Indian Journal of Law and Justice, Vol. 10, No. 02

Permanent URI for this collectionhttps://ir.nbu.ac.in/handle/123456789/3611

EDITORIAL

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 enactment, judicial interpretation 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 now a days nobody knows the whole law of the land. The Legislators, in general, make law, the judges interpret it and the academics teach it in addition to study analysis and research. Even then the ambiguity remains unclear after repeated amendments. This problem poses a complex issue before a modern 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 multi-faceted research in various fields of law. That may be the source of knowledge on some of the areas of legal discussion.

For a long time we are thinking about to publish a law journal from our department. The ideas were on our mind for a couple of years, to give it a present form that have been possible today. In this academic venture the moral support given by our former Vice-Chancellor Professor Arunabha Basumajumdar is commendable at the same time the journal could see the light of the day by the support of my esteemed colleagues, in particular, and the whole academic world in general. Over and above to maintain the above spirit, it is not enough, the continual research and publication is necessary. I have firm belief that I would be able to fulfil the need of the hour by your constant support. Such kind of level of confidence in our mind became possible mainly because of successfully completion of number of national and international seminars and conferences by our Department with overwhelming participation and support from every part of our country and also from different countries including SAARC countries.

We firmly believe on one principle that our journal should ideally be a platform for exchange of ideas and dissemination of information not only from established legal luminaries but also for 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.

The present issue of the journal may have some errors and I academically take responsibility for the same in the given circumstances. I would welcome any suggestion and opinion for improvement for the next issue of the journal.

Prof. (Dr.) Rathin Bandyopadhyay
Chief Editor

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Now showing 1 - 20 of 22

Open Access
A. Lakshminath: Judicial Process Precedent in Indian Law, Eastern Book Company, Lucknow, Third Edition 2009, Hardcover, ISBN: 978- 81-7012-180-0
(University of North Bengal, 2019-09) Bandyopadhyay, Suparna
Open Access
Analysis of Transformative Constitutionalism with Special Reference to Sexual Minorities in India
(University of North Bengal, 2019-09) Chengappa, M.P; Tekwani, Vineeta
The philosophy of transformative constitutionalism is not a new one. The sources of these values can be traced back to the South African constitutional model. In reality, the philosophy that underpins this ideal of Transformative Constitutionalism can hardly be ascribed to or affiliated with anyone's constitutional document. It seeks to utilise constitutional guarantees as well as the constitutional machinery to transform the society it governs into a more progressive one – to make it more inclusive in every regard, and egalitarian in its outlook. This is sought to be done largely through the pursuit of what scholar’s term as “substantive equality,” which pursuit practically manifests itself through the enforcement of socio-economic rights – especially those protecting the interests of the minorities – as well as through affirmative action measures. This paper seeks to establish a deep understanding of how the concept of Transformative Constitutionalism has evolved. Further, this paper aims at is not merely a general understanding of Transformative Constitutionalism and the roles it would set out for the Legislature as well as the Judiciary if truly inculcated in Indian Constitutionalism, but also a specific study at how this ideal is currently being used, as well as how it might be used in the future, to shape the debate on gender-identity and gender-equality issues in India especially with reference to sexual minorities in India.
Open Access
Applicability of res judicata in the Public Interest Litigation, Arbitration and Income Tax Proceedings
(University of North Bengal, 2019-09) Singh, Gurpreet
The article discusses the applicability of the rule of res judicata in the situations where Section 11 of the Code of Civil Procedure, 1908 does not apply. The article also discusses the applicability of res judicata in public interest litigation, arbitration and income tax proceedings. Apart from this, a catena of the judgements of the High Courts and the Supreme Court are discussed on the rule of res judicata.
Open Access
Climate change, Agricultural Practices and Food Security: An analysis of the Indian Scenario with Special Reference to the Food Security Act, 2013
(University of North Bengal, 2019-09) Roy (Maitra), Sangeeta
The undesirable effects of climate change are anticipated to affect the populations with the least capacity to adjust, but with the highest need for improved agricultural performance to achieve food security and decrease poverty. Food security is a condition related to the supply of food, and individuals' access to it. Concerns over food security have existed throughout antiquity. The necessity to challenge climate change while producing more food to feed the world’s growing population means that “climate-smart agriculture” (CSA) is one of the advocated ways forward. This method principally defends an agriculture that sustainably increases productivity, resilience. This will concurrently help meet the goals of food security and overall development. This also envisages transformation of agriculture to feed a growing population in the face of a changing climate without destroying the natural resource base pointedly and alleviate the negative effects of climate change. However, more productive and resilient agriculture will require improved management of natural resources, such as land, water, soil and genetic resources through practices such as conservation agriculture, integrated pest management, agro-forestry and sustainable diets. Climate change hovers production’s stability and productivity. In several areas of the world where agricultural productivity is already low and the means of coping with adverse events are limited, climate change is expected to reduce productivity to even lower levels and make production more irregular. Long term changes in the outlines of temperature and precipitation, that are part of climate change, are expected to move production seasons, pest and disease patterns, and modify the set of viable crops affecting production, prices, incomes and eventually, livings and lives. India is no exception to the changing climate patterns and global warming. With its ever-rising population the need for food security is a greater burden. India’s population and the enactment of Food Security Act, 2013 imposes obligation on the government to improve agricultural practices to feed billions of people. Unfortunately, the Act does not mention the concept of climate smart agriculture nor the ways to deal with food security in the light of climate change, to deal with the challenges which it must meet successfully. The purpose of this paper is to examine the concept and relationship between climate change and agricultural practices related to climate smart agriculture; to evaluate the concept of climate smart agriculture in the international context; to analyse the Food Security Act, 2013 critically from the perspective of climate change and productivity development; and finally, to put forth suggestions to deal with the challenge in the present day context. The study is purely doctrinal with material collected from primary and secondary sources.
Open Access
Conceptualising the Rights of Muslim Women in Context of Islamic Personal Law
(University of North Bengal, 2019-09) Gagneja, Shaveta
Despite the constitutional commitment for the gender-just laws and equal safeguards for minorities still Muslim women face considerable challenges as a member of largest minority and, are among the poorest, economically vulnerable, educationally and politically marginalized group in the country. Personal law, based on religious laws as modified by state legislation and judicial precedent, governs family relations including marriage, divorce, inheritance and maintenance and applies to individuals on the basis of their religious identity have become the benchmarks of a gender-just existence. According to Sacher Committee report media has extensively highlighted on select cases of Muslim women passionately in identifying the Muslim religion as the sole locus of gender injustice in the Community. In this paper author shall attempt to provide an exposition of statutory and judicial framework of India’s religion-state relations and further illustrate the rights of Muslim women laid down under Holy Qur’an for the protection of Muslim Women. It also briefly look in to the legislative enactments of The Muslim Women (Protection of Rights on Marriage) Act, 2019 over the triple talaq.
Open Access
Corporate Social Responsibility vis-a-vis Corporate Environmental Responsibility
(University of North Bengal, 2019-09) Tiwari, Mayank
Corporate Social Responsibility (CSR) is a basic responsibility of the corporate sector and the Companies Act, 2013 has made it compulsory for the companies to spend a share of their profit for society at large. It has also been observed that the companies responsible toward the society at large have good repute among the customers and create long term value for shareholders. The Environmental Pollution and globalisation have direct relationship. So, it is required for the corporate sectors to take proper steps for prevention of degradation of the environment. It is helpful to create a balance of development and protection of natural habitat by promoting good practices among corporate through CSR. In modern times, the corporate sector is getting more responsible towards environment protection and several initiatives are taken by them to create healthy environment by revival of lakes, cleaning of rivers, protection of wild life species, management of national and local parks etc. The main aim for a business enterprise is to perform social – cum – economic responsibility. Inspite of mandate of law, many companies find reasons for not complying with CSR norms. But the general observation is that the corporate trend is changing with times and now the corporate are taking CSR as business strategy. In light of the environment protection initiatives by corporate it can be said that Corporate Social Responsibility is emerging as Corporate Environment Responsibility.
Open Access
Critical Comment on Access and Benefit Sharing in India under Biological Diversity Act, 2002: In the Light of Nagoya Protocol on Access & Benefit Sharing
(University of North Bengal, 2019-09) Dash, Paramita; Chakraborty, Amlan
In recent times the importance of biological/ genetic resources has increased in manifold because of their use technical and scientific researches leading to various kinds of invention which gets commercially exploited giving rise to revenue generation. This growing importance has posed a new threat to the biological/genetic resources in the form of unauthorised use of the same. This was realised when developing countries like India faced several cases of bio-piracy in the mid-90s. These bio-piracy cases surfaced when a peculiar phenomenon was observed in which developed countries like USA started misappropriating the bioresources and the associated traditional knowledge of the developing countries in creating inventions and claiming exclusive rights over them through Patent system, thereby stopping the rest of the world from using those resources and/or associated knowledge. This led to a situation where the country which provided the bioresource and/or the associated knowledge also known as the Provider country was at complete loss as even after contributing in the process of creation of the concerned invention by providing resources and knowledge, it could not secure a share of the benefit arising from commercial exploitation of the invention, in its account. And In order to address this new challenge an attempt was made at the international level to come up with a framework which will allow the countries to secure their right of sovereignty over their bio-resources which in turn will help them in preventing cases of bio-piracy. With this, came the Convention on Biological Diversity which brought the concept of state sovereignty over bioresources, their conservation and sustainable use and fair and equitable benefit sharing which further was discussed in details in its Nagoya Protocol on Access and Benefit Sharing. Authors in this paper will look in to this identified threat and would specially focus on the concept of ABS under Nagoya Protocol and under the Indian law i.e. Biological Diversity Act, 2002.
Open Access
Cyber Terrorism and International Humanitarian Law
(University of North Bengal, 2019-09) Sinha, Sreoshi
Terrorism, the most violent form of perpetration has existed since the inception of human civilization. Though the conventional motives have remained the same, the traditional concepts and methods of terrorism have evolved into deadlier forms with the advancement of modern technology. Information technology is one such area which has increasingly allured the terrorists over the years due to the garb of anonymity it offers to the perpetrators of terror. The increased reliance on information technology by the terrorists has significantly given rise to security dangers and hence this new menace became a major challenge to world security and the phenomenon that evolved came to be known as cyber terrorism. The disastrous impacts associated with cyber terrorism made it all the more impossible to be control or prevented. The issues of safeguarding against the threatening of such operations still remain uncertain. Hence the Geneva Conventions or the current Law of War remains relevant to cyber terrorism, but yet the precise points of pertinence remain largely unclear. My central argument would dwell upon whether the International Humanitarian Law or the Law of War would be effective in preventing this newest form of terrorism or not.
Open Access
Enigma Called Insanity: Exploring the Defence of Insanity in Criminal Law with Special Reference to Multiple Personality Disorder
(University of North Bengal, 2019-09) Roy, Souvik
The human brain is one of the most complex creations of nature and so is the defence of insanity, arising out of the same human mind. This paper elaborately discusses the different landmark rules that have affected the interpretation of this defence from time to time. Next, it also highlights the different forms of insanity mainly dealing with automatism and psychopathy while debating whether these could be fairly categorized under the defence of insanity. Furthermore, explicit discussion on the phenomenon of multiple personality disorder (MPD) coupled with a unique attempt to link MPD with the defence of insanity in criminal law has been ventured upon. The paper, therefore further enumerates the different approaches adopted in order to interpret MPD in the light of insanity defence, namely the Unified Approach, the Host Personality Approach and the Clinical Approach. Lastly, the researchers also proposed of introducing and applying the Brain Electrical Oscillation Signature Profiling Test vis-a-vis BEOS test, to determine the certainty of the existence of the disorder in the suspect, to a great extent. The test could help in ascertaining the criminal culpability to a greater degree. This research piece attempts to justify the above proposition by taking a hypothetical scenario and explaining the technique involved. The authors of this paper hereby declare that the same is original and unpublished before on any platform.
Open Access
Functioning of Adjudication Machinery under the Industrial Disputes Act, 1947 in West Bengal
(University of North Bengal, 2019-09) Dutt, Kallol; Biswas, Debasish; Sahu, Tarak Nath
This study attempts to examine the functioning of adjudicating machinery under the Industrial Disputes Act, 1947 in West Bengal during the period from 1991 to 2015 i.e., entire post globalisation period. During the study period the mean rate of disposal per year is 16.4% which is quite low. Again, on an average, in 34 cases per year there are complaints regarding violation of award. If we deduct the cases of award violation, the effective rate of disposal comes to around 13.83%. During the same period the mean rate of award violation is 15.65% which is quite high. If the cases where the parties preferred appeal before higher Courts are considered the rate of disposal will fall further. The study shows that adjudication as a means of settling industrial disputes is not serving its purpose.
Open Access
Future Technology and Labour - Are we Heading Towards a Jobless Future?
(University of North Bengal, 2019-09) Jain, Sunitha Abhay
Technological innovations and the invention of machines powered by Artificial intelligence2 have changed the way we work, interact and carry on our everyday lives. Automation wave has revolutionized the manner in which the traditional manufacturing and service-oriented industries are functioning today. The first industrial revolution was triggered with the invention of steam engine and also led to mechanical production. The invention of electricity and assembly lines resulted in the second industrial revolution where mass production became feasible. The third industrial revolution was driven by computer, digital technology and the internet. The future technologies have resulted in the fourth industrial revolution. The new age technological innovations and inventions such as the automated robots; big data and analytics; augmented reality; the cloud; cyber security; additive manufacturing; horizontal and vertical integration; the internet of things are transforming industrial production and labour relations. There is a drastic improvement in the entire chain of production ranging from design up to productivity, the speed and the quality at which the goods are produced. As a result of the new age technologies various concerns are raised especially its impact on the employment. Many labourers are rendered unemployed and redundant due to automation. The question that arises is whether we are approaching a jobless future?? The job market in India is also undergoing a transformation and posing many social, economic, legal and ethical challenges. Job structure is changing and the workers need to equip themselves with new skills to fit into the new jobs that are emerging as a result of technological innovation. The education system in any country plays a pivotal role in the overall development of an economy as it caters to the needs of the trained and skilled manpower. It is vital for the education system in the country to re-orient itself to cater to the needs of the students to fit into the changing paradigm. The focus of the education needs to be on imparting life-skills and to improve the thinking, problem-solving and decision-making ability of the individuals in a society. In the light of the above, it is also important to address and discuss the various changes, issues and challenges that are taking place in the labour market including the impact of these technologies on the working hours, wages, the working environment and the labour relations amongst others.
Open Access
Groundwater Crisis vis-à-vis Sustainable Development: A Socio-Legal Exploration
(University of North Bengal, 2019-09) Salgar, Pratik
ISRO, World Bank, NITI Aayog and other authorities have alarmed India about serious Groundwater Crisis. NITI Aayog reports, till 2030 the demand for water will likely to be double the available supply and India is highest groundwater user at global level. The main reasons behind the crisis are: over-extraction, lack of legal restrictions and mismanagement of available resources. There are adverse social impacts which lead to social disturbance, violation of fundamental rights and other social setbacks. To combat this crisis and to achieve sustainable development goals, ‘Management’ of groundwater resources is the need of the hour which will ultimately result into ‘healthy’ society. The Judiciary has also contributed to this social illness through landmark decisions and guidelines which underline the performance of various authorities in connection with Groundwater Management. ‘Law’ plays a significant role by hitting all purposes which are to be achieved while fighting with this extremity. The Researcher here throws light and tries to analyse Socio-Legal perspectives of Groundwater Crisis and factors which are holding back ‘Sustainable Development’.
Open Access
Is it possible to create a Zero-Waste Environment in West Bengal?
(University of North Bengal, 2019-09) Saha, Monalisa
The author in this paper has done a holistic study on the waste management system in urban locales in India, especially the one in place in the state of West Bengal. Her study is premised on her hypothesis that the existing environmental regulatory system in India is not keeping pace with rapid urbanisation which in turn has been negatively impacting the health of all living beings in the era of Climate Change. She begins by defining urbanisation and explaining how there are many ill-impacts of this phenomenon, but that she would limit her scope to the study of Urban Waste Management System in the state of West Bengal, India. Her primary focus in this paper has been on the way waste is handled once it is generated in West Bengal, but she emphasises that the focus should ideally shift to reduction of waste or adapting to zero waste habits soon. For this purpose, she has studied elaborately contemporary practices employed by non-governmental entities who have worked in preventing and managing waste beyond their legal duties and outside the scope of supervision of the government. She offers in her conclusion that if appropriate modifications are made in the legal regulatory framework the face of waste management in the state of West Bengal can alter substantially.
Open Access
National Bank for Agricultural and Rural Development (NABARD) Act, 1981: A Significant Effort towards Socio-Economic Development in Rural India
(University of North Bengal, 2019-09) Dutta, Sanjay
NABARD has been established as a unique institution in India under the National Bank for Agriculture and Rural Development Act, 1981, which combines the roles of a central bank, a development agency, a financial institution, an infrastructure funding agency, a microfinance institution, a planning board and an apex-level policy maker. NABARD has taken various initiatives toward Sustainable Development Goals (SDGs), poverty alleviation and inclusive growth through increasing agricultural production, rural employment and Self Help Group (SHG)- Bank Linkage Programme. The establishment and participation of NABARD has been serving various fruitful purposes at the grass-root level which includes enhancing the health of the rural credit delivery system and strengthening the same since its inception.
Open Access
Parsi Divorce: Time to Rethink the Legal Framework?
(University of North Bengal, 2019-09) Ghosal, Anupama; Contractor, Neville
Unlike other communities, the Parsi community is relatively a small community in India. In pre-colonial period, due to the absence of their code of law, Parsis had to depend on the basic principles of justice and fairness but later they were generally managed by panchayats or five most influential and intelligent persons within the community, for redressal of their grievances, because of which problems arose while resolving the disputes pertaining to inheritance and matrimonial litigations. In the colonial period, the need was felt to enact Parsi Marriage and Divorce Act (PMADA) in 1865 that provided for the jury system. Out of many, two major problems that arose in the jury system was access to the matrimonial courts and time-consuming adjudication of matrimonial disputes. The inherent deficiency and inadequacy of the jury system resulted in the formation of opinions and arguments disfavouring and favouring the jury system. The Supreme Court of India finally laid down the principles which constitute the crux of the fundamental right to access justice for the Parsi community. To suit the current need of the Parsi community with the changing times and for ensuring justice and fairness, a reboot of the existing and prevalent Parsi jury system is a necessity.
Open Access
R. Venkataramani: Judgments By O. Chinnappa Reddy-A Humanist, International Institute Of Human Rights Society (Regd.) 1989.
(University of North Bengal, 2019-09) Das, Sagnika
Open Access
Rape Survivor: A Victim Based Approach!
(University of North Bengal, 2019-09) Baladhikari, Surja Kanti
Rape survivors are often seen as a curse in the society where people start believing that the rape victim was herself into some fault for the commission of the crime. A victim of rape is ignored at every stage of a criminal trial at first when the crime is committed by showing the lack of security she has from the state which is equivalent to the respect a woman has in a society thereafter while registering the compliant with the law enforcement agency thereafter during the investigation, trial along with sufferings of being a rape survivor (victim) in the case. It is very important to acknowledge that it is upon the victim the offence is committed and she has to undergo the ordeals of the justice delivery system while she awaits for justice whether it is taking care about her interim needs to that of her present needs along with giving psychological attention to her. She has every right to know about the progress of her case along with a dialogue with the public prosecutor which often a denial as the criminal justice system is more inclined in protection of rights of the accused. It is also very important to analyze how far the victim compensation scheme which is not a statutory right under Section 357A2 has been applied uniformly across India. Whether the victims are getting interim compensation accordingly? The increase in punishment or making the laws more stringent than proper implementation is a victim centric approach or familiarising the victim and giving adequate representation in the criminal justice system is the right path?
Open Access
Relevance of Medical Finding in Rape Cases Post 2013 Amendment of the Indian Penal Code
(University of North Bengal, 2019-09) Fasih, Faisal
Although corroborative in nature, medical evidence plays a very crucial role in rape cases. The glaring inconsistency between direct evidence and medical evidence is considered as defect in the prosecution case. The paper studied the implications of medical findings in two phases – Prior to 2013 amendment and Post-Amendment. Prior to the amendment, rape was defined as an act of sexual intercourse between man and woman without the consent of latter. The law has been amended to include penetrative as well as non-penetrative rape, consisting of sixteen different types of acts. Therefore, the focus of medical examination was to determine penetration by mainly assessing the private organ of victim, tracking seminal fluid and injuries. However, with the broadening of the definition of rape, it is important to make necessary changes for tracing medico-legal aspects of certain findings. Certain medical factors which were important no longer carry the same weightage such as capacity of the accused to cohabit as penetration is not required for the commission of an offence. On the other hand, certain factors which were not very important may play decisive today such as saliva of the accused or traces of object found in the private part of victim. The paper highlights various medical findings relating to physical aspect of rape and its legal implications. It is divided into three sections. The first section analyses the medico-legal aspects of three important findings namely; condition of private part of victim, presence of certain fluid, and recording of injury mark. The second section discusses the impact of amendment on the evidentiary value of certain medical findings such as presence of seminal discharge, saliva, traces of object and evidence suggesting manipulation of body. Finally, the paper makes certain recommendations for better application of medical evidence.
Open Access
Right to Privacy as a Fundamental Right and Media Trials in India
(University of North Bengal, 2019-09) Pandey, Sonakshi; Srivastava, Snigdha
In this research it is planned to analyze the Right to Privacy as forming an intrinsic part of the fundamental right of ‘right to life and personal liberty’ under Article 21 of Constitution of India, and the way it is being abused via media trial being carried out by various media houses. Media is considered as the fourth pillar of our Indian democracy and plays a very important role in our daily lives as well as for safeguard of democracy, dilution of concentration of power within the country, it is very important to keep the check and balance and due to lack of Constitutional and legislative measures to protect privacy, the big role media plays in our democracy having such laws expressly can be viewed as hindrance in letting the media express their views openly that too beyond the reasonable restrictions as imbibed in the Constitutional framework of our Country.
Open Access
Role of Central Armed Forces in Combating Cross Border Crimes: A study of Indian legal Framework
(University of North Bengal, 2019-09) Choudhury, Joyjit
“For to be free is not merely to cast one’s chains, but to live in a way that respects & enhances the freedom of others”. - Nelson Mandela Human trafficking is a criminal offence or a crime against humanity. It is a problem not only in SAARC countries rather it is a global issue. Human trafficking has become a multinational trade, making billions of dollars at the expense of millions and millions of victim, many of them includes young girls and children, who are deprived of their dignity and freedom. The porous border between India, Bhutan, Nepal and Bangladesh and lack of proper law for the implementation to combat human trafficking for sexual exploitation has led to the rise in the rate of trafficking. It has been decades since the SAARC has been formed but till today no such laws has been implemented to combat human trafficking in any form. Nepal , Bhutan and Bangladesh being the closest neighbors of India having similar demographic features, cultural heritage, economic stability, similarity of customs and traditions etc, have accounted to the human trafficking in the border areas and cross border areas which has become very difficult to control.