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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Start date: 2019End date: 2019

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    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.
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    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.
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    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.
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    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.
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    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’.
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    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?
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    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.
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    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.