Browsing by Subject "Comparative Law"

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Open Access
Access to Justice or Illusory Right? A Comparative Analysis of Legal Aid for the Protection of Women's Rights
(University of North Bengal, 2025-03) Sumit
The operationalization of women's rights, transforming them from abstract legal pronouncements into tangible realities, is fundamentally mediated by access to justice. State-provided legal aid services represent the primary mechanism for bridging the gap between formal equality and socio-economic disparity; yet, their efficacy remains a site of critical contestation. This paper examines whether these systems serve as genuine conduits for justice or, as this analysis suggests, merely an illusory right for the women they are designed to support. Employing a comparative analytical framework, this research examines the de jure promises and de facto realities of legal aid in India, the United Kingdom, and South Africa. Grounded in the substantive equality standards articulated by the Convention on the Elimination of All Forms of Discrimination against Women particularly its General Recommendation No. 33 the study evaluates the structural integrity of each national model. The analysis reveals a 'paradox of progressive universalism' in India, where an expansive legal right for all women is systematically nullified by profound implementation deficits. By contrast, the United Kingdom's model presents a 'legislated illusion,' where fiscal austerity has deliberately curtailed access, weaponizing procedural hurdles like the 'domestic violence gateway' to exclude even its most explicitly protected beneficiaries. South Africa, in turn, illustrates a 'prioritisation paradox,' with its constitutional mandate for legal aid overwhelmingly resourced for criminal defense, thereby systemically marginalizing the civil justice needs most critical to women's empowerment. Ultimately, this paper argues that despite their divergent political rationales, these systems converge in their failure to provide accessible, high-quality, and responsive services. By foregrounding the persistent gap between legal promise and lived experience, this research contributes a critical, cross-jurisdictional perspective on the structural impediments to women's access to justice, challenging the assumption that the mere existence of legal aid frameworks equates to their functional reality.
Open Access
Transformative Constitution and the Horizontality Approach: An Exploratory Study
(University of North Bengal, 2019-09) Sen, Shameek
The Constitution of India, especially the Fundamental Rights chapter, has played a massive transformative role in the Indian society. To quote Ananth Padmanabhan, Fundamental Rights mark “a tectonic shift in constitutional philosophy”, a fact that is universally recognised. However, the enforcement of Fundamental Rights has been predominantly vertical, owing to a tacit acknowledgement of the centrality of the State, largely because of our adherence to westernised notions of unitary sovereignty. Apart from obvious scopes for direct horizontality like in Articles 15(2), 17 and 23, the Indian judiciary has been quite reluctant to effectuate the real layered nature of the Indian sovereign model and make Fundamental Rights horizontally enforceable in general. This paper seeks to acknowledge the inherent limitations of the peremptory vision of Fundamental Rights as a negative right imposing constraints on the state; and aims to advocate a positive duty-based approach in order to fulfil the constitutional visions of a transformed society. Developing on recent works by scholars like Gautam Bhatia who have primarily tried to analyse the foundations of horizontality in the areas of non-discrimination etc., this paper seeks to also explore the possibility of such horizontality in areas like free speech, spaces where the private non-state players play a significant role in imposing regulations, which are, more often than not, extra-legal in nature. The concomitant challenges to the centrality of the State in a vertical vision of Fundamental Rights forms the centrepiece of this paper, which seeks to put forward an alternative vision of Fundamental Rights enforcement through an explicit recognition of the horizontality approach in constitutional adjudication.