Indian Journal of Law and Justice, Vol. 11, No. 02

Permanent URI for this collectionhttps://ir.nbu.ac.in/handle/123456789/3667

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.) Gangotri Chakraborty
Chief Editor

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    Legislation and Dangers in Road Usage
    (University of North Bengal, 2020-09) Akhtarul, Hanif; Bhardwaj, Somdutt; Vahini, Versha
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    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, Bibhabasu
    Inalienable 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.
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    Constitutionalism to Transformative Constitutionalism: The Changing Role of the Judiciary
    (University of North Bengal, 2020-09) Kundu, Indrani
    Constitutionalism ensures protection of rights of its citizens. The Constitutional designers provided two models to ensure the same. These two models area. Parliamentary Sovereignty- It postulates that the legislature is the legitimate forum for safeguarding citizen’s rights. b. Judicial Supremacy- It emphasizes the significance of the Court to safeguard rights of citizens. Judicial Supremacy proliferated post Second World War as a reaction to the often violation of rights of minority group. The probability of imperilment of rights of groups having inadequate representation in the Parliament was supposedly more in Parliamentary Sovereignty. Judicial Supremacy ensured better protection of rights because it had the power to review and strike down any rights-infringing legislation. In almost all the countries the Apex Court is vested with the ultimate power of interpretation of the Constitution to ensure protection of rights. Judicial Review and Constitutional Interpretation by the Judiciary has led to the introduction of ‘Transformative Constitutionalism’. Transformative Constitutionalism recognizes the changing nature of the Society and accepts the Constitution as a transformative document rather than a rigid one. In this backdrop this paper undertakes the study of the written Constitution of India and the unwritten Constitution of the United Kingdom. The object of this study is to locate any shift in the principles of Constitutionalism in the Constitutions of these two countries.
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    Jute and Sustainable Development- A Study of Its Socio- Economic and Environmental Prospects
    (University of North Bengal, 2020-09) Chakraborty, Ruchita
    Jute is a natural plant fibre that has been traditionally used as a packaging textile, but over the past decades, it has been rapidly replaced with synthetic substitutes. However, in the wake of the global consciousness regarding environmental crisis and sustainable development, the rejuvenation of the industry seems to answer a number of calls. On one hand, its usage in the packaging industry can reduce plastic wastes considerably. Again, in the backdrop of the environmental international instruments in recent years, jute can be a viable alternative to achieve the goals towards maintaining ecological balance. On the other hand, the industry being a source of income for more than 40 lakh families, its revival is expected to benefit the nation socio-economically as well. In this context this paper explores the usage of the fibre as an environmental friendly alternative to various widely used synthetic commodities. It also locates the different environmental standards set by the world community that can be achieved with its increased usage. Further, in the context of the two important recent instruments- the Sustainable Development Goals and the Paris Climate Pact, this paper examines the various dimensions that the golden fibre can effectively answer.
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    Analysis of Early Childhood Development in India
    (University of North Bengal, 2020-09) Laskar, Salma Begum; Kumar, Umesh
    The early childhood development is basically the development of right of children from zero to six years. Almost 90% of the brain develops during the age of 5 years. The development of child includes the physical, emotional, social, psychological and the like which are required to have a good and healthy life. If these developments will not take place during the initial years, a person’s life will have risk of impaired growth and development. Children during their early childhood shall be given adequate nutrition for their growth, health care facilities regularly like vaccination etc, care and protection and play and learning. If a child receives proper favorable inputs of healthy life, he will grow and prosper in life and if a child receives unfavorable environment, he will be burden to society and the state will have to bear his responsibility throughout his life. Children are the future of our nation and it is the duty of the citizen to give them their required input to have healthy life. The Central as well as the State government initiated several times various policies and schemes to meet the challenges faced by the children for their proper growth and development. Many international conventions and declarations were made to cope up with the problems faced by children in different corners of the world. The judiciary has also framed guidelines and issued directions protecting the best interest of children.
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    Judicial Independence and Impartiality: A Sinking Belief
    (University of North Bengal, 2020-09) Naveed Naseem; Qayoom, Shaista
    For 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.
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    Cross Border Mergers in India in the IBC Era: A Legal Inquiry
    (University of North Bengal, 2020-09) Tiwari, Avin
    The Insolvency and Bankruptcy Code, 2016 (IBC), since its enactment, has been a subject matter of intense deliberation, both in the trade as well as the legal fraternity. Strong opinions are polarised between those who consider it a necessary step and those who classify it as a ‘draconian legislation'. In 2018, certain provisions of the IBC were amended which introduced sweeping changes in both the substantive as well as the procedural aspects relating to the insolvency process. The Indian economy grew unprecedentedly while most economies were suffering from economic depression. This growth is attributed to the inflow of FDI into India by way of cross-border mergers & acquisitions. IBC is expected to play a significant role in establishing a solid legal platform where cross border mergers & acquisitions in India can flourish in mutual coexistence with all other laws leading to wholesome economic development. Currently, the legal framework for cross border insolvency in India concerning foreign proceedings, the participation of foreign investors, recognition of foreign courts, and uniformity in relief provided etc. is unclear and at a nascent stage. This creates many legal hassles and confusion in the finalisation of cross border merger deals and makes the business climate uncertain. The authors attempt in earnest, to critically analyse the legal framework with respect to IBC and study the complexities of cross-border insolvency in the Indian context, and set out the broad principles of the UNCITRAL Model Law and determine the relevance of Gibbs rule in the insolvency resolution process to assess on a macroeconomic level, the impact of IBC on cross border mergers and acquisitions in India.
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    KEBANG: A Self-Governing Indigenous Institution of the Adi Tribe of Arunachal Pradesh
    (University of North Bengal, 2020-09) Koyu, Jumri; Singh, Pradeep
    Besides being a land of rising sun, the Arunachal Pradesh is having so many diverse dispute resolution mechanisms, which runs parallel to the adversarial courts. The Kebang of the Adi tribe is one such indigenous traditional system, which also looks after the day-to-day affairs of the Adi villages. Unlike courts, the Adi Kebang is a nonadversarial justice delivery system having belief in amicable settlement of the disputes outside the courts. The present paper is an attempt to make readers understand about the working of Kebang in a very simple and lucid manner. The research study also reflects some views that testifies the relevance of Kebang system in the present times.
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    Capital Punishment in India
    (University of North Bengal, 2020-09) Barot, Mehul P.; Lukka, Meet D.; Golani, Keyur V.
    Indiaiisaiwelldevelopingcountry at the sametime lots of crime ratesiareincreasinginowadays.ThereiareilotsiofilegislationiiniIndiaitoistopiandicontroli crimes,ievenithoughitheicrimeiratesiareiincreasingibecauseitheipunishmentsiareinotisuf ficientiforitheicrimes.Theipunishmens shouldbeisevereitoireduceitheicrimeirate.iAllipunishmentsiareibased on the same motive to give penalty for the wrongdoer. There are different kinds ofpunishmentiiniIndiaisuchiasicapitalipunishment,ilifeiimprisonment,iimprisonmentietc. Capitalipunishmentiisiknowniasitheimostisevereiformiofipunishment.Thisipaper says about the status of capital punishment all around the world andialsoidefinesitheiconceptioficapitalioffence.iItialsoiexplainsiaboutitheimodesioficapi talipunishmentiiniIndia.