Papers by Debadyuti Banerjee
The legislative and executive efforts have been notable over the past two decades towards includi... more The legislative and executive efforts have been notable over the past two decades towards including the Principles of Environmental Protection in the Legal Jurisprudence in India
Terrorism is certainly not a very modern phenomena but it has achieved intrepid and devastative s... more Terrorism is certainly not a very modern phenomena but it has achieved intrepid and devastative status since the September 11 attacks on the Twin Towers in the United States of America. Since then countries including USA and the UK among others have increasingly taken resort to the right of pre-emptive self-defence in order to augment the security of their citizens and property. This right to pre-emptive self-defence is a double edged sword and as a tool to fight the so-called war against terrorism it must be used cautiously, if not sparingly. To understand fully the need for the existence of this right in contemporary times, it is necessary to turn back to the annals of the past to look at the history and development of the said right and how far has modern usage of this right been in conformity with the traditional boundaries of the concept. An in-depth analysis of the American National Security Strategy along with state actions emanating from different countries through the years will provide valuable insight into the advantages and disadvantages of this right. It is proposed that recourse to the Security Council would be rather preferable than the broadening the definition of pre-emptive self-defence.
Today’s world is no stranger to corporate vehicles being strategically used to alter the fiscal n... more Today’s world is no stranger to corporate vehicles being strategically used to alter the fiscal nature of the transaction in an attempt to evade taxes. The discourses on this contentious issue has gained considerable momentum ever since the Vodafone Tax controversy came into prominence, over a high profile deal, where Hutchison Essar India’s stakes were sold to Vodafone through an alleged vehicle set up in Mauritius in the form of an investment company. The decision of the Indian Revenue Administration to levy tax on the ground of gain from the sale of capital assets under Section 9 of the Income Tax Act, 1961 sparked intense debates as to whether the tax net shall be attracted in such cases. The matter at present appears to be heading towards a long and winding path of complex litigations as both procedural and substantive issues have come to the forefront in the wake of this controversy—the major debatable point being the legitimacy of eye-wash mechanisms being employed in tax havens to facilitate the transactions. Such a conduit or paper company merely enjoys a formal existence and is in no way connected with the real market where the substantial part of the business happens. If such tendencies are encouraged, the tax havens and the Double Tax Avoidance Agreements (DTAA’s) are bound to be subject to rampant misuse. Moving away from the capital transactions to the realm of short term investments routed through the Foreign Institutional Investors (FII’s), the problem surfaces yet again. Due to the inadequacy of the tracking mechanisms of Securities Exchange Board of India (SEBI), the incidence of unaccounted money pouring into the Indian market has increased at an alarming rate. The true identity of the real investor often remains veiled and this creates serious impediments for the revenue authorities to carry out a proper assessment. The transfer pricing provisions inducted into the Income Tax Act, 1961 as a separate chapter for nearly a decade now, lacks sufficient teeth to empower the Transfer Pricing Officer (TPO) to correctly assess the nature of the transaction or transacting parties to ascertain whether the parties can be deemed to be operating at arm’s length and accordingly compute the income there from. In most cases the process has been reduced to a mechanical exercise and procedural flaws continue to plague the whole system of reference to the TPO by the Assessing Officer (AO). The proposed paper seeks to analyze the prospects of allowing the continuance of such evasive practices within the Indian legal framework itself, especially since India is gearing up to be counted amongst the top five economies of the world. It therefore becomes pertinent for the purpose of this research to scrutinize these areas of concern in light of relevant international developments and in the process conceptualize an effective remedial mechanism for the same.
An in-depth discourse in this regard would necessarily involve some time being spent on expositing the definition and associated workings of tax havens.
One of the latest technologies to create a controversy is Google Earth, Google’s Satellite Imagin... more One of the latest technologies to create a controversy is Google Earth, Google’s Satellite Imaging technology. It is a useful educational, entertainment and navigational tool, but countries like Australia, China, India, etc have expressed concern about privacy and surveillance issues especially in the context of increased terrorism and state secrets being exposed to the general populace. Developed countries like the USA, UK and other European countries have not until now shown any interest in stringent action against Google as the current level of technology does not cause great concern as to what it does and where that technology is going. The option open to aggrieved nations are either to approach the US Government to ask its regulators to crack down or approach the United Nations on the basis of the Principles Relating to Remote Sensing adopted in 1986, which states that space imagery “shall not be conducted in such a manner detrimental to the legitimate rights and interests of the sensed [satellite scanned] state”. A number of legal issues would arise regarding at what point geospatial information becomes personal information. In this light, this paper would analyze how far a technology of the calibre of Google Earth can affect the lives and liberties of an ordinary citizen. Though cases like Alan Boring v. Google, Smith v. Abandoned Ship, Kiryat Yam v. Google have been filed, they have not been very definitive in the arena. So the author will look at the principles of Tort law like Trespass (Hinman v. Pacific Air Transport), Nuisance (Brandes v. Mitterling), Strict Products Liability for inaccuracies in the program (Brocklesby v. United States) and Intellectual Property Rights (Skyline Software Systems, Inc. v. Keyhole, Inc.) to analyze probable issues and suggest plausible solutions to this conundrum within the existing international legal framework. In doing so, the doctrinal method shall be used and the author will study the various case laws, documents and state reactions to formulate the answers to the issues raised in this paper.
Abortion laws originated in the United Kingdom as early as 1803, but the credit for revolutionizi... more Abortion laws originated in the United Kingdom as early as 1803, but the credit for revolutionizing abortion laws and recognizing the inherent, perhaps inextricable right and liberty of women over their bodies can only be given to the United States - more specifically to the American judiciary. From as early as Roe v. Wade, the American judiciary has been reiterating the inherent right of a woman as a constitutional person, to terminate her pregnancy in the earlier stages and thereafter giving the State a role to play, hence making abortion legal for the first time in the Unites States in 1973. Even though senators and other policy-makers in several, if not all, states of the United States have tried to whittle down the basic premise of Roe v. Wade, it has been emphatically upheld in subsequent cases. After more than thirty years of the pro-abortion movement in the West taking firm root, anti-abortion groups have again taken a radical stand by trying to control abortions through the introduction of the Unborn Child Pain Awareness Bill, 2005 (commonly known as Fetal Pain Legislation) and as many as twenty-three states in the USA have passed it to be an Act, which would require that abortionists disclose to women the reality that killing an unborn baby by abortion causes pain to the child. It would also require that women who were pregnant for more than twenty weeks be given the choice of adopting anesthesia for their fetuses. Interestingly this move by the legislature was said to find its basis in the judgment of Gonzales v. Carhart where the Supreme Court held that the federal legislation banning partial-birth abortion was constitutional on its face. The issue of fetal pain arose amidst the partial-birth abortion debate. Supporters of the federal legislation argued that partial-birth abortion was excruciatingly painful for the fetus and that banning this abortion procedure would further the state’s legitimate interest in protecting the unborn child. Opponents of the federal ban argued that there was no conclusive scientific evidence to support the hypothesis that a fetus is even capable of feeling pain. As a result of this partial-birth abortion controversy, legislations aimed at acknowledging and assuaging fetal pain during abortion came into being.
In India, the debate on abortion laws as embodied in the Medical Termination of Pregnancy Act, 1971 has been swirling since the Bombay High Court’s decision in Dr. Nikhil Dattar & Ors. v. Union of India, where the Court by a strict interpretation of the provisions in the statute, refused to give a lady pregnant with a malformed fetus the right to abort since she was already in her twenty-fourth week of pregnancy. Since then there have been urgent calls to amend the statute as long-standing criticisms of the policy have been brought to the forefront again. It has become critical at this juncture to look at the development of abortion law and policies in the West, particularly in the United States, to gauge where India stands at this moment and whether, if at all, India should be inspired by the western counterpoint or should take caution from the developments therein to further its own interests in striking the perfect balance between liberty, autonomy and freedom of the individual on the one hand and the State’s right to interfere, on the other.
The Hindi film ‘3 Idiots’ which released in 2009 has achieved that dubious distinction of having ... more The Hindi film ‘3 Idiots’ which released in 2009 has achieved that dubious distinction of having attracted the attention of legal academia because of the public war of words between the film’s makers on the one hand, and the novelist from whose novel the movie derives considerable inspiration on the other. The genesis of the dispute was in the novelist, Chetan Bhagat’s contention that the Production House, namely Vidhu Vinod Chopra Productions, had adapted the content of his novel to an extent far greater, and in a manner far more direct, than what he had been led to believe by way of the Agreement arrived at between them. Another allegation directed against the Production House was concerning the inadequacy of credits acknowledged to the Author by way of the said Agreement. The paper addresses the above issues under two distinct heads, namely the contractual liabilities and those pertaining to the intellectual property rights. It tries to suggest some remedial steps which could be taken by novelists in similar situations in addition to steps which could be taken by the State to give better protection to such vulnerable parties in the future.
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Papers by Debadyuti Banerjee
An in-depth discourse in this regard would necessarily involve some time being spent on expositing the definition and associated workings of tax havens.
In India, the debate on abortion laws as embodied in the Medical Termination of Pregnancy Act, 1971 has been swirling since the Bombay High Court’s decision in Dr. Nikhil Dattar & Ors. v. Union of India, where the Court by a strict interpretation of the provisions in the statute, refused to give a lady pregnant with a malformed fetus the right to abort since she was already in her twenty-fourth week of pregnancy. Since then there have been urgent calls to amend the statute as long-standing criticisms of the policy have been brought to the forefront again. It has become critical at this juncture to look at the development of abortion law and policies in the West, particularly in the United States, to gauge where India stands at this moment and whether, if at all, India should be inspired by the western counterpoint or should take caution from the developments therein to further its own interests in striking the perfect balance between liberty, autonomy and freedom of the individual on the one hand and the State’s right to interfere, on the other.
An in-depth discourse in this regard would necessarily involve some time being spent on expositing the definition and associated workings of tax havens.
In India, the debate on abortion laws as embodied in the Medical Termination of Pregnancy Act, 1971 has been swirling since the Bombay High Court’s decision in Dr. Nikhil Dattar & Ors. v. Union of India, where the Court by a strict interpretation of the provisions in the statute, refused to give a lady pregnant with a malformed fetus the right to abort since she was already in her twenty-fourth week of pregnancy. Since then there have been urgent calls to amend the statute as long-standing criticisms of the policy have been brought to the forefront again. It has become critical at this juncture to look at the development of abortion law and policies in the West, particularly in the United States, to gauge where India stands at this moment and whether, if at all, India should be inspired by the western counterpoint or should take caution from the developments therein to further its own interests in striking the perfect balance between liberty, autonomy and freedom of the individual on the one hand and the State’s right to interfere, on the other.