Rule of Law & its Applicability in India

Rule of Law & its Applicability in India

Anirudh Sharma and Ayushi Singh
National University of Study and Research in Law, Ranchi

The concept of Rule of Law means predominance of an ordinary law over each and every citizen, regardless of that citizen’s powers. The makers of the Indian Constitution incorporated the features of Rule of Law so that India is governed only by law and not by any ruler or by the nominated representatives of the people. The paper begins by providing the origin of the term and concept of Rule of Law. It shows how this concept was recognized in some countries in one or the other form. The paper majorly aims to discuss about the adoption of Rule of Law and its applicability in India. This includes discussion about various articles incorporated in the Constitution by the makers to secure certain basic features of the Rule of Law, a number of judgments delivered by the judges applying this concept and explaining its importance, including the case which is known to be a black mark on the Rule of Law. It also discusses about how despite various statutory safeguards and judgments, this concept is violated in India. The paper finally aims to answer whether the concept of Rule of Law is severely implemented and followed in India; whether the features given by A. V. Dicey are strictly incorporated; and whether the statutory safeguards and judgments are enough to secure Rule of Law in India. At last, it discusses about the relationship between democracy and Rule of Law.

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Posted by Suvid Chaturvedi in Vol. 2 Number 3, Volume 2, 0 comments
An Analysis of Prof. Hart’s ‘The Concept of Law’

An Analysis of Prof. Hart’s ‘The Concept of Law’

Bagada Ram Rathore
National University of Study and Research in Law, Ranchi

The concept of Rule of Law means predominance of an ordinary law over each and every citizen, regardless of that citizen’s powers. The makers of the Indian Constitution incorporated the features of Rule of Law so that India is governed only by law and not by any ruler or by the nominated representatives of the people. The paper begins by providing the origin of the term and concept of Rule of Law. It shows how this concept was recognized in some countries in one or the other form. The paper majorly aims to discuss about the adoption of Rule of Law and its applicability in India. This includes discussion about various articles incorporated in the Constitution by the makers to secure certain basic features of the Rule of Law, a number of judgments delivered by the judges applying this concept and explaining its importance, including the case which is known to be a black mark on the Rule of Law. It also discusses about how despite various statutory safeguards and judgments, this concept is violated in India. The paper finally aims to answer whether the concept of Rule of Law is severely implemented and followed in India; whether the features given by A. V. Dicey are strictly incorporated; and whether the statutory safeguards and judgments are enough to secure Rule of Law in India. At last, it discusses about the relationship between democracy and Rule of Law.

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Posted by Suvid Chaturvedi in Vol. 2 Number 3, Volume 2, 0 comments
Gender Equality- Access to the Places of Worship

Gender Equality- Access to the Places of Worship

Cheenu Sharma
Army Institute of Law, Mohali

Defining the word ‘gender’ is a simple task but, when we emphasize on the meaning of ‘equality’ then it is a bit complex task. In simple language, Gender means any sex – be it male, female or any transgender and Equality means treating everyone equal in the eyes of law irrespective of any caste, colour, race, sex, religion, and region. A blend of these two words leads to a wider concept of “Gender Equality”. ‘Access’ means entry or way to reach a particular thing and ‘Worship place’ denotes any place to which some religious sentiments are attached or is specially designed structure or consecrated space where individuals or a group of people come to perform acts of devotion, veneration, or any religious study. By putting some legal reflections on these terms, we get some wider connotations related to Gender equality and Access to worship places. According to our Indian Constitution, Equality before the law means that equality among equals and that the law should treat everyone equal be it while giving punishments or while protecting rights. The right to sue and be sued, for the same kind of action should be same for all citizens of full age.

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Copyleft!

Copyleft!

Dhwani Bhinde
Pravin Gandhi College of Law, The University of Mumbai

As compared to copyright, copyleft is a fairly new concept in the international arena. Copylefting was kind of a rebellious movement against copyrighting the work which was the sole authority of its creator and he could prohibit recipients from reproducing, adapting, or distributing copies of his work. On the contrary to this, copyleft licensing involved a process wherein the creator of the work himself gave permission to the receiver of the work, to reproduce, adapt or distribute his work provided the resulting copies or adaptations are bound by same licensing agreement. Thus, copyleft gave a wider scope to the public to access data freely and thus revolutionising the whole software industry. With the technological advancements, many people are found guilty of copyright infringement directly or indirectly and monopolizing the rights of the creator has inhibited the development of that particular work since it is a sole prerogative of the creator and any modifications made there under would result into infringement as well as invites paying hefty royalty or compensation to the creator of the work. Copylefting would ensure that though the author gives the right to modification to work, its adaptation etc. it be done under compatible term and all the right of protection of the author are not suspended. It can help in growth and development of that art, concept or a literature and would prevent its stagnation. Also, copyrighting has become extremely stringent paving ways to illegal infringement. Considering issues faced by copyrighting, copyleft licensing can be given a thought to. This paper gives an insight on concept of Copyleft, how it evolved, why it was necessary, how it works, does it nullify the concept of copyrighting etc. The paper also mentions about the commercial uses of copyleft work, as well as copyleft with context to India.

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Posted by Suvid Chaturvedi in Vol. 2 Number 3, Volume 2, 0 comments
Trafficking and Sexual Violence on Women- A Tactic during Armed Conflicts

Trafficking and Sexual Violence on Women- A Tactic during Armed Conflicts

Fowmina C.
VIT School of Law, Chennai

In view to analyze the relation between trafficking and armed conflicts, the paper recognizes between current armed conflicts and post-conflict situations although their limitations are often deformed. Trafficking of women during and after armed conflict is a gender-based human rights violation and criminal activity. One of the major factors is economic contribution that makes women more vulnerable, the current and post – conflicts economies are built in these kinds of crime against humanity and these kinds of criminal activities exempts the suspects form gender-based violence. For understanding the links between trafficking in women and sexual violence in armed conflicts a gendered analysis of conflict and post-conflict rebuilding is useful. Armed conflicts and Militarism produce a worse desire of masculinity, in particular the image of the strong, fearless, powerful soldier with the mission to conquer foreign territories. Feminism on the other hand is a by-product of weak and fearful. These ideas are often internalized by armed groups and they offer an identity for male soldiers. The sexual violence against women or exploitation of women in armed conflicts or post – conflicts basically has a place with the production of such a manly soldierly character.

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Posted by Suvid Chaturvedi in Vol. 2 Number 3, Volume 2, 0 comments
Need for Increased Statutory Provisions on Animal Welfare

Need for Increased Statutory Provisions on Animal Welfare

Govind Abhijith
National University of Advanced Legal Studies, Kochi

This article addresses the need for separate conventions to examine animal rights leading to ethical treatment of animals. Animals are primarily regarded as property and have little or no legal rights of their own. Because of this, generally there is a presumption—provided no law is violated—in favour of the owner’s control over the best interests of the animal. The primary laws dealing with the issue presently such as The Prevention of Cruelty to Animals Act, (1960) and Wildlife Protection Act, (1972) are not adequate with the ever expanding concept of animal welfare. While discussing the scope of present legislation, the paper seeks to address necessary aspects of increased statutory provision on Animal Welfare. In an age of politicisation of cow-vigilantism, the article also explores where to draw the line on such a contemplative legislation on animal welfare with special reference to India.  Animal law generally encompasses compassion towards animals, wildlife, animals used in entertainment and animals raised for food and research. At present, such a separate convention for animal rights does not exist in the country, although there are various case laws and provisions enacted by the Government to ensure the promulgation of animal rights in the country. Animal law is often analogized to the environmental law movement because animal law faces many of the same legal and strategic challenges which can be resolved by adoption of an all-encompassing Act similar to the Environment Protection Act (1986). The article also examines the comparative legislation in USA and Europe and the practicality of its application in India.

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Posted by Suvid Chaturvedi in Vol. 2 Number 3, Volume 2, 0 comments
Real Estate (Regulation & Development) Act, 2016- A Critical Analysis

Real Estate (Regulation & Development) Act, 2016- A Critical Analysis

Hussain Ali
National Law Institute University, Bhopal

Real estate is a highly recognized and regulated sector globally. In the past few decades, this sector has proliferated largely in India, making it the second-largest player in the world economy. Until 2016, apart from the general consumer and property laws in the country, there was no specific statute to regulate and govern this sector. Therefore, this year the Parliament passed The Real Estate (Regulation and Development) Act, 2016. This Act intends to bring transparency, safety and a regulatory mechanism in this field. It pursues to prevent ‘distortion’ and ‘structural abuse of powers’ in this sector. In this article, an attempt has been made to analyse the inception, the needs, the objectives and the provisions of this Act. Lastly, the various details that the legislature failed to address along with different loopholes in this legislation will be discussed.

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Posted by Suvid Chaturvedi in Vol. 2 Number 3, Volume 2, 0 comments
The Offence of Sedition- Does India really need it?

The Offence of Sedition- Does India really need it?

Ishan Liberhan
University Institute of Legal Studies, Panjab University, Chandigarh

“I have no desire whatsoever to conceal from this court the fact that to preach disaffection towards the existing system of Government has almost become a passion with me,” declared Mahatma Gandhi in 1922, while pleading guilty to sedition as charged. “Affection cannot be manufactured or regulated by law,” he went on to say memorably, describing Section 124A as the “prince among the political sections of the Indian Penal Code designed to suppress liberty of the citizen.” If Gandhi thought it was a “privilege” to be charged under Section 124A, it was because “some of the most loved of India’s patriots have been convicted under it” — most famously, Bal Gangadhar Tilak who, when prosecuted for his speeches and writings twice, asked each time whether he was guilty of committing sedition against the British government or against the people of the country. That this is an archaic colonial-era law that has no place in any democracy that values freedom of expression was recognised by no less than Prime Minister Jawaharlal Nehru, who told Parliament in 1951 that he found Section 124A “highly objectionable and obnoxious.” “The sooner we got rid of it the better,” was his opinion of the broad and inexact provision that punishes those who, by use of words, signs or visible representation, “bring into hatred or contempt” or “excite disaffection” towards the government with a maximum of life imprisonment.

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Posted by Suvid Chaturvedi in Vol. 2 Number 3, Volume 2, 0 comments
The Concrete Jungle- Afforestation a Solution?

The Concrete Jungle- Afforestation a Solution?

Purva Kohli
Faculty of Law, Aligarh Muslim University (U.P.)

Forests help in maintaining the ecological balance. Besides the benefits from environmental and ecological perspective, forests bring revenue to the state. With a cover of 23% of Geographical area of the country, forest in India comprise of a number of diverse forest types and reserved areas designated as National Parks and Wildlife Sanctuaries. In India, forest meet the livelihood needs of people living in and adjoining the forests in about 1, 73,000 villages. Forests also act as carbon sinks and regulators of water regime. The conflict of values is to be reconciled and also form the basis of formulation of legal policies and devices for the management of forests. One of the device is afforestation. Afforestation refers to the process of converting a non-forest land into a forest. India has to compromise with the environment for setting up various industries. For that reason, deforestation is happening around the country for creating Infrastructure. All of these are unavoidable for developing country like India. Any project proponent, government or private, must apply for forest clearance from Ministry of Environment and Forests (MoEF), before the conversion of land takes place. This proposal is to be submitted through the concerned forest department of the state government. If clearance is given, then compensation for the lost forest land is also to be decided by the ministry and the regulators. For that reason, nowadays afforestation is very much necessary in India to maintain the biodiversity in the environment. The Hon’ble Supreme Court on 10th July 2009 issued orders that there will be a Compensatory Afforestation Fund Management and Planning Authority (CAMPA) as National Advisory Council for monitoring, technical assistance and evaluation of compensatory afforestation activities.

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Posted by Suvid Chaturvedi in Vol. 2 Number 3, Volume 2, 0 comments
Nuclear Disarmament | An overview of Customary International Law

Nuclear Disarmament | An overview of Customary International Law

Dr. Gazal Gupta
Former Assistant Professor, Lovely Professional University, Punjab

International law consists of not only treaties but some other imported sources as well. Among the sources of international law, enumerated by Article 38, of the Charter of the International Court of Justice, are international customs, the general principles of law recognized by civilized nations, judicial decisions, and the opinions of outstanding jurists, all of which strongly establish the illegality of nuclear weaponry. The absence of a specific treaty banning the use or manufacture of nuclear weapons means that only one of the sources of international law is absent. All the other – international customs, general principles of law recognized by civilized nations, judicial decisions and juristic writing- can strongly be invoked. The advent of the nuclear bomb and the manufacture of nuclear weaponry in several countries have not displaced this principle. There is also a strong body of international declarations, which, although they do not have the force of law in themselves, yet strongly indicate the sense of the international community on this issue and reinforce the contention that such a principle now forms part of customary international law.

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Posted by Suvid Chaturvedi in Vol. 2 Number 3, Volume 2, 0 comments