Rethinking Legal Frameworks: Contemporary Challenges and Future Directions

Rethinking Legal Frameworks Contemporary Challenges and Future Directions Dr. Ankita Kumar Gupta Dr. Gunjan Ahuja Copyright © Dr. Ankita Kumar Gupta and Dr. Gunjan Ahuja, 2025 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, recording or otherwise, without the prior written permission of the author. This book has been published with all reasonable efforts taken to make the material error-free after the consent of the author. The author of this book is solely responsible and liable for its content including but not limited to the views, representations, descriptions, statements, information, opinions and references [“Content”]. The publisher does not endorse or approve the Content of this book or guarantee the reliability, accuracy or completeness of the Content published herein. The publisher and the author make no representations or warranties of any kind with respect to this book or its contents. The author and the publisher disclaim all such representations and warranties, including for example warranties of merchantability and educational or medical advice for a particular purpose. In addition, the author and the publisher do not represent or warrant that the information accessible via this book is accurate, complete or current. Paperback ISBN: 978-93-6926-499-5 First Published in September 2025 Published by Walnut Publication (an imprint of Vyusta Platforms Private Limited) www.walnutpublication.com India Unit# 909, 9th Floor, Wave Silver Tower, Sector-18, Noida - 201301 UK 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ, UK Distributed by i Author’s Bio Dr. Rajat Banerjee Dr. Rajat Banerjee is currently working as an Associate Professor, Law in Alliance School of Law, Alliance University, Bengaluru, India. He has more than 18 years of work experience, including that in teaching and research. He has a few research publications, including publications in Scopus-indexed journals. His areas of research interest include environmental law, comparative constitutional law, public law and policy, IPR, human rights, law and technology, etc. He can be reached at [email protected], [email protected]om. Dr. R. J. Mukama Dr. Rosemary Jotham Mukama is a Lecturer at the Faculty of Law, Mzumbe University, Tanzania. She is specialised in Finance & Banking Law and published widely in this area of law. However, being a practising Senior Advocate, Notary Public and Commissioner for Oaths, her research interest has expanded to Criminal Law and Human Rights Law. She had notable publications in areas of Criminal Law, and Human Rights Law centred on International Criminal Law, Sextortion, and Multiparty Elections. She can be reached at: [email protected], https://orcid.org/0000-0001-8274-5062. Hamisi Selemani Yange Mr. Hamisi Selemani Yange is an Assistant Lecturer at the Faculty of Law, Mzumbe University, Tanzania. He holds a Master of Laws in Taxation. His teaching and research interests include International Taxation Law, Business Associations, Criminal Law, and Human Rights Law. Mr. Yange has taught at both Mzumbe University and Dar es Salaam Tumaini University. He is passionate about legal research and academic mentorship. He can be reached at [email protected], https://orcid.org/0009-0002-8767-9468. Dr. Lokesh Chauhan Dr. Lokesh Chauhan is an Assistant Professor at the School of Law, Sanskaram University, Jhajjar, Haryana. He holds a Ph.D. from G.D. Goenka University and an LL.M. in Human Rights from the National Law School of India University, Bangalore. He has authored 12 research papers in Scopus, Web of Science, and UGC-CARE-listed journals, along with two edited books and several book chapters. Dr. Lokesh Chauhan has presented over 11 papers at national and international conferences and seminars, earning accolades including a Best Paper Presentation Award (2024). His academic work focuses on family law, human rights, criminal law, and gender justice, with a strong emphasis on advocating gender-neutral legal reforms. He can be reached at [email protected]. Priyam R Sharma Priyam Ramesh Sharma is at present working as Assistant Professor at Department of Law, Savitribai Phule Pune University. His research is in the field of constitutional law, digital rights, public policy, and law and technology. He has authored a research article on the Right to Education Act in Yashwantrao ii Chavan Law College law journal, he has a paper on the delimitation of the parliamentary constituencies presented in Rajiv Gandhi National University of Law (RGNLU), Punjab. He undertakes interdisciplinary research and teaching in the law field. Academic correspondence and collaboration can be done with him by emailing him at [email protected]. Neha Bhuraney Ms Neha Bhuraney is an Assistant Professor at the Faculty of Law, GLS University, Ahmedabad. She specializes in family law, intellectual property rights, and the intersection of law and digital economies. Her research focuses on prenuptial agreements, particularly within influencer culture and transnational contexts. A doctoral scholar at Gujarat National Law University, she has published extensively in peerreviewed and indexed journals, including Cahiers Magellanes-NS and African Journal of Biological Science. She also coordinates the Legal Aid and Gender Law Clinics at GLS. She can be reached at [email protected] for academic correspondence and collaborations. Prithvi K G. Mr. Prithvi K G is an Assistant Professor at School of Law, SVKM’s NMIMS University, Bangalore. He holds an LL.M. in Constitutional and Administrative Law from DSNLU, Visakhapatnam. He has authored multiple peer-reviewed publications addressing critical legal themes, including tribal rights, constitutional conventions, police accountability and state-religion dynamics. He has also judged National moot competitions and contributed to editorial boards of legal journals. He has recently coauthored a book titled ‘Handbook on the International Bill of Rights’. He can be reached at [email protected]. Nehal Ahmad Mr. Nehal Ahmad is an Assistant Professor at the School of Law, Woxsen University, Hyderabad, India. He is an alumnus of Aligarh Muslim University and the National Law School of India University, Bangalore. He qualified Junior Research Fellowship (JRF) in Law. His research papers are published in leading Scopus-indexed journals of the world, including the Manchester Journal of Transnational Islamic Law & Practice and the Legal Transformation in Muslim Societies, UK. His book chapters are published by Routledge, Taylor & Francis. He was awarded the Best Researcher Annual Award 2025, Best Faculty Award 2025, Woxstar Award 2025, and Best Presenter Award 2025. He presented his research papers at numerous international conferences in India and abroad. His area of expertise encompasses Law & AI, Data Protection, Family Law, Legal Theory, IPR, and Public Policy. Nishtha Nishtha is currently working as an Assistant Professor of Law at Gitarattan International Business School, Delhi, where she teaches subjects including Constitutional Law, Family Law, and Procedural Laws. She is pursuing her Ph.D. in Law from Jayoti Vidyapeeth Women’s University, Jaipur, with a research focus on gender neutrality in domestic violence laws. Her areas of interest include Constitutional Law, Gender Justice, and Digital Rights. She has authored the book Sand Mining Laws in iii India and published several research papers and book chapters on contemporary legal issues. For correspondence, she can be reached at [email protected]. Sital Baa Ms. Sital Baa is a Master of Philosophy (MPhil) in Sociology from Jawaharlal Nehru University (JNU) and is currently a Ph.D. scholar in Social Development at the Philippine Women’s University. Throughout the academic career, she had the privilege of engaging in research and coursework that critically examines the intersection of social structures, development and policy. Currently, as a PhD candidate she is refining her research on gender and social development, which delves into micro credits. This ongoing research is particularly concerned with the role of gender, social equity, policy, community empowerment, in shaping development practices across marginalized communities. Ms Baa had also been involved in teaching and mentoring students during her time at Jesus and Mary College where she had the opportunity to design and teach courses on BA Honors Sociology course. Furthermore, she has contributed to various research projects and presented her findings at several academic conferences. She can be reached at [email protected], doc[email protected]. Vaibhav Yadav Vaibhav Yadav is currently working as a Teaching and Research Associate (Law) at Gujarat National Law University. He holds an LL.M. with a specialization in Constitutional and Administrative Law, an LL.B., and a B.A. (Hons.) in Political Science. He is also qualified for the UGC-NET in Law. His academic and research interests lie primarily in the areas of Constitutional Law, Administrative Law, Criminal Law, and Environmental Law. The author is engaged in interdisciplinary legal research and contributes to academic discussions on core public law themes. He can be reached at vy[email protected]. Sanighdha Sanighdha is a Doctorate Scholar of Laws-JRF (AI and National Security Laws), at Panjab University, Chandigarh. Having pursued her graduation and post-graduation from the University Institute of Legal Studies, Panjab University, Chandigarh, she has done her Master's in the field of Constitutional and Administrative Law. Being a keen researcher, she is a published author of a book titled, “Indian Constitutionalism: Originalism, Living Constitutionalism, and Transformative Theories”, published by the Allahabad Law Agency (2025-Prof. Rattan Singh & Sanighdha). She also has two poetry books to her name, thereby making her a published poetess (Bookleaf Publishing), as well. Many research papers, in national and international journals (including Live Law) are falling to her credit. She has written on legal and social issues in newspapers (ET Legal World, etc) and magazines (Pratiyogita Darpan, etc), extensively. Having participated in various international conferences, seminars, conventions and national events alike, she has extensive knowledge of socio-legal issues, particularly related to constitution and constitutionalism. Apart from this, she is a regular contributing columnist in the “Life of Soldiers” Magazine (and other national security magazines), which focuses on national security and defense related issues. She can be contacted at [email protected]m. iv Rishabh Botadra Adv. Rishabh Botadra exclusively practises on the criminal side and regularly appears before the Hon’ble Bombay High Court and other Criminal Courts. Simultaneously, he is pursuing a LL.M. in Criminology. Falgu Mukati Adv. Falgu Mukati is currently pursuing LL.M. (Criminal Law & Criminal Administration) at SVKM’s Pravin Gandhi College of Law (PGCL), Mumbai. Specializing in criminal law, family law, and women’s laws, she has developed a strong research portfolio including book chapters and research papers in the field of white-collar crime, and criminal laws, statutory protections for women, and reform in criminal justice processes. Her notable contributions have enriched scholarship in women law jurisprudence and financial crime analysis. Meher Malik Meher Malik is legal researcher. She holds an LL.M. in Alternate Dispute Resolution from Vivekananda Institute of Professional Studies, GGSIPU, and a PG Diploma in International Law and Diplomacy from Indian Society of International Law, where she was awarded the V.K. Krishna Menon Memorial Gold Medal. She has also qualified UGC-NET. Her areas of interest include arbitration, jurisdictional conflict, and procedural law. Her research article titled "Navigating the Extent of Judicial Intervention in PreArbitral Proceedings vis-a-vis Contemporary Judicial Trends in India" will appear in VIPS Student Law Review (VSLR), Volume VII. She may be contacted at [email protected]. Aishani Chakraborty Aishani Chakraborty is a law graduate with an LL.M. in Corporate and Commercial Law at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata and a B.A.LL.B. (Hons.) from Damodaram Sanjivayya National Law University, Visakhapatnam. She is a UGC-NET qualified scholar and a registered Advocate. Her academic interests include bankruptcy law, gender justice, and commercial regulation. Aishani has interned with leading legal chambers and held key positions in legal education initiatives. She can be reached at llm0[email protected] for academic correspondence. Mukul Dhiran Mukul Dhiran is a law graduate with an LL.M. in Commercial Law from the National Law School of India University, Bangalore, and a B.A., LL.B. (Hons.) from Damodaram Sanjivayya National Law University, Visakhapatnam. His areas of specialisation include arbitration, dispute settlement, and consumer law. He has interned across judicial, quasi-judicial, and litigation institutions, developing strong research and drafting skills. He can be reached for correspondence at mukul.dhiran.[email protected]. Chinmayee Hegde Chinmayee Hegde is a B.A. LL.B. (Honours in Corporate Law) student at PES University, Bengaluru, with a strong academic interest in International Trade Law, Competition Law, and Intellectual Property Rights. She has had two research papers published, including a SCOPUS-indexed publication in the v GNLU Journal of Law and Economics. She is currently an active blogger for The IP Press, an Intellectual Property Blog. With prior research and writing experience on emerging legal intersections such as data privacy, antitrust, and technology law, Chinmayee aims to contribute to evolving discourses in global regulatory frameworks. She can be reached at [email protected]. Vansh Saha Vansh Saha is a third-year B.A. LL.B. student at Chanakya Law College, Kumaun University, developing expertise at the intersection of environmental law, human rights, and constitutional litigation. Having assisted Senior Advocates at the Supreme Court of India on complex public interest litigation, he holds advanced UN certifications in Paris Agreement implementation (UNFCCC), chemical safety governance (UNITAR), and child protection systems (UNICEF). A twice-decorated Best Delegate (IIMUN & SJCMUN 2022), his peer-reviewed publications critically analyze judicial evolution and access to justice in developing legal systems. Certified by Clifford Chance in transnational business compliance, Vansh combines academic distinction with practical courtroom experience, having contributed to matters spanning constitutional challenges, service jurisprudence, and civil procedure. He aspires to practice at India's Supreme Court and High Courts, leveraging his multidisciplinary background to advance rightsbased jurisprudence through constitutional frameworks. He can be reached at [email protected]. Paridhi Malik Paridhi Malik is a law student at Vivekananda Institute of Professional Studies, Delhi, and a judiciary aspirant specializing in fashion law, intellectual property rights, constitutional law, and cyber law. Her research critically examines a myriad of intersections of legal frameworks, as seen in her publications Unheard Cries of Gender Neutrality and Unravelling the Threads: Navigating Legal Challenges in Fashion’s Fast-Evolving Landscape. She has interned under Justice Sudesh Bansal at the Rajasthan High Court, MLA Waheed Rehman Parra (J&K) and with KMA Law Offices, contributing to writ petitions, policy research, and legislative analysis. Paridhi also serves as the Student Lead of the VIPS Journal of Law and Development. Reach her at paridhimal[email protected]. Divya Vijay Deshmukh Divya Vijay Deshmukh is a third-year B.A.LL.B. student at Manikchand Pahade Law College, Chhatrapati Sambhajinagar, affiliated with Dr. Babasaheb Ambedkar Marathwada University. Her academic interests lie in Constitutional Law and Environmental Law. She has actively participated in various moot court competitions and National Youth Parliaments, showcasing a strong commitment to legal discourse. Divya is currently interning at the District and Sessions Court, Aurangabad, gaining practical exposure to the legal system. She aspires to contribute meaningfully to legal scholarship and practice. She can be reached for academic correspondence at: increddiv[email protected]. xii Chapter 14: Algorithmic Collusion – A Developing Jurisprudence ................................................................................... 146 Aishani Chakraborty Mukul Dhiran Chapter 15: Unplugged Defences: The Lacunae in International Cyber Warfare Law and the Path to Legal Reform ......................................................................................................................................................................................................... 154 Chinmayee Hegde Chapter 16: Balancing Economic Growth, Environmental Conservation, And Social Justice: A Comprehensive Analysis of Legal and Policy Paradigms .................................................................................................................................. 164 Vansh Saha Chapter 17: Manipulation of Realities: An Exploration of AI-Generated Influencers, Personality Rights and Legal Boundaries in Digital Fashion ................................................................................................................................................... 181 Paridhi Malik Chapter 18: Constitutional Morality - Myth or Reality ......................................................................................................... 191 Divya Vijay Deshmukh Chapter 19: From Colonial to Digital Age: Navigating Evolution, Regulations and Policy Gaps in India’s Media Landscape ...................................................................................................................................................................................... 199 Khushi Jain Chapter 20: Preserving The Dignity of Law: The Imperative of Ethical Practice ............................................................. 213 Vaibhav Shahi Chapter 21: From Subjugation to Fairness: A Foucauldian–Rawlsian Analysis of LGBTQIA + Marriage and Family Rights in India .............................................................................................................................................................................. 222 Aditya Kashyap Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 1 Chapter 1 A Functional Assessment of the Present-Day Relevance of the Special Chambers of the International Court of Justice through a Comparative Lens Dr. Rajat Banerjee* Abstract The special chambers of the International Court of Justice (ICJ) hardly bear any critical legal significance now. Although a few of the chambers’ rulings were instrumental in shaping the international political, strategic and legal discourses, no special chambers were instituted for more than 20 years now, indicating further that disputing parties prefer a full court or ad-hoc international arbitral tribunals to a chamber court system. In view of the above, this chapter attempts to revisit the chamber court jurisprudence of the ICJ in light of the ad-hoc international arbitral tribunals. Invoking a functionalist perspective, the chapter compares the rulings of the special chambers with that of a few ad-hoc international arbitral tribunals. The objective of the chapter is to critically assess the role and contemporary relevance of the special chambers of the ICJ in rule adjudication. The principal argument resonating in this chapter is that the special chambers have lost their legal and functional relevance and therefore the requisite provisions of the statute of ICJ governing the chamber court jurisprudence need to be amended accordingly. The chapter uses secondary data and employs a doctrinal method to reach tentative findings. It invokes comparative and descriptive approaches to expand on the findings. Keywords: ICJ, Chambers, Special Chambers, Ad-hoc International Arbitral Tribunals, Chamber Court 1. Introduction The special chambers of the ICJ hardly bear any critical legal significance now. Although a few of the chambers’ rulings were instrumental in shaping the international political, strategic and legal discourses, no ad-hoc chambers were instituted for more than 20 years now, indicating further that disputing parties prefer a full court or ad-hoc international arbitral tribunals to a chamber court system. In view of the above, the chapter attempts to revisit the chamber court jurisprudence of the ICJ in comparison with adhoc international arbitral tribunals and in doing so it compares the rulings of the special chambers with that of a few ad-hoc international arbitral tribunals. The objective of the chapter is to critically assess the role and contemporary relevance of the special chambers of the ICJ in rule adjudication. The first part of the chapter introduces the discussion, recounting on the historical and legal roots behind the formation of the special chamber system. The second part delves into the legal basis of ICJ’s special chamber system. * Associate Professor, Alliance School of Law, Alliance University, Bengaluru, India. Email id: [email protected], [email protected]. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 2 The third part provides a succinct portrayal of the six cases that were adjudged by the special chambers. The fourth part speaks about the increasing relevance of ad-hoc international arbitration tribunals. Taking cue from some of the rulings of the ad-hoc international arbitration tribunals, the fourth part also underscores the legal basis behind the foundation of such tribunals. The fifth part of the chapter provides a comparative analysis between ICJ’s chamber system and ad-hoc international arbitration tribunals. The closing part sums up the findings to suggest that the provisions in the ICJ statute governing the chamber court system need scrutiny and subsequent amendment. The International Court of Justice (ICJ) sits in the form of a full court while adjudging both advisory and contentious matters. Article 3(1) read with Articles 2 and 4 of the ICJ statute makes it clear that the drafters of the ICJ Charter wanted the organization of the World Court to be representative of the committee of nations. Also, if we look through the lens of history and refer to the discussions and deliberations of the San Francisco Conference, 1 we can infer that the intent of the decision makers was to empower the World Court to hear all matters, advisory or contentious, on a Full-Bench basis. However, the decision makers, despite the fact that the Permanent Court of International Justice (PCIJ) heard only two cases 2 through its special chambers during all the 19 years it functioned, 3 were seemingly reluctant 4 to deviate from the statutory framework of the PCIJ regarding the explicit provisions of the special chamber system. 5 Thus, most of the special chamber provisions of the PCIJ statute were replicated almost on an as-is basis and reinserted in the ICJ statute. The only possible difference that the decision makers created was by inserting the provision of creating ad-hoc chambers. 6 In short, ICJ’s chamber system owes its origin to the statute of the PCIJ that enjoined express provisions for special chambers to facilitate international dispute resolution through judicial settlement. Articles 26, 27, 28, 29 and 31 of the PCIJ statute mandated the establishment and functioning of the special chamber system under the PCIJ. As per Articles 26 and 27, parties to a dispute could demand 7 to the PCIJ for the establishment of a special chamber, which would then appoint 8 a chamber of five judges every three years. While the benefit of Article 26 could only be available in labour matters, the benefit of Article 27 was made available in matters relating to communications and transit. Article 28 empowered the special chambers 9 to hear cases that were related to labour, communications and transit in places other than Hague, the erstwhile headquarters of PCIJ. Under Article 29, provision of summary trials through special chambers was made and the PCIJ was made responsible to constitute a five-judge chamber, annually. 1 The debates and arguments in the San Francisco Conference, which was held between April 1945 and June 1945 to create the UN system, indicate that although the decision makers wanted the ICJ to respond to international issues on a Full-Bench mode, they were reluctant to do away with the special chamber system in anticipation of its use future role in dispute settlement. 2 One case (1924) was related to interpreting art. 179, Annex, para. 4 of the Neuilly Treaty. The second case (1925) dealt with interpreting the judgment rendered in the first. 3 The PCIJ became operational in 1922 and heard cases until 1940. 4 The decision makers of the United Kingdom, however, were not very keen on continuing with the chamber provisions and proposed replacement of the provisions with a general faculty. For further details, refer to Stephen M. Schwebel, “Ad Hoc Chambers of the International Court of Justice” 81 American Journal of International Law 831 (1987). 5 The special chamber system included both permanent and temporary (ad-hoc) chambers. 6 Art. 26(2) of the ICJ statute. 7 The expression ‘demand’ as it occurs in art. 26 of the statute of PCIJ suggests that the disputing states could ask for a special chamber as a matter of right. 8 In appointing a special chamber, the PCIJ had to pay regard to art. 9 of the statute of PCIJ. Art. 9 stipulates that the appointed body of judges should represent the most important legal systems of the world and the principal civilizations. 9 The special chambers could do so only with the prior acceptance of the disputing parties. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 3 Article 31 of the statute of PCIJ authorised the disputing parties to select judges of their respective nationalities. The PCIJ, though, did not embody any clause regarding creating ad-hoc chambers. 2. Revisiting the legal basis of ICJ’s special chamber system The legal basis of the special chamber system is embedded in both the structural and functional frameworks of ICJ. In terms of structure and organization of the special chambers, the President of ICJ, who is also the administrative head, not only determines if the Court will sit as a chamber or as a full bench but also chooses the number of judges who will sit in a specific chamber. 10 To understand the functional relevance of ICJ’s special chamber system, it is important to know the statutory framework in respect to which the chamber system operates. There are three explicit ways under the ICJ statute to create special chambers. These are as follows: a. Article 26(1) – It empowers the ICJ to create one or more than one chambers comprising at least three judges. The chamber shall be created to handle certain sets of cases, especially those relating to labour, communications and transit. The first chamber 11 of its kind was created in 1993 and was periodically reconstituted until 2006 when the World Court eventually decided not to form a Bench for the said chamber. b. Article 26(2) – It empowers the ICJ to create ad-hoc chambers. Article 26(2) stipulates that the ICJ may constitute a chamber at any time after due consultation, both formally and informally, with the parties. The formal consultation shall ensue regarding the number of chamber members and the informal consultation shall follow about the names of the judges who will sit through the case until a decision is reached. c. Article 29 – It provides sanction to the ICJ to create a chamber of summary procedure to expedite court business. The chamber shall be constituted annually and shall comprise a minimum of five judges that include the Vice-President and the President. Apart from the member judges, the chamber shall also be represented by a minimum of two substitute members. The jurisdiction of the special chambers is wide both under Articles 26 and 29 of the ICJ statute. Although Article 26(1) of the ICJ statute allows a reservation that the special chamber created by it may handle specific categories of cases, 12 an ejusdem generis reading of the provisions reveals that the chambers are empowered to deal with any category of cases. In addition, the jurisdictional sweep of the special summary chamber is extensive to include a variety of cases. With reference to the arrangement of the special chamber system, both the ICJ and the respective parties to the dispute have the power to determine not only the judges who will sit through a case but also the number of the respective judges representing the chamber. While it is the prerogative of the World Court under both Articles 26(1) and 29 to look into the composition of a special chamber, under Article 26(2), it is the privilege of the 10 S. Gozie Ogbodo, “An Overview of the Challenges Facing the International Court of Justice in the 21st Century” 18 Annual Survey of International & Comparative Law 96 (2012). 11 Since 2006, the chamber is non-operational, and no periodic elections have been held (since 2006) for constituting the Bench of the respective Chamber. 12 A plain reading of art. 26(1) of the statute of the ICJ gives us the impression that the expression ‘particular categories of cases’ includes only matters relating to communications and transit, and labour cases. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 4 respective parties to determine the ad-hoc chamber’s composition since the purposive role of the ICJ while deciding the composition is limited. Article 27 of the ICJ statute further tends to consolidate the statutory provisions mentioned above. Article 27 states that the rulings of any of the chambers, temporary or permanent, shall hold equal value as that delivered by ICJ’s full Court. Additionally, the Rules of the Court 13 read with the Practice Directions, 2001 tend to supplement the formation and functioning of the special chambers, including the ad-hoc chambers. For example, Article 17 of the Rules empowers the disputants to request 14 the ICJ President to constitute a chamber to decide upon a particular matter. Apart from the above foregoing provisions, Article 31(4) of the ICJ statute also purportedly consolidates the chamber jurisprudence. 3. Important cases heard by the special chamber system Arguably, till now, the special chambers of the ICJ have heard only six cases. No cases were heard by the chamber of Summary Procedure that was established vide Article 29 of the statute of the ICJ, and by the chamber for Environmental Matters, which was instituted vide Article 26(1) of the statute. All six cases were heard by the ad-hoc chambers that were created pursuant to Article 26(2). Even though the special chamber system of the ICJ only heard six cases until now, a few of its judgments and reasoning were seemingly both relevant and pathfinding. The cases are as follows: The case of Canada v. US 15 concerned the resolution of a maritime boundary 16 disagreement in the Gulf of Maine and was arguably the first contentious matter for which an ad-hoc chamber comprising five members 17 was constituted in 1982 18 in conjunction with the provisions of Maritime Boundary Settlement Treaty. 19 The Treaty allowed the parties to approve of the chamber’s composition and size. 20 The ad-hoc chamber adjudicated the case by four votes to one, with Justice Gros dissenting and with Justice Schwebel recording a separate opinion. The chamber ruled that the maritime boundary between US and Canada should be defined by geodetic lines. The case is relevant from two perspectives (1) it allowed the parties the freehand to select judges and thereby to decide on the composition of the chamber (2) it marked a shift from the legal interpretation of the expression ‘equity’ as was laid down by the World Court in the well-known 1969 North Sea Continental Shelf Cases. In Burkina Faso v. Republic of Mali 21 the ICJ created an ad-hoc chamber in April 1985 following a request 22 by the respective parties to create such a chamber. The case was decided unanimously although ad-hoc Justices Georges Abi-Saab and Francois Luchaire recorded separate opinions. The case was one of its 13 The Rules of the World Court, which existed since the establishment of the Court in 1945, were redrafted in 1978 after through deliberations. The Rules were further amended in 2005. 14 The request can be made any time prior to the formal closure of the written proceedings of a case. 15 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States) (Judgment) [1984] ICJ Rep 246. 16 The continental shelf and the exclusive fisheries zones of the US and Canada were divided by the maritime boundary. 17 Four members out of the five were from the World Court while the fifth member was chosen ad-hoc by one of the litigating parties. 18 ICJ’s decision regarding the constitution of such a chamber for the first time was not unanimous. Justices El-Khani and Morozov dissented because they thought that giving the contending parties the upper hand in deciding the composition of the chamber by invoking art. 26(2) of the ICJ statute would affect the supreme right of ICJ to independently choose chamber(s). 19 The Treaty was concluded on March 29, 1979. 20 Andrew F. Moore, “Ad Hoc Chambers of the International Court and the Question of Intervention” 24 Case Western Reserve Journal of International Law 678 (1992). 21 Frontier Dispute (Burkina Faso v. Mali) (Judgment) [1985] ICJ Rep 6. 22 The request was made pursuant to a Special Agreement (which was concluded on September 16, 1983) between Burkina Faso and Mali. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 5 kinds since it tried to resolve not only questions of fact relating to land boundaries between the Republic of Mali and Burkina Faso but also fundamental questions of public international law (PIL) by effectively applying the principles of intangibility of frontiers inherited from colonisation and of uti possidetis juris. 23 The ad-hoc chamber observed that the major objective of invoking the uti possidetis juris principle is to ensure reverence for the territorial boundaries that existed when a particular state attained independence. In US v. Italy 24 a five-member chamber was formed in March 1987 to adjudicate whether Italy violated certain provisions of the Treaty of Friendship, Commerce and Navigation that was signed by Italy and US in February 1948. The chamber by a 4:1 judgment decided the case in Italy’s favour and did not allow reparation to the U.S. Justice Schwebel dissented while Justice Oda recorded a separate opinion. The case did not trench on any fundamental principles of law, customary or codified, and largely rested on the analysis and interpretation of the impugned provisions of the treaty. In El Salvador v. Honduras (Nicaragua being the Intervener) 25 a special chamber was formed in May 1987 to decide the case. The rudimentary question before the special chamber was how to ascertain the continental shelf, territorial sea, and exclusive economic zone of Honduras and El Salvador. The special chamber initially determined the boundary lines in the land areas adjoining both the states. It then went on to discern the jurisprudential status of the islands representing the Gulf of Fonseca, an area where Nicaragua had legal interest. The case is quite important in the history of special chambers of the ICJ since it saw for the first time a member state (Nicaragua) 26 intervening during the adjudication process. While allowing limited intervention 27 to Nicaragua, the chamber considered two questions: (1) did Nicaragua have a legal interest in the Gulf of Fonseca and (2) what was the objective behind Nicaragua’s proposed intervention. 28 The case was decided by a 4:1 majority, with justice Oda recording a dissenting opinion. In Benin v. Niger 29 a chamber of five judges was constituted in November 2002. The chamber, taking cue from the decision in Burkina Faso v. Mali, 30 upheld the rule of uti possidetis juris in the discernment of administrative borders. The chamber held that legal title and not effective possession is the basis of sovereignty. The chamber eventually decided by a 4:1 majority in favour of Niger. Justice Bennouna recorded a dissent and said that both legal title and effective possession should be considered while deciding on postcolonial borders, including administrative divisions. 23 The Latin maxim, which means ‘as you possess’ is a customary international law rule that tries to preserve the boundaries of colonies that emerge as self-determining states. By virtue of this principle, legal title is given precedence over effective possession, regarding territorial borders. 24 Elettronica Sicula SpA (ELSI) (United States v. Italy) (Judgment) [1989] ICJ Rep 15. 25 Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras) (Judgment) [1992] ICJ Rep 351. 26 Nicaragua invoked the provisions of art. 62 of the ICJ statute to substantiate that it had legal interest in the case proceedings, particularly in reference to the Gulf of Fonseca. 27 In the said matter, the World Court adopted a purposive interpretation of the expression ‘intervention’ stipulated under art. 62 of the statute of ICJ. 28 Supra note 20 at 690. 29 Frontier Dispute (Benin v. Niger) (Judgment) [2005] ICJ Rep 90. 30 Supra note 21. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 6 In El Salvador v. Honduras 31 (Nicaragua being the Intervener),El Salvador filed a request 32 to the World Court asking it to revise 33 the earlier ruling rendered by an ad-hoc chamber in September 1992 in the matter of El Salvador v. Honduras. 34 The chamber for this case was constituted in November 2002. The primary question facing the special chamber was whether to allow El Salvador’s request to revise the earlier judgment and subsequently to fix a new boundary line between El Salvador and Honduras. By a 4:1 decision, the chamber held the revision application inadmissible. Judge Paolillo recorded the dissenting opinion. The chamber applied the principle of constructive res judicata 35 to decide on the revision petition. 4. Ad-hoc International Arbitral Tribunals Akin to the ICJ’s special chamber system is the ad-hoc arbitration system. However, to understand the significance of ICJ’s special chamber system as a substitute to arbitration mechanisms that are ad-hoc, it is important for us to know the historical and socio-political circumstances under which the system was created and the legal framework under which it operated. It is equally important for us to know the jurisdiction (especially the subject-matter jurisdiction) of the special chamber system and the independent function of individual parties in ascertaining the composition of such system. 36 At an international level, arbitration refers to the determination by an arbitrator or an umpire of a dispute between two parties, which may include a state, a non-state actor or even a private actor. Arbitration has been one of the effective ways of international dispute settlement for long and because of the binding nature of arbitral awards, many of the international cases have been resolved through arbitral mechanisms such as arbitral courts and tribunals. Such arbitral courts and tribunals are generally of four types, viz., (1) mixed tribunals in which apart from the equal number of domestic arbitrators chosen by the respective parties, an umpire or a neutral member is chosen (2) sovereign tribunals in which the head of a sovereign state is asked to arbitrate on a matter (3) tribunals headed by specially qualified individuals (4) tribunals constituted by a collegiate body comprising odd number of persons. 37 Apart from the above four types, there may exist hybrid types of tribunals embodying features of two or more types. It must be mentioned here that ad-hoc international arbitral tribunals may partly or wholly consist of ICJ judges as was evidenced in the matter of Beagle Channel, the France and UK continental shelf dispute and the Guinea and Guinea Bissau maritime boundary dispute. 38 The need for international arbitration, including international commercial arbitration, inspired the growth and development of not only ad-hoc international arbitral mechanisms but also permanent arbitral institutions. While the ad-hoc arbitral mechanisms exist temporarily until the tribunal or the court announces an award, permanent arbitral institutions exist perpetually. One of the classic examples 31 Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras) (Judgment) [2003] ICJ Rep 392. 32 El Salvador wanted the Court to pay attention to new facts, which El Salvador failed to adduce as evidence during the earlier proceeding. El Salvador also tried to invoke the rule of uti possidetis juris as a defence of its application for revision. 33 The revision request was made by El Salvador vide art. 61 of the ICJ statute. 34 Supra note 25. 35 The principle of constructive res judicata enjoins that any claim that should have been raised in a prior proceeding must not be raised in a later proceeding. 36 Supra note 4 at 832. 37 J G Merrills, International Dispute Settlement 83-86 (Cambridge University Press, Cambridge, 5th edn., 2011). 38 Andreas Zimmermann, “Ad Hoc Chambers of the International Court of Justice” 8 Dickinson Journal of International Law 6 (1989). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 7 of a permanent arbitral institution is the Permanent Court of Arbitration (PCA), which is an intergovernmental body meant to facilitate international dispute resolution. The PCA owes its genesis to the Hague Peace Conference of 1899. 39 Another permanent institution is the trade dispute settlement mechanism under the World Trade Organization. Although the relevance of ad-hoc international arbitral mechanisms was increasingly being felt only in the latter part of the 19th century, the seeds of modern arbitration was debatably sown in the Jay Treaty of 1794 40 that saw the establishment of mixed tribunals represented by equal number of members selected by the Great Britain and the US (the two state parties to the treaty) and an umpire/arbitrator in the event of any disagreement. The Alabama Arbitration (1872) was another important step further in the field of international arbitration. The arbitration exercise not only laid down the international customary principle of state responsibility but also supported the codification of general normative principles governing international law. Following the Alabama award, various arbitration exercises both through permanent and temporary arbitral institutions contributed to the amalgamation of treaty law and customary international law. The arbitration mechanisms, especially the international arbitration tribunals, draw the authority and jurisdiction (to try cases) from the respective statutes and statutory instruments that create them. For example, the PCA was established in 1899 pursuant to the stipulations of the 1899 Hague Convention. Similarly, the arbitration, which was instrumental in deciding the Alabama case, was empowered vide the provisions of the Washington Treaty. The respective statutes and statutory instruments that create arbitral bodies may also specify the rules of procedure. The importance and veracity of ad-hoc international arbitration mechanisms can be gauged not only from the structural and procedural set up of these mechanisms but also from some of the path-finding decisions of such ad-hoc international arbitral tribunals. For example, in Alabama Claims arbitration (1872), the arbitrators while dealing with the issue of state responsibility upheld the principle of neutrality during war. The Alabama adjudication 41 led to an everlasting era of friendship between the US and Great Britain and marked a new international regime in the field of state responsibility. Another important case at hand is Tinoco arbitration (1923). 42 In the said case, Great Britain asked for reparations from the government of Costa Rica for certain expenses incurred by several British corporations during the Tinoco regime. The question before the arbitral tribunal 43 was whether the Tinoco government was a legal representative of Costa Rica. The arbitral tribunal held that the Tinoco Government was indeed the legal representative of Costa Rica and thus should make good any loss arising out of the nonperformance of any contract. The tribunal further held that the Tinoco Government exercised de facto 39 The 1899 and 1907 Hague Peace Conferences were primarily aimed at the pacific settlement of disputes, especially those arising out of war or warlike situations. 40 The Jay Treaty tried to stabilise commercial and military relations between the US and Great Britain. The treaty was important from the American standpoint since many of the border issues, especially those arising out in the North-eastern and North-western parts of the US (the areas adjoining Canada and the US), were resolved (at least temporarily) through arbitral awards. Despite its importance, the treaty created a rift in the highest political ranks (with Thomas Jefferson and James Madison openly critiquing the provisions of the treaty) and was finally superseded by the Treaty of Ghent, 1814. 41 The arbitral body, which comprised five members, issued a reasoned decision in this case. 42 The arbitration was named after the-then Costa Rican President Frederico Tinoco, who assumed Presidency in 1917 after forcefully removing his predecessor, Alfredo Gonzalez. 43 Former US Supreme Court Justice William Taft headed the tribunal. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 8 control over the state of Costa Rica. The legal principles on de facto state recognition and state succession laid down in the said case continue to have a strong bearing in the realm of PIL. Yet another important arbitral adjudication is the Rainbow Warrior Arbitration (1990), which is regarded as an important instance in the field of state responsibility. In the given case, the tribunal held that both treaty law and customary law on state responsibility could be made applicable to the dispute that arose because of the destruction of a ship docked at a harbour at New Zealand by two French intelligence officers. The arbitral tribunal, denying the defences taken by France, allowed reparations to New Zealand. The ruling by the tribunal eventually consolidated not only the law of state responsibility but also the international legal doctrine of non-intervention. Apart from the above-mentioned cases, there have been many other arbitral cases where the arbitrators’ decisions either have created new laws and norms or have consolidated existing legal provisions in general international law. However, despite the nuanced role of the international arbitral tribunals in consolidating existing legal provisions or in creating new norms, the effect of an arbitral award is in no way a match to the effect of an ICJ judgment considering the stipulations under Article 94 of the statute. 44 5. A Comparative Analysis The rulings by the special chamber system of the ICJ created both prospects and complications in the realm of PIL. For example, in Canada v. US (the first case adjudged by ICJ’s ad-hoc chamber), 45 power was conferred on the respective parties to determine the court’s composition as well as the number of the respective judges. In the matter of Burkina Faso v. Mali, 46 the special chamber invoked the uti possidetis juris rule to solve the international colonial border disagreement between Burkina Faso and Mali. The special chamber’s verdict was a testament as to how by resolving legal issues, political problems (in the instant matter, an armed conflict) may be settled. 47 In El Salvador v. Honduras, 48 the special chamber’s decision in its revision judgment (rendered in November 2002) to apply the rule of constructive res judicata was commendable. In contrast, the decision of the special chamber in El Salvador v. Honduras 49 to allow Nicaragua to intervene (El Salvador did not agree to the intervention of Nicaragua) has apparently not created the right precedent 50 in the international legal front. Many from the legal fraternity and from the World Court itself questioned whether a chamber instituted in harmony with Article 26(2) of the ICJ statute had the authority to create a new law by allowing a third party (with or without legal interest in the subject-matter) to intervene. Those arguing against the system contend that the present chamber system procedure will not only divide the World Court on religious and ideological lines by allowing parties to choose judges but also reduce the status of the Court to a mere arbitral body unable to adjudicate on general issues of PIL. 51 Another argument levelled against the special chamber system is that the representation of the chamber 44 Supra note 38 at 7. 45 Supra note 15. 46 Supra note 21. 47 Andrew Coleman, “The International Court of Justice and Highly Political Matters” 4 Melbourne Journal of International Law 62 (2003). 48 Supra note 31. 49 Supra note 25. 50 In fact, the precedent was so wrongly set that the World Court in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) (Judgment) [2012] ICJ Rep 99 allowed even a non-party (Greece in the present case) to intervene. 51 Supra note 20 at 696. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 9 members (in terms of number(s)) is quite less to decide on the effectiveness of the legal principles operating within the realm of PIL. Yet another argument is that two of the special chambers (the chamber to hear particular categories of cases and the chamber of summary procedure) never heard any cases until now which is a testimony that the system is redundant and unconvincing. On the other hand, even though ad-hoc international arbitration tribunals seemingly tend to resolve disputes arising in private international law, many decisions of the ad-hoc international arbitral tribunals have catered towards the development of certain legal principles concerning general international law. For instance, the judgment of the Alabama Claims tribunal redefined the customary international norms governing state responsibility. Those arguing in favour of ad-hoc international arbitral tribunals hold that these tribunals operate on a sui generis mode and are easy to create and annul. They further hold that these tribunals have been able to generate a more principled and nuanced international legal order by attempting to bring the Rule of Law in international relations. 52 Those arguing against ad-hoc international arbitral tribunals opine that these tribunals are generally costly and the parties to arbitral proceedings are required to meet different types of expenditure at various stages of the arbitral procedure. Another argument levelled against these tribunals is that they may only disclose the decision of an award if the parties so agree; the parties to an ad-hoc international arbitral proceeding may choose not to disclose or publish the operative part of an arbitral decision. In the Rainbow Warrior case, for example, one of the parties to the dispute refused to divulge details of the arbitral award. Yet another argument against ad-hoc international arbitral tribunals is that the decision reached at by the arbitrator is not a reasoned decision. 6. Conclusion A comparative analysis of the systems, viz., the special chamber system under the ICJ and the ad-hoc international arbitral mechanisms reveals that ad-hoc international arbitral mechanisms have been far more effective than the special chamber system. Although between 1982 and 1992 faith was reposed by the members of the world community on the effectiveness of the special chambers, especially in view of the unanimous decision of the special chamber in Burkina Faso v. Republic of Mali, 53 the relevance of the special chamber system gradually started deteriorating since mid 1990s. The decision 54 of the special chamber allowing Nicaragua’s intervention (albeit in a limited way) in El Salvador v. Honduras 55 also hastened to the failure of ICJ’s special chambers. A partial revamping of the system was observed in Frontier Dispute case 56 between Benin and Niger but by then the special chambers had purportedly lost their legal and social significance. In a nutshell, an analysis of the special chamber system in the ICJ as a substitute to ad-hoc international arbitration mechanism indicates that the special chamber system has failed to live up to its standards, becoming redundant over time. Debatably, the chamber system allowed the contending parties to exercise greater political and legal control on the decision-making process of the ICJ, thereby relegating it to a lesser position. In addition to the foregoing reason, the ICJ’s inability to 52 John Collier and Vaughan Lowe, The Settlement of Disputes in International Law 33 (Oxford University Press, New York, 2000). 53 Supra note 21. 54 The decision has been criticised by many both from the constitutional and policy perspectives. 55 Supra note 25. 56 Supra note 29. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 16 penetration. In Section 154 (1) (c), both a male person or a female person who agreed to the anal sex and the male person who did it, are guilty of an unnatural offence. In case it is a male person who permitted the conduct, then an unnatural offence which is homosexual behaviour has occurred. If it is a female person, an unnatural offence has occurred. Therefore, generally, transgender persons are not homosexuals rather it depends on circumstances where a transgender person can also be a homosexual. For example, transgender persons who are more likely homosexuals are transvestite males or females who engage in a sexual relationship with males or females respectively. But about male-to-female transsexual and female-to-male transsexual, this assertion is prima facie incorrect although the argument is persuasive because when a male-to-female transsexual has a sexual relationship with a natural-born male, or female-to-male transsexual has a sexual relationship with a natural born female, it will be like having a sexual relationship with their gender or sex which is homosexual as changing sex and gender does not change biological sex and gender assigned at the time of birth. Biological sex is paramount in identifying the gender of a person. However, it is also conflicting because transgender persons are advocating to be recognized as a third gender. Transgender Persons in Africa Primarily regarding a transgender as a homosexual may be caused by limited research done in Africa about transgenderism and transgender persons. However, a recent experience of transgender issues in Africa happened in Kenya, involving one transgender female called Audrey Mbugua. Audrey Mbugua won a court case against Kenya National Examination Council (KNEC). Audrey Mbugua was born a Kenyan male person named Andrew Mbugua in 1984 and in adulthood became a transgender female. Audrey Mbugua wanted to be recognized as a female. Accordingly, he/she requested KNEC to change the name in his/her high school certificate from Andrew Mbugua to Audrey Mbugua and remove gender mark that indicates him/her as a male person. KNEC refused, forthwith he/she filed a judicial review case, that is, Audrey Mbugua v. Kenya National Examination Council and the Attorney General, 39 in the High Court of Kenya seeking an order of mandamus. The court ruled in his/her favour. His Lordship Weldon Korir when deciding the case stated, “...She is a woman trapped in a man’s body...the pull towards the feminine side is overwhelming and therefore I would not hesitate to make an order that will make the applicant feel complete...” KNEC was ordered to change the name from Andrew Mbugua to Audrey Mbugua and to remove the gender mark from the certificate. Development has also been seen in South Africa. The country has adopted laws to include transgender as a third type of gender in addition to male gender and female gender. This development was observed in the case of Richard Muasya v. The Attorney General & Others, 40 where the court demonstrated, “We are aware that South Africa has specifically provided in their Promotion of Equality and Prevention of Unfair Discrimination Act No. 4 of 2000, for the word sex to include intersex. We appreciate that the circumstances of 39 JR Case No. 147/2013. 40 Nairobi High Court, Petition No. 705 of 2007. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 17 South Africa about the experience of discrimination is unique. The fact that South Africa has already passed a law recognizing gender reassignment through the Alteration of Sex Description and Sex Status Act 2003 also puts it at a different level from Kenya. Worthy of note, is the fact that the inclusion of intersex in the definition of the term “sex” in South Africa has specifically been provided for through legislation.” Thus, transgender persons in Africa have now become much more visible. Undeniably, transgenderism brings about a conflicting position before the law, which needs to be addressed. This is what motivated the Authors to look into the legal position about the offence of rape in Tanzania focusing on determining whether or not rape legal principles are equally applicable to both transgender persons and natural-born males or females. 4. An Overview of an Offence of Rape in Tanzania In Tanzania, rape is codified as a criminal offence as per Section 130 (1) of the Penal Code. 41 A crime is said to have been committed when two important elements of the crime are present: actus reus and mens rea save only for those crimes which fall under the doctrine of strict liability as per Section 10 of the Penal Code. 42 Thus, for criminal liability to fall upon the alleged rape perpetrator, the prosecution side must prove beyond reasonable doubt the existence of both actus reus and mens rea against the perpetrator according to Section 3 (2) (a) and section 114 (1) of the Evidence Act. 43 This is an ethical legal principle that supports the assertion that it is illogical to inflict punishment on an individual who committed a crime with no intention to do so. 44 The requirement that the two elements shall be present, to determine criminal liability, can be well explained in the maxim actus non facit reum, nisi mens sit rea: the act itself does not constitute guilt unless done with guilty intent. 45 Also, the same requirement was discussed in the case of Ahmed Saleh Amgara v. Republic 46 and Isidori Patrice v Republic, 47 where the court in both cases emphasised that in criminal cases, Republic owes the primary duty of proving that the accused committed the actus reus elements of the offence charged, with the mens rea required for that offence. Actus reus and mens rea of rape are discussed hereunder. 4.1 Actus Reus of an Offence of Rape Actus reus is a physical/external element of an act, attempt or omission punishable by law. 48 It comprises three important items such as conduct, the extent of conduct, and consequences. 49 An actus reus shall coincide with mens rea at the time of the commission of a crime. 50 The actus reus must always be voluntary on the part of a wrongdoer. 51 An actus reus of rape generally, comprises all elements of the offence other than malice aforethought. 52 These are unlawful sexual intercourse by a man with a female person and 41 [Cap. 16 RE 2023]. 42 Ibid. 43 [Cap. 6 RE 2023]. 44 B.D. Chipeta, A Handbook for Public Prosecutors 87–88 (Mkuki na Nyota, 3rd edn., 2009). 45 Ibid. 46 [1959] EA 654. 47 Criminal Appeal No. 224 of 2007. 48 The Penal Code [Cap. 16 RE 2023], s. 5. 49 C.M.V. Clarkson, Understanding Criminal Law 14 (Sweet & Maxwell, 4th edn., 2005). 50 Ibid. 51 M. Mulan, Modern Criminal Law 27–28 (Cavendish Publishing Ltd, London, 5th edn., 2003). 52 C. Elliot and F. Quinn, Criminal Law 9 (Pearson Longman, 7th edn., 2008); see also M. Allen, Textbook on Criminal Law 19 (Oxford University Press, 12th edn., 2013). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 18 without a female person’s consent. 53 In Tanzania, an actus reus of rape is founded in Section 130 of the Penal Code. 54 The actus reus of rape as incorporated in the foregoing provision is formed by the combination of the following: a male person having carnal knowledge with a female person without a female person’s consent; penetration has taken place regardless of whether it is a full penetration or not; the penetration referred herein involved male and female genitalia. 4.2 Mens Rea of an Offence of Rape Mens rea is a mental element of the perpetrator of an act punishable by law. 55 The ingredients of mens rea include intention, recklessness and negligence. 56 Mens rea qualifies the actus reus. 57 For example, the potential criminal must have the intention to commit a crime, pursue it in action, do the punishable act, and expect certain results. 58 Mens rea is often looked at from both subjective and objective points of view. 59 A subjective point of view is obtained by looking at what the culprit was thinking or what an impartial judge believes the perpetrator was thinking at the material time. 60 While the objective point of view is obtained by looking into what would a reasonable person think in the culprit’s position. 61 Therefore, mens rea of rape comprises an intention of a male offender to have carnal knowledge with a female person, and knowledge of the absence of consent on the female person’s part. 62 5. Application of Rape Legal Principles to Transgender Persons Before 1998, Section 130 of the Penal Code 63 that provided for an offence of rape was not that comprehensive. The provision reads, “Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of the felony termed rape.” In 1998, the position of the offence of rape in Tanzania changed for the better following the enactment of SOSPA, which intended to offer comprehensive coverage of an offence of rape to protect natural-born females from abuse by men. SOSPA amended the Penal Code for an offence of rape that is, section 129A, Section 130 (1), Section 130 (2) (a) – (e), and Section 130 (3) (a) – (e) of the Penal Code 64 that reads, “It is an offence for a male person to rape a girl or a woman. A male person commits the offence of rape if he has sexual intercourse with a girl or a woman under circumstances falling under any of the following descriptions: Not 53 C. Elliot and F. Quinn, Criminal Law, supra note 50 at 9; see also M. Jefferson, Criminal Law 41 (Pearson Longman, 7th edn., 2006). 54 [Cap. 16 RE 2023]. 55 The Penal Code [Cap. 16 RE 2023], s. 10(1); see also C.M.V. Clarkson, Understanding Criminal Law, supra note 47 at 14; see also M. Allen, Textbook on Criminal Law, supra note 50 at 58. 56 The Penal Code [Cap. 16 RE 2023], s. 10(1); see also C.M.V. Clarkson, Understanding Criminal Law, supra note 47 at 14; see also M. Jefferson, Criminal Law, supra note 51 at 41. 57 M. Jefferson, Criminal Law, supra note 51 at 41. 58 B.D. Chipeta, A Handbook for Public Prosecutors, supra note 44 at 88. 59 C. Elliot and F. Quinn, Criminal Law, supra note 50 at 16. 60 Ibid. 61 Ibid. 62 M. Jefferson, Criminal Law, supra note 51 at 41. 63 [Cap. 16 RE 1981]. 64 [Cap. 16 RE 2023] Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 19 being his wife, or being his wife who is separated from him without her consent to it at the time of the sexual intercourse; with her consent where the consent has been obtained by the use of force, threats or intimidation by putting her in fear of death or of hurt or while she is in unlawful detention; with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced by any drugs, matter or thing, administered to her by the man or by some other person unless proved that there was prior consent between the two; with her consent when the man knows that he is not her husband and that her consent is given because she has been made to believe that he is another man to whom, she is, or believes herself to be, lawfully married; with or without her consent when she is under eighteen years of age unless the woman is his wife who is fifteen or more years of age and is not separated from the man; Whoever; being a person in a position of authority, takes advantage of his official position, and commits rape on a girl or a woman in his official relationship or wrongfully restrains and commits rape on the girl or woman; being on the management or the staff of a remand home or other place of custody, established by or under law, or of a women's or children's institution, takes advantage of his position and commits rape on any woman inmate of the remand home, place of custody or institution; being on the management or staff of a hospital, takes advantage of his position and commits rape on a girl or woman; being a traditional healer takes advantage of his position and commits rape on a girl or a woman who is his client for healing purposes; being a religious leader takes advantage of his position and commits rape on a girl or woman.” However, respectively both provisos have common important features worth noting as follows: (a) the perpetrator of an offence of rape is always a male person and a male person cannot be a victim of an offence of rape; (b) a female person is the only victim of an offence of rape save only when a female person instigates or abets a male person to commit an offence of rape against another female person contrary to Section 22 (1) (b), (c), and (d) of the Penal Code; 65 (c) a female person can be a married or unmarried girl or a woman; (d) there must be a lack of consent on the part of a female person; (e) there must be penetration however slight; and (e) the penetration must have taken place between male genitalia and female genitalia. The two provisos are supported by various cases such as the case of Amri s/o Ahmed v. Republic, 66 whereby the court determined whether or not, a girl who had consented to some sexual intimacies with a male person, but said from the start that there would be no intercourse. Nonetheless, after some time a male person did have intercourse with the girl, apparently having to overcome some resistance on her part with force, the situation amounted to an offence of rape. The court determined affirmatively noting, “If the girl … Laid down any condition … however foolish she was in allowing any sexual intimacy at all, the breach of such condition and penetration would constitute rape. That a woman may allow some form of sexual liberty to a man (be it little or great) does not entitle that man to proceed to have intercourse with her against her will.” Similarly, in the case of Ally Athuman v. Republic, 67 the court of law demonstrated that rape as a criminal offence takes place when a male person forces a female person into having sexual intercourse. The court detailed a definition of an offence of rape citing its ingredients which the prosecution side needs to prove 65 [Cap. 16 RE 2023]. 66 (1968) HCD No. 329. 67 [1991] TLR 59. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 20 beyond reasonable doubt as follows; (a) that there must be carnal knowledge of a woman or a girl (no age given); (b) that a man forced such a woman to have sexual intercourse; and (c) or if there was consent, then the consent must have been obtained by tricky means or by threats or intimidation or fear of bodily harm; or misrepresentation of the actual act, or by posing as her husband. Additionally, the law which provides that a female person is the only victim of an offence of rape and a male person is the perpetrator, is supported by an argument that men are not similarly affected by an offence of rape because an act of rape is about power and men have such power. 68 These common features of rape legal principles can further be demonstrated in various cases that were decided after 1998 such as the case of Omary Kijuu v. Republic. 69 In this case, the appellant argued that minor bruises in the genital area of his victim and some discharges from the anus are not sufficient to prove the case of rape against him. But, the court responded, indeed it may sound strange to the appellant, a layman, that, that amounted to penetration. But in law, for rape, that amounted to penetration in terms of Section 130 (4) (a) of the Penal Code 70 that states, penetration however slight is sufficient to constitute the sexual intercourse necessary to prove the offence beyond all colours of doubt. That is the law and there is no magic one can do about it. The position was also the same in the case of Tumaini Mtayomba v. Republic. 71 Having seen the position of the law before and after 1998, it shows that rape legal principles as incorporated in Tanzania’s criminal justice system, have only been applied in the protection of natural born females. Does that mean transgender females are not covered? If not, is there any way transgender females are protected against sexual assault? These questions are triggered by the fact that rape legal principles do not comprehensively define who is a female person. And Tanzania’s criminal justice system does not prohibit transgenderism. 6. The Legal Position of Transgender Persons Relating to an Offence of Rape Having seen the ingredients of an offence of rape and the definition of male and female persons, this chapter concludes that, the conduct of a female-to-male transsexual forcing a natural-born female to have carnal knowledge cannot amount to an offence of rape. The main reason is, that a female-to-male transsexual does not qualify as a male person. Furthermore, an act of a man forcefully having carnal knowledge with a male-to-female transsexual cannot amount to an offence of rape only by reason that a male-to-female transsexual is not a female. It suffices to add that, the offence of rape was created purposely to protect women and children against the abuse of men. 72 Additionally, the expression of Section 129A and Section 130 of the Penal Code, 73 refers to a male as in Juma, Bakari, or Ayoub, not a transgender male. Likewise, ‘any female person irrespective of age’ introduces a woman to be any female person of any age. The phrase “any female person” means any female as in Asha, Ashura or Anna, not Mwajuma who previously was known as Juma because he was a man. Therefore, the ingredients of conduct of female-to-male transsexuals and that against male-to-female transsexuals, as Tanzania’s 68 J. Vipra, “Research Reality Internship: A Case for Gender-Neutral Rape Laws in India” (2013), available at: https://ccsinternship.files.wordpress.com/2013/05/286_case-for-gender-neutral-rape-laws-in-india_jaai-vipra.pdf (last visited on May 26, 2017). 69 Criminal Appeal No. 39 of 2005 (Court of Appeal of Tanzania) (Unreported). 70 [Cap. 16 RE 2023]. 71 Criminal Appeal No. 217 of 2012 (Court of Appeal of Tanzania) (Unreported). 72 Tanzania Women Judges Association (TWJA), “Millennium Development Goal 3 Program (MDG 3) – Tanzania: 2009 to 2011 Stopping the Abuse of Power for Purposes of Sexual Exploitation (Sextortion) Country Report” (2009). 73 [Cap. 16 RE 2023]. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 21 criminal justice system currently stands, do not constitute an offence of rape. Neither does a male-tofemale transsexual a victim of an offence of rape nor a female-to-male transsexual an offender of an offence of rape. In addition, this situation does not constitute any other sexual offence currently provided for in Tanzania’s criminal law under Chapter XV of the Penal Code. 74 However, undeniably, the acts against a male-to-female transsexual and those of a female-to-male transsexual ought to constitute a sexual offence. Because the ingredients almost constitute an offence of rape, only one important ingredient to have full actus reus of rape, is missing. Therefore, it has to be an offence only that it is not named. This situation calls for protection for and against transgender persons for sexual offences. In the Authors’ opinion, the situation is fit to be addressed as an unnatural offence. However, the debate on the protection of transgender persons is controversial due to the fact, that in Tanzania, they are likened to homosexuals, contrary to Section 154 (1) (a) and (c) and Section 157 of the Penal Code. 75 Moreover, Article 29 (5) and Article 30 (1) of the Constitution of the United Republic of Tanzania, 1977 provides that, for any person to benefit from rights and freedoms guaranteed by the Constitution, such person is obligated to conduct himself and his affairs in a manner that does not infringe upon the rights and freedoms of others or the public interest. For transgender persons to be likened to homosexuals, the latter is not only seen as contravening the law but also the public interest. Nonetheless, as human beings, transgender persons earn the right to be protected against sexual assaults. 7. Legal Protection of Transgender Persons Against Sexual Offences The right to protection of the law is equally afforded to any human being. 76 As such, Tanzania's 1977 Constitution provides general guarantees of equality and human dignity under Articles 12 and 13, but it lacks any express provision regarding sexual orientation or gender identity. The Bill of Rights, incorporated in the Constitution in 1984, has not been interpreted to encompass the protection of transgender persons. Nonetheless, Tanzania vowed to protect her general public through enactment of various municipal laws and signing and ratifying several international human rights instruments. That includes; the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (ACHPR), both of which emphasize on equality, dignity, and freedom from discrimination. 77 The protection of the law, however, will differ between the one offered in favour of an innocent party and that offered to a guilty party. In the sense that while the innocent will be protected from suffering injustice, the guilty one will be protected against arbitrary punishment for the offence committed. That is to say, the protection of transgender persons can be easily considered if they are free from liability of transforming from original/birth gender to the new surgical assigned gender that is, if there is no contravention of any law or moral issues applicable in Tanzania. 74 Ibid. 75 Ibid. 76 The Constitution of the United Republic of Tanzania, 1977, arts. 12, 13; The African Charter on Human and People’s Rights, 1981, art. 3; The International Covenant on Civil and Political Rights, 1966, art. 26; and The Universal Declaration of Human Rights, 1948, art. 7. 77 Ibid. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 22 This argument is grounded on the principle that no one is to benefit from their wrongdoing. Tanzania’s morals and cultural norms may condemn transgender persons but Tanzania’s laws do not refer to a crime or any other offence, an act of gender reassignment. That being the case, transgender persons cannot be said to have committed a crime upon undergoing gender reassignment. This can also be supported by the principle of legality nullum crimen sine lege. 78 Thus, being law-abiding citizens, residents, or tourists, transgender persons deserve to be protected by the law. 79 Further, they must protect and abide by the laws of the United Republic of Tanzania. 80 Worth noting however is that, a legal dilemma brought about by transgenderism does not go away. 8. Conclusion and Suggestions The foregoing presentation shows that the transgender community does exist. Its existence nourishes legal challenges in Tanzania only because transgender persons are not legally recognized or prohibited. This brings about a legal dilemma on how to treat transgender persons or how to accord them rights. The Authors’ choice to address the issue of transgender is meant to relate this community to Tanzania’s criminal justice system particularly the offence of rape. Important questions were raised in the course of the discussion that is, whether or not rape legal principles are equally applicable to transgender persons and natural-born males or females; and is there any sexual offence that can cover the transgender situation in Tanzania’s criminal justice system? The outcome shows that it is conflicting to establish that a transgender male has committed an offence of rape or a transgender female is a victim of an offence of rape. Because, the transgender male is not a biological male and the transgender female is not a biological female because changing one’s gender and external genitalia does not mean a change of biological sex and gender. Therefore, currently, rape legal principles cannot be made applicable in a situation involving transgender persons. Nevertheless, sexual offences currently provided for in Tanzania’s criminal justice system do not refer to transgender situations. Similarly, it is partially misleading to primarily consider transgender persons as homosexuals. Transgenderism is a new phenomenon in Africa and Tanzania in particular. That being the case, transgender persons are not well understood and recognized. Accordingly, African communities do not know better ways of treating transgender persons. Unsurprisingly, the majority of African legal frameworks are silent about transgender persons. The status quo makes the determination of transgendered individuals’ rights difficult. More studies from all disciplines (such as Legal studies that is, constitutional law, criminal law, human rights law, and family law, cultural studies, health studies, psychological studies, and humanities studies) about transgenderism in Africa are vital. The studies will assist African Governments, lawmakers and communities at large on finding better ways of dealing with transgender persons in all spheres of life. In light of the findings of this chapter, Authors are of the view that it will suffice to recognize the situation under the umbrella of unnatural offence to remove the legal dilemma which is brought about by transgenderism. Therefore, it is recommended that: either an amendment of Section 154 of the Penal Code 81 to include either prohibitions of transgenderism and 78 The Constitution of the United Republic of Tanzania, 1977, art. 13(6)(c). 79 Ibid, arts. 12, 13, 29(2). 80 Ibid, art. 26(1). 81 [Cap. 16 RE 2023]. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 23 sexual assaults against transgender persons, or, the insertion of a new section that provides for both prohibitions of transgenderism and sexual assaults against transgender persons be made. It is also recommended to categorise forced carnal knowledge against/by transgender persons as an unnatural offence. Also, both prosecution and defence attorneys must prove the sex and gender of parties to substantiate or to avoid liability for an offence of rape. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 24 Chapter 3 Unheard and Overlooked: Addressing Domestic Abuse Against Men in India Through Social and Legal Reforms Dr. Lokesh Chauhan* Abstract Throughout history, India has been characterised by a patriarchal social structure, whereby males have held dominant positions. As such, it is difficult to imagine a situation where a man plays the role of the victim and a woman plays the role of the perpetrator. From a male victim's perspective, domestic violence is rarely accepted in society because there is little information available and most cases go unreported. Spousal abuse is a serious issue that affects both men and women. While media outlets regularly publicize stories about violence and harassment against women as a result of dowry, increasing numbers of men also report harassment and abuse by their wives. In India, the law does not recognize domestic abuse of men. The perception that men are not typically seen as victims of violence may contribute to a greater latitude afforded to women in certain situations. Female domestic violence perpetrators are generally favoured over male victims. Domestic abuse mainly affects Indian women, say feminists and the government. However, more males are reporting domestic abuse. Unreported domestic abuse against men is much more common than thought. Globally, intimate partner violence must be addressed. Males have a higher susceptibility to engage in this particular manifestation of aggression, but they are not exempt from being targets themselves. To gain a deeper understanding of the situation faced by Indian men who are victims of domestic abuse, this chapter examines relevant issues and conducts analysis. It then concentrates on enhancing the existing framework while upholding equality. Keywords: Domestic violence, Spousal violence, Gender-neutral laws, Male victims 1. Introduction Domestic violence has plagued societies since Babylon. Most legislators, politicians, social service professionals, and community advocates have viewed "domestic violence" as male aggression against female partners. 1 A spouse or family member's hatred against another is domestic violence. 2 Male domestic violence victims often don't report their experiences because they assume the government wouldn’t care. 3 Gender equality and human rights should be protected for everybody. 4 Gender-neutral legislation is essential since men are disproportionately prosecuted for rape, domestic abuse, and sexual *Assistant Professor, School of Law, Sanskaram University, Jhajjar, E-mail [email protected] 1 Murray A. Straus, “Future Research on Gender Symmetry in Physical Assaults on Partners” 12 Violence Against Women 1086 (2006). 2 Martin S. Fiebert, “References Examining Assaults by Women on Their Spouses or Male Partners” 9(3) Sexuality and Culture 49 (2005). 3 Denise A. Hines and Emily M. Douglas, “Intimate Terrorism by Women Towards Men” 25(8) Journal of Interpersonal Violence 1329 (2010). 4 United Nations, Universal Declaration of Human Rights (1948), available at: https://www.un.org/en/about-us/universal-declaration-of-humanrights (last visited on May 23, 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 25 assault. 5 Although "domestic violence" refers mostly to assaults against women, it appropriately defines a problem that affects both sexes. 6 Domestic abuse is properly called spousal violence because both sexes are equally vulnerable. 7 Domestically abused men rarely speak up. Sensex data shows a man's partner assaults him every 14.6 seconds. 8 According to a study conducted by SIFF, an organisation working for men's rights in India, about 98,000 male victims committed suicide because they were victims of physical, emotional, and legal abuse in marriage or a relationship. 9 , 10 Another study conducted in 2020 showed that 51.5% of married men experienced abuse from their wives, and 23% of men experienced false accusations in court, especially in matrimonial matters and cruelty cases. 11 In Australia, the “One and Three campaign” is based on the principle that one in every three victims of domestic abuse is a man. 12 Domestic abuse is automatically blamed on women in India. 13 Casual experiences with numerous males in public and structured workplaces like factories and offices show that domestic abuse affects both sexes. 14 The most obvious assumption is that men cannot feel sympathy for themselves. Men are not meant to be abused due to their masculinity and strength. Men cannot communicate their thoughts in India, making this especially clear. This will designate them as delicate. Certain individuals who have experienced abuse may internalise feelings of self-blame, resulting in their reluctance to disclose such incidents. Men do not report domestic abuse cases due to social stigma, as Indian society thinks that men are dominant, strong and emotionally repressive. Social pressure forces many male victims to suffer in silence. Emotional, physical, and psychological abuse are the most typical forms experienced by male victims. Assuming blame, relying on the abuser for their survival, and caring for the children are the top three reasons why men stay in violent relationships. 15 Men often stay for the sake of their children because they fear that their kids will suffer the same penalties they did if they left. Male victims of domestic violence rarely succeed in court because they are made to feel guilty by the prosecution, their feelings toward the abuser fluctuate over time, and they blame themselves for the incident. Men who complain about their wives' harassment face ridicule and sexism, while those who do so are sometimes labelled "unmanly". While the provisions related to cruelty and marital issues are gender biased, providing protection mostly to women, not male victims. Even the law assumes that women are the victims of domestic abuse. This presumption deprives male victims of legal remedies but emboldens the wife to 5 Vandana Singh Malik, Sandeep, Rakesh Kumar Behmani and Arun Kumar, “A Review on Domestic Violence Against Men” 15 Shodh Sanchar Bulletin 77–80 (2021). 6 Donald G. Dutton, “The Gender Paradigm and the Architecture of Anti-Male Prejudice” 13(3–4) Journal of Aggression, Maltreatment & Trauma 75 (2007). 7 John Hamel, “Toward a Gender-Inclusive Conception of Intimate Partner Violence Research and Theory: Part 2—New Directions” 8(1) International Journal of Men’s Health 41 (2009). 8 Sherin Farhana E.V., “Domestic Violence Against Men: Hidden Victim” 4 International Journal of Law Management & Humanities 2192–2198 (2022). 9 Rakesh Kumar, “A Study on Gender-Based Violence Against Men in Haryana” 24 Journal of Family & Social Welfare 35–36 (2020). 10 National Crime Records Bureau, “Accidental Deaths & Suicides in India – 2022” (Ministry of Home Affairs, Government of India 2023). 11 Id. 9 12 Government of Australia, “One in Three Campaign”, available at: https://www.oneinthree.com.au/ (last visited on May 23, 2025). 13 Theodore A. Migliaccio, “Marginalizing the Battered Male” 9(2) The Journal of Men’s Studies 205 (2001). 14 Ramesh K. Sharma, “Masculinity and Emotional Suppression: A Study of Workplace Silence Among Indian Men” 10(1) South Asian Journal of Social Studies 45 (2021). 15 Jacquelyn C. Campbell and Karen L. Soeken, “Forced Sex and Intimate Partner Violence: Effects on Women's Risk and Women's Health” 5 Violence Against Women 1017–1035 (1999). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 32 Chapter 4 Surveillance Capitalism and the Law in India: Re-imagining Privacy, Consent, and Governance in the Digital Age Priyam R Sharma Abstract This Chapter analyzes the problems related to surveillance capitalism, emphasizing the Indian perspective and focusing on problems of law, ethics and governance. In her work, Shoshana Zuboff distinguished surveillance capitalism as a system that takes behaviors which reflect who we are, converts them into data, studies this data using finely tuned predictions and exchanges the results for commercial or political purposes. Since India is quickly being transformed by technology, surveillance capitalism has become very common due to the efforts of both businesses and the government under the guises of improved efficiency, new innovation and national security. Mass data collection systems like Aadhaar, alongside more government control of digital assets, suggest that big corporations and the state are aligning their goals. In the case of Justice K.S. Puttaswamy v. Union of India according to the Supreme Court, privacy is an important right in the Constitution, but applying that right hasn’t been consistent. Many believe that India’s Digital Personal Data Protection Act, 2023, provides the most substantial protection for personal data, although critics say it remains vague, offers many government exemptions, and makes consent less important. It examines why India’s existing legal framework does not tackle all the unequal and unbalanced issues in surveillance capitalism. Using information from GDPR in the EU, CCPA (California Consumer Privacy Act) in California, and LGPD (General Personal Data Protection Law) in Brazil, the chapter pinpoints independence for regulators, holding algorithms accountable, boosting digital knowledge and using rights as a basis for making policies. This chapter proposes that every legal system should give priority to freedom for individuals, self-determination and democracy, rather than allowing big tech to lead. In the end, the study recommends that new methods of data governance be adopted to ensure both new innovations and respect for human values, justice and the constitution in India’s changing digital world. Keywords: Surveillance technologies, privacy rights, legal framework, data protection, constitutional law, human rights. 1. Introduction Changes brought about by the digital revolution influence how social life, the economy, and individual relations with the state work. Essentially, this transformation is driven by the way personal data is sold a key part of what Shoshana Zuboff calls “surveillance capitalism.” Behaviors observed online by this  Assistant Professor, Savitribai Phule Pune University, Law Department Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 33 modern method are used by businesses for their purposes in projecting and managing consumer behavior. Unlike industrial capitalism, which took advantage of the environment, surveillance capitalism now takes advantage of human experience. What matters most is that it produces unequal distribution of information and power, taking away control over information and causing conventional laws to be less effective. In India, the issue is connected to a digitization effort, the rise of the digital economy, a lack of strong data protections, and government modernization through surveillance. The Aadhaar project, thought of as the largest biometric identification system in the world, highlights both the positives and negatives of running a government using data. When welfare and inclusivity were the only intended uses for it, the government’s decision to expand its reach has led to many concerns over function creep, data privacy breaches, and infringements on citizens’ rights 1 . The case Justice K.S. Puttaswamy v. Union of India 2 gave the right to privacy its status as a fundamental right within Article 21 of the Constitution. Yet, the ruling lacked the strength to permanently stop either state monitoring or the taking of data from companies. Instead, it highlighted the disagreements between individual privileges and the public’s concerns, safety and practical administration. Since then, India has made only small progress in passing laws to deal with these challenges. Even with its long-awaited status, the Digital Personal Data Protection (DPDP) Act, 2023, has come in for criticism because it exempts the government from many of its requirements and because enforcement is not strong 3 . This chapter introduces surveillance capitalism and what it means for privacy and consent. It then examines Indian laws and policies in response to these challenges and makes recommendations for further legal development. Essentially, I analyze doctrines, review similar legal issues, and consider the social context 4 . Section I of the chapter discusses the theory and worldwide aspect of surveillance capitalism. In Part II, I consider how the Indian state plays two parts: regulating surveillance and participating in it. In Part III, I analyze the DPDP Act, 2023, and the ways it impacts consent and privacy. In Part IV, I look at both the GDPR from the European Union and the CCPA from California. In Part V, the research concludes with recommendations to create a more rights-based and democratic system for handling data. Now that India is turning to digital governance and developing a data-centered economy, it must also make sure its laws progress to defend democracy, human dignity, and the economy 5 . Conceptual Foundations and Global Context of Surveillance Capitalism Surveillance capitalism does more than just introduce new technology; it completely alters how economic and social control is exercised. According to Harvard scholar Shoshana Zuboff, this is a type of market that sees human experience as raw material for turning into data that guides behavior. This collection of data is then transformed into products that predict someone’s activities now and in the future. Though a few are applied in services, the vast majority of these predictions can be traded in behavioral futures markets by companies offering certainty about their users. People usually do not fully 1 Zuboff, Shoshana, The Age of Surveillance Capitalism, PublicAffairs, 2019. 2 (2017) 10 SCC 1 3 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1. 4 Digital Personal Data Protection Act, 2023 (India). 5 Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 34 understand the amount or details of their data extracted, but companies get a lot of control and knowledge as a result. When citizens live in an authoritarian system, the traditional ideas of consent, autonomy and accountability are no longer needed. Many times, user data is taken by, making people’s choices unclear 6 . Surveillance capitalism creates even more difficulties in India because of the connection among tech progress, low digital savviness and unclear rules. More than 850 million people use the internet in India which makes its digital market one of the biggest worldwide. A rising number of Indians are relying on digital tools for banking, using healthcare services, learning and dealing with the government. Yet, the systems for overseeing this way of handling data are just getting started. Organizations are slow to prepare themselves for the rules of digital regulations. Surveillance capitalism exists alongside neoliberalism, global capitalism and the security changes brought by 9/11 7 . When states and companies join forces for national security, new innovations or efficiency, it has strengthened programs for watching people. India’s AADHAAR, the world’s largest biometric ID system, shows how the state and corporations join forces in many areas. At first used just to provide welfare, Aadhaar now includes activities in banking, telecom, taxes and schools. As functions are added, this development, known as ‘function creep,’ can turn a welfare program into a way for the authorities to monitor people on a large scale. Making human behavior into a form of commerce is a problem that also involves laws and constitutions. Since India’s laws rely on constitutional ideas and principles of human rights, the legal system now has to deal with problems that appear in the digital world. Since there is no broad framework covering behavioural data, profiling and algorithmic interference, many wonder about their legal and ethical status 8 . Much of the legal discussions about privacy have occurred since the K.S. Puttaswamy v Union of India (footnote) case was decided. Notably, the system of surveillance capitalism prospers when it remains difficult to understand. Most users have little idea about how much of their data is collected and what happens to it. Terms of service often use difficult language and set up situations where people are asked to agree to something they didn’t understand. The user is turned into a data subject, providing data without having much actual choice. As a result of this change, theories of consent and autonomy are affected within the law. It disputes one of the main ideas of today’s data protection regulations that individuals can really control their personal data 9 . In addition, this model gives rise to a unique power that relies on algorithms and the foundation of internet infrastructures, rather than on traditional market or government methods. This power comes from the way choices are shaped, behaviors are guided and perceptions are set rather than pushed by power. For this reason, laws must address wrongdoings in plain view as well as those hidden in policy. We have to design new regulations that are flexible enough to meet current changes in power and secure rights in the era of AI and advanced analytics. As a result, grasping surveillance capitalism is necessary before making or enforcing any laws or policies about the digital economy. You should move from 6 Constitution of India, Art. 21. 7 Orla Lynskey, “Aligning Data Protection Rights with Competition Law”, (2021) 17 Competition Law Review 1. 8 Vrinda Bhandari & Renuka Sane, "Towards a Privacy Framework for India in the Age of the Internet," (2020) 4(2) NLSIR 1. 9 Nishant Anand, “New Principles for Governing Aadhaar: Improving Access and Inclusion, Privacy, Security, and Identity Management”, (2021) 18(1) Journal of Science Policy & Governance 1–14, available at https://doi.org/10.38126/JSPG180101 (last visited May 31, 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 35 traditional ways of protecting data to new approaches that include structural differences, practices aimed at behavior change, and accountability in institutions. The next part will examine how selling people’s habits and lowering their consent disturb the accepted and legal ideas that data protection laws in India are built on 10 . 2. Key Feature of Surveillance Capitalism 2.1 Datafication of Everyday Life Surveillance capitalism turns most of what happens in life into a piece of information. Earlier, one could keep their private conversations private. But because of new technology, they are now recorded and analyzed. Thanks to digital payment tools, mobile health apps, and digital administration services, people’s data records in India have increased rapidly 11 . 2.2 Prediction and Modification Remarkably, surveillance capitalism can both foresee and guide people’s choices. Thanks to these systems, companies can shape what users prefer and usually for business or political advantages. Cambridge Analytica uncovered the use of behavioral data to sway votes in the US and elsewhere, and it is now an important issue for democracies like India 12 . 2.3 Displacement of Democracy According to Zuboff, surveillance capitalism stands for a unilateral invasion into people’s lives. It gets around democratic supervision and makes citizens’ data in the system. On account of this unequal power, some researchers note that companies such as the tech giants now direct the way we share knowledge online without holding them responsible 13 . 3. Global Legal Responses The approach countries have taken to regulating surveillance capitalism differs greatly. While some countries now have strong laws in place, others have not yet kept up. 3.1 European Union The General Data Protection Regulation (GDPR): Among all data protection frameworks around the globe, the GDPR remains the most detailed. According to these principles, private companies may process data only when necessary, use only required data and make sure people agree to their information use. It makes sure individuals can access, fix mistakes in, remove or transfer their data while also holding data controllers to strict responsibility. A meaningful rule set by GDPR is that data 10 United States, The Health Insurance Portability and Accountability Act (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996), available at https://www.hhs.gov/hipaa/index.html (last visited May 31, 2025). 11 United States, The Privacy Act of 1974, 5 U.S.C. § 552a (1974), available at https://www.govinfo.gov/content/pkg/USCODE-2011title5/html/USCODE-2011-title5-partI-chap5-subchapII-sec552a.htm (last visited May 31, 2025). 12 India, The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, No. 18, Acts of Parliament, 2016, available at https://uidai.gov.in/images/the_aadhaar_act_2016.pdf (last visited May 31, 2025). 13 India, The Personal Data Protection Bill, 2019 (as introduced), available at https://www.prsindia.org/billtrack/personal-data-protection-bill-2019 (last visited May 31, 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 36 processing should be done only with consent, a contract, a legal requirement, a need to protect life, public functions, or a legitimate interest—four factors essential to reducing data commodification 14 . 3.2 United States The California Consumer Privacy Act (CCPA) ensured that the U.S. started making noticeable progress on data protection in 2018. Because of the law, consumers may find out what personal details are collected, understand who they are given to and request these details to be deleted. Even though the CCPA is not as strict as GDPR, California tech companies and state regulations have both responded to it to the point that the CCPA has affected many corporate and state policies 15 . 3.3 Latin America and Africa Countries such as Brazil (Lei Geral de Proteção de Dados Pessoais – LGPD) and South Africa (Protection of Personal Information Act – POPIA) are developing comprehensive laws modeled on GDPR principles. These legal frameworks suggest a growing consensus on the need to rein in unregulated data economies 16 . 4. Conceptual Tensions in Legal Theory: 4.1 Privacy vs Innovation Surveillance capitalism does well in conditions where there is little or no regulation, mainly due to claims of encouraging innovation and growth. Legal frameworks need to handle the relationship of privacy with digital development, especially where countries are building their economies online 17 . 4.2 Consent and Autonomy Consent is, in theory, what supports the legal handling of data. People usually agree to certain terms without actually reading or understanding them. Because of the paradox, people’s consent is no longer considered a strong argument in court. There have been suggestions for restoring autonomy, which include fiduciary responsibilities, showing how algorithms work and encouraging involvement from users. 4.3 Informational Self-Determination The 1983 Census Case before the German Constitutional Court brought about the idea that individuals have a right to decide how their personal information is shared. Although this idea has emerged in 14 India, The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, available at https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf (last visited May 31, 2025).. 15 European Union, Regulation (EU) 2018/1807 on a Framework for the Free Flow of Non-Personal Data in the European Union, 2018 O.J. (L 303) 59, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1807 (last visited May 31, 2025). 16 European Union, Directive 2002/58/EC concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector (ePrivacy Directive), 2002 O.J. (L 201) 37, available at https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX%3A32002L0058 (last visited May 31, 2025). 17 European Union, Regulation (EU) 2016/679 of the European Parliament and of the Council on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation or GDPR), 2016 O.J. (L 119) 1, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R0679 (last visited May 31, 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 37 European law, it is not well developed in India. Because surveillance capitalism is getting stronger, it is necessary to make such principles part of the law at the national level 18 . 5. Implications for the Global South Countries including India are challenged by being both customers of new surveillance products and testing grounds for them. There are clear reasons why digital transformation matters for our success, equality, and decision-making. Alternatively, lacking or incomplete regulations can put at-risk communities at risk of being overlooked, identified incorrectly, and abused. People’s lack of knowledge about their data rights, along with differences in how much education, access, and modern infrastructure are available to them, just makes things worse for them. According to the global context, if no clear legal action is taken, surveillance capitalism will continue to become a major part of systems, business models, and politics. When India creates laws for the tech industry, it should look at what other countries do well or poorly, then make sure the rules fit the country’s customs and rules 19 . 6. Commodification of Human Behavior and the Erosion of Consent At its heart, surveillance capitalism converts human actions, likes, habits, feelings and choices into data that makes profits for companies. As a result of this evolution, instead of focusing on consent-based sharing, digital systems now introduce major ethical, legal and philosophical concerns. It goes on to show how the collection of data from people’s online actions causes the privacy and consent rules in India to be under threat. It is different from older ways of doing business by collecting and using people’s behavioral information unilaterally. Info on preferences, habits and predictions can be seen in every click or voice command you make. It is mostly important for economics to predict and influence future actions, not only to study the things we have done in the past. The process is difficult to understand, always going on in the background and usually takes place without individuals being informed or agreeing to it. Most people do not realize how much of their data is gathered, reviewed, exchanged for money and used to guide what happens to them later. It contradicts the base model of privacy which supports data independence and consensual agreements In India, it is very obvious that online consents are regularly taken away. Both mobile apps requesting many permissions and e-commerce and government websites often present users with no other choice than to consent to the terms. Most of these systems for gaining consent are hidden in hard-to-read privacy policies, which do not fulfill the requirements of informed consent expected by law 20 . Power is unbalanced, which means users usually have little choice but to accept what is given to them. This makes consent, from the point of view of the law, basically a formality with little influence on how data is used. Behavior is commercialized more through the regular collection and interpretation of sensitive details gathered by various algorithms. Social media platforms, search engines, financial apps, 18 United States, The Federal Trade Commission Act, 15 U.S.C. §§ 41–58 (1914), available at https://www.ftc.gov/enforcement/statutes/federal-tradecommission-act (last visited May 31, 2025). 19 United States, The Children’s Online Privacy Protection Act (COPPA), 15 U.S.C. §§ 6501–6506 (1998), available at https://www.ftc.gov/legallibrary/browse/statutes/childrens-online-privacy-protection-act (last visited May 31, 2025). 20 Jean Drèze, Nazar Khalid, Reetika Khera & Anmol Somanchi, “Aadhaar and Food Security in Jharkhand: Pain without Gain?”, (2017) 52(50) Economic and Political Weekly 50–60, available at https://www.epw.in/journal/2017/50/special-articles/aadhaar-and-food-security-jharkhand.html (last visited May 31, 2025).. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 38 and biometric IDs collect and examine data which builds detailed psychographic profiles that can be sold for profit or used to affect someone’s decisions. Those practices which remain unnoticeable to most users, harm the basic idea of self-authority. Algorithms influence the news, the ads, our list of friends and the items we purchase. While some areas of Indian law are modern, the system has not kept up well with these big transformations. Data protection is covered in the Information Technology Act, 2000 (as amended) by Section 43A and by the rules listed in the SPDI Rules, 2011. These laws are not strong enough to control the modern ways companies utilize personal information. Security online is the primary goal, while issues related to profiling, predictions and nudging in behavior are unfortunately not addressed. In Justice K.S. Puttaswamy v. Union of India, it was decided that informational privacy is included in the constitutional right to life and personal liberty under Article 21. A key idea of the ruling was that people should be allowed to make choices on their own without feeling pressured. The court did not precisely explain what a digital ‘yes’ looks like or what consent means in contexts where surveillance capitalism is common. After Puttaswamy, Aadhaar was allowed to be used widely for a range of services, though some limits were put in place by the subsequent judgement 21 . This gap demonstrates the judiciary’s effort to reconcile changes, governance and privacy with the constitution. Under traditional legal rules, consent means an individual willingly, knows about and agrees to details of data processing. Still, for surveillance capitalism, getting “informed consent” is essentially useless. Many studies in India and beyond prove that most users do not read privacy policies and even if they do, the legal and technical terms used are too much for them to understand. Also such policies are written in general and unclear ways to allow companies to collect and use as much data as possible. The Digital Personal Data Protection Act, 2023 (DPDP Act) was passed as a law to address concerns about data privacy and surveillance. Even though the Act is a major improvement, many people have criticized it for being too open to state access to data 22 . The Act permits the Central Government not to require some agencies to obey its rules to protect national security, sovereignty, public order, or friendly relations with other countries. Such open and general arguments make it easier for the law to allow mass surveillance without getting user consent. Moreover, there is a “deemed consent” clause in the Act, so in public health crises, you are assumed to have given consent. It reduces the effectiveness of the system of getting informed consent. People’s problems with using data are a further challenge in India. A large number of people do not know about the potential risks, the existence of data brokers, or how targeted advertising happens. Because digital literacy and internet access vary widely according to caste, class, and geography, expecting individuals to truly agree to data processing activities is impossible 23 . There are worries about digital discrimination, since those economically and socially in need are now often the main providers of behavioral information, with little defense. The way behavior is commercialized also leads to concerns 21 H. Jeff Smith, Tamara Dinev & Heng Xu, “Information Privacy Research: An Interdisciplinary Review”, (2011) 35(4) MIS Quarterly 989–1015, available at https://www.jstor.org/stable/41409971 (last visited May 31, 2025). 22 India, The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, available at https://meity.gov.in/writereaddata/files/GSR313E_10511(1).pdf (last visited May 31, 2025). 23 India, The Digital Personal Data Protection Act, 2023, No. 22, Acts of Parliament, 2023, available at https://prsindia.org/billtrack/the-digitalpersonal-data-protection-bill-2023 (last visited May 31, 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 39 about how people’s dignity is treated and the methods used to take advantage of individuals. That personal data can now be sold, examined, and changed, treating individuals only as pieces of information. This goes against what the Constitution values about human dignity and respect. It is in the Constitution of India that democratic principles guide policies, so individuals are treasured for themselves and not just for what they can provide economically. Differently, surveillance capitalism assumes that everyone can be predicted by their actions, which tends to restrict both personal and group freedom. So, to address this loss of consent, laws must address more than just data protection and deal with the deeper questions about autonomy, who we are, and our rights. Regulators are needed to protect the public from the secrecy of how algorithms decide, address the rights of groups as well as people, and ensure that those using data act responsibly. In addition, we ought to have independent authorities with the ability to check and punish those who breach data protection laws 24 . All things considered, the way human behavior is now used for profit and the steady withdrawal of consent create a huge legal and ethical problem for society today. The situation is worse in India as people use technology a lot, but regulations are not as protective as they should be. The country must look for new ways to ensure individual control, clear rules, and fairness for everyone when it comes to data. 7. State-Corporate Nexus in Surveillance: The Indian Context The growth of surveillance capitalism in India has not been an isolated phenomenon. Instead, the state has been accompanying this, and in some cases, driving it. The lines between state and corporation are getting blurry. The state-corporation nexus is being jointly developed, deployed, and normalized surveillance technology in the area of data governance. This convergence is especially important in India, where technological governance is being rapidly institutionalized, often without adequate democratic oversight and citizen engagement. This section will examine how the alliance between the state and corporations helps surveillance infrastructures to proliferate, and the problems which this convergence brings forth in terms of law, constitution, and ethics 25 . Aadhaar, India’s flagship digital surveillance program, exemplifies the merging of state and corporate interests about data collection. Aadhaar was originally meant for welfare purposes like subsidy and service delivery, but now it is used for identification in a way that offers services in the public or private sector. Aadhaar is the world’s biggest biometric identification scheme, with over a billion biometric and demographic profiles collected. Although it was said to be aimed at inclusion, the tech infrastructure of Aadhaar was built mostly with the help of corporate players like private companies dealing in biometric authentication and data analytics. The partnership has raised alarm bells regarding the commodification of sensitive data as well as the fear of function creep, the repurposing for one use having another, more sinister use in mind 26 . 24 Tal Zarsky, “The Privacy–Innovation Conundrum”, (2015) 19(1) Lewis & Clark Law Review 103–160, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2596822 (last visited May 31, 2025). 25 Lyria Bennett Moses, “How to Think About Law, Regulation and Technology: Problems with ‘Technology’ as a Regulatory Target”, (2013) 5(1) Law, Innovation and Technology 1. 26 United States, The Privacy Act of 1974, 5 U.S.C. § 552a (1974), available at https://www.govinfo.gov/content/pkg/USCODE-2011title5/html/USCODE-2011-title5-partI-chap5-subchapII-sec552a.htm (last visited May 31, 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 40 This matter of function creep was at least partially addressed by Justice K.S. Puttaswamy (Retd.) v. Union of India (2017). In this judgment, the Supreme Court of India ruled that privacy is a fundamental right under Article 21 of the Constitution. However, in the following Puttaswamy (Aadhaar) judgment (2018), the court upheld the constitutionality of Aadhaar with certain caveats, thus not dismantling the deep infrastructural entrenchment of the state. The Court annulled the prohibition on the use of Aadhaar for authentication by the private sector under Section 57 of the Aadhaar Act, but it did not specifically bar agencies of the State from using Aadhaar for many purposes, thus allowing extensive surveillance 27 . India now makes use of data and surveillance technology and systems, and is increasingly using more and more private players. The National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network & Systems (CCTNS), Central Monitoring System (CMS), and facial recognition programmes like the Automated Facial Recognition System (AFRS) heavily depend on tie-ups with private IT companies. These systems collect and put data from many sources, including phone companies, banking customers, the government, CCTV, and more into use within seconds to profile, predict, and identify. Though the reason given is national security and crime prevention, the ambiguity surrounding the deployment of these technologies gives rise to serious civil liberties and accountability issues 28 . 8. Global Comparative Frameworks: Lessons for India The issue of controlling monitoring cannot be addressed in a vacuum in the era of global digital interconnectedness. Nations all across the world have struggled with the conflict between individual rights, technological advancement, and national security. In order to create a legal framework that supports democratic principles, India, with its multicultural populace and expanding digital economy, has to interact with international best practices and jurisprudential trends. of order to derive practical lessons for the Indian legal situation, this section compares the surveillance and data protection legal regimes of important jurisdictions, notably the US, Canada, and the EU. Through extensive legislation and strong institutional frameworks, the European Union (EU) has led the way in implementing a rightsbased approach to data protection and surveillance. Strict criteria for consent, purpose limitation, data minimization, and data subject rights are imposed on data controllers and processors by the General Data Protection Regulation (GDPR), which went into effect in 2018 29 . The European Union's Charter of Fundamental Rights and the European Court of Human Rights (ECtHR) case law both include restrictions on state surveillance practices, even though the GDPR mainly governs private organizations. Proportionality is a fundamental idea that has emerged from the EU legal framework. The Court of Justice of the European Union (CJEU) declared in Digital Rights Ireland Ltd v. Minister for Communications (2014) that the Data Retention Directive was unconstitutional because it permitted indiscriminate and widespread surveillance, arguing that such actions went against the 27 India, The Information Technology Act, 2000, No. 21, Acts of Parliament, 2000, available at https://www.meity.gov.in/content/informationtechnology-act-2000 (last visited May 31, 2025). 28 Solove, Daniel J. Nothing to Hide: The False Tradeoff Between Privacy and Security. Yale University Press, 2011. Available at SSRN: https://ssrn.com/abstract=3976770. 29 Solon Barocas & Helen Nissenbaum, “Big Data’s End Run Around Procedural Privacy Protections”, (2014) 57(11) Communications of the ACM 31–33, available at https://cacm.acm.org/opinion/big-datas-end-run-around-procedural-privacy-protections/ (last visited May 31, 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 41 fundamental principles of the right to privacy guaranteed by Article 7 of the EU Charter 30 . Independent oversight is another essential component. Each member state has supervisory authorities that enforce laws and keep an eye on data protection compliance. These organizations have the authority to carry out audits, look into violations, and levy hefty fines because they are fundamentally independent. Accountability is further strengthened by the European Data Protection Board, which guarantees consistent implementation among member states. India can learn from the EU model by (1) requiring public impact assessments prior to implementing surveillance infrastructure, (2) creating an independent data protection authority free from executive control, and (3) enshrining proportionality as a constitutional principle in decisions pertaining to surveillance. The United States takes a different tack. Strong constitutional protections and public scrutiny balance out the national security paradigm that shapes its surveillance tactics, particularly in the wake of 9/11. The U.S. Constitution's Fourth Amendment forbids "unreasonable searches and seizures," and in several situations, court rulings have expanded these safeguards to include digital surveillance. The U.S. Supreme Court ruled in Carpenter v. United States (2018) that obtaining historical cell-site location data without a warrant was a search under the Fourth Amendment and so required probable cause 31 . By acknowledging that digital footprints are extremely personal and should be protected by the Constitution, this signaled a dramatic change in jurisprudence. Although surveillance for national security purposes is governed under the Foreign Intelligence Surveillance Act (FISA), its murky procedures and Edward Snowden's 2013 disclosures of widespread surveillance systems like PRISM and XKeyscore have caused significant public and political reaction 32 . By limiting the extent of metadata acquisition and requiring judicial authorization, the USA FREEDOM Act (2015) was passed with the goals of reducing bulk data collection and promoting transparency. A thriving civil society, independent media, and advocacy organizations like the Electronic Frontier Foundation (EFF) that vigorously fight and litigate against illegal monitoring are also advantageous to the United States. Public hearings, transparency reports, and amicus curiae papers all serve to further guarantee balances on state power 33 . The U.S. model emphasizes to India the value of judicial review procedures, robust freedom of expression rights, and constitutional litigation. Legislative sunset provisions and warrant restrictions can aid in halting the normalization of extraordinary surveillance authorities. Effective surveillance control relies on a combination of strong legal safeguards, robust monitoring mechanisms, and a commitment to transparency. A comparative analysis of various legal frameworks 30 Internet Freedom Foundation, “The Digital Personal Data Protection Bill, 2022 Does Not Satisfy the Supreme Court’s Puttaswamy Principles” (Dec. 1, 2022), available at https://internetfreedom.in/the-digital-personal-data-protection-bill-2022-does-not-satisfy-the-supreme-courtsputtaswamy-principles/ (last visited May 31, 2025). 31 Pranesh Prakash, “Data Protection Principles and the Indian Context”, (2011) 7(2) Indian Journal of Law and Technology 35. 32 Julie E. Cohen, “What Privacy is for”, (2013) 126 Harvard Law Review 1904. 33 Nandan Nilekani, Rebooting India: Realizing a Billion Aspirations (Penguin, 2016) Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 48 Table 1: details of the Brands of the Social medial influencer Ex-couples. S. No Influencer Couples Brand/IP 1. Kusha Kapila & Zorawar Ahluwalia*(India) Renowned for their comedic sketches and relatable lifestyle content, often featuring their dog, Maya. Kusha's vibrant personality shines through in their humorous takes on daily life, with Zorawar adding a playful touch to their videos. 2. Kritika Khurana & Aditya Chhabra* (India) Focused on trendy fashion and travel adventures, they showcased stylish couple outfits and curated travel diaries that inspired young couples to explore new destinations together. Their content blended fashion tips with relationship insights 3. Malvika Sitlani & Akhil Aryan* (India) Their brand centred around beauty tutorials and family-oriented content, featuring engaging makeup transformations and candid glimpses into their parenting journey with their daughter, Abigail, making it relatable for young families. 4. Aakriti Rana & Parleen Gill* (India) Aakriti's platform emphasized chic fashion and lifestyle inspiration. Parleen often joined her in playful outfit challenges and lifestyle vlogs that highlighted their chemistry and shared interests in style and wellness. 5. Karnika Budhiraja & Mohit Kathuria* (India) Their collaborative brand revolved around aspirational couple goals, focusing on fashion trends and lifestyle experiences that depicted their adventures together, including travel escapades. (*): Reference is taken from the Instagram profiles and Brand Pages Table 2 captures all the key numerical data related to various influencer couples in India who have recently gone through a divorce. It includes Brand Value Scores, IP Ownership Clarity, Engagement Rates Pre-Divorce, Projected Engagement Post-Divorce, and Future Opportunity Scores. The brand value scores and IP clarity scores for each of the influencer couples range from 1 to 10, while the engagement rates are presented as percentages. Data synthesis was done from case studies of the social media influencers, highlighting emergent trends and correlations in their experiences. The findings gave implications on intellectual property management and brand strategy while making transitions personally, further insight to nuances argued by such influencers on related challenges. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 49 Table 2: Impact of Divorce on Brand Value and Engagement Rates of Social Media Influencers Influencer Couple Brand Value Score (110) IP Ownership Clarity (110) Engagement Rate Pre-Divorce (%) Projected Engagement PostDivorce (%) Future Opportunity Score (1-10) Kusha Kapila & Zorawar Ahluwalia 9 7 85 75 8 Kritika Khurana & Aditya Chhabra 8 6 80 65 7 Malvika Sitlani & Akhil Aryan 9 8 90 80 9 Karnika Budhiraja & Mohit Kathuria 6 5 70 50 6 Aakriti Rana & Parleen Gill 7 6 75 70 7 2.1 Brands Value Impact As captured in the table, brand value scores reflect the perceived strength of an influencer's commercial image and reputation preand post-divorce. • Top-tier brand strength (score of 9) is observed in couples such as Kusha Kapila & Zorawar Ahluwalia, Malvika Sitlani & Akhil Aryan, Despite the emotional strain of separation, their wellestablished content niches and pre-existing solo visibility cushion the brand from collapse. • However, a noticeable decline in projected engagement (e.g., Kritika Khurana & Aditya Chhabra, down from 80% to 65%) indicates that audience investment in couple-based narratives deeply influences the post-divorce performance of the brand. • This demonstrates that couples with stronger joint personas are more vulnerable to value loss post-divorce if boundaries between personal identity and brand identity are not contractually defined. 2.2 Intellectual Property Matters The IP Ownership Clarity Score reveals how much of the couple's creative output had clearly defined legal ownership. A score of 5 or 6 suggests the absence of comprehensive IP delineation frameworks, such as marital agreements or business contracts, leading to possible ownership disputes over videos, shared brand names, or monetized content. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 50 Malvika Sitlani & Akhil Aryan show a high score of 8, suggesting clearer delineation of asset control, likely due to Malvika’s solo branding and structured business ventures. This may explain the sustained post-divorce engagement (80%). A close look at the pattern formation points to the specific role of classes based on Intellectual property in the premarital agreements, which support the division of commercial partnership forms and personally attached brands. 2.3 Engagement rates A significant drop in the audience engagement is the immediate consequence of an influencer couple's separation or impending divorce, which specifically indicates how much of their built-up brand is dependence on the relational authenticity, Engagement rate drops are the most immediate and visible aftermath of an influencer divorce, indicating how much their brand relied on relational authenticity. In cases of specific influencers like Ms Malvika, they have maintained a significantly higher audience engagement rate even after nasty divorce settlements, the main reason being their incorporation of divorce storytelling, which keeps the audience at the edge of their seats. When we look at their results closely, it seems that audience engagement planning has been done premediates. Proper provisions are included in the prenuptial agreements so that whichever platform performs well for the couple and any income generated could be diversely controlled and modified according to the partners' share. Due to the ever-changing nature of the social media economy, it has become necessary to look at all the traditional legal instruments again to incorporate the needs of such Gen Z couples. More importantly, it regulates intellectual property. Asset distribution and all brand protection are shared or covered by the couple. The overall comparison analysis of the copies, while counting the estimated projection of the audience post-divorce and the opportunity that arises, offers a detailed analysis of how the public accepts the brands that have been complimented due to personal mishaps. In cases like these, the individualised content creation helps moderate some of that effect in general. From the study of the table of active influencers, Malvika and Akhil emerge as the specific personalities whose engagement rate has been blown to more than 80%, and their future endeavours have moved to 9. This further indicates that despite a messy public divorce, their separate presence is relatively strong enough to pull their brand out of calamity and toward a fruitful income generator. This suggests that a well-maintained separation is only possible when the individual identity maintains equality with joint branding. Similarly, Cole and Savannah have also seen a gradual rise in audience engagement after their divorce, and their projection has risen to 78% with future opportunities to the point of 8. Another extremely famous couple, Kusha Kapila and Zorawar Ahluwalia, has also reflected a powerful projection of over 75%; since Kusha’s brand as a sole creator for lifestyle and cosmetics gave her a wide berth to recover from the complexities of brand division post-divorce, which is why the further engagement for their joint brand is still at 8. Jess and Gabriel have been able to maintain Kusha Kapila and Zorawar Ahluwalia also reflect a strong brand identity with a 75% projected engagement and a future opportunity score of 8. Kusha’s prior establishment as a solo creator before transitioning into a couple of content significantly boosts her post-divorce viability. t. In contrast, Aakriti Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 51 Rana and Parleen Gill show moderate audience retention and future viability with 70% post-divorce engagement and a score of 7. Their pursuits in fashion and lifestyle content likely buffer the decline, helping to sustain relevance post-split. On the lower end of the spectrum, Kritika Khurana and Aditya Chhabra register a projected engagement of 65% and a future opportunity score of 7. Their dip suggests some reliance on joint narratives and imagery, yet they still retain enough audience and aesthetic brand potential to rebuild independently. Finally, Karnika Budhiraja and Mohit Kathuria, who record the lowest post-divorce engagement at 50% and a future score of 6, represent a case where heavy reliance on a joint identity without parallel personal growth trajectories significantly weakens post-relationship sustainability. Across the board, the data reveals that influencer couples who maintained individual credibility, engaged in separate entrepreneurial activities, or had distinct personas beyond their joint content are better poised to transition into independent careers. The correlation between higher projected engagement and a robust future opportunity score underlines the importance of contractual clarity in brand ownership and IP rights especially within prenuptial agreements ensuring a smoother path for both creators if their relationship dissolves. 3. Clauses for Influencers in Marital Agreements for the Protection of Intellectual Property 3.1 Asset Division in the Digital Marital Economy Influencer couples often develop dual-brand identities, with one partner serving as the visible “face” while the other assumes behind-the-scenes responsibilities such as editing, logistics, or marketing. Despite the collaborative nature of such branding, income generated from these joint ventures is rarely distributed according to a clearly defined framework, particularly in marital contexts where earnings are often reinvested for scaling the shared brand. 22 A robust prenuptial agreement, operating within the private law framework, can function as a calibrated mechanism for demarcating ownership and income rights that reflect actual labour and investment contributions. It is essential that such agreements distinguish between collective and individual ventures: income and IP derived from solo entrepreneurial activities should remain solely with the respective partner, while joint income must be Furthermore, with the rise of hybrid brand structures where one or both partners maintain individual businesses while contributing to a shared digital identity prenuptial contracts can function as safeguards. These instruments must differentiate between brand assets co-owned by the couple and IP generated from solo pursuits, thereby preserving both entrepreneurial freedom and financial fairness. In a digital economy characterised by blurred boundaries between personal and professional domains, this contractual clarity affirms the autonomy of each party while also protecting the structural coherence of the brand. 23 22 David Vaver, 'Property in Personal Identity in a Digital World' 40(3) Oxford Journal of Legal Studies 499 (2020) 23 Paul Beaumont and Peter McEleavy, Private International Law ch. 10 (Hart Publishing, 4th edn., 2023). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 52 3.2 Defining Ownership Rights in a Globalised Influencer Economy Given the territorial fluidity of the digital world and the transnational reach of influencer content, ownership rights in prenuptial agreements must be delineated in line with IP regimes recognised both domestically and internationally. Influencer brands derive their value not just from content but from the reputational capital each partner brings to the digital interface. A prenuptial agreement, therefore, must identify all IP elements including but not limited to social media handles, logos, copyrights, domain names, follower metrics, and goodwill and allocate ownership or licensing rights in anticipation of separation or dissolution. This clause becomes even more salient in instances where audience engagement is contingent upon the public perception of the couple as a brand. Some collaborations persist solely because of fan loyalty to the dynamic between the two individuals. It is imperative, then, that legal instruments acknowledge this interdependence and provide a roadmap for IP succession or bifurcation in case of relationship breakdown. Such provisions ensure brand integrity, preclude the misuse of shared handles or platforms, and uphold contractual expectations with third parties, such as collaborators, agencies, and co-creators. Moreover, given that international influencer couples may collaborate across jurisdictions, prenuptial agreements must be drafted with an awareness of conflict-of-law rules and applicable international conventions governing IP enforcement and matrimonial property regimes. Including a choice-of-law clause and jurisdictional provisions can help in navigating disputes over assets hosted on platforms domiciled in foreign jurisdictions or governed by transnational corporate policies (e.g., Instagram, YouTube, TikTok). 3.3 Income Treatment and Financial Allocation Clauses Due to the volatile nature of influencer income, often derived from variable streams such as sponsored content, affiliate marketing, and merchandising income treatment agreement is an indispensable clause in any marital contract involving influencers. Such a clause can specify whether income generated from joint or individual IP during the marriage is to be considered community property or separate property. This pre-emptive financial partitioning is crucial in mitigating post-divorce conflicts, particularly when one party has disproportionately contributed to monetizable content. For example, the clause may stipulate that any income derived from self-created IP such as videos, ebooks, or digital courses, belongs exclusively to the content originator, unless the other party has demonstrably contributed in a creative or managerial capacity. Additionally, where one spouse’s IP generates passive income over time (e.g., through royalties or digital resales), the agreement may define how such earnings are to be distributed post-dissolution. In the international context, this becomes particularly important where foreign revenue streams or overseas brand partnerships are involved, raising questions of tax liability and foreign exchange regulation. 3.4 Valuation Methodology for IP Assets The valuation of intangible assets is a key aspect of influencer-based prenuptial agreements, particularly because social media brands derive their worth from fluctuating factors such as market reach, Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 53 algorithmic visibility, and audience loyalty. The agreement should incorporate a recognised IP valuation methodology such as income-based, market-based, or cost-based approaches to ensure empirical consistency and legal enforceability. An income-based model, which estimates present value based on projected earnings from IP, is particularly relevant in the context of influencer branding. It reflects real-time monetisation through advertisements, endorsements, and platform revenues, thereby offering a pragmatic valuation metric. Meanwhile, a market-based approach can benchmark brand worth by comparing similar influencers’ earnings, audience engagement, and contractual rates in the industry. 24 The inclusion of such comparative analytics not only strengthens the agreement but also facilitates dispute resolution by offering a standardised reference. This forward-looking legal design affirms the agreement's resilience, prevents underor overvaluation, and secures both parties’ financial futures. 25 3.5 Confidentiality Clauses: Legal Protection for Creative Processes In the competitive influencer economy, where proprietary content strategies and audience engagement techniques form the bedrock of commercial success, confidentiality clauses play a pivotal role in prenuptial contracts. 26 These clauses operate akin to non-disclosure agreements (NDAs), protecting sensitive business information including content calendars, algorithmic engagement strategies, and undisclosed collaborations from being disclosed during or after the marriage. Such provisions are particularly critical when influencer couples co-develop campaigns or proprietary marketing models. The confidentiality clause legally binds both partners to preserve trade secrets and internal strategies, thereby maintaining competitive parity in the marketplace. 27 Importantly, these clauses must be internationally enforceable, particularly where partners operate across jurisdictions or store IP assets on foreign servers. Where enforceability is in doubt, the clause can provide for alternate dispute resolution mechanisms or designate applicable laws to govern data protection obligations. 3.6 Dispute Resolution Mechanisms: Mediation and Arbitration Clauses In anticipation of disputes regarding IP ownership, income division, or branding rights, prenuptial agreements must incorporate a structured dispute resolution mechanism. Given the high public visibility of influencer couples, resolution processes that prioritise privacy—such as mediation and arbitration— are especially appropriate. 28 Mediation allows the parties to resolve conflicts amicably through a neutral third party, preserving both the integrity of the brand and the dignity of the individuals involved. Arbitration offers a more formal and binding route, providing finality and legal enforceability across jurisdictions. 29 This mechanism is particularly beneficial for influencer couples who may hold IP assets registered in multiple countries, thereby avoiding protracted litigation under conflicting national laws. 24 World Trade Organization, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1995, available at: https://www.wto.org/trips/ (last visited on June 10, 2025). 25 Smith, J., & Johnson, R. (2023). Legal frameworks for influencer marketing agreements. International Journal of Digital Law, 15(2), 123-145. 26 Brown, A. and Greenfield, R., Digital Assets and Marital Property Law: A Global Perspective (Oxford University Press, 2024). 27 Organisation for Economic Co-operation and Development (OECD), Taxation of Digital Assets: Policy Considerations for Global Economies, available at: https://www.oecd.org/digital/ (last visited on June 10, 2025). 28 Patel, R., & Singh, A. (2025). Cross-border family law and intellectual property disputes. Routledge. 29 Zhang, L. and Kim, H. J., “Transnational Enforcement of Intellectual Property Rights in the Digital Economy: A Comparative Analysis” 10(1) Asian Journal of Law and Society 89–110 (2023). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 54 Arbitration clauses should clearly define the seat of arbitration, applicable rules (e.g., UNCITRAL, ICC), and language of proceedings to ensure clarity and compliance with international standards. 4. Conclusion A close study of the effects and aftermath of divisions of influencer sites highlights that premarital agreements should have a very specific place for intellectual property protection for such a wavy and risky business of media influence. This is mostly because all the content that is generated by these people is original in their sense, which further creates some very difficult legal challenges. most of these highearning influencers with diverse assets like brands, monetizing content, specific copyrights, and other channels provide a specific source of income, which becomes a disputable part of an ongoing messy divorce. 30 While traditional prenups focus on tangible assets, influencer prenups need to take into account the IP built during the marriage and the related income. Except that the legal protections of such assets are defined appropriately, the dispute that may arise concerning the ownership of those assets could turn into expensive and protracted litigation that undoes an influencer's brand and financial stability. 31 The final examination of custom prenuptial agreements reveals a critical legal framework that must protect IP as well as brand assets, highly interwoven with one's identity and financial value. Social media influencers depend heavily on such deeply personal, brand-related assets—in copyrights over the content published, trademarks, and partnership ventures—for their revenue stream. Their circumstances raise issues that few agreements account for fully 32 (need to be edited). A well-crafted prenuptial agreement is more than financial security but strategic control of assets, ensuring that these influencers can maintain stability and focus in their professional lives in case marital circumstances change. This approach acknowledges the significant economic weight of IP in the influencer industry and positions prenuptial agreements as essential tools for preserving both personal and professional integrity. But aside from the financial protections, those agreements over the subtleties of income from an influencer account set a base of relationship equity, which can recognize the rights of each partner in a manner that an agreement on assets cannot. Influencer work lives on fluctuating incomes built on viral reach, on cycles of sponsorship and engagement of followers, which the agreements have to react to the speed and scale at which the digital economy's changes are taking place. The detailed valuation methodology and ownership rights provided through prenuptial agreements clarify how existing and future IP assets would be managed or shared, providing a more defined way to reduce potential for conflicts over sudden changes in revenue, thus allowing an influencer to focus more on creating content and expanding brands rather than worrying over unsettled financial disputes. Indeed, the expanding space of influencer collaborations-including third-party brands, co-creator partnerships, and complex intellectual property rights-brings about the need for clauses explicitly defining control and division of these assets. Joint ventures are particularly susceptible to issues of 30 Ibid 31 Supra Note 29. 32 Katz, E., “The Legal Implications of Influencer Marketing: A Study on Intellectual Property Rights” 15(4) Journal of Intellectual Property Law & Practice 275–284 (2020), available at: Oxford Academic. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 55 ownership during divorce when both partners have contributed in different yet complementary ways. A detailed prenuptial agreement should include clear guidelines about how joint and individual IPs should be valued, controlled, and divided. For example, there could be specific provisions which are tailored to include specific brand partnerships and shared assets between the couple, in which different contribution is made by the weight of the spouse and or any the creations which they jointly create for maximum audience engagement. This will help protect the monetary interest of the parties and will help keep the channel popular and going. These agreements can further help protect other forms of IP benefits with specific mechanisms and better income treatment, which is very important for the long life of influencer branding and its social life. Therefore, there need to be particular provisions designed for revaluation which focus more on the assets which contribute to the high and low of the brand and will have extreme reactions to any and all causes, whether professional or personal downfall and these changes are then tailored to the agreements and its subsequent amendment which can make changes in their career according to market shifts. 33 And at last, since these couples has chosen a career that focuses a big halogen light into their life, such agreements will have to fulfil two very important purposes: firstly, the legal side, which activates only in cases of separation or divorce and Secondly, it can help in the protection of reputation. As these agreements already have dispute resolution grandfathered in, there can be other methods that can provide a safe passage for solving their disputes without gaining much of the public light 33 Harrison, L., “Prenuptial Agreements in the Age of Social Media: Protecting Your Brand” 56(2) Family Law Quarterly 101–115 (2022). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 56 Chapter 6 The ‘Marriage – Live-In Relationship’ Dichotomy Under Uniform Civil Code of 2024 Prithvi K G* Abstract The institution of marriage is not necessarily the bedrock on which families and households are built. While it provides the traditional understanding of what a family is, the modern society does not always strictly subscribe to marriage as the only unit for voluntary association of couples. Under the pretext of giving recognition to live-in relationships, the Uniform Civil Code of 2024 enacted by the Uttarakhand Legislative Assembly redefines the essence of such relationships and poses a threat to privacy, dignity and personal autonomy of the individuals involved in such relationships. The first part of this chapter analyses the definition of live-in relationship under the Code, which is based on the content/characteristic of such relationship. The second part revolves around the aspect of ‘relationship in the nature of marriage’, to which live-in relationships are associated to, under the Code; and elucidates how the Code treats marriage and live-in relationships differently. The last part specifically focusses on the individual right to privacy and reflects upon the different standards of privacy stipulated for the individuals under marriage and those under relationships in the nature of marriage. Keywords: Uniform Civil Code, Live-in Relationships, Relationship in the nature of marriage, Right to Privacy, Intimate zones. 1. Introduction Article 44 of the Constitution of India provides that “the state shall endeavour to secure for its citizens a uniform civil code throughout the territory of India”. On a careful and detailed perusal of the Constituent Assembly Debates pertaining to Article 44, (Article 35 of the Draft Constitution) it can be understood that the intention of the framers is to enable the legislature to enact a uniform law in place of different personal laws on the same subject, especially on marriage and succession. Dr B R Ambedkar noted; “The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have Article 35 as part of the Constitution to bring about that change.” 1 The debates mainly circled around two central issues. One was pertaining to the question as to whether personal laws should be included within the scope of uniform civil code. The second issue was with respect to the inclusion (or exclusion thereof) of the provision under the justiciable part of the * Assistant Professor of Law, SVKM’s NMIMS University, School of Law, Bengaluru. 1 Constituent Assembly Debates on 23 November 1948, speech by B R Ambedkar, Volume 7, available at https://www.constitutionofindia.net/debates/23-nov-1948/ (Last visited on February 20, 2025) Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 57 Constitution. The Uniform Civil Code of 2024 (hereinafter ‘the Code’) enacted by the Uttarakhand Assembly included in its purview, not only marriage, divorce and succession, but also live-in relationships, for which the content of the law is already uniform throughout the country and it does not apply differently to various individuals based on their religion, caste, sex, or any other factor. Moreover, unlike marriage, live-in relationship is not a formal institution that has been recognized by personal laws. When a subject that need not be brought into the scope of the Code has been included in its purview, it warrants a closer look. This chapter will try to unfold the dichotomy between the rights of individuals under marital relationship and those under live-in relationships under the Code. 2. Definition based on Characteristics of a Relationship Delineating the institution of marriage in modern era is necessary before delving into the intricacies of live-in relationships and its understanding. ‘Marriage’ has not been defined under any law governing the same. The laws just provide the pre-conditions and if those conditions are satisfied, a marriage is valid in the eyes of law. It is pertinent here to note that a pre-condition is different from the nature or characteristic of a marriage and the law enumerates the former and not the latter. Of course, the law remedies the absence of certain characteristics (such as consummation of marriage) in the form of divorce, judicial separation, etc. However, presence of such characteristics are not a pre-requisite for valid marriage. It is because of the fact that the characteristic or the content of a marriage is defined by the couple of a particular marriage and it differs from one marriage to the other due to several factors. The Hon’ble Apex Court in Supriyo @ Supriya Chakraborty v. Union of India 2 (2022) also has understood the institution of marriage in the sense that there is no universal conception to it. The court observed, “Once a couple marries, it is left to them to give meaning and content to their relationship. It is their prerogative to determine the characteristics of their marriage and give meaning to their relationship. These aspects of a marriage vary with each relationship, and it is impossible for this Court to authoritatively state that a particular idea of marriage is the only valid understanding of marriage. This being the case, any attempt to formulate a general and universally applicable definition of marriage is fraught with difficulty.” 3 Even though the court laid out some of the characteristics as core components of marriage, 4 it was opined that the validity/existence of a marriage cannot be predicated upon the presence of those elements. While observing the same, the court noted; “…Many married couples may choose not to engage in sexual relations for various reasons. In some marriages, the couple may not reside in the same home or even city, temporarily or permanently. The emotional, financial, or spiritual contribution to a marriage may vary with each couple. The exercise of defining the content of the institution of marriage as well as delineating its purpose is a subjective exercise undertaken by the couple in question…” While it is true that a universal conception of the content, characteristic and purpose of marriage would be difficult to be enumerated in an exhaustive definition as the couple is entitled to their own conception 2 Supriyo @ Supriya Chakraborty v. Union of India, AIR 2023 SC 920. 3 Id. at 101. 4 Id. at 102-105. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 64 Chapter 7 Modernising The Judicial Infrastructure in the State of Bihar Nehal Ahmad Abstract This Chapter examines the current state of judicial infrastructure in Bihar, one of India's most populous and historically significant States, and explores comprehensive modernization strategies to address its systemic challenges. The judicial system in Bihar faces numerous obstacles, including case backlogs, understaffing, technological deficiencies, and inadequate physical infrastructure. This chapter analyses these challenges and proposes evidence-based solutions through technological integration, procedural reforms, capacity building, and infrastructure development. By examining successful case studies from other Indian states and international jurisdictions, this article offers a roadmap for transforming Bihar’s judicial landscape to enhance access to justice, improve efficiency, and restore public confidence in the legal system. Keywords: Judicial delay, NJDG, Case Management System, Procedural Inefficiencies, Court Digitalization 1. Introduction The judicial system represents a cornerstone of democratic governance and the rule of law, serving as the primary mechanism for conflict resolution, rights protection, and social order maintenance. In Bihar, a state with a population exceeding 104 million and complex socioeconomic dynamics, an efficient judicial system is particularly crucial. 1 Despite constitutional guarantees of justice, the state's judicial infrastructure struggles with significant challenges that impede timely and effective justice delivery. Bihar's judiciary faces an overwhelming caseload, with high pendency rates across all court levels. As of recent data, over 2.5 million cases remain pending in Bihar's courts, with district courts accounting for approximately 2.3 million of these cases. 2 This massive backlog not only delays justice but also erodes public confidence in the legal system. The saying "justice delayed is justice denied" holds great significance in Bihar’s context, where cases often face significant delays. As India progresses financially and technologically, its judicial systems need to adapt and change to meet the expectations of citizens when it comes to providing efficient service. Additionally, insufficient judicial infrastructure disproportionately impacts marginalized communities, intensifying social disparities. Moreover, economic development can be hindered by the creation of uncertainty in contract enforcement and dispute resolution Mechanisms. 3 This article explores the present condition of India's judiciary.  Assistant Professor of Law, Woxsen University, Hyderabad 1 Census of India, “Population statistics for Bihar state Office of the Registrar General & Census Commissioner” India. (2011). 2 National Judicial Data Grid, “Pendency statistics for courts in Bihar” (E-Committee, Supreme Court of India 2024). 3 M. Chemin, “The impact of the judiciary on economic activity: Evidence from India” Journal of Law, Economics, and Organization, 36 (1) 63-94 (2020). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 65 Infrastructure recognizes critical obstacles and suggests a holistic upgrade and framework encompassing technological innovations, procedural reforms, and human resources. This analysis provides practical insights into the legal aspects of other Indian states and international jurisdictions. Further, suggestions are provided for improving the accessibility, efficiency, and effectiveness of Bihar’s judiciary system. 2. Current State of Judicial Infrastructure in Bihar 2.1 Physical Infrastructure Bihar's court infrastructure is in a state of disrepair and is severely lacking in terms of resources and maintenance. Numerous court structures, originating from the colonial period, do not meet the current requirements for efficient judicial operations. Around 30% of court complexes in Bihar do not have essential facilities like sufficient courtrooms, designated areas for witnesses, proper storage for documents, and infrastructure that accommodates individuals with disabilities. 4 The physical limitations faced by courts directly affect their efficiency, leading to delays and undermining the respect and dignity associated with legal proceedings. The spatial arrangement of courts worsens access problems. Due to its rural nature, Bihar encounters difficulties in establishing a strong judicial presence in remote regions. The geographical barrier disproportionately affects economically disadvantaged populations and discourages many from pursuing legitimate legal claims. 2.2 Technological Infrastructure Bihar significantly lags in the adoption of information and communication technology (ICT) within its judicial system. While the e-Courts project was launched nationally to computerize court proceedings, implementation in Bihar remains inconsistent. Many courts still rely on manual record-keeping, leading to inefficiencies, data loss, and difficulty tracking cases. 5 Internet connectivity poses another major challenge. A recent assessment found that only 65% of courts in Bihar have reliable internet connectivity, with speeds often insufficient for video conferencing and real-time data transmission 6 The digital divide affects both urban and rural courts, though more severely in the latter. Additionally, the absence of comprehensive electronic case management systems hampers coordination between different levels of courts and other justice sector institutions. 2.3 Human Resources The judiciary in Bihar faces critical staffing shortages across all levels. Current statistics indicate that thirty-seven percent seats are vacant for judicial officers in the state. 7 This understaffing directly correlates with increased caseloads for sitting judges, with each judge handling approximately 4,200 cases, nearly double the recommended capacity. 8 Support staff shortages compound this problem. Court administrators, stenographers, clerks, and technical personnel are essential for efficient court operations, yet these positions show vacancy rates exceeding forty percent. 9 Furthermore, training and capacity4 Department of Justice, “Infrastructure assessment of courts in Eastern India” (Ministry of Law and Justice, Government of India, 2023). 5 E-Committee, Supreme Court of India, “National e-Courts project: Phase III implementation framework” (Supreme Court of India, 2024). 6 Supra note, 4. 7 Department of Justice, “Vacancy positions in subordinate judiciary” (Ministry of Law and Justice, Government of India, 2024). 8 Law Commission of India, “Optimal judicial strength and resource allocation in subordinate courts” (Government of India, 2023). 9 High Court of Patna, “Annual report on the administration of justice in Bihar” (High Court of Patna, 2024). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 66 building opportunities remain limited, with insufficient programs for continuing legal education and skill development in modern judicial technologies and case management techniques. 2.4 Case Management Systems Bihar's courts operate with fragmented case management approaches, often lacking standardized protocols for case categorization, prioritization, and tracking. Manual docketing systems predominate in lower courts, leading to inefficiencies and occasional loss of case information. While some district courts have implemented computerized case management, these systems rarely integrate with police, prosecution, or prison databases, creating information silos that impede coordinated justice delivery. 10 The current system lacks mechanisms for early case assessment and alternative dispute resolution (ADR) integration. Cases that could be resolved through mediation or Lok Adalat (people's courts) often enter the formal litigation track, further congesting court dockets. Additionally, the absence of real-time analytics and monitoring tools prevents evidence-based decision-making for resource allocation and procedural reforms. 2.5 Challenges and Bottlenecks Case Backlog and Delays Bihar's courts face a crushing backlog of cases. District and subordinate courts alone have over 2.3 million pending cases, with approximately 30% classified as over five years old. 11 The Patna High Court similarly struggles with over 200,000 pending cases. This extensive backlog is a result of various factors, including a lack of sufficient judicial resources. The officers faced challenges such as procedural inefficiencies, frequent adjournments, and complex case filing processes. The consequences of these delays extend beyond numbers. Litigants often face significant financial burdens due to legal fees and the opportunity costs associated with pursuing a lawsuit. Violations of the right to a speedy trial and presumption of innocence occur when cases are prolonged through extended pre-trial detention periods. The innocence of the defendant is a crucial factor in determining their guilt or innocence. In legal matters, delays frequently render final judgments practically useless. Furthermore, the backlog creates a self-reinforcing cycle. In the realm of legal proceedings, delays can significantly increase the chances of appeals, placing an additional burden on higher courts. 12 An examination of the institution vs. disposal has been discussed as per the of data of National Judicial Data Grid to substantiate the abovementioned points. 13 10 E-Committee, Supreme Court of India, “Status report on implementation of e-Courts project in Bihar” (Supreme Court of India 2023). 11 Supra note 2. 12 P. Datta, D. Malhotra, & S. Singh, “Judicial delays and economic consequences: Evidence from Bihar” Economic and Political Weekly, 56 (23) 45-52 (2021). 13 Supra note 2. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 67 Institution vs. Disposal Source: NJDG (2025) Procedural Inefficiencies Bihar's legal system follows procedural guidelines that tend to prioritize strict adherence to rules over expediency. The court’s procedures heavily rely on paper documents, necessitating multiple in-person visits for routine matters. The civil procedure code and criminal procedure code (now, Bhartiya Nyaya Suraksha Sanhita, 2023), although comprehensive, have provisions that can be manipulated by litigants and lawyers to cause strategic delays. For instance, liberal adjournment policies and intricate service procedures frequently cause delay in case timelines unnecessarily. 14 Furthermore, the current case scheduling methods in many courts are outdated, as multiple cases are listed together, leading to overcrowded courtrooms and inefficient use of time. The lack of specialized case management, where cases are handled based on their complexity and needs, results in simple matters consuming a significant number of judicial resources. These procedural inefficiencies undermine reform efforts and technological improvements. There are different types of cases pending in the different courts of the State of Bihar. The National Judicial Data Grid speaks louder on this issue. 15 14 S. Krishnaswamy, S. Sivakumar, & S. Bail, Procedural barriers to efficient justice delivery in Indian courts “National Law School of India Review” 34 1 87-105 (2022). 15 National Judicial Record Grid (2025), available at https://njdg.ecourts.gov.in/njdg_v3/ (Visited on May 10, 2025) Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 68 Source: NJDG, (2025) Resource Constraints Bihar's judicial system operates under severe resource constraints. The state allocates approximately 0.5% of its budget to the judiciary, significantly below the national average and far from the 1.5% recommended by various legal commissions. 16 This underfunding manifests in inadequate court infrastructure, technological limitations, and staffing shortages. Financial constraints also affect judicial officers' working conditions, potentially impacting performance and vulnerability to corruption. Support functions like legal aid services, witness protection programs, and court administration receive even less funding, further compromising justice delivery. While national schemes like the Centrally Sponsored Scheme for Judicial Infrastructure Development provide some support, implementation gaps and absorption capacity issues limit their effectiveness in Bihar. 17 Technological Adoption Barriers Despite national initiatives for court computerization, Bihar faces unique challenges in technological adoption. Digital literacy remains low among court staff, judicial officers, and legal practitioners. A recent survey found that only 58% of judicial officers and 42% of court staff in Bihar reported comfort with basic computer operations. 18 This skills gap impedes the effective utilization of available technology. Resistance to technological change represents another significant barrier. Traditional practices and scepticism regarding digital systems' reliability create cultural resistance among legal professionals. Additionally, inadequate technical support and maintenance capabilities result in 16 State Budget Analysis, “Budget allocation trends for judiciary in Indian states” (Centre for Budget and Governance Accountability, 2024). 17 Supra note 8. 18 Justice Innovation Lab, “Digital readiness assessment of courts in Eastern India” (Ministry of Law and Justice, 2023). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 69 frequent system downtimes, reinforcing scepticism about technology. The absence of comprehensive change management strategies during digital transformations further hampers adoption efforts. The attached report of the National Judicial Data Grid, 2025 19 mentions the numerous reasons for such delay in the cases in the State of Bihar. Reasons For Delay: Source: NJDG (2025) 3. Modernization Framework and Technological Solutions 3.1 Comprehensive Court Digitization A holistic digitization strategy for Bihar's courts should encompass several interconnected elements. First, implementation of advanced Case Information Systems (CIS) that enable end-to-end digital case management, from filing to disposition. The latest CIS 3.0 platform, currently being rolled out nationally, incorporates features specifically designed for high-volume environments like Bihar's courts. 20 Second, development of robust Document Management Systems (DMS) to digitize existing case records and enable fully digital filing for new cases. Studies indicate that comprehensive DMS implementation can reduce case processing time by up to forty percent, and virtually eliminate physical storage requirements. 21 Third, implementation of interoperable platforms that connect courts with police, prosecution, prisons, and other justice sector institutions. These integrated justice information systems 19 Supra note 15. 20 Supra note 5. 21 National Court Management Systems Committee, “Performance standards for courts: Benchmarks and evaluation framework” (Supreme Court of India, 2023). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 70 enable seamless information flow, reducing delays caused by communication gaps and enhancing coordination among justice sector actors. 22 3.2 Virtual Courts and Remote Proceedings Bihar should accelerate the adoption of virtual court infrastructure to overcome geographical barriers and expand access to justice. Video conferencing facilities in all courts, combined with secure digital platforms for remote hearings, can dramatically reduce the need for physical appearances in routine matters. The research conducted in Maharashtra as part of pilot projects demonstrated that virtual hearings resulted in thirty five percent reduction in case processing time and a cost savings of over fifty percent for litigants. 23 Mobile court units that are equipped with digital connectivity have the potential to extend judicial services to remote areas. These units are equipped to handle minor conflicts, gather evidence, and support alternative methods of resolving disputes. Furthermore, the creation of courtspecific mobile applications can offer litigants access to case details, hearing schedules, and simplified procedural instructions, promoting transparency and minimizing the need for unnecessary court visits. 3.3 Artificial intelligence and Analytics Innovative technologies such as Artificial Intelligence (AI) and analytics have the potential to bring about significant changes in Bihar’s judicial system. AI-powered tools can aid in categorizing cases, optimizing schedules, and conducting precedent research, thereby improving judicial productivity while ensuring human oversight for decision-making. Natural language processing applications can expedite document review and summarization, enabling judges to process case materials more efficiently. 24 Predictive analytics can pinpoint potential bottlenecks in the case flow and guide resource allocation decisions. By studying patterns in the progression of cases, courts can implement focused interventions in specific case types or stages where delays are commonly observed. Moreover, judicial performance dashboards can offer real-time information on caseloads, disposal rates, and pendency periods, facilitating evidencebased management of judicial resources. 25 3.4 Procedural Reform Streamlining of Legal Processes Bihar's judicial system needs to simplify its procedures to minimize unnecessary complexity. This includes revising rules that require physical presence for procedural matters, simplifying filing requirements, and introducing standardized forms for frequently encountered case types. Multiple High courts, such as Kerala and Delhi, have effectively implemented streamlined procedures that resulted in a significant decrease in filing errors by over forty percent and processing time by twenty percent. 26 Pretrial case management conferences can establish well-defined timelines and expectations, minimizing 22 UNDP, “Integrated justice information systems: Design principles and implementation guidelines” (United Nations Development Programme, 2022). 23 Judicial Reform Initiative, “Impact assessment of virtual courts in Maharashtra: Efficiency and access outcomes” (Indian Law Institute, 2023). 24 National Legal Services Authority, “Application of artificial intelligence in legal aid services: Opportunities and implementation framework” (Ministry of Law and Justice, 2023). 25 Technology Committee, Patna High Court, “Technology roadmap for courts in Bihar: 2023-2028” (High Court of Patna, 2023). 26 Supra note 8. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 71 adjournments and ensuring cases move forward in a systematic manner. Furthermore, adopting differentiated case management frameworks would enable courts to distribute resources in a manner that aligns with the complexity of each case. Simple matters can be resolved quickly with streamlined procedures, while complex cases require more structured scheduling orders and judicial attention. Alternative Dispute Resolution Integration Enhancing alternative dispute resolution (ADR) mechanisms is a vital approach to alleviate court congestion. Bihar should set up court-affiliated mediation centers in every district, staffed by trained mediators and equipped with suitable facilities. The Tamil Nadu experience demonstrates that effective mediation programs can achieve settlement rates exceeding sixty percent for referred cases, significantly reducing the number of cases that end up in court. 27 In specific case categories, like family disputes, commercial matters below a certain value, and land disputes, mandatory pre-litigation mediation can redirect cases away from formal court procedures. Simultaneously, improving the infrastructure, scheduling, and raising awareness about Lok Adalat can create more accessible justice forums for citizens. The integration of Online Dispute Resolution (ODR) platforms can enhance accessibility to alternative dispute resolution (ADR), especially for urban populations and straightforward commercial disputes. Performance Tracking Systems Implementing effective systems to monitor judicial performance can improve accountability and efficiency. This involves establishing key performance indicators (KPIS) for courts at different levels, such as metrics like case clearance rates, average time to resolve cases, and the number of cases still pending. By conducting regular performance reviews based on these metrics, bottlenecks can be identified, and targeted interventions can be implemented. 28 To ensure efficient case management, protocols should be established to monitor the progress of cases from initiation to resolution, with automated notifications for cases that take longer than usual to resolve. Moreover, surveys conducted among users can offer valuable insights into court services and pinpoint areas that require enhancement from the litigant's viewpoint. The monitoring mechanisms should prioritize improvement over punitive oversight, concentrating on systemic enhancements rather than assigning blame to individuals. 3.5 Human Capital Formation Strengthening the Judicial System Tackling the issue of vacant judicial positions is an urgent matter, necessitating efficient recruitment procedures and strategic planning for future requirements. Bihar needs to create a plan for the next ten years, considering factors like the number of cases, retirement schedules, and population changes, to ensure an adequate number of judges. Simultaneously, improving the Bihar Judicial Academy's ability to offer comprehensive induction training and ongoing education programs for judicial officers is 27 Mediation and Conciliation Project Committee, “Strengthening court-annexed mediation: A roadmap for Indian judiciary” (Supreme Court of India, 2023). 28 Supra note 21. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 72 crucial. 29 Training programs focusing on emerging legal areas, such as cyber law, environmental law, and commercial disputes, can improve judges' ability to address intricate contemporary problems. Incorporating digital literacy training into judicial education should be a fundamental aspect, enabling judges to feel at ease with technological tools that are becoming essential for performing their duties. Training for court leaders in management can enhance administrative efficiency and change management skills. Hiring Additional Staff and Supporting Team Court support staff also need similar attention to capacity building and career development. To facilitate technological modernization, court establishments should establish technical positions for management, data analysis, and system administration. These positions should provide attractive compensation packages to entice qualified professionals who might otherwise opt for private sector employment. To enhance the capabilities of current administrative staff, training programs should prioritize the development of digital skills, modern case management techniques, and a citizen-centric approach to service delivery. Moreover, outlining clear career advancement opportunities for court staff can enhance their job satisfaction and facilitate their professional growth. Conducting regular skill assessments and implementing performance-based incentives can significantly boost staff motivation and productivity. 30 Public-Private Partnerships Leveraging public-private partnerships (PPPs) can address resource constraints while bringing specialized expertise to judicial modernization. Technology companies, academic institutions, and legal service providers can contribute to specific modernization initiatives through structured partnerships. For example, technology firms can assist in developing and maintaining court management software, while law schools can support legal research and training programs. PPP models successfully implemented in other sectors, such as build-operate-transfer arrangements for court buildings or service agreements for technology maintenance, can be adapted to judicial infrastructure development. However, these partnerships must include appropriate safeguards to maintain judicial independence and data security, with clear accountability mechanisms and performance standards. 31 3.6 Infrastructure Development Court Facilities Enhancement Bihar requires a comprehensive court infrastructure development plan addressing both quantity and quality dimensions. This includes constructing new court buildings in underserved areas and renovating existing facilities to meet contemporary standards. All court complexes should incorporate separate areas for different functions—waiting areas, consultation rooms, witness areas, and administrative sections—to improve functionality and dignity of proceedings. Infrastructure design should prioritize accessibility, with ramps, elevators, accessible toilets, and appropriate signage for differently abled users. Furthermore, dedicated areas for alternative dispute resolution, legal aid services, and digitization 29 Supra note 4. 30 High Court of Patna, “Staff recruitment and training policy for subordinate courts” (High Court of Patna, 2023). 31 Ministry of Law and Justice, “Guidelines for public private partnerships in judicial infrastructure development” (Government of India, 2023). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 73 facilities should be incorporated into court complexes. It is essential for all judicial buildings to have modern security systems, fire safety equipment, and disaster resilience features as standard. 32 Digital Infrastructure A dependable digital infrastructure is a prerequisite for the technological transformation of society. This necessitates a reliable and fast internet connection in all courtrooms, backup power systems to avoid interruptions, and suitable equipment for digital court proceedings. The server infrastructure, whether it is located on-premises or in the cloud, needs to be strong enough to handle growing amounts of data while ensuring security and reliability. In remote regions, solutions like satellite internet or cellular technologies can help overcome connectivity issues. Furthermore, setting up alternative locations and backup plans guarantees that businesses can continue operating smoothly even in the face of technical issues or natural calamities. It is important to allocate funds for regular technology updates to avoid the risk of critical systems becoming outdated. 33 Green Court Initiatives To promote sustainability, modern judicial infrastructure should adopt green court initiatives. By implementing energy-efficient building designs, integrating solar power systems, incorporating rainwater harvesting techniques, and establishing effective waste management facilities, environmental impact can be minimized, leading to substantial long-term cost savings. Research suggests that green buildings can decrease energy usage by 25-30% when compared to traditional structures, resulting in substantial operational savings throughout their lifespan. 34 Digital operations can contribute to sustainability by minimizing paper usage, transportation demands, and the need for physical storage. These initiatives are in line with national environmental goals and may be eligible for funding through climate action programs. Green certification for court buildings can set standards for environmental performance and showcase institutional dedication to sustainability principles. 4. The Action Plan 4.1 Phased Methodology Upgrading Bihar’s judicial infrastructure necessitates a gradual approach, spanning several years, to ensure a smooth transition. The initial phase should concentrate on fundamental aspects—filling critical vacancies, setting up basic digital infrastructure, and implementing procedural reforms with minimal resource demands. This generates immediate successes while establishing a foundation for more intricate interventions. The second phase can introduce advanced technological solutions, improve alternative dispute resolution methods, and initiate significant infrastructure projects. The last stage would concentrate on advanced applications such as artificial intelligence, integrated justice sector information systems, and specialized court facilities. This gradual approach enables learning and 32 Infrastructure Committee, High Court of Patna, “Court infrastructure development plan: 2023-2028” (High Court of Patna, 2023). 33 National Informatics Centre, “Digital infrastructure requirements for courts: Technical specifications and deployment guidelines” (Ministry of Electronics and Information Technology, 2023). 34 Bureau of Energy Efficiency, “Energy efficiency in public buildings: Benchmarks and standards” (Ministry of Power, Government of India, 2023). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 80 The case of C.B. Muthamma v. Union of India 7 is of the petitioner who qualified for the Union Public Services and at the time of her interview, the Chairman of the U.P.S.C. tried to dissuade her from joining the Foreign Service. Upon joining the service, the petitioner was required to sign a declaration stating that she would resign if she chose to marry. Throughout her tenure, she encountered various instances of gender-based discrimination solely due to her being a woman, despite constitutional safeguards. Article 15 of the Indian Constitution expressly prohibits discrimination based on religion, race, caste, sex, or place of birth, while Article 14 guarantees equality before the law. The Court noted that such biased service rules clearly reflected gender discrimination. Consequently, it held these rules unconstitutional, declaring them in violation of the right to equality. In another case of Govt. of A.P. v. P.B. Vijay Kumar 8 The Supreme Court upheld the validity of the Andhra Pradesh Government's decision to reserve 30 percent of positions in state services for women. The Division Bench clearly affirmed that Article 15(3) of the Constitution grants the State broad authority to make special provisions for women, extending across all areas of State functions, including public employment. Therefore, the creation of employment-related benefits or reservations for women is considered a legitimate and essential application of the powers granted under Article 15(3). Article 16(1) of the Constitution of India provides “equality of opportunity in matters relating to employment or appointment to any office under the State.” 9 The right to equality concerning employment or appointments applies specifically to positions under “the State.” This includes all aspects of public employment such as recruitment, promotions, salary, termination, periodic pay raises, leave entitlements, gratuity, pension benefits, and the age of retirement. Article 21 of the Constitution of India provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” 10 Article 21 of the Constitution, which guarantees the Right to Life, inherently includes the right to live with dignity. This encompasses all elements that contribute to a life of meaning, fulfilment, and value. Gender-based discrimination has been acknowledged as a barrier that hinders the complete realization of this fundamental right to dignified living. In C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil 11 The Court affirmed that every individual inherently possesses the rights to equality, personal dignity, and development. To ensure the effective enjoyment of the Right to Life under Article 21, it is essential that women are free from genderbased barriers and discrimination. The Court emphasized the State’s duty to actively remove such discrimination and to establish an environment that enables women to fully exercise their right to economic progress, along with their social and cultural rights. The Supreme Court in Vishakha v. State of Rajasthan 12 ruled that every instance of sexual harassment faced by women in the workplace constitutes a breach of the Right to Life guaranteed under Article 21, as it encompasses the right to live with dignity. It further stated that gender equality inherently includes 7 C.B. Muthamma v. Union of India, (1979) 4 SCC 260. 8 Govt. of A.P. v. P.B. Vijay Kumar, (1995) 4 SCC 520. 9 The Constitution of India, Art. 16. 10 The Constitution of India, Art. 21. 11 C. Masilamani Mudaliar v. Idol of Sri SwaminathaswamiThirukoil, (1996) 8 SCC 525. 12 Vishakha v. State of Rajasthan, (1997) 6 SCC 241. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 81 safeguarding women from sexual harassment and ensuring their right to a dignified work environment. This interpretation aligns with principles enshrined in international conventions and global standards. This was reiterated in Bodhisattwa v. Subhra Chakraborty 13 , The Supreme Court emphasized that under Article 21, women are entitled not only to the right to life and personal liberty but also to be treated with respect and recognized as equal members of society. It held that rape constitutes a form of violent aggression intended to demean and humiliate women. Such acts are not only grave violations of fundamental human rights but also infringe upon the constitutional guarantee of the Right to Life under Article 21. Article 39 provides that “all the citizens have the equal right to an adequate means of livelihood.” 14 An obligation has been put on the State through this Article that it should focus its policy towards ensuring equal pay for equal work for both men and women and that the health and strength of workers, is maintained by the State. The main principle behind this provision is “equal wages for equal work irrespective of sex”. The Equal Remuneration Act, 1976, the Bonded Labour System (Abolition) Act, 1976, the Factories Act, 1948, the Mines Act, 1952, the Workman’s Compensation Act, 1923, the Plantation Labour (Amendment) Act, 1981 and several other statutes have been enacted to further the objectives laid down in this Article. Article 42 provides that “the State shall make provision for securing just and humane conditions of work and maternity relief.” 15 The Maternity Benefit Act was passed in the year 1961 to provide 12 weeks maternity leave with wages to women workers and other benefits. 2.2 Protection by Legislation Indian Penal Code, 1860/ Bhartiya Nyaya Sanhita, 2023 The Law Commission of India after taking into consideration the problems in existing laws for securing evidence to prove dowry deaths, Section 304B was introduced in the IPC to deal with dowry death to take control of increased cases of dowry related cruelty resulting into deaths. According to Section 304B, if death of the married woman occurs within seven years of her marriage in unnatural circumstances, it shall be considered as dowry death. 16 Section 498A of IPC deals with Cruelty against women. The section addressed cruelty by a husband and his family towards a married woman in particular. Cruelty under this section can be defined as the intentional infliction of severe pain or suffering whether physical or mental. 17 Now, after the enforcement of Bhartiya Nyaya Sanhita, 2023 18 , the provisions related to Dowry Death have been incorporated in Section 80 19 and the provisions related to Cruelty by husband and his relatives 13 Bodhisattwa v. Subhra Chakraborty, (1996) 1 SCC 490. 14 The Constitution of India, Art. 39. 15 The Constitution of India, Art. 42 16 The Indian Penal Code, Sec. 304B 17 The Indian Penal Code, Sec. 498A 18 The Bhartiya Nyaya Sanhita, 2023 (Act No. 45 of 2023). 19 The Bhartiya Nyaya Sanhita, 2023, Sec. 80. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 82 has been dealt with under Section 85. 20 There have been no changes in these two provisions under the new laws. Protection of Women from Domestic Violence Act, 2005 Very few provisions existed in India on the issue of violence before the enactment of the DV Act. Women were not aware about any of their rights that existed in their matrimonial home. They were often thrown out of their homes because of insufficient dowry, harassment and cruelty. Women had to rely only on the Indian Penal Code to get any relief. In the 1980s, two very important provisions were enacted to bring the issue of domestic violence out of the four walls of homes. The first one was Section 498A which made violence in marriage a criminal offence. The second one was the insertion of Section 304B of Indian Penal Code which introduced the offence of dowry death. In 2001, the Government of India circulated the “Domestic Violence against Women Prevention Bill, 2001” which provided a mechanism to protect women who have become victims of domestic violence and to let them approach the court. It also provided for the provisions of protection order and protection officers. The Bill had a long journey from 2001 when it was introduced in the Parliament, to 2005, when finally, the Act was passed. The DV Act was brought into force from October 2006. The Act was brought into force to implement Recommendation No. 12 of UN Committee on CEDAW which was ratified by India in June, 1993. The salient features of the Act are: • The Act is the first effort to recognise domestic abuse as punishable and to provide emergency relief to the victims. Prime beneficiaries of the Act are women and children. • Domestic relationship is defined in the Act as “any relationship between two persons who live or have, at any point of time, lived together in the shared household.” 21 • The Act has taken into consideration all the forms of abuse such as physical, mental, sexual, verbal, psychological and economic abuse or threats of the same. • The Act ensures the woman’s right to have a secure housing. The Act provides for the woman’s right to reside in the matrimonial or shared household, whether she has any title or rights in the household or not. This right is secured by Residence Order. 22 The woman is also entitled the right to an alternate accommodation if required. • Section 8 of the Act outlines the appointment and responsibilities of Protection Officers, who are designated by the State Governments. Operating under the supervision of the Court, these officers are tasked with overseeing domestic violence cases. Their duties include ensuring that individuals affected by domestic abuse receive necessary support such as legal aid, medical care, secure accommodation, and other essential assistance. 20 The Bhartiya Nyaya Sanhita, 2023, Sec. 85. 21 The Protection of Women from Domestic Violence Act, Sec. 2(s). 22 The Protection of Women from Domestic Violence Act, Sec. 17. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 83 • The Central Government has the duty under the Act to give Publicity to the provisions of this Act, sensitize and make people aware on the issues addressed by this Act. • The various remedies available to an aggrieved person under the Act are- • Protection Orders under Section 18 • Residence Order under Section 19 • Monetary Relief under Section 20 ▪ Custody Orders under Section 21 ▪ Compensation Orders under Section 22 ▪ The Magistrate’s power to grant interim and ex parte orders under Section 23. • Section 18 of the Act empowers the Court to issue a Protection Order that restrains the respondent from engaging in any form of abuse, disposing of or interfering with any property belonging to the woman, harming her dependents, or carrying out any other actions as outlined in the order. • The Act mandates that women be provided with monetary relief to cover expenses and compensate for losses they have endured, which may include loss of income, medical costs, and other related expenditures. • According to Section 21 of the Act, the Magistrate has the authority to grant temporary custody of a child or children to the aggrieved individual or to someone applying on her behalf. 3. Need for Reform Domestic violence is one of the most deeply rooted and widespread forms of abuse across the globe, showing up in various ways—physical, emotional, psychological, sexual, and economic. Historically, the fight against domestic violence has justifiably centred on protecting women, who have often been the primary victims in patriarchal societies. However, this focus has unintentionally created a legal and institutional gap: the experiences of male victims, and the broader spectrum of victimhood that goes beyond traditional gender roles. In India, domestic violence laws, especially the Protection of Women from Domestic Violence Act, 2005 (PWDVA), marked significant progress in ensuring safety and justice for women at home. This act emerged from a growing awareness that the private sphere—often seen as outside the reach of law— was a hotbed for abuse and oppression. It was a strong acknowledgment of gender-based violence rooted in systemic inequality. Yet, by concentrating solely on women as victims and men as perpetrators, it has unintentionally reinforced a gender bias that overlooks the complexities of interpersonal abuse. One of the most significant gaps in India's domestic violence framework is the absence of legal recognition and protection for male victims. The belief that men are inherently dominant and immune to domestic abuse arises from rigid gender norms and patriarchal ideas. Men are often taught to be stoic, emotionally tough, and physically strong, which makes it hard for society to see them as victims. As a Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 84 result, when men do experience abuse—whether physical, emotional, or psychological—they often face disbelief, mockery, or silence. This stigma is incredibly harmful. Male victims of domestic violence often suffer in silence, lacking support from the legal system, law enforcement, or even their friends and family. When they do report abuse, they often face ridicule, feelings of emasculation, or accusations of being weak. Consequently, many choose to stay quiet, stuck in abusive situations without any legal options or institutional help. A 2022 study published in the Journal of Family Issues reveals that male victims experience significant psychological trauma from domestic abuse just like women do. However, in India, their suffering is neither recognized socially nor protected legally. This leads to a systemic failure that leaves countless men and non-binary individuals without the necessary safeguards. The gender-specific nature of Indian domestic violence laws is not only socially outdated but also legally questionable. It goes against the fundamental rights guaranteed by the Constitution of India, particularly Articles 14 and 15. By limiting legal protection to women, the PWDVA ignores the principles of inclusivity and nondiscrimination. While affirmative action and gender-sensitive laws are essential to address historical inequalities, they shouldn't come at the expense of excluding other vulnerable groups who face similar challenges. True equality isn't about selectively granting rights; it's about applying them universally. Additionally, this exclusion raises serious concerns about due process and equal treatment under the law. If laws meant to prevent abuse fail to recognize the full range of victims, they risk becoming instruments of injustice rather than protection. 4. Global Practices India isn't the only country facing the tough challenges of domestic violence. In fact, many nations have made significant strides in recognizing that abuse isn't limited to just one gender or sexual orientation. For example: • United States: The Violence Against Women Act (VAWA) started off with a gender-specific focus, but it has since been updated to protect male and LGBTQ+ victims as well. Now, federal law requires that domestic violence programs receiving funding must treat everyone equally, regardless of gender or orientation. • United Kingdom: The Domestic Abuse Act 2021 offers a thorough, gender-neutral definition of domestic abuse, covering economic, emotional, and coercive control, and applies to all victims, no matter their gender or sexual identity. • Canada: Both provincial and federal laws ensure that all individuals facing domestic abuse are protected, making services like restraining orders, housing support, and counselling available to everyone, including men. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 85 These legal frameworks highlight an important reality: domestic violence is fundamentally about power and control, not gender. By recognizing the variety of victim experiences, these countries are taking a more compassionate and comprehensive approach to preventing and addressing domestic violence. 5. Way Forward India needs to rethink its strategy on domestic violence with a more inclusive perspective. The goal should be to enhance, not weaken, the protections currently in place for women, while also broadening the law to cover all individuals who suffer from abuse in domestic environments. This can be accomplished through a few key policy and legal changes: 5.1 Amending the PWDVA, 2005: The act should be updated to use gender-neutral language, ensuring protection for everyone in domestic relationships, including men, transgender individuals, and nonbinary people. 5.2 Introducing Parallel Legislation: Alternatively, a new law could be created that specifically addresses domestic abuse in a gender-neutral and inclusive way, working alongside the PWDVA. 5.3 Sensitizing Law Enforcement and the Judiciary: It's crucial for police officers, magistrates, and support service providers to receive training that helps them recognize and respond to all victims of domestic violence with compassion and fairness. 5.4 Establishing Gender-Inclusive Shelters and Helplines: Many shelters run by the government and NGOs primarily serve women. We need to create dedicated spaces for male and LGBTQ+ victims to ensure they have access to the support they need. 5.5 Promoting Data Collection and Research: The absence of reliable data on male and LGBTQ+ victims leads to their marginalization. Conducting regular, unbiased research is vital for developing policies based on solid evidence. 5.6 Launching Public Awareness Campaigns: We should strive to dismantle the stigma surrounding male victimhood through educational initiatives that confront harmful gender stereotypes. 6. Conclusion Domestic violence transcends gender—it's a human rights issue that impacts individuals across all identities. While safeguarding women is a critical and urgent goal, our legal systems must adapt to acknowledge the complex realities of abuse in all its forms. Ignoring men and other marginalized groups in protective measures not only undermines justice and equality but also fosters a troubling silence around their pain. India, a nation dedicated to democratic values and constitutional integrity, must transcend the gender binary in tackling domestic violence. By embracing an inclusive, rights-based approach, the country can ensure that all victims regardless of gender, orientation, or identity—receive the protection and dignity they rightfully deserve. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 86 Chapter 9 Cracking the Code on Gender Bias in Indian Law Sital Baa* Abstract Universally two books are subject to interpretation, these are religious and legal text books. The world which we live in are usually headed by the men. History, law and order, the judiciary are male in design. The Legal structure of a society are male occupied. The law, often seen as a spine of justice, frequently fails women and gender minorities in India due to deep-rooted patriarchal and caste-based system. As feminist Catharine MacKinnon states, "The law sees and treats women the way men see and treat women." Despite constitutional safeguards, the Indian legal system often reflects societal biases, systematically marginalizing vulnerable sections. The police and judiciary, shaped by dominant caste and gender norms, tend to uphold upper-caste male narratives, diminishing access to justice for the fairer sex. Echoing this, Ruth Bader Ginsburg famously said, “Women belong in all places where decisions are being made.” This chapter investigates the evolution of gender neutrality in Indian law, examining its socio-legal implications, institutional bias, and the pressing need for reform. Although legal strides have been made, laws still operate within a rigid sexist lens. No Marital Rape laws, domestic violence, sexual harassment at workplace, Maternity Benefit Act needs to be addressed and properly implemented. In contrast, countries such as Canada and the United Kingdom are implementing gender-neutral legal terminology and inclusive family legislation. The chapter will look at how caste, class, and religion influence Indian justice. Indian law requires both legislative reform and systemic sensitization. Only by removing these structural biases can we create a legal system that is truly inclusive and intersectional. Keywords: Gender Bais, Discrimination, Caste, Sexism, socio-legal implications 1. Introduction Most of the societies are centered around religious teachings. Hinduism and the Jewish textbooks are most ancient. Even if we include Christianity, Islam, Buddhism to name a few, the narratives revolve around the male figure. The Masculine Gods have all the power and position. This is replicated in all fields. India is a land of diverse cultures, traditions and practices. Modern India is almost 77 years old. It has one of the largest democracies and a fast-growing economy. Unfortunately, its law book is still colonial and archaic in nature. It serves more to the privileged caste and gender. 1 Women in India have long been viewed as a marginalized group and have been ignored for centuries. Gandhi called for women's emancipation during the country's fight for independence. He advocated for * MPHIL in sociology from JNU, PHD scholar from PWU: Philippine Women's University. 1 Upendra Baxi, The Future of Human Rights (3rd edn, Oxford University Press, New Delhi, 2008) p. 85. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 87 their rights. “The difference in biology and physical form denotes no difference in status. Woman is the complement of man, and not inferior”, MK Gandhi. 2 During nation building, drafting a constitution was India's top priority after gaining independence. According to the constitution's preamble, all citizens would be granted ‘justice-economic, social, and political’. The constitution states that Indian citizens will have equal legal protection and equality before the law. Similarly, no citizen shall face discrimination on the basis of sex. Equal employment opportunities for all citizens are guaranteed by Article 15(1). The state may make any special provisions for women and children, according to Article 15(3). Additionally, state policy directive principles that directly affect women and have a unique impact on Article 39(a) guarantees the right to a sufficient standard of living; (b) equal compensation for equal labor performed by men and women; and (c) directly affects their status; (d) safeguarding the health and well-being of employees, including men, women, and children; additionally, Article 42 offers maternity leave and fair working conditions. It is critical to remember that, despite the fact that the Indian Constitution has been in force for over 77 years, there is still doubt about the advancement of women's position compared to men in both the private and public space. Religious personal laws give men more privileges than women. This gives rise to numerous taboos, including patriarchy, early marriage, dowry, and domestic abuse. The society has imposed verdicts on women. Women not only feel inferior, but also helpless, because the girls have been raised in such a way that they do not speak out against prejudice. Though the government has made steps to improve women's position by enacting the civil code, people's thinking patterns must alter in order to give women confidence in their abilities. Society is stratified in various layers. Individuals are ranked according to their gender performance. The term 'gender' refers to socio and construct. Gender does not depend on biological traits. The discrimination caused by the nature of birth and the genitalia determines one’s growth. This problem is referred to as Gender Biasness, which signifies gender stratification or distinguishing between a man and a female. According to Giddens, sociologists define gender disparity as the gap in organizations, collectivities, and societies, both men and women have rank, power, and prestige. 3 There is a male preference in the Indian subcontinent. Discrimination against women begins at birth and persists throughout their lives. The use of sex determination techniques results in the abortion of an unborn girl child. 4 From birth, a girl child is not treated equally to boys in the same family and is viewed as a burden by her parents or family. She is always treated invisible, as last to eat, gets no facilities, less education, least opportunities, no equity or equality. The 2011 census showed that women's literacy was 65.46% while men's was 82.14%. Parents' reluctance to invest in their daughters' education stems from the underlying belief that women's education is useless because they will only serve their husbands and families in the future. 2 M. K. Gandhi, Women and Social Injustice, compiled by R. K. Prabhu (Navajivan Publishing House, Ahmedabad, 1945) p. 26. 3 Anthony Giddens, Sociology (5th edn, Polity Press, Cambridge, 2006) p. 453. 4 M. Das Gupta, ‘Selective Discrimination Against Female Children in Rural Punjab, India’ (1987) 13 Population and Development Review 77–100. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 88 Additionally, property rights and the law are not effectively enforced, and inheritance is for sons typically have the only right, not daughters. The social structure is such that daughters have no claim on their property rights, despite the fact that laws protecting women's rights on parental property are now implemented. 2. History of Feminine Voices Against Patriarchy The women's redemption phase began in the late nineteenth century, firstly were the elite Hindu men and women, then among Muslims. 5 Aside from emphasizing education, they collaborated to alter the traditional practice in 1920s. They were raising new ideas such as widow remarriage, question polygamy, property rights, and sati (women's ritual suicide), women founded their own autonomous organization, the All-India Women's Conference (AIWC). 6 In 1934, the AIWC submitted a law seeking equality in marriage, divorce and rights in property. They focused on nationalist rights, and women were given constitutional equality after the country gained independence in 1947. However, religious communities such as Hindus, Muslims, and others-maintained control over their own family laws. The second wave started as grassroots groups that concentrated not just on gender, but also on culture, class, and caste as causes of women's subjugation This movement's organizations had ties to labor, peasant, tribal, and leftist opposition parties. Their actions included the Toilers' Union of tribal women in Maharashtra to protest alcohol-related domestic violence and the Chipko movement of poor women in the Himalayas to defend their rights on forest resources and draw attention to the underappreciated economic contributions made by women. 7 The first women's bank for impoverished women was founded by the Self-Employed Women's Association (SEWA), a union of women employed in home-based industries, rag-picking, and street vending. 8 Indian women's priorities include sustainable, grassroots development. The Women's Liberation Struggle, or Stree Mukti Sangharsh, is an example of a movement organization. They envision development that overcomes the economic and environmental sectors, whose emphasis on short-term gains has produced unsustainable forms of development, and that advances gender equality. Women's movements that were independent and openly feminist emerged in the late 1970s Infuriated by the suppression of police rape cases and religiously sanctioned violations of women's human rights, their campaigns shifted to sex-selective abortions, dowry deaths (brides are killed for their dowries), and sati. 9 "Everyone is entitled to all the rights and freedoms set forth in this declaration without distinction of any kind," states Article 2 of the UDHR Universal Declaration of Human Rights, which was ratified by the UN General Assembly on December 10, 1948. 10 Everybody celebrates March 8th as Women's Day. On this 5 Geraldine Forbes, Women in Modern India (Cambridge University Press, Cambridge, 1999) p. 37. 6 Radha Kumar, The History of Doing: An Illustrated Account of Movements for Women's Rights and Feminism in India 1800–1990 (Zubaan, New Delhi, 1993) p. 51 7 Nandita Gandhi and Nandita Shah, The Issues at Stake: Theory and Practice in the Contemporary Women's Movement in India (Kali for Woman, New Delhi, 1992) p. 45 8 Ela Bhatt, We Are Poor But So Many: The Story of Self-Employed Women in India (Oxford University Press, New Delhi, 2006) p. 12. 9 S. Rege, Writing Caste, Writing Gender: Narrating Dalit Women's Testimonies (Zubaan, New Delhi, 2006) p. 72. 10 Universal Declaration of Human Rights, Art. 2, adopted by the UN General Assembly on 10 December 1948, available at https://www.un.org/en/about-us/universal-declaration-of-human-rights (last visited on 18 June 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 89 day, women's accomplishments are honored regardless of national, ethnic, linguistic, cultural, economic, or political barriers. It was formally acknowledged by the UN in 1977. Positive steps in this regard in India include the formation of the National Commission for Women (N.C.M.) and the plan to establish a National Council for Women's Empowerment. 3. Literature Review A complex interaction between legal provisions, societal norms, and systemic challenges is revealed by the literature on gender inequality biases in Indian law and the Constitution. Articles 14, 15, and 39 of the Indian Constitution, which support equality before the law and forbid discrimination, are among the fundamental rights that are enshrined in order to advance gender equality (2025). Notwithstanding these provisions, women's access to justice is still impeded by ingrained patriarchal norms and cultural biases, especially in sexual violence cases where courts frequently reinforce stereotypes and demand concessions 11 . Even though laws like the Equal Remuneration Act and the Protection of Women from Domestic Violence Act have been passed, there are still large gaps in their implementation and social acceptance, which results in ongoing disparities in the legal, social, and economic domains. 12 Feminist scholars recognize their part in the creation of information to improve the circumstances of women. In this sequence, some Sociologists have conducted research on gender discrimination, such as the literature on foeticide in Rajasthan, which was linked by sociologist Anoop Khanna in 2003 to female infanticide and male preference, was reviewed by Anupama Esther Ghosh in 2003. Rural parents' opinions of Anju Malhotra have been studied by Sushma Jaswal and Satinderjit (2004), and Rohini Pandey (2006) has studied female education. Examined the gender preference and discrimination by Madhu Nagla (2007) has investigated whether mothers and families have male preference. Compared to girls, boys are more likely to have received vaccinations. S. Guruamy (1999) has investigated the causes and conditions that lead to Tamil Nadu's practice of female infanticide. The social and demographic background of people seeking prenatal and medical termination services has been examined by Ramakant Sharma (2002). 13 Sekher and Neelabar Hatti (2010) investigated the contributing factors for the growing prejudice that girls face, even before they are born. Tulsi Patel (2007) investigated the connection between sex-selective abortions and ultrasound technology in the maternal case, and Saumya Chand (2011) brought attention to gender norm discrimination in medical facilities such as Prenatal Tests. Shweta Prasad (2001) investigated how common sex determination is (SD) tests in Uttar Pradesh, Anupama Bishnoi (2001) evaluated the effect of Prabhat Jha et al. (2006) have examined how prenatal sex determination influences the sex ratio at birth as determined by previous birth sex in developmental programs on mother and girl child empowerment. 14 The process of the declining sex ratio was examined 11 Tannvi and Narayana, ‘Gender Biases in Judicial Responses to Sexual Violence Cases’ (2022) Indian Journal of Gender and Law 3(1) 45–67. 12 Sunita R., Bhattagar S., ‘Structural Barriers to Legal Enforcement in Gender Justice Laws in India’ (2024) Journal of Law and Policy Studies 10(2) 114– 129. 13 Ramakant Sharma, ‘Demographic Profile of Abortion Seekers in India’ (2002) Population and Health Studies 58(3) 211–223 14 Prabhat Jha et al., ‘Low Male-to-Female Sex Ratio of Children Born in India: National Survey of Sex-Selective Abortions’ (2006) The Lancet 367(9506) 211–218. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 96 precarious times demand reevaluating how legal systems conceptualize, operationalize, and uphold the right to human dignity, particularly for those at society’s margins. The right to dignity, while enshrined in various national constitutions and international human rights instruments, often remains a lofty ideal, inconsistently enforced and poorly understood in practice. This chapter argues that dignity must be reframed not merely as an abstract principle but as a legal and moral imperative that enables the full realization of human potential and equitable access to justice. It calls for a critical interrogation of the role of law in both perpetuating and resisting structures of exclusion. 1.1 Precarity Defined Precarity, as a socio-political condition, encompasses more than economic insecurity. It includes systemic vulnerabilities exacerbated by race, caste, gender, class, sexuality, and disability. In the Indian context, this includes Dalits subjected to caste-based violence, transgender persons denied social legitimacy, migrant workers left stateless by administrative indifference, and tribal communities displaced in the name of development. The experience of precarity is relational, often produced and reproduced through legal frameworks that either fail to protect or actively contribute to the marginalization of certain groups. 1 1.2 The Legal Idea of Dignity In the Indian constitutional scheme, dignity finds explicit mention in the Preamble, which assures “the dignity of the individual.” It is further woven into the fabric of Fundamental Rights, particularly under Articles 14, 19, and 21. Judicial pronouncements have affirmed dignity as an intrinsic component of the right to life and personal liberty. 2 The Supreme Court has repeatedly emphasized that human dignity is not a contingent right but a core constitutional value that shapes the interpretation of all other rights. 3 Yet, despite its lofty status in constitutional law, dignity often suffers from vagueness in definition and application. There is a stark gap between judicial affirmation of dignity and its institutional realization in everyday legal practice. 1.3 Why Focus on Marginalized Communities? The right to dignity assumes greater urgency for those communities for whom the legal system has historically been an instrument of exclusion. For instance: • Dalits and Adivasis continue to face caste-based atrocities, despite protective legislation like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 4 1 For a broader theoretical perspective on precarity, see Butler J, Frames of War: When is Life Grievable?, (Verso Books, London, 2009); for an Indian context, see Menon N, “The Space of Dissent”, Economic and Political Weekly, Vol. 52, No. 45 (2017), pp. 31–36. 2 Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746. 3 Justice K. S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, para 107. 4 National Crime Records Bureau, Crime in India – 2022, Ministry of Home Affairs. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 97 • Transgender persons, while legally recognized under the Transgender Persons (Protection of Rights) Act, 2019, continue to report violence, discrimination in employment, and inadequate healthcare access. 5 • Women and girls from marginalized communities bear the compounded burden of gender and caste, often denied basic reproductive rights, education, and equal treatment under law. 6 • Migrant workers, as the COVID-19 lockdown tragically illustrated, were rendered invisible in state policy, forced to walk hundreds of kilometers without basic protections. 7 The Gap between Law and Justice Legal frameworks, though progressive on paper, often falter in execution. The Supreme Court’s judgment in Puttaswamy recognized the fundamental right to privacy as rooted in dignity, autonomy, and liberty. However, the implementation of Aadhaar continues to raise concerns about exclusion from welfare schemes due to biometric mismatch or technological failures, disproportionately affecting the most vulnerable. 8 This dissonance between law and lived experience also emerges in the context of custodial violence, arbitrary detentions, and the criminalization of dissent. While dignity is extolled in judgments, its absence is felt most viscerally in police stations, detention centers, and slum demolitions—sites where marginalized bodies are rendered disposable. Toward a New Paradigm of Legal Protection The first step in addressing the disconnect between law and dignity is to recognize that the right to dignity cannot be realized through formal recognition alone. Legal reforms must be embedded within a 5 Centre for Law and Policy Research, Transgender Rights in India: A Legal and Policy Review (2020). 6 Human Rights Watch, “India: Women and Girls with Disabilities at Risk of Sexual Violence” (2018). 7 The Wire, “Migrant Labourers, the Forgotten Citizens of India’s Democracy” (April 2020). 8 Khera R, “Impact of Aadhaar on Welfare Programmes”, Economic and Political Weekly, Vol. 53, No. 9 (2018), pp. 13–17. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 98 framework of transformative constitutionalism—a commitment to using law as a vehicle for social change, not merely as a mechanism for dispute resolution. 9 These demands both structural reform (such as anti-discrimination law, gender-neutral legal provisions, and affirmative action) and epistemic reform (revisiting how legal education, judicial reasoning, and policy formulation centre or erase marginal voices). As this chapter unfolds, it will examine in greater detail how the right to dignity has been interpreted, contested, and operationalized across legal frameworks. But first, it is critical to understand that any meaningful discourse on legal protection must begin with those at the margins of society. In precarious times, the commitment to dignity must transcend rhetoric and manifest in laws, institutions, and practices that genuinely center the humanity and agency of marginalized communities. 2. Conceptual Foundations: Dignity in Law and Theory The concept of human dignity has emerged as a cornerstone in constitutional democracies and international human rights law. However, despite its frequent invocation in courtrooms, legislations, and political discourse, dignity remains an elusive and deeply contested idea. What does it mean to say that a person has dignity? Is dignity an inherent attribute of being human, or is it conferred by legal recognition? Can the law truly safeguard dignity when systemic inequalities remain unaddressed? This part explores the theoretical underpinnings of dignity, its evolution in legal discourse—especially within the Indian context—and the practical tensions between formal dignity (recognition in law) and substantive dignity (lived experiences of respect, autonomy, and equality). It argues that to rethink legal protections for marginalized communities, it is essential to revisit how dignity is understood, interpreted, and applied across legal frameworks. 9 Pieterse M, “What Do We Mean When We Talk About Transformative Constitutionalism?”, Potchefstroom Electronic Law Journal, Vol. 13, No. 3 (2010). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 99 Philosophical and Legal Origins of Dignity Historically, dignity has roots in religious, philosophical, and political traditions. From the Kantian ethic of treating individuals as ends in themselves to the liberal democratic idea of equal worth, dignity has been associated with autonomy, rationality, and moral agency. In modern legal parlance, dignity is both a value and a right, forming the ethical bedrock upon which civil, political, and socio-economic rights rest. 10 In India, the idea of dignity has found expression through a transformative constitutionalism model, which seeks not only to limit state power but to actively promote social justice. This model is particularly relevant in a country deeply marked by caste, class, and gender hierarchies. Dignity in the Indian Constitutional Framework The Indian Constitution places dignity at the heart of its vision. The Preamble declares the resolve to secure “the dignity of the individual”. 11 This commitment is reinforced in the Fundamental Rights, especially Articles 14 (equality before law), 19 (freedom of speech and expression), and 21 (protection of life and personal liberty). Indian courts have creatively interpreted Article 21 to expand the scope of dignity. As early as in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, 12 the Supreme Court held that the right to life under Article 21 includes the right to live with human dignity. This has been reaffirmed in numerous decisions such as Maneka Gandhi v. Union of India, 13 Bandhua Mukti Morcha v. Union of India, 14 and most recently in Puttaswamy, 15 where the right to privacy was located within the framework of dignity. However, these judicial advances often contrast sharply with the realities on the ground, where marginalized communities continue to experience systemic indignity in the form of poverty, exclusion, criminalization, and violence. Formal vs. Substantive Dignity This dichotomy is central to understanding the limits of legal frameworks. Formal dignity refers to recognition by the law, such as citizenship, legal identity, or non-discrimination provisions. Substantive dignity, on the other hand, entails lived experiences of respect, agency, and well-being. For example, the Transgender Persons (Protection of Rights) Act, 2019, legally recognizes transgender identity, but the absence of mechanisms to ensure employment, housing, and healthcare renders such recognition largely symbolic. 16 Likewise, Dalits may enjoy constitutional safeguards under Article 17 (abolition of untouchability), but continued atrocities suggest that formal legal protection does not automatically translate into substantive dignity. 10 Kant I, Groundwork of the Metaphysics of Morals (1785); Donnelly J, “Human Dignity and Human Rights”, The Idea of Human Rights, (Cornell University Press, 2003). 11 Constitution of India, Preamble. 12 AIR 1981 SC 746 13 (1978) 1 SCC 248. 14 AIR 1984 SC 802. 15 (2017) 10 SCC 1. 16 Centre for Law and Policy Research, Transgender Rights in India: A Legal and Policy Review, 2020. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 100 Comparative Table: Dignity in Constitutional Jurisprudence Country Constitutional Mention Key Cases Emphasis India Preamble, Art. 21 Puttaswamy, Francis Coralie, Bandhua Mukti Morcha Transformative, expansive South Africa Art. 10 of the Constitution S v. Makwanyane (death penalty), Minister of Home Affairs v. Fourie (LGBT rights) Equality and social justice Germany Art. 1 Basic Law Lüth Case, Aviation Security Act Inviolable, foundational Brazil Art. 1, III ADPF 132/2011 (same-sex unions), RE 580.252 (prison conditions) Socio-economic dignity Dignity and Intersectionality To be meaningful for marginalized groups, dignity must be understood in intersectional terms. For instance, the experience of dignity for a Dalit woman is shaped not only by caste and gender, but also by access to education, healthcare, and social mobility. Courts have occasionally recognized this, such as in Patan Jamal Vali v. State of Andhra Pradesh, 17 where the Supreme Court acknowledged the intersection of caste, gender, and disability in a sexual violence case. Legal frameworks must therefore move beyond a one-size-fits-all understanding of dignity. They must account for how structural inequalities and interlocking identities shape people’s access to justice and sense of self-worth. The Role of Dignity in Socio-Economic Rights The right to dignity also underpins socio-economic rights, such as the right to food, shelter, healthcare, and education. In Olga Tellis v. Bombay Municipal Corporation, 18 the Supreme Court held that the right to livelihood is an integral part of the right to life. Similarly, in PUCL v. Union of India, 19 the Court interpreted the right to food as essential to living with dignity. These judgments illustrate that dignity must be materially grounded. It cannot merely reside in constitutional texts or judicial rhetoric—it must reflect in the policies, budgets, and legal systems that govern people's everyday lives. Dignity is not a static or singular concept—it evolves through judicial interpretation, philosophical reflection, and the lived experiences of individuals. For marginalized communities, dignity must not remain an abstract legal promise but must be made tangible through institutional support, legal reform, and participatory justice. 17 (2021) 3 SCC 572. 18 AIR 1986 SC 180. 19 (2004) 12 SCC 104. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 101 3. Lived Realities: Legal Marginalization and Structural Exclusion Despite legal recognition and judicial affirmations of dignity, marginalized communities in India continue to navigate a landscape riddled with systemic barriers, discrimination, and socio-economic exclusion. This part of the chapter critically examines how the promise of dignity remains unfulfilled for Dalits, Adivasis (Scheduled Tribes), transgender persons, and other vulnerable populations. By contextualizing the law within social hierarchies and structural violence, it argues that legal frameworks—while progressive in form—are often exclusionary in function. Caste and the Persistence of Legal Indignity The Indian legal system outlawed untouchability through Article 17 of the Constitution and enacted specific legislation like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Yet, data from the National Crime Records Bureau (NCRB) reveals a disturbing trend: crimes against Scheduled Castes increased from 33,719 cases in 2011 to 50,900 in 2021. 20 Conviction rates remain low, often due to police bias, hostile witnesses, and procedural lapses. 21 The legal framework’s inability to translate protection into practice is compounded by deeply entrenched social norms. For instance, Dalit women face a triple burden of caste, class, and gender. They are disproportionately affected by sexual violence, yet rarely receive justice due to stigma, institutional apathy, and fear of reprisal. 22 Adivasis and Displacement in the Name of Development Adivasis, India’s indigenous communities, are protected under Schedule V and VI of the Constitution and through laws like the Forest Rights Act, 2006. However, they continue to be displaced due to mining, industrial projects, and infrastructure development. The Ministry of Tribal Affairs reported that only 46% of individual forest rights claims under the Act had been granted as of 2020. 23 Despite constitutional and statutory safeguards, development policies often fail to recognize Adivasis’ cultural autonomy and ancestral rights. Legal redress is further undermined by lack of legal literacy, linguistic barriers, and restricted access to courts. The result is legal marginalization embedded within state policy. 20 National Crime Records Bureau, Crime in India 2021, Ministry of Home Affairs, Government of India. 21 Human Rights Watch, Broken System: Dysfunction, Abuse and Impunity in the Indian Police (2009). 22 National Dalit Movement for Justice (NDMJ), Dalit Women Speak Out: Violence and Discrimination in 2018. 23 Ministry of Tribal Affairs, Annual Report 2019–20, Government of India. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 102 Transgender Persons and the Limitations of Legal Recognition In 2014, the Supreme Court in NALSA v. Union of India 24 recognized transgender persons’ right to selfidentify their gender. This landmark decision was meant to restore dignity, equality, and autonomy. However, the subsequent Transgender Persons (Protection of Rights) Act, 2019 diluted many of these principles. It mandates a medical screening process to certify gender identity and offers limited affirmative action provisions. 25 Transgender persons continue to face discrimination in employment, housing, healthcare, and education. According to a NHRC (National Human Rights Commission) survey (2018), nearly 92% of transgender persons are denied participation in economic activity. 26 Additionally, access to justice remains limited—very few transgender individuals pursue legal remedies due to fear, stigma, and bureaucratic complexity. Criminalization and Stigmatization of the Poor Marginalized communities are often disproportionately criminalized. The Habitual Offenders Acts, Beggary Laws, and police surveillance systems inherited from colonial rule target street dwellers, migrants, sex workers, and Dalits. 27 These laws continue to operate as tools of social control rather than justice. For example, under the Bombay Prevention of Begging Act, 1959, thousands of poor individuals have been detained and institutionalized without legal representation or trial. 28 Similarly, Adivasis in 24 (2014) 5 SCC 438. 25 Centre for Law and Policy Research, Legal Critique of the Transgender Persons Act, 2020. 26 National Human Rights Commission, Study on Human Rights of Transgender as a Third Gender, 2018. 27 Centre for the Study of Developing Societies, Colonial Legacy in India’s Criminal Justice System, 2017. 28 PUCL, Criminalizing the Poor: A Report on Beggary Laws in Delhi, 2011. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 103 Chhattisgarh and Jharkhand are often booked under UAPA or sedition laws for protesting land acquisition or alleged Maoist links, resulting in long pre-trial detentions. 29 Gender and Dignity: The Case of Manual Scavengers Manual scavenging, despite being banned under the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, continues in multiple forms. Data from the Ministry of Social Justice and Empowerment revealed that over 66,000 manual scavengers were identified in surveys conducted between 2018–2020. 30 Most manual scavengers are Dalit women, who face caste-based occupational violence compounded by gender discrimination. Despite rehabilitation schemes, social reintegration remains minimal. Legal mechanisms often ignore the structural violence embedded in caste occupations. Case Study Box: Manual Scavenging Deaths – Delhi, 2019 In September 2019, three Dalit men—Anil, Balraj, and Suresh—died while manually cleaning a hotel septic tank in west Delhi. Despite repeated court rulings and statutory bans, they were not provided any safety equipment or training. The private contractor employed them illegally without protective gear. Legal Violations: • Violation of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. • Breach of Supreme Court directives in Safai Karamchari Andolan v. Union of India (2014) on mechanization and compensation. Outcome: • FIR lodged only after public protests and media scrutiny. • Compensation of ₹10 lakh given to each family under the SC/ST Atrocities Act guidelines. • No convictions secured as of 2023; case pending trial. This case highlights the persistent caste-based occupational hazard and legal apathy surrounding manual scavenging. It exemplifies how dignity and life are routinely sacrificed in the absence of effective implementation and accountability. Structural Gaps in Legal Access Legal aid, while constitutionally guaranteed under Article 39A, remains ineffective for many marginalized communities. According to the NALSA Annual Report (2021), over 75% of legal aid beneficiaries belong to SC/ST/OBC categories. However, awareness and actual utilization remain limited, especially in rural and tribal areas. 31 29 Human Rights Law Network (HRLN), UAPA and the Chhattisgarh Tribals, 2021. 30 Ministry of Social Justice and Empowerment, Survey of Manual Scavengers in India, 2020. 31 National Legal Services Authority, Annual Report 2021, New Delhi. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 104 Barriers include: • Lack of legal literacy. • Linguistic and cultural distance. • Intimidation by formal legal procedures. • Overburdened legal aid systems. Thus, dignity is undermined not only by social exclusion but also by institutional design. The lived experiences of marginalized communities in India expose the stark disconnect between legal promises and ground realities. Whether through caste violence, displacement, discrimination, or criminalization, legal systems frequently reproduce the very exclusions they are meant to redress. 4. Institutional and Legal Responses to Precarity The legal and institutional apparatus in India has responded to the challenges of precarity faced by marginalized communities through a wide array of constitutional protections, statutory frameworks, welfare schemes, and judicial interventions. However, these responses have been uneven and often fail to address structural inequalities. This part analyzes the efficacy and limitations of institutional mechanisms—legislative, executive, and judicial—in securing the right to dignity for historically disadvantaged groups. It also examines emerging policy reforms and grassroots legal innovations aimed at creating a more inclusive justice system. Constitutional Architecture as a Shield of Dignity The Indian Constitution remains the foundational source of dignity-oriented protections. The Preamble itself pledges “Justice, social, economic and political” and “equality of status and opportunity,” affirming a dignitarian vision of society. Article 21, which guarantees the right to life and personal liberty, has been expansively interpreted by the Supreme Court to include dignity, livelihood, privacy, health, education, and shelter. 32 In Francis Coralie Mullin v. Administrator, Union Territory of Delhi, the Court held that the right to life under Article 21 includes “the right to live with human dignity and all that goes along with it.” 33 Similarly, in Bandhua Mukti Morcha v. Union of India, the Supreme Court recognized the right of bonded labourers to dignity and humane working conditions. 34 Despite this strong jurisprudential foundation, the realization of dignity remains fragile due to poor enforcement and social resistance, especially at the lower rungs of governance. 32 See Maneka Gandhi v. Union of India, AIR 1978 SC 597. 33 AIR 1981 SC 746. 34 AIR 1984 SC 802. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 105 Legislative Measures: Enablers and Gaps India has enacted numerous laws to protect marginalized communities, including: • The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 • The Protection of Women from Domestic Violence Act, 2005 • The Forest Rights Act, 2006 • The Transgender Persons (Protection of Rights) Act, 2019 • The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 While these laws have symbolic and normative value, their enforcement has often fallen short. For instance, conviction rates under the SC/ST Act remain disproportionately low, with frequent misuse of loopholes and procedural bottlenecks. The Transgender Persons Act has faced criticism for its lack of provisions on reservations, housing, and affirmative action, thereby failing to create a pathway to real dignity for the community. 35 Moreover, many of these laws do not sufficiently address intersectionality. A Dalit transgender woman or an Adivasi disabled person faces layers of discrimination, but most legislative frameworks operate in silos. The Judiciary: Sentinel or Spectator? The Indian judiciary has played a complex role in shaping the discourse of dignity. On one hand, it has delivered progressive decisions like: • NALSA v. Union of India (2014): Recognized the right of transgender persons to self-identify their gender. 36 • Shabnam Hashmi v. Union of India (2014): Affirmed that a person can adopt a child regardless of religious affiliation. 37 • Navtej Singh Johar v. Union of India (2018): Decriminalized same-sex relations, restoring dignity to LGBTQ+ individuals. 38 However, judicial activism is not uniform. Courts have sometimes failed to protect vulnerable communities effectively, particularly in cases involving forced evictions, custodial violence, or denial of bail to undertrials from marginalized backgrounds. Delayed justice, procedural technicalities, and inconsistent standards often undermine the judiciary’s emancipatory potential. 35 Centre for Law and Policy Research, The Transgender Persons Act: A Critique, 2020. 36 (2014) 5 SCC 438. 37 (2014) 4 SCC 1. 38 AIR 2018 SC 4321. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 112 Chapter 11 Artificial Intelligence and Law: Machine Automated Decision Making and Legal Ethicality Sanighdha Abstract Artificial intelligence means the imitation and learning of machines by copying human emotions and using neural networks that are intricately connected, ably supported by machine learning and various technical inputs, that have been inserted in them. Artificial intelligence, being a machine learning process and technique, is highly susceptible to errors as well. This is because whatever input has been given to the machine, its output will be based on the same. The chapter seeks to delve deeper into the concept of artificial intelligence and generative artificial intelligence, the usage of the same in decision-making in business and legal professions, along with studying the legal regulations, as well as the legal ethics that surround these techniques. The chapter will strive to provide meaningful and practical solutions for the prevention of legal transgression by the upcoming technologies. This chapter follows a doctrinal method of research and takes immense help from books, research papers, online magazines, and newspapers to have a better understanding of the topic. But before that, understanding artificial intelligence, knowing its various facets, along with understanding the concept of generative artificial intelligence, is extremely important. Keywords: Artificial intelligence, Data, Machine Learning, Technological advancements, decision-making 1. An Introductory Conceptual Note: Artificial Intelligence and Generative Artificial Intelligence “We need to be super careful with artificial intelligence. It is capable of vastly more than almost anyone knows, and the rate of improvement is exponential.” 1 – Elon Musk The recent AI Paris Summit 2 of February 2025, focusing on the working, understanding, conceptual clarity, and usages as well as advantages of artificial intelligence, was breakthrough in the field of AI,  Junior Research Fellow, Department of Laws. Panjab University 1 View: Technical, Commercial Guard Needed to prevent malicious use of AI, The Economic Times, available at: https://economictimes.indiatimes.com/opinion/et-commentary/view-technical-commercial-guard-needed-to-prevent-malicious-use-ofai/articleshow/100510933.cms?from=mdr (last visited on April 16, 2025). 2 Artificial Intelligence Action Summit, Elysee, available at: https://www.elysee.fr/en/sommet-pour-l-action-sur-l-ia (last visited on April 16, 2025); Prime Minister Sh. Narendra Modi Ji Chairs AI Action Summit in Paris, Ministry of External Affairs, Government of India, available at: https://www.mea.gov.in/press-releases.htm?dtl/39023/Prime_Minister_cochairs_AI_Action_Summit_in_Paris_February_11_2025 (last visited on April 16, 2025); Global Disunity, Energy Concerns, and the shadow of Musk: Key Takeaways from the Global AI Summit, The Guardian, available at: https://www.theguardian.com/technology/2025/feb/14/global-disunity-energy-concerns-and-the-shadow-of-musk-key-takeaways-from-theparis-ai-summit (last visited on April 16, 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 113 marking the first meeting of world leaders on the issue. Issues ranging from AI, G-AI, their working, their legal regulations, ethical issues involved in the same, and the efforts that world leaders can put in to tackle the rising challenges and exploit the opportunities coming our way, were all tabled and discussed. This shows the importance of understanding AI and related technologies in a much deeper way. Therefore, it is imperative to delve deeper into these concepts while studying the effects of automated decision making by AI software for different professions. This is where this chapter focuses. Artificial intelligence is an upcoming technological innovation that can change the world in any of the million ways possible. Though the buzz generated by artificial intelligence is newfound, the technology itself is not that novice. Automated machine learning and large language models (LLMs 3 ) have been in vogue since the late 1970, with the path-breaking ‘Turing Test’ 4 by Alan Turing and Dartmouth Conference 5 being the biggest assurers of the same. 1.1. Artificial Intelligence: Definition and Meaning According to the definition given by IBM, “artificial intelligence (AI) is a technology that enables computers and machines to simulate human learning, comprehension, problem solving, decision making, creativity, and autonomy. Applications and devices equipped with AI can see and identify objects. They can act independently, replacing the need for human intelligence or intervention (a classic example being a self-driving car). 6 ” Apart from this, it also must be understood that artificial intelligence is not a new invention. It is at least 70 years old and has grown slowly but steadily, today, ruling over most of the computer and technology world. What started as a concept in the 1950’s, whereby the machines could mimic the human emotions and learn as humans learn based on the input fed into them, resulted in the development of machine learning (where machines learn from the data already fed into them, and the historical data seeded into them1980’s), deep learning (machine learning models that mimic human functions or human learning – early 2000’s), as well as the development of generative artificial intelligence (2020’s; Generative AI – that are capable of formulating their original content). 1.2. Generative Artificial Intelligence: Transforming Sectors across the Spectrum Apart from this, understanding the definition of generative artificial intelligence is also important. According to the explanation given by IBM, “generative AI, sometimes called Gen AI (G-AI), refers to deep learning models that can create complex original content—such as long-form text, high-quality images, realistic video, or audio and more—in response to a user’s prompt or request. At a high level, 3 What are Large Language Models (LLMs), IBM, available at: https://www.ibm.com/think/topics/large-language-models (last visited on April 16, 2025); Amazon Web Services (AWS). What are Large Language Models, available at: https://aws.amazon.com/what-is/large-language-model/ (last visited on April 16, 2025); Kerner, S.M, Tech Target, What are Large Language Models, available at: https://www.techtarget.com/whatis/definition/large-language-model-LLM (last visited on April 16, 2025). 4 Oppy, G, The Turing Test, The Stanford Encyclopedia of Philosophy, available at: https://plato.stanford.edu/entries/turing-test/ (last visited on April 16, 2025); Gillis, A.S. and St. George, Alexander What is Turing Test, Tech Target, available at: https://www.techtarget.com/searchenterpriseai/definition/Turing-test (last visited on April 16, 2025). 5 Dartmouth. Artificial Intelligence coined at Dartmouth, available at: https://home.dartmouth.edu/about/artificial-intelligence-ai-coineddartmouth (last visited on April 16, 2025); Glassmeyer/ McNamee Centre for Digital StrategiesTuck at Dartmouth, The Dartmouth AI Conference, available at: https://digitalstrategies.tuck.dartmouth.edu/dartmouth_ai_conference/ (last visited on April 16, 2025). 6 Cole Stryker, What is Artificial Intelligence, IBM, available at: https://www.ibm.com/think/topics/artificial-intelligence (last visited on April 16, 2025); Peter Norvig, Artificial Intelligence: A Modern Approach (2004); Nock Bostrom, Superintelligence (2014); Ethan Mollick, Co-Intelligence: Living and working with AI; Ray Kurzeweil, The Singularity is Nearer (2024); Max Tegmark Life 3.0 (2017); Chip Huyen, AI Engineering: Building Applications with Foundation Models (2024); Brian Christian, The Alignment Problem (2020); Yoshua Bengio, Deep Learning (2015); Aurelien Geron, Hands-On-Machine Learning (2017). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 114 generative models encode a simplified representation of their training data and then draw from that representation to create new work that is similar, but not identical, to the original data. Generative models have been used for years in statistics to analyze numerical data. 7 ” Artificial intelligence itself has several benefits in the modern technological world, including but not limited to automation of repetitive tasks, more and faster insight from data, enhanced decision making, fewer errors, reduced physical risks, and eternal availability of task-doers. One can analyse customer experience, support, and round-theclock supervision of different operations and software, with the help of artificial intelligence, and the same can also go on to make a whole lot of difference in the software, customer, and predictive analysis market. Before summing up the introduction of artificial intelligence and generative artificial intelligence, emphasis would be laid down upon the steady development of artificial intelligence, the working of artificial intelligence, and the working of generative artificial intelligence through tables, in a graphical manner, so as to make the understanding of further topics and concepts becomes easier. Understanding artificial intelligence and generative artificial intelligence, particularly their working, is essential and easier via graphical representation and images, because AI is still new to the world, and graphics do say, show, and make one understand the concept in a much easier manner. Thus, one can understand and comprehend the development of artificial intelligence, generative artificial intelligence, along with understanding the working of the same, and the future usages, along with the advantages of artificial intelligence in human life. It will now become easier to delve deeper into the decision-making sphere of artificial intelligence. 1.3 Decision Making: Machine-Automated Process and Artificial Intelligence Before delving into the concept of decision making by using artificial intelligence, one needs to understand the different types of artificial intelligence, because the same will enable one to categorize where different types of AI are used in decision making. The first category of artificial intelligence is Narrow Artificial Intelligence, the second is Artificial General Intelligence, the third category of AI is Artificial Super Intelligence, and the fourth is Reactive Machine Artificial Intelligence. The fifth, sixth, and seventh categories of AI areLimited Memory AI, Theory of Mind AI, and Self-Aware AI. 8 ” It is pertinent to understand all of these, since a thorough understanding of the types of AI is the very foundation of interlinking decision making and AI. Data Analysis and Decision Making: Leveraging Artificial Intelligence and Generative Artificial Intelligence Coming to decision-making, decision-making is an essential aspect of life and is critical to the functioning of any human being. This aspect cannot be overlooked or understated if one is to progress in life. That is why decision-making results in the outlook of a person and is also responsible for forming the personality of a person. The process of decision making involves certain steps such as identifying the 7 Types of AI Explained, Simpli Learn, available at: https://www.simplilearn.com/tutorials/artificial-intelligence-tutorial/types-of-artificialintelligence (last visited on April 16, 2025);Sunny Betz, Seven Types of Artificial Intelligence, available at: https://builtin.com/artificialintelligence/types-of-artificial-intelligence (last visited on April 16, 2025); Understanding the Different Types of Artificial Intelligence, IBM, available at: https://www.ibm.com/think/topics/artificial-intelligence-types (last visited on April 16, 2025). 8 Sunny Betz, Types of Artificial Intelligence, available at: https://builtin.com/artificial-intelligence/types-of-artificial-intelligence (last visited on April 16, 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 115 problem, gathering relevant information, identifying the alternatives, evaluating of alternatives, choosing the best alternative, implementing of alternative or simply acting, and finally reviewing the decision. Making decisions not only changes and shapes our future, but also helps us to review the information provided to us, and aids us winning complex situations in our lives. Thus, from the above analysis, decision-making is extremely crucial. Traditionally, decisions are taken with collaborative decision-making techniques and under the guided supervision of elders, but now, decisions are also being taken with the help of artificial intelligence. Today, artificial intelligence is being used in decisionmaking by analyzing data, identifying patterns, and predicting outcomes, leading to informed choices and faster outcomes. These are the sole reasons why AI is being used in the process of decision-making. Data analysis and insights, faster decision making, automated decision making, personalized recommendations, automation, and efficiency, along with improved decision making, are the reasons behind the aid taken from AI for better decision-making patterns. AI is being used in decision-making processes in business, corporate worlds, as well as legal professions, unabatedly. While one knows that there are certain ethical issues involved in the whole process, one must first understand how artificial intelligence technology is being used in the whole process. According to a remarkable research article written by Mark Purdy and A. Mark Williams 9 , titled “How AI Can Help Leaders Make Better Decisions Under Pressure,” “business leaders and managers face increasing pressure to make the right decisions in the workplace. According to research by Oracle and Seth Stephens-Davidowitz, 85% of business leaders have experienced decision stress, and three-quarters have seen the daily volume of decisions they need to make increase tenfold over the last three years. Poor decision-making is estimated to cost firms on average at least 3% of profits, which for a $5 billion company amounts to a loss of around $150 million each year. The costs of poor decision making are not just financial; however, a delayed shipment to an important supplier, a failure in IT systems, or a single poorly managed interaction with an unhappy customer on social media can all quickly spiral out of control and inflict significant reputational and regulatory costs on firms. 10 ” The study argues that artificially intelligent systems can aid in making better decisions over a period of time. AI can aid in better decision-making and enhanced future outcome predictions. virtual role-play in real-life conditions can also help in understanding the future outcome of the decision that is meant to be taken, and a human-machine trust can be built up while using AI in decision-making processes. Decision Making: World Economic Forum and McKinsey Report Analysis However, it is the study of the World Economic Forum that was published in the year 2023 11 , that can aid one in a deeper understanding of the issues of using AI in making decisions, that impact people in real life. However, the study shows both sides of the issue. At the very outset, the study declares three major pointers: 9 Mark Purdy, & Mark A. William, How AI Can Help Leaders Make Better Decisions, Harvard Business School Online, available at: https://hbr.org/2023/10/how-ai-can-help-leaders-make-better-decisions-under-pressure (last visited on April 16, 2025). 10 Swiss Cognitive, How AI Can Help Leaders Make Better Decisions under Pressure.; Mark Purdy, & Mark A. William, How AI Can Help Leaders Make Better Decisions, Harvard Business School Online, available at: https://hbr.org/2023/10/how-ai-can-help-leaders-make-better-decisionsunder-pressure (last visited on April 16, 2025). 11 Artificial Intelligence will Transform Decision-Making, Here’s How? World Economic Forum, available at: https://www.weforum.org/stories/2023/09/how-artificial-intelligence-will-transform-decision-making/ (last visited on April 16, 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 116 a. Effective use of artificial intelligence in strategic decision-making will be one of the biggest determinants for future competitiveness. b. The interaction between humans and AI, as well as the ability to choose which decisions to delegate to AI, will be among the most important skills for decision makers. c. Trust, access, and integration will shape the scale and speed of AI adoption in future decisionmaking processes. 12 These three pointers very carefully describe the value and the balance of decision-making using Artificial intelligence in complex situations. The report states that, “artificial intelligence already plays a crucial role in the decision-making processes of many companies and is increasingly used to inform policy and public sector decisions around the world. Supervised learning, for example, is already used by some governments to detect potential criminals and terrorists. Yet, so far, only 7% of companies use AI in big strategic decisions, such as strategy development or financial planning. At the same time, the importance of the technology for the future is enormous: 75% of business leaders believe that what will set companies apart from their competitors in the future will be determined by who has the most advanced generative AI. Especially in the area of decision-making, we already see AI’s power today. Indeed, it has already arrived in many boardrooms. More than 40% of CEOs say they use generative AI to inform their decision-making processes. There are many benefits of such AI tools, from better compliance to less biased and more inclusive strategic decisions. At the same time, as AI becomes more advanced, we will have to develop strategies for how to use these systems in important decisions. We will have to decide how to best interact with AI, and more importantly, which decisions we can completely delegate to AI. We think that future competitiveness may not only be about who has the most advanced AI, but also how this technology is used for strategic decision-making. This will ultimately influence the competitiveness of companies and countries in the age of AI. 13 ” The report pinpoints that there are certain drivers for the usage of AI in decision making and these are clearly: trust, access, and integration. 14 This shows that yes, AI is being majorly used in the process of decision-making in various sectors, and there have been instances whereby business houses have totally relied upon AI-induced systems to make certain decisions. The McKinsey Report starkly states that, “the adoption of artificial intelligence (AI) has seen remarkable growth in recent years. Since 2019, the number of organizations embracing AI has more than doubled. However, the proportion of companies utilizing AI has plateaued between 50 and 60 percent for the past few years. Despite this, a set of companies that have effectively harnessed AI are experiencing higher financial returns, establishing a significant lead over their competitors. Looking at the numbers, in 2017, only 20 percent of respondents reported adopting AI in at least one business area. Today, in 2024, that figure has risen to 50 percent. Alongside the increased adoption, the average number of AI capabilities used by organizations has also doubled. In 2018, companies utilized an average of 1.9 AI capabilities, 12 Ibid. 13 Artificial Intelligence will Transform Decision-Making, Here’s How? World Economic Forum, available at: https://www.weforum.org/stories/2023/09/how-artificial-intelligence-will-transform-decision-making/ (last visited on April 16, 2025). 14 Ibid. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 117 which has now risen to 3.8 in 2023. Robotic process automation and computer vision have consistently remained the most widely deployed purpose of AI, with natural-language text understanding advancing to a prominent position just behind computer vision. The numbers make it clear which AI system will continue to analyze a problem. When it comes to the top use cases for AI, the rankings of AI for decisionmakers have remained relatively stable over the years. 15 ” The report further states, that, “optimization of service operations has consistently held the top spot, followed by use cases such as the creation of new AI-based products, customer service analytics, customer segmentation, and customer acquisition. These use cases highlight the diverse ways in which AI is leveraged to drive operational efficiency and improve customer experiences. Furthermore, the level of investment also shows the prominence of artificial intelligence decision-making. According to the survey, the level of investment in AI has increased alongside its growing adoption. In the past, only 40 percent of organizations using AI allocated more than 5 percent of their digital budgets to AI. Now, over half of the respondents report this level of investment. Looking ahead, 63 percent of respondents anticipate increased investment in AI over the next three years, reflecting the growing recognition of AI’s potential. 16 ” Thus, the report states that companies are using AI in large numbers to make their decisions, while also incorporating the human factor. The McKinsey Report 17 states the benefits of using AI in decision-making especially in the business world. It states that: enhances decision-making process in businesses, boosts sales and marketing campaigns, better understands the target customers, and, improves decisions of companies dealing with yours. This shows us and approves of the fact that yes, AI and AI-induced models are used in taking decisions in business houses, as well as corporate complex situations, of all levels and stages. Now, the usage of AI in the legal profession will be studied, before moving on to legal regulations regarding AI and the ethical issues involved. 2. Legal Profession and Artificial Intelligence: India and the World The Future of Professionals Report (Thomson Reuters) and Bloomberg Law Report: An Analytical Critique Artificial Intelligence, Generative Artificial Intelligence, and the AI as well as G-AI induced models and software are being used in the legal profession, for various advantages and usages. In this regard, the “The Future of Professionals Report” (2024) of Thomson Reuters is of utmost significance. The whole study of the esteemed organisation is focused upon the legal professionals and their way of working. The survey was of 2200 professionals and C-level executives from a number of countries of the world. Three pointers are stated at the outset of the report- “77% of respondents believe AI will have a high or transformational impact on their work by the next five years. That is an increase of 10 percentage points over the 2023 report’s responses; 72% of legal professionals surveyed in the report view AI as a force for good in their profession; half of law firm respondents cite exploring and implementing AI as their highest priority. In addition, 15 Quantum Black AI By McKinsey,McKinsey, available at: https://www.mckinsey.com/capabilities/quantumblack/our-insights/the-state-of-ai-in2022-and-a-half-decade-in-review (last visited on April 16, 2025). 16 Ibid. 17 Ibid. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 118 they believe AI could help address other priorities, such as increased customer satisfaction and operational efficiency. 18 ” The report is very illustrative, elaborative, and exhaustive in the way it has dealt with its subject matter. The Report states, “the benefits are significant, with the potential to transform the way legal professionals deliver value and service to clients. For one thing, AI is expected to significantly boost lawyer productivity through time savings, particularly through the automation of repetitive but necessary tasks that currently can take up a great deal of a professional’s workflow—but do not need to. These tasks include drafting standard documents such as contracts. For instance, an AI tool can automate the complex process of searching, cutting, pasting, deleting, and editing to make drafting and analysis of contracts much faster and less tedious. It is essential, of course, that such a tool be trustworthy. Legal professionals need to create documents that are precise and enforceable. This means that the AI they use must draw from sources developed and maintained by reputable legal experts—and be transparent about its data sources. In addition, AI tools developed specifically for the legal profession can conduct research on cases, precedents, and other legal topics. AI can also summarize information across many sources and platforms much more rapidly than poring through these sources manually. Instead, legal professionals can quickly get the information they need to put together strong cases, documents, and briefs. All told, the Future of Professionals Report predicts that AI could free up 4 hours of a legal professional’s time per week. For U.S. lawyers alone, the savings could translate into 266 million hours of increased productivity—approximately $100,000 in new billable time per lawyer each year. 19 ” The Report further states that, “as AI tools continue to evolve, they are likely to have an increasing impact on how legal professionals use their time, particularly as workflows become more efficient. It’s not surprising, then, that 43% of legal professionals surveyed in the report predict that there will be a decline in hourly rate billing models over the next five years.” 20 The current Report is a very elaborate report and deals with areas such asimpact on clients, future changes in the legal profession, and impact on concerns. On the issue of ‘impact on clients’ regarding the usage of AI in the legal profession, the Report states that, “AI has been transforming how legal services deliver value to their clients, and it continues to do so. This, in turn, will require legal professionals to make changes to their traditional business models. A recent report on the legal sector client relationships from the Thomson Reuters Institute notes that technological advancements and shifting demographics are pushing law firms to adapt to evolving client demands. Of the legal professionals surveyed in the Future of Professionals Report, 42% want to spend more of their valuable time on expertise-driven legal work in the next five years. 21 ” In short, the legal professionals are seeking to enhance and widen their scope of services, by not compromising on the quality of their services provided, by using the available artificial intelligence technologies. It was stated that, “The role of a good lawyer is as a ‘trusted advisor,’ not as a producer of documents . . . breadth of experience is where a lawyer’s true value lies and that will remain valuable. 22 ” 18 How AI is transforming the Legal Profession, Thomson Reuters, available at: https://legal.thomsonreuters.com/blog/how-ai-is-transforming-thelegal-profession (last visited on April 16, 2025). 19 Ibid. 20 Ibid. 21 How AI is transforming the Legal Profession, Thomson Reuters, available at: https://legal.thomsonreuters.com/blog/how-ai-is-transforming-thelegal-profession (last visited on April 16, 2025). 22 Ibid. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 119 Artificial intelligence can be used in the legal profession, truly in a number of ways. These are: a. Document Review and Analysis b. Legal Research and Information Retrieval c. Contract Analysis and Drafting d. Case Prediction and Strategy e. Efficiency, Productivity, and round-the-clock availability f. Risk Management and Compliance mechanism g. Alternative Dispute Resolution Techniques Bloomberg Law emphatically states that, “in recent years, related technological advances have allowed legal teams to automate or expedite work that has traditionally been done by entry-level colleagues. For instance, first-year legal associates at law firms commonly conduct legal research and produce legal briefs for supervising attorneys. Historically, this task has been time-consuming, but now search engines and legal research tools powered by machine learning can sift through massive volumes of documents to find the right information in a fraction of the time it would take a human. Additionally, AI-powered text generators can produce a first draft of a legal brief in just moments based on a short prompt. 23 ” The British Institute of International and Comparative Law (BIICL) also reiterates the same. Apart from this, Artificial intelligence is being used in India as well, in the legal profession. India Briefing states that, “in 2018, Niti Ayog launched the first national AI strategy, #AIFORALL, which was to serve as an inclusive approach to artificial intelligence. The strategy identified critical areas for national priority in AI innovation and deployment, including healthcare, education, agriculture, smart cities, and transportation. Since then, some of the strategy’s recommendations have been executed, including the creation of high-quality datasets to promote research and innovation, as well as the construction of legislative frameworks for data protection and cybersecurity. 24 ” It further states that, “in August 2021, NITI Aayog published the second segment of the principles for responsible AI, which focuses on putting into practice the principles derived from the ethical considerations explored in the first part. The document underscores the significance of government involvement in promoting responsible AI implementation in social sectors, in collaboration with the private sector and research organizations. It stresses the necessity of regulatory and policy actions, capacity enhancement, and encouraging ethical practices by integrating a responsible mindset among private entities regarding AI. 25 ” Apart from this Indian Courts have both used 26 AI and also cautioned regarding the use of the same. Various industry experts have also cautioned against the unregulated use of AI and related technologies. A balanced and well-thought-out approach, to be very honest. The Supreme Court has used and imbibed 23 How AI is changing Legal Profession, Bloomberg Law, available at: https://pro.bloomberglaw.com/insights/technology/how-is-ai-changing-thelegal-profession (last visited on April 16, 2025). 24 India’s Regulations on AI., India Briefing, available at: https://www.india-briefing.com/news/india-regulation-of-ai-and-large-language-models31680.html (last visited on April 16, 2025). 25 Ibid. 26 Ibid. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 120 the principles of AI by various methods such as SUVAS (Supreme Court Vidhik Anuvaad Software), translation of judgments in vernacular languages (e-SCR), SUPACE (Supreme Court Portal for Assistance in Court efficiency), Natural Language Processing (NLP), AI Saransh, AI committees, and ECourts Project III. The use of AI by Hon’ble Justice Anoop Chitkara of the Punjab and Haryana High Court is again a case in this point. In the judicial system, the use of AI can be done in areas such as improved transparency, enhanced efficiency, better access to justice, streamlined legal research, and facilitating policy decisions. However, again there is an issue of ethical decision making in the whole transaction. 3. Legal Regulations and Legal Ethics: Artificial Intelligence and Decision Making India currently does not have a dedicated law on AI and other related software. Legislations like Information Technology Act 2000 (Sections 43 A, 66 D, 67; Retd. (Justice) K.S. Puttaswamy v Union of India), Digital Data Protection Act 2023 (Data protection principles, data localisation, data breaches), and Information Technology Rules 2021 (Information technology Intermediaries Guidelines and Digital Media Ethics Code 2021), Draft National Data Governance Framework Policy (NDGFP) 2022, National strategy for Artificial Intelligence (2018), Principles for Responsible AI 2021, Rules on Deepfakes and Misinformation, International Collaboration and Investments, and government investments in AI are the ones currently dealing with AI. In March 2024, MeitY issued an advisory aimed at regulating unreliable AI models, Generative AI, and LLMs. Platforms intending to introduce these technologies to the Indian public must ensure compliance with three key directives: 27 Bias and Discrimination: AI models must not facilitate bias, discrimination, or violate the integrity of the electoral process. Under-Tested AI Models: Any AI model deemed under-tested must seek explicit permission from MeitY before being deployed. Users must be cautioned about the potential inaccuracies of the AI’s output; Labelling of AIGenerated Content: AI-generated media, including text, audio, and video, must be labelled with unique identifiers or metadata. This allows users to trace the origin of the content, especially in the case of deepfakes or misinformation. 28 Laws in India are developing but there is no concrete law to tackle the issue of AI, and so a comprehensive law is indeed needed for the same. There are many other regulations as wellThe Advisory Rules on Artificial Intelligence Models and Training 2024 by the Ministry of Electronics and Information Technology, The Advisory on the Use of Artificial Intelligence Models, Large Language Models and Generative Artificial Intelligence Softwares or Algorithms by the Ministry of Electronics and Information Technology 2024, The Draft Indian Standards for Responsible Artificial Intelligence, The Bureau of Indian Standards, The Draft National Data Governance Framework Policy 2022 (The Ministry for Electronics and Information Technology), The Due Diligence Advisory for Artificial Intelligence Intermediaries and Consequences of Non-Compliance 2024 (The Ministry of Electronics and Information Technology), The Economic Advisory Council to Prime Minister of India Report on Complex Adaptive Systems Framework to Regulate Artificial Intelligence 2024, The India Artificial Intelligence 2023 Expert 27 Navigating AI regulation in India, ELP Law, available at: https://elplaw.in/leadership/navigating-ai-regulation-in-india-unpacking-the-meityadvisory-on-ai-in-a-global-context/ (last visited on April 16, 2025). 28 India’s Regulations on AI., India Briefing, available at: https://www.india-briefing.com/news/india-regulation-of-ai-and-large-language-models31680.html (last visited on April 16, 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 121 Group Report by the Ministry of Electronics and Information Technology 2023, The Ministry of Commerce Taskforce Report on Artificial Intelligence 2018, The National Artificial Intelligence Strategy 2018 (#AIforAll), The National E-Governance Plan, Government of India, The National Principles for Responsible Artificial Intelligence 2021, The NITI Ayog Report on AIRAWATArtificial Intelligence Research, Analytics, and Knowledge Assimilation Platform, The Operationalizing Principles for Responsible Artificial Intelligence 2021, The Proposed Digital India Act, The Securities and Exchange Board of India Circular on Requirements for Artificial Intelligence and Machine Learning Applications 2019, and The Telecom Regulatory Authority of India Recommendation son the Responsible Adoption of Artificial Intelligence in the Telecom Sector 2023. But these are not comprehensive, as stated above. World over, there are several laws that deal with and tackle the challenges presented by AI and related software. These areThe Artificial Intelligence Law of People’s Republic of China 2024 (China), The Artificial Intelligence Risk Management Framework 2023 (The United States of America), The Blueprint for AI Bill of Rights 2023 (The United States of America), The Consumer Privacy Protection Act 2017 (United States of America), The Cyber Incident Reporting for Critical Infrastructure Act 2022 (The United States of America), The Data Protection Act 2018 (The United Kingdom), The Digital Operations resilience Act 2024 (European Union), The Electronic Communications Protection Act (United States of America), The European Union Artificial Intelligence Act 2024 (European Union), The Executive Order on Improving the Nation’s Cybersecurity 2021 (The United States of America), The Federal Computer Fraud and Abuse Act (The United States of America), The Federal Information Security Modernization Act 2014 (The United States of America), The General Data Protection Regulation 2018 (The European Union), The Global Partnership on Artificial Intelligence 2023 (Delhi Declaration), The New York Penal Law (The United States of America), The Privacy Act 1974 (United States of America), The Securities and Exchange Commission Incident Disclosure Regulations 2023 (The United States of America) , The SAFE Innovation Framework for AI Policy 2023 (The United States of America), The Security of Critical Infrastructure Act 2018 (Australia) , and The United States of America Executive Order on ‘Safe, Secure, and Trustworthy Development and Use of AI’ 2023 (The United States of America). Apart from studying this, one must also know about the ethical issues involved in using AI in decision making and in general sense as well. According to a Harvard Business School research article 29 , there are certain ethical issuessuch as, digital amplification, algorithmic bias, cybersecurity, and privacy and inclusiveness issuesinvolved in the usage of AI for decision making and other purposes. Thus, even though we have ample regulations and even laws in certain countries, AI does present issues that need urgent attention. 4. Closing Note: Conclusion and Way Forward Artificial intelligence is a very interesting technology and must be used in the best way possible. The various arguments produced in this present research paper defines artificial intelligence, generative artificial intelligence, the working of the same, their various facets and categories, the decision-making mechanism imbibed in the same, the usage of the same in legal profession, and the ethical and other conundrums involved in the same, while also studying law and legal regulations dealing with the same. 29 5 Ethical Considerations of AI in Business, Harvard Business Review Online, available at: https://online.hbs.edu/blog/post/ethicalconsiderations-of-ai(last visited on April 16, 2025). Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 128 2.10 Kolkata Case (2024) There has been a lot of criticism and attention surrounding the latest rape and murder case in Kolkata commonly being known as the Kolkata Rape case 20 . Here's a quick rundown: A resident physician at Kolkata's R.G. Kar Medical College and Hospital was discovered dead and sexually assaulted in a lecture hall on August 9, 2024. After working a 36-hour shift, the victim was found the following morning with significant injuries and in a semi-naked state. She had been sexually raped and strangled, according to an autopsy. 21 Nationwide demonstrations and discussions over women's and doctors' safety in India have been triggered by the incident. Numerous arrests have been made as part of the investigation being conducted by the Central Bureau of Investigation (CBI). Significant administrative and security improvements at the hospital have also resulted from the event. 3. Common Themes, Patterns, and Challenges The instances examined shed light on a number of recurring themes, trends, and difficulties in India's struggle against crimes motivated by gender identity and sexual assault. Many of these cases have a pattern of cruelty and premeditation, and the offenders are frequently known to the victims. The structural breakdown of the legal system and law enforcement, which leaves victims and their families unable to obtain justice because of things like witness tampering, police indifference, and the influence of money and power, is another frequent theme. The profoundly ingrained patriarchal mentality in Indian society, which normalizes victim-blaming, sexism, and a environment in which perpetrators are treated with impunity, is a significant obstacle. The absence of mental health services, proper sex education, and positive ideas about masculinity all contribute to this. The incidents also highlight the need for stronger safeguards for witnesses and victims, as well as for quicker trial processes and harsher punishments for sexual offences. 4. Public Discourse and Legal Reforms The cases that have been examined have influenced public opinion and sparked substantial legal reforms in India. Particularly, the Nirbhaya case caused widespread demonstrations and indignation that resulted in the 2013 Criminal Law (Amendment) Act 22 , which increased the severity of penalties for sexual offences and redefined other crimes, including voyeurism and acid attacks. Priyadarshini Mattoo, among other examples, have brought attention to the critical role that public pressure and media involvement play in winning justice for victims and enacting structural improvements. The cases also highlight the shortcomings of relying just on legal changes to overcome the ingrained social problems that support sexual assault. The low conviction rates in sexual assault cases, the 20 In Re: Brutal Rape and Murder of a Doctor in Kolkata, 2024 SCC OnLine SC 1452 21 Kolkata doctor rape and murder hearing LIVE: SC to hear in RG Kar hospital incident today," available at, https://www.thehindu.com/news/national/kolkata-doctor-rape-murder-supreme-court-rg-kar-hearing-live september-9/article68620618.ece. (Last modified on September 9, 2025) 22 The Criminal Law (Amendment) Act, 2013 (Act No. 13 of 2013), passed by the Lok Sabha on March 19, 2013 and the Rajya Sabha on March 21, 2013, received the assent of the President on April 2, 2013. It came into force retrospectively from February 3, 2013 Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 129 ineffective application of legislation, and the requirement for judicial and law enforcement personnel to adopt new attitudes are all ongoing issues. 23 To solve these issues and build a more secure and just society for women and children in India, persistent efforts are needed. 4.1 Legal Reforms and Policy Changes A 23-year-old physiotherapy intern in Delhi who was brutally raped and killed by a gang in December 2012—dubbed "Nirbhaya" by the media—sparked outrage and protests across the country. In response, the Indian government passed the Criminal Law (Amendment) Act, 2013, which significantly altered the country's criminal justice system. Among the important reforms were: 24 - Extending the definition of sexual offences to cover new offences such as voyeurism, acid assaults, and stalking - Instituting the death penalty for repeat offenders or in situations when the victim passes away or is left in a vegetative state, and raising the minimum sentence for rape from seven to ten years. - Requiring the filing of rape allegations and medical examinations, and penalizing officials who neglect to file reports of recorded crimes. - Reducing the Juvenile Justice Act's maximum age of 18 to 16 for adult violent offenders' trials. The changes were designed to make the criminal justice system more victim-responsive and to impose stiffer penalties in an effort to discourage sexual crimes. The results, nevertheless, have been uneven Reports of rapes rose from 24,923 in 2012 to 33,356 in 2018. This could be because more people are reporting crimes. Due to things like shoddy investigations, inadequate witness protection, and protracted court proceedings, conviction rates are still low, hovering around 25–30%.With only one execution permitted by the new statute as of 2021, the death sentence has been criticized as being ineffectual. 25 There are various obstacles facing the current legislative framework: • The absence of mental health services, propersex education, and negativeideas about masculinity all contribute to a culture that normalises sexual violence. • Inadequate safeguards for witnesses and victims result in intimidation and more victimization. 26 • Trial schedule delays and a massive backlog of cases in the court system. 27 23 Bula Bhadra, "Rape Law Reforms in India: Catalyst to Gender Justice or Modernization in Legal Reforms, Shahid M. Shahidullah, Crime, Criminal Justice, and the Evolving Science of Criminology in South Asia (Palgrave Macmillan, London, 2017) 24 Shreya Jha, "Unveiling Justice: A Comprehensive Analysis of Nirbhaya Case and it's Impact on Legal Reforms in India", 2 WBLJ 14 (2023) 25 Ibid. 26 Harsher anti-rape laws alone do not deter crimes against women, Supreme Court had warned government in Nirbhaya verdict," The Hindu, September 29, 2023, https://www.thehindu.com/news/national/harsher-anti-rape-laws alone-do-not-deter-crimes-against-women-sc-had-warnedgovt-in-nirbhaya-verdict/article68537350.ece. (Last visited on August 18, 2024) 27 Aarti Sharma, "An Evolution of Anti-Rape Laws in India after Nirbhaya’s case: An Analysis," 7, IJCRT, (2019) Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 130 4.2 Implications of the Bhartiya Nyaya Sanhita The Bhartiya Nyaya Sanhita (BNS), is a proposed replacement for the colonial-era Indian Penal Code (IPC). The BNS has drawn criticism for the following even though it keeps the death penalty for gang rape and aggravated sexual assault: - Ignoring marital rape, which is still permitted in India. - Introducing a clause pertaining to the "right to privacy" that can be abused to prevent victims from receiving justice. - Lacking a thorough strategy to address gender discrimination and sexual assault. A number of rape-related reforms are introduced by the Bhartiya Nyaya Sanhita (BNS), including the introduction of tougher punishments for sexual offences, like life in jail or the death sentence for POCSO cases. It broadens the definition of rape while keeping the meaning essentially the same as the Indian Penal Code (IPC). This allows for greater responsibility. Notwithstanding, notable obstacles persist, including the perpetuation of the marital rape exception, which erodes women's self-governance, and inadequate acknowledgement of victims who identify as male or transgender. Furthermore, although the legal age of consent is universally fixed at 18, the implementation of these reforms and public perceptions of sexual violence will determine how effective they are. All things considered, even if the BNS seeks to update India's legal system with reference to sexual offences, it still reflects. In summary, although the legal modifications implemented following the Nirbhaya case represented a positive development, they have proven insufficient to mitigate the widespread issue of sexual violence in India. To develop a safer and more fair society for women and children, a comprehensive strategy involving strict legislation, effective execution, victim support, police reforms, and cultural change is required. 4.3 Protection of Children Against Sexual Offenses Act, 2012 POCSO Act is a sui generis legislation instituted to shield children from offenses of sexual attack, sexual badgering, porn and accommodate foundation of Unique Courts for trial of offences of such nature. Recording of statements According to Section 24 of the Act, the statement of the child will be recorded at his/her home or where he/she typically lives or at his preferred spot and to the extent that practicable by a lady police officer who shall not be wearing uniform. It guarantees that during investigation, the child shouldn't come in contactin any way with the accused. Assumption of guilty mental state According to Section 30 of the Act, the Special Court will assume the presence of such mental state yet it will be a safeguard for the accused to demonstrate the way that he had no such mental state concerning the act charged as an offence in that arraignment. Thus, there is a reverse burden to prove any claims in issues pertaining to the POCSO Act. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 131 In Camera proceedings According to Section 37 of the Act, the special court will take upcases in camera and within the sight of the parents of the child or some other individual in whom the child has faith. 28 Public Outcry and POCSO Cases in India Rape and sexual violence are devastating issues that affect individuals, families, and communities in many parts of the world, and India is no exception. The country has witnessed numerous cases of sexual assault and violence against women and children, which have sparked public outrage, activism, and calls for justice. Among the most critical legislative frameworks in India to address sexual offenses is the Protection of Children from Sexual Offences (POCSO) Act, which specifically targets crimes against children, including rape, sexual harassment, and exploitation. Public outcry and activism have played a central role in demanding stronger legal protections, raising awareness, and seeking justice for survivors of these horrific crimes. The Significance of Public Outcry Public outcry in response to rape and sexual assault cases in India has had a significant impact on shaping public discourse and influencing legal reforms. One of the most iconic cases that brought sexual violence into the forefront of national consciousness was the 2012 Nirbhaya gang rape and murder in New Delhi. The brutal assault of a 23-year-old physiotherapy student on a moving bus in the capital city captured national and international attention. The survivor, who was later named Nirbhaya, was brutally assaulted by six men, leading to her death from injuries sustained during the attack. The case sent shockwaves throughout India and prompted widespread protests and public demonstrations, with people from all walks of life coming together to demand justice for Nirbhaya. The outrage that followed the Nirbhaya case resulted in the introduction of the Criminal Law (Amendment) Act, 2013, which made significant changes to India’s criminal justice system. This amendment expanded the definition of rape and sexual offenses, introduced harsher penalties for rapists, and allowed for the death penalty in cases of gang rape and other heinous crimes. Despite these reforms, however, cases of sexual violence continued to rise, and public outcry remained a constant feature of the debate on sexual violence in India. The Nirbhaya case catalyzed the formation of various civil society organizations, women’s rights groups, and grassroots activists who began calling for more stringent laws, better enforcement mechanisms, and societal change. These groups have been at the forefront of advocating for the rights of survivors and pushing for the implementation of legal frameworks like POCSO. POCSO Act: A Legal Framework for Protecting Children The Protection of Children from Sexual Offences (POCSO) Act, 2012, was enacted by the Indian legislature to safeguard children from sexual abuse, exploitation, and trafficking. It criminalizes various forms of sexual offenses, including child rape, child sexual harassment, showing lascivious videos to 28 The Protection of Children from Sexual Harassment Act, 2012 (Act 32 of 2012) ss. 20, 30, 37 Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 132 children and the use of children in pornography. The Act has played a pivotal role in addressing sexual crimes against minors, offering a strong legal framework for the wellbeing of the children and their families. The law also emphasizes the need for child-friendly procedures during investigations and trials, the privacy of the child is of paramount importance, and preventing the revictimization of survivors in the court rooms. The POCSO Act is a mighty weapon in the fight against sexual violence, particularly because it acknowledges the special needs of children. It defines a child as anyone under the age of 18, recognizing that minors may not have the physical or emotional maturity to understand the gravity of situations of sexual abuse and exploitation. The Act’s comprehensive provisions aim to offer survivors of sexual violence both, immediate and long-term support, and it mandates the establishment of special courts, exclusively to handle POCSO cases, ensuring that proceedings are expedited and to prevent back log. Despite the progressive nature of the POCSO Act, challenges still remain. Many instances of sexual abuse go unreported due to social stigma, fear of retaliation, or lack of awareness among children and their families. Apart from these issues, there have been concerns about the duration of trials which move at a snail’s pace and the underreporting of cases, often due to distrust in the judiciary or the trauma of reliving the assault during investigations. Public outcry and activism have been crucial in addressing these issues and ensuring that the POCSO Act serves its intended purpose. 5. The Role of Activism in Raising Awareness and Demanding Justice Activism in India has been instrumental in amplifying the voices of survivors and creating pressure on the government and law enforcement agencies to take action in cases of sexual violence. Many grassroots organizations, including the All India Democratic Women’s Association (AIDWA), the Bhartiya Mahila Federation (BMF), and Breakthrough India, have been working to raise awareness about the prevalence of sexual violence and push for the empowerment of women and children and prevention of such instances. These organizations often collaborate with survivors and their families to provide legal aid, counseling, and other forms of support. They also organize public protests, rallies, and campaigns to demand justice for rape survivors and call for changes in the legal and social systems. One such campaign that gained widespread attention was the #MeToo movement, which allowed survivors of sexual violence and harassment to share their experiences on social media, shedding light on the pervasive nature of sexual violence in Indian society and the dark side of Bollywood that no one talks about. The #MeToo movement brought to light numerous high-profile cases of sexual misconduct involving politicians, celebrities, and business leaders, demonstrating the widespread nature of sexual violence that has permeated through all levels of society. In many instances, the survivors faced terrible backlash for coming forward, with critics questioning their motives or even accusing them of fabricating stories. Nonetheless, the movement played a crucial role in setting in motion the conversations about consent, power dynamics, and the study of victimology for survivors in Indian society. Activists also emphasize the need for mandatory sex education in schools, as well as stronger efforts to educate both boys and girls about respecting each other’s boundaries, consent, and healthy relationships. Rethinking Legal Frameworks: Contemporary Challenges and Future Directions 133 This form of education is essential to preventing future instances of sexual violence by tackling issues at their root and promoting gender equality. The public outcry against sexual violence in India has not only led to legal reforms but has also exposed the many loopholes in the criminal justice system. The slow pace of trials, the lack of adequate support services for survivors, and the deeply embedded patriarchal attitude within society are hurdles to justice for the victims. As a result, the demand for institutional reforms has been a major part of the activism surrounding rape and POCSO cases. The Legislature has called for the establishment of more child-friendly courts and the creation of specialized units within the police force to tackle cases of sexual abuse. The Legislature has also demanded that the criminal justice system place greater emphasis on the protection and rehabilitation of survivors, rather than solely focusing on punishment of the culprits. Furthermore, the government is forced to allocate more resources to the implementation of the POCSO Act and ensure that it is enforced effectively. Public outcry has also encouraged better data collection on sexual violence cases, which would allow for a more accurate understanding of the problem and help to allocate resources more effectively. Transparency and accountability within law enforcement and the judiciary are also seen as critical in improving the system’s response to sexual violence. 6. Conclusion The public outcry and activism around rape and POCSO cases in India are essential components in the ongoing fight for justice for survivors and in the battle to create a society where children and women are safe and sound from sexual violence. The Nirbhaya case, the POCSO Act, and movements like #MeToo have helped in bringing light to the need for stronger laws, better enforcement of these laws, and changes in society. While progress has been made, challenges remain in ensuring that the criminal justice system, schools, and communities effectively address sexual violence. Ultimately, the activism and public outcry will be crucial in holding perpetrators accountable, supporting survivors, and creating a future where sexual violence is no longer tolerated or overlooked. [Document text truncated for crawler view.]