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

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

EDITORIAL NOTE

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

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

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

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

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

I thank all contributors for their submissions to this edition and their cooperation with the editorial team during the production phase. I would also like to express my gratitude to the entire Editorial Team whose commitment and perseverance made this publication possible.

Suggestions and opinions for the improvement of the journal is solicited.

With Best Wishes

Prof. (Dr.) Rathin Bandhopadhyay
Chief Editor

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Now showing 1 - 20 of 22

Open Access
Accountability of Civil Servants under Indian Laws: A Critical Analysis
(University of North Bengal, 2021-09) Gahlawat, Ekta
The civil servants are accountable to both political-executive and citizens for ensuring transparency and honest policy implementation. The administration in India has acquired a vast power in the name of socio-economic development. Thus, the chances for administrative abuse are more. So, there is need to establish effective institution (Ombudsman) for the efficient working of the administration. This article focuses on the accountability of the civil servants under the Indian laws. First part of this article deals with the introduction of the civil servants. The second part, describes the provisions related to the civil servants under Indian Constitution (Article 308-311). The third part deals with the accountability of civil servants towards public and political-executive. It also describes the relevant recommendation of committees. Fourth, the most important part deals with the mechanisms to control the civil servants so as to prevent the abuse of power under the administration. The fifth part of the article deals with the lacunas which prevent the proper implementation of all these mechanisms. Finally, the article concludes that Lokpal has provided effective implementation of all mechanisms which can help to eradicate the menace of corruption
Open Access
Challenging Livelihood of the Child Labour: A Micro Level Study at Asansol in West Bengal, India
(University of North Bengal, 2021-09) Sinha, Vijoy Kumar; Panda, Santanu
In this study we have made an attempt to find out the reason behind the child labour in town. Children are the future of this Nation. They are considered as the most important asset of the society. Any future of the nation is depending on how children grow and develop themselves. The issue of child labour is continuously grabbing the attention of the world. Child labour deprives children of their childhood, interferes with their ability to attend regular school and which is mentally, physically, socially, or morally dangerous and harmful. These children work in extremely inhuman conditions, which constitutes a violation of their fundamental rights guaranteed to them under the Constitution of India and other international conventions. The objective of the study is to find out the real scenario of the child labour and why they are getting deprived of childhood and primary education. So, the study has been conducted at Asansol Town with the help of structured questionnaire. A total of hundred sample respondents were taken based on a random sampling technique for the study and those are available during the survey. The study will also reveal the relation between the root cause and socio-economic conditions of child labour. Finally, some suggestions would be made to stop child labour and improve the socio-economic condition in the selected area of Asansol Town.
Open Access
Cryopreserved Pre-Embryos: An Exordium to the Person or Property Discourse in Indian Legal Context
(University of North Bengal, 2021-09) Chakraborty, Sanjit Kumar; Moneshaa
Scientific advancements in reproductive technology allow couples to combat problems with conception through various alternatives in assisted reproduction. However, with the advancement of science and technology, particularly in assisted reproductive technologies (ART) and the infertility business, several specific questions are posed, largely overshadowed bylegal and ethical dilemmas. From the Indian legal context, this paper attempts to address the recent legal question of whether a cryopreserved preembryo is to be considered a person or a property. Exploring the status of a cryopreserved pre-embryo, the paper delves into a debate ofwhether the cryopreserved pre-embryo is to be treated as a person, thereby applying family law principles; or as property by applying property law jurisprudence while determining the pre-embryo ownership, particularly in a situation where the partners involved in the creation of the pre-embryo intend to dissolve their marriage. The present research does not attempt to resolve the controversies; instead, it analyzes the extent of legal recognition given to a pre-life form across various legislations in India. By perusing different judicial approaches, such as the right to life position, the property approach, and the special respect position that have been elucidated in several foreign judgements dealing with this issue, an effort has been made to highlight the legal dilemmas in this area. In conclusion, the paper suggests strict regulations to prohibit the commercialization of embryos because of public welfare concerns stemming from cryopreservation, and advances the argument in favour of the special respect position of cryopreserved embryoacknowledging the personhood analysis.
Open Access
Digital Currency: Whose Money is it Anyway!
(University of North Bengal, 2021-09) Srivastava, Ashish Kumar
“Currency is known for its value. It is a legal tender and an insignia of sovereign state. Currency works as a consideration in market and provides wheels to economy via sale and purchase. Currencies are territorial and regulated by Central Authorities in modern legal system. Computer and internet converted the world in a global village. Virtual currency knows no boundaries and rejects the interventions & regulations by third party. Satoshi Nakamoto a pseudonymous creator created virtual currency in 2009 and it became very popular in western world due to being based upon cryptanalysis technology and removal of manipulations by trusted third parties like banks and regulators. Initial coins offerings played a major role in popularizing the digital currency. Technologies like blockchain, Internet of Things, 4.0, Artificial Intelligence and Machine learning have made the virtual currency robust with passage of time. Many jurisdictions raised concerns over its possible abuse in illegal activities. Financial Action Task Force cautioned the countries about its possible abuse. In India Reserve Bank of India banned virtual currency in 2018 by a circular but on 4th March 2020 Supreme Court of India declared ban by Reserve Bank of India as illegal on the basis of proportionality. In this paper the author aims to discuss, debate and deliberate upon the aftermath of the Supreme Court’s Judgement and role of Reserve Bank of India relating to Digital Currency.”
Open Access
Emerging Trends in Aviation Cyber-Security: Study of European Air Traffic Control (Euro-Control)
(University of North Bengal, 2021-09) Loura, Jitender; Singh, Kanwal DP
Civil Aviation is a critical infrastructure. The cyber-attacks on Civil Aviation infrastructure leads to significant impact not only on the safety and security of the airports, airlines and air traffic control units but also on the passengers and staff working at these airports, airlines and air traffic control units. Cyber Security threats in the aviation sector have tremendously increased owing to extensive use of information technology and paucity of appropriate cyber-defence mechanisms and framework. The increase in cyber-attacks in civil aviation are predominantly due to increased use of information technology, higher susceptibility of data, advanced methods and tools of attack, instant and high exposure coupled with increased motivation of attackers. In the following parts, an overview has been given on these very aspects, with a particular focus on recent trends that are present in the aviation industry with special reference to air traffic control. The measures undertaken by Euro Control have also been evaluated. European Union Aviation Safety Agency (EASA) regulates the cyberspace certifications and licensing to keep a check on the technicians and mechanics in aeronautical department. EASA undertakes standardized inspections for monitoring applicability of EU legislations in a uniform manner. EUROCONTROL has been nominated as the Network Manager for Europe and acts as the central unit for managing air traffic flow. To gain an understanding on the possible threats, the various instances where malware or other attacks have rendered losses or caused problems for the aviation industry have also been discussed.
Open Access
Environment Protection and E-Waste Management in India
(University of North Bengal, 2021-09) Singh, Haribansh; Chaturvedi, S. K.
E-waste is nowadays one of the emerging pollutants which draw the attention of people throughout the world. Management of e-waste is a serious concern for the International community. Pollution caused by it is not only for India but for other developed and developing counties. In absence of any specific legislation on E-waste, the options available are Rules and Regulations made by government in India. The latest introduction of the scheme of the government in the form of E-waste (Management) Rules, 2016 provides an opportunity to look into the existing e-waste management process and also ponder on the effectiveness of the same. The unique feature of Environmental regime in India is to have different legislations on different environmental issues. In order to prevent and control water pollution and air pollution, the Water (Prevention & Control) Act, 1974, the Air (Prevention & Control) Act, 1981 have been enacted by the Parliament. To tackle the issues of environmental protection comprehensively, an umbrella and enabling legislation namely, the Environment (Protection) Act, 1986 has been passed. The Rules of 2016 which replaced ‘the E-waste (Management and Handling) Rules, 2011’ made under this Act of 1986. There are many issues which require serious consideration and compelling need to make identification and compliance. The matters pertaining to fraudulent traders, environmentally unsound practices and some changes introduced by the new Rules on e-waste management require severe scrutiny and review. Electronic equipments, especially computers, are often discarded by the people from time to time on invention of latest and sophisticated technology which has rendered existing equipments and related knowledge obsolete and undesirable. The process of recycling or collection or taken back policy of e-waste is the need of the hour.
Open Access
Executive Power to Undo Punishment vis-à-vis Doctrine of Precedent
(University of North Bengal, 2021-09) Dhar Chakraborty, Paramita
One of the powers which have been conferred on the President and Governor of India is the Power of Pardon. Article 72 and Article 161 of the Indian Constitution confers this power on the President and Governor respectively which is to be exercised with a sense of responsibility. A kind of check over misuse of this extraordinary power by the hands of the executive organ of the State is provided through the power of judicial review. The main purpose of the pardoning power of the Executive is to provide a human touch to the judicial process. The very purpose of mercy provisions will be defeated if this human touch is not exercised in a proper way. This paper made an effort to discuss factors influencing the commutation of sentencing and the issues to get a complete understanding of the pardoning power under the Constitution of India.
Open Access
Illegal Migration and Issues of Citizenship in India: A Critical Review
(University of North Bengal, 2021-09) Biswas, Diganta
The citizenship is a subject of entry 17 of Union List of Seventh Schedule of the Constitution and the Govt. of India has amended the Citizenship Act, 1955 in a number of occasions to address the issue relaxing the norms. Migrating population from one country to another is a global problem. Not only India but some developed countries like United Kingdom, the United States of America and Canada are facing the heat of migration particularly from Asian countries. In India, the situation is really grim. Ever since the birth of Bangladesh in 1971, there has been continuous influx of Bangladeshis into India from our Eastern Border while More than 80,000 refugees from West Pakistan, largely Hindus, have been living in Kashmir since Independence without citizenship rights. This paper aims to study the different issues in connection with illegal immigration and scope of citizenship.
Open Access
Impact of Globalisation on Women Workers in Agricultural Sector: An Analysis
(University of North Bengal, 2021-09) Dangal, Reena
This article examines the impact of Globalisation on Women Workers in Agricultural Sector in India. Agriculture sector being unorganised sector it provides direct employment to millions of people including men and women throughout the country. Agriculture is said to be the backbone for the contribution of the economy of a nation where women plays an important role in the development of the economy of a nation. Different types of farming which is practised in India has been mentioned in this article. Further importance of women in agriculture sector and the problems faced by women workers in this sector has been discussed. What are the various Socio-Economic Conditions of Women Workers in India and has also examined about the social security legislation for women. The author in this article has also discussed the topic with some case laws decided by the supreme court of our country. At last the author has concluded the manuscript by pondering some suggestions related to it.
Open Access
Imperative Need of Conscripting a Legal Regime on Blood Transfusion
(University of North Bengal, 2021-09) Rajkhowa, Sriparna
Hospitals, clinics and health care establishment while treating patients are at times required to suggest blood transfusion for various ailments, surgery and cases of accidents. Patients, relatives and attendants are required to fend for themselves due to absence of any comprehensive law and regulation mandating supply of blood through such establishments. The 2800 odd licensed blood banks do not have adequate stock as voluntary blood donations are yet to pick up in the country. Licensing too cane to be introduced after banning of the operation of unlicensed blood banks by the Supreme Court. Hence most of the blood comes either from friends and relatives of patients or commercial donors which may not be of high quality. The endeavour of the author has been to address the issue of absence of a comprehensive legal regime to ensure hygienic collection, safe storage and supply of whole blood and blood components. The resolutions, guidelines and guidance documents of the World Health Organisation as well the National Blood Policy has been analysed in relation to the implementation agencies. The provisions of the Drugs and Cosmetics Act and the Clinical Establishments Act in relation to blood banks safe transfusion reveal the shortcomings and highlight the necessity of a specific law on this score. Analysis of judgments of the Supreme Court and recommendations of the Consumer Forums reveal and reflect the current state of affairs in the shape of much avoidable harm suffered by patients either on account of transfusion of contaminated blood or negligence on the part of health care professions involved in the process. Such a measure can lead to promotion of safe and healthy blood transfusion by encouraging donors targeting at cent percent voluntary bold donation. It can also lead to measures at accountability.
Open Access
In Search of an Identity
(University of North Bengal, 2021-09) Subedi, Shraddha
Human being is always in need of identity, he is always ascribed to a particular sex or gender. The moment he is born he is accorded a gender. His or her gender always plays an important task for his identity. This gender identity becomes more important when necessary biological development starts to take place in his body. The situation becomes gruesome when biological development may not be in compliance with the biological development which is acceptable to the society. The norm of the society is only to accept the male and female version of the gender and nothing more than that. Gender recognition, apart from the male and female, has never been talked about. In common parlance, the excluded gender is the transgender or the third gender and more precisely, the LGBT. The third gender group has horrific stories to share with and it is an irony that we, as society have never understood them, be it in terms of their biological needs, their existence, their privacy and encompassing all, their right to life. The present paper makes an endeavour to analyse the socio-legal condition of the transgender and how far they have reached in their battle to live with dignity.
Open Access
Infringement of Right to Privacy by Naming and Shaming of Accused
(University of North Bengal, 2021-09) Kiyawat, Pooja
In what was broadly termed by the Government as the panacea for tackling the alleged rogue elements of the society, the Uttar Pradesh State Government decided to display the photographs, names and addresses of those accused of vandalism in Lucknow in December 2019 in the wake of the enactment of the controversial Citizenship (Amendment) Act 2019. The public display of the personal data of the accused was supposedly intended at ‘naming and shaming’ and thus deterring the accused from committing crimes, an act which certainly flies in the face of human dignity. The role of human dignity in our constitutional scheme is essentially a normative one. It ensures the unity of Human Rights into one bracket. While human dignity serves as the normative basis for the constitutional rights, it also serves as the foundation of parameter that determines the scope of all the constitutional rights.
Open Access
Joint Forest Management and Community Participation: A Study in Indian Perspective
(University of North Bengal, 2021-09) Biswas, Sujit Kumar; Rai, Ashima
The Joint Forest Management Programme (JFM) has been a major thrust area of forest management over the last two decades. The programme is operating with main objective of forest management and empowerment of local communities through sustainable resource utilisation. The effective and meaningful involvement of local communities has been attempted under the Joint forest Management system in India by linking socioeconomic incentives and forest development. The present paper will provide a brief overview of the policy makers regarding the effectiveness of the programme operationalised in different parts of the country. It further tries to review the process of JFM and factors promoting community participation for forest management under the regime of JFM in India.
Open Access
Labour Rights under the Indian Labour Legislations: A Bird’s Eye View on the Protection of Rights of Labourers under the Recently Introduced Labour Code of India
(University of North Bengal, 2021-09) Debnath, Dipankar
India, one of the most labour-intensive countries of the world, has finally taken a leap of faith and codified 44 of its national-level labour laws into four broad codes on ‘wages’, ‘industrial relations’, ‘social security’ and ‘occupational safety and hea lth’. This has triggered a longstanding controversy between the stakeholder and the government as, according to the government the existing labour laws have created hindrances to the Indian manufacturing sectors as well as it discourages foreign companies to set up their respective wings within the country. This in turn amounted to huge loss to the country’s income and revenue. The Code has received criticism from trade unions and activists however, it has been welcome on the ground that the Code would help in reviving India’s economy involving two-fold benefits providing to the workers as well as to the industrialists. It has been argued that India’s existing labour laws as remnants of an archaic past considering them as ineffective for workers and burdensome on the employer and should be dismantled. In the above backdrop, the pertinent questions that remain to be examined are whether the recent drastic changes in the various labour laws are going to fulfil the purpose fostering the economic development of the country at the cost of various rights of the labours? Whether such steps on the part of the governments are in consonance with the constitutional provisions? Whether the reformations in labour laws would help the government’s initiative to implement the liberalisations concept attracting the foreign investors? Do we need a sustainable strong manufacturing sector? This paper has focused on the pros and cons of the recently introduced Labour Code in the light of above questions and made an attempt to dig out whether the Code would be successful in protecting the rights of the labourers?
Open Access
LAW RELATING TO SEXUAL HARASSMENT AT WORK (2015) by Alok Bhasin, Eastern Book Company, Lucknow. Pp. 998, Price: Rs. 1250
(University of North Bengal, 2021-09) Basu, Upala
Open Access
LGBT Movement in India: The Journey towards an Inclusive Society
(University of North Bengal, 2021-09) Das, Sagnika
Equality in the society between the individuals irrespective of race, sex, religion, caste, place of birth or colour is a sign of a progressive society as it lays the path towards stability and harmony. Every human being has the right to be treated equally. However, Social hegemony2has tendency to exclude persons with “differences” which violates their inalienable Basic Human Rights. Till the year 2018, the LGBT community in India was suffering from exclusion. These people were considered to be either sex workers or criminals. They demanded a positive radical social change. The LGBT movement took the urge for tolerance and inclusion to a whole new level. The judiciary responded to their plea for equality first in Suresh Kumar Koushalv. Naz Foundation3 which culminated in Navtej Singh Johar v. Union of India4 where the Supreme Court upheld the constitutional rights of the LGBTQ+ people. In this backdrop, the present paper intends to point out the factors which led to inclusion of the LGBTQ+ community and led to social transformation.
Open Access
Lаnd Reforms Regulаtion to Unlock Potentiаl of Lаnd Resources for Development in Аrunаchаl Prаdesh
(University of North Bengal, 2021-09) Sinhа, G N; Shаrmа, Ishitа
Аrunаchаl Prаdesh is а tribаl territory in North Eаstern Indiа. This stаte hаs been cut off from the mаinstreаm Indiа in mаtters of connectivity аnd development. Tribes in Аrunаchаl Prаdesh hаve hаd customаry rights to lаnd under аge old customs. This wаs duly recognized in the Constitution of Indiа under Аrticle 13. People in the stаte relied on subsistence аgriculture, аnd vаried forms of trаde, crаft аnd workmаnship of forest products. Their economy wаs not monetized. However, аfter independence, development schemes hаve been implemented аnd governmentаl intervention in the stаte increаsed. Development plаnned аfter the 10th Five-Yeаr Plаn emphаsized speedy growth in the stаte. It envisаged to promote entrepreneurship in the tribаl communities. However, people found а bottleneck in their endeаvors to set up new industriаl аnd business enterprises. This was relаted to lаnd. Although people held lаrge аreаs of lаnd by wаy of occupаtion, they were unаble to obtаin bank loаns for setting up new units. This wаs becаuse bаnks аnd finаnciаl institution did not recognize the Lаnd Possession Certificаtes (LPC) issued by the government. The government fаced difficulty in аcquiring lаnd for public purposes. Therefore, the government decided to аmend the Lаnd Аct 2000 of Аrunаchаl Prаdesh, for grаnting lаnd ownership or title to lаnd. This pаper presents regime of lаw on lаnd before and after the 2018 amendment of the Land Act. It is hoped thаt the 2018 аmendment will encourаge people in the stаte to setup economic units for speedy economic development.
Open Access
POWER OF PRECEDENT, by Michael J. Gerhardt. New York: Oxford University Press, 2008
(University of North Bengal, 2021-09) Bandyopadhyay, Suparna
Open Access
Realising the Rights of the Senior Citizens: An International Human Rights Law Perspective
(University of North Bengal, 2021-09) Bhowmik, Sarbani; Bhattacharjee, Ripon
The senior citizens throughout the world face the maximum challenges, abuse and discrimination restricting the realization of their human rights and thus, categorizing them into the vulnerable groups. Ageing is a natural phenomenon yet the aged population are traditionally concerned as burden and problems because they are nonfunctional, non-productive and non-active. Amongst the vulnerable groups, the United Nations has time to time recognized and revised the human rights pertaining to women, children, migrant workers and persons with disabilities but negligible focus has been given on the rights of the senior citizens as a distinct category concerning their deserving rights, extraordinary care and protection under the ambit of human rights law. Even though the rights of the senior citizens have been neglected but over few years they have become a popular agenda of professional media, NGOs and certain States which have pushed United Nations to identify the special rights, care and protection of the senior citizens in the international scenario. However, they are not adequate; reforms and revisions are yet to follow. Due to decline in mortality rate and longer life expectancy there has been an unprecedented growth in the world’s senior citizen’s population thereby making their group a more prominent one wherein realization of their human rights becomes inevitable. This paper intends to focus on the plight of the senior citizens from their jeopardized rights so that they get the spotlight and priority both from the national and international scenario in their generic framework. This paper would mainly focus on the contributions of the senior citizens and their rights by the virtue of being a human. It will examine the key features of the United Nations Convention on the Rights of Older Persons and other instruments that compromises the care and protection and the rights of the senior citizens both in the international as well as national scenario. And finally, it will evaluate the gaps and discuss the optimistic contemporary attitude to describe old age as a productive category, rather than being a burden, with a new social meaning and positive attitude.
Open Access
Significance of TPDS in the Light of Indian Legal Regime - An Overview
(University of North Bengal, 2021-09) Sarkar, Pratim
Poverty, hunger and food insecurity omnipresent reality in India. Government has implemented many programmes, schemes and policies to control poverty and foster development. Right to food is a basic human right and deeply linked with right to live with dignity. Articles 21, 39(a) & 27 of the Constitution mandates the states to provide adequate means of livelihood, raise the level of nutrition and standard of living of the citizens. As per the data report of national and international agencies, a large number people in India are suffering from malnutrition, undernourished, underweight and stunted. In many cases Indian Judiciary has taken serious concern about the socioeconomic offences. Targeted Public Distribution System is a major and wide-ranging poverty alleviation programme in India that leads towards the socio-economic welfare of the people. Essential foodstuffs like rice, sugar, wheat, kerosene and other goods are supplied to people through this system at a cheap price. Though it is commendable step to ensure food security to the needy people but could not achieve its desired results because of widespread corruption, leakage of funds and other reasons.