NLUD Journal of Legal Studies - Volume 4
Full Volume
Front Matter
‘De-X-ing’ the XXX: The Constitutional Validity of India’s Porn Ban
Aanchal Kabra and Rohit Gupta
Abstract
In 2020, the Government of India controversially banned 857 websites hosting pornography, arguing that their operation was directly proportionate to the number of sexual assaults in the country. This action attracted criticism from scholars and citizens alike. However, in light of recent events, the opinion of liberal scholarship must be re-examined as the need for regulation of pornographic content is more necessary than ever. Preliminarily, this paper undertakes a socio-legal study on the effects of pornography upon the prevalence of sexual violence. As its operative aspect, this paper explores the estranged relationship of such a ban with the fundamental rights under Articles 14, 19, and 21 of the Constitution of India. Recent jurisprudence indicates that not only do adults in India possess a right to sexual privacy, but also that such a right should extend to creating and consuming consensual pornographic content. This paper thus ventures to analyse the legality of the profession of 'porn stars', detaching it from the res extra commercium doctrine, and analyses the permissibility of the same in light of the analogous licensing framework imposed upon dance bars and bar dancers. Further, this paper takes on a unique take on the failure of the ban on pornography to comply with Article 14 of the Indian Constitution for want of requirements of an intelligible differentia and rational nexus for the same. Thus, in light of the growing numbers of pornographic films and sexual assaults in the country, this paper first suggests lesser restrictive methods, such as content moderation, and then points towards methods for remodelling the ban such that it is not only intra vires, but also effective.
Keywords: porn ban - fundamental rights - equality - sexual privacy - intelligible differentia - obscenity
Skill or Chance?: That is the Question
Dinker Vashisht
Abstract
In the last fifteen months, three significant High Court judgements from Tamil Nadu, Kerala, and Karnataka have held that games of skill and games of chance are two distinct concepts of constitutional significance. They have also held that State Governments cannot construe games of skill as betting and gambling, and therefore cannot regulate them under the legislative competence granted to them under Entry 34 of List II of Schedule 7 to the Constitution of India.
This presents a predicament for the State Legislatures as well as for the Parliament. Since online gaming was not envisaged at the time of writing of the Constitution, how is it to be regulated now? The answer is of immense significance at a time when the sector has grown rapidly in India, creating several unicorns, getting investments from marquee international investors and being acknowledged as an engine of growth by the Government of India, which in this year has announced the setting up of an Animation, Visuals, Gaming and Comics (AVGC) task force and an Inter-Ministerial Task Force on Gaming.
Certain State Governments have challenged the High Court decisions through Special Leave Petitions in the Supreme Court. When the Apex Court does eventually decide to look into these petitions, it could be reassessing its own decision, given by the Constitution Bench in the famous Chamarbaugwala cases.
Keywords: skill - chance - res extra commercium - ejusdem generis - locus standi - parens patriae
Climate Change, Emissions Liability, and Multinational Corporations: Notes from Friends of the Earth v Royal Dutch Shell
Pankhuri Gupta and Akshat Jha
Abstract
The recent decision of the Hague District Court in Friends of the Earth v Royal Dutch Shell marks the first instance where a duty was cast on a corporation to reduce its carbon emissions. Consequently, this decision is significant in the efforts to create a regime of corporate emissions liability. Little attention; however, has been spent on how this decision treats legal entities. In holding Royal Dutch Shell responsible for Shell subsidiaries' carbon emissions, and the manner in which this responsibility was imposed, the Court radically reconceptualised limited liability. A new enterprise liability regime was inaugurated, with a central focus on the legal entity which exercises decisive influence in creating climate change mitigation measures for the entire corporate group. This new regime assigns responsibility with the agent responsible for creating the emissions policies. It also substantially reduces the incentives of parent corporations to externalise costs. The Hague District Court's liability model is also extendable to the Indian context as it fits well with the historical Indian position with respect to corporate liability for environmental torts. In all, there is a case for this emissions liability model to be generally adopted.
Keywords: carbon emissions - enterprise liability regime - enterprise and subsidiaries - piercing the corporate veil
The Legality Requirement Vis-à-Vis Constitutional Rights
Shrutanjaya Bhardwaj
Abstract
Textually, some fundamental rights in the Indian Constitution can only be restricted 'by law' (the legality requirement), while others have no such requirement. This paper proceeds on the basis that this textual difference is material and, with that in mind, tries to identify what the legality requirement exactly means. Two possible meanings are discussed: the broader 'traceability' view, which only requires that the State action restricting the right be traceable to a statute, and the narrower 'contemplation' view, which would require something more. It is found that a 'traceability' requirement exists even independently of Part III of the Constitution; hence, if the legality requirement merely implied 'traceability', its presence in some provisions of Part III (and not in others) would be redundant. Therefore, this paper rejects the 'traceability' view. Adopting the 'contemplation' view, then, it is proposed that the legality requirement in Part III additionally requires that the law specifically empower the relevant authority to curtail the particular fundamental right in question ('specificity'), and that it must contain sufficient details guiding how and when the restriction may be placed ('guidance'). To conclude, a calibrated approach is proposed in determining if the law contains enough specificity and guidance, depending on the following factors: nature of the law, subject matter of the law, and the degree of invasion into the fundamental right in question.
Keywords: legality - lawfulness - provided by law - prescribed by law - constitutional rights - traceability - contemplation - specificity - guidance - degree of invasion - rule against redundancy
Identifying an Actionable Algorithmic Transparency Framework: A Comparative Analysis to Enhance Accountability of Social Media Platforms
Varun Ramdas
Abstract
Several harms have renewed interest in the responsibilities of social media platforms. However, policymakers face numerous challenges while they attempt to address these harms. One significant challenge is the creation of a framework to address harms arising from recommender algorithms deployed by social media platforms to manage content. 'Black box' algorithms are opaque and exacerbate harms like privacy concerns, user bias and discrimination, and arbitrary restrictions on free speech. Consequently, regulators demand algorithmic transparency and accountability from social media platforms. This paper contextualises the debate by discussing harms arising out of 'black box' recommender algorithms, their use by social media platforms, and consequent demands for more transparency and accountability. It then identifies and analyses three regulatory approaches to algorithmic transparency-namely, enactment of legal frameworks on algorithmic transparency; voluntary impact assessments and audits; and transparency through stack standardisation, and the drawbacks associated with them. It then highlights the want for an actionable framework that can guide regulators and platforms as they attempt to enhance algorithmic transparency. Finally, it suggests a graded approach that rationalises the benefits and concerns of all three approaches and harmonises regulation and innovation as the way forward.
Keywords: algorithmic transparency - accountability - Al - ML - social media platforms - black-box recommender algorithm