VOLUME 1 ISSUE 1
Table of Contents
PRIVACY IN THE AGE OF AUTHORITARIANISM : A CRITICAL ANALYSIS OF THE PERSONAL DATA PROTECTION BILL 2019
By: Navami Krishnamurthy, Milind Malhar Sharma (Students, B.ALL.B, OP Jindal University, Sonepat, Harayana)
The Supreme Court of India in the case of Justice K.S. Puttaswamy and another Vs. Union of India, declared “privacy” as a fundamental right under Article 21 of the Constitution. This judgement has been hailed as a landmark judgement in the history of the Indian judiciary. It is also a step in furtherance of safeguarding individual freedom and rights in lieu with universally accepted principles of human rights. The aim of this paper is to critique and thereby initiate a string of thought and debate on the newly introduced Data Protection Bill 2019 in the Indian perspective. The Bill, India’s data protection law, was officially introduced into Parliament in December 2019. This paper also aims to comment upon the various definitions and sections of the proposed legislation and endeavours to answer two questions. Firstly, what are the key issues prevalent in the definitions and language of the Data Protection Bill , and secondly, whether the legislation in its present form is liable to be struck down as unconstitutional ? The paper also lays down certain suggestions and possible solutions to improve the bill and highlights the possible consequences of it being passed in its present state. Privacy being an important fundamental right, should be safeguarded in lieu with constitutional principles. It is intended that the suggestions made can pave the way for a better law to be implemented in the country.
PREVENTION OF BIOPIRACY UNDER INDIAN LEGAL REGIME FOR BETTER CONSERVATION OF BIODIVERSITY
By: Farzin Naz (LLM, National Law University and Judicial Academy Assam), Jayanta Boruah (Research Scholar, North-Eastern Hill University, Shillong; Advocate)
Biodiversity being the most essential component for maintaining ecological balance, demands for its conservation and sustainable utilization. Recognizing such demands, India has adopted several measures both legally and institutionally as per the standards set by International Instruments for achieving the core objectives of conservation, sustainable utilization and equitable sharing of benefits from commercial utilizations of Biodiversity. However, instances of biopiracy, besides getting reduced, are increasing while the actual beneficiaries owing biological resources mostly remains at the receiving end. It thus, becomes important to study the legal and institutional frameworks in India regulating such matters in order to understand the gap between the objectives aimed for and the practical reality. This paper therefore highlighted some of the common issues in the legal and the institutional frameworks related to biopiracy and biodiversity conservation.
DATA PRIVACY AND COMPETITION LAW IN A DIGITAL ECONOMY
By: Sukanya Hosmani, (Student, BA LLB (HONS.) AT OP Jindal Global Law School)
The Personal Data Protection Bill, 2018 was drafted by the Srikrishna Committee subsequent to the Supreme Court declaring right to privacy as a part of right to protection of life and personal liberty in the case of K.S. Puttaswamy v. Union of India. Both the 2019 and the 2018 drafts lay emphasis on concerns such as- obtaining consent before accessing an individual’s data, penalties for violating the law, setting up a Data Protection Authority (DPA) and storage of data collected within India. This bill came against the backdrop of the Aadhar Project, the biggest ID database of citizen data in the world. It is in this age of datafication where every activity of ours- be it financial transactions or online behavior- gives away not only our financial records and credit history but also derivative sensitive information pertaining to health, sexual orientation and preferences, religious and political stances, and personality traits. Such a huge database creating a map of maps of information pertaining to individuals raises crucial security questions. In this digital economy, many questions are raised and analyzed with regard to technology’s impact on consumers and on the competitive market. A key question that we see coming up, to which there is no clear answer yet- is whether privacy should be considered a dimension of competition law. To put it in another way, how relevant is privacy to the analysis of competitive effects?
SECTION 99 OF FINANCE ACT, 2020, POWERS OF THE INCOME-TAX APPELLATE TRIBUNAL TO GRANT STAY, JUDICIAL LEGISLATION AND CONSTITUTIONAL VALIDITY
By: Gunjan Kakkad, (Advocate, Bombay High Court)
One of the possible views in respect of the amendment is that the ITAT may, after hearing an application of stay by the Assessee, grant stay in respect of proceeding filed before it. However, the effect of the amendment is that the ITAT may grant such stay subject to payment of not less than 20% of tax, interest, fee, penalty, or any other sum payable under the provisions of this Act (hereinafter referred to as “the disputed amount”) or equivalent amount of deposit. In other words, the ITAT, pursuant to the amendment would not have the power to grant stay below 20% of the disputed amount. A contrary view in respect of the above interpretation and the one which in my opinion is the right one is that despite the amendment by the Finance Act, the discretionary power of ITAT in an appropriate case to grant stay has not been taken away. The power to grant interim relief is co-extensive with the power to grant final relief. Interim relief in certain cases may be necessary to protect the right to obtain an effective final relief. Any view contrary to this would be unconstitutional for the amendment seeks to take away the judicial discretion thereby violating (i) independence of judiciary and the theory of separation of powers and (ii) attracting the vice of arbitrariness.
ENFORCEMENT OF AN ARBITRAL AWARD UNDER NEW YORK CONVENTION: A STEP TO OVERRIDE ENFORCEMENT
By : Jyoti Prakash Mishra (Advocate, Lucknow Bench, Allahabad High Court), Shivam Tiwari (Advocate, Lucknow District Court)
The Enforceability of the Arbitral award makes arbitration a different and effective alternative dispute resolution mechanism. Once the decision has been particularly rendered by the Arbitral Tribunal in favor of one party, it is implied that the same will be enforced and carried out by the parties.Therefore, why is their need for a provision in order to enforce the award if it is implied that the award made by the tribunal is binding on both the parties and should be enforced accordingly.
The Arbitration as an Alternative Dispute Resolution Mechanism is also different from mediation and conciliation as the award by the Arbitral Tribunal is final and only a party win and another looses the case. So, there is a probability that either of the party is dissatisfied with the rendered award and don’t proceed to comply with the said order by the Arbitral Tribunal. To least the exercise of discretion of the parties, the provision with regard to the enforceability of the award has been included in the draft rule of Arbitral Institutions as well as the draft laws related to Arbitration. For example, the UNICITRAL Rules state that the award ‘shall be final and binding on the parties’ and that the parties undertake to carry out the award without delay’.
But this protection is not absolute, as in, if the award has been made with a lack of excessive jurisdiction, lack of due process or breach of public policy, the award can be challenged on the mentioned grounds and the enforceability would not be executed. An award can be challenged by either of the party, winning or losing, on the basis of above grounds which makes the party dissatisfied with the award.