Indian Journal of Law and Justice, Vol. 12, No. 01

Permanent URI for this collectionhttps://ir.nbu.ac.in/handle/123456789/4135

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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Now showing 1 - 19 of 19

Open Access
Analytical Study of Women Empowerment in the Light of their Social Status, Political Participation and Attainment of Education- A Myth or Reality
(University of North Bengal, 2021-03) Baruah, Jayanta
Since time immemorial women have been deprived of their fundamental rights and liberty. Resulting they are still remain backward. It has been realised that ignoring women participation in politics our democratic government cannot be successful. Hence, women empowerment must get top priority in contemporary time. The Government of India is taking some positive steps for women empowerment. So question arises about women empowerment whether it is myth or reality? In this paper the author will try to examine the status of women in society, attainment of Education, especially higher education and their participation in politics to examine their level of empowerment.
Open Access
Approach and Contribution of Justice Hidayatullah to the Freedom of Speech and Expression
(University of North Bengal, 2021-03) Pandey, Harish Chandra
Justice Hidayatullah spoke with rare courage on delicate issues including restrictions of freedom of speech and expression in the interest of democracy, morality and contempt of court. In his opinions he consistently insisted upon the fullest protection being extended to individual rights. He delved deep into the foundation of the law and analyzed the underlying principles with clarity and precision. By his judgments he made priceless contribution to legal literature especially in the area of freedom of speech and expression.
Open Access
Critical Review on Indian Agricultural Policies with Special Reference to Women Farmers
(University of North Bengal, 2021-03) Saha, Bhaswati
Due to out-migration of male labour role, responsibility and participation of women in agriculture at household level are expanding day by day.According to OXFAM report, women, who are economically active in India 80% women engaged in Agriculture and allied activity. But till women’s labour remained unrecognized and invisible in the agricultural sector. In this context, proper planning, efficient policies, play a significant role to carry out agricultural activities effectively. After Independence the government introduced the different initiatives in the form of Five Years Plans, Schemes etc. which emphasized to empower Women farmers with food security and motivated to organise SHGs to enhance access to their technological, entrepreneurial skills and access microcredit facilities. These plans concern with principle aim of reducing gender gap in agricultural and allied sector, ensuring their land rights, eradicating women’s work drudgery. National Commission on Farmers, National Policy on Women farmers have been facing new challenges in the capitalist farming system with traditional patriarchal values. The Women Farmers Entitlement Bill, 2011 focused on land rights, water rights, credit and technological rights. Government of India has taken several steps to improve the overall condition of agriculture in India. Because of unsupportive social system, caste system, and in efficient administrative practices, the policies initiated by the Government are yet to achieve desired goals.
Open Access
Development of Sustainable Energy in India: Steps to be Taken
(University of North Bengal, 2021-03) Raju, V Surya Narayana
Sustainable energy is the energy that meets the needs of the present generations without compromising the ability of future generations to meet their own needs, source that renew themselves, rather than sources that can be depleted such as Wind, Solar, Water, Bio-energy and geo- thermal energy etc. Usage of sustainable energy will not only decrease the energy crisis but also help to better the climatic and environmental conditions. The dedication to promote sustainable energy requires supportive policy and legislative framework. The Indian government is taking certain initiatives relating to energy sector particularly in order to develop renewable energy resources. This approach towards the development of verticals of sustainable energy is very encouraging. The steady and systematic development of non- conventional energy resources will give fruitful results for securing the better future. One of the main reasons for exploring the non- conventional energy resources or sustainable energy resources, because these resources are environmentally as well as economically sustainable by comparison with the conventional energy resources. The research paper will trace the development of sustainable energy in India, explores the provisions of renewable energy sources and concentrates on developing the idea of sustainable energy in comparison to other existed resources. In conclusion, it highlights what kind of paradigm shift would be required to be strengthened legal as well as policy making for securing better future in the field of sustainable energy.
Open Access
Finding the Ratio between Law as an Instrument of Social Change and Social Changes that Germinated Law: A Unique Indian Scenario
(University of North Bengal, 2021-03) Chatterjee, Biswajit; Bandyopadhayay, Bidisha
The main objective of this paper is to study the way how law and Indian society had interacted with each other during colonial and post-colonial era. While doing so this paper examines why groups seeking social reform have resorted to different movements, litigation which eventually germinated law, and whether and how court-made law has contributed in social engineering. From a sociological perspective, an attempt has been made to treat law in its institutional, historical, socio-cultural, and politico-legal systems and analyze its dialectics with the ever changing Indian society in its broader structural setting. Finally, an attempt has been made to find out the ratio between the spheres where “law changed the society,” and where “society changed the law.”
Open Access
Integrating the Right to be Forgotten in the Indian Legal Framework in the Light of Experiences from the European Union
(University of North Bengal, 2021-03) Mozika, Jyoti J.
The right to be forgotten was brought under the spotlight in the Google Spain case, which held that individuals have the right to seek erasure or delinking of certain information about them. However, its apparent conflicting nature vis-à-vis the right to freedom of speech and expression has created a hindrance in its acceptance and development across the world. This Article outlines the development of this right, traces the practical legal issues vis-à-vis the freedom of speech and expression that have arisen during its implementation, and proposes a test that may be helpful in overcoming this barrier. The article also examines the recognition of the right in the Indian context.
Open Access
Menace of Female Foeticide in India: Current Scenario and Socio- Legal Implications
(University of North Bengal, 2021-03) Singh, Subodh K.
The advent of modern reproductive and sex selection techniques is providing worldwide ample opportunity to the female foeticide. Now –a –days the world population is significantly passing through gender imbalances due to different available sex selection methods. The menace of Female foeticide was invented, touted and sold by the medical profession, and it operates with the complete consent of our society. In the United States, sex selection is becoming a multimillion-dollar industry. During the last few decades, Indian society had also been facing female foeticide as a burning social problem. In strongly patriarchal society Parents prefer sons and availability of these techniques, has led to deterioration of female sex-ratio and is eliminating girls from the social scenario by misusing the technique which is basically meant to detect the foetal abnormalities. Even the law is a powerful instrument of social change but law alone cannot dismantle out this social problem from Indian society. The real challenge before Indian society and government authorities is to remove loopholes in The Pre- Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002. It is pertinent to note that until and unless this menace is controlled, the country will be heading for a grave gender imbalance, which in turn would adversely affect the nation’s economic progress. A concrete and meticulous effort by the medical fraternity, the law, political leaders, NGOs, women’s group, the mass media, teachers and the community itself is the need of the hour. This review article is an attempt to draw attention towards Current Scenario of female foeticide in India and its socio-legal implications.
Open Access
Nuclear On-board: Prospects and Challenges of Outer Space Exploration with Nuclear Power Sources
(University of North Bengal, 2021-03) Patel, Durgambini; Jawale, Priyanka M.
Since ancient times we have references to space/sky watching. After the Second World War, space exploration became the new frontier. The space-age began with the Soviet’s first satellite, Sputnik 1 launch in 1957. Many space agencies of the world, including NASA (USA) and ISRO (India), are working for inspiring space missions. Powering the spacecraft/object is a major concern in space exploration. Solar power is not adequate for deep space missions. Nuclear power sources (NPS) are the most suitable options for going beyond Moon and Mars. Paper examines the socio-economic-legal concerns of NPS along with technical challenges at the national/international level.
Open Access
Participatory Governance through Women’s Representation in Gujarat: Assessing the Role and Relevance of Government Initiatives since 2000
(University of North Bengal, 2021-03) Ahmed Raza
The underrepresentation of women in the decision making process always amounts to be sensitive and patriarchal issues in a society as it totally violates the notion of equality. After 74 years of independence in India, the issue of poor representation of women in political system remained same or inadequate as compared to their population ratio, although, efforts in the form of reservation, awareness and laws are continued. The paper has chosen Gujarat as a case study in order to explore the rationales behind decreasing trend towards women representation in Gujarat state assembly election and Lok Sabha election held in 2017 and 2019 respectively. Though, representation of women through 50 percent reservation has been a successful in local bodies including Gujarat. This paper also made an analysis of legal and institutional steps carried by Gujarat government since 2000 towards empowering women for ensuring their inclusiveness in the decision making process.
Open Access
PEOPLE’S CONSTITUTION- The Everyday Life of Law in the Indian Republic (2018) by Rohit De, Princeton University Press 41 William Street, Princeton,New Jersey 08540,pp.5 +296, Prince W.699
(University of North Bengal, 2021-03) Bhattacharjee, Subhajit
Open Access
Problems of Migrant Workers in India: A Post Pandemic Scenario
(University of North Bengal, 2021-03) Kadri, Harunrashid A.
Migrant workers are seen to be the most vulnerable members of the communities in which they live and work. They leave one place for another in search of employment, better wages, a decent living, or to be close to family or friends. Many suffer severe violations of their human rights, including ill-treatment by law enforcement authorities, abusive or exploitative working conditions, low wages, lack of fundamental workplace rights and protections, limited access to social security, systemic discrimination and wide-spread xenophobia and prejudice. During the post pandemic lockdown, they confronted with most severe sufferings of their life and history. The present paper is to discuss and analyse the problems of inter-state & intra-state migrant workers’ in India post declaration of nationwide lockdown by the Central Government due to the Covid- 19 pandemic. This paper concludes that the existing laws to protect the migrant workers have become lifeless. In the last 40 years, neither has it been effectively enforced nor any steps have been taken for its revival. Proactive measures are required to pour life into it. These laws may be made effective by requiring the establishment to submit all the details of migrant workers to the appropriate authority. The Government should ensure safe and healthy living, good working conditions along with just and fair wages to migrant workers.
Open Access
Relevance of Consumer Protection Act, 2019 in E-Commerce
(University of North Bengal, 2021-03) Patra, Chinmay
Advancement in technology and modern consumer behavioural pattern has replaced the traditional mode of buying and selling practice of the consumer with the online mode of shopping which gives ease to the customer, to shop while sitting at his own space and placing order online and there after the product gets delivered at the customers address as opted. But this new technology-based shopping also brought many hassles to the customise online frauds, fake products, sub-standard products, debit card and credit card account hacking, no guarantee and warranty on products, jurisdictional issues, dubious product return policy, etc. In order to protect the interest of the Consumers, it was felt necessary to establish an adjudicatory mechanism to redress the grievance and issues of the consumer. Hence the Consumer Protection Bill came to existence on 1st of April 2020 after framing of the Consumer Protection Rules by the Central Government, for effective implementation of the act. This paper intends to highlight the issues which have not been addressed in the amended version of Consumer Protection Act 2019.
Open Access
Right to Information: A Quest for Constitutional Jurisprudence
(University of North Bengal, 2021-03) Paul, Partha Pratim; Das, Biswajit
In Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, (a three judge Bench, B.P Jeevan Reddy. J concurring) Supreme Court has declared that “The freedom of speech and expression guaranteed Article 19 (1) (a) includes right to acquire information and to disseminate it”. Article 19 (1) (a) does not specifically define the meaning of “Freedom of Speech and Expression” and has also not declared what it ought to be and ought not to be and very eloquently connected the indispensability of information and exercise of speech or expression in a democratic country like India. Therefore, the recognition of “Right to Information” as Fundamental Right is one of the milestones in the way of development of Constitutional jurisprudence of India. Later on in 2005, another milestone was constructed when as part of statutory recognition, Right to Information Act has been enacted by Parliament of India, which has framed up necessary guidelines. In the context of this Constitutional and legal frameworks, basically three aspects have been looked into. Firstly, by tracing the origin of this Constitutional development, the Supreme Court recognised “Freedom of Press” as Fundamental Right. This declaration paved the way for discovering many unnamed rights into Article 19 (1) (a). Secondly, as far as “Right to Information” is concerned, the judgments which are credited to make the prelude to “Right to Information” becoming the Fundamental Right have been deeply analysed. Thirdly, Rule of interpretation of Constitution especially Fundamental Rights have also been deliberated upon along with the significance of Fundamental Rights. Finally, the judgment in Ministry of Information and Broadcasting v. Cricket Association of Bengal, has been critically analysed only to find out that that there are ten numerous flaws inherent in the judgment for which “Right to Information” stands on a very weak jurisprudential (Fundamental Rights) foundation. This achievement could not become a full bloomed success-it is partial in nature, for which the article gives some recommendations to make “Right to Information” a strong and positive Fundamental Right.
Open Access
Rights of Hawkers: A Study under the Indian Legal Framework
(University of North Bengal, 2021-03) Biswas, Sujit Kumar; Mondal, Champa
Hawkers form an integral part of the urban economy. Majority of the population depends on hawkers for affordable goods and services. Hawking constitutes a sizable proportion of the informal sector and creates opportunities for entrepreneurship and self-employment. It is not only considered as a source of self-employment to the poor in cities but also an ‘affordable’ as well as ‘convenient’ means of livelihood to majority of the urban population. According to the Periodic Labour Force Survey of 2017-2018, there were around 11.9 million hawkers in India of whom it is the women who constitute a larger portion of these hawkers. Despite such a massive population being engaged in such occupation, hawking is characterised by uncertainty, extortion, and low standards of regulation. Therefore, it is necessary to observe whether these hawkers have been granted with any rights under the Indian legal framework. The study, therefore, focuses on the rights granted to the hawkers under the Constitution of India and under various legislation of India. It also examines those remarkable judicial pronouncements which uphold the rights of the hawkers. Special significance is given to the national policies framed by the Government of India to protect the interest of the hawkers. The study analyses the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. At the last but not the least, the study also focuses on the recent issues and challenges faced by the Government to address Covid-19 impact on the hawkers and provide some suitable suggestion to this respect.
Open Access
Socio Legal Study of Community Policing in India with Special Reference to the State of Meghalaya
(University of North Bengal, 2021-03) Singh, Arun Kumar
India is a welfare state where the safety of the people is very essential. To maintain the safety of the people the role of police is very crucial. However, people hesitate to develop relationship with police. To remove the hesitation from the mind of the people the community policy plays a very important role. It is found that there is gap between police public relationship. This gap can be bridged when various community related programmes are organised where both police and public should actively participate. Through Community policing mutual trust develops in the mind of community and police which helps to create positive attitude towards police. To make community policing successful there is requirement of police reform. Supreme Court of India has also issuedguidelines to stop undue interference of politicians and ensure appropriate policy directions. State of Meghalaya being a tribal state is having better police public relationship in comparison of other States.
Open Access
Swachha Bharat Abhiyan and Affordable Housing for the Slum dwellers and EWS: Legal Challenges
(University of North Bengal, 2021-03) Kumari, Leena
Shelter and Sanitation have remained major challenges before the Government of India. The growing trend of urbanisation has further presented problems for the poor people in terms of place of residence and cleanliness. This Article examines the recent initiatives of Government of India relating to ‘Affordable Housing for All’, ‘Swachh Bharat Abhiyan’ with respect to the latest rules framed for solid waste management, namely Solid Waste Management Rules, 2016. It examines the legal challenges relating to applicability of solid waste management rules with special reference to slum dwellers and to economically weaker sections of people. The central argument in this article is that the legal challenges in the application of new rules on solid waste management are real and need to be removed.
Open Access
Traversing the Pathways of Citizenship: A Voyage of Contemporary Legal Regime of India
(University of North Bengal, 2021-03) Nagarale, Sonia B.
Citizenship being an indivisible integral of any democratic set warrants a holistic and comprehensive approach. India being a largest democracy of the world has adopted accommodative approach towards its citizenship. Moreover, the constitutional protection conferred upon the citizens and non-citizens have concretized the polity of India. On the backdrop of this, citizenship has been clearly discussed under the constitutional mandate. India as a nation has its citizenship underpinnings traced through prolonged British rule. Since the modern India has been largely unified due to British rule, the constituent assembly while making of the Constitution of India has laboriously deliberated upon nuances of citizenship of India. At the same time, international perspectives on citizenships have also enabled the India to cope up with changing geo-politico-economic scenario of the world. By virtue of constitutional mandate, India has been committed to draw policies having consonance with international legal regime; nevertheless, state sovereignty and the battle of government and public interest has generated a radical wave of discontent towards latest legal development in India pertaining citizenship. Present article takes a cross-section of historical development of citizenship law in India. It also assesses the constitutional mandate and various legal nuances on the touchstone of international legal forefront. On this backdrop present article also analyses the latest development of citizenship law of India, and lately amended bills on the citizenship. The contemporary socio-politico discourse on citizenship laws and National Citizenship Register has also been addressed hereunder. Ultimately, the article encapsulates contemporary development of citizenship regime of India while drawing critical appraisal of public opinion. The governmental as well as social measures having consonance with latest citizenship amendments in India have also been examined on the yardstick of judicial and juristic touchstone. To that effect, article highlights an emerging issue belonging to the India’s Constitution and governance.
Open Access
Water and Women's Right in India: An Eco-Feminist Approach
(University of North Bengal, 2021-03) Lama, Neelam
Water scarcity is the most widespread and serious of all the ecological disasters on the planet, and it requires immediate attention for human survival as it is affecting almost every continent causing growing concern around the world. The author would emphasise the importance of women in conserving water in this paper because they are profoundly linked to nature due to their similar life-giving biological processes. Against this background, this paper will discuss the primary role of women in the restoration and protection of the environment through joint efforts and plans, particularly in the era of water scarcity, and how eco-feminism, a branch of feminist theory, can help to solve the water scarcity if they are given proper awareness and training.
Open Access
Widow’s Right to Property Under Hindu Law: A Comparative Analysis with Other Personal Laws in India
(University of North Bengal, 2021-03) Ghosal, Anupama; Pal, Sreeja
In the ancient Hindu society where widows were subjected to the inhuman practice of Sati, there was no discussion over giving them property rights, and they would be divested of their husbands’ properties. With the advent of the British colonial rulers in India, the widow’s rights started being recognized, first with the Bengal Sati Regulation, 1829 which abolished Sati, followed by the Hindu Widow’s Remarriage Act, 1856. However, widows were still far from getting property rights. Before 1937, the widow of a Hindu governed by Mitakshara and as well as Dayabhaga law had only a right of maintenance in respect of coparcenary property in which the husband had interest. This Paper aims at tracing the evolution of widow’s rights in property from the ancient rules of Hindu Law through the Hindu Women’s Right to Property Act, 1937 of British India and the Hindu Succession Act, 1956 which came up post-Independence of India. The analysis will be augmented by discussions around the recent jurisprudential developments in this regard. Finally, the Paper entails a comparative analysis of widow’s right to property under Hindu Law and other Personal Laws of India.