Volume 1, Number 1 June - December, 2018 NLU Nagpur Contemporary Law NAGPUR and Policy Review Vijender Kumar and Vidhi Singh Extinguishing Hindu Joint Family and Mitakshara Coparcenary: A Critique Chitresh Baheti Imminence of a Cyber Attack vis- à -vis Anticipatory Self-Defence Nikita Samarnath Legal Truth of Rape in India and the Questions it Raises Palada Dharma Teja and Rohitesh Tak Reinforcing India's Commitment to International Humanitarian Law- A Case for Ratification of Additional Protocols to Geneva Conventions Sholab Arora Puttaswamy: Privacy and Decisional Autonomy Arpit Jain and Anisha Agarwal Creditors, at Last! An Analysis of the Legal Position of Homebuyers Vaibhav Latiyan An Analysis of Maternity Benefit (Amendment) Act, 2017 and the Exploration of Paternity Leave Aman Srivastava Cinema in India: A Critical Analysis of Grant or Refusal of Certificate CLPR Contemporary Law and Policy Review Volume 1, Number I 2018 Hon'ble Shri Justice S.A. Bobde Prof. (Dr.) Vijender Kumar Judge, Supreme Court of India and Vice-Chancellor Chancellor, MNLU, Nagpur MNLU, Nagpur Patron Editorial Advisory Board Student Editorial Board Hon'ble Justice A.K. Sikri Advaya Hari Singh Judge, Supreme Court of India [email protected] Hon’ble Justice U.U. Lalit Astha Pandey Judge, Supreme Court of India [email protected] Shri Mukul Rohatgi Avani Dubey Former Attorney General of India and [email protected] Senior Advocate, Supreme Court of India Diksha Dubey Shri Mahesh Jethmalani [email protected] Senior Advocate, Supreme Court of India Ravi Sharma Prof. (Dr.) Paramjit S. Jaswal [email protected] Vice-Chancellor, RGNUL, Punjab Prof. (Dr.) V. Vijayakumar Cover Design Director, NLIU, Bhopal Aman Bahl Faculty Editorial Board Prof. (Dr.) V.P. Tiwari Associate Professor [email protected] Prof. (Dr.) Madhukar Sharma Assistant Professor [email protected] Prof. Shreya Mishra Assistant Professor [email protected] Note to Contributors: Manuscripts, Editorial correspondence and Style-sheet requisitions should be addressed to the Editors, Contemporary Law and Policy Review (CLPR), The Maharashtra National Law University Nagpur, Moraj Design and Decorator (DnD) Building, Near Oil Depot, MIHAN flyover, Wardha road, Khapri, Nagpur-441108, Maharashtra, India, for soft material use E-mail : [email protected]; [email protected] Price Rs. 300/- (Rupees three hundred) or US $ 50 (Fifty) Mode of Citation : 1CLPR2018<Page No.> Copyright © 2018 Contemporary Law and Policy Review (CLPR). Any reproduction and publication of the material from the text without the prior permission of the publisher is punishable under the Copyright Law. Disclaimer: The views expressed by the contributors are personal and do not in any way represent the opinion of the University. TABLE OF CONTENTS Message from the Patron iii Editorial Note v Extinguishing Hindu Joint Family and Vijender Kumar and 01 Mitakshara Coparcenary: A Critique Vidhi Singh Imminence of a Cyber Attack vis- à -vis Chitresh Baheti 25 Anticipatory Self-Defence Legal Truth of Rape in India and the Nikita Samarnath 39 Questions it Raises Reinforcing India’s Commitment to Palada Dharma Teja 51 International Humanitarian Law- A Case for and Rohitesh Tak Ratification of Additional Protocols to Geneva Conventions Puttaswamy: Privacy and Decisional Sholab Arora 63 Autonomy Creditors, at Last! Arpit Jain and Anisha 77 An Analysis of the Legal Position of Agarwal Homebuyers An Analysis of Maternity Benefit Vaibhav Latiyan 87 (Amendment) Act, 2017 and the Exploration of Paternity Leave Cinema in India: A Critical Analysis of Grant Aman Srivastava 101 or Refusal of Certificate i ii MESSAGE FROM THE PATRON It gives me a sense of great pride and privilege in bringing to you the maiden issue of the Contemporary Law and Policy Review (CLPR), a student-edited, blind peer-reviewed, bi-annual Journal of Maharashtra National Law University, Nagpur. The Journal strives to promote quality and scholarly research on a wide range of contemporary issues that blend legal and social dimensions. The Journal endeavours to provide a platform to the students and scholars to delve into research on topics which warrant policymaking and academic deliberations. This first volume of CLPR in the hands of its readers is the outcome of sheer hard work and dedication of a competent and committed team of students, who have brought this Journal within a short span of time. The research articles/ papers published in the Journal bear testimony to the commitment of the University to disseminate qualitative research inputs from faculty, research scholars and law students across the country. The idea behind promoting this Journal is to acquaint future generations with quality editing and research based learning. Contributions in this Journal have been selected, edited, and compiled by a team of students under the guidance of faculty members. The Journal has undergone blind peer review by these students and the subject experts. I am happy to see professional skills and a sense of commitment among these students for taking up the herculean task of bringing out an academic Journal from a young law school. I wish to thank all the contributors to the Journal and wish that they continue their support in future as well. I also thank all the Hon’ble Members of the Advisory Board of the Journal. Bringing out this Journal would not have been possible without their constant support and advice. The faculty members of the University who guided the students on a regular basis also deserve my appreciation as they are the real mentors behind the success of the Journal. All the members of the Student Editorial team deserve appreciation for their tireless hard work put into the Journal. I wish them great success in their future endeavours and I am sure this Journal would be a significant source of information for the readers and would be a value addition to their library. (Vijender Kumar) Vice-Chancellor iii iv EDITORIAL NOTE This maiden issue of NLUN CLPR contains articles and notes on various contemporary issues, ranging across national and international scenarios. It is an eclectic mixture of opinions offering the readers an insight into both social and legal issues. This is an integrative issue containing articles concerning international law, constitutional law, family law, corporate and insolvency law, and legal theory. We hope that these pieces benefit the readers by providing a fresh perspective on issues and a starting point for further research. In ‘Extinguishing Hindu Joint Family and Mitakshara Coparcenary: A Critique’, Prof. (Dr.) Vijender Kumar and Vidhi Singh examine the concepts of the Mitakshara Coparcenary system and the Hindu Joint Family in the light of rules and law relating to testamentary and intestate succession, analysing Uttam v. Saubhag Singh (2016), and highlighting the various fallacies in the judgment. In ‘Imminence of a Cyber Attack vis-à-vis Anticipatory Self-Defence’, Chitresh Baheti analyses the technological aspects of theories in international law in determining the ‘imminence’ of cyber-attacks with respect to the cyber weapons used, and their utility in helping states in ascertaining the difference between peace, lawful warfare or illegitimate warfare. In ‘Legal Truth of Rape in India and the Questions it raises’, Nikita Samarnath delves into the idea of a ‘legal truth’, and how it helps in raising questions on the rape policy in India. The author examines different categorisations of sexual offences created by legal definitions and the issues involved in rape policy, concluding the paper by highlighting the necessity of a synergy between the law and other social sciences, while dealing with rape policy in India. In ‘Reinforcing India’s Commitment to International Humanitarian Law- A Case for Ratification of Additional Protocols to Geneva Conventions’, Palada Dharma Teja and Rohitesh Tak explore the reasons for India’s non- accession to the Additional Protocols of 1977 to the Geneva Conventions of 1949, and advocate for India’s ratification to the Additional Protocols for better compliance with its humanitarian obligations. They conclude by enunciating several important reservations relating to the sovereignty of State Parties and political legitimacy of non-State actors. In ‘Puttaswamy: Privacy and Decisional Autonomy’, Sholab Arora explores the impact of Justice K.S. Puttaswamy (Retd.) v. Union of India on v various legislation governing decisional autonomy in India after it was declared an intrinsic part of the fundamental right to privacy under Article 21 of the Constitution of India by the Supreme Court. In ‘Creditors at Last! An Analysis of the Legal Position of Homebuyers’, Arpit Jain and Anisha Agarwal analyse the changed position of homebuyers as creditors under the amendment to the Insolvency and Bankruptcy Code. They chronicle the legal position of the homebuyers prior to the amendment and further analyse the post-amendment position. The authors also highlight the various alternate legal remedies available to the homebuyers in cases of delayed possession by the developers. In ‘An Analysis of Maternity Benefit (Amendment) Act, 2017 and the Exploration of Paternity Leave’, Vaibhav Latiyan analyses the Maternity Benefit (Amendment) Act, 2017, by highlighting the various lacunae in the same. The author also discusses the concept of paternity leave and its necessity in India. In ‘Cinema in India: A Critical Analysis of Grant or Refusal of Certificate’, Aman Shrivastava analyses