The COVID-19 pandemic has upended not only millions of lives, but also the way in which countries interact with each other. Scientific coopera¬tion has increased transcending all boundaries. It will leave a different world economically and geopolitically. The question is whether the pan¬demic will change the way countries interact and how major powers engage with the world. An altering moment in world politics.
Shanghai, 2019. A group of political leaders from the region are gathered with faces hopeful. For nearly two hundred years, the West has dominated the global landscape; but this century promises to upend that narrative. Of particular importance to them is this year – 2020. It is forecasted that the Asian economies will become larger than the rest of the world combined, in purchasing power parity terms, for the first time since the 19th century. They call it the “Asian century”.
That idea is the lone shining star in an otherwise dark sky of tumultuous times and rising inequalities. Asia’s dominance has caught the attention of stakeholders from a variety of spectrums. If on course, the continent promises to top 50 per cent of global GDP by 2040, a statis¬tic that represents a real shift in the world’s economic center of gravity.
Leading this pack is China, which has recently been subject of severe international and regional backlash. The communist state has been aggressively pursuing investments in both familiar territories and pastures new. While the European Union has adopted a cautious approach towards state-backed companies’ increasing entry into the single market, the USA adopted a more hardlined response, which has resulted in the “largest trade war in economic history”.
Despite these setbacks, led by president Xi Jinping the nation continues to pursue its quest for global dominance. Its Belt and Road Initiative, a state-backed campaign for Chinese investment around the world, is going strong despite some concerns over associated countries’ inability to repay their loans. With a total cost of over US$1 trillion, the program ensures that any activity connected to it – ranging from con¬struction to the adjudication of related disputes – all involve a ‘Chinese element’.
There is then the issue of the massively disruptive nCovid-19, the infectious disease caused by severe acute respiratory syndrome corona¬virus 2, first identified in Wuhan. China was adroit in curbing the threat, classified by the World Health Organisation as a pandemic. As of late March, it is one of the few countries whose industries have slowly begun operating again. It is an interesting question if this ‘headstart’ will give its economy an impetus to take over the USA.
Things are slightly different in Hong Kong. Though in theory under China’s control, it has carved out an image of its own in the world for being pro-business and ideologically different from the communist state. It was of no surprise, therefore, that its residents protested when a bill proposed to extradite Hong Kongers to the Mainland for prescribed offences. What started off as dissent towards one law escalated into pub¬lic distaste for Chinese control of Hong Kong itself. Clashes erupted and many people on both sides were killed. The economy was also severely affected.
In the grand scheme of things, Hong Kong is not the only coun¬try that witnessed uproar against a law that escalated into widespread anti-establishment riots. Traveling southwest, we enter India – another important player in the “Asian century” narrative.
The world’s largest democracy in the past year has been in the news for several reasons: the Bharatiya Janata Party won the 2019 gen¬eral election with a substantial majority, but quickly faced turbulent times as it moved to fulfil its election promise and abrogate article 370 of the constitution.
To further complicate things, the central government also passed a controversial law that expedites the grant of citizenship status towards certain ‘minority’ communities in Pakistan, Bangladesh, and Afghanistan. This list visibly excluded Muslims, asserting that they could not be minorities in Islamic theocracies.
Widespread riots followed – both for and against these governmen¬tal actions. Internet access was blocked in Kashmir for more than seven months, making it the longest Internet ban in a democracy ever. That sentiment trickled down to other parts of the nation, as several states – including the capital city of Delhi – witnessed unprecedented protests questioning the discrimination meted out to members of the Muslim community. That escalated into a strong anti-Muslim sentiment, with many people committing unspeakable atrocities towards the Islamic community.
When hope is lost, people turn to the judiciary. That is exactly what several litigants did, as they rushed to knock on the doors of the coun¬try’s apex court, praying for directions to stop the violence. A bench led by the chief justice SA Bobde ruled that violence “on both sides” ought to stop before any further directions were issued. This raised a few eye¬brows, with people questioning whether the independence of the judici-ary has been tainted.
Judicial independence took another blow when Ranjan Gogoi, a former chief justice of the Supreme Court, was nominated to the Rajya Sabha – the legislature’s upper house. Gogoi, who was also accused of sexual harassment (that was dismissed by an inquiry committee, though controversially), asserted that his nomination actually promised to ensure greater cohesion between the legislature and the judiciary.Whether allowing a former judge to have a say on law making will really foster efficiency is a question that remains to be seen.
There is also another issue: the economy. Ever since the BJP came to power for the second time, the economy started spiralling down¬ward, with the international community even questioning India’s growth forecasts. The government sought to address the issue through a series of measures including a corporate tax cut, but its efficacy is not clear because of the looming spectre of a global recession in light of the nCovid-19 pandemic.
Notwithstanding these internal disturbances, India is still regarded as a fierce player in Asia. A member of the Non Aligned Movement, it has been able to expertly leverage its political might in tricky situations, including in maintaining peace with the USA and signing key trade deals with nations such as Japan. These strategic alliances proved ben¬eficial, as the USA designated India as one of its “major defense partner” as per a report published by the United States Institute of Peace. What’s more, India has also been able to secure international support on the Kashmir issue against its neighbour Pakistan.
Beneath all these crises is the emergence of significant polarisation within the populace. Recent times demonstrate that the other side of the political spectrum – the left – has decided to challenge governments on what they perceive as fundamentally wrongful actions. In future, these nations would be confronted with more counterpoints from these sides, and it will be interesting to see how competing interests collaborate.
The last two countries that merit a mention are Singapore and Japan. The latter is an industrial hub, particularly for the automobile and allied industries, while the former’s ground breaking legislative changes for the last 30 years has ensured that it has cemented its place as an attractive place of doing business in the world.
Together with the other nations in the region, these countries could disrupt the perceived Western hegemony that occupies nearly all aspects of the socio-political and socio-economic landscape. There is also a Regional Comprehensive Economic Partnership agreement, a free trade agreement, in the works that would potentially strengthen their collaboration. Though India recently backed out of the deal citing a need to protect its domestic industries, the deal in substance still promises to usher in an era of the Asian century. If the idea of an Asian century is to become hard-grounded real¬ity, it is important for these nations to derive some inspiration from the West.
In particular, these nations ought to collaborate on issues such as cross-border security and business that would enhance their bloc strength. Right now, that is faced with a few obstacles. The South China Sea dispute is an issue in which China refuses any external intervention whatsoever. That may merit some rethinking if it is asked to collaborate with, say, Japan on matters that would make the Asian century dream a reality.
This edition of GJLDP focuses on some topics that relate to the Asian century, with specific reference to the individual events happen¬ing in India. Papers range from the Indian parliament’s power to amend the constitution – an important issue given the recent abrogation of ar¬ticle 370 – to the development of private international law in Asia. There is also a very interesting piece on the Virtobot – an autonomous system that promises to revolutionise the medical industry.
The GJLDP Editorial team takes this opportunity to thank the out¬going student membersAmoga Krishnan, Hatim Hussain, Saloni Gupta, Samira Mathias, Tejas Rao andYashi Saraswat for their contribution to ensure the quality and timely publication of the journal.
We are confident that all the publications in this edition will leave a positive aftertaste in the reader’s mind. Equally, we are hopeful that they lead the conversation on what other steps Asia needs to take to make this century focus on the region, bringing with it an increase in living standards, political rights, and judicial independence.
- EDITORS
April, 2020
GJLDP
Ravindra Kumar Singh
Abstract
The subject of constitutional amendment assumes a pronounced significance because through the process of amendment the constitution remains a living document. This research paper seeks to discuss the substantive limitations on the power of Parliament to amend the constitution. The paper will scan the scope of judicial review where the constitutional court is called upon to examine the validity of such amendments. Thus, it will argue that while there must be a nice equilibrium between rigidity and flexibility in the constitution so as to provide stability and longevity to the constitution, the constitutional amendments should also be subjected to some substantive limitations in order to ensure that the legislative wing of the government does not destroy the basic or core content of the constitution. These propositions will be substantiated with the help of leading case laws. Although the scope of the paper is confined to the constitutional law of India; yet, relevant references have also been drawn from constitutions of some select jurisdictions.
Dr Ravindra Kumar Singh, Associate Professor of Law, Gujarat National Law University, Gandhinagar, E-mail: rsingh@gnlu.ac.in
Vikas Gandhi
Abstract
Finest introduction of the this contextualized research is that, recent trend of the Indian judiciary seems pro-active towards protection of human rights by applying the ‘individualistic approach’ in the subject matter of right to religion, custom, tradition and practice. This has been observed in two judgments delivered by the Supreme Court of India in recent past, namely, first, Shayara Bano v. Union of India, decided on August 22, 2017. The Supreme Court of India observed the practice of ‘talaq-e-biddat’ i.e. triple talaq and denied the practice by 3:2 majority. Second, Abhiram Singh v. C.D. Commachen (dead) by LRS decided on January 2, 2017. The Indian Supreme Court has held that seeking votes in the name of religion, caste or community amounted to corrupt practice and election of a candidate who had indulged be set aside. This trend has raised the hypothesis that, India has not only maintained but also has improved the protection and promotion of human rights and has made it at par with international standards in terms of implementation of rights. To appraise the above written hypothesis, the author would follow three steps. First, evaluate the two judgments mentioned above to identify the approach adopted by the Supreme Court on individual’s right protection. Second, to observe the recent developments and assessment of other regional human rights courts namely, Inter-American Court of Human Rights, European Human Rights Courts of Human Rights, African Court of Human Rights and their approach towards protection of individual’s rights, and third, to equate the approach and make essential conclusion. Here in context to individualistic means, every Civil, Political, Economic, Social and Cultural rights which is in question, observed by the respective courts considering the right of an individual rather collective rights or rights of group of people.
Dr. Vikas Gandhi, Associate Professor of Law, Gujarat National Law University, Gandhinagar, E-mail: vgandhi@gnlu.ac.in
Nishtha Kaushiki
Abstract
Today as the country stands as a witness to the water crisis, the debate has now shifted to proactively resolve the challenges. Water governance and the adoption of best management practices have thus occupied the centre stage of development debate and is also been actively linked to India’s security debate. The study dwells into the identification of the challenges and possible solutions both at the domestic and international level. Although there are numerous challenges that need to be addressed with regard to the water scarcity, but, due to the paucity of time and space, the present study has attempted to address three major issues on the domestic front. First, the problem created by the tanneries in the Kanpur section of the river Ganges; second, certain malpractices adopted in agriculture practices which have decreased the ground water table, and third, the poor conditions of the existing dams along with the creation of ‘Urban Heat Island’ have been discussed. From an international perspective, the second part of the study has analysed India’s water conflict with Pakistan and China which not only is a part of the problem but also gives us opportunities to scale up the country’s assertive as well as aggressive stand against Islamabad. Finally, the study also urges the individuals per se to recognise the magnitude of the problem that India faces and adopt suitable measures.
Dr. Nishtha Kaushiki, Assistant Professor, Department of South and Central Asian Studies, School of International Studies, Central University of Punjab, Bathinda, E.mail. nishtha.kaushiki@cup.edu.in
Smruti Ranjan Dhal
Abstract
Gandhi has written on many themes and issues, but truth and non-violence always accompany his name. His identification with truth and nonviolence has become a cliché. The overuse of Gandhi’s name without any serious thought about his thoughts has resulted in the loss of significance of his ideas. To be more specific, the over-celebration of his emphasis on truth and nonviolence has led to a corresponding process of disappearance of his conception of individuality and swaraj. Truth and nonviolence are primarily moral ideas. Individuality and swaraj are basically political ideas. This article argues that the superficial omnipresence of the moral Gandhi has led to the absence of his political ideas. The usual identification of Gandhi with his moral ideas has led to the loss of significance of his political ideas. The absence of Gandhi’s political ideas from the political structure of the post-colonial state has reduced him to a person more concerned with moral principles. Gandhi’s critique of modern civilization and material development was not relevant for the newly independent Indian state. The political vision of Gandhi was sidelined during the formative years of the newborn Indian state. To understand the absence of any application of Gandhian ideas into the practice of Indian democracy, a conceptual division can be constructed in the writings and ideas of Gandhi. This division between ‘the political’ and ‘the moral’ is necessary for a better understanding of the significance of Gandhi’s political ideas for a decentralized democracy.
Smruti Ranjan Dhal, Assistant Professor, Centre for Gandhian Thought and Peace Studies, Central University of Gujarat, Gandhinagar. E-mail: smruti.dhal@gmail.com
Jehirul Islam
Abstract
The recent progress in Information and Communication Technology and mode of doing business resulted in the expansion of e-commerce in every part of business activities. E-commerce has become a very fashionable way of buying goods or services during the course of time due to many intrinsic benefits it offers and increasing numbers internet users. The development of e-commerce in general and business-to-consumer segment of e-commerce in particular is incredibly rapid in India, which is evidence from various reports projecting this business reaching new high every year. Through the augmentation of e-commerce, involvement of consumers in e-commerce is also escalating. Consumer’s data privacy has been considered as a serious concern in e-commerce. E-commerce traders use a range of technological tricks to collect data or information to misuse it in many ways, or sell those data or information for unjust business gain and some other hidden purposes. This issue has a unique feature, as on the one hand, consumers do not bother much in compromising data privacy as they do not see any direct consequences of such a compromise, yet, on the other hand, traders search out many opportunities to use such data illegally, unfairly and unethically. In the backdrop the above issues, it is inevitable to test the efficacy of the Indian legal provisions for data and privacy protection of online consumer. Hence, this paper has made an effort to analyse the various challenges brought forth by e-commerce with respect to the privacy and data of online consumer, and the efficacy of the Indian legal provisions specifically provisions under the Consumer Protection Laws and the Information Technology Act, 2000, and the Rules made thereunder.
Jehirul Islam, Assistant Professor, Unitedworld School of Law, Karnavati University, E-mail: jehir_islam2001@rediffmail.com
Harsha Rajwanshi
Abstract
Private International Law is an important dimension of contemporary legal study and practice to address the broad spectrum of issues in international and transnational context. In an increasingly globalized world, one of the dimension of the Private International Law is to facilitate these issues through process of unification and harmonization thereby achieving the greater degree of legal certainty and predictability. Towards this goal of unification and harmonization, the international community employs different instruments such as conventions, protocols, model laws and rules, legislative guidance etc. However the process requires participation of wide range of stakeholders but most importantly, States play a central and important role in the development and integration of Private International Law to address the problems and challenges of transnational setting.
With a specific aim to analyse the development and integration of Private International Law in Asia, this Research article surveys the participation of Asian states with the Hague Conference on Private International Law, an inter-governmental organization administering several Conventions aimed to unify and harmonize private international law rules. The statistical inferences based on the analysis of numerical data have been drawn to provide insights into the areas of convergence and divergence for the Asian States in the creation of uniform or harmonised legal order. This research article also explores and enumerate on the cooperation amongst the Asian States in creation of regional legal order for Private International Law. This institutional Asian regional cooperation in Private International Law is compared with other existing institutional mechanisms of regional cooperation existing in alike regions like Europe, Africa, America etc. promoting the development of Regional PrIL principles. The study concludes with an argument on whether Asia needs a renaissance to develop its own Asian Principles of PrIL or not.
Harsha Rajwanshi, Assistant Professor of Law, Gujarat National Law University, Gandhinagar, E-mail: hrajwan¬shi@gnlu.ac.in
Partha Pratim Paul
Abstract
There is a continuing debate whether “Right to Propagate” of one’s own religious belied under Article 25 of Constitution of India includes “Right to Convert” people of other religious beliefs (as a fundamental right). In this backdrop, it is very important to understand the nature of right to freedom of religion vis-à-vis conversion and re-conversion; it is also pertinent to know whether to convert somebody or get converted own-self is a fundamental right? Hence, this paper has analysed in detail the leading Supreme Court judgment which categorically stated that there was no such right like this. Conversion from Hindu society to other religions has taken/been taking places in India due to many socio-political reasons. There is also a need to find out the actual reasons of conversion of re-conversion in India, basically from Hinduism to other religions. Political pressure by the ruling classes during Mugal period and British period, economic benefits in the nature of enticement and apart from others distorted Barna and Caste system of Hindu society where people belonging to so called lower Caste or Barna have suffered humiliation, social torture, ostracization and did not get due regard and honour in the society. As a result either the many Hindus either left its religion or had to leave their own religion. Though Constitution of India guarantees freedom of religion for everyone in this country which includes a right of a person of any religion to embrace other religion as per his or her choice or desire, but legally speaking, that choice should not be marred and vitiated by coercion or enticement. Therefore, this article confines itself only within those reasons which are related to law i.e. did the law encourage ever or does law encourage this out-flow of Hindus to another religions directly or indirectly? In another words, this paper only analyses the legally enticed conversion as reason of conversion of Hindus towards other religions. Though couched in a language which is equally applicable to all, but as a matter of fact, the law largely affected Hindu society and other religions in India have been immensely benefitted. This article finds Caste Disabilities Removal Act, 1850 is a legal mechanism for enticed conversion for which Hindu society has been the most victims. If the religious demography is analysed from census of 1861 to the latest 2011 (which has been done in this article to substantiate this viewpoint), it will be seen that percentage of Hindus have been shrinking and others are increasing. This article, in search of the implication of Caste Disabilities Removal Act, discussed many leading cases, some of those were pronounced at around a century before. This article also tries to find the basic tenets in the philosophical backgrounds of Christianity, Islam, Parsism and Hinduism to make the people understand regarding the role and importance of conversion. It has been found that conversion is a tool for discharging religious and pious duty in Christianity and Islam but for others it is not as such (but while analysing this, the article keeps in view the difference between conversion or re-conversion and PARABARTAN i.e. non-Hindus returning to the original religion of the ancestors). Inclusive nature is one of the basic tenets of Hinduism, which is the guarantee of secularism (SARBA PANTHA NIRAPEKSHATA). This article gives an overview of this cardinal principle of Constitution of India. Finally, this article gives some recommendations to scrap this piece of legislation i.e. Caste Disabilities Removal Act, (or its deletion from the Statute Book) not only for this reason that it encourages enticed conversion but for some other constitutionally justified and legally sound logic.
Dr Partha Pratim Paul is Assistant Professor of Department of Law, Assam University, Silchar, email:pppaulnbu@gmail.com.
Heena Goswami
Abstract
In today’s technology-driven world, the link between science and the law has become stronger and deeper. Especially in the administration of the criminal justice system, the dependency of law on science and advanced technologies has seen a drastic growth in the effective delivery of justice. The science and advanced scientific technologies are integrally associated with developed criminal investigation system. This article emphasizes on the need for advanced techniques to deal with the challenges and issues pertaining to the inquest in medical jurisprudence. Identification of accused and victim solely depends on the linkage of useful pieces of evidence found from the scene of the offense. The introductory discussion focuses on the investigation stage, but also devote our attention to the ethical, social concerns and how technology can overcome these challenges. AI has been acquainted to understand the upsurge of a complex and advanced hitches and to liaise with the abiotic and biotic difficulties. The manuscript focuses on Virtobot, an AI which is a product of interdisciplinary sciences that is believed to be the future of forensic sciences and criminal investigation. Virtobot uses a technology called virtopsy which is based on imaging techniques and forensic medicine and is touted for its non-invasive autopsy procedure. Studies show that the level of accuracy of Virtobot’s imaging technique can help detect peculiarities and injuries that may go unnoticed in traditional autopsies.
On-site detection of scientific evidences at the scene of offence will help improve their capacity to apply coherent speculation in various circumstances and discover answers for issues. Scientific investigation and the Criminal Law together make an assessment of the latest practices and court’s choices tending to the utilization of criminological science in the examination and trial of criminal and civil cases. In this context, we review some standard practices involved in the admissibility of the expert witness. Discussion is intended mainly to highlight the role of AI in solving the comprehensive challenges. Finally, we make a series of practical recommendations, with a Medico-legal opinion, especially in mind.
Heena Goswami, Assistant Professor of Science and Technology, Gujarat National Law University, E-mail: hgoswami@gnlu.ac.in
