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

Permanent URI for this collectionhttps://ir.nbu.ac.in/handle/123456789/3968

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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    Constitution and Social Change
    (University of North Bengal, 2020-03) Biswas, Sanchari
    The paper deals with the dominance of egalitarianism skilfully maintained by our Constitution of India in its decorous functioning of Parliament, Executive and Judiciary. However, the study reveals as to how arduous the thought of achieving social improvements is, in a country where barbaric crimes are indispensable. The paper contains elaborate discussions on few among the multitudinous achieved social orders which involve breaking down of hierarchies and transcending everyday consciousness by the equalization of equals under Article 14,15,16 of the Constitution, importance of faith being antithetical to orthodoxy established through the Sabarimala verdict, historical dominance of the systematic reduction of gender biasness when women chose their right to vote, application of exemplary legislations like “Child Labour Prohibition and Regulation Act 1986, Factories Act, 1948” etc, introduction of 3-tier government system in being autonomous in its sphere of functioning as local self governments in rural and urban areas, instances of cleansing obscenity through visible activity on the Unnao Rape Case, abolishing triple talaq, decrimininalizing Section 377 IPC, revolutionizing the Judicial system by introduction of PIL .The study basically suggests the grandeur in the criteria of amicable settlement as social change through Constitution congealing as a single oeuvre with the three wings of the Government.
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    The Tragedy of Baghjan – Willful Disregard of Environmental Wellbeing: An Analysis of the Legal Implications Stemming from the Disaster
    (University of North Bengal, 2020-03) Isfaq, Susmit; Vardhan, Raajdwip
    The conflict between development and environment is not a new one. Most of the time, in the name of development, it is nature who needs to sacrifice itself.The recent Baghjan blowout in Assam which subsequently led to a huge fire again proves the hypothesis that development outweighs environment. Drilling in search of natural resources in a biologically diverse area brings detrimental outcomes especially to the nearby ecology and human lives. Due to the fire in the oil field, more than 6000 people had to leave their home and seek shelter elsewhere in search of a safety, away from their disrupted roots, and the impact on the DibruSaikhowa National Park which is adjacent to theBaghjan oilfield is unimaginable. India has seen many industrial disasters including the tragic Bhopal Gas leak but the question here is - did the stakeholders learn anything from the events? It is always the common people and the environment that has to suffer. The Baghjan fire exemplifies how law makers failed to cope up with the country's international obligations and municipal laws as well as the spirit of the Indian Constitution to protect and improve the environment.
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    The Constitution of People’s Republic of Bangladesh - solemn expression of people’s will; a legal basis of social changes
    (University of North Bengal, 2020-03) Md Arif Rayhan; Mohd. Tarajul Islam Khan
    Present Bangladesh was once a part of British Empire for almost two hundred years, which became East Pakistan (a part of State of Pakistan) after separation in 1947. After proclamation of independence on 26th March 1971, Bangladesh finally emerged as independent nation on 16th December 1971 through liberation struggle, which was sparked by Bengali nationalist and self-determination movement. Constitution, which is the solemn expression of people’s will and supreme law of the Republic, was adopted on 4th November 1972 based on fundamental principles like nationalism, socialism, democracy and secularism. For the realization of aims stated in the preamble, number of fundamental rights has been incorporated in Constitution and the State is duty bound to secure such rights through democratic process. Moreover, fundamental principles of state policy were also narrated and socialist society was envisioned- setting economic, social and political goals for governance. These principles are fundamental to the governance, which shall be applied in making law, interpreting Constitution and form the basis of State’s works. Since the adoption of Constitution, several amendments have taken place till the date depending upon the changing situations, political needs and developments; still there is room left for modifications. Fundamental Principles of State Policy, Fundamental Rights and Constitutional Amendments-all these factors have great social impact for bringing social changes. This paper aims to find how these three factors influence social changes, along with their impact and acceptability; whether there remain harmony between constitutional amendments and social changes in Bangladesh and lastly, to suggest some operative measures to direct the way of social changes caused by above mentioned factors in positive way as much as possible for attaining the principle aims and ideals of the Constitution.
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    Nexus between Crime and Politics: A Study with Reference to Electoral Candidature
    (University of North Bengal, 2020-03) Bhattacharyya, Rupkatha
    The nexus between crime and politics in India has been a deep rooted one, since the genesis of the country. This notion was confirmed in the Vohra Committee Report in 1993, which found out a definitive link of criminal networks with bureaucrats, politicians and media persons. The nexus has only deepened ever since and perhaps become more pronounced. In 2002, the report of the National Commission to Review the Working of the Constitution (NCRWC) further disclosed that criminals were now seeking direct access to power by becoming legislators and ministers themselves.
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    The Constitution and the Indian Society: A Balancing Transformation
    (University of North Bengal, 2020-03) Mondal, Champa
    Law and society both are dynamic concepts. The purpose of law is to regulate the conflicting interest of the society which is ever changing andevery subordinate law regulating them derives its authority from the supreme law of the land i.e. ‘the Constitution’ which sets out the noble vision to be achieved by the respective Country. Therefore, Constitution consists of several principles for establishing stronger polity and better governance of the society. The framers of the Constitution of India, while framing the Constitution, has incorporated sovereignty, federalism, socialism, secularism, fundamental rights, directive principles, independent judiciary, parliamentary form of government as the basic principles of Constitution, in order to achieve the objective that are laid down in the Preamble of the Constitution of India. The purpose of the study is to look into the modification, variation and alteration that have been made, by way of amendment or repeal, in these principles from the day the Constitution of India came into existence. An attempt has been made to analyse those areas where the social changes impacted upon these principles of the Constitution of India and how these principles has transformed the society as well. In so doing theIndian independent judiciary has played a remarkable role of balancing between the two from the beginning....
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    A Tale of Climate Refugee Vis-A-Vis Responsibility Shifting and Responsibility Sharing
    (University of North Bengal, 2020-03) Dutta, Shimul
    Around the world people have been forcibly displaced by floods, windstorms, earthquakes or droughts. This is equivalent to one person being displaced every second. Depending on the frequency and scale of the major natural disasters occurring, there are significant fluctuations in the total number of displaced people from one year to the next, yet the trend over recent decades has been on the rise. Many find refugee within their own country, but some are forced to go abroad. With climate change, the number of 'climate refugees' will rise in the future. So far, the national and international response to this challenge has been limited, and protection for the people affected remains inadequate. What adds further to the gap in the protection of such people – who are often described as 'climate refugees' – is that there is neither a clear definition for this category of people, nor are they covered by the 1951 Refugee Convention. The latter extends only to people who have a well-founded fear of being persecuted because of their race, religion, nationality, membership of a particularsocial group or political opinion, and is unable or unwilling to seek protection from their home countries. It has been expressed growing concern and has taken action to support and develop resilience in the countries potentially affected by climate-related stress.
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    The Supreme Court of India and Social Transformation with Special Reference to Adultery
    (University of North Bengal, 2020-03) Bandyopadhyay, Suparna
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    The International Tribunal for the Law of the Sea (ITLOS): A New Horizon in International Law
    (University of North Bengal, 2020-03) Yadav, Neha
    The International Tribunal for the Law of the Sea (ITLOS) was established by the United Nations Convention on the Law of the Sea (UNCLOS) in its Third Conference Signed at Montego Bay, Jamaica in 1982. It is one of the four alternative procedures provided under Part XV of the Convention for the settlement of disputes in respect of disputes arising out of interpretation or application of its provisions....
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    Towards Constitutionalising the Rights of Victims
    (University of North Bengal, 2020-03) Shaw, Rohini; Dube, Dipa
    “It is a weakness of our jurisprudence that victims of crime and the distress of the dependents of the victims do not attract the attention of the law. In fact, victim reparation is still the vanishing point of our criminal law.”(Krishna Iyer J. in Rattan Singh v. State of PunjabAIR 1980 SC 84) The words of Justice Iyer still hold good. The Indian criminal justice system based on the adversarial model of justice dispensation, focuses heavily on the rights of the accused, while sidelining the victim’s interests. Representing the latter, the state undertakes the responsibility to prosecute and punish the offenders, as crimes are deemed to be against the state. Victims are not allowed to take active role in the trial process. Following the 1985 UN Declaration of Basic Principles of Justice to Victims and Abuse of Power, a milestone was achieved in the recognition of victims’ rights and justice. Closely following suit, the Indian laws underwent radical changes to include victim’s right to appeal, compensation, appoint advocate, oppose bail etc. Inspite of the amendments, the plight of victims remain pitiable with sparring changes made at the ground level. The police, prosecution and other service providers fail to provide necessary assistance to victims. It is time that the victims should effectively find mention in the Constitutional document so as to create an overarching obligation on the State to respect their rights.
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    ‘A Noble Tree that Bore Bitter Fruits?’ : The Supreme Court of India, Judicial Activism and Judicialization of Politics
    (University of North Bengal, 2020-03) Bandyopadhyay, Sourya
    Indian Constitutional law - meant as it was to be a vehicle of social transformation- is a site for mediation of competing claims and tensions. As a Constitution which is keen on detailing, it includes many aspects which ordinarily do not find place in other constitutions. Constitutionalisation of almost every debate is an important feature of the Indian experience of constitutional democracy....