Indian Journal of Law and Justice, Vol. 14, No. 02

Permanent URI for this collectionhttps://ir.nbu.ac.in/handle/123456789/5057

EDITORIAL NOTE

For more than a decade now, Indian Journal of Law and Justice (IJLJ) has been the goto, peer-reviewed journal for academicians, judges, researchers and advocates. It played a key role in my early career success, and I look forward to building on the journal’s legacy.

Law has been a dynamic concept all the time. It has various dimensions depending upon the period of time as well as its applicability to the nature of society in which it is to operate. The basic concepts of law remain changing with the changing situation of the social norms, the political strategy and the needs of the common man. The rule of law is the slogan of the day may it be on one side or the other. The act which is legal today may be an offence tomorrow and the vice-versa. At the same time an act which is legal in one part of the world may be a crime in other part of the world. Even in a country a "Law" may be valid in a part of its territory may be illegal and punishable in the other part. The law cannot be studied in isolation. In such a decimal context a common man wonders about to learn what is the true law? The answer of the question cannot be given on looking at the statutory law alone. One has to draw the conspectus of the legislative enactments, judicial interpretations and the opinion of the jurists. It is a sheer paradox that everyone is supposed to know the law of the land while the fact remains that nowadays nobody knows the whole law of the land. The Legislators, in general, make law, the judges interpret it and the academicians teach it in addition to studying it, analysing it and researching upon it. But the ambiguity remains even after repeated amendments. This poses a complex issue before a modem man how to know the "law in force". The only solution may be found in deep analysis and research on various aspects of the law. A humble attempt has been made by bringing out the present publication.

The Department of Law, University of North Bengal, although a recent centre of legal education in comparison to others in North India, has played a significant role. The academic excellence of any institution may be judged by the achievements of its students and performance of its teachers in addition to the given infrastructure and the facilities available for such goals. Present shape of the journal has been the product of a long process and initiatives undertaken by our faculty members. The present publication is the testimony to the fact which will go a long way in spreading the inference of multifaceted research in various fields of law that may be the source of knowledge on some of the areas of legal discussion.

We firmly believe, that our journal should ideally be a platform for exchange of ideas and dissemination of information not only from established legal luminaries but also from the young faculties and researchers in the field of law and allied subjects who will be the future leaders in the field of legal education in our country.

As the Chief Editor of the Journal, I am committed to making it a forum that welcomes scholarship from a diverse and global group of authors, whose ideas are at the cutting edge of law and policy research. I will dedicate myself to making the journal an inclusive publishing space that embraces work from a variety of methodological and theoretical perspectives, and I will be working to make the journal and its content more accessible to our readers both in the India and around the world. But I’m not doing this alone. It is my great pleasure to be working with a fabulous Editorial Team who work relentlessly to up the quality of the Journal.

You will soon see some significant changes to the journal. For the sake of brevity, I will not go into great detail, but I can assure you we are working to ensure IJLJ remains a highly respected publication venue for your scholarship. As a quick overview, here are few of the changes you can expect in the coming year:

  • An online-based submission portal to improve and expedite peer review.
  • Online-first publishing that means we can get your research out quicker.
  • Priority submission deadlines with the goal of expediting review to 45 days or less.
  • Accessibility-friendly online article formatting that works better with screen readers.
  • Increased promotion of IJLJ authors and their scholarship through social media.
  • Workshops to help law and policy scholars enhance their research skills.

In Volume 14, Issue 02, we pay homage to the journal’s past and embrace the journal’s future, publishing three articles that I believe align with my vision for the journal. I think you’ll find there’s a little something for everyone in this issue, from insightful legal analysis to incisive policy work.

I hope you enjoy this issue, and I welcome your feedback.

Prof. (Dr.) Rathin Bandhopadhyay
Chief Editor

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    Sedition: Prince Closing Up on Kingship
    (University of North Bengal, 2023-09) Singh, Guru Prasad
    In May 2022, the Hon'ble Apex Court recently ordered that the colonial-era sedition law under Sec. 124A of the Indian Penal Code should be kept in abeyance until the Centre has reconsidered it. In this context, it becomes pertinent to submit that the history of the law relating to sedition in India is very tainted. The law that was once used to prosecute some of our greatest freedom fighters still exists today in our statute book. In free India, when some of the High Courts had started declaring the law's unconstitutionality, it was finally the turn of our Apex Court to show up and uphold its constitutionality. The survival of this provision in free India in the paradigm of parameters set out in Part III of the Constitution is a fascinating and problematic story. This research work traces the origin of Sedition Law in the Indian Penal Code and also elaborates upon its survival in the post–constitutional regime. There has been a drastic increase in Sedition cases recently, and suppressing dissent and discourse during Covid-19 has reminded us of the misuse of this law against one of our greatest freedom fighters, viz. Bal Gangadhar Tilak. Is it a situation where the saw given to the carpenter to cut a piece of wood has been used to clear the entire forest? In light of the Apex Court's stand that it is high time we have to decide the limits of sedition, this research paper would be a needful inquiry into the same.
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    NOTES AND COMMENTS Regulating Artificial Intelligence under Data Protection Law: Challenges and Solutions for India
    (University of North Bengal, 2023-09) Naithani, Paarth
    As India moves toward enacting a comprehensive data protection legislation, it becomes essential to examine the possible application of India’s proposed data protection law to the use of Artificial Intelligence (AI). The various challenges posed by AI to data protection principles and data principals’ rights need to be examined. The need for data maximisation in the use of AI challenges the principle of collection limitation. The difficulty in anticipating the processing purposes of AI challenges the principle of purpose limitation. With a brief introduction to AI and data protection law in India, the paper examines the compatibility of various data protection provisions under India’s Digital Personal Data Protection Act, 2023 with AI. The paper also provides recommendations for data protection regulation of AI. The paper proposes the need to hold data fiduciaries accountable using Data Protection Impact Assessments, Codes of Practice and Security Measures. Besides, there is a need to define the fiduciary duty of care between the data principal and data fiduciary. There is a need recognize data protection by design and default and the Right against automated decision making. Technical solutions need to be explored, but at the same time, AI must not be over-regulated. Lastly, there is a need for flexibly interpreting the provisions of the proposed data protection law.
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    Judicial Opinion on Whether Personal Law is a “Law” under Article 13 of the Constitution of India
    (University of North Bengal, 2023-09) Kejriwal, Shruti
    India is a land of religious pluralism. Every religion has its own set of customs and rituals. Personal law may apply to either a group or an individual. It is applied based on the faith or the religion, which an individual chooses to practice and profess. In India, there have been migrations and invasions by varied foreign rulers, which have led to multiple set of personal laws. Some practices of these religions are discriminatory on the ground of gender. Contemporary India witnesses the upsurge of feminist legal responses on the concerns of gender inequality in religious laws. Beginning from the Constituent Assembly Debates to the formation of the Constitution of India and then the unclear varying judicial pronouncements in relation to the personal laws by the Indian judiciary have made the topic of personal laws dynamic. In this context, it is imperative to understand the concept of personal laws as it prevails today. This article looks into the location of personal laws within the structure of Article 13 of the Constitution of India.
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    Limited War in India-Pakistan: Revisiting the 24 years of Kargil War
    (University of North Bengal, 2023-09) Mukherjee, Dhritiman; Arshed, Tanwir
    In May 1998, the two most important South Asian states overtly conducted their nuclear tests and thus marked the beginning of an era of nuclearisation in the sub-continent. This overt nuclearisation within the region led to a sense of optimism among scholars and policymakers which almost completely ruled out the possibility of an all-out war between India and Pakistan. However, exactly after a year the Kargil War erupts between India and Pakistan- a war that was fought between two ‘nuclear power states’ and since then has completely changed the equation and definition of ‘warfare’ between the two most important and strategically volatile states of South Asia. The year 2023 marks the 24th anniversary of the Kargil War, and the present paper makes an attempt to apprise the lesson that both India and Pakistan have learnt in the post Kargil War era, with specific reference to the techniques and modus operandi of warfare. Questioning the very definition of ‘war’ as developed during the Cold War era, this paper will try to look into pertinent issues how warfare between India and Pakistan has undergone a qualitative change in the post-nuclearisation phase. A closer scrutiny of the nature of war that took place in Kargil points to the fact that there exists a space below the nuclear threshold of both India and Pakistan that can be exploited for conducting a ‘Limited War’- a theoretical prism that refutes the claim made by nuclear pessimists that any war between new nuclear nations will escalate to a nuclear level. Using qualitative methodology as its framework, based on the secondary literature and insights of interviews of policy analyst and experts the paper wishes to contribute a new debate within the discourse of India-Pakistan Relations.
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    Pre-Natal Diagnosis and Judicial Forums: The Application of Transformative Constitutional Values in the Medical Termination of Pregnancy Act, 1971
    (University of North Bengal, 2023-09) Lakhanpal, Anish; Gandotra, Aditya
    Termination of pregnancies by itself is an extremely sensitive issue and is even characterized as an offence within Sections 312-316 of the Indian Penal Code. However, legally sanctioned exceptions have been created in the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as the “MTP Act”). Whenever congenital malformations are detected in a foetus, the relaxation of the upper statutory limit set by the MTP Act becomes the subject of intense debate. When the permissible statutory period elapses, writ petitions to judicial forums may become the last refuge of couples who wish to terminate pregnancy. Many experts question the legal legitimacy of such a relaxation since the time limit set by the statute is unambiguously precise with no scope for exceptions save for a few statutory conditions. However, the authors argue that there are certain eventualities in cases like these, which can form a class by itself and which the MTP Act doesn’t take into account. The authors shall proffer new medico-legal arguments using broader constitutional values and suggest changes in the MTP Act to keep it in consonance with newer conceptions of ‘mental health’ and ‘reproductive autonomy’. It is stated at the outset that the purpose of this article is to further enrich the medical jurisprudence on pre-natal technologies by using principles of laws discussed in Courtroom decisions. The paper shall provide a critique of the legal insights and Court precedents which have shaped discussions on the legal challenges faced in pregnancy cases where the presence of foetal anomalies forces the parents to make difficult choices regarding the continuation of their pregnancies. It is maintained that the domain of this paper shall be limited to legal principles and decisions pertaining to the Indian jurisdiction. The technical and biological variables behind the causation of genetic disorders shall be beyond the scope of this paper.
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    Exploratory Study of Unmanned Aircraft Systems Regulations in India and the Challenges Ahead in Evolving Aviation Ecosystem
    (University of North Bengal, 2023-09) Shenoy, K Kirthan; Tyagi, Divya
    skies over central New Delhi in India were lit up by a spectacular display of over a thousand Unmanned Aircraft Systems (UAS) on the 75th republic day celebration in January 2022. The usage of UAS or drones, as commonly referred to, has gained momentum worldwide, including in India, signifying its importance in the aviation ecosystem. The advancement of technology and large-scale investment has fast-tracked the proliferation of UAS in civil, commercial, and military domains. The government of India and national aviation regulators are continuously working to provide a concrete regulatory framework to support the growth of the UAS sector and minimize the risk emerging from the operation of UAS. A recent step towards the same was taken by passing Drone, Rules 2021. The UAS ecosystem is still in its initial stages of development with uncertainties in privacy, safety, data protection, and governance issues. This paper aims to provide an overview of the UAS regulations in India and their implications for the UAS ecosystem. The paper highlights how such rules will affect civil and commercial UAS usage and its implication on the rights of individuals.
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    Navigating the Path to Justice: An Empirical Analysis of Access to Justice for the Elderly through Maintenance Tribunals in Kolkata
    (University of North Bengal, 2023-09) Bhattacharjee, Anuleena; Chakraborty, Sanjit Kr.
    Older adults comprise a particularly vulnerable group in the Indian society, who often receive the shorter end of the stick as our society does not have the adequate social security nets for their well-being. Over the years, the gradual erosion of the cultural norm of filial piety has undermined their status in the family, leading to a decline in their physical, mental, and emotional well-being. To ensure that their plight is not further exacerbated by their limited access to legal resources and institutions, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was passed with the objective of preserving and upholding therights and dignity of the elderly and for holding the State accountable for their welfare. Under the Act of 2007, ‘Maintenance Tribunals’ are established for providing the elderly with necessary support for resolution of disputes in an expeditious, inexpensive and hassle-free manner. The focus of this Article is to assess the efficacy of the Maintenance Tribunal in meeting the critical needs of older adults and to evaluate their role in ensuring access to justice. To conduct this research, an empirical study was undertaken adopting an ethnographic approach at the Maintenance Tribunals established at Kolkata. By analyzing the perspectives and experiences of the functionaries who are involved in the implementation of the law, the study aims to provide valuable insights into the effectiveness of the dispute resolution forum within the broader legal framework, pinpointing specific areas that require improvement for strengthening the efficacy of the legal system and fostering greater accessibility to justice for the elderly.
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    Swachh Bharat Paradox: Issues and Challenges of Manual Scavengers with Special Reference to the COVID-19 Crisis
    (University of North Bengal, 2023-09) Chawla, Garima
    Despite the enactment of successive legislations in 1993 and 2013, the dehumanising occupational practice of manual scavenging still persists in India. As members of the Dalit community, manual scavengers continue to confront issues such as marginalisation and gross violation of their dignity. This paper critically examines the socio-legal status of manual scavengers in India by assessing key determinants including the legislative and regulatory measures, the role of the judiciary and civil society, as well as the widely celebrated Swachh Bharat Abhiyan. Additionally, the paper provides an empirical analysis of the struggles faced by manual scavengers as frontline workers during the unprecedented humanitarian crisis of COVID-19.
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    Trial of “Offences Arising Out of Violation of Human Rights”- A Study on the Human Rights Courts of Gujarat (India)
    (University of North Bengal, 2023-09) Kaundal, Ruchita; Shanthakumar, S.
    Protection of Human Rights Act, 1993(the ‘PHRA’) came into force on 28th September 1993 and is the primary legislation for protecting Human Rights in India. The PHRA aims to provide better human rights protection to the people by setting up Human Rights Court(s) (HRC) for providing speedy trial of “offences arising out of violation of human rights”. The PHRA, however, does not define or lay down the “offences” that can be construed as arising out of violation of human rights. The paper aims to understand the phrase “offences arising out of violation of human rights” through the interpretation adopted by the Higher Courts of India. Seeking guidance therefrom the authors enlist some of the “offences” within the Indian Penal Code, 1860 which the HRC(s) can try as “offences arising out of violation of human rights”. Furthermore, to determine whether the failure to list the offences impedes the practical operation of the HRC(s), the paper conducts an in-depth study of the cases filed before the HRC(s) in the State of Gujarat. Besides that, the authors conduct a survey among the advocates who practice in these courts, to determine their understanding of the phrase "offences arising from violations of human rights," since they're a layperson's first point of contact within the judicial system. The authors conclude that the failure to codify the nature of offences triable before the HRC(s) causes confusion among advocates, undermining the institution's potential. The PHRA should therefore be amended to include the offences that can be tried before the HRC(s).