Indian Journal of Law and Justice, Vol. 11, No. 01 (Part-03)

Permanent URI for this collectionhttps://ir.nbu.ac.in/handle/123456789/4000

EDITORIAL

For decades now legal fraternity has been preoccupied with attempts to explain the relationship between legal and social change in the context of development and society. They viewed the law both as an independent and dependent and variable (cause and effect) in society and emphasized the interdependence of the law with other social systems. In its most concrete sense, social transformation means the change the society envisages in keeping with the demands of social, economic, political and historical factors. Social change brings about a change in the thought process of the people living in the society. Social change also has an impact upon the governance of a country. Such changes impact upon the rights of the people and also subaltern thoughts.

Law is the reflection of the will and wish of the society. It is responsible for the social transformations. The relationship between law and society works in a circular motion. On one hand the law changes the society and compels the society to be changed according to it. And on the other hand society changes the law as per its demands and needs. Legislated law, judicial interpretations, and custom and usages having the force of law play an important role in bringing about social change. When law changes the society it is the sign of beginning of the development of the society. When society changes law it is the sign of maturity of the society. The Shahabano case, Vishakha case, transgender case, the Nirbhaya case, Shabarimala case, Triple Talaque case environmental cases were some of the areas where the commonest of the common man was able to raise a voice and say how the law must be, what must be the punishment etc. The change required in the society can be initiated by a single person also and this has been proved in India right from Raja Ram Mohan Roy; Eishwar Chandra Vidyasagar, Dayanand Saraswati to Mahatma Phule, Mahatma Baseswar, and Mahatma Gandhi up to Mother.

Teresa, Baba Amte, Anna Hazare! Thus the demand takes root and compels the government to either reform the existing laws or make new or even delete the existing unworthy laws.

Education too is a very important instrument of social change. Social change refers to an alteration in the social order of a society. As a result of rapid industrialization, growing urbanization and changes in the human intellect society needs to change in order to cope with the gradual changes. Education can initiate social change by bringing about changes in the outlook and attitude of people. Present education system is totally mechanized and homogenising which curbs the individual thinking and self-learning.

Education is the root cause of social and cultural changes that takes place within the society. Education has been and is being played as an agent of socialization of the youth so as to reach the expectations of the society. Technology is another instrument of social change and development. With the introduction of technology in all walks of life, minimal knowledge of technology is the need of the hour.

Keeping the current developments and the emerging trends in mind, the Department of Law, University of North Bengal, had organised the National Law.

Conclave on the theme “Law as an Instrument of Social Change: Issues, Challenges and Emerging Trends” in November 2019.This special issue of the Indian Journal of Law and Justice is an anthology of the selected papers presented in the Conclave which intends obtain the bird’s eye view of the changes that have occurred and to ascertain how the jurists interpret the phenomenon of change.

Prof. (Dr.) Gangotri Chakraborty
Chief Editor

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Now showing 1 - 20 of 23

Open Access
Expression Dispute under Copyright Law: A Synthesis Study
(University of North Bengal, 2020-03) Ghosh, Rima
Copyright inherently counteracts writers and publishers' conditions for regulating and paying their use of work against the reader and user demands for unlimited access to works at minimum or no cost. Indeed, the fundamental reason for copyright is to prevail over and above the added expenses which copyright monopolies on the public, arising mainly from the monopolistic collection of legal rights, which provide the requisite economic incentives to create and disseminate artistic and intellectual works. The public benefit is the wide variety of creative and academic works and their broad dissemination. There are two types of general expenses: the extra copying expenses and the right to use copyrighted works whose costs are set by the proprietor, and the limits on the use of the previous work in order to produce more works are not to be feared by any healthy competition. The costs and advantages of the copyright system will also change,like the elements of copyright affecting the balance.This work focuses in particular on copyright law, which discusses both the public and the rightsholders' conflicting needs. Any part of copyright law was regulated by idea speech.
Open Access
Animal Rights: The Social Justice Movement of the 21st Century
(University of North Bengal, 2020-03) Lama, Neelam
Animals have always played a great role in our life but the literature on social justice, and social justice movements themselves, routinely ignore animals as legitimate subject of social justice. The reason is very clear that the place of animals in human morality was absent and often they consider them as the property and use it however they want. Prior there were no laws; Aristotle and Aquinas believed animals exist to serve human requirement and the ethical treatment of animals were appears to be optional. But after the rise of utilitarianism with the idea of pleasure and pain, including animal pain promotes the humane treatment of animals and the era of animal welfare movement started. Against this background, the author will highlight how the level of enlightenment within our society has increased in the last several years and will examine various philosophical theories pertaining to animal rights that have evolved over a period of time that made the emergence of animal right as a separate legal discipline.
Open Access
Biodiversity Laws as a Means to Protect Traditional Knowledge: Issues, Challenges and Success Stories
(University of North Bengal, 2020-03) Singh, Sonal
India is a country rich in biodiversity. The associated traditional knowledge has been an important part of Indian culture and society. Being a diversity rich spot, India has been victim of bio-piracy several times, though it has learnt its lessons from haldi, neem and basmati incidents. While it is important for countries to conserve its biodiversity and associated indigenous knowledge, it is also important to protect rights of those who add value to it and make its use more extensive through the tools of intellectual property rights. This results in conflict between biodiversity conservation and intellectual property rights. Biodiversity conservation conventions and statutes seek to achieve a balance between the rights of both. In India, the Biodiversity Act, 2002 provides for requirement of prior informed consent of the indigenous communities before accessing and using the concerned bio-resource. It also provides legal framework to ensure benefit sharing in various forms in case any intellectual property is obtained on the bioresource or the relevant traditional knowledge. However, effective implementation of the same remains a challenge. This ultimately deprives the actual holders of the concerned traditional knowledge who have either nurtured the bio-resources for years. This paper discusses the framework of biodiversity conservation laws as a means to protect rights of traditional knowledge holders in the international and Indian context. It highlights instances where legal framework has been successful in protecting rights of traditional knowledge holders. It also discusses various issues and challenges in protection of traditional knowledge in India.
Open Access
Use of Technology in Access to Justice
(University of North Bengal, 2020-03) Baladhikari, Surja Kanta
Access to justice is not only concerned with the way the judicial process functions but improving the way disputes are resolved. The process of availing justice showcases that it is time-consuming, unaffordable, unjustifiably combative and inexplicably steeped in opaque procedure and language. Promotion of access to justice includes factors2 of dispute containment, dispute avoidance and legal health promotion. A legal issue must be first recognised and be dealt with by selecting the appropriate service. Justice must reach the non-lawyers who are unaware that there is a situation where a legal problem must be resolved, contained and avoided. Access to justice must spread to use of technology in courts and the way society is involved in the process of administration of justice. Services such as selecting the appropriate service for the legal issue is very important as this determines the efficacy of the judicial process. United Kingdom provides citizens advice service this enables the citizens to handle some of the legal situations on their own when legal services are provided online similarly like that of other online services of the State. These online legal services can be provided in three forms – web-based services, commercial or NGO’s; subscription-based access or alternate business structures or legal publishers. The services which are provided can also be provided where citizens can compare the prices which will be available at competitive rates. Subsequently services can also be streamlined by providing guidance upon procedural and substantive issues. Along with services it is the need of the hour that judges start accepting e-filing, virtual courts, online dispute resolution, digital evidence, deposition of witness online for instance in Jammu and Kashmir where due to geographical limitations citizens might not be able to travel to reach the courts for testifying due to snow or landslides, whether it means they do not have access to justice? The paper critically analyses the role of the stakeholders in the administration of justice put together in providing access to justice to citizens through use of technology.
Open Access
The Forest Legislations with Special Reference to Forest Right Act (2006) and Its Impact on the Condition of the Indigenous Forest Villagers in North Bengal: A Study
(University of North Bengal, 2020-03) Basu Majumder (Das), Taniya
Since time immemorial there is a synergetic relationship between forestry and human beings.A large number of people depends heavily on forest for their livelihood and used to live in and around the forest areas. Forests play an important role in improving the social and economic status of the people by providing direct and indirect employment opportunities. The indigenous community especially the tribal people, the pastoralists, the peasants community, the slum-dwellers as well as the industrialists have a substantial reliance on the major and minor forest produce as the source of fuel, fodder, timber, medicinal herbs or raw material for production and processing. Collection and sale of the different types of minor forest produce are some of the main livelihoods carried out by the forest dependent communities as a part of their subsistence.
Open Access
Legal and Regulatory Issues of Privacy and Data Protection in E-Commerce and Social Transformation
(University of North Bengal, 2020-03) Rai, Sambhavna
The concept of Right to privacy with that of data protection has gained enormous attention over the years. With the technological advancement our society has witnessed transformation both good and bad in abundance. Talking about the social transformation it is pertinent to mention that traditional society abhorred privacy and there were hardly any data to be protected . But time changed and society valued their seclusion and preferred to be left alone without interference from other fellow human beings. With the mushrooming borderless technology people became even more conscious of their data and valued privacy unlike their forefather who abhorred it.
Open Access
Infertility and Assisted Reproductive Technology in India: A Study of Socio-Cultural, Political and Legal Issues and Current Practices
(University of North Bengal, 2020-03) Ghosh, Satarupa
Motherhood in Indian society defines a woman’s identity even before marriage because the preparations for a self-sacrificing life begin long before she is married. There are social, cultural and family pressures that impinge on couples (who can afford it) to use advanced technology. The repeated use of this technology is also encouraged by physicians as it is commercial and profit-making. In Indian society, where fertility is valued to the extent that womanhood is defined as motherhood, ART give hope to the infertile even though only a few can afford it. Couples that come from the higher socioeconomic group, in the search to have their own biological child, can now have a child through high technology options like IVF. Assisted reproductive technology (ART) has grown by leaps and bounds in the last few years. India has one of the highest growths in the ART centers and the number of ART cycles performed every year. There is no standardization of protocols and reporting is very inadequate. There are only ART guidelines and no law still exists. Furthermore, the moral, ethical and social issues raised by ART are unresolved.The total absence of monitoring and self-regulation can lead to the misuse of ART and related technologies. Our first and the biggest challenge is to document the tremendous work being done in India.
Open Access
Climate Change, Poverty and Human Rights: An Emergence without Precedent
(University of North Bengal, 2020-03) Chatterjee, Chandrani
Laws and institutions for the defense of human rights must rapidly evolve to the new reality of climate change. When vulnerable communities have tried to use human rights law to defend their rights and seek climate justice, important weaknesses in human rights law have been revealed. It is almost impossible for populations in poor countries to identify and pursue channels of justice, to have their cases heard, or to prove responsibility.
Open Access
Stigmatization of Mental Health – An Overview of Mental Health Laws and Forensic Psychiatry in India
(University of North Bengal, 2020-03) Basnet, Srijana; Tamang, Manisha
In our country the concept of Mental Health is often attached with stigma and prejudication. The lack of mental health literacy among people has led to the violation of human rights and discrimination. People suffering from mental disorder are categorically called mad or lunatics. Mental Health legislation is indispensable in protecting the rights and dignity of persons with Mental Disorders. Forensic psychiatry is a branch of psychiatry that applies both scientific and clinical expertise in legal proceedings. It plays an important role in assisting judiciary. Since, there is no separate specialization for Forensic psychiatry in India it is in a toddler stage. This paper presents the overall approach of the Indian legislation towards mental health and the present state of forensic psychiatry in India.
Open Access
Environmental Justice Movement and Ecological Conflicts in India
(University of North Bengal, 2020-03) Shome, Shubhajeet
This article provides a view on environmental justice movement in India.Using a combination of the environmental justice (EJATLAS)data base and other sources, I look at the areas of conflicts, violence on environmental activists, protests,changing slogans in the country. This article aims to analyze other visible and invisible areas in violence are manifested. Descriptive statistics and specific illustrations are used to give support above mentioned areas of environmental justice movement in Indian context.I shall then discuss the success of this environment justice movement and conclude with some scope for further research.
Open Access
Internet Banking- A transformation Based on Technology from Traditional to Virtual Banking
(University of North Bengal, 2020-03) Bhattacharjee, Abhijit; Chakraborty, Saikat
Indian Banking has undergone a total transformation over the last decade. Moving seamlessly from a manual, scale constrained environment to a technological leading position, it has been a miracle. Such a transformation takes place as per the need of the hour within a short span of time with low cost. In the development of Indian economy, banking sector plays a very important and crucial role. With the use of technology there had been an increase in penetration, productivity and efficiency. It has not only increased the cost effectiveness but also has helped in making small value transaction viable. Electronic delivery channels, ATMs, variety of cards, web based banking, and mobile banking are names of few outcome of the process of automation and computerization in banking sector.
Open Access
Education as an Instrument of Social Change in India
(University of North Bengal, 2020-03) Barman, Ankur
Education is a powerful and effective instrument of social change and social development. Social change is a gradual but inevitable process that occurs when the existing social system or network of social institutions fall short of fulfilling the needs of society. And also when there are new needs, new discoveries and inventions and evolving thought processes in society. Education is a major vector in society, but previously it was largely allocated a conservative role; its main function being familiarization of new generation with the ways of the world so as to maintain and preserve social order. During times of rapid social change, such as the first and second half of the 20th century, as well as that of 21st century, the role of education in the service of the nation is emphasized. During times of comparative prosperity and peace, experimentation in education becomes possible and is supported, and more realistic as well as idealistic goals, can be pursued. But the most fundamental and significant role that education plays is in the ideological and moral spheres. Social changes are a result of a multitude of changes in social, national and international factors. Widespread education can initiate and channelize social changes by bringing about a change in the very outlook and thought pattern of individuals. This paper discusses how education certainly can bring about changes in the pattern of social relationships and progress. It also analyses the nature and causes of social change and how education causes it and is altered by the same.
Open Access
Power Play of Artificial Intelligence upon Intellectual Property Rights
(University of North Bengal, 2020-03) Ghosh, Jayanta
Up-gradation of the technology and its interference in human life by the introduction of Artificial Intelligence/robotic machines makes human life vulnerable. These vulnerabilities are more when the question comes to the right issues on the intellectual property. The credibility to the introduction of the Artificial Intelligence/robotic machines depends on humans, but Artificial Intelligence is likely to produce new solutions to problems and in so doing to create intangible outputs that could, at least in theory, be perceived as Intellectual Property. Current intellectual property system is also affected with this technological interference. In this context, the future discussion is one who owns the Intellectual Property rights in creations produced by robots. Artificial Intelligence remains an area where there is frenetic Intellectual Property activity and it has largely been based on protecting Artificial Intelligence systems or applications. But, in near future where machines are deployed to create complex products, the question of Intellectual Property ownership could become clouded. Artificial Intelligence helps solve complex issues simply and sophisticatedly whereas legal ownership on the other hand, may not be fairlysosimple.From an intellectual property perspective, the most interesting aspect is that the resolution asks for the elaboration of criteria for ‘own intellectual’ creation for copyrightable works produced by computers or robots.It may be argued that the machine is a sensible being entitled to ownership rights. It is not difficult to imagine that those bringing the copyright lawsuit had ulterior motives. If a robot or machine could own a copyright, why not a house? And if a machine could own property, perhaps the machine should also have additional rights including the right not to be owned at all. These questions raise issues that go to the very foundations of intellectual property law, including the economic incentive to encourage certain activities, and the ‘moral rights’ associating with according to credit to authors. Here all the rights theory of jurisprudential law comes in trouble to figure out the main issue. The same issues may arise with respect to general Artificial Intelligence. If the Artificial Intelligence was self-aware and capable of creative and inventive activity, why shouldn’t other rights be accorded? But it has toregulate these technologies and without restraining innovation. While considering the ethical and legal implications and consequences of the conflict to be resolved for the future complications.
Open Access
Tracing the Evolutionary Trend of Decency and Morality in India: A Comparative Analysis
(University of North Bengal, 2020-03) Sen, Shameek
This paper seeks to chart the transformative journey of the concept of 'Decency and Morality', a key component of Article 19(2) of the Indian Constitution, which allows the State to reasonably restrict an individual's freedom of speech and expression on grounds of obscenity. In doing so, the paper seeks to explore the historical trajectory of the obscenity jurisprudence in India and analyse how India has gradually but certainly shifted away from the archaic and hyper-conservative Hicklin Test. It also aims at comparing the Indian evolutionary trend with simultaneous advancements in the UK and US obscenity laws.
Open Access
Biotechnological Advancement and Its Impact on the Society
(University of North Bengal, 2020-03) Limbu, Numa
Technology has made a huge advancement in 20thCentury, it has in a dynamic way changed the life of human beings. With increase in technological information there has been tremendous growth of database of scientific knowledge. Improvements in technology leads to increase in knowledge and information further creating better technology. Firstly, it was the computer technology that brought about a global impact on the activities of human beings. Further internet provided exciting new possibilities for electronic communication. The human life no longer remained the same. Later with biotechnological advancement there was rapid change in the quality of life. It is also considered as one of the most controversial scientific advancement. Generally, biotechnology means application of technology to the practice of medicine.
Open Access
A Study of the Role of Persuasive Legal Instruments for Protection of Right to Education of Children in India
(University of North Bengal, 2020-03) Lepcha, Prerna
Education is one such element of life which is as much as important as food and shelter. It is one of the most vital ingredients for understanding life in general and to do away with all the evils of society. The betterment of the society depends on education as it helps to realise other rights. And when it is guaranteed and is made available as a basic right to an individual then only full realisation of it takes place. Education as a Fundamental Right under Part III of the Constitution of India was not there since its inception, it was provided under the Directive Principles of State Policy where it remained non-justiciable until the year 1992. There are various factors which has played important role in realising education as a fundamental right and making it universal in our country. Therefore, 1992 was the watershed year when right to education travelled from Directive Principle of State Policy to the realm of Fundamental Right. The present study examines the factors that persuaded the Supreme Court of India to dislodge right to education in DPSP and transplant it into Fundamental Right.
Open Access
A Critical Analysis of The Social Change and Transformation through Western Education in India
(University of North Bengal, 2020-03) Yonzon, Tripti
Education is the source of wisdom of an individual though law is the methodology to have a control upon the human conduct. The educational system of ancient India comprised of wide assortments of learning however the nonappearance of law to guide such system among individuals was very futile. Development of Western Education system during the British rule has nullified certain customs of antiquated Indians and brought a radical impact and change in the general public of India which prompted the arrangement of present-day India that contained an exact use of laws inside the educational system. Different acts and policies were acquainted by the British government to spread the western education system in whole India. In respect with that, many social reformers worked upon that systemto educate the Indians inPreindependence era. After independence, along with the establishment of Constitution of India, different acts, laws, and articles were sanctioned to advance the better Education system in India. The present education system of India has changed what it was a several decades ago. The system in India has seen many ups and downs in times, and yet it has created some brilliant gems, who are raising the flags of India across the globe, also the GATs (General Agreement on Trade in Services) and WTO (World Trade Organisation) has immensely helped India to advance its education system towards allinclusive and furthermore in setting up new global education system in the nation. With the ascent of Western Education, the education sector in India has reformed learning, traditional classrooms have been replaced by present day innovation where virtual learning takes place, an advanced technology has developed, and creativity has been promoted in the modern society. This paper aims to reflect the changes brought by the Western Education in the society and culture of India
Open Access
Right to Privacy and Data Protection in the Digital Age – Preservation, Control and Implementation of Laws in India
(University of North Bengal, 2020-03) Rai, Neelam
The development in the technology has rendered many advantages to the human race. However, the advancement of the technology is now putting lots of our rights at stake. With the start of the digital age and inclusion of data which is routinely collected and traded in the new economy, the right to privacy is becoming an issue. The advancement in the technology has given rise to other criminal acts like Identity theft, pestering, online victimization etc. The personal data submitted by the persons in social media, marketing, communication surveillance companies, Government and private stakeholders and other sites can often be misused. In India there are no specific law for the collection of data, preservation, monitoring, intercepting, obtaining, analysis, using, retaining etc. The present paper is an attempt to study the issues involving right to privacy and data analysis in the digital age. This paper explores the issues of privacy by analyzing the situations wherein the data collected by the people can be misused and sometimes can be used against the person who had disclosed it. The paper is also an attempt to study the efficacy of the Information Technology Act along with other existing laws regarding right to privacy and how far they provide provisions for data protection. Since, the data are collected by the public and private sector equally thus, application of laws to each of these sectors will be studied and compared. Recently, the Ministry of Electronics and Information Technology has appointed experts headed by the former Supreme Court Judge B.N. Srikrishna to draft a data protection law. A draft Bill was made which is called the Personal Data Protection Bill, 2018. However, it could not be introduced thus ultimately on 11th December 2019 the Personal Data Protection Bill 2019 was introduced in the Lok Sabha. The present paper is an attempt to study the Bill and how far it can achieve right to privacy and data protection. It will also compare the Draft Bill of 2018 with the Bill of 2019. Thus, over all the paper aims at analyzing the areas of data protection laws in India, the lacuna and what changes can be brought for the proper implementation of the existing as well as upcoming legislations.
Open Access
Prevention of Stigmatisation of HIV/AIDS and The Role of Law
(University of North Bengal, 2020-03) Pradhan, Ashika
With a change in trends of society law too transforms itself with thechanging needs. Where law has an important significance in the development of the society, education also plays a vital role. Human Immunodeficiency Virus, Acquired Immunodeficiency Syndrome popularly known as HIV AIDS has been the most devastating disease humanity has ever faced. It has been a major health concern amongst every people in today’s time. Along with health constrain AIDS bring with them stereotypes, prejudices and unfair treatment. Despite enactment of laws for the prevention of discrimination amongst people with HIV, there has been steady increase in the cases of societal stigma and vices amongst HIV infected person. Thus, the only resort or mechanism in eradicating this grief is through the medium of education. Thus, the present paper aims at studying various national and international legal frameworks for the protection and rights of HIV AIDS victims and the need to educate common people as well as the person infected with HIV about their rights and given protection. As in most cases the reason for discrimination has always been lack of proper knowledge and awareness about given rights and protection.
Open Access
Social Memory in Internet Age
(University of North Bengal, 2020-03) Shinde, Vishal B.
Someone might ask a question that why do we need to forget something? It can also be argued that memory to store information then whyto forget something willfully? Remembering is a positive whereas forgetting is a negative task etc. Though these questions seem valid, we have to take the fact in mind that remembrance is not necessarily beneficial all the times. Similarly, forgetting is not necessarily a negative task all the times. Forgetfulness has its own value. In this paper researcher attempts to explain importance of forgetfulness and social memory in the internet age. Researcher has also tried to through some lighton how the forgetfulness could benefit our society and Remembrancecould prove harmful to the society in certain situations.This piece of research is to explore the value of forgetfulness against the concept of Remembrance. Why forgetting is necessary in several situations and how Remembrance can prove to be harmful is discussed here in detail.