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Item Open Access Efficacy of Doctrine of Precedent: Analysing of the Common and Civil Law Countries with Reference to India(University of North Bengal, 2023-09) Dhar Chakraborty, Paramita; Misra, BibhabasuFamous jurist Salmond, explained precedent as ounce of gold in tons of unnecessary material in a Judgement. He opined; the legislations are coins ready to be used in a realm. Precedents are creative interstitial (filling up gap in legislation and declaring guidelines in absence of legislations) law making by the Judges, which are flesh and blood in a statutory skeleton. Precedents are primary source of law, in the common law countries like India.3 However in Civil law countries, as for example in continental Europe, precedents are not as strong as in common law countries. In Civil law countries, as for example in France, there are exhaustive codes, like French Criminal Procedure Code. Judges in Civil law Countries most of the time need not to be creative as in common law countries. The main sources of law in Civil law countries, as for example in France, are legislations, edicts of Courts and Juristic opinion. The edicts of Court, rarely has values of precedent. Though Higher Courts’ jurisprudence needs to be followed by the lower Courts. In common law countries, it is a pain to identify the precedent/ obiter dicta in a voluminous Judgment. In Civil law Countries, there is no such pain, as judges are hardly expected to interpret. They are expected only, to apply the law to a fact. A comparative analysis of doctrine of precedent, in Common law Countries and Civil law countries, are worthy of analysis, as it will help us to iron out creases in our legal systems, and we can incorporate the beneficial qualities from the Civil legal system.Item Open Access Duties or Rights: Should Duties Trump over Rights?(University of North Bengal, 2023-03) Sharma, Ajay Kr.Narrative is emerging in India that appears to be giving primacy to the fundamental duties of the citizens over their fundamental rights. This article attempts to understand and flesh out the significance of these two, their relationship, and the interplay between them, as contextualised in our Constitutional scheme, with the help of various Supreme Court decisions. It indulges in a discussion on the pragmatic functional relationship between Parts III, IV, and IV-A of the Constitution. It also brings various significant perspectives on the ‘right-duty’ relationship to the fore, to objectively appreciate the primary importance of the fundamental rights of the citizens and the State’s duty to preserve and protect the same. It also emphasises on the importance, weighty role, and the constitutional obligations of the higher courts in preserving the Constitution and the rule of law, by providing effective redress to the aggrieved citizens who bring valid claims of their fundamental rights violations by the State organs and instrumentalities.Item Open Access Accountability of Civil Servants under Indian Laws: A Critical Analysis(University of North Bengal, 2021-09) Gahlawat, EktaThe civil servants are accountable to both political-executive and citizens for ensuring transparency and honest policy implementation. The administration in India has acquired a vast power in the name of socio-economic development. Thus, the chances for administrative abuse are more. So, there is need to establish effective institution (Ombudsman) for the efficient working of the administration. This article focuses on the accountability of the civil servants under the Indian laws. First part of this article deals with the introduction of the civil servants. The second part, describes the provisions related to the civil servants under Indian Constitution (Article 308-311). The third part deals with the accountability of civil servants towards public and political-executive. It also describes the relevant recommendation of committees. Fourth, the most important part deals with the mechanisms to control the civil servants so as to prevent the abuse of power under the administration. The fifth part of the article deals with the lacunas which prevent the proper implementation of all these mechanisms. Finally, the article concludes that Lokpal has provided effective implementation of all mechanisms which can help to eradicate the menace of corruptionItem Open Access Significance of TPDS in the Light of Indian Legal Regime - An Overview(University of North Bengal, 2021-09) Sarkar, PratimPoverty, hunger and food insecurity omnipresent reality in India. Government has implemented many programmes, schemes and policies to control poverty and foster development. Right to food is a basic human right and deeply linked with right to live with dignity. Articles 21, 39(a) & 27 of the Constitution mandates the states to provide adequate means of livelihood, raise the level of nutrition and standard of living of the citizens. As per the data report of national and international agencies, a large number people in India are suffering from malnutrition, undernourished, underweight and stunted. In many cases Indian Judiciary has taken serious concern about the socioeconomic offences. Targeted Public Distribution System is a major and wide-ranging poverty alleviation programme in India that leads towards the socio-economic welfare of the people. Essential foodstuffs like rice, sugar, wheat, kerosene and other goods are supplied to people through this system at a cheap price. Though it is commendable step to ensure food security to the needy people but could not achieve its desired results because of widespread corruption, leakage of funds and other reasons.Item Open Access Constitution and Social Change(University of North Bengal, 2020-03) Biswas, SanchariThe 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.Item Open Access Constitution and its Importance to Bring Social Change in India(University of North Bengal, 2020-03) Talukdar, SougataSocial Change is the obvious requirement of the time and its abstract idea evinces change of characteristics of a group of people. The adaptation and enforcement of the Constitution of India was the path breaking event in the Indian socio-political structure. Since then the Constitution of India has travelled a long way through various amendments to adapt the requirements of time. The Constitutional philosophy in India relating to social change derived from the schemes of the preamble, fundamental rights and directive principles of state policy. All these parts explain various factors and freedoms which are the basic requirements of the prospective social changes. With the modernisation of the society, the Constitutional goals as mentioned in the preamble and various rights and sureties under Part III and IV the Constitution are shaping day by day with new outlooks. This new trend to interpret the Constitutional provisions by the Judiciary to bring the required social changes projects the Constitution as an instrument of social change. Thus, this Article primarily enquires about the Constitutional inputs to the social change in India.Item Open Access Role of the Judiciary in Bringing out Social Transformation in India after Independence(University of North Bengal, 2020-03) Biswas, Sujit KumarSociety in India has always been very complex. Diversity of culture, religion, philosophy and political thought has been the essence of India.In 1950, the Constitution of India came into force and India became a ‘Republic’ and a nation with federal structure. States were divided on the basis of language and also culture. The multicultural characteristic of the country became more prominent than before. However, the ‘will of the people’ was reflected in the Constitution and the foundation of ‘Rule of Law’, good governance and respect for multiculturalism was laid therein. The goal of a new and vibrant India was in the minds of the Legislature, who were mostly the freedom fighters and who had dreamt of a new India. However, with the passage of time the interest of the common man receded in the background and they were left helpless and hapless. It was at this time the judiciary took up the task of acting as a catalyst in bringing about social change according to the changing needs of the society. The Indian judiciary rejected the British concept of dictatorship in the legal framework and evolved new devices to balance the conflicting needs of the society. The Indian judiciary while rejecting the Austinian brand of legal positivism reconciled both the conflicting interests of the society. Over the years legal justice has made way for social justice through a dynamic judicial process and creative jurisprudence which affirmatively rights both ancient and recent wrongs. There has now been a remedial realism to forensic formalism.Item Open Access Right to Privacy as a Fundamental Right in Absence of Express Statutory Provisions: A Critical Analysis of Justice K.S.Puttaswamy (Retd.) V. Union of India(University of North Bengal, 2020-09) Misra, BibhabasuInalienable rights are inherent in Human called as natural rights as for example “Right to privacy.” Positive law made by legislature regulate it according to States’ reasonable necessity. These limitations are mentioned in the Constitution itself. In India, right to privacy has been recently recognised by the Supreme Court. In India there was a bill related to Right to privacy. The judgments of the Court are mainly corrective in nature and enforceable by the Contempt of Courts Act, 1971 (Civil Contempt and Criminal Contempt.) or with the help of Article 142 and 144 of Indian constitution. In absence of specific legislation, we can read the right to privacy in statutes like IPC, CRPC, Easement, etc. If we file a petition under the Contempt of Courts Act, 1971; it will generate procedural difficulties, that is permission needs to be taken from Advocate General. Thus, corrective approach of the Court is only remedy in absence of express statutory provisions.Item Open Access Judicial Independence and Impartiality: A Sinking Belief(University of North Bengal, 2020-09) Naveed Naseem; Qayoom, ShaistaFor efficient working of a republican setup rooted totally on Rule of law, an unbiased and impartial judiciary is indispensable. The percept of judicial independence and impartiality has brought greater significance in the countries with written constitutions, where the executive has been conferred with wide authority to sprint the government and the likelihood of abuse of such power is considerably high. In a country like India where judiciary is regarded as the watchdog of democracy, it undoubtedly becomes essential that judges in their individual capacities and the judiciary as a whole are unbiased and neutral of all interior and exterior influences in order to guard and shield the philosophical and conceptual phrases used in the preamble of the Indian Constitution. Besides, an impartial and independent choice mechanism is a sure safeguard for ensuring that persons with dubious integrity do not occupy high judicial offices, thereby enhancing public’s have faith and self assurance in justice delivery mechanism of the country. Considering the significance which an unelected judiciary wheels in our system, the screening of judges to man the superior courts cannot be confined to mere technical and professional competence and their approaches and philosophies have to be screened extensively. The paper attempts to reflect the significance adhered to the principle of independent and impartial judiciary and the urgency to defend and hold such standards earlier than its dimensions turn into just indistinct and academic concepts. The continuous government stalling in the appointment of judges to the Superior Courts, nominating judges to political offices and occasionally unscrupulous conduct by some judges in the recent past, where judiciary on most part seemed to side with the executive, has raised questions on independent and impartial identity of judiciary. Should we permit the constitutional democracy to live to tell the tale or the authoritarian rule to be allowed is these days the important query before the masters of the country.Item Open Access Using Leniency Effectively in Anti-Cartel Investigations: A Study of Recent Trends in Cases Decided by the CCI(University of North Bengal, 2020-09) Ray chaudhuri, TilottamaThe Directive Principles of State Policy as enshrined in Article 39 of the Constitution of India lay down, inter alia, that the State shall direct its policy towards securing that the operation of the economic system does not result in concentration of wealth, to the common detriment. However, a study of the Indian market, decades after the enactment of the Constitution, reveals that the same is prone to wealth concentration, due to the concentration of production and supply of goods and services. A classic manner in which such concentration occurs is through the formation of cartels. Generally speaking, cartels are covert arrangements between competitors to eliminate rivalry amongst themselves, in the market. Cartels are lucrative agreements because if a cartel flourishes then the total profits made by the participants of the cartel would be higher than the individual profits made by them in a competitive market. Cartels act like a single firm monopoly and are prohibited the world over because of the damaging effects they have on the economy.2 In India, the MRTP Act, 1969, was enacted to give effect to the directive enshrined in Article 39 of the Constitution of India. However, the MRTP Act became redundant due to various reasons, including economic reforms like liberalization and globalization. India’s present law, the Competition Act, 2002, aims to curb cartelization effectively. With the use of contemporary tools like leniency programmes, the Competition Commission of India is encouraging cartel members to co-operate in anti-cartel investigations, resulting in crackdown of cartels in various important sectors of the economy. This paper analyses the impact of cartels on the economy and the measures being taken by the Competition Commission of India to deter cartelisation, by grant of leniency to whistleblowers.