Volume I Gnlus Tudent Law Review 2020
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VOLUME I GNLUS TUDENT LAW REVIEW 2020 GNLU Student Law Review The GNLU Student Law Review is the flagship student journal of Gujarat National Law University published by the Student Research Development Council (SRDC). The SLR is an annual, student-edited, double-blind peer- reviewed, online, open-access Journal. The GNLU Student Law Review is open to academics, scholars, practitioners and students. The GNLU Student Law Reviews focus is primarily on Indian law. The GNLU Student Law Review encourages comparative law and international law research, but the same must be related to Indian legal developments and challenges. The GNLU Student Law Review also promotes an interdisciplinary approach to research in law. Copyright The manuscripts published by the GNLU Student Law Review are the Intellectual Property of the Review. However, the use of published material is not prohibited for non-commercial purposes. Proper acknowledgement and intimation to the Editorial Board of the GNLU Student Law Review is required and will be highly appreciated. Disclaimer The views expressed in the articles, comments and all other contributions in any other form to the GNLU Student Law Review are those of the individual author(s) and do not depict the views of the Editorial Board of the GNLU Student Law Review. The author(s) by submitting any contribution towards the GNLU Student Law Review agree to indemnify Gujarat National Law University, GNLU Student Research Development Council and the GNLU Student Law Review from and against all claims, suits, and damages based on any claim of copyright infringement or plagiarism or unauthorized use Any further clarification and queries may be direct to the Editorial Board, via E-mail at: [email protected] . ii VOLUME I GNLUS TUDENT LAW REVIEW 2020 ADVISORY BOARD Mr. Aradhya Sethia, MPhil Candidate, University of Oxford Dr. Arun Sagar, Associate Professor of Law, Jindal Global Law School Dr. Mohsin Alam Bhat, Assistant Professor of Law, Jindal Global Law School Prof. Ratna Kapur, Professor of International Law, Queen Mary University of London Dr. Surabhi Ranganathan, Senior Lecturer, University of Cambridge Faculty Advisors Prof. (Dr.) Ranita Nagar, Professor of Economics Dr. William Nunes, Associate Professor of Political Science iii VOLUME I GNLUS TUDENT LAW REVIEW 2020 iv VOLUME I GNLUS TUDENT LAW REVIEW 2020 EDITORIAL BOARD Editor-in-Chief Zaid Deva Managing Editor Dept. Managing Editor Senior Editor Shantanu Singh Raghav Bhargava Dhruval Singh Assistant Editors Ashwani Kumar Singh Raghav Kohli Rishbha Arora Ojaswa Pathak Rhea Sampat Soham Munshi Copy Editors Sayan Chandra Madhav Agarwal Pranay Jalan Keertana Venkatesh Nalin Malhotra Rishab Aggarwal Yashika Sachdeva Cover Design Shivam Kaith v VOLUME I GNLUS TUDENT LAW REVIEW 2020 vi VOLUME I GNLUS TUDENT LAW REVIEW 2020 CONTENTS EDITORIAL NOTE ..........................................................................................................ix AN ARGUMENT FOR ESTABLISHMENT OF INSTITUTIONALISED ARBITRATION IN INDIAN SPORTS DISPUTE RESOLUTION MECHANISM ....13 -Aman Gupta and Ashutosh P. Shukla ................................................................................ IS FAMILY LAW TEACHING IN INDIA PREJUDICED ?..........................................54 - Dr. Sameena Dalwai and Meenakshi Ramkumar ................................................................. NON -A CCOUNTABILITY IN THE GARB OF FREEDOM ?....................................85 -Kartikey Sanjeev Bhalotia & Shaivi Nihal Shah ................................................................... ADOPTION OF POLLUTER PAYS PRINCIPLE BY THE INDIAN SUPREME COURT FOR DELIVERY OF ENVIRONMENTAL JUSTICE ...................................117 - Arup Poddar ......................................................................................................................... DESCENDING FROM THE DISSENT : W ALKING THROUGH JUSTICE MALHOTRA S VERDICT WITH HER PEERS ............................................................142 - Rahul Mohan ........................................................................................................................ vii VOLUME I GNLUS TUDENT LAW REVIEW 2020 viii VOLUME I GNLUS TUDENT LAW REVIEW 2020 EDITORIAL NOTE Oh the beginning of work! Pouring oil Into the cold machine. First touch and first hum Of the engine springing to life! And first drag Of smoke filling the lungs! And you too New thought! - Bertolt Brecht, On the Joy of Beginning The GNLU Student Law Review ( Review ) is Gujarat National Law Universitys flagship student-run journal. The Review is student-edited, published annually and is a product of a double-blind peer-review. It is available online and follows an open-access model. With this being the first volume of the Review, some timely remarks would not be out of order. The Reviews beginnings mark a defined departure from the erstwhile publication culture at GNLU. It is an academic endeavor that benefits solely from student mind and student effort. The level of responsibility, academic freedom and possibilities that this achievement attracts are endless. Prior to the formalization of the Student Research Development Council ( SRDC ) and the subsequent creation of the Review, the prospects of student-led research were sparse and individualistic if not wholly minimal. It is due to this that a separate sense of responsibility is also attached in this departure from the erstwhile culture. To depart is to also suppose that a course has been charted or a destination determined. The aim of this departure, these efforts certainly with the creation of the Review is to foster a culture that focuses on improving research acumen at the University and promote research that not only focuses on law but also adopts an interdisciplinary approach. The Reviews publication is also unmistakably situated : it comes at a time when the sustained resurgence of populism in the country has to risk, as ix VOLUME I GNLUS TUDENT LAW REVIEW 2020 they are, a premature eschatological claim met its other . The state of a quasi-permanent mobilization 1 which brought about their ascent to power not once but now twice, faces the elected populists in the form of protests across the country. In response and in order sustain its appeal, populism in the country has quite predictably mutated into a sort of thick populism 2: which imagines the people homogeneously, while whipping up vertical , anti-elitist sentiments and arousing horizontal , exclusionary ideals. The expression of this thick populism is by no means mere political rhetoric: it is exacted, expressed and exercised in the legal form. The consequences of this sort of politics have harmed our people in the past and any failure to learn from such failings ought to bear heavy on the minds of those who write in these times. With these aforesaid remarks and many unsaid ones, we introduce the first volume of the Review. Among the Articles , Aman Gupta & Ashutosh P. Shukla in An argument for Establishment of Institutionalized Arbitration in Indian Sports Dispute Resolution Mechanism explore the idea of adopting arbitration as a means to settle disputes in sports in India. The authors examine how such practices have been implemented across various jurisdictions and then go on to dwell upon the scenario in India and its prospects. By critically evaluating the stance of various courts across the country, the article puts forth the need for the establishment of institutionalized arbitration for settling disputes in matters related to sports. Following suit among the Articles , Dr. Sameena Dalwai & Meenakshi Ramkumar analyze an interesting proposition: Is Family Law Teaching in India Prejudiced? . In it, they discuss facets of the Family Law-I course that is taught in law schools across the country. The authors engage with the cases and material that constitute the core of contemporary Family Law 1 Christopher Jafferlot & Lille Tillin, Populism in India in Cristóbal Rovira Kaltwasser et al. (eds) T HE OXFORD HANDBOOK OF POPULISM 179, 187 (Oxford University Press, 2017). 2 Cf. Jan Jagers & Stefaan Walgrave, Populism as a political communication style: An empirical study of political parties discourse in Belgium , 46 E UR . J. P OL . R ES . 319, 323-324 (2007) (conceptualizing thick populism as being constituted by vertical anti-elitism and horizontal exclusion) x VOLUME I GNLUS TUDENT LAW REVIEW 2020 course modules. The authors analyze various sub-elements such as cruelty, caste, harassment, amongst others and the way these aspects are taught and how perceptions regarding them are changing. They invoke the concept of constitutional morality as elucidated by the Indian courts and how Family Law-I must be taught in interplay with it. This Article forms a crucial piece of work at a time when the discourse around equality and women empowerment is taking a new dimension. Thereafter, among the Essays , Kartikey Bhalotia & Shaivi Shah pen their thoughts on a contemporary issue in Non-Accountability in the garb of Freedom by turning our attention towards the accountability of the judiciary. The authors examine a plethora of factors which, directly or indirectly, affect judicial independence and reason how these factors have ultimately led to a status of non-accountability. They sift through a host of Supreme Court decision to substantiate their argument and put forth a two-fold resolution plan through which the judiciary may be held accountable in a responsible manner without compromising their independence. Next