principles on Business and Human Rights.
3.1 Climate Action: The Paris Agreement introduces the concept of ‘Climate
Finance’ which is needed to mitigate the large scale investment required to
significantly reduce emissions. This is other than the affirmations required from
developed countries to taking a lead in providing financial assistance to countries that
are less endowed and more vulnerable. India has progressed well on this goal its
commitment to the world during COP26 (2021) has been lauded by all. Other than
emphasizing its own initiatives on climate action for achieving ‘net zero’, Prime
Minister of India also brought forward the need for commitment from the developed
nations to contribute to climate fund. The following are the five commitments40 given
to the whole world on behalf of the 125 crore citizens of India41 at the COP 26:
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• India will take its non-fossil energy capacity to 500 GW by 2030.

• India will meet 50 percent of its energy requirements from renewable energy by
2030.
• India will reduce the total projected carbon emissions by one billion tonnes from
now till 2030.
• By 2030, India will reduce the carbon intensity of its economy by less than 45
percent.
• By the year 2070, India will achieve the target of Net Zero.
During COP 26, there was an emphasis drawn upon the need to increase the climate
finance ambition to $1 trillion and transfer or low-cost technology from
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developed nations. This issue was again reiterated by the Prime Minister of India
during the Samvidhan Day address42 as follows:
“In terms of absolute cumulative emissions, developed countries together have

emitted 15 times more than India since 1850. Even in terms of per capita,
developed countries have emitted 15 times more than India. The US and EU
together have an absolute cumulative emission 11 times higher than that of India.
On a per capita basis, the US and the EU have emitted 20 times more than India.
Yet today, the lessons of environmental protection are preached to India whose
civilization and culture has a tendency to live with nature, where God is seen in
stones, trees and in every particle of nature and where the earth is worshiped as a
mother.”
4. Gender Justice : The year 2021 has been happening for gender justice not only
for women empowerment but also from the perspective of lesbian, gay, bisexual,
transgender, queer (LGBTQ) community.43 Manjamma Jogati, the first transwoman
President of Karnataka Janapada Academy, received the prestigious civilian award
Padma Shri at the hands of the President of India.44 The Supreme Court Collegium in
its meeting held on 11th November, 2021 has approved the proposal for elevation of
Shri Saurabh Kirpal, Advocate, as Judge in the Delhi High Court.45 This
recommendation if accepted would be another milestone for the LGBTQ community, as
an openly gay lawyer would become judge for the first time in India.46 The Election
Laws (Amendment) Bill, 2021 replaces the
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term ‘wife’ with ‘spouse’ in the Representation of the People Act, 1950 and the
Representation of the People Act, 1951 brining in gender neutrality.
The 2021 International Women's Day theme was “Choose to Challenge” with an
objective to call out gender bias and inequality while celebrating the women's
achievements. On March 8th, 2021, I had chosen to challenge a meagre representation
of women in Supreme Court of India. It is indeed a matter of concern for us that there
are only two women Justices out of 30 in the Apex Court and no women Chief Justice
of India till date. Situation in High Courts further requires more attention with only 82
Judges out of more than thousand Judges. Some high Courts having no women
representation at all. Cardozo says “when judges invoke norms such as “reason,”
“justice,” or “social advantage” when employing the method of sociology, they should
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look to community standards rather than to their own personal values”. However,
everyone looks at the Supreme Court as an example to follow. It is better to have this
organically as a culture rather than having a quota system or enforcement through law
as has happened with ‘women directors’ on Board in Companies. A conscious effort
towards this with mindfulness is required.
It was heartening to see the elevation of three woman Justices to the Supreme
Court on 31st Augusts 2021. For the first time, there were 4 out of 34 Supreme Court
judges are women47 , including the fact that these elevations have paved way for the
first woman Chief Justice of India in September 2027. Hon'ble Chief Justice of India,
N.V. Ramana candidly had made an observation at an event that “enough of
suppression of thousands of years. It is high time we have 50% representation of
women in judiciary. It is your right. It is not a matter of charity.48 ” International
Women's Day theme for 2022 is #BreakTheBias.49
“Imagine a gender equal world.
A world free of bias, stereotypes, and discrimination.
A world that is diverse, equitable, and inclusive.
A world where difference is valued and celebrated.
Together we can forge women's equality.
Collectively we can all#BreakTheBias”.
The Prohibition of Child Marriage (Amendment) Bill 2021 sought to increase the
legal age of marriage of girls from 18 years to 21 years bringing it at par with
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boys. There is a significant amount of debate50 happening on this amendment on

different issues ranging from encroachment over personal laws51 to efficacy of the
measure to meet the objects of the amendment.52 The Bill was introduced in Lok
Sabha on December 21, 2021 and has been referred to the Standing Committee for
further consultation and review.
Supreme Court in Nitisha v. Union of India53 reemphasised its decision in Babita

Puniya's Case54 and held that no ‘indirect’ or ‘systemic’ discrimination’ can be allowed
on the ground of medical requirements.55 In another case, Supreme Court also issued
interim directions permitting the women candidates to take part in the National
Defence Academy (NDA) examination.56 Similarly, taking note that the process of
admitting girls in Sainik Schools had already started and it would be further expanded,
the Bench commented on non-inclusion of girls in Rashtriya Indian Military College
(RIMC).57
“It is stated that it is a 99 years old institution which will complete 100 years
next year. The question is whether it completes its 100 years with gender neutrality
or not!”
5. Review of National IPR Policy — India ranked 46th among the 132 countries
featured in the Global Innovation Index (GII) for the year 2021. GII is a measure
which ranks economies according to their innovation capabilities. In contrast, India
remains on the Priority Watch List in 2021 on the Special 301 Report of the USA58 ,
remarking, “While India's enforcement of IP in the online sphere
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has gradually improved, a lack of concrete benefits for innovators and creators
persists, which continues to undermine their efforts.”
Standing Parliamentary Committee59 also in its latest report (161) highlighted the
need for reviewing the National IPR Policy of 2016 in the following words:“the re-
assessment of the policy is imperative in the wake of new and emerging trends in
spheres of innovation and research which requires concrete mechanisms to protect
them as IPRs. The review also acquires salience to identify the existing challenges in
the implementation of the policy and the corrective measures that need to be taken for
its effective execution.”
It may be noted that the Intellectual Property Appellate Board (IPAB)60 has been
abolished, however, the Parliamentary Committee was of the view that “the abolition
of a prominent appellate body of IPAB under the Tribunals Reforms (Rationalisation
and Conditions of Service) Ordinance, 2021 should be reconsidered in wake of its
pivotal role in adjudication of IPR appeals and cases.” There are several other
recommendations/observations made by the parliamentary committee which is of
interest for research scholars of IPR.
Parliamentary Committee succinctly noted that “consolidated efforts on the part of
Government, industry, civil societies as well as educational and research institutions
functioning at the level of schools, colleges and universities would be the cornerstone
in evolving a robust IPR regime in India thereby having a desired impact on the
development in social, cultural and economic fronts.”
6. Right to Privacy and Data Protection: One of the consistent debates since
last few years have been on the ‘right to privacy’ and the regulations on protection
of private data available with the public and private entities. Growth of digital
footprints and online transactions has necessitated adequate rules on protection of
private information. Technology is on one hand very useful and on the other is
prone to serious misuse. Pandemic has brought forward the focus on technology in
a number of ways and has necessitated a thorough review.
In Puttaswamy's case61 (popularly referred to as the Aadhar62 decision) 9-Judge
Bench of the Supreme Court held that “the right to privacy is protected
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as an intrinsic part of the right to life and personal liberty under Article 21 and as a
part of the freedoms guaranteed by Part III of the Constitution of India.”63 This is a
unique judgment, which provides a ‘plurality’ opinion by majority consisting of four
judges, whereas the 547 page judgement contains six different opinions.
The Pegasus Project Case64 rocked the Budget session of the Parliament in 2021
with allegations of use of spyware to compromise phone data of some persons.
Information Technology Minister made a statement on 18th July 2021 that this matter
is nothing more than sensationalism.65 It was informed that:
“In India, there is a well-established procedure through which lawful interception
of electronic communication is carried out for the purpose of national security,
particularly on the occurrence of any public emergency or in the interest of public
safety, by agencies at the Centre and States. The requests for these lawful
interception of electronic communication are made as per relevant rules under the
provisions of section 5(2) of Indian Telegraph Act, 1885 and section 69 of the
Information Technology Act, 2000.
Each case of interception or monitoring is approved by the competent authority.
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These powers are also available to the competent authority in the state
governments as per IT (Procedure and Safeguards for Interception, monitoring and
Decryption of Information) Rules, 2009.
There is an established oversight mechanism in the form of a review committee
headed by the Union Cabinet Secretary. In case of state governments, such cases
are reviewed by a committee headed by the Chief Secretary concerned. The law also
provides an adjudication process for those adversely affected by any incident.”
The procedure therefore ensures that any interception or monitoring of any
information is done as per due process of law. The framework and institutions have
withstood the test of time.
This matter reached Supreme Court of India through multiple public interest
litigations66 to which ultimately cognizance was taken by the Court and in
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absence of a detailed response from Union of India67 , a three-member technical

committee was constituted under the overseeing of Justice R.V. Raveendran, former
Judge, Supreme Court of India. The Committee has been given a freedom to evolve its
own methodology to be adopted, procedure to be followed, enquiry and investigation
that is carried out and preparation of the report. It may be noted that, in July 2021,
the State of West Bengal had also set up a two-member inquiry commission headed
by retired Supreme Court judge Madan B. Lokur, to look into the allegations of
snooping on politicians, activists and journalists using the spyware Pegasus68 .
Supreme Court has ordered a stay on the proceedings69 of the Justice Lokur
Commission as Justice Raveendran Commission is already looking into the matter.
Everyone is looking forward to the outcome of this case, as “the right to privacy is
directly infringed when there is surveillance or spying done on an individual, either by
the State or by any external agency.”
6.1 Personal Data Protection Bill 2019 (PDP): PDP Bill was introduced in the
Lok Sabha on December 11, 2019 which was referred to the Joint Parliamentary
Committee for further examination and recommendations.70 The JPC under the
Chairmanship of Shri. P.P. Chaudhary tabled the report71 in the Parliament on
December 16, 2021. The report has made 93 recommendations in the 2019 Bill.72 It is
likely that a new Bill based on the recommendations of the JPC will be tabled in the
parliament during the Budget session. Some of the members of JPC have pointed out
the inherent design flaw in the construction of the Bill alleging that it has not
benefited from the 9-Judge bench decision of the Supreme Court in Puttaswamy's
case. The divergence of treatment of data in private and public sector is questioned.
Another concern which has been raised by the dissenting members is about the
surveillance and role of the state.
Page: 18
With the passage of the Election Laws (Amendment) Bill, 2021, voluntary linking of
Aadhar number73 with the voter identification has been brought forward.74 The Bill is
yet to receive the assent from the President. The relevant provision of the Bill reads as
follows:
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“(4) The electoral registration officer may for the purpose of establishing the
identity of any person require that such person may furnish the Aadhaar number …
Provided that the electoral registration officer may also require the Aadhaar number
from persons already included in the electoral roll for the purposes of authentication
of entries in electoral roll and to identify registration of name of the same person in
the electoral roll of more than one constituency or more than once in the same
constituency. (5) Every person whose name is included in the electoral roll may
intimate his Aadhaar number to such authority in such form and manner as may be
prescribed, on or before a date to be notified by the Central Government in the
Official Gazette. (6) No application for inclusion of name in the electoral roll shall be
denied and no entries in the electoral roll shall be deleted for inability of an
individual to furnish or intimate Aadhaar number due to such sufficient cause as
may be prescribed : Provided that such individual may be allowed to furnish such
other alternate documents as may be prescribed.”
The aforesaid law has also been opposed strongly on the grounds of breach of
privacy. On the contrary, it is stated that the “an error-free Electoral Roll is sine qua
non of free and fair election. The Committee has been advocating linkage of unique
Aadhaar ID Card number with voter I-card which would streamline alterations in EPIC
during change of ordinary residence by the electors.75 ” Cumulatively, the issue of right
to privacy and data protection is going to remain a major point of discussion, debate,
research and policy deliberations in the coming few years, especially until 2024 Lok
Sabha elections.
7. Repeal of Farm Laws : The following three farm laws have been repealed by
the Parliament w.e.f. December 1, 2021 almost about 1.5 years from its enactment
w.e.f. 5th June 2020:
• The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act,
2020 (Freedom of Choice to Sell Farmers’ Produce)
• The Farmers (Empowerment and Protection) Agreement on Price Assurance and
Farm Services Act 2020 (Framework for farming agreements) and
Page: 19
• The Essential Commodities (Amendment) Act, 2020 (decontrolling supply of farm

produce)
From agricultural reforms perspective, these three farm laws have been lauded by
many76 , however, at the same time a section of farmers launched a protest against the
laws (they referred it to as black laws). At the root of the protests were the fear of
losing Minimum Support Price (MSP) and subsidies and gradual takeover of
agricultural activities by corporates. The farmers primarily from the surrounding states
of Delhi (Punjab, Haryana and Uttar Pradesh) stay put at the borders of Delhi in
protest against the farm laws.77
The protest by farmers saw several twists and turns including involvement of many
anti-social elements and even international media and activists. The Government could
not convince the farmers about the virtues of the farm laws, as from the inception a
distrust got seeded in the minds of the poor farmers. Even a stay on the
implementation of the farm laws by the Supreme Court of India78 and constitution of
an Expert Committee79 to hear the concerns of the farmers under the Supreme Court
could not assuage the ‘feelings’ of the protesting farmers.80 In fact, the protesting
farmers went ahead with the protests contrary to the hope of Supreme Court of India:
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“15. While we may not stifle a peaceful protest, we think that this extraordinary
order of stay of implementation of the farm laws will be perceived as an
achievement of the purpose of such protest at least for the present and will
encourage the farmers bodies to convince their members to get back to their
Page: 20
livelihood, both in order to protect their own lives and health and in order to protect
the lives and properties of others.”
Ultimately, the Government had to take a call to repeal the three farm laws, which
was announced by the Prime Minister on November 19, 2021. An Act to repeal the
Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm
Services Act, 2020, the Farmers’ Produce Trade and Commerce (Promotion and
Facilitation) Act, 2020, the Essential Commodities (Amendment) Act, 2020 and to
amend the Essential Commodities Act, 1955 received the assent of the President of
India on December 1, 2021 and this marked the end of farm protests. The Statement
of Objects and Reasons of Repeal Act stated:
Even though only a group of farmers are protesting against these laws, the
Government has tried hard to sensitise the farmers on the importance of the Farm
Laws and explain the merits through several meetings and other forums. Without
taking away the existing mechanisms available to farmers, new avenues were
provided for trade of their produce. Besides, farmers were free to select the avenues
of their choice where they can get more prices for their produce without any
compulsion. However, the operation of the aforesaid Farm laws has been stayed by
the Hon'ble Supreme Court of India. During the COVID period, the farmers have
worked hard to increase production and fulfil the needs of the nation. As we
celebrate the 75th Year of Independence— “Azadi Ka Amrit Mahotsav”, the need of
the hour is to take everyone together on the path of inclusive growth and
development.
The repeal of farm laws raises several issues and consequences on the future reform
agenda of the Government. Whether protestors on different other conflicting agenda
could also take up a similar route? What would happen to the rights and “feelings” of
the farmers who wanted freedom of choice of markets?
7.1 Privatization — Raking up the Colonial Past — Generally, we find that the
State Owned Enterprises (SOEs) in Asia, predominantly in India, have emerged from
the colonial past, and the experiences of the East India Company are reflected in the
policy making post-independence. The crucial economic and industrial activities were
reserved for the public sector until liberalization when the markets were opened up
under the requirements of the WTO.81
The new industrial policy of 1991 opened up the doors for private investment, which
was previously reserved for the public enterprises. With the shift in the public policy
toward liberalization and deregulation, the business environment of Indian SOEs
underwent a radical change. There was a general perception that
Page: 21
SOEs were ‘inefficient,’ and thus bringing in private control and management would
change the way the public sector operated. At the root of this thinking was the
essence of ‘competition,’ which would create pressure on SOEs to ‘perform or perish.’82
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A classic case has been that of the national air carrier, Air India, which has ultimately
walked into the path of disinvestment, after reeling in through severe losses.83
Privatization has been opposed by a certain quarter of Indian society and the
intensity of this resistance have increased in the last few years. A general perception
has been built against some top industrial houses,84 which became quite intense
during the farm protests.85 India's progress requires all round economic development
including public and private players alike.
In its wisdom, the GOI is focused on strategic disinvestment of its equity in State
Owned Enterprises (SOEs) through the Department (2004)/Ministry (2009) of
Disinvestment. In April 2016, the Ministry of Disinvestment was christened the
Department of Investment and Public Asset Management (DIPAM).86 The government
is reviewing the role of SOEs in economic development, whether it is public sector
banks, airports, public transport or public utilities. The National Asset Monetization
Pipeline seeks to tap private sector investment for idle public infrastructure.87
Disinvestment transactions are a bit complicated transactions for the common people
to understand, it is important for the Government to undertake advocacy of these
measures.
8. Alternate Dispute Resolution — Mediation: Section 89 of CPC enlists the
different modes of ADR as (i) arbitration (ii) conciliation (iii) Lok Adalat and (d)
mediation. These are different concepts. Arbitration and conciliation is taken
Page: 22
care of in the Arbitration and Conciliation Act, 1996. Lok Adalat works under the Legal
Services Authorities Act. There is no law dealing with mediation (though Arbitration
and Conciliation Act mentions that Arbitrator may use mediation), which has been
further explained by Supreme Court of India in the Salem Bar Assn. cases88 and
Afcons case.89
Mediation is a “swachh dispute resolution” mechanism, in terms of providing a win-

win solution and eradication of the root cause of dispute with a reasonably complete
satisfaction to the parties. The key stakeholders of justice delivery system (majority of
lawyers and judges) have a great role in holding back mediation in India other than
the consumer's lack of awareness. This is evident from the surveys which have shown
that still majority of the legal practitioners would treat mediation, conciliation,
arbitrations into the same class irrespective of their differences and peculiarities. Thus,
virtues of mediation remain unexplained to the disputants. It is a violation of one of
the six consumer rights, i.e. right to choose which can only be exercised by
information and knowledge about mediation. This is just like a supermarket in which
the cheaper items are kept higher on the shelf so that it does not immediately catch
attention of the buyer; the best brands and products are kept in the middle to the eye
-level. In the justice delivery supermarket, the options of dispute resolution are
presented accordingly as arbitration on the middle of the shelf, followed by litigation
and conciliation and mediation somewhere lying in the sack which only comes out
when the consumer asks for it.90
In UK, because of the Court of Appeal judgment in Halsey v. Milton Keynes,91 legal
advisers must ensure that they not only know about mediation but that they are able
to and do advise their clients before and during litigation (including arbitration)
whether to use mediation and, if so, when to do so. Equally legal advisers must be
able to protect their clients (and themselves!) against an adverse cost order or suit if
they decide not to try to resolve the dispute by mediation. I believe the major role in
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promoting mediation lies with the lawyers and judges. We need more champions of
mediation in the Judiciary.
Hon'ble Chief Justice Sharad A. Bobde championed the cause of mediation in
multiple ways including his advocacy for “compulsory pre-litigation mediation”. The
Bar Council of India also included the subject of Mediation & Conciliation and
Arbitration as a compulsory subject in all the Law degree/LL.B. courses.92
Page: 23
Supreme Court set up a mediation committee93 to try resolve the deadlock in anti-CAA
protest at Shaheen Bagh in Delhi in 2020. Similarly Supreme Court set up a mediation
panel94 in Ram Janmbhoomi-Babri Masjid land dispute. In both these cases the
mediation panel could not arrive at a win-win situation and the matter had to be
judicially decided. Indeed there are certain matters which cannot be settled through
mediation but in majority of the disputes mediation can be the beginning point.
The cause to promote mediation has continued with the 48th Chief Justice of India,
Hon'ble Justice N.V. Ramana who has in multiple forums advocated for mediation to
be the first step to settle the disputes. While speaking at an event, CJI referred to
Mahabharata which provides an example of an early attempt at mediation as a conflict
resolution tool where Lord Krishna attempted to mediate the dispute between the
Pandavas and Kauravas. “It may be worthwhile to recall that the failure of mediation
led to disastrous consequences.”95
Department of Legal Affairs has floated the Draft Mediation Bill96 for public
consultation in October 2021. It may be noted that the United Nations Commission on
International Trade and Law (UNCITRAL) has adopted UNCITRAL model law on
International Commercial Mediation and United Nations Convention on International
Settlement Agreements resulting from Mediation, on 20 December 2018. India, on 7th
August 2019 became one of the first signatories (however, yet to ratify it) to the
United Nations Convention on Enforcement of International Settlement Agreements
resulting from Meditation, also known as “The Singapore Convention.”97 There are both
pros and cons of having a legislation on a particular subject, while there has been a
need to have legal recognition of settlement arrived at through private mediation, the
law should not become a stumbling block of meeting compliances or prone to legal
challenges as has happened with Arbitration and Conciliation Act.
8.1 Online Dispute Resolution (ODR): COVID 19 provided the much needed
push on digitalization of justice delivery. The E-Committee of the Supreme Court has
taken several Information and Communication Technology (ICT) initiatives,
Page: 24
to enhance judicial productivity, both qualitatively & quantitatively, making the justice
delivery system accessible, cost effective, reliable and transparent.98
NITI Aayog's Expert Committee chaired by Justice (Retd.) A.K. Sikri submitted the
Action Plan for Online Dispute Resolution in India.99 The ODR Report gives five key
recommendations on increasing the access to digital infrastructure, increase capacity,
build trust on ODR, suitably regulate ODR and implement ODR in phased manner.
“The report recommends measures at three levels to tackle challenges in adopting
ODR framework in India. At the structural level, it suggests actions to increase digital
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literacy, improve access to digital infrastructure and train professionals as neutrals to

deliver ODR services. At the behavioural level, the report recommends adoption of
ODR to address disputes involving Government departments and ministries. At the
regulatory level, the report recommends a soft-touch approach to regulate ODR
platforms and services. This involves laying down design and ethical principles to
guide ODR service providers to self-regulate while fostering growth and innovations in
the ecosystem. The report also stresses on strengthening the existing legislative
framework for ODR by introducing necessary amendments to statutes. The report
offers a phased implementation framework for ODR in India.”100
9. Regulation of Social Media and OTT Platforms: One of the major challenges
with the growth of social media has been the regulation of content detrimental to
national security and public at large. This may also involve data breaches and there
was a necessity to fix the liabilities of intermediaries. The Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 has tried to plug
the existing loopholes and bring some accountability on the intermediaries.101 Social
media intermediaries, with registered users in India above a notified threshold, have
been classified as significant social media intermediaries (SSMIs).102 SSMIs are
required to observe certain additional due diligence such as appointing certain
personnel for compliance, enabling identification of the first originator of the
information on its platform under certain conditions, and deploying technology-based
measures on a best-effort basis to identify certain types of content.103 All
intermediaries are required to provide a grievance redressal mechanism for resolving
complaints
Page: 25
from users or victims. A three-tier grievance redressal mechanism with varying levels
of self-regulation has been prescribed for publishers.104
Another major issue erupted due seeking regulation of content on over-the-top

(OTT) platforms like Netflix, Amazon Prime, etc. It has been alleged that the content
shown on these platform is not subject to any censorship. Allahabad High Court in the
‘Tandav’ case, rejected the anticipatory bail plea of Amazon Prime India Head, Ms.
Aparna Purohit.105 Supreme Court granted interim protection against arrest in this case
however observed that “Law has to be framed to put in place a mechanism to control
OTT platforms instead of mere guidelines. The new guidelines of the government on
regulating OTT platforms like Netflix & Amazon Prime Video has ‘no teeth’ as there is
no provision of prosecution.106 ” Supreme Court has also stayed similar petitions
against the OTT platforms in Punjab and Haryana High Court and Madhya Pradesh High
Court, pending transfer of all these cases to the Supreme Court. Regulation of OTT
platforms thus forms another important issue for examination of the Apex Court and
action by the Central Government.
10. Tribunal Reforms Act, 2021 : The Government of India's decision of 2 August
2021 continues the convoluted debate of existing judicial bodies’ functioning over
appellate tribunals. The Tribunals Reforms Act, 2021 provides for dissolving over nine
appellate board/tribunals (the Cinematograph Act, 1952; the Customs Act, 1957; the
Geographical Indications of Goods Act, 1999, the Protection of Plant Varieties and
Farmers’ Rights Act, 2001 and the Patents Act, 1970) and transferring the functioning
of the appellate tribunals to other judicial entities and High Courts. The passing of
Tribunal Reforms Bill, 2021, which was hastily passed amongst the commotion of the
existing debates in the Monsoon Session of the Parliament, is under much criticism of
the Hon'ble Supreme Court of India. Starting from the position, the appellate tribunals
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and their functioning in the Constitution of India has posited an impact of much
significance as it helps in reducing the existing workload of the Indian courts and
further assists in speedy disposal of the cases. However, the Government through the
present decision seeks to absolve these appellate tribunals. With different acts, time
and again, the measures of tribunalisation and scrapping them, questions the
constitutional, logical basis of such acts, bringing us to the discourse and a crucial
juncture of what actually constitutes an efficient, independent of government realms
and uniform framework for tribunals’ functioning.
The above mentioned ten major reflections from 2021 highlight the vibrancy of law
and policy debates in India and also brings forward the need for
Page: 26
conducting research into these areas. Researches have to be more data centric and
evidence based. Further, the value of public consultations before coming up with a
new legislation is underlined. A serious concern worth review by the parliamentarians
together is the wastage of time of legislature107 caused due to continuous disruptions.
———
*Dean, School of Law, UPES and Editor-in-Chief, UPES Law Review Proofreading support by Executive Editor, Ms
Aratrika Deb is acknowledged.
1 Krishnadas, Gagan, “Why can't Jurists be Judges?” Deccan Herald, 4-6-2019. Available via
<https://www.deccanherald.com/opinion/in-perspective/why-can-t-jurists-be-judges-738167.html>.
2Ninth one being Senior Advocate P.S. Narsimha elevated directly from the Bar to the Supreme Court of India in
2021.
3 “Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person,
Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar
Council concerned and shall cease to practise as long as he is in such employment.” — This includes a full-time
law teacher.
4 The Advocates (Right to Take up Law Teaching) Rules, 1979.
5 Satish Kumar Sharma v. Bar Council of H.P., (2001) 2 SCC 365.
6 “Allow Law Teachers to Practice in Courts : NLU Consortium”, Bar and Bench, 21-2-2019, available via
<https://www.barandbench.com/news/allow-law-teachers-to-practice-in-courts-nlu-consortium>.
7 See <https://www.aals.org/about/handbook/good-practices/ethics/>.
8 Jain, S. (1972), “Legal Research and Methodology”, Journal of the Indian Law Institute, 14(4), 487-500.
Retrieved from <www.jstor.org/stable/43950155>.
9Vick, D. (2004), “Interdisciplinarity and the Discipline of Law”, Journal of Law and Society, 31(2), 163-193.
Retrieved from <www.jstor.org/stable/1410523>.
10Law Commission of India 184th Report on the Legal Education & Professional Training and Proposals for
Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956 (December 2002).
Available via <https://lawcommissionofindia.nic.in/reports/184threport-parti.pdf>.
11“Bar Council of India Trust for Promotion of Education (Legal and Professional) and Reforms in Law and For
Improvement of Research and Social Training” (In short “Bar Council of India Trust-PEARL-FIRST”).
12 See <https://orissadiary.com/indian-institute-of-law-iil-to-be-established-at-bhubaneswar/>.
13 See <https://www.goavidhansabha.gov.in/uploads/bills/1259_field_BN35of2021.pdf>.
14
<https://www.ili.ac.in/ob.html>.
15 <https://timesofindia.indiatimes.com/home/education/news/rules-abolishing-one-year-llm-to-come-into-effect
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-from-2022-23-bci-to-sc/articleshow/80858436.cms>.
16 <http://www.naac.gov.in/images/docs/apply_online/law/Draft_legal_University_Manual.pdf>.
17On 26 November 2021,WHO designated the variant B.1.1.529 a variant of concern, named Omicron, on the
advice of WHO's Technical Advisory Group on Virus Evolution (TAG-VE). See
<https://www.who.int/news/item/28-11-2021-update-on-omicron>.
18
Delhi, Bombay, Sikkim, Madhya Pradesh, Calcutta.
19 <https://www.indiatoday.in/coronavirus-outbreak/story/bombay-high-court-pulls-up-maharashtra-govt-on-
remdesivir-procurement-allocation-to-nagpur-1793695-2021-04-22>.
20 <https://newsable.asianetnews.com/coronavirus-india/covid-delhi-high-court-slams-centre-government-over-
oxygen-shortage-vpn-qry4uc>.
21 Distribution of Essential Supplies and Services during Pandemic, In re, 2021 SCC OnLine SC 339.
22 <https://www.scobserver.in/journal/covid-coverage-national-pandemic-policy-27th-april/>.
23“Hence, this Court would, under the auspices of an open court judicial process, conduct deliberations with the
executive where justifications for existing policies would be elicited and evaluated to assess whether they
survive constitutional scrutiny”. Is it not the role of the Parliament and opposition precisely to question the
Government on policy?
24
WHO COVID Dashboard <https://covid19.who.int/> and other websites.
25 <https://ourworldindata.org/covid-vaccinations?country=OWID_WRL>.
26Reepak Kansal v. Union of India, (2021) 9 SCC 251 and Gaurav Kumar Bansal v. Union of India, Writ Petition
(Civil) No. 539 of 2021, judgements dated 30.06.2021 and the follow-up Order on compliance of the judgment
and order dated 30.06.2021 Passed in Writ Petition (Civil) No. 539 of 2021
27
<https://www.barandbench.com/news/litigation/create-online-portal-compensation-scheme-covid-19-deaths-
supreme-court>.
28
See Singh, Vijay Kumar, “Compensatory Justice Jurisprudence in Indian Public Law — An Analysis” (20-12-
2018). NLUA Law and Policy Review Vol. 3 No. II 2018, available at SSRN:<https://ssrn.com/abstract=3507604
or http://dx.doi.org/10.2139/ssrn.3507604>.
29 Goal 1 End poverty in all its forms everywhere Goal 2 End hunger, achieve food security and improved nutrition
and promote sustainable agriculture Goal 3 Ensure healthy lives and promote well-being for all at all ages Goal 4
Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all Goal 5 Achieve
gender equality and empower all women and girls Goal 6 Ensure availability and sustainable management of water
and sanitation for all Goal 7 Ensure access to affordable, reliable, sustainable and modern energy for all Goal 8
Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work
for all Goal 9 Build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation
Goal 10 Reduce inequality within and among countries Goal 11 Make cities and human settlements inclusive, safe,
resilient and sustainable Goal 12 Ensure sustainable consumption and production patterns Goal 13 Take urgent
action to combat climate change and its impacts Goal 14 Conserve and sustainably use the oceans, seas and
marine resources for sustainable development Goal 15 Protect, restore and promote sustainable use of terrestrial
ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt
biodiversity loss Goal 16 Promote peaceful and inclusive societies for sustainable development, provide access to
justice for all and build effective, accountable and inclusive institutions at all levels Goal 17 Strengthen the
means of implementation and revitalize the global partnership for sustainable development.
30 SDG Compass : The guide for business action on the SDGs.
31Natasha Affolder, “The Legal Concept of Sustainability, A Symposium on Environment in the Courtroom : Key
Environmental Concepts and the Unique Nature of Environmental Damage”, March 2012.
32John Robinson, “Squaring the Circle? Some Thoughts on the Idea of Sustainable Development” (2004) 48
Ecological Economics 369 at 370
33Stephen Dovers and Robin Connor, “Institutional and Policy Change for Sustainability” in Benjamin J. Richardson
and Stepan Wood, eds., Environmental Law for Sustainability : A Reader (Oxford : Hart, 2006) 21 at 32.
34Report of the World Commission on Environment and Development : Our Common Future (1987), available at
<http://www.un-documents.net/our-common-future.pdf>.
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35 Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group, (2006) 3 SCC 434. “The
development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the
need of ecological impact, a delicate balance between it and the necessity for development must be struck.
Whereas it is not possible to ignore inter-generational interest, it is also not possible to ignore the dire need
which the society urgently requires.”
36 Natasha, supra note 31.A common misperception about sustainable development is that it simply requires the
balancing of three equally important “pillars” — economic, environmental and social. Formulated in such a way, it
is easy to sympathize with critics who suggest sustainable development is an unhelpful concept, largely devoid
of meaning. No guidance on this balancing appears to be given.
37
Principle 4 of the Rio Declaration which asserts that “in order to achieve sustainable development,
environmental protection shall constitute an integral part of the development process and cannot be considered
in isolation from it”. Also see Alan Boyle and David Freestone, “Introduction” in Alan Boyle and David Freestone,
eds., International Law and Sustainable Development : Past Achievements and Future Challenges (Oxford :
Oxford University Press, 1999) 1 at 10.
38 <https://dashboards.sdgindex.org/static/profiles/pdfs/SDR-2021-india.pdf>.
39 <https://www.a4id.org/wp-content/uploads/2021/09/SDG-Legal-Guide_Chapter-16_FinalNew.pdf>.
40 These “Panchamrits” will be an unprecedented contribution of India to climate action (5 Amrit Tatva).
41 National Statement by Prime Minister Shri Narendra Modi at COP26 Summit in Glasgow (2-11-2021), available
via <https://www.mea.gov.in/Speeches-Statements.htm?
dtl/34466/National+Statement+by+Prime+Minister+Shri+Narendra+Modi+at+COP26+Summit+in+Glasgow>.
42
English Rendering of PM's Address at Constitution Day Celebrations Organized by Supreme Court, 26-11-2021,
available <https://pib.gov.in/PressReleseDetail.aspx?PRID=1775461>.
43 The Transgender Persons (Protection of Rights) Act, 2019 provides for protection of the rights and welfare of
the transgender persons. Also see National Legal Services Authority v. Union of India, (2014) 5 SCC 438 : AIR
2014 SC 1863 (created the ‘third gender’ status for ‘hijras’/‘kinnar’ or ‘transgenders’. Before this decision, the
transgender people were forced to describe themselves as either male or female, but after the judgment, they
could proudly identify themselves as transgender. But apart from this, what made this judgment so special was
that it laid down the framework to guarantee the transgender community a whole spectrum of basic human
rights.) and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (It recognized that every individual
irrespective of their gender identity and sexual orientation have the right to live with dignity, autonomy and
make personal and private without State interference). Justice Indu Malhotra speaking for the Supreme Court
said, “History owes an apology to the members of this community and their families, for the delay in providing
redressal for the ignominy and ostracism that they have suffered through the centuries.”
44<https://padmaawards.gov.in/AwardeeTickets2021.aspx> (Narthaki Nataraj, a renowned dancer from Tamil
Nadu was the first person from the transgender community to be honoured with the prestigious Padma Shri
award.).
45
<https://main.sci.gov.in/pdf/Collegium/15112021_150025.pdf>.
46 “Saurabh Kirpal : The Man Who could be India's First Openly Gay Judge”, BBC, 18th November 2021, available
<https://www.bbc.com/news/world-asia-india-59302657> (On 8-7-2017, Joyita Mondal became the first
transgender Judge of a Lok Adalat from West Bengal, India).
47Hon'ble Justice Indira Banerjee, Hon'ble Justice Hima Kohli, Hon'ble Justice Bela Trivedi and Hon'ble Justice B.V.
Nagarathna.
48
<https://www.hindustantimes.com/india-news/cji-calls-for-women-s-equal-representation-in-judiciary-
101632696419660.html>.
49 <https://www.internationalwomensday.com/2022theme>.
50 <https://indianexpress.com/article/india/bill-to-increase-marriage-age-of-women-to-21-yrs-to-be-sent-to-
house-panel-smriti-irani-7684161/>.
51
“Notwithstanding anything contrary or inconsistent therewith contained in the Indian Christian Marriage Act,
1872; the Parsi Marriage and Divorce Act, 1936; the Muslim Personal Law (Shariat) Application Act, 1937; the
Special Marriage Act, 1954; the Hindu Marriage Act, 1955; and the Foreign Marriage Act, 1969, or any other
custom or usage or practice in relation to marriage, under any other law for the time being in force” is included in
S. 2 of the Child Marriage Act of 2006.
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52The Statement of Objects and Reasons in the Bill states:“In order to address the issues of women in a holistic
manner, as a measure for empowerment of women, gender equality, increasing the female labour force
participation, make them self-reliant and to enable them to take decisions themselves”.
53 2021 SCC OnLine SC 261.
54
Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469.
55
Read an elaborate exposition of this case in Dhruva Gandhi, “Nitisha v. Union of India : Furthering a Discussion
on Discriminatory Intent”, 14 NUJS L. Rev. 1 (2021) 1. Also see
<https://www.scconline.com/blog/post/2021/10/14/navratri-and-women-empowerment-9-judgments-of-2021-
that-knocked-out-the-patriarchal-evils/>.
56 Kush Kalra v. Union of India, 2021 SCC OnLine SC 1062.
57
<https://www.scconline.com/blog/post/2021/08/20/women-in-army/>.
58 The Special 301 Report (Report) is the result of an annual review of the state of intellectual property (IP)
protection and enforcement in US trading partners around the world, which the Office of the United States Trade
Representative (USTR) conducts pursuant to S. 182 of the Trade Act of 1974, as amended (the Trade Act, 19
USC § 2242). The Office of the United States Trade Representative (USTR) is responsible for the preparation of
this Report.
59
Report No. 161, Parliament of India (Rajya Sabha), Review of the Intellectual Property Rights Regime in India,
23-7-2021.
60
The Intellectual Property Appellate Board (IPAB) used to exercise jurisdiction over trademarks, patents and
geographical indications, which has now been dissolved w.e.f. 4-4-2021.
<https://ipindia.gov.in/writereaddata/Portal/News/728_1_Dissolution_notification_0001.pdf> Powers exercised by
IPAB is now being exercised by the respective High Courts.
61 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
62 Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
63
Judgment of the Court in Plain English (I), Supreme Court Observer, available via
<https://www.scobserver.in/reports/k-s-puttaswamy-right-to-privacy-judgment-of-the-court-in-plain-english-
i/>.
64 “On 18th July 2021, a consortium of nearly 17 journalistic organizations from around the world, including one
Indian organization, released the results of a long investigative effort indicating the alleged use of the Pegasus
Software on several private individuals. This investigative effort was based on a list of some 50,000 leaked
numbers which were allegedly under surveillance by clients of the NSO Group through the Pegasus Software. It is
alleged that at the time of filing of the writ petitions, nearly 10 Indians’ devices were allegedly forensically
analysed to confirm the presence of the Pegasus Software”.
65 See <https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1736803>.
66
Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985.
67
Id. Supreme Court observed, “If the Respondent Union of India had made their stand clear it would have been
a different situation, and the burden on us would have been different. Such a course of action taken by the
Respondent Union of India, especially in proceedings of the present nature which touches upon the fundamental
rights of the citizens of the country, cannot be accepted.”
68 <https://www.thehindu.com/news/cities/kolkata/pegasus-spyware-issue-west-bengal-govt-sets-up-two-
member-inquiry-commission/article35534671.ece>.
69
<https://www.indiatoday.in/india/story/pegasus-snooping-row-supreme-court-bengal-government-justice-
lokur-commission-cji-ramana-1888871-2021-12-17>.
70Also see the Report of the Committee, A Free and Fair Digital Economy Protecting Privacy, Empowering Indians
Committee of Experts under the Chairmanship of Justice B.N. Srikrishna, available via
<https://www.meity.gov.in/writereaddata/files/Data_Protection_Committee_Report.pdf>.
71 Lok Sabha, Report of the Joint Committee on Personal Data Protection Bill, 2019 — 17th Lok Sabha.
72
For a summary see, <https://prsindia.org/billtrack/prs-products/joint-parliamentary-committee-report-
summary>.
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73Shall have the same meaning as assigned to it in cl. (a) of S. 2 of the Aadhaar (Targeted Delivery of Financial
and Other Subsidies, Benefits and Services) Act, 2016.
74 <https://prsindia.org/billtrack/the-election-laws-amendment-bill-2021>.
75
<https://indianexpress.com/article/india/bill-to-link-aadhaar-with-voter-card-passed-in-rajya-sabha-
7683510/>.
76
Singh, Vijay Kumar, “Farmers at the Centre of Political Debate Once Again : Looking at Farm Bills from
Competition Lens”, The Daily Guardian, September 2020, <https://thedailyguardian.com/farmers-at-the-centre-
of-political-debate-once-again-looking-at-farm-bills-from-competition-lens/>.
77“Farmers End Year-Long Protest : A Timeline of How it Unfolded”, The Indian Express, 9-12-2021, available
<https://indianexpress.com/article/india/one-year-of-farm-laws-timeline-7511961/>.
78
<https://farmer.gov.in/sccommittee/PDF/21097_2020_31_19_25372_Order_12-Jan-2021.pdf>.
79 A committee comprising of (1) Shri Bhupinder Singh Mann, National President, Bhartiya Kisan Union and All India
Kisan Coordination Committee; (2) Dr Parmod Kumar Joshi, Agricultural Economist, Director for South Asia,
International Food Policy Research Institute; (3) Shri Ashok Gulati, Agricultural Economist and Former Chairman
of the Commission for Agricultural Costs and Prices; and (4) Shri Anil Ghanwat, President, Shetkari Sanghatana,
is constituted for the purpose of listening to the grievances of the farmers relating to the farm laws and the
views of the Government and to make recommendations. See
<https://farmer.gov.in/sccommittee/FarmAct.html>.
80It is interesting to note that the Supreme Court of India passed an order to stay legislations enacted by the
Parliament to assuage the feelings of the protesting farmers. “We are also of the view that a stay of
implementation of all the three farm laws for the present, may assuage the hurt feelings of the farmers and
encourage them to come to the negotiating table with confidence and good faith” (para 8).
81
Singh, V.K. 2019, “Reforming SOEs in Asia : Lessons from Competition Law and Policy in India”, ADBI Working
Paper 1056, Tokyo : Asian Development Bank Institute. Available:<https://www.adb.org/publications/reforming-
soes-asia-lessons-competition-law-policy-india>.
82 Ibid.
83M/s Talace Pvt. Ltd., a wholly owned subsidiary of M/s Tata Sons Pvt. Ltd., a Special Purpose entity will take
over 100% equity shareholding of Government of India in Air India along with equity shareholding of Air India in
AIXL and AISATS. See <https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1762146>.
84
Incidentally all these industrial houses run Public Limited Companies — Reliance Industries, ICICI Bank, TATA
Motors, TCS, Bharti Airtel, Infosys, ITC, Wipro, Tata Steel, etc.
85NMP estimates aggregate monetisation potential of Rs 6.0 lakh crores through core assets of the Central
Government, over a four-year period, from FY 2022 to FY 2025, see
<https://www.opindia.com/2021/02/narendra-modi-rahul-gandhi-befitting-reply-adani-ambani-rant/>.
86 <https://dipam.gov.in/> (Department of Investment and Public Asset Management (DIPAM) deals with all
matters relating to management of Central Government investments in equity including disinvestment of equity in
Central Public Sector Undertakings. The Four major areas of its work relates to Strategic Disinvestment, Minority
Stake Sales, Asset Monetisation and Capital Restructuring. It also deals with all matters relating to sale of
Central Government equity through offer for sale or private placement or any other mode in the erstwhile Central
Public Sector Undertakings. DIPAM is working as one of the Departments under the Ministry of Finance.).
87
<https://www.india.gov.in/spotlight/national-monetisation-pipeline-nmp>.
88Salem Advocate Bar Assn. v. Union of India, (2003) 1 SCC 49 and Salem Bar Assn. (2) v. Union of India,
(2005) 6 SCC 344.
89 Afcons infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24.
90 <https://indianmediationlaw.wordpress.com/2018/08/06/joint-session-with-dr-vijay-kumar-singh/>.
91 [2004] 1 WLR 3002 : 2004 EWCA (Civ) 576.
92 from the Session 2020-2021, <http://www.barcouncilofindia.org/wp-content/uploads/2010/05/BCI-2133-2020-
dt.-24.08.20-CIRCULAR-MEDIATION-DEFENCE-STUDIES-INL-LLB-DEGREE-COURSES.pdf>.
93 Senior Advocate Sadhana Ramachandran and Senior Advocate Santosh Hegde, along with assistance from
former information commissioner and ex-IAS Officer Wajahat Habibullah.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
94The panel was headed by former Supreme Court Judge F.M.I. Kalifulla and also comprised of spiritual guru and
founder of the Art of Living foundation Sri Sri Ravi Shankar and Senior Advocate and renowned mediator Sriram
Panchu (2019).
95 <https://www.timesnownews.com/india/article/mahabharata-teaches-us-significance-of-mediation-conciliation
-cji-ramana-to-business-community/837757>.
96 <https://legalaffairs.gov.in/sites/default/files/DRAFT-MEDIATION-BILL-29.10.2021.pdf>
97 The Convention came into force on 12th September 2020.

98 <https://ecommitteesci.gov.in/>.
99
NITI Aayog, Designing the Future of Dispute Resolution : The ODR Policy Plan for India, October 2021, available
at <https://www.niti.gov.in/sites/default/files/2021-11/odr-report-29-11-2021.pdf>.
100 <https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1776202>.
101 See Rule 3 which requires the Intermediary to exercise due diligence.
102
For example facebook, twitter, etc.
103 <https://prsindia.org/billtrack/the-information-technology-intermediary-guidelines-and-digital-media-ethics-
code-rules-2021>.
104 Ibid.
105 See the order in Aparna Purohit v. State of U.P., 2021 SCC OnLine All 179, accessed via
<https://images.assettype.com/barandbench/2021-02/727b4e1f-80a9-4963-a340-
327f3605fc68/Aparna_Purohit_v__State.pdf>.
106 <https://www.pib.gov.in/PressReleasePage.aspx?PRID=1700749>.
107 <https://www.ndtv.com/india-news/52-of-rajya-sabha-time-lost-to-disruptions-in-1st-week-of-winter-
session-2637971>.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
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Page 1 Sunday, June 12, 2022

A Prologue - Contemporary Issues in Law and Policy - Ten Major Reflections

A PROLOGUE — CONTEMPORARY ISSUES IN LAW AND POLICY — TEN MAJOR

prosecutors and Government Pleaders from that of a Law Officer engaged by a

Legal research is “the process of identifying and retrieving information necessary to

multidisciplinary approach. NEP dedicates one paragraph on ‘legal education’ as

“20.4. Legal education needs to be competitive globally, adopting best practices

expressing displeasure on non-compliance of its order to supply 10,000 vials of

Annual GDP (2020) 2,708,770M.$ 20,936,600M.$

Development were adopted by leaders of 193 countries at an historic UN Summit.

Sustainable development and sustainability are used interchangeably, although

cases under prevention of corruption Act, percentage of births registered, and

• India will take its non-fossil energy capacity to 500 GW by 2030.

“In terms of absolute cumulative emissions, developed countries together have

boys. There is a significant amount of debate50 happening on this amendment on

Supreme Court in Nitisha v. Union of India53 reemphasised its decision in Babita

absence of a detailed response from Union of India67 , a three-member technical

• The Essential Commodities (Amendment) Act, 2020 (decontrolling supply of farm

Mediation is a “swachh dispute resolution” mechanism, in terms of providing a win-

literacy, improve access to digital infrastructure and train professionals as neutrals to

Another major issue erupted due seeking regulation of content on over-the-top

97 The Convention came into force on 12th September 2020.

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