Indian Journal of Law and Justice, Vol. 12, No. 02

Permanent URI for this collectionhttps://ir.nbu.ac.in/handle/123456789/4197

EDITORIAL NOTE

As the world still reels with the global pandemic, the Indian Journal of Law and Justice (ISSN-0976: 3570) proudly steps in its eleventh year. Over the past ten years, the journal has strived to contribute to the academic discourse surrounding legal and multi-disciplinary issues in the Indian Sub-continent as well as globally by publishing articles by both students and established scholars, as well as domestic and international authors.

Already recognized by the UGC and included as a CARE-Listed Journal, the Indian Journal of Law and Justice, since 2019, has achieved the feat of being acknowledged by the internationally acclaimed online database and journal, HeinOnline. Anyone with a subscription of HeinOnline, now can access the Indian Journal of Law and Justice.

IJLJ welcomes articles that promote a better understanding of legal phenomenon and legal decisions made by judges, courts or regulatory agencies. Theoretical papers are welcome, provided they have a strong basis in law and allied social issues. We also accept case studies as well as empirical analyses – including empirical investigations. While IJLJ does not favour any particular topic, it does have a focus on new and emerging problems. Themes and issues based on Indian Sub-Continent as it is felt important to exploit the sub-continent’s considerable institutional diversity in order to build a more robust body of theory and empirical evidence. However, we do not wish to confine ourselves to the above; the purpose of the journal is also to showcase the diversity of legal issues as supplied by an international mix of authors.

The present volume of the Indian Journal of Law and Justice raises concerns over some of the emerging global social and legal issues like Cyber Security in Aviation with special reference to European Air Traffic Control, Digital Currency, Land Reforms in Andhra Pradesh, Crypto-preserved Pre-embryos and Legal Regime in Blood Transfusion. Along with these, there are other papers which take us through a diversity of subjects like Joint Forest Management and Community Participation in India, Significance of TDPS in Indian Legal Regime, Accountabilty of Civil Servants, Illegal Migration and Issues of Citizenship, Realising rights of Senior Citizens, Land holding Rights of Women in India, Right to Privacy, Child labour in Asansol, Child Rights in Armed Conflictsand Impact of Globalisation on Women Workers in Agricultural Sector.

One can enjot short reads on Labour Rights under the Labour Code of India and LGBTQ Movementin India which have been included in the Notes and Comments section. Book reviews on “The Power of Precedent” authored by Michael J. Gerhardt and “Law relating to Sexual Harassment at Work” by Alok Bhasin, have been contributed by two young authors for the issue.

I thank all contributors for their submissions to this edition and their cooperation with the editorial team during the production phase. I would also like to express my gratitude 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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    POWER OF PRECEDENT, by Michael J. Gerhardt. New York: Oxford University Press, 2008
    (University of North Bengal, 2021-09) Bandyopadhyay, Suparna
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    LGBT Movement in India: The Journey towards an Inclusive Society
    (University of North Bengal, 2021-09) Das, Sagnika
    Equality in the society between the individuals irrespective of race, sex, religion, caste, place of birth or colour is a sign of a progressive society as it lays the path towards stability and harmony. Every human being has the right to be treated equally. However, Social hegemony2has tendency to exclude persons with “differences” which violates their inalienable Basic Human Rights. Till the year 2018, the LGBT community in India was suffering from exclusion. These people were considered to be either sex workers or criminals. They demanded a positive radical social change. The LGBT movement took the urge for tolerance and inclusion to a whole new level. The judiciary responded to their plea for equality first in Suresh Kumar Koushalv. Naz Foundation3 which culminated in Navtej Singh Johar v. Union of India4 where the Supreme Court upheld the constitutional rights of the LGBTQ+ people. In this backdrop, the present paper intends to point out the factors which led to inclusion of the LGBTQ+ community and led to social transformation.
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    Labour Rights under the Indian Labour Legislations: A Bird’s Eye View on the Protection of Rights of Labourers under the Recently Introduced Labour Code of India
    (University of North Bengal, 2021-09) Debnath, Dipankar
    India, one of the most labour-intensive countries of the world, has finally taken a leap of faith and codified 44 of its national-level labour laws into four broad codes on ‘wages’, ‘industrial relations’, ‘social security’ and ‘occupational safety and hea lth’. This has triggered a longstanding controversy between the stakeholder and the government as, according to the government the existing labour laws have created hindrances to the Indian manufacturing sectors as well as it discourages foreign companies to set up their respective wings within the country. This in turn amounted to huge loss to the country’s income and revenue. The Code has received criticism from trade unions and activists however, it has been welcome on the ground that the Code would help in reviving India’s economy involving two-fold benefits providing to the workers as well as to the industrialists. It has been argued that India’s existing labour laws as remnants of an archaic past considering them as ineffective for workers and burdensome on the employer and should be dismantled. In the above backdrop, the pertinent questions that remain to be examined are whether the recent drastic changes in the various labour laws are going to fulfil the purpose fostering the economic development of the country at the cost of various rights of the labours? Whether such steps on the part of the governments are in consonance with the constitutional provisions? Whether the reformations in labour laws would help the government’s initiative to implement the liberalisations concept attracting the foreign investors? Do we need a sustainable strong manufacturing sector? This paper has focused on the pros and cons of the recently introduced Labour Code in the light of above questions and made an attempt to dig out whether the Code would be successful in protecting the rights of the labourers?
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    Impact of Globalisation on Women Workers in Agricultural Sector: An Analysis
    (University of North Bengal, 2021-09) Dangal, Reena
    This article examines the impact of Globalisation on Women Workers in Agricultural Sector in India. Agriculture sector being unorganised sector it provides direct employment to millions of people including men and women throughout the country. Agriculture is said to be the backbone for the contribution of the economy of a nation where women plays an important role in the development of the economy of a nation. Different types of farming which is practised in India has been mentioned in this article. Further importance of women in agriculture sector and the problems faced by women workers in this sector has been discussed. What are the various Socio-Economic Conditions of Women Workers in India and has also examined about the social security legislation for women. The author in this article has also discussed the topic with some case laws decided by the supreme court of our country. At last the author has concluded the manuscript by pondering some suggestions related to it.
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    Study of Child Rights in Armed Conflicts under the International Legislative Framework
    (University of North Bengal, 2021-09) Biswas, Dolly
    Protecting children in conflict is a key concern for international children's legislation and its implementation today, with over 250 million children living in conditions of armed conflict. The international legal measures that safeguard children during armed conflict are examined in this article. It examines the general legal rights afforded to children during times of conflict, particularly their access to critical resources for their physical and mental well-being (such as medical treatment, food, and clothes) and to developmental activities, including education. It also looks at how international law prevents children from becoming involved in armed conflicts, including the restriction on their recruitment and use in hostilities, as well as how children who are captured or detained should be treated. The article concludes with a brief description of how, over the last few decades, the protection of children in armed conflict has grown to be a major worldwide problem, particularly within the UN system.
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    Imperative Need of Conscripting a Legal Regime on Blood Transfusion
    (University of North Bengal, 2021-09) Rajkhowa, Sriparna
    Hospitals, clinics and health care establishment while treating patients are at times required to suggest blood transfusion for various ailments, surgery and cases of accidents. Patients, relatives and attendants are required to fend for themselves due to absence of any comprehensive law and regulation mandating supply of blood through such establishments. The 2800 odd licensed blood banks do not have adequate stock as voluntary blood donations are yet to pick up in the country. Licensing too cane to be introduced after banning of the operation of unlicensed blood banks by the Supreme Court. Hence most of the blood comes either from friends and relatives of patients or commercial donors which may not be of high quality. The endeavour of the author has been to address the issue of absence of a comprehensive legal regime to ensure hygienic collection, safe storage and supply of whole blood and blood components. The resolutions, guidelines and guidance documents of the World Health Organisation as well the National Blood Policy has been analysed in relation to the implementation agencies. The provisions of the Drugs and Cosmetics Act and the Clinical Establishments Act in relation to blood banks safe transfusion reveal the shortcomings and highlight the necessity of a specific law on this score. Analysis of judgments of the Supreme Court and recommendations of the Consumer Forums reveal and reflect the current state of affairs in the shape of much avoidable harm suffered by patients either on account of transfusion of contaminated blood or negligence on the part of health care professions involved in the process. Such a measure can lead to promotion of safe and healthy blood transfusion by encouraging donors targeting at cent percent voluntary bold donation. It can also lead to measures at accountability.
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    Infringement of Right to Privacy by Naming and Shaming of Accused
    (University of North Bengal, 2021-09) Kiyawat, Pooja
    In what was broadly termed by the Government as the panacea for tackling the alleged rogue elements of the society, the Uttar Pradesh State Government decided to display the photographs, names and addresses of those accused of vandalism in Lucknow in December 2019 in the wake of the enactment of the controversial Citizenship (Amendment) Act 2019. The public display of the personal data of the accused was supposedly intended at ‘naming and shaming’ and thus deterring the accused from committing crimes, an act which certainly flies in the face of human dignity. The role of human dignity in our constitutional scheme is essentially a normative one. It ensures the unity of Human Rights into one bracket. While human dignity serves as the normative basis for the constitutional rights, it also serves as the foundation of parameter that determines the scope of all the constitutional rights.
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    Challenging Livelihood of the Child Labour: A Micro Level Study at Asansol in West Bengal, India
    (University of North Bengal, 2021-09) Sinha, Vijoy Kumar; Panda, Santanu
    In this study we have made an attempt to find out the reason behind the child labour in town. Children are the future of this Nation. They are considered as the most important asset of the society. Any future of the nation is depending on how children grow and develop themselves. The issue of child labour is continuously grabbing the attention of the world. Child labour deprives children of their childhood, interferes with their ability to attend regular school and which is mentally, physically, socially, or morally dangerous and harmful. These children work in extremely inhuman conditions, which constitutes a violation of their fundamental rights guaranteed to them under the Constitution of India and other international conventions. The objective of the study is to find out the real scenario of the child labour and why they are getting deprived of childhood and primary education. So, the study has been conducted at Asansol Town with the help of structured questionnaire. A total of hundred sample respondents were taken based on a random sampling technique for the study and those are available during the survey. The study will also reveal the relation between the root cause and socio-economic conditions of child labour. Finally, some suggestions would be made to stop child labour and improve the socio-economic condition in the selected area of Asansol Town.
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    Women and Land-holding Rights in India: Gender Discrimination Riddled with Agony
    (University of North Bengal, 2021-09) Khubber, Narinder; Singh, Pardeep
    Globally women are deprived of access to land-holding rights and means of production. The discrimination seems pervasive trickling down from top to the bottom of our social fabric of society in India. It goes to an extent, that a family—an agency of the socialization, itself, neglects their daughter/s by keeping her/them away from possession, ownership, succession, inheritance of family property, and by denying equal opportunities for education or employment. There exist many pieces of research in the world pressing upon the need and relevance of securing property and landholding rights for women for empowering them in a real sense. As has been claimed, access to the property and arable land can contribute not only to raising the situation of women rather in education and overall development of the society too. The present study is an attempt to explore various nuances relating to the issue of access to the property by women in India. Existing literature on the topic has been rigorously gone through and highlighted for building a discourse deliberating the need for recognizing property rights for women in India. The paper emphasis how without taking any sympathetic approach towards women empowerment, it is high time to make a call for a right-based approach for women to their landholding rights.