Blog

Akshay Jain Ph.D.

Research Scholar, Gujarat National Law University (GNLU), Gandhinagar, India.

TRANSFORMATIVE CONSTITUTIONALISM: BEGINNING OF A NEW ERA IN THE CONSTITUTIONAL LAW OF INDIA

Best Citation – Akshay Jain, TRANSFORMATIVE CONSTITUTIONALISM: BEGINNING OF A NEW ERA IN THE CONSTITUTIONAL LAW OF INDIA, 3 IJLR 82, 2022.

Abstract

The post-colonial world marked a significant transformation in the Asian and the African political and social order so as to ensure to their citizens a better and promising future. India, among various other dominions, emerged as an independent nation tasked with the monumental project of constitution making for establishing a just political and social order for its citizens. Among various contemporaries, the Constituent Assembly of India gifted Indian citizens an indigenous constitution that has endured for more than seven decades while becoming the longest surviving constitution in the post-colonial world with its promise of dispensing justice intact to date. However, the role of transformative process involved therein still remains an underexplored subject in the domain of constitutional jurisprudence. This article identifies, explains and analyzes constitutional transformation in India in relation to the concept of transformative constitutionalism as this has formed the very basis of successful working of the Indian constitution. Through an understanding of the interplay of these core transformative concepts in the Indian experience, the article unveils the secrets of a long-lasting and promising constitution while ensuring real and substantive justice to its people.

Keywords: Transformative Constitutionalism; Constitutional Jurisprudence; Indian Constitution, Constitutional Law

Blog

Rozena Correia Ph.D.

Research Scholar, Goa University and Asst. Prof. G.R. Kare College of Law, Margao-Goa.

A Constitutional Appraisal of Tribunalisation of Justice in India: Elucidating the tools of justice delivery in the legal system and tracing the constitutional rationality through the judicial attitude of tribunalisation of justice.

Best Citation – Rozena Correia, A Constitutional Appraisal of Tribunalisation of Justice in India: Elucidating the tools of justice delivery in the legal system and tracing the constitutional rationality through the judicial attitude of tribunalisation of justice, 3 IJLR 72, 2022.

Abstract

The article predominantly focuses on India’s tryst with the tribunalisation of justice. The connotation of Courts and Tribunals with their pros and cons as tools in the legal system is underlined in the paper. The paper examines the concept and context of ‘tribunal’ functioning in India. The twin objectives of evolution and progression are emphasized, which led to the swift development and proliferation of Administrative tribunals of varied categories. It also speaks about establishing the tribunal as an alternative mechanism and parallel to the traditional court system. The tribunals as quasi-judicial bodies are highlighted with greater detail by assessing the underpinnings in terms of significance and scope. By taking a restrictive and liberal approach, the article demonstrates the judicial attitude towards tribunalisation of justice and the position of the constitutional courts on the rationality and validity of the establishment of tribunals in India.

Keywords: Constitutional Appraisal, tribunalisation of justice, quasi-judicial, constitutional courts, judicial attitude

Blog

Komal Chauhan

Research Scholar, USLLS, GGSIPU, Delhi

Challenges to Cooperative federalism in India

Best Citation – Komal Chauhan, Challenges to Cooperative federalism in India, 3 IJLR 66, 2022.

ABSTRACT

All democratic governments depend on statutory principles for their continued existence and expansion. In multi-cultural societies, the growing relevance of decentralization of authority cannot be ignored if the government is consistently committed to the freedom of all community groups. A democratic government can only use coercive force against its citizens to a limited extent, although the threat may be substantial. Therefore, governments should work with marginalized and sectarian groups to prevent their citizens from perceiving state authority as a threat. The objective is to avert any threat to the nation’s very survival, and the government should intervene with solutions that benefit all segments of society. Consequently, cooperative federalism is becoming increasingly vital to the functioning of modern state governments. In cooperative federalism, the Centre and the state maintain a horizontal relationship in which they cooperate for the greater good of the citizens. It is a crucial device that allows states to participate in the formulation and implementation of national policy. As the Centre and the states are required by the constitution to cooperate on matters specified in Schedule VII, this research paper attempts to assess the extent to which cooperative federalism has been ingrained in the Indian constitution from its inception. The paper thus attempts to identify the various challenges faced by the Indian federal system and to discuss the judiciary’s role in resolving these issues.

Keywords: Federalism, Cooperation, challenges, India Constitution, Centre-State

Blog

Arti P. Gadre, Research Scholar, Research Centre, Department of Law, Sant Gadge Baba Amravati University, Amravati

And

Prof (Dr.) Bhagyshree A. Deshpande, Professor, Dr Panjabrao Deshmukh Law College, Amravati, (Guide)

A NATIONAL VIEW OF INDIA’S EVOLUTION OF THE RIGHT TO PRIVACY

Best Citation – Arti P. Gadre & Prof (Dr.) Bhagyshree A. Deshpande, A NATIONAL VIEW OF INDIA’S EVOLUTION OF THE RIGHT TO PRIVACY, 3 IJLR 61, 2022.

ABSTRACT

One of the most important rights includes the right to privacy. Regardless of the constitutional obligation, neither the Government nor the assembly of any State has passed any legislation outlining the rule of law addressing this matter. The increased use of technology for data analysis in the modern period has presented significant challenges to both the states and the general public. The Supreme Court of India has ruled that the right to privacy is guaranteed by the Indian Constitution and that it is implied in the fundamental rights to life and personal freedom, freedom of expression, and freedom of movement. However, a year after making its first ruling, the same court ruled that the Aadhaar Act 2016, which allows the state to collect some private information including iris scans and fingerprints, is constitutional. Without suitable standards, exchanging data through new technology tools is not particularly safe. The sufferer has no other appropriate venue to bring his claim than the regular courts, which are already overworked, in cases of duty violation by any official involved in data collection and storage. The acknowledgement of the right to privacy as a fundamental right has also had an impact on other civil liberties that persons may assert in support of their right to privacy. It is important to note that the judicial system recognises the right to privacy as a fundamental right and that many governmental actions and legislation may be challenged because of grounds that they violate this right. In this article, the researcher seeks to explain the development of the right to privacy in India by comparing it to other nations’ positions on the subject, as well as the problems and difficulties associated with putting it into practice.

KEYWORDS: Fundamental Rights, Personal Liberty, Right to Privacy and Data Protection

Blog

AMINA AMIN SULTANA

Research Scholar, School of Law, Sharda University, Greater Noida, U.P., Indi

INHERITANCE RIGHTS OF MUSLIM ORPHANED GRANDCHILDREN AND ADOPTED CHILDREN (ESPECIALLY FEMALES) AND THE INDIAN CONSTITUTION

Best Citation – AMINA AMIN SULTANA, INHERITANCE RIGHTS OF MUSLIM ORPHANED GRANDCHILDREN AND ADOPTED CHILDREN (ESPECIALLY FEMALES) AND THE INDIAN CONSTITUTION, 3 IJLR 50, 2022

ABSTRACT

Indian constitution has guaranteed equality before law and equal protection of laws to its entire citizen and also has provided many rights to women and children for their safeguard in every aspect of life but still Islamic property related laws are facing huge complications in delivering justice in regards to Muslim women, particularly orphaned grandchildren and adopted children. The inheritance shares are already fixed by the injunctions of Quran. So, the wasiyat is not for those Quranic sharers but for those who are not legal heirs but anyone and the will cannot be made more than 1/3rd of the hereditary property. The law of gift and will is complimentary and supplementary to law of inheritance and Muslim countries translated the law into action in the name of obligatory bequest. Considering the orphaned grandchild (specially females) status among the law of inheritance of Indian Muslims, the legislature may also consider the reformative measures of Muslim countries. In order to remove the sufferings of orphan grandchildren, the state should consider the law of compulsory bequest. The two relations i.e., orphaned grandchild and adopted child (specially female) must be given the right to inheritance through a will or bequest which cannot be more than one-third of the complete property. The customary law applied to the inheritance relating orphaned grandchild and adopted child is to be abolished and Islamic canon must be enforced on them. Moreover, although Islam does not approve of adoption but it has a better system known as kafala under which the adopter will get a child of whom he can take care in every perspective and the child will also not lose his identity. The Indian law must modify the adoption of Muslims as per kafala system, which is now followed by various other Muslims countries. And regarding the inheritance, these adopted children may be given one-third of the property by way of will. This can only happen if the option to follow either customary law or true Islamic canon under section 3 of the Shariat Act of 1937 is eradicated. The option given under the 1937 Act is unconstitutional and hence, a great amount of injustice have been going on since its implementation against the females, particularly orphaned grandchildren and adopted children.

Keywords: Constitutional provisions; Islamic law; Shariat Act, 1937; position of orphaned grandchildren and adopted children, specially females.

Blog

Dr Sonia Aneja

Assistant Professor Department of Law University of Jammu

CORPORATE GOOD GOVERNANCE AND WHISTLEBLOWING IN INDIA: A CRITICAL ANALYSIS

Best Citation – Dr Sonia Aneja, CORPORATE GOOD GOVERNANCE AND WHISTLEBLOWING IN INDIA: A CRITICAL ANALYSIS, 3 IJLR 39, 2022.

ABSTRACT

Since inception of human civilization the effort has been to establish a society which caters to the need of one and all. Thinker Hobbes, Locke and Rousseau had emphasized on social contract theory. Rousseau specifically talks about general will theory in which each individual gives up his own will to see that one person or a group looks after the welfare of the entire society, thus the responsibility may be entrusted to chosen few but they have a moral obligation to rule in the best interest of the people. Today the members of the comity of nations are founded on the principle of “welfare State’’ which allows full participation of their respective inhabitants, stri0ving to achieve the common good and in the process affording optimum opportunity and involvement for growth of the individual so as to subserve the societal interests. This has led to the evolution of “Good Governance”, as opposed to mere governance, as an umbrella concept encompassing within it a system of governance that is able to unequivocally discover the basic values of the society where standards concern economic, political and socio-cultural issues including those involving human rights, and follows the same through an accountable and upright administration. But with the emergence of welfare state there is a phenomenal growth in the powers and functions of the state too. When the powers and functions of the state so increases, there arises a danger of abuse of power or excessive use of power by those who act on behalf of the state. We cannot deny adequate powers necessary for competent discharge of its functions to the state. At the same time, it is necessary to provide checks upon the exercise of such power. Power must be exercised strictly within limits drawn by the law.

Lord Acton’s saying that, “Power corrupts and absolute power corrupts absolutely” holds true in the current Indian milieu as corruption has become an inevitable and unavoidable part of our daily life .We have learnt to accept corruption everywhere and in everyone; among our political class, in our bureaucracy, among members of the Judiciary, in educational and medical institutions, and even among our so-called ‘god-men’. We have accustomed ourselves to tolerating corruption everywhere.

The researcher firmly believes that in the world accountability and transparency in public institutions are highly required. Only accountable and transparent institutions can end endemic corruption and promote human rights by making the public functionaries accountable to the common people.

Keywords: whistleblower, corruption ,good governance, law

Blog

Dheeraj Kumar, Junior Research Fellow & PhD Research Scholar, Faculty of Law, Patna University, Patna

And

Prof. (Dr.) Mahammad Sharif, Principal, Patna Law College & Research Supervisor, Faculty of Law, Patna University, Patna

JUDICIAL APPOINTMENTS IN INDIA: CONSTITUTIONAL MANDATES AND RECENT TRENDS

Best Citation – Dheeraj Kumar & Prof. (Dr.) Mahammad Sharif, JUDICIAL APPOINTMENTS IN INDIA: CONSTITUTIONAL MANDATES AND RECENT TRENDS, 3 IJLR 25, 2022.

Abstract

Judiciary is one of the vital organs of the state in a constitutional democracy. It is entrusted with the very crucial role to protect and, preserve the Constitution in course of discharging its functions, in furtherance of the spirit of the Constitutionalism. Indian judiciary is considered as one of the efficient judicial systems of the world, to administer justice effectively in the form of appropriate relief by use of innovative methods and constructive interpretation. Any system cannot be expected to yield satisfactory results, unless inputs given therein are good enough. In the Judicial system inputs are given through the judicial appointments. Judicial appointments in India have been a significant subject matter of debate among legal fraternity in particular and public at large in general, on account of several controversies relating thereto. Therefore the topic of the present discussion bears enormous significance in this context. This paper attempts to examine the recent trends pertaining to judicial appointments and incidental and consequential matters relating thereto and connected therewith in the light of the constitutional mandates in this regard. It would briefly discuss structure of Indian Judicial system, explain the scheme of judicial appointments, highlight the constitutional mandates, point out recent trends and issues relating to topic and, conclude the discussion with some workable suggestions to effectively address those issues.

Keywords: Collegium System, Independence of judiciary, judicial appointment, Transparency, Uniformity.

Blog

Sapresh Devidas,

Assistant Professor at G.R Kare College of Law (Goa).

SOCIAL MEDIA AND ITS INTERSECTIONS WITH FREEDOM OF SPEECH AND EXPRESSION: AN ANALYSIS OF RECENT DEVELOPMENTS.

Best Citation – Sapresh Devidas, SOCIAL MEDIA AND ITS INTERSECTIONS WITH FREEDOM OF SPEECH AND EXPRESSION: AN ANALYSIS OF RECENT DEVELOPMENTS, 3 IJLR 16, 2022

ABSTRACT

Today, there is increasing debate about the impact of social media on society, especially its potential negative effects. Social media has become an essential communication tool through which individuals can exercise their right to freedom of expression and exchange information and ideas. However, freedom of speech and expression does not grant citizens the right to speak or publish without responsibility, and the legislature can make laws that limit the right to speech and expression for several reasons. Social media is also open to abuse as several cyber-crimes can be easily committed through social media. This gives the state the right to regulate online content in the interest of the general public, the necessity of which cannot be denied. We begin to analyse social networking sites and the role and development of social media since its inception at the beginning of the 21st century, pointing out its positive aspects. Current research therefore focuses primarily on the intersections of social media and basic freedoms, i.e., freedom of speech and expression. This research highlights some issues such as censorship, limits to freedom of expression, misinformation, diversity of sources, visions and opinions, user content and privacy etc. Finally, the researcher suggests some solutions to combat these problems.

Key Words: social media, Fundamental freedoms, Free speech, Restrictions, Malpractices, India.

Blog

Manik Tindwani & Anupam Singh Sengar

Students at University Five Year Law College, University of Rajasthan, Jaipur.

ROLE OF JUDICIARY IN REVAMPING THE CONCEPT OF FREEDOM OF TRADE, COMMERCE AND INTERCOURSE

Best Citation – Manik Tindwani & Anupam Singh Sengar, ROLE OF JUDICIARY IN REVAMPING THE CONCEPT OF FREEDOM OF TRADE, COMMERCE AND INTERCOURSE, 3 IJLR 1, 2022.

ABSTRACT

Freedom of trade in any federation is equitable to another medal of valour on its personage for its courage to combat the war against poverty, illiteracy, inadequacy and imbalanced economic organisation. This study attempts to make an honest and in-depth endeavour about the judicial trend of the term “freedom of trade, commerce and intercourse” and the coextensively regulatory powers of Parliament and States on freedom of trade as prevalent under the Constitution of India as well as the different statutory provisions which are the outcomes of this constitutional provision. Even if the focus of this research is only on Part XIII of the Indian Constitution, it would be beneficial to look at other laws that have anything to do with commercial freedom. This raises the issue of analysing the link between Part XIII’s trade-related laws and other portions of the Constitution including, inter alia, the Fundamental Rights, the Directive Principles, the powers of the Parliament and States, and their taxation authority, among others. However, as is seen from the arguments held on the Chapter previous to its introduction, this Part has often been condemned as being the Constitution’s most loosely constructed Part. In interpreting the language of this part, the Courts have created certain uncertainties. An attempt is made in this study to provide a simple analysis of Part XIII and resolve these uncertainties. The judicial developments are the heart and spirit of this study which helps in the interpretation of the constitutional provisions with much precision. Throughout the course of the investigation, specific issues and matters are humbly sought to be highlighted by way of suggestions and recommendations in order to uphold the constitutional spirit by properly protecting the provision of the Constitution from the unwarranted, whimsical, arbitrary, unbridled, and excessive dilution through way of interpretation, amendment, or other legislative measures.

KeyWords: Trade, Commerce, Intercourse, Constitution of India, Chapter XIII, Article 301, Article 19(1)(g), Freedom of Trade, Judiciary.

Blog

Karanam LBP Kruthika

CENSORIUS STUDY ON THE CRIMINAL JUSTICE SYSTEM WITH RESPECT TO CASES MENTIONED IN THE BOOK NO NATION FOR WOMEN BY PRIYANKA DUBEY.

Best Citation – Karanam LBP Kruthika, CENSORIUS STUDY ON THE CRIMINAL JUSTICE SYSTEM WITH RESPECT TO CASES MENTIONED IN THE BOOK NO NATION FOR WOMEN BY PRIYANKA DUBEY, 1 IJLR 1, (2022)

Abstract:

Due to escalating incidents related to gender crimes against women, “Priyanka Dubey”, a professional reporter, contributed to the literary world. She wrote a ground reportage to aid people to recognize the issue of sexual assault in India and the victims having their justice delayed or not being served. This paper is a study on why and how the criminal justice system fails to do justice to the victims mentioned in the book “NO NATION FOR WOMEN” and, in general—a fundamental analysis of what the criminal justice system is and its difference in investigating the cases of sexual assaults, rapes and violence resulted due to gendered crimes. Assaults against women and the ignorance feigned by the public officials are ridiculed all along with every discussion in India. Many landmark cases that occurred in the past, like the Mathura case in 1972 or the infamous Nirbhaya case in 2012, were influential in modifying the Criminal laws associated with sexual violence, making forensic investigation mandatory and enervating the police force, constituency, and academic sectors. Regrettably, these amendments did not make any difference to how the system works. The public officials and ministry were said to have even wasted and underused the budget assigned to administrate the rules and laws. So, this paper is showing the result of delayed justice provided and relativity with criminal justice system. The sources and legal databases regarding the book were indulged in the investigation method and the landmark cases as further explanations. This paper is the unraveling of our search behind the Justice system and its failures.

KEYWORDS: Sexual Assault, Criminal Justice System