Indian Journal of Law and Justice, Vol. 11, No. 02

Permanent URI for this collectionhttps://ir.nbu.ac.in/handle/123456789/3667

EDITORIAL

Law has been a dynamic concept all the time. It has various dimensions depending upon the period of time as well as its applicability to the nature of society in which it is to operate. The basic concepts of law remain changing with the changing situation of the social norms, the political strategy and the needs of the common man. The rule of law is the slogan of the day may it be on one side or the other. The act which is legal today may be an offence tomorrow and the vice-versa. At the same time an act which is legal in one part of the world may be a crime in other part of the world. Even in a country a “Law” may be valid in a part of its territory may be illegal and punishable in the other part. The law cannot be studied in isolation. In such a decimal context a common man wonders about to learn what is the true law? The answer of the question cannot be given on looking at the statutory law alone. One has to draw the conspectus of the legislative enactment, judicial interpretation and the opinion of the jurists. It is a sheer paradox that everyone is supposed to know the law of the land while the fact remains that now a days nobody knows the whole law of the land. The Legislators, in general, make law, the judges interpret it and the academics teach it in addition to study analysis and research. Even then the ambiguity remains unclear after repeated amendments. This problem poses a complex issue before a modern man how to know the “law in force”. The only solution may be found in deep analysis and research on various aspects of the law. A humble attempt has been made by bringing out the present publication.

The Department of Law, University of North Bengal, although a recent centre of legal education in comparison to others in North India, has played a significant role. The academic excellence of any institution may be judged by the achievements of its students and performance of its teachers in addition to the given infrastructure and the facilities available for such goals. Present shape of the journal has been the product of a long process and initiatives undertaken by our faculty members. The present publication is the testimony to the fact which will go a long way in spreading the inference of multi-faceted research in various fields of law. That may be the source of knowledge on some of the areas of legal discussion.

For a long time we are thinking about to publish a law journal from our department. The ideas were on our mind for a couple of years, to give it a present form that have been possible today. In this academic venture the moral support given by our former Vice-Chancellor Professor Arunabha Basumajumdar is commendable at the same time the journal could see the light of the day by the support of my esteemed colleagues, in particular, and the whole academic world in general. Over and above to maintain the above spirit, it is not enough, the continual research and publication is necessary. I have firm belief that I would be able to fulfil the need of the hour by your constant support. Such kind of level of confidence in our mind became possible mainly because of successfully completion of number of national and international seminars and conferences by our Department with overwhelming participation and support from every part of our country and also from different countries including SAARC countries.

We firmly believe on one principle that our journal should ideally be a platform for exchange of ideas and dissemination of information not only from established legal luminaries but also for the young faculties and researchers in the field of law and allied subjects who will be the future leaders in the field of legal education in our country.

The present issue of the journal may have some errors and I academically take responsibility for the same in the given circumstances. I would welcome any suggestion and opinion for improvement for the next issue of the journal.

Prof. (Dr.) Gangotri Chakraborty
Chief Editor

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Now showing 1 - 20 of 24

Open Access
Accreditation of Centres of Legal Education in India
(University of North Bengal, 2020-09) Roy Mammen, Rhea
In India, higher education has witnessed considerable development since Independence with a remarkable growth in the number of Higher Education institutions (HEIs). Overall oversight of these HEIs is under the purview of the University Grants Commission (UGC) with support being provided by Statutory bodies as relevant to the different courses under consideration. In particular, the Bar Council of India (BCI) serves to offer regulatory insight for legal education in the country. Accreditation of HEIs was introduced in India in recognition of the significance of the quality of higher education relating to the achievement of the objectives of higher education. This article therefore attempts to scrutinise the current process of accreditation of HEIs in India under the auspices of the NAAC (National Assessment and Accreditation Council) with particular emphasis on centres of legal education. In this regard, the article scrutinises the regulatory authorities and quality reforms for higher education, and the relevance of accreditation and NAAC. Accreditation of centres of legal education as per the NAAC guidelines is also scrutinised along with the guidelines for accreditation specified by the BCI. In the light of these, the article provides recommendations to enhance the future accreditation of centres of legal education in India.
Open Access
Analysis of Early Childhood Development in India
(University of North Bengal, 2020-09) Laskar, Salma Begum; Kumar, Umesh
The early childhood development is basically the development of right of children from zero to six years. Almost 90% of the brain develops during the age of 5 years. The development of child includes the physical, emotional, social, psychological and the like which are required to have a good and healthy life. If these developments will not take place during the initial years, a person’s life will have risk of impaired growth and development. Children during their early childhood shall be given adequate nutrition for their growth, health care facilities regularly like vaccination etc, care and protection and play and learning. If a child receives proper favorable inputs of healthy life, he will grow and prosper in life and if a child receives unfavorable environment, he will be burden to society and the state will have to bear his responsibility throughout his life. Children are the future of our nation and it is the duty of the citizen to give them their required input to have healthy life. The Central as well as the State government initiated several times various policies and schemes to meet the challenges faced by the children for their proper growth and development. Many international conventions and declarations were made to cope up with the problems faced by children in different corners of the world. The judiciary has also framed guidelines and issued directions protecting the best interest of children.
Open Access
Capital Punishment in India
(University of North Bengal, 2020-09) Barot, Mehul P.; Lukka, Meet D.; Golani, Keyur V.
Indiaiisaiwelldevelopingcountry at the sametime lots of crime ratesiareincreasinginowadays.ThereiareilotsiofilegislationiiniIndiaitoistopiandicontroli crimes,ievenithoughitheicrimeiratesiareiincreasingibecauseitheipunishmentsiareinotisuf ficientiforitheicrimes.Theipunishmens shouldbeisevereitoireduceitheicrimeirate.iAllipunishmentsiareibased on the same motive to give penalty for the wrongdoer. There are different kinds ofpunishmentiiniIndiaisuchiasicapitalipunishment,ilifeiimprisonment,iimprisonmentietc. Capitalipunishmentiisiknowniasitheimostisevereiformiofipunishment.Thisipaper says about the status of capital punishment all around the world andialsoidefinesitheiconceptioficapitalioffence.iItialsoiexplainsiaboutitheimodesioficapi talipunishmentiiniIndia.
Open Access
Constitutionalism to Transformative Constitutionalism: The Changing Role of the Judiciary
(University of North Bengal, 2020-09) Kundu, Indrani
Constitutionalism ensures protection of rights of its citizens. The Constitutional designers provided two models to ensure the same. These two models area. Parliamentary Sovereignty- It postulates that the legislature is the legitimate forum for safeguarding citizen’s rights. b. Judicial Supremacy- It emphasizes the significance of the Court to safeguard rights of citizens. Judicial Supremacy proliferated post Second World War as a reaction to the often violation of rights of minority group. The probability of imperilment of rights of groups having inadequate representation in the Parliament was supposedly more in Parliamentary Sovereignty. Judicial Supremacy ensured better protection of rights because it had the power to review and strike down any rights-infringing legislation. In almost all the countries the Apex Court is vested with the ultimate power of interpretation of the Constitution to ensure protection of rights. Judicial Review and Constitutional Interpretation by the Judiciary has led to the introduction of ‘Transformative Constitutionalism’. Transformative Constitutionalism recognizes the changing nature of the Society and accepts the Constitution as a transformative document rather than a rigid one. In this backdrop this paper undertakes the study of the written Constitution of India and the unwritten Constitution of the United Kingdom. The object of this study is to locate any shift in the principles of Constitutionalism in the Constitutions of these two countries.
Open Access
Crime Against Senior Citizens in India: A Glaring Reality
(University of North Bengal, 2020-09) Dhar Sarkar, Madhumita; Acharjee, Madhumita
With the advent of human civilization a plethora of concepts developed simultaneously such as society, family and property. Another concept that was developing at the same time was crime. Crime has been defined differently by different scholars; one general meaning of crime is an act which is violation of public law and for which punishment is given by the state. Crime can be of different categories as the penal provisions provide for crimes against human body, property, state, public order and so on. The National Crime Record Bureau (NCRB) in India which measures crime rate in India has introduced a new category under the heading crimes against senior citizens since 2014. This new entry makes it evident that senior citizens and parents are also subject to various crimes in our society. Senior citizens and parents are supposed to be maintained and taken care of. Instead, in the present times, many glaring examples of elderly abuse are in the limelight. The fact that NCRB has given entry to crimes against senior citizens only since 2014 does not signify that there was no crime against the elderly people before 2014. Rather, it indicates that there has been a steep rise in the number of reported cases against senior citizens recently. In this paper an attempt will be made to analyze the scenario of crimes against senior citizens by analyzing the statistics of National Crime Record Bureau of five years and by reviewing few leading newspaper articles covering the news of abuse or crime against senior citizens.
Open Access
Cross Border Mergers in India in the IBC Era: A Legal Inquiry
(University of North Bengal, 2020-09) Tiwari, Avin
The Insolvency and Bankruptcy Code, 2016 (IBC), since its enactment, has been a subject matter of intense deliberation, both in the trade as well as the legal fraternity. Strong opinions are polarised between those who consider it a necessary step and those who classify it as a ‘draconian legislation'. In 2018, certain provisions of the IBC were amended which introduced sweeping changes in both the substantive as well as the procedural aspects relating to the insolvency process. The Indian economy grew unprecedentedly while most economies were suffering from economic depression. This growth is attributed to the inflow of FDI into India by way of cross-border mergers & acquisitions. IBC is expected to play a significant role in establishing a solid legal platform where cross border mergers & acquisitions in India can flourish in mutual coexistence with all other laws leading to wholesome economic development. Currently, the legal framework for cross border insolvency in India concerning foreign proceedings, the participation of foreign investors, recognition of foreign courts, and uniformity in relief provided etc. is unclear and at a nascent stage. This creates many legal hassles and confusion in the finalisation of cross border merger deals and makes the business climate uncertain. The authors attempt in earnest, to critically analyse the legal framework with respect to IBC and study the complexities of cross-border insolvency in the Indian context, and set out the broad principles of the UNCITRAL Model Law and determine the relevance of Gibbs rule in the insolvency resolution process to assess on a macroeconomic level, the impact of IBC on cross border mergers and acquisitions in India.
Open Access
Cyber Crime Vis-À-Vis Violation of Massive Human Rights and Legislative Efficacy in India
(University of North Bengal, 2020-09) Herode, Pramod J.
Cyber crime is the phenomenon in the age of Information and Technology; neither has it geographical boundaries nor typological limit. The enormous growth in I.T. has closely intersected social life of an individual to such an extent that India stands at second number in the array of high numbers of users of internet. Under the garb of paper less governance, it is adopted as e-governance by public and private sectors. It has now close concern with right to privacy a basic human right of individual. Considering the wider amplitude of cyber crime legislative mechanism has been provided by the government as I. T. Act specifically enacted and certain provisions of IPC and Personal Data Protection Bill, 2019 are for additional support. However, epistemological data of ever increasing cyber crime shows inefficiency of legal framework at two places one efficacy of law and implementation of law. investigating agencies are not equipped with update knowledge and infrastructure, consequently victim is deprived of justice in consequence alarming situation is inevitably warrant for prompt and efficient legal and implementing mechanism which is sine qua non for public security.
Open Access
Interface Between FRAND Licensing of Standard Essential Patents (SEPS) and Competition Law: Issues and Challenges
(University of North Bengal, 2020-09) Devarhubli, Gururaj D.
Standards play a very important role in our day-to-day lives. Technically, standards are technical specifications that seek to provide a common design for a product or process. Globalisation and the increase in economic transactions between different countries have made it imperative to develop certain international standards for technology manufactured by industries. Patents and standards sever the same purpose, and that is fostering innovation in technology. However, the implementation of these standards through the licensing system must be such that it mutually benefits the patent holder as well as the company that uses the patent and the royalties must be paid on fair and reasonable terms. There is no legislative definition that exists for SEPs and there have been a significant rise in litigation involving SEPs in India, with most of the disputes pertaining to granting of injunction as a result of their infringement. The present article highlights the conflict of availability of SEPs on FRAND terms without affecting the Competition law and also presents solutions and suggestions for enhanced transparency and accessibility to patented technology that cover standards and the proper functioning of the licensing system on fair and reasonable terms. Thus, the researcher in the present article highlights the following: (a) The various problems that exist in licensing of Standard Essential Patents over Fair, Reasonable and Non-Discriminatory terms (b) The need and method of regulating the obligations of Standard Essential Patent holders and their licenses in return of reasonable royalties (c) The position in various jurisdictions and drawing a comparison with suggestions for solving problems like patent holdups, patent pools, patent stocking, etc. (d) The judicial approach with respect to SEPs and obligations of SEP holders.
Open Access
Judicial Independence and Impartiality: A Sinking Belief
(University of North Bengal, 2020-09) Naveed Naseem; Qayoom, Shaista
For efficient working of a republican setup rooted totally on Rule of law, an unbiased and impartial judiciary is indispensable. The percept of judicial independence and impartiality has brought greater significance in the countries with written constitutions, where the executive has been conferred with wide authority to sprint the government and the likelihood of abuse of such power is considerably high. In a country like India where judiciary is regarded as the watchdog of democracy, it undoubtedly becomes essential that judges in their individual capacities and the judiciary as a whole are unbiased and neutral of all interior and exterior influences in order to guard and shield the philosophical and conceptual phrases used in the preamble of the Indian Constitution. Besides, an impartial and independent choice mechanism is a sure safeguard for ensuring that persons with dubious integrity do not occupy high judicial offices, thereby enhancing public’s have faith and self assurance in justice delivery mechanism of the country. Considering the significance which an unelected judiciary wheels in our system, the screening of judges to man the superior courts cannot be confined to mere technical and professional competence and their approaches and philosophies have to be screened extensively. The paper attempts to reflect the significance adhered to the principle of independent and impartial judiciary and the urgency to defend and hold such standards earlier than its dimensions turn into just indistinct and academic concepts. The continuous government stalling in the appointment of judges to the Superior Courts, nominating judges to political offices and occasionally unscrupulous conduct by some judges in the recent past, where judiciary on most part seemed to side with the executive, has raised questions on independent and impartial identity of judiciary. Should we permit the constitutional democracy to live to tell the tale or the authoritarian rule to be allowed is these days the important query before the masters of the country.
Open Access
Jurisprudence of Delivery in Consumer Contract in ECommerce: A Critical Appraisal of The Consumer Protection Law in India
(University of North Bengal, 2020-09) Jehirul, Islam
E-commerce market is growing tremendously due to the many advantages it provides to consumers and traders as well. On the other hand, concerns of consumer with respect to delayed delivery, wrong delivery, non-delivery and improper information pertaining to delivery of goods or services are also evident from the numbers of online consumer complaints. The Consumer Protection Act, 1986 and the Sale of Goods Act, 1930 may sufficiently protect consumers in traditional market; however, both the Acts fail to recognise the unique features of e-commerce, which have raised the new forms unease to consumers. The provisions of the newly enacted Consumer Protection Act, 2019 are structurally weak and inefficient to protect consumers in e-commerce
Open Access
Jute and Sustainable Development- A Study of Its Socio- Economic and Environmental Prospects
(University of North Bengal, 2020-09) Chakraborty, Ruchita
Jute is a natural plant fibre that has been traditionally used as a packaging textile, but over the past decades, it has been rapidly replaced with synthetic substitutes. However, in the wake of the global consciousness regarding environmental crisis and sustainable development, the rejuvenation of the industry seems to answer a number of calls. On one hand, its usage in the packaging industry can reduce plastic wastes considerably. Again, in the backdrop of the environmental international instruments in recent years, jute can be a viable alternative to achieve the goals towards maintaining ecological balance. On the other hand, the industry being a source of income for more than 40 lakh families, its revival is expected to benefit the nation socio-economically as well. In this context this paper explores the usage of the fibre as an environmental friendly alternative to various widely used synthetic commodities. It also locates the different environmental standards set by the world community that can be achieved with its increased usage. Further, in the context of the two important recent instruments- the Sustainable Development Goals and the Paris Climate Pact, this paper examines the various dimensions that the golden fibre can effectively answer.
Open Access
KEBANG: A Self-Governing Indigenous Institution of the Adi Tribe of Arunachal Pradesh
(University of North Bengal, 2020-09) Koyu, Jumri; Singh, Pradeep
Besides being a land of rising sun, the Arunachal Pradesh is having so many diverse dispute resolution mechanisms, which runs parallel to the adversarial courts. The Kebang of the Adi tribe is one such indigenous traditional system, which also looks after the day-to-day affairs of the Adi villages. Unlike courts, the Adi Kebang is a nonadversarial justice delivery system having belief in amicable settlement of the disputes outside the courts. The present paper is an attempt to make readers understand about the working of Kebang in a very simple and lucid manner. The research study also reflects some views that testifies the relevance of Kebang system in the present times.
Open Access
Legislation and Dangers in Road Usage
(University of North Bengal, 2020-09) Akhtarul, Hanif; Bhardwaj, Somdutt; Vahini, Versha
Open Access
Lockdown and Quarantine during Coronavirus Pandemic in India: Untangling a Tangle of Socio-Economic and Legal Concerns
(University of North Bengal, 2020-09) Verma, Harish
Coronavirus (COVID-19) outbreak with very little initial information about its origin, symptoms, transmission, incubation and longer term effects has created a population health crisis in the World. Sudden occurrence of this deadly virus, has forced governments across the World to put in action several public health interventions to contain it. In India too, the governments used quarantine, national lockdowns, curfews, isolation, social distancing, and massive screenings at various places, health declarations and wearing mask in public as main public health interventions to prevent spreading of the virus. However, in absence of vaccine and antibiotics to avert this virus, the national lockdowns and quarantine have been important component of infection control preparedness in India. But, forcible quarantine and prolonged lockdowns raised several socio-economic and legal concerns which remained unnoticed and unaddressed while dealing with COVID-19. Having this background in mind, the present paper aims to understand the meaning and concept of lockdown and quarantine. The study further throws light on social, economic and legal concerns associated with quarantine and lockdowns strategies used to mitigate corona virus pandemic. Attempts have been made to untangle a tangle of social, economic and legal concerns, which were needed sufficient attention in COVID- 19 preparedness, planning and response. The last part of the paper deals with conclusion. The study is purely theoretical in nature hence secondary data like books, news clippings, law journals and reports have been trusted for the completion of the study.
Open Access
Narco-Analysis in Criminal Investigation and Trial: A Conspectus
(University of North Bengal, 2020-09) Mishra, Praveen
In the present decade commission of crime has qualitatively changed. Offenders have started using new techniques and methods of commission of crimes. They are also getting technology based logistic support in carrying out their nefarious acts. Perpetrators of crime either leave little evidence or no evidence in the course of the commission of crime. Even if the witnesses are available they do not turn up to help the investigators, prosecutors or depose in courts. Traditional methods of criminal investigation which have been in practice in India for a long time have failed to yield concrete results. All this has resulted in low conviction rate. For the proper administration of Criminal Justice and to ensure the confidence of the people in the criminal justice system it is necessary that new techniques of crime detection are employed and the offenders are brought to justice. So, it has become very necessary for the investigators and the criminal courts to resort to the advancement of forensic medicine in administration of Criminal Justice. Narco-Analysis test commonly known as “truth Serum test” is one of such techniques employed by investigators. But the use of Narco- Analysis has been hotly debated at the national as well as International level. Both the sides boast of having support of law enforcement agencies, Social thinkers, Human Right activists and Jurists. Though the issue has been hotly debated, there is a dearth of studies on the jurisprudence of Narco- Analysis. The present study is an attempt to examine the various issues involved in the use of Narco- Analysis in criminal Investigation.
Open Access
Right to Privacy as a Fundamental Right in Absence of Express Statutory Provisions: A Critical Analysis of Justice K.S.Puttaswamy (Retd.) V. Union of India
(University of North Bengal, 2020-09) Misra, Bibhabasu
Inalienable rights are inherent in Human called as natural rights as for example “Right to privacy.” Positive law made by legislature regulate it according to States’ reasonable necessity. These limitations are mentioned in the Constitution itself. In India, right to privacy has been recently recognised by the Supreme Court. In India there was a bill related to Right to privacy. The judgments of the Court are mainly corrective in nature and enforceable by the Contempt of Courts Act, 1971 (Civil Contempt and Criminal Contempt.) or with the help of Article 142 and 144 of Indian constitution. In absence of specific legislation, we can read the right to privacy in statutes like IPC, CRPC, Easement, etc. If we file a petition under the Contempt of Courts Act, 1971; it will generate procedural difficulties, that is permission needs to be taken from Advocate General. Thus, corrective approach of the Court is only remedy in absence of express statutory provisions.
Open Access
Role of Indigenous and Tribal Peoples in Eco System Services: Time to Look into the Pages of the Past for an Answer
(University of North Bengal, 2020-09) Chakrabarty, Shambhu Prasad
Indigenous and tribal communities all across the world have taken care of the natural resources they have been living in for centuries. The various traditional knowledge's have transferred through generations and has been following them as ancestral knowledge. A lot many efforts have been made by these communities and serious contributions have been made in eco-system services by them. Their life has been sustainable and have respected natural resources more than their greed. Research has unraveled various method of similar eco system services which have been documented and practices till date. This practice requires to be imitated specially in jurisdictions with many indigenous, aboriginal and tribal communities specially in the area of conservation of indigenous medicines and water resources.
Open Access
Role of Special Juvenile Police Unit in Interface with Juvenile in Conflict with Law
(University of North Bengal, 2020-09) Singh, Kavita
Special Juvenile Police Unit has to shoulder great responsibility while dealing with Child in Conflict with law and Children in need of Care and Protection. While discharging this duty along with other duties it is often seen that they violate human rights principles. The Juvenile Justice (Care and Protection) Act 2015 and Model Rules 2016 provide that these members of Special Juvenile Police Units should take Child Friendly approach. In other words they have to discharge their duties in Children Friendly manner. This paper attempts to give a road map to these officers who are designated as member of Special Juvenile Police Units handling cases relating to children regarding the position of law, judicial trend and also provides dos and don'ts in their approach.
Open Access
Sexuality, Law and Constitution Beyond Gender Binary in India: Jud icial Approach
(University of North Bengal, 2020-09) Arora, Tarun
Across the world, discriminatory laws made many years ago continue to affect lives of many people, criminalizing same sex relations and failing to protect women and girls…… I am all too aware that these laws were often put in place by my own country. They were wrong then, and they are wrong now. As the UK’s Prime Minister, I deeply regret both the fact that such laws were introduced and the legacy of discrimination, violence and even death that persists today.
Open Access
Singapore Convention on Mediation and India
(University of North Bengal, 2020-09) Ahuja, V. K.
With the adoption of Singapore Convention on Mediation, mediation is likely to get prominence as the settlement agreement conducted between the parties to the dispute through mediation shall be binding and may be enforced in the Party to Convention where the relief has been sought. At national level also, the countries have also promoted mediation for dispute resolution. India is also promoting mediation in its jurisdiction to bring the backlog of cases down substantially. India is yet to bring out a full-fledged parliamentary statute on mediation like it has in case of arbitration and conciliation. It is in the interest of the country to ratify the Singapore Convention.