Indian Journal of Law and Justice, Vol. 15, No. 02

Permanent URI for this collectionhttps://ir.nbu.ac.in/handle/123456789/5571

From the Editor’s Desk

Season’s Greetings!

I am glad to announce the publication of the Vol. 15 No. 02 issue of the Indian Journal of Law and Justice. The Indian Journal of Law and Justice has come a long way in the last one decade from being a national law journal to being an internationally acclaimed journal and from being a mere print version to having a website of its own, namely ijlj.nbu.ac.in. Along with being enlisted by the UGC CARE, the journal is proudly indexed with the esteemed SCOPUS along with the HeinOnline and EBSCO. Innumerable scholars, academicians and professionals from the field of law as well as other social sciences sector have been relying on this journal for their scholarly publications and have played a pivotal role in their early career success. I along with my highly efficient editorial team pledge to building on the legacy of this journal. We are making an endeavour for online submissions of articles and research papers to improve and expedite peer review. We, as a team, shall continue to remain committed to making it a forum that welcomes scholarship from a diverse and global group of authors, whose ideas are at the cutting edge of law and policy research.

Keeping the trend of the Indian Journal of Law and Justice, authors across the globe have contributed on varied topical matters and raised relevant and pressing questions in their papers to enrich the journal. The current issue gives the glimpse of insights on international and national issues. The current issue highlights on the United Nations Convention against Corruption (UNCAC) Policy as a new Instrument of Criminal Law for Combating Corruption in Indonesia, Refugee Children’s Right to Education in India, Patent Protection for Inventions in Outer Space, Safeguarding Privacy in the Age of AIPowered Legal Services, Legal Framework for Forest Rights in India, Present Challenges to ‘E-Court System’ in North-Eastern States, a Comparative Analysis of Birthright Citizenship in India and the United States of America, Right to Housing, Indigenous Women and their Tenacious Strive for Forest Rights.

I thank all contributors for their submissions to this edition and their cooperation with the editorial team during the production phase. I express my gratitude again 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.) Sujit Kumar Biswas
Chief Editor

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Now showing 1 - 13 of 13

Open Access
Defining the Scope of Hate Speech: A Comparative Jurisprudential Approach
(University of North Bengal, 2024) Shams, Rahemeen; Sarkar, Subhradipta
The concept of hate speech has been in debate for many years, and it has received immense attention in the recent past. With the advent of the internet, the content is reaching more swiftly to the audience than ever before, having greater implications. Laws have been enacted both in the international and national spheres to regulate the menacing effect of hate speech. Nevertheless, such antihate speech laws have been continuously challenged as they violate the right to free speech and expression. Supra-national courts like the European Court of Human Rights as well as the courts in other democracies have considered various aspects and tried building up jurisprudence in this regard. India is no exception to such phenomena and has witnessed a surge in such incidents in recent times. Wherein in many cases, the State has turned blind eye to the serious ramification that such speeches were capable of, in other instances, it has incarcerated people indiscriminately, accusing them of making speeches amounting to sedition. Prohibition against hate speech has found references in various laws and the judiciary has long played a pivotal role through balancing acts. Besides defining ‘hate speech’, this research paper has attempted sketching the limits of hate speech by reconciling Indian jurisprudence with the ones developed by the courts abroad.
Open Access
Safeguarding Privacy in the Age of AI-Powered Legal Services: Navigating Data Protection Challenges and Ethical Imperatives
(University of North Bengal, 2024) Yadawa, Surendra Kumar; Singh, Sukhwinder
In the age of Artificial Intelligence (AI) and quantum computing, information is moving worldwide. No aspect of life is left untouched by it, the increasing use of Artificial Intelligence (AI) has raised concerns about privacy as well as data security among governments, industry and common people. The absence of legal coherence with the changing technological landscape has made the challenge even tougher. AI's transformative impact on judicial services necessitates balancing innovation with privacy, focusing on managing sensitive data, regulatory compliance, and ethical standards in AI-driven legal frameworks. This explores data protection challenges, and ethical imperatives in AI-powered legal services, emphasising privacy safeguards and regulatory compliance mechanisms. Integrating AI in legal services demands a comprehensive approach to address data privacy, security, and ethical considerations. In India, the evolving AI landscape emphasises the need for robust regulatory frameworks to ensure compliance with privacy concerns and mitigate risks. The complexity of AI systems necessitates transparency, accountability, and human oversight at every stage of development and deployment. Ethical imperatives, such as safeguarding user rights and maintaining public trust, are crucial. Indian experiences highlight a growing demand for legal frameworks that balance innovation with data protection, ensuring AI technologies serve justice without compromising privacy. This article advocates for active assessment of AI systems within the framework of existing laws, and calls for responsible innovation focused on AI applications and impacts and legal compliance of AI technologies in India, paving the way for a sustainable and privacy-focused approach to AI governance.
Open Access
Legal Policy for Trade Secret Protection in BRICS Countries: From Confidentiality to Concord
(University of North Bengal, 2024) Nomani, M. Z. M.
The ascent of trade secrets heralded an unprecedented recognition of intellect and innovation. In the wake of technological onset, the trade secret assumed seminal significance in informational assets and intellectual capital. It has propelling potential to boost economic regeneration in BRICS countries under varying degrees of the normative regime and political climate. The innovation and competition go along within these regions; therefore, a robust trade secrecy regime is pivotal in propelling growth and development. The Paris Convention for the Protection of Industrial Property,1967, and Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, 1995, have set the international parameters fortified by the Uniform Trade Secret Act of 1979 the United States to consolidate and unify the trade secret laws in the region. The relevance of trade secret protection under intellectual property law has assumed significance in the BRICS nation to prevent obviousness and infringement by charting out the sound legal mechanism and guard against the vulnerability of exposure. The paper critically analysis institutional, legal, and judicial dimensions of trade secrets laws of the BRICS Nations spread overdeveloped nations to developing economies. The range of remedies under trade secret disputes vindicated through the judicial organs of BRICS countries is an exciting engagement concerning regional trade and development. The comparisons and contrast of trade secret laws across BRICS countries is a fascinating discourse of innovation and competition besides setting robust parameters for justice and peace in the region.
Open Access
Refugee Children’s Right to Education in India: Legal Obligations and Implementation Realities
(University of North Bengal, 2024) Verma, Asha; Lal, Ruchi; Venaik, Superna
The right to education assumes primary significance for refugees as it’s crucial to preserving human rights and a clear link to their social and economic empowerment. In this context, the article analyses the international and domestic legal standards in India in protecting the education rights of refugees. Primary data has been collected using interview schedules. Personal interviews and participant observation are the other tools used to provide a thematic analysis of the qualitative data gathered from 200 refugees living in India. Through the analysis and interpretation of the data collected, some of the extensive barriers to education that refugees living in India face have been identified, and ground realities in terms of accessibility of universally recognised educational rights of refugees have also been highlighted. The findings from this study augment the limited empirical knowledge related to the area and expand understanding of the experiences of refugee children in accessing educational rights in India.
Open Access
Patent Protection for Inventions in Outer Space: Issues and Challenges
(University of North Bengal, 2024) Arundhati
The increasing commercialization of space activities has highlighted the need for a robust legal framework to protect intellectual property (IP) in outer space. Currently, national and regional patent laws apply only within their respective jurisdictions, leading to challenges in enforcing patent rights beyond Earth. The existing international space law framework, which resembles maritime law, allows private entities to circumvent patent regulations by registering in jurisdictions with favorable IP policies, contributing to the "flags of convenience" problem. This regulatory competition threatens global patent protection, potentially discouraging innovation in space technologies. India, despite being a signatory to major international space treaties, lacks a dedicated national space law to regulate IP rights in space-related activities. The growing involvement of private enterprises in India’s space sector further necessitates comprehensive legislation to address patent protection, interdepartmental coordination, and commercialization of space innovations. This article examines the challenges of enforcing patent protection in outer space, the inadequacies of the current international legal framework, and the implications of regulatory competition among states. It explores the necessity for national space legislation in India and discusses global solutions, including the establishment of a universal patent jurisdiction or a "Space Patent" regime. The article also evaluates proposals by WIPO and other international organizations to create a unified system for patent protection in space, ensuring stronger IP rights and fostering innovation. Finally, it highlights the need for global cooperation to address the legal complexities of space-related inventions and support sustainable space exploration and commercialization.
Open Access
Towards Effective Recognition and Enforcement of Awards by the Nigerian National Human Rights Commission in Human Rights Cases
(University of North Bengal, 2024) Ariyoosu, Dauda A.; Owoade, Abdullateef A.
Protection of human rights is a universal phenomenon. Many national and international laws, conventions, and other instruments on human rights are handy in the protection of such rights. Unfortunately, much as the protection of human rights is internationally recognised, the practice and procedure for the enforcement of such rights have been a serious cause of concern in human rights cases. The aim of this paper, therefore, was to examine issues in litigating human rights cases vis-à-vis recognition and enforcement of awards made by the National Human Rights Commission in human rights cases. The specific objectives of the paper were to examine the jurisdiction of courts in the enforcement of violation of human rights; recognise the various inalienable fundamental human rights in Nigeria; and identify the powers and functions of the National Human Rights Commission of Nigeria with regard to human rights cases. The paper adopted a doctrinal method with an examination of relevant statutory provisions and case law. It has been found that there are conflicting decisions of superior courts of record regarding the jurisdiction of courts in human rights cases, and this has an adverse effect on the principle of judicial precedent. It was also found that the amendment to the National Human Rights Commission Act has engendered recognition and enforcement of human rights cases by the National Human Rights Commission. The paper recommended that in making awards by the Commission, the requirements of a valid award must be strictly adhered to so as to prevent or minimise a challenge to the validity of the award. It was also recommended that the general public should be sensitised and enlightened through periodic seminars, workshops, conferences, and media of the opportunity provided by the National Human Rights Commission Act to ventilate their grievances.
Open Access
Ratification of the United Nations Convention against Corruption (UNCAC) Policy on 'Trading in Influence' as a New Instrument of Criminal Law for Combating Corruption in Indonesia
(University of North Bengal, 2024) Puji, Kuat; Bawono, Icuk Rangga
The UN Convention Against Corruption (UNCAC), which took place in Mexico in 2003, is an agreement that includes the prohibition of various actions considered corrupt practices. One of these actions is "trading in influence," as stipulated in Article 18 of the UNCAC. Indonesia was forced to ratify anticorruption policies and criminal law instruments, which resulted in Law No. 7 of 2006. Trading in influence is one of those actions criminalised under the United Nations Convention Against Corruption. The crime of trading in influence is non-mandatory This article explores significant aspects of comprehending "trading in influence" as a criminal law tool to combat corruption in Indonesia. This was due to the increasingly complicated manifestation of anti-corruption in the international community. The article analyses and compares the international understanding of corruption offences with their implementation in Indonesia. While exploring the relationship between the tenets of international criminal law and those of Indonesian criminal law, it will also look into how international criminal law is applied in Indonesia.
Open Access
Present Challenges to ‘E-Court System’ in North-Eastern States
(University of North Bengal, 2024) Gupta, Puja
Implementing an 'E-Court System' in the North-Eastern states of India faces many challenges that necessitate careful consideration and strategic solutions. This paper explores the key impediments hindering the seamless integration of electronic court procedures in this region. The North-Eastern states grapple with infrastructural deficiencies, including limited internet connectivity and power supply issues. These challenges hinder the effective deployment of digital platforms, jeopardizing the accessibility and reliability of the E-Court System. Also, the region experiences linguistic diversity, with many local languages spoken. Adapting the E-Court System to accommodate these languages is crucial for ensuring inclusivity and equal access to justice. This linguistic diversity poses a significant challenge in developing user-friendly interfaces and legal documentation that cater to the diverse population of the North-Eastern states. Addressing this issue requires comprehensive educational initiatives to enhance digital literacy and promote the understanding of electronic court procedures. The concerns about data security and privacy are significant deterrents to the acceptance of the E-Court System. In conclusion, the successful implementation of an E-Court System in the North-Eastern states demands a holistic approach that addresses infrastructural, linguistic, digital literacy, and cybersecurity challenges. By acknowledging and proactively mitigating these impediments, the region can pave the way for a technologically advanced and accessible justice system, ultimately fostering legal efficacy and inclusivity.
Open Access
Navigating the Genetic Labyrinth: Reconciling Individual Genetic Autonomy with Collective Health Imperatives in International Policy
(University of North Bengal, 2024) Sarker, Shuvro Prosun; Akash
Genetic information serves as a crucial resource for scientific inquiry, clinical diagnostics, and establishing personal identity. Yet, this same data harbours potential threats to individual and collective privacy rights, with the capacity to disclose intimate details susceptible to discriminatory or exploitative misuse. It is, thus, imperative to scrutinise the role of international law in safeguarding genetic data privacy and curtailing discrimination predicated on genetic profiles. This article delves into the evolution of privacy rights concerning genetic data, as demarcated by international legal frameworks. It examines the delicate balance between genetic data confidentiality and anti-discrimination efforts, questioning whether the pursuit of communal benefits is compromised by rigorous privacy protections. The discourse posits that international legal tenets can inform the formulation of privacy measures that reconcile the communal imperative for technological advancement with the privacy entitlements of individuals and kinship groups. Furthermore, it advocates for the adoption of optimal practices to fortify genetic data privacy and impede genetic-based discrimination within the ambit of international law. These practices may encompass the implementation of stringent data anonymisation protocols and comprehensive informed consent processes at the national level.
Open Access
The Law of Soil across Two Lands: A Comparative Analysis of Birthright Citizenship in India and the United States of America
(University of North Bengal, 2024) Banerjee, Devanjali
The law of soil has somehow been made a superior category in both USA and India, due to the connotations of an older, closer association of citizens with the nation-state. The conception of BRC is closely linked to the idea of the original political community of a nation-state. This article has asserted by way of the comparative analysis of BRC in America and India, the importance of historical, social, political and cultural factors upon the development of a legal framework of BRC in these nations.
Open Access
Right to Housing and Indian Policy: A Story of Federal Structure Limitations
(University of North Bengal, 2024) Sharma, Sahansheela
A shelter and housing give an opportunity to an individual to live a life of dignity and privacy. The government since the time of independence segregated certain funds for housing and shelter. There are policies and laws of the government that supports the housing for all. But the main problem for the implementation of the housing policies is structure of federalism in India. In the paper the authors will assert that housing and shelter is a fundamental right in itself and needs a deeper protection from the state. Thereafter the author will look upon the status of shelter and housing in India and how federal structure impacted its development. The author will also attempt to understand the reason behind the lack of housing infrastructure in India and individually discuss these problems in the context of global development. Finally, attempt will be made to form a policy which will be suited to the Indian circumstances and enhance the housing infrastructure in India.
Open Access
Legal Framework for Forest Rights in India: A Critical Analysis
(University of North Bengal, 2024) Narayan, Saurav; Singha, Sukanya
The Forest Rights Act (hereinafter referred to as FRA) of 2006 is a landmark piece of legislation in India, designed to address the historical marginalisation of indigenous and forest-dwelling communities. It acknowledges the symbiotic relationship these communities have with forests and seeks to restore their land and livelihood rights. Rooted in India’s constitutional promise to uplift oppressed groups, the FRA also aligns with international frameworks like the ILO Convention No. 107 and the United Nations Declaration on the Rights of Indigenous Peoples, recognising the significance of self-determination, land ownership, and cultural preservation for indigenous populations. Despite its progressive framework, the FRA has sparked debate regarding the balance between conservation efforts and the rights of forest-dependent communities. The delay in implementing the Act, as well as opposition from various stakeholders, highlights the entrenched conflicts over land and resource management in India. The paper highlights that the FRA positions indigenous communities not merely as beneficiaries of state protection but as active participants in forest conservation and governance, drawing on traditional knowledge systems to ensure sustainable environmental stewardship. This paper also discusses how this Act places significant responsibilities on local governance bodies, particularly the Gram Sabha, and establishes a multi-tiered institutional framework to oversee the recognition and vesting of forest rights. However, the efficacy of the FRA remains contingent on transparent and accountable implementation by state and central authorities, as well as the active involvement of the communities it aims to empower. The FRA represents a critical step toward achieving social justice for India’s indigenous populations. It challenges existing paradigms of forest governance, promoting a more inclusive model that integrates human rights and environmental sustainability.
Open Access
Indigenous Women and their Tenacious Strive for Forest Rights - An Indian Perspective
(University of North Bengal, 2024) Rai, Ashima
In the forestry systems of developing countries, distinct roles are often assumed by men and women. However, women frequently encounter systemic disadvantages stemming from cultural norms, socioeconomic barriers, and institutional biases that restrict their access to and control over forest resources and related economic benefits. Despite their essential contributions to the sustainable use and preservation of forest ecosystems, women’s roles continue to be underrecognized and undervalued. Policies and legal frameworks that govern land and forest management, which disregard gender dynamics and fail to adopt a rights-based perspective, risk perpetuating the legal and social marginalization of women. Such gender-blind approaches exclude women from decision-making processes and deny them fair access to the advantages derived from forest and land resources. This paper critically analyes current legal provisions, particularly focusing on India’s Forest Rights Act of 2006, to investigate how existing forest governance structures adversely affect lowincome populations, especially women. It also proposes targeted reforms designed to strengthen gender equity, enhance women's rights, and promote both social justice and ecological integrity within India’s forest management practices.