Volume VIII (2026)
The Sui Generis Executive of the NCT of Delhi: An Exploration in the Backdrop of the Government of NCT of Delhi (Amendment) Act, 2023
Vaibhav Sanklecha and Renuka Joseph
Abstract
Historically, the legislative device of abrogation is a tool which facilitates the interference of the legislature into the domain of other organs of governance and their supremacy. In light of its constitutional implications, the device is one which is not adopted on a day-to-day basis. Ordinarily speaking, the rationale behind the enactment of the 'validating' legislation is to nullify the ineffectiveness apparent in the existing legislation in question, on the basis of which the judicial pronouncement was passed. The Government of NCT of Delhi (Amendment) Act, 2023, coloured as the 'validating' legislation, has the effect of dodging the judicial pronouncement striking down the notification of the Ministry of Home Affairs, through which the scope of power of the Union Legislature was expanded when compared to the existing ambit prescribed by the Constitution vis-à-vis Article 239-AA. In essence, the Supreme Court identified the defect in this notification but not in the constitutional provision. On the contrary, the Parliament, through the Act of 2023, has sought to nullify the hypothetical 'defect' in a constitutional provision. However, when the Parliament attempts to do so, it no longer remains a 'legislative device of abrogation' rather falls within the domain of constitutional amendments. This 'convenient bypass' of the amendment procedure prescribed within the Constitution is coupled with the breakdown of the triple chain of accountability. The chain of accountability remains quintessential to the functioning of a democratic structure since the rate of successfully accommodating the will of the people depends upon this multi-linked chain of accountability. Parliamentary overruling and destruction of the triple chain of accountability together reflect the intention of the Union legislature to revoke the 'sui generis' status granted to the NCT of Delhi.
Keywords: Colourable Legislation, Collective Responsibility, Federalism, Parliamentary Overruling, Triple Chain of Accountability, Validating Legislation
Illusions of Safeguard: A Critical Appraisal of Warrantless Searches under §185 Bharatiya Nagrik Suraksha Sanhita
Kavish Rajpurohit
Abstract
This paper examines whether §185 of the Bharatiya Nagrik Suraksha Sanhita (BNSS) 2023, successor to §165 of the Code of Criminal Procedure, 1973 (CrPC), provides real accountability in warrantless searches or whether its safeguards remain largely illusory. While the provision seems to balance investigative necessity with the protection of individual liberty and privacy, the two-fold safeguard distinguishing between conditions that 'shall be followed' and those applicable 'so far as may be', opens the door to circumvention. This weakness has also been reinforced by judicial interpretation, where even mandatory safeguards are treated as directory, where omissions have been excused on some general grounds of urgency or public unwillingness, and violations have been reduced to the status of mere irregularities. Courts have further prioritised evidentiary utility over procedural integrity, placing the burden on the accused to prove prejudice and thereby incentivising unlawful shortcuts. Nonetheless, the supposed right to resist unlawful searches is similarly hollow since individuals cannot meaningfully verify compliance at the time of intrusion. Compounding this is the almost total absence of sanctioning mechanisms against police misconduct, with departmental remedies being rather ineffectual, as are criminal-level sanctions and institutional remedies. The paper argues that without reforms that shift the burden of justification to the police, provide for contemporaneous disclosure of reasons, maintain the inviolability of some safeguards, and enhance independent oversight, the accountability prescribed by §185 shall remain merely a symbolic one. In effect, warrantless searches risk becoming the norm rather than the exception, undermining liberty and privacy in the name of investigative convenience.
Keywords: warrantless searches, criminal procedure, liberty perspective, accountability, procedural safeguards, judicial dilution, police misconduct
Transformative Constitutionalism Around the World: Some Notes on the Concept
Professor Mark Tushnet
Abstract
Scholarship on transformative constitutionalism has been largely centered around a single political valence and a narrow set of constitutional contexts, limiting its reach. This essay examines the concept's general features across material, cultural, anti-colonial, and reactionary dimensions arguing that transformative constitutionalism is best understood as any constitutional project that commits a polity to dismantling a “deeply unsatisfying status quo” and not as inherently left leaning. It evaluates the spectrum of judicial enforcement available to advance transformation, finding that strong-form enforcement faces serious difficulties given the polycentric complexity of transformative goals, while collaborative and weak-form judicial approaches offer more sustainable pathways. The essay further argues that anti-colonial and reactionary variants of cultural transformative constitutionalism illustrated by Bolivia, South Africa, Hungary, and India deserve greater attention, demonstrating that the idea of transformative constitutionalism can be used to analyse constitutional developments divorced from an inherent political valence.
Keywords: Transformative Constitutionalism - Collaborative Constitutionalism - Judicial Enforcement - Anti Colonial Constitutionalism - Reactionary Constitutions
Governing Foreign Corporate Power FEMA Corporate Governance and the Turn to Investment Arbitration in India
Ipsa Mittal and Saesha Gehani
Abstract
Foreign investment regulation in India has traditionally been understood as a framework governing capital entry and ownership. Recent regulatory developments, however, indicate a significant shift. Through the Foreign Exchange Management Act, 1999, the FEMA (Non-Debt Instruments) Rules, 2019, and allied policy instruments, Indian law now regulates the extent to which foreign shareholders may participate in corporate governance. This transformation has occurred without explicit statutory recognition or coordination with company law, making the subject both legally and doctrinally significant.
This paper examines whether Indian foreign investment regulation has evolved into a sui generis system of corporate governance regulation and whether the existing legal framework adequately addresses the consequences of this shift. The central research question is whether the mismatch between company law, which assumes shareholder equality and internal governance resolution, and foreign investment regulation, which restricts governance participation, creates a legislative and institutional deficit. The hypothesis advanced is that this deficit weakens domestic investor protection and contributes to the migration of governance disputes to international investment arbitration.
This paper adopts a doctrinal and analytical methodology. It analyses statutory provisions under the Companies Act, 2013, the Foreign Exchange Management Act, 1999, and the FEMA (Non-Debt Instruments) Rules, 2019, along with judicial decisions and investment arbitral awards involving India. The discussion is structured to first establish the company law baseline, then examine the governance turn in foreign investment regulation, followed by an analysis of legislative gaps and arbitration outcomes, concluding with a proposed statutory amendment to restore coherence.
The paper finds that foreign investment regulation in India now governs corporate power without adequate doctrinal clarity or safeguards, causing regulatory uncertainty and externalisation of disputes. The proposed reforms seek to explicitly recognise governance participation as a regulatory object and to regulate foreign investor participation in corporate governance, which lies at the core of the identified mismatch. Moreover, it proposes to introduce proportional standards and coordinate company law with investment regulation, thereby strengthening domestic legal legitimacy while preserving regulatory autonomy.
Keywords: Foreign Exchange Management Act; Foreign Direct Investment; Corporate Governance; Shareholder Rights; Investment Arbitration
Arbitrator’s Power to Grant Interest in India A Critique
Ajar Rab
Abstract
This paper examines the evolution and theoretical foundations of the arbitrator’s power to grant interest in Indian arbitration law. Despite statutory recognition under Section 31(7) of the Arbitration and Conciliation Act, 1996, the framework suffers from conceptual incoherence stemming from inconsistent treatment of interest across different periods and failure to distinguish between the source of power (procedural) and the nature of the right (substantive).
The paper traces the development of this power over the Arbitration Act, the silence in the 1940s on interest through judicial activism that created the ‘implied term’ doctrine, and the current statutory regime. It critically analyses the Supreme Court’s decision in Gayatri Balaswamy, which permits modification of post-award interest rates under Section 34 of the Act, arguing that this transforms supervisory jurisdiction into appellate power and undermines arbitral finality.
Through a comparative analysis of international practice and a doctrinal examination, the paper establishes that, while the power to award interest is procedural, the entitlement itself flows from substantive law. It proposes legislative reform to eliminate artificial distinctions between interest periods, explicitly authorize compound interest, treat contractual bars as limitation of liability clauses subject to reasonableness review, and recognize interest as compensatory damages requiring proof of loss rather than automatic entitlement.
Keywords: Arbitral Interest; Arbitration and Conciliation Act; Gayatri Balaswamy; Procedural Law; Substantive Law
Data Exclusivity Explained Is India Introducing a Data Exclusivity Regime
Bhanu Tanwar
Abstract
This article examines whether India is transitioning toward a pharmaceutical data exclusivity regime in light of recent regulatory and trade developments. Historically, India has resisted such measures under its existing framework, which allows generic manufacturers to rely on an originator’s clinical data after a four-year period, provided they conduct bioequivalence and bioavailability studies. However, a 2025 notice from the Central Drug Standard Control Organisation (CDSCO) and government rhetoric linking intellectual property (IP) reforms to foreign investment commitments under the Trade and Economic Partnership Agreement (TEPA) suggest a possible policy shift.
The article argues that while no statutory data exclusivity currently exists, the CDSCO’s proposal to mandate repetitive clinical trials for all applicants seeking “new drug” approval could establish a de facto form of exclusivity. Such a shift would raise significant ethical concerns regarding redundant human testing, increase manufacturing costs, and potentially delay the entry of affordable generic medicines. Ultimately, the analysis concludes that India is at a policy crossroads, attempting to navigate a “middle path” that balances pharmaceutical innovation and international investment goals with its long-standing commitment to public health and medicine access.
Keywords: Data Exclusivity; Public Health; Access to Medicines; Pharmaceuticals; Intellectual Property