Indian Journal of Law and Justice, Vol. 13, No. 01

Permanent URI for this collectionhttps://ir.nbu.ac.in/handle/123456789/4595

EDITORIAL NOTE

The last two years have been immensely difficult, worldwide, due to the Covid-19 pandemic. We are glad that the world is recovering gradually. However, the pandemic has ensued global crisis exacerbating deep-seating social inequalities within our societies. Women, low-income households, children and young people, as well as low-skilled, part-time temporary and self-employed workers, all have been disproportionately affected.

Keeping these issues in mind, the Editorial Board presents the 13th Issue of the Indian Journal of Law and Justice. Once again, with the incessant efforts and ‘never-say-die’ spirit of the editorial team, the India Journal of Law and Justice sets its foot in its journey for the second decade.

Keeping in tandem with the objective of the journal of being a multidisciplinary journal, the key focus of this edition ranges from human rights issues of women, women refugees, human trafficking, trans-rights, the criminal justice system to public health management, artificial intelligence and big data in health sector and human gene editing. This volume contains a Notes and Comments section with short articles highlighting concerns like terrorism and international criminal justice system, right to fair trial of victims and feminist perspective of the Kamtapur Movement. The book review segment contains review of the edited and annotated version of the celebrated Annihilation of Caste which has been edited and annotated by S. Anand and the foreword of which has been penned down by Arundhati Roy.

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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Open Access
Actors and Accolades : Examining the Rights of Actors in Films in India from a Copyright Perspective
(University of North Bengal, 2022-03) Gogoi, Jupi; Sebastian, Tania
Recognition and protection of cinematograph film under the Indian Copyright Act, 1957 (hereinafter “The Act”) does not address the concerns of Actors. The practical collaboration in a film of producers, directors, scriptwriters, actors, music composers and others stands undermined in the case of actors. This is so as the current copyright regime in India emphasises only on the rights of producers and neglects the rights of others, specially actors. The inclusion of actors in the definition of performers does not confer rights related to copyright as these rights of copyright and related rights (including performers rights) are related but different. Though introduced in 1994, the rights of performers were limited in scope. With the intention of strengthening the Rights of Performers, Amendments were made in the Act in 2012. However, all the amendments were not applicable to the actors in films as they retained the earlier provision relating to performances in films, which stated “that once a performer (actor) has, by written agreement, consented to the incorporation of her performance in a cinematograph film she shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer’s right in the same film.” The rights of the actors were hence retained with and transferred to the producer. Solace is found in the proviso to section 38A (2) of The Act which states that “notwithstanding anything contained in this subsection, the performer shall be entitled for royalties in case of making of the performances for commercial use.” This is unexplored in the Indian Courts and thereby, the current provisions do not seem to offer much assistance to actors working in films. There are also the serious allegations of exploitation of actors, especially those who are not famous. As the largest movie industry in the world, performers in the Indian movie industry receive accolades the world over, however, they continue to work without adequate statutory protection. Limited scholarly work in this area has propelled the need to address all the concerns that actors of films in India face vis-à-vis copyright law in this paper. The paper will include comparative studies with the rights of actors of films in three jurisdictions, France, UK and USA. Accordingly, suggestions will be provided to strengthen the rights of actors of films in India.
Open Access
Annihilation of Caste : The Annotated Critical by B.R. Ambedkar, Edited and Annotated by S. Anand; Navayana Publishing (New Delhi, 2014), 415 pp., ₹499
(University of North Bengal, 2022-03) Chawla, Garima
Open Access
Artificial Intelligence, Big Data and Health Privacy : Need for Democratization and Regulation in Health Data Processing System
(University of North Bengal, 2022-03) Sehanobis, Tridipa
The paper seeks to depict the present status of Artificial Intelligence (“AI”) in the healthcare system of India and its issues relating to data privacy. AI is being a major contributor to health and medical domain not only increase its efficiency but also to gain economic firmness in these sectors in India. Owing to this, comes deep concern on its regulation and law limits while using the personal data of the patients for any other purposes than treatment. The use of AI which entails constant exchange of information and data between the patient and the AI service providers, raises serious concern for data privacy, as they are using the sensitive personal data of the individuals for other purposes like prospective trainings, creating algorithms, advertisement, etc. Hence, with big datasets there is associated serious threat and challenges to the privacy of the individuals, which is required to be addressed. This is possible with the foremost step of the democratization of health data and healthcare where individual will have better access to his/her health information and therefore manage their own health. This can further be implemented through the usage of AI-based technologies, like wearable bands, glucometers, etc. following a due process. Again, the operators of these devices should be strictly regulated through certain regulation and legislation such as Data Protection Bill, which safeguards the privacy of the data owners. The legislature should ensure the passage of the laws following due process, discussion and participation of the people to ensure inclusivity and safeguard the interest of each individual. The paper tries to suggest measures to make use of AI in healthcare ecosystem in a regulated manner so that its use is more of importance than of controversy.
Open Access
Assessment of Consumer Protection Act 2019 to Support Tobacco Control in India
(University of North Bengal, 2022-03) Patil, Ashok R
The use of tobacco products has been clearly established to cause significant medical and economic harm. While specific tobacco control legislation has been enacted in the form of the COTPA 2003, it is important to examine if other legislations can be utilised for regulation of tobacco consumption. One such legislation is the Consumer Protection Act 2019, which significantly expands the rights of consumers and protection given to them in terms of product safety and product quality. Accordingly, this paper provides an in-depth analysis of the Consumer Protection Act 2019 and the scope of utilising this legislation and the jurisprudence on consumer law with the aim of effective regulation of tobacco consumption.
Open Access
Challenges Before the Institution of Marriage in the Era of Globalisation
(University of North Bengal, 2022-03) Chakraborty, Gangotri
Globalisation has set off many social changes and has impacted upon the family in many ways posing a threat to the survival of the institution of marriage. This article discusses the many changes that the institution of marriage faces. Just as marriage is much more than just an institution for legitimate sexual relations, "globalization" too is a phenomenon that involves much more than just the economic dealings between the developed and developing nations. Modern cultural values such as expressive and utilitarian individualism cannot sustain marriage without a public theology of covenant and subsidiarity that defines marriage not only as a deeply meaningful personal and spiritual relationship but as a public institution. Today the question is what kind of institutional support does marriage need. Can we do away with the institution of marriage? The 19th-century antidote to the negative impact of the market on family life was the family model of the breadwinning father and domestic and economically dependent mother is no longer tenable. The 19th-century divided spheres, paternal authority, and power hierarchy should be put at rest. A middle position of a complex cultural transformation to support marriage and a solution for the tensions between work and family wrought by the forces of modernization is the need of the hour.
Open Access
Federalism and the Concept of Consociationalism : An Experience in Indian Context
(University of North Bengal, 2022-03) Begum, Tabesum
Today a federal form of governance with its nature and scope is presenting itself as an increasing important and relevant issue with the changing nature of polity. The very idea of consociationalism and the concept of Federalism are very useful tools for understanding any political systems in its core. Actually federalism and consociationalism are both based on compound majoritarianism rather than simple majoritarianism, and both represent modern attempts to accommodate democratic complexity and pluralism, although the two systems are not quite symmetrical, and territorial organization is not the only feature that differentiates each of the term in real sense. Again, in a highly plural society, the decision-making process becomes so competitive that new types of interest aggregations take place, thereby making the system looks like more complicated. My paper exactly emphasizes these fundamental issues within a broad framework of Consociationalism and Federalism in India.
Open Access
Health Care Concerns of the Homeless in India : A Human Rights Approach in COVID-19
(University of North Bengal, 2022-03) K, Amrutha; S, Giri Sankar S
Homelessness is the absence or denial of one’s housing rights. Homelessness is the violation of human rights that occurs in every country, endangering the health and lives of the poorest people. Thousands of human lives are at stake every year just because of lack of shelter. Due to lack of reliable statistics on the homeless population and lack of accountability towards them, the homeless tend to be overlooked in government programmes. Homeless people aren't limited to a specific population. In the vicious cycle of homelessness, children, women, the elderly, particularly the disabled and people with special needs are all victims. Comparing to other marginalized groups like women, children, indigenous and elder people, homeless face many human rights violations as well as health and social inequalities. Massive health inequalities are found across the world among homeless people; hence, the right to health is one of the most violated human rights for homeless. The misery of homeless people has been exacerbated by the Covid-19 pandemic3 which has spotlighted the significance of adequate housing in a way that has never been seen before. This paper considers that homeless people are one of the most vulnerable members of the society, and faces many health care inequalities and human rights abuses during Covid-19. This study focuses on the human rights obligations of India to provide the right to housing during the COVID-19 pandemic. For the purpose of the study various international human rights laws as well as Indian constitutional and legal documents has been analysed.
Open Access
Human Gene Editing and Its Inherent Conundrums: Legal Perspectives
(University of North Bengal, 2022-03) Sarkar, Madhumita Dhar; Mazumder, Belayet Hussain
Gene Editing, as a work of human ingenuity and innovation, opens up a vast range of possibilities for human existence in the future. While Gene Editing, on the surface, opens up the possibility of human perfection, it also raises a slew of ethical, philosophical, economic, and legal difficulties. From the standpoint of India’s commitment to ensuring an egalitarian society in which access to the fruits of science and technology is made available to both the rich and the poor, the prospect of Gene Editing raises deep and complex questions about the disparity in the capacity of the less resourceful to reap the benefits of this scientific advancement. The propriety of pushing such a disruptive technology - of men having the potential to fundamentally and dramatically alter nature’s systems of creation and sustenance - is also a factor in Gene Editing. Gene Editing also brings up the classic “Frankenstein” question: are we unleashing a beast beyond our control? Is it possible to get a global consensus on Gene Editing’s inherent limitations, if there are any? Because Gene Editing involves decrypting the fundamental building components of any human person, it raises the important question of whether such information should be made public, as well as the risks that come with it. Within its limited scope, this study makes a determined effort to address the aforementioned conundrums. It also attempts to provide a glimpse into the future that we are moving towards in terms of Human Gene Editing. While the scope of the various issues relating to Gene Editing is vast, the paper focuses primarily on the dimensions of Gene Editing’s economic perspective in India, its ethics, law, and scientific progress, informed consent and counselling in the domain of Gene Editing, and the need for transparency and accountability in the domain of Gene Editing.
Open Access
Human Rights in Abeyance in the Trade of Trafficking Human Beings: A Focus on the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018
(University of North Bengal, 2022-03) Bhat, Mudasir; Bedi, Shruti; Qadir, Mainaaz
Trafficking in human beings is considered to be a sophisticated and lucrative business. It has been identified as one of the fastest growing criminal industry in the world. It is a well-established international phenomenon of recent times and among the organized crimes, trafficking stands as the third largest category in terms of profit making after drug and arms smuggling. Human trafficking represents an estimated $31.6 billion of international trade. Trafficking in persons is a serious crime and a grave violation of human rights. Every year, thousands of men, women and children fall into the hands of traffickers, in their own countries and abroad. Almost every country in the world is affected by this menace, whether as a country of origin, transit or destination for victims. Trafficking in human beings has been considered as modern day slavery. Human beings are mostly trafficked for commercial sexual exploitation. However, included in the larger issue are the other dimensions of human trafficking, viz. forced labour, begging, organ trade, forced marriage, illegal adoption, surrogacy and camel jockeying. This research paper would examine relevant international and national documents such as, the United Nations Trafficking Protocol, the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, Criminal Law Amendment Act (2013) and recent Trafficking in persons (Prevention, Protection and rehabilitation) Bill of 2018. An attempt would also be made to provide an in-depth study of its concept, various emerging dimensions, causative factors, implications at the national and international levels.
Open Access
Judicial Approach towards Socio-Cultural Paradox on Entry of Women at Sabarimala
(University of North Bengal, 2022-03) Arora, Tarun
Justice is an attribute, in other words, a value addition to the dignity of life. Underscoring the vitality of this virtue of governance, the Constitution of India places it as the foremost goal of the polity. The juristic connotations indeed envision Constitution as a leveler lifting the veils from age old traditions of subjugation of women. Various provisions of the Constitution reflect gender neutrality as well as affirmative clauses of enabling nature equipping the State to take special legislative and executive measures for special classes or categories. Undoubtedly, the purpose of these clauses is to ensure a transformation not only of polity but also placing individual at the centre of a just societal order. Though little yet the significant impact of constitutional provisions on the lives of women can be witnessed on ground level. It cannot be ignored that the constitutional spirit is usually vulnerable to dynamic socio-cultural paradoxes owing their origin to political constructions and narratives. These paradoxes turn the situation into more aggravated form due to interface of law, administration, religion and politics in Post Truth World. Overflow of information in cosmetic democratic make over by the totalitarian or populist regimes with subtle ideologies block thought process in making the rational choices. In view of the above, the present paper highlights the role of judiciary being the final interpreter of the provisions of the Constitution to ensure constructive transformation. It elaborates the meaning, nature and scope of freedom to profess, practice and propagate the faith or religion and its inter-relationship with liberty to manage religious affairs in reference to gender inclusivity. The discussion revolves around the judgment of the Supreme Court of India in Sabarimala Matter, 2019 wherein the court attempted to find out the solution of the paradox prevailing in India from ages. Bodenheimer’s backward full forward push theory has been applied as a constitutional tool to filter out constitutional spirit from multi-polar assertion of truths- truth of social-cultural taboos viz a viz the truths of constitutionalism.
Open Access
Legitimate Interest test and Party Autonomy: Correcting the discourse on Liquidated Damages within the Indian Contract Act 1872
(University of North Bengal, 2022-03) Dasgupta, Lovely
The Indian Contract Act 1872 (the Act) is largely a codification of the principles, fundamental to the English Contract law. Accordingly, party autonomy is securely entrenched amongst the various provisions of the Act. The provision on liquidated damages too continue to retain the spirit of party autonomy. Unfortunately, the Indian Courts have misread the provision on liquidated damages and ignore the theoretical underpinnings on party autonomy. Consequently, the discourse on liquidated damages is in disarray. In contrast the English Contract Law has witnessed tectonic shifts in the theoretical terrain on liquidated damages. The legitimate interest test, as developed by the UK Supreme Court (UKSC), has forced a re-think on the issue of liquidated damages. Importantly the legitimate interest test reinforces the role of party autonomy in ascertaining the validity of the clause on pre-determined damages. This article argues that the Act is no stranger to the legitimate interest test. The provision on liquidated damages is proof of the same. The article concludes that the time has come for the Indian Courts to unapologetically adapt the legitimate interest test and promote party autonomy. For such adaptation will bring about the much needed course correction in the narrative on liquidated damages.
Open Access
Need for Scientific Analysis of the Theory of Interest in Consideration of Bail
(University of North Bengal, 2022-03) Devi, Mridula; Gope, Sumita
The concepts of crime and society are correlated. It must be noted that the notion of crime encompasses the concept of bail or provisional release. When a person is suspected of committing a crime and is detained by the court, she/he may be released on bail. However, the grant or denial of bail hinges on the equilibrium required between conflicting interests, that is the need for an individual’s personal liberty and the interest of society. Historically, the concept of bail and interest emerges from the clash between the state’s power to restrict or deprive the liberty of a man — who may have allegedly committed a crime — and the presumption of innocence or guilt in their favour. In this regard, there have been a number of international as well as national cases, which contend that there should be an appropriate balance between preserving the right to liberty of the individual and the interest of the state in granting bail or provisional release. Hence, the law relating to bail is meant to balance these two conflicting interests viz. the presumption of innocence of the accused and the need to protect the society from the acts of those committing crimes. Further, the law of bail is instituted under the right to personal liberty, under Article 21 of the Indian Constitution. This provides for a legal procedure that is guided by the tenets of natural justice. Therefore, the law relating to bail needs to be interpreted in synthesis with constitutional goals and mandates. In a constitutionally controlled criminal justice system, criminal jurisprudence has sought a balance between the liberty of the accused and the collective interest of the society. In this respect, this paper is an endeavour to study the need for a scientific analysis of the theory of interest in consideration of bail.
Open Access
Philosophical Correlation between Rational Design Theory and Model Bilateral Investment Treaties
(University of North Bengal, 2022-03) Mukherjee, Souvik; Chakrabarti, N.K.
Model Bilateral Investment Treaties have grown parallel to the evolution of Bilateral Investment Treaties; however, little importance have been given to the theoretical premise of the treaty design and raison d’ être for framing Model Bilateral Investment Treaties. Even the 2001 project on Rational Designing of International Institution, which discussed theoretical premise of participation of States while concluding international agreements, limited the study to the multilateral agreements, and left out bilateral agreements. However, it could be seen that the modern BIT regime, since its inception, was mounted upon the idea of need. On one hand States needed to import capital for economic development, on the other hand the States needed protection for the investments. Thereby making the regime based only on certain rationales. The development and transitions of Bilateral Investment Treaties and Model Bilateral Investment Treaties evidences the philosophy of Rational Design Theory. The Treaty practice may on occasion do not reflect rational measures, however, the form the philosophical standpoint it does.
Open Access
Protection against Self-Incrimination – Principles and Practice - A Comparative Analysis
(University of North Bengal, 2022-03) Sundaram, Shanmuga; Rajavenkatesan, P.R.L.
Application of the rule against self-incrimination is one of the important rights recognized under Article 20(3) in Part III of the Constitution of India. The Supreme Court of India applied this principle in its full force and effect in M.P. Sharma v Satish Chandra.3 However, in some of the later judgments, application of this protection was diluted. The rationale of the judgments for not recognizing this constitutional protection in the later judgments is not convincing. Such a rationale is also contradictory to the principles enunciated by the Supreme Court in other judgments dealing with the rights and liberties of an individual. In United Kingdom, despite the strong demand for dilution or abandoning this protection, the courts have consistently upheld this protection. In United States of America also, this protection is recognized as one of the fine principle developed by the civilized society. Compelling an individual to be a witness against himself demean the dignity of the individual and such compulsion and reliance on it by the courts would have the effect of dispensing with the proof otherwise required for determining the guilt of an accused. In some of the later cases, the Supreme Court of India has recognized the importance of this protection and applied it. Tracing the history of this protection and its application in United Kingdom and United States America would help understanding the underlying principles for this protection. Comparison of the Indian experience with other jurisdiction would provide an opportunity for introspection and consider remedial measures.
Open Access
Public Health Management : The Way Forward through Patent Pools
(University of North Bengal, 2022-03) Krishnan, Awasthy G.
Patent pools covers agreements whereby two or more parties agree to pool their respective technologies and license them as a package. It facilitates public health management of IP through a partnership between an entity with a public health mandate on one hand and private pharmaceutical companies on the other hand. This model of access-oriented and nonexclusive voluntary licensing mechanisms with a clear public health mandate can contribute to achieving this goal of Universal Health coverage and can overcome a number of access and innovation challenges in the biopharmaceutical field. This can be substantiated by analyzing the successful Medicines Patent pool. The benefits of collaborative research and an efficient patent pool could also be witnessed when COVID-19 pandemic was declared as a Public Health Emergency of International Concern by the World Health Organization (WHO) on January 30, 2020, where they launched the COVID-19 Technology Access Pool (CTAP) with a Solidarity Call to Action for sharing intellectual property on treatments and vaccines.
Open Access
Right to Fair Trial for the Victim – Changing Paradigm in 21st Century
(University of North Bengal, 2022-03) Zahan, Momina; Singh, Manju
The concept of fair trial is the foundation stone of any justice delivery mechanism for the prevention of miscarriage of justice. While the general concept of ‘fair trial’ should mean a ‘trial’ in which there is no biasness or prejudice against any party to trial or the cause, yet it is considered, to be the trial wherein there is no biasness against the defendant/accused only. But a trial can be fair only when the whole of the prosecution procedures has been fair-minded and reasonable, and it is extended to all the participants of the criminal justice system along with the accused. Thus, this paper attempts to investigate the scope of the concept of fair trial and observe whether it can be extended to the other players of the criminal justice system, especially the victims of crime.
Open Access
Rights of Minorities in India and Pakistan: A Comparative Study
(University of North Bengal, 2022-03) Mandal, Rakesh
At the verge of the independence, two separate dominions were established by the British Government on the basis of religion. Although two major communities are divided on religion, a large numbers of minorities are living at either nation. Pakistan constitutionally declared as Islamic Nation whereas India declared herself as secular nation. However, Muhammad Jinnah had guaranteed that minorities are free to profess and practice their religions and develop their cultures. Consequently, the Constitution of Pakistan guaranteed some basic rights and fundamental freedoms under the Constitution. Unfortunately, these constitutional guarantees were not implemented in reality inspite of Jinnah’s assurance. Presently, Pakistan is one of the most hostile states for the minorities in the world. The reasons behind that after 1977 Pakistan became more orthodox and tried to Islamized the entire nation and political campaigned was focused on religious hatred. This paper endeavors to comparatively analyze the status of minorities in India and Pakistan and their respective constitutional safeguards. It further focused on Constitutionalism which is original and real sprite of the nation towards execution of noble ideas on ground reality. Therefore, written constitution has a very little impact, it is the constitutionalism or the sprite and willingness of the political parties and people who govern the state and execute the rights in reality.
Open Access
Sabarimala Debate: An Analysis of the Judgment of Indian Young Lawyers Association V. State of Kerala
(University of North Bengal, 2022-03) Biswas, Sujit Kumar; Baraily, Nivedita
Religion has always remained one of the most intrinsic elements in an individual’s life. The rights to freedom of religion coupled with the right to equality are the monumental foundations of Indian democracy. When on one hand the Supreme Court was confronted to choose between women’s rights and religious rights, it inclined towards women’s rights in the case of Indian Young Lawyers’ Association v. State of Kerala and others. But was this choice made as a matter of public interest and beneficial to the general mass? This paper not only discusses the ongoing Sabarimala debate, that is, whether or not allowing women of menstruating age is a move towards women empowerment and development but also attempts to bring forth the subsequent reaction after the judgment. This research paper also attempts to comprehend whether such a decision of the Supreme Court contravenes the constitutional mandate of secularism.
Open Access
Terrorism and the International Criminal Justice System
(University of North Bengal, 2022-03) Chakraborty, Samraggi
Terrorism has always haunted mankind. In recent years, terrorism has become a global issue. States are frequently becoming victims of terrorist activities. The consequence of terrorism is that it violates human rights. The attack on World Trade Centre tower, New York in September 11, 2001 has made the world consider terrorism as a matter of serious concern. At present, international terrorism is a matter of grave concern. There have been adoptions of many Conventions to deal with terrorism. However, there is a hurdle to it. This hurdle is because there is no uniform definition of terrorism.
Open Access
Trans - Rights Are Human Rights : An Evaluation of Law on the Protection of Transgender Rights in India
(University of North Bengal, 2022-03) Syiem, Angel H.; Kumar, Priya Ranjan
2014 is a year to be remembered in the history of India in terms of Transgender Rights, followed by its fruit in the year 2019. The Judiciary in recognizing the status of Transgender Persons in the country, identified them as the ‘third gender’ in the NALSA Judgment (2014). Following cue, the Indian Parliament passed The Transgender Persons (Protection of Rights) Act, 2019. At the international level too, the efforts of respecting, safeguarding, protecting and fulfilling the rights of Transgender has been witnessed constantly through strong recommendations and comments of the United Nations Charter and Treaty based bodies. The promulgation of the Act of 2019 in India was a celebrated event as many believed, that it marked an end to the age long marginalization and discrimination faced by the Transgender Community. A cursory glance at the legislation would give many, hopes in that regard. However, it was and is still met with opposition from the Transgender Activists leading to the struggle of the community to continue. What makes this legislation an issue of debate? It is questioned on the basis of the very definition of the term ‘Transgender’. It rejects some of the most important points of the NALSA guidelines. It is almost completely silent on civil and political rights and most importantly it lacks the voice of Trans-genders themselves for whom the law is made. This however does not mean that it is a failed legislation. It is certainly an effort worth appreciating as it opened doors for prohibition of discrimination and providing social welfare measures for the community. This paper, seeks to address some of the limitations and gaps of the legislation. In doing so, it also tries to understand the concept of trans-genders, the historical background in India, forms of discrimination faced by the community, international human rights laws provisions on their rights and the role of judiciary in promoting the rights of the community.