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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Item Open Access Federalism and the Concept of Consociationalism : An Experience in Indian Context(University of North Bengal, 2022-03) Begum, TabesumToday 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.Item 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.Item 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.Item 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 SHomelessness 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.Item 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.Item 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, TridipaThe 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.Item 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, TaniaRecognition 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.Item 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 Ranjan2014 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.Item Open Access Rights of Minorities in India and Pakistan: A Comparative Study(University of North Bengal, 2022-03) Mandal, RakeshAt 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.Item Open Access Need for Scientific Analysis of the Theory of Interest in Consideration of Bail(University of North Bengal, 2022-03) Devi, Mridula; Gope, SumitaThe 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.