Volume 13(1) 2019 EDITORIAL BOARD Amani Ponnaganti (Editor-in-Chief) Medha Damojipurapu Nilav Banerjeee Parika Kamra Prateek Surisetti Patron-in-Chief Prof. Dr. Faizan Mustafa Faculty Advisor Assitant Professor Siddharth Chauhan Advisory Panel His Excellency Judge Abdul G. Koroma Prof. BS Chimni (Former Judge, The International Court (Chairperson, Centre for International of Justice) Legal Studies, JNU, New Delhi) Prof. Amita Dhanda Justice Dhananjay Chandrachud (Professor of Law and Academic Dean, (Judge, Supreme Court of India) NALSAR University of Law, Hyderabad) Mr. Arvind Narrain Mr. Somasekhar Sundaresan (Alternative Law Forum, Bangalore) (Advocate) This issue shall be cited as 2019(13)NSLR(1)<page no.> ISSN 0975 0216 The NALSAR Student Law Review is provided under the terms of the Creative Commons Attribution-Non Commercial – Share Alike 2.0 Public License. The License is available at <http://creativecommons.org/licenses/by-nc-sa/2.0.>. Subject to the above mentioned license, the NALSAR Student Law Review is protected by the Indian Copyright Act, 1957 and/or other applicable law. Any use of the work in violation of the above mentioned license and copyright law is prohibited. The opinions expressed in this review are those of the authors. Volume 13(1) 2019 Contents Editorial i Articles Obscenity and the Depiction of Women in Pornography: Siddharth S. 1 Revisiting the Kamlesh Vaswani Petition Aatreya A Gamble of Laws: Reconciling the Conflicting Naman Lohiya & 27 Jurisprudence on Gambling Laws in India Sakshi Pawar Section 434(1) (a) of Companies Act, 2013: A Conundrum of Retrospective Application on Pending Petitions Ankit Sharma & 51 Transferred from the Company Law Board to the National Himanshu Pabreja Company Law Tribunal The Rationalisation of Third Party Rights Under the Law of Paridhi Poddar 74 Undisclosed Agency A Principled Enquiry into the Waiver of Annulment Harshad 100 Proceedings Essay Can User Rights Under Section 52 of the Indian Copyright Anupriya 117 Act Be Contractually Waived? Dhonchak Case Comment Carpenter v. United States: State Surveillance and Citizen Nehaa Chaudhari 129 Privacy & Smitha Krishna Prasad EDITORIAL We are proud to present Volume 13(1) of the NALSAR Student Law Review (NSLR), the flagship journal of NALSAR University of Law, Hyderabad. At the outset, we owe immense gratitude to our authors, whose contributions make our journal possible, and our peer reviewers, who volunteer their time and efforts to help us assess articles and whose invaluable insights enhance the quality of the pieces. Hoping to bring more rigorous scholarship and diverse perspectives, for the first time, this edition features articles from non- student as well as student authors. This issue includes a range of pieces, spanning diverse fields including constitutional law, contract law and intellectual property law. The first article, “Obscenity and the Depiction of Women in Pornography: Revisiting the Kamlesh Vaswani Petition” by Siddharth S Aatreya, explores the arguments of the 2013 petition filed before the Supreme Court of India argued for a ban on pornography to tackle sexual violence and objectification of women. The paper undertakes a comparative analysis of obscenity jurisprudence and draws from feminist theory to argue that Indian courts should shift to a Canadian-style harms approach which could address the harms associated with pornography without unreasonably restraining free speech. Naman Lohiya and Sakshi Pawar examine the legal framework regulating gambling and betting in India in “A Gamble of Laws: Reconciling the Conflicting Jurisprudence on Gambling Laws in India.” In the context of the Telangana Ordinance & Amendment Bill, which outlaws gambling on games of both chance and skill thus differing from the Supreme Court jurisprudence which only restricts gambling and betting on games of chance, the paper identifies policy issues that need to be settled at the central level. Further, the paper also questions the constitutionality of restrictions imposed by states on gambling on games of mere skill. In “Section 434(1) (a) of Companies Act, 2013: A Conundrum of Retrospective Application of Companies Act, 2013 on Pending Petitions Transferred from Company Law Board to National Company Law Tribunal,” Himanshu Pabreja considers the conflicting jurisprudence from the National Company Law Tribunal and National Company Law Appellate Tribunal on the question of the law applicable to petitions transferred to these bodies after the enactment of the Companies Act, 2013. i Paridhi Poddar makes a thoughtful case for reforming the Indian contract law on undisclosed agency relationships in “The Rationalisation of Third Party Rights Under the Law of Undisclosed Agency.” The paper critically analyses certain exceptions evolved by courts which limit the right vested in third parties by common law to hold an undisclosed principal liable for contracts made by their agent. The paper compares the Indian position to English and American common law, advocating for the need to correct the balance between the rights of the third parties and that of the undisclosed principal needs to make the law more equitable, given that the secrecy inherent in the law of undisclosed agency endorses favours the principal and his agent rather than the third party. Delving into arbitration law, Harshad’s “A Principled Enquiry into the Waiver of Annulment Proceedings” considers the question of whether parties to an arbitration agreement should be permitted to waive their right to annul an arbitral award. While such waivers may ostensibly seem to make arbitration a more attractive option to litigants, the paper highlights the drawbacks of annulment. To this end, the paper considers the role of annulment proceedings in the overall arbitral process and the implications of waiving them based on principles of arbitrability, which determines which disputes may be settled by arbitration, and compétence-compétence, which gives the power to an arbitral tribunal to rule on its own jurisdiction, including objections to the existence or validity of the arbitration agreement. On a similar question in a different area of law, Anupriya Dhonchak considers the enforceability of contracts restricting user rights under the Indian Copyright Act, 1957 in her essay “Can User Rights Under Section 52 of the Indian Copyright Act Be Contractually Waived?.” Dhonchak argues that user rights under copyright law are statutory rights based on public interest which cannot be contractually waived off. The essay discusses the enforceability of contractual waivers of user rights by delving into the purposes of free speech, copyright and the exceptions to it. It also discusses the relevance of the case law on unfairness in adhesion contracts, those which are offered on a "take it or leave it" basis characterised by onerous terms and inequality of bargaining power between parties. Finally, Nehaa Chaudhari and Smitha Krishna Prasad’s case comment on Timothy Ivory Carpenter, Petitioner v. United States, where the Supreme Court of the United States held that government access of mobile phone records is limited by a reasonable expectation of privacy, offers a timely comparative perspective in the aftermath of the Puttaswamy ii judgement, in which the Indian Supreme Court held that the right to privacy was a part of the right to life under the Indian Constitution. Chaudhari and Prasad reflect on Carpenter in light of the possibility of near perfect State surveillance through mobile phone tracking, arguing there is a need for adequate safeguards to protect citizens’ right to privacy. iii OBSCENITY AND THE DEPICTION OF WOMEN IN PORNOGRAPHY: REVISITING THE KAMLESH VASWANI PETITION Siddharth S Aatreya* ABSTRACT India is widely regarded as one of the most unsafe countries in the world for women. Legislative efforts of increasing punishments for acts of sexual misconduct have had limited success in tackling this problem. Consequently, Kamlesh Vaswani’s 2013 petition before the Supreme Court of India argued that a ban on pornography would attack the root of the problem – a culture that has normalized sexual violence and objectification of women. While the petition’s prayer of seeking a ban on access to all pornography in India has faced wide criticism, this paper proposes a framework to address the harms accruing to women within the contours of the Indian Constitution. In doing so, it will locate these harms in Catharine Mackinnon’s work, and then argue that a shift in India’s approach to obscenity from an American-style offense to community standards approach to a Canadian-style objective harms approach is both possible under the Indian Constitutional scheme and would address these harms without creating an unreasonable restraint on free speech. * Siddharth S Aatreya is a 5th year B.A.LL.B. (Hons.) student at the National Law School of India University, Bengaluru. He may be contacted at [email protected]. 1 TABLE OF CONTENTS I. INTRODUCTION ..................................................................................................................... 2 II. HISTORICAL DEVELOPMENT OF OBSCENITY .................................................................. 4 III. THE AMERICAN OFFENSE APPROACH .............................................................................. 5 A. THE MODERN AMERICAN POSITION ON OBSCENITY ................................................................ 5 B. OFFENCE AND COMMUNITY STANDARDS ...............................................................................