Indian Journal of Law and Justice, Vol. 14, No. 01

Permanent URI for this collectionhttps://ir.nbu.ac.in/handle/123456789/4983

From the Editor’s Desk

Season’s Greetings!

I am glad to announce the publication of the Vol. 14 No. 01 issue of the Indian Journal of Law and Justice. The Indian Journal of Law and Justice has come a long way in the last one decade from being a national law journal to being an internationally acclaimed journal and from being a mere print version to having a website of its own, namely ijlj.nbu.ac.in. I also announce the indexing of the journal with SCOPUS along with the HeinOnline. Innumerable scholars, academicians and professionals from the field of law as well as other social sciences sector have been relying on this journal for their scholarly publications and have played a pivotal role in their early career success. I along with my highly efficient editorial team pledge to building on the legacy of this journal. We are making an endeavour for online submissions of articles and research papers to improve and expedite peer review. We, as a team, shall continue to remain 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.

Keeping the trend of the Indian Journal of Law and Justice going, authors across the globe have contributed on varied topical matters and raised relevant and pressing questions in their papers to enrich the journal. The current issue opens with Dr. Alhendi’s paper on “The Disciplinary Sanctions in the Jordinian and French Law” which deals with the power of the administrative authority to determine what constitutes a disciplinarian violation which necessitates disciplinary punishment of public servants in Jordan and France. The issue of combatting international crime is currently one of the most pressing and critical issues of modern international criminal law. Dr. Vadym Popko, who’s from Kyiev, Ukrain, analyses this in his paper entitled “Legal Force of International Criminal Law Norms”.

Papers on various aspects of environment protection, preservation and rehabilitation have yet again taken centre stage in this volume of IJLJ. One of the most pervasive environmental threats in the world is solid waste which includes trash, refuse, garbage and rubbish from residential and business operations. Authors Yahaya and Kehinde have lucidly presented their analyses on solid waste management in United Kingdom and South Africa and the takeaway for Nigeria from these countries in their paper entitled “An Examination of Legal Framework for Solid Waste Disposal and Management in United Kingdom and South Africa: Lesson for Nigeria”. There are papers on other diverse issues on environment like rights of air, groundwater management and environmental pollution. Dr. Kavita Goel’s article on “Conferring the Rights of Air: A Way to Change Social Behaviour in India”, specifically looks into the judgements pronounced by the Supreme Court of India and rightly suggested a shift towards the eco-centric social behaviour from the principles of anthropocentric approach. Again, Prof. Arup Poddar makes a study of the Paris agreement and the sound principle of ‘common but differentiated responsibility and tries to provide a discussion as to how the developing nations will be benefitted from such principle in “A Study of ‘Common but Differentiated Responsibility’ and Paris Agreement”.

In “South Asian Economic Constitutionalism and the (Re) Building of Constitutional Order in South Asia”, Prof. Dilip Ukey and his co-author Adithya Anil Variath have convincingly argued for a need for the South Asian States to develop formative practices that focus on accountable constitutional governance of the economy and strengthening financial institutions. The need and importance of co-operative federalism in India need not be exaggerated. Taking this forward Dr. Manjula S.R. has reviewed the Doctrine of Repugnancy with reference to the much criticised Farm Laws in India in “The Doctrine of Repugnancy, the Constitutional Governance and Judicial Interpretation with reference to Farm Laws in India”. The age old debate over primacy of rights or duties in an evolving legal system like India has been the crux of Dr. Ajay Kumar Sharma’s “Duties or Rights: Should Duties Trump over Rights?” Articles highlighting crucial issues on Live-in Relationship and its morality (Live- in Relationship: Morality, Ethics and Need for Legislation by S. K. Chaturvedi & Shradha Baranwal), recognising LGBTQ rights through persuasive legal instruments in India (The Role of Persuasive Legal Instruments for the Recognition of LGBTQ Rights in India by Prerna Lepcha), individual liberty and public interest and the COVID-19 (A Jurisprudential Study on Individual Liberty v. Public Interest: A Case of COVID- 19 by G. Rajasekar), constitutional morality in judicial appointments (Constitutional Morality and Judicial Appointments in the Higher Judiciary by Paras Chaudhury) and studying potential impact of the National Education Policy on the education of Particular Vulnerable Tribal Groups in India (Implementation of National Education Policy, 2020 amongst Particularly Vulnerable Tribal Groups in India: A Critical Study by Vijoy Kumar Sinha) have endeavoured to establish the changing demands of a rights based society and evolving legal system.

At the backdrop of start-up ventures, Dr. Bharat and Priya Gupta’s paper on “Legal Framework of Single-Member Company in UK vis-à-vis One Person Company in India: A Conceptual Analysis” successfully attempts to trace the journey of One-Person Company in United Kingdom and India.

Citizenship and the dual problems of refugee and migration have occurred in two articles authored by Dr. Satarupa Ghosh and Sriparna Rajkhowa. Apart from the above long articles, two commentaries on impact of child trafficking entitled “Cataclysm within Cataclysm: Do Catasytrophic Events impact Child Trafficking?” by Luvleen and Shikhar Bhardwajnand “Protection of Women from Domestic Violence: Legal Challenges and Issues” by Mun Choudhury and Prof. Madhumita Dhar Sarkar have been included.

Ms. Simantini Sarkar, an independent researcher and freelancer, has contributed her book review on ‘Democrats and Dissenters’ by Ramachandra Guha.

I thank all contributors for their submissions to this edition and their cooperation with the editorial team during the production phase. I express my gratitude again to the entire Editorial Team whose commitment and perseverance made this publication possible.

Suggestions and opinions for the improvement of the journal is solicited.

With Best Wishes

Prof. (Dr.) Rathin Bandhopadhyay
Chief Editor

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    NOTES AND COMMENTS Protection of Women from Domestic Violence: Legal Challenges and Issues
    (University of North Bengal, 2023-03) Choudhury, Mun; Dhar Sarkar, Madhumita
    Domestic Violence against the women is an age-old reality which is being inflicted upon women irrespective of age, caste and religion. Domestic violence can take the form of physical, sexual, emotional or psychological abuse by an intimate partner or former partner. Many women till date faces intimate partner violence behind the closed doors in our Indian society. Domestic Violence is a universal issue and it is a direct violation of women’s basic human rights. The feminist movement have played a major role in demands for legislative actions, changes in laws and criminal procedures and the sensitization of police and judiciary for the protection of women from domestic violence. Existence of domestic violence is morally unjustifiable and has a far deeper impact than the immediate harm caused on women. India implemented its first law i.e., The Protection of Women from Domestic Violence, 2005 to curb domestic violence.
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    NOTES AND COMMENTS Cataclysm within Cataclysm: Do Catastrophic Events Impact Child Trafficking?
    (University of North Bengal, 2023-03) Luvleen; Bhardwaj, Shikhar
    India through her Constitution, legislation, and ratifications to the international conventions has always condemned the felony of trafficking. The Immoral Traffic (Prevention) Act was inducted in the year 1956 to protect humans from trafficking. Since then, hundreds of cases have been dealt with under the act, but the act remained silent on the most intensifying and escalating issue, i.e., trafficking during the disastrous events. India has faced striking catastrophes almost every two years and with that, the rise has been comprehended in trafficking. Children being easy targets were majorly trafficked from the battered regions. This raises the question as to whether India has taken preventive and protective measures with respect to the trafficking of children in catastrophic times. The paper is discussed on three planes: (1) Whether there is any law that specifically covers the protection of children from being trafficked during catastrophic events, (2) Whether the catastrophic events affect the number of children being trafficked and the intensity of trafficking during such events, (3) Whether the government has righteously approached the apprehension of trafficking during catastrophes. Last, of all, this paper scrutinizes the rescuing and restorative steps taken by the government as well as other organisations to protect the victims of trafficking. In conclusion, the paper put3 forth solutions that need to be implemented and evaluates the 2021 bill on the prevention of trafficking.
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    Implementation of National Education Policy, 2020 amongst Particularly Vulnerable Tribal Groups in India: A Critical Study
    (University of North Bengal, 2023-03) Sinha, Vijoy Kumar
    In today’s technologically evolved and scientifically advanced society, education is not a luxury exclusive to some privileged class. Instead, it is a fundamental and basic human right that everyone may exercise, regardless of caste, colour, race, sex, religion, or place of birth. When education is recognised as a human right, it means that the right to education is guaranteed to everyone without any discrimination on any ground whatsoever, that the state is under a legal obligation to respect, protect, and provide access to education, and that the state is subject to legal accountability when the right to education is violated or when access to education is denied. The National Educational Policy 2020 is the third educational policy that the government of India has introduced. The goal of this policy is to implement significant reforms in the education system of the nation in order to raise the literacy rate. Tribal people have their unique way of life, characterised by extreme disadvantages such as poverty, lack of education, and a lack of knowledge. They make their homes in the hills, often wholly or partially isolated from the rest of civilization. The Dhebar Commission designated the least-developed indigenous communities as Primitive Tribal Groups (PTGs) in 1973. The government of India rebranded the PTGs as the Particularly Vulnerable Tribal Groups (PVTGs) in 2006. Most PVTGs have common characteristics, such as a relatively small population, a lack of written language, a lack of complex technology, a slower pace of development, and a lack of urban centers. Despite the government’s best efforts, many students cannot benefit from the educational schemes available to them. This paper aims to study the potential impact of the new education policy on the education of PVTGs.
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    Constitutional Morality and Judicial Appointments in the Higher Judiciary
    (University of North Bengal, 2023-03) Chaudhury, Paras
    Constitutional structure of this great country is sui generis and the tool to meet the ends of, values and rights cherished in the preamble. It has stood the test of time and has been very capable and reaffirming in achieving the ends to a great extent. But we still have miles to go. The constitution makers believed that what is sine qua non for the subsistence of the system is independent judiciary. Ergo, greater the stress on its need less it is. The central edifice of the concept of judicial independence is the appointments to the higher judiciary.
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    Pollution and Environment: A Study of Environmental Protection with Special Reference to the Role of Indian Judiciary
    (University of North Bengal, 2023-03) Shome, Shubhajeet
    Pollution has been a major concern for the world today. Pollution has reached a critical level in India, especially in urban areas. Various NGOs and other Governmental organizations, ranging from the common individual are functioning relentlessly hard to protect the environment. The role of the judiciary in India is also undeniable and very significant. The Indian judiciary has been playing a very important role towards environmental sustainability and in protecting the environment. At different times Indian judiciary has taken up various environmental-related cases. The judgments of different cases have shaped the nature and pace of environmentalism in India at different times. This article focuses on pollution levels and sustainability in India. The role of the Indian judiciary in the protection of the environment has been closely examined. Various major environmental cases have been analysed by the author. The paper analyses the present situation of environmentalism in India and concludes with some scope for further research.
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    Groundwater Management under the Indian Legal Framework: Challenges and the Way Forward
    (University of North Bengal, 2023-03) Lama, Neelam
    About 89 per cent of the world's fresh water resources are found in groundwater, but over the past few decades, groundwater extraction has dramatically increased, having a detrimental effect on aquifers. India is the biggest users of groundwater in the World, over 230 cubic kilometers of groundwater is used per year. As a result, more and more aquifers are being exploited to an unsustainable level, and the nation frequently experiences drinking water shortages. This article focuses on the groundwater laws that apply in India. It also examines legal approaches in groundwater law and its challenges in this contemporary India where groundwater is a dwindling resource. Further this paper highlights the measures taken by the central government in order to protect groundwater resources and argues that the existing framework governing groundwater is based largely on principles developed during the 19th century. In the light of this, the author argues that a new set of principles should be established that acknowledge the shared nature of groundwater and the human right to water, as failing to do so will violate the right to access water, and in turn, the right to life under Article 21 of the Constitution. Therefore, there is an urgent need to change the current situation.
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    Role of Persuasive Legal Instruments for the Recognition of LGBTQ Rights in India
    (University of North Bengal, 2023-03) Lepcha, Prerna
    Gender identity is one of the most fundamental aspects of life. The time has come that one must realize that gender identity cannot be categorised singularly to one’s orientation which may be associated with his or her birth. Gender identity and sexual orientation is not only limited to the intimate lives of the individual but it impacts everything such as their family, professional, social and educational life. Therefore, gender identity and sexual orientation has to be connected with the human rights perspective to avail all the rights that is being guaranteed to a human. It is only then the basic rights of being a human can be realised by all irrespective of their identity or sexual orientation. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. However, for the LGBTQ rights in India, the realisation of them being human and should be treated equal in dignity and rights was far from the truth until the year 2018. It was only in September 2018, the Supreme Court delivered a historic ruling legalising LGBTQ rights and partly holding Section 377 of the Indian Penal Code as unconstitutional. The colonial-era sodomy law violated the basic tenets of the constitution i.e., right to equality, right to privacy, and right to live with dignity. The right to life and personal liberty is a constitutionally guaranteed right that lays stress on the judicial recognition of such rights as an inextricable component of Article 21 of the Constitution and denial of it leads to discrimination which would offend Article 14 of our Constitution. Therefore, keeping in view the rights guaranteed by the Constitution of India, the rights of the LGBTQ community received the legal recognition in 2018. The LGBT rights in India would have not seen the light of the day if it was not looked into through the constitutional and human rights perspective. However, in recognition to the rights of the LGBTQ in India that stands today is also due to the role that has been played by the persuasive legal instruments such as international conventions, foreign judgments, etc.
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    Law on Acquisition of Indian Citizenship - A Godsend Avenue or Quagmire for Refugees and Migrant Population in North East India
    (University of North Bengal, 2023-03) Rajkhowa, Sriparna
    Citizenship is associated with certain prized rights on those conferred with on those legally qualified through the process of acquisition. This is all the more so in respect to refugees and stateless persons. Despite India lacking in an effective legal regime on refugees and stateless persons, such persons have been able to obtain citizenship. The author addresses the issue of citizenship in a holistic manner both from a theoretical perspective and implementation of the law through the application of the domestic legal regime which has been subjected to amendment from time to time. The issue is being addressed in the context of domestic and international imperatives also explores the pragmatic aspects and weaponisation indulged in. The principle of jus soli and gradual acceptance of the jus sanguinis being invoked has facilitated the process, befitting a section of the refugee population across the country and the North Eastern states in particular. In addressing the issue, apprehensions and regional compulsions shredded with historical factors have also been taken into account in the context of influx and delicate balance prompting concerns and contestations on the issue. These and other relevant and related concerns having the propensity to counter balance the fragile sociocultural factors have also been addressed.
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    Conceptual and Theoretical Study of Responsibility of State of Origin of Refugees Towards the Host Countries
    (University of North Bengal, 2023-03) Ghosh, Satarupa
    Thrust area of this research is to put some light on the right of refugee hosting countries as to regulate the refugee flow and to protect the right of refugees. Responsibility sharing is a core principle of International responses to refugee crises. There must be a holistic approach to international burden sharing that will enhance the protection of refugees as well as the host community. Right to compensation of the refugee hosting countries as a means of enforcing justice and of preventing future refugee flows is the prime concern of this study. The right and duty of compensation in the refugee context are justified and should be further developed. Refugees are people who have had to flee their country because of armed conflict, serious human rights abuses or persecution. A refugee is a person who cannot return to their own country because they are at risk of serious human rights abuses there. Because their own government cannot or will not protect them, they are forced to flee their country and seek international protection.