There is vast literature on secularism in India and on the effects of Hindu nationalism on secular constitutionalism. This article takes a different tack. It focuses on cases where minority status is contested or competing rights of minorities are at stake. The article uses three exemplary recent cases to illustrate how judicial doctrines devised to reform discriminatory religious practices or to protect minority interests have, perversely, favoured certain groups at the expense of others. In each area examined, the jurisprudence privileges the more powerful of those interests: the sanctity of Muslim personal law over the rights of Muslim women; Hindu dalits over dalits that converted to other religions; and minority educational institutions over children from ‘weaker’ and ‘disadvantaged’ sections of society. The article concludes by proposing a new jurisprudence of religion and constitutional practice for India, one that takes account of these inequalities and gives meaning to the fundamental rights of the most vulnerable individuals and groups.

The definition of consideration in Section 2(d) of the Indian Contract Act 1872 substantially anticipated the far-reaching reforms to the orthodox doctrine of consideration that were proposed by the English Law Revision Committee (1937). These included making enforceable, through the doctrine of promissory estoppel, promises without consideration in the traditional sense that were meant to and did induce reliance; making enforceable a promise to perform a pre-existing duty; and making binding a promise to keep an offer open. The pivots of the definition in Section 2(d) were: a ‘subjective’ conception of consideration on which value was to be measured by the desire of the contractors alone, as opposed to an external standard; a concomitant purging of the traditional requirements of benefit and detriment; and the recognition of induced reliance as a form of consideration. The definition was designed to mark the vanishing point of consideration without having to formally abolish it. This design, however, went awry as courts and scholars in India projected the orthodox English model of consideration, replete with benefit and detriment, and external standards of value, upon this provision. Consequently, an ingenious piece of draftsmanship came to be eclipsed by orthodoxy.

Despite expanding the definition of rape under the Indian Penal Code to include non-penile-vaginal acts of penetration, the said definition continues to conform to a gender-specific notion of rape, based on a predetermined characterization of the victim-perpetrator framework on the basis of their genders. Herein, I will critique this idea of gender specificity in Indian rape law on the grounds that it reinforces a binary notion of gender, and results in gross underinclusion. Instead, it is more appropriate to adopt a human-rights-based approach in defining the offence of rape, and negate the role of gender in identifying the victims and perpetrators of an act of rape. The argument is pillared on a state’s obligation to not discriminate on the basis of sex, the recognition of transgender rights, and an assessment of the common grounds for opposing gender neutrality in Indian rape law.

This article explores horizontal non-discrimination rights under the Constitution of India (Indian Constitution). The Indian Constitution is unique in that it expressly prohibits private discrimination on the grounds of sex, race, caste, religion, etc. for the purpose of, inter alia, “access to … shops” (Article 15(2)). The article argues that a historically grounded understanding of the word “shops”, in the context of the transformative purposes of the Indian Constitution, necessitates a broad reading that covers all private economic transactions where goods and services are offered to the public at large. Furthermore, seemingly contrary Supreme Court precedent, if it is constitutionally justifiable, must be restricted to its own facts. In sum, Article 15(2) of the Indian Constitution provides a radical constitutional remedy that is directly horizontally applicable to private conduct, and goes far beyond remedies developed in other jurisdictions, which have often needed to turn to legislation in order to adequately combat private discrimination in the economic and social sphere.

Over the last six decades, the Supreme Court of India has created and re-created a right to property from very weak textual sources, despite constitutional declarations calling for social revolution, numerous amendments to reverse key judgments, and even, in 1978, the repeal of the core constitutional provisions guaranteeing a right to property. This article challenges the usual account of these developments. The primary contention is that the 1978 repeal is much less significant than it appears, due to the Court’s creative interpretation of other constitutional provisions. The Supreme Court has consistently advanced liberal models of constitutionalism and property, despite the influence of other models on the original constitutional design and later amendments. This article also examines whether the Court’s liberalism is compatible with the egalitarian values of the Constitution, and how its position will affect attempts to address social issues relating to the distribution of property in India.

The traditional narrative of judicial independence in India and Sri Lanka goes like this. The Indian Constitution established a strong and independent judiciary, which has become one of the most powerful in the world. By contrast, judicial independence was never entrenched in Sri Lanka due to insufficient constitutional safeguards and political interference. This paper seeks to challenge this narrative. It argues that despite important structural differences, India and Sri Lanka have followed similar judicial paths since the 1970s. Both judiciaries relaxed procedural requirements to allow sweeping public interest litigation; defined secularism and regulated religious practices in line with the dominant religious tradition; and largely deferred to the executive on the scope and necessity of emergency regulations. This remarkable convergence in jurisprudence demonstrates that (1) the Sri Lankan Supreme Court is more rights-protective and (2) its Indian counterpart is less willing to assert its independence on controversial issues than traditionally understood.

What is the fate of legal transplants when they arrive from one culture to another? Using the theoretical framework of legal transplantation developed by Masaji Chiba and the theory of religion developed by S.N. Balagangadhara the problem is tested with two different types of indigenous law, in Japan and India, which do not have religion. When certain kinds of legal ideas, embedded as norms within the Western culture, which is constituted by a religion, Christianity, enter non-Western cultures that do not have religion, those ideas break down, become distorted, absurd or nonsensical, and induce conflict. The secular state engages in the process of suppressing what it implicitly regards as false religion or idolatrous practices. As Chiba foresaw, this process can even lead to the identity postulate of a legal culture being altered or destroyed.

This paper dispels the myth of liberal Enlightenment in relation to penal law reforms in colonial India by advancing two sets of argument. First, the liberal project of codification on the basis of universalist notion of utilitarianism never broke with cultural hierarchy inbuilt in the very act of colonisation. In this paper, I specifically look into the emerging phenomenon of evolutionary science in the nineteenth century – social Darwinism – to explain the dominant normative, as opposed to realist, justification of such racial hierarchy in colonial discourses since the nineteenth century. Second, using Dipesh Chakrabarty’s theoretical framework, I provincialise the penal law reform project in colonial India through the examination of literature in the field, and substantiate how the notion of utilitarian universality remained vague and unpromising in face of instrumental needs on ground – both in the colony and in the metropolis. Taken together, these propositions dispel the myth of the liberal project of penal law reforms in colonial India based on this universalist position and underscore the fallacies of the transition narrative of modernity itself.

This article seeks to assess the respective contributions of China and India to the law of the World Trade Organization (WTO) and to gain from a comparative perspective a better understanding on the potential impact of China on the WTO system. It observes that, although China's share in world trade is more than four times as large as that of India, China has played a much less significant role than India in both WTO rulemaking and adjudicatory processes. To date the major impact of China on WTO law stems from the special terms of its accession, many of which depart from the basic norms and principles of the WTO. India, on the other hand, has been one of the most active contributors to the development of WTO law and jurisprudence. The author suggests that the divergence in WTO legal practices of the two countries is attributable to a number of factors and that the presence of these factors will continue to influence their behavior within the WTO system.

This study seeks to unravel the puzzle underlying China's and India's differing experiences in attracting two types of foreign investment: namely foreign direct investment (‘FDI’) and foreign venture capital investment (‘FVCI’). Complementing the law and finance literature, we argue that foreign investors prefer the direct investment mode in China despite its poor governance environment because direct investment provides private means of control over the business, and China's institutional environment provides a more facilitating arena for FDI than India's. In contrast, India's legal infrastructure and related institutional settings prove to be better than China's in accommodating foreign portfolio (indirect) investment especially in the form of venture capital. The conclusion of this article has implications for the two countries' legal reform in the direction of the desired type of foreign investment. It also provides comparative insights into the legal institutions of China and India in fostering national innovative capacity and entrepreneurship.

This paper critically discusses the issue of enforceability of investment treaty arbitration (ITA) awards against India under the Indian domestic law on arbitration. In this regard, the paper discusses the relevant provisions of the Indian arbitration law and its interpretations by the Indian judiciary to understand their ramifications for the enforcement of ITA awards against India. The paper also discusses the proposed amendments to the Indian arbitration law and its ramifications on ITA. The issue of enforcement of ITA awards in India has become important due to India's gigantic international investment treaty programme where each treaty allows for investor-state treaty arbitration to settle disputes between investors and India. This issue has also become important in light of the growing observation that enforcement of foreign commercial arbitral awards in India is extremely difficult especially after the Venture Global engineering case. Thus, India is endeavouring to change the arbitration law so as to alter this perception. This paper argues that in spite of these proposed changes; enforcement of ITA awards may still face problems. Thus, the paper suggests that India should address the issue of enforceability of ITA awards given its gigantic investment treaty programme aimed at attracting foreign investment.

Public interest litigation [‘PIL’], typically defined as proceedings in which the public or the community at large has some pecuniary or legal interest, demonstrates an ability to foster human rights compliance. It does this by enabling broader community or ‘public’ interests to be recognised and enforced through the judicial process, thereby revealing greater potential than private rights litigation in addressing the systemic nature of many human rights violations. This in turn has presented greater opportunities domestically to monitor each state's accountability to international human rights standards.

This paper compares and contrasts the emergence and development of PIL in two jurisdictions - India and Australia. India was chosen for its remarkable and extensive development of PIL unparalleled in Commonwealth jurisdictions to date, and Australia, for its adoption of a much more restrained and traditional trajectory in line with other members of the Commonwealth. Although PIL has developed differently in the two countries, inevitably shaped by differences in culture, economic development, law and politics, both provide illustrations of PIL's potential (and limitations) in facilitating the development of human rights norms in domestic legal systems.