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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Now showing 1 - 20 of 25

Open Access
Analyzing the Motivational level among the employees of Urban and Rural Local Bodies in West Bengal
(University of North Bengal, 2023-09) Nag, Debarshi
Several research studies are being conducted world over for the past three decades on the concept of Public Service Motivation (PSM) among employees involved in the public sector. This concept of PSM was put forward by American scholars Perry and Wise in the early 90’s and has since been a major topic of research by several scholars. Unfortunately, however this topic did not catch the attention of Indian scholars who for a long time attached more attention to the implementation part of administration and chose to remain virtually blind towards the human resource factors of the public sector employees. Based on a survey conducted among employees engaged in several Blocks and Municipalities across the length and breadth of West Bengal and then measuring the feedback received based on an indigenous 28-point questionnaire, developed on the line of Perry’s 24-item Public Service Motivation scale, which is measured by Likert’s Scale of grading 1 to 5, several conclusions were reached. The study suggested that most of the employees are responsible citizens and strive hard to improve the living standards of their community through various schematic interventions and work extremely hard, often beyond their normal working hours, in order to meet the administrative and schematic targets. Some constructive measures such as periodical training programs on specific skill development, reforming the existing mechanism of pay and allowances and developing a sense of pride among them for serving the society could go a long way in improving their performance which in turn will prove beneficial for the society in the long run.
Open Access
Book Review Zafar Mahfooz Nomani (Ed.) INTELLECTUAL PROPERTY RIGHTS AND PUBLIC POLICY. New India Publishing Agency, New Delhi, 2019, xxx+268 pp., ₹ 1,595/- (hardcover). ISBN: 978-93-86546-49-4
(University of North Bengal, 2023-09) Md Kasif Raza Khan
Open Access
Breaking the Cycle of Injustice: Investigating Restorative Justice Solutions for Street Begging Children in Dhaka City, Bangladesh through a Comprehensive Socio-Legal Analysis
(University of North Bengal, 2023-09) Haque, S. M. Saiful; Chakrabarty, Shambhu Prasad
Street children in Dhaka are subjected to subtle abuse, exploitation, and violence, like children in many third-world countries. Children are found in vulnerable conditions in street-side homes, public walkways, local bazaars, in front of big buildings, and at public gatherings. It contrasts with the UN SDGs' goals and juvenile rights conferred by articles 02 to 41 of the UNCRC3, the Children Act 2013, and many other national and international laws. Is it not the responsibility of the state to comply with the mandate under international laws and the Constitution of the People’s Republic of Bangladesh. What role have the special laws for women and children played in confirming safeguards from all forms of discrimination and vulnerabilities? Children should be safeguarded and free from all psychological, physiological, inhuman, and other nuances of human exploitation. This contrast to development objectives and the frequency of physical, emotional, and sexual abuse of street children in all spheres of social, economic, and cultural life is a major problem that reinvestigated the efficacy of the rule of law and challenged the restorative justice solution mechanism in place for street children in Dhaka City, Bangladesh. A comprehensive socio-legal analysis of the Children Act of 2013 was done using a mixed-methods approach. The study sought to identify the challenges to the effective execution of the Children Act 2013 in Bangladesh and explore how restorative justice approachescan break the cycle of injustice for the most deprived and vulnerable children in society. The study explores the socio-legal perspective through doctrinal and applied informatics approaches to explore, inter alia, the uprising rate of begging children on the streets of Dhaka. The study's findings explore the shortcomings of the restorative justice mechanism and attempt to address an alternative mechanism to deal with the root causes of street begging and promote social reintegration. This study included observations and interviews with key stakeholders and reviewed relevant literature and aims to provide insight into the effectiveness of protecting the rights and well-being of street children under the current legal system in providing protection, rehabilitation, and reintegration of street begging children under the Children Act 2013. The study addresses some specific reformations of the policy framework and practises to ensure better protection of the rights of street children and promote their social inclusion in the mainstream of city stakeholders in Dhaka. The findings of this research are expected to contribute to identifying evidence-based policy recommendations for improving the lives of street-begging children in Dhaka City.
Open Access
Chances of Reform as a Mitigating Factor in Death Penalty Cases in India: Issues and Challenges
(University of North Bengal, 2023-09) Bhaskar, Amit
Chances of reform or rehabilitation of the accused is one of the important mitigating circumstances in criminal sentencing. In Bachan Singh v State of Punjab (AIR 1980 SC), the Supreme Court upheld the constitutionality of death penalty in India. However, the Court restricted it to Rarest of Rare cases. The Court said that a balance sheet of aggravating and mitigating circumstances is to be prepared and due regard must be given to the chances of reform/rehabilitation as a mitigating circumstance. This paper revolves around the central theme of chances of reform as a mitigating circumstance in death penalty cases and the procedures followed by the Courts to determine the same. Since the Bachan Singh judgment, it has been noticed in several cases on death penalty that the Supreme Court has either accepted or rejected the chances of reform without conducting any due inquiry on the reformative potential of the convict. This raises a serious question on the fairness of procedure under Articles 14 and 21 of the Constitution as these two Articles also applies at the stage of sentencing. However, in some of the recent judgments of the Supreme Court and of the Delhi High Court, as a course correction exercise, some guidelines and procedures have been laid down to determine the chances of reform as a mitigating circumstance. The Courts have admitted that the task of determination of reform has not attracted serious attention of the sentencing courts in the past. Under the procedures evolved, the responsibility has been entrusted upon the Probation Officer under Probation of Offenders Act, 1958 to determine the same. This is a welcome step in the judicial administration of death penalty in India.
Open Access
Crisis and Response of Indian Federalism-Assessing the Federalism through the Prism of Constitution and Democracy
(University of North Bengal, 2023-09) Nagarwal, Narender
research paper investigates the profound claim of India as nation having cooperative federalism. The most striking feature of Indian federalism is the concentration of power at the central level as well as the decentralization of certain powers to provincial units. Nehru envisioned a cooperative federalism for India's government structure, which postulates a multifaceted mechanism to maintain its territorial integrity as well as its democratic and plural character. The federal arrangement is constitutionally protected, and certain subjects, areas, and residuary powers are predominated by the union. The contentious issue of present discourse is whether India’s cooperative federalism exists or lost its distinctiveness. The main task of this research paper is to examine how the politics has endangered the core tenets of Indian federalism thereby pushed the nation into totalitarian or majoritarian state. The massive abuse of the authorities, institutions and repeated dents to fiscal federalism are the area of concern. The main political battle is not about who is supreme-central government or regional government but whether Nehruvian model of cooperative federalism will survive or not. The regional government have been struggling to have equitable share in the resources, finance, and legislations. Many regional governments have steadily outspoken on the subject of undermining their power and central government authoritarianism. The tribulation journey of Indian federalism from cooperative to confrontationist poses serious questions about the future of Indian federalism and what would be the future of many territories, states, and centrally administered regions in India if this confrontationist approach continues. The primary base of the present research is to critically examine the political development of last few years and how these events have undermined the constitutional ethos apart from crisis of federalism”
Open Access
Cultural Defence in Criminal Law: Instances and Issues
(University of North Bengal, 2023-09) Pandey, Akhilendra Kumar
Every society has its distinct culture and its orientation. Law cannot remain aloof from the culture. The culture is in fact embedded in the law of land. Culture makes law and law also makes culture. Culture and law are interdependent. The legal proceedings, particularly criminal proceedings, do not accept cultural practice and tradition as a defence. At times, cultural practices and traditions come in conflict with each other. Protection of cultural rights on the one hand and the prevention of harmful consequences arising out of conduct have to be nicely dovetailed. In this paper an attempt has been made to analyse those circumstances where cultural tradition may be recognized as a defence in criminal or other legal proceedings on the basis of degree of harm likely to be caused by the conduct and also the circumstances where such defence cannot be extended. Where the culture and tradition violate the conscience, it may be considered in mitigating the sentence.
Open Access
Efficacy of Doctrine of Precedent: Analysing of the Common and Civil Law Countries with Reference to India
(University of North Bengal, 2023-09) Dhar Chakraborty, Paramita; Misra, Bibhabasu
Famous jurist Salmond, explained precedent as ounce of gold in tons of unnecessary material in a Judgement. He opined; the legislations are coins ready to be used in a realm. Precedents are creative interstitial (filling up gap in legislation and declaring guidelines in absence of legislations) law making by the Judges, which are flesh and blood in a statutory skeleton. Precedents are primary source of law, in the common law countries like India.3 However in Civil law countries, as for example in continental Europe, precedents are not as strong as in common law countries. In Civil law countries, as for example in France, there are exhaustive codes, like French Criminal Procedure Code. Judges in Civil law Countries most of the time need not to be creative as in common law countries. The main sources of law in Civil law countries, as for example in France, are legislations, edicts of Courts and Juristic opinion. The edicts of Court, rarely has values of precedent. Though Higher Courts’ jurisprudence needs to be followed by the lower Courts. In common law countries, it is a pain to identify the precedent/ obiter dicta in a voluminous Judgment. In Civil law Countries, there is no such pain, as judges are hardly expected to interpret. They are expected only, to apply the law to a fact. A comparative analysis of doctrine of precedent, in Common law Countries and Civil law countries, are worthy of analysis, as it will help us to iron out creases in our legal systems, and we can incorporate the beneficial qualities from the Civil legal system.
Open Access
Empirical Analysis of Police Perceptions about Role of Forensic Science in Crime Investigation
(University of North Bengal, 2023-09) Kadam (Wadikar), Shivkanya; Lokhande, Ankita R.
Objective of the present study was to find out importance of forensic science from the point of view of the investigating officers i.e., police. The police officers who are involved in the work of crime investigation in the city of Nagpur, Maharashtra, India were selected as a sample of the study. The data was collected by personally visiting randomly selected police stations and distributing the questionnaire to the investigating officers there at. In all total 152 participants data was collected and analysed. The results indicated that near about all the investigating officers were aware about forensic science and its utility in the process of crime investigation. Similarly, participants agreed with the fact that crime scene management plays very important role in the process of investigation. , ,
Open Access
Employing Artificial Intelligence in the Interpretation of Contracts: A Legal Analysis
(University of North Bengal, 2023-09) Singh, Ravindra Kumar
interpretation of contracts — as a subject — has been gaining more and more prominence and advancing at a very fast pace, as both in domestic and crossborder transactions, the main issue which the court or the tribunal, in a contractual dispute, normally addresses is in relation to the contract interpretation. Parties generally express their contract through a human language. Being an organic discipline, the language does not have a mathematical preciseness, for the meaning of the words and phrases keeps growing, evolving and expanding. Consequently, a contract is always to be construed against its context and background. These amazing facts about the language make the phenomenon of contract interpretation all the more fascinating as well as challenging. As artificial intelligence (AI) has been increasingly making inroads into different walks of life and functioning, therefore, the judicial system, judicial processes and dispute resolution systems cannot distance away from AI. Specifically, with regard to the interpretation of contract and AI, two legal questions arise: (a) what assistance, if any, can technology provide in the process of contract interpretation? (b) Whether the process of contract interpretation, with the help of appropriate technology or AI, be automated? These questions indeed unwrap a new area of legal research with the aim of examining whether or not the process of interpretation of contract can be automated. The first section of this paper introduces the subject and opens up the discussion. The second section explores the possibility of using technology for either interpreting a contract or providing aid in the process of interpretation. The third section critically reconnoitres the extent to which automation is possible in the process of interpretation of contracts. The fourth section highlights the limitations of the court in using AI for the contract interpretation. Finally, the last section concludes the discussion.
Open Access
Environmental Victimology in Indian Jurisprudence
(University of North Bengal, 2023-09) Singh, Gitu
In view of the varied kinds of emerging wrongs/crimes the legal injury suffered by an individual, community or non-human due to environmental crime is referred to as Environmental Victimology. This study aims to find out the development of environmental victimology in India, which means through this study the institutional response pertaining to protection of victims of environmental crime in India would be traced out. The present study is an attempt to find how has the Indian legislature and judiciary perceived a person or community who has suffered a legal injury due to environmental crime i.e. whether they are considered as victim as defined under sec. 2w(a) of the Criminal Procedure Code, 1973 or a victim under specific environmental legislations or a person whose fundamental right has been infringed thereby providing a remedy under the Indian Constitution. Finding the answer to the above questions raised would help in in determining the scope of environmental victimology in India.
Open Access
Excavating the Role of Digital Twins in Upgrading Cities and Homes Amidst 21st Century: A Techno-Legal Perspective
(University of North Bengal, 2023-09) Ghosh, Jayanta; Banerji, Oishika
Considering factors like technological up-gradation, digital awakening, sustainability, and smart living with machines, the concept of smart cities and smart homes have stepped in with the helping hand offered by digital twins in this era of the 21st century. Aiming to connect physical objects with virtual ones, digital twins using bi-directional connectivity helps maximize the potential of a city, pushing it to grow beyond its capabilities. A rise in the use of virtual simulation technologies reflects the importance of digital twin technology in today’s complex world. With different countries around the world adopting the concept of smart cities and homes to address various issues, the question is who addresses the detriments of walking in with this new adaptability, and who will be liable in situations of mishappening? The Narendra Modi government has initiated the birth of smart cities in India, thereby mending ways for Amravati to become the first city born out of digital twin technology. Walking in with the great potential to transform urban governance and increase urban metabolism, digital twins powered with Artificial Intelligence, the Internet of Things, 5G, blockchain technology have made a significant place in a man’s daily life. A feasible device for urban planning, the subject of digital twins is divergent enough to have an exhaustive coverage. Therefore, there lies room for further development, study, and implementation of this technology. One must not forget that paralyzed laws and regulations welcoming new sets of challenges possessed by the revolutionary digital twins have been in the spotlight of discussion for some time now. Channelizing the same stands utmost in the era of smart living with the help of a well-planned legal framework to address issues arising from the claws of this technology.
Open Access
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.
Open Access
Exploring the Socio-Legal Dimensions of Godmen Phenomena in India: A Gendered Analysis
(University of North Bengal, 2023-09) Dubey, Rajeev; Mishra, Praveen
research paper delves into the complex and multifaceted phenomenon of Godmen in India and examines it through a gender lens. Godmen, also known as spiritual leaders or gurus, wield significant influence over their followers, often with implications for gender dynamics in society. This study aims to shed light on the socio-legal aspects of this phenomenon from a gender perspective, analyzing the role of these new religious formations in reinforcing or challenging gender norms and the legal challenges and implications of their actions. It also looks through the obligation of the state in contemporary times to provide safeguard to its citizens from the debilitating effects of these new religious movements.
Open Access
Finding the Hub and the Spoke of Cartels: Mapping the Indian Experience
(University of North Bengal, 2023-09) Dasgupta, Lovely
As per the Competition Act 2002 (hereinafter called the Act), cartel is defined in terms of an agreement amongst competitors, operating at the same level of a commercial activity. Such horizontal agreements leading to anti-competitive practices are proscribed under the Act. The Act does not deal with the hub and the spoke of a cartel as there was a lack of urgency vis-à-vis such cartels. It has only been in the recent past, that the Competition Commission of India (hereinafter called the CCI) took note of hub and spoke cartels in the Indian market. Consequently, the Competition Law Review Committee (hereinafter called CLRC) in its Report of July 2019 has made recommendations pertaining to hub and spoke cartels. As a consequence, the 2023 Amendment to the Act has incorporated provision pertaining to hub and spoke cartels. The present article maps the Indian experience on the hub and spoke cartels. The primary argument of the author is that the legislative framework within the Act is inadequate to deal with hub and spoke cartels. Hence a comprehensive re-vision is needed.
Open Access
Intersection of Technology and Environmental Law: Recent Developments and Future Challenges
(University of North Bengal, 2023-09) Bhattacharjee, Ripon; Bhattacharya, Bhupal
Due to the growing effect of technical breakthroughs on the environment, the confluence of technology and environmental law has become a crucial field of research. This research analyses current advancements in the area and pinpoints potential problems brought on by the fusion of environmental legislation and technology. The study examines the current legal frameworks that control how technology and the environment interact. It looks at how environmental laws have changed to address issues related to emerging technologies, including how to safeguard digital ecosystems, and how to enforce environmental standards for new technologies like artificial intelligence. The urgency of addressing the convergence of technology and environmental law is emphasised in the paper's conclusion. To create a balance between technological progress and environmental sustainability, it urges proactive measures such as strict legislation, technological innovation, public awareness, and stakeholder participation. This research examines the recent advancements in environmental law and technology, outlines the issues that may result from this confluence, and provides insights into possible avenues for building a sustainable and technologically enabled future.
Open Access
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.
Open Access
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.
Open Access
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.
Open Access
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.
Open Access
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.