• Color Scheme

Volume 10 Issue 2

Editorial Note

The emergence of South Asia and particularly India has increasingly become vital to core U.S. foreign policy interests. Indian being the region’s dominant actor, President Barack Obama’s Administration has sought to build upon the engagement which begun with President Clinton. Adopting the premise of an ‘Indo-Pacific’ region, the Biden administration proposal to forge a new system of alliance binding South and East Asia, and Asia and Europe, as well as of including India, South Korea, and Australia into the G-7 to form a new “D-10”—the ten great democracies is eliciting widespread curiosity among Indian policymakers and commentators. However, despite leading on many fronts, some of the domestic policies has cast a dark shadow on India’s diplomatic achievement.

The challenges India faces are varied and numerous placing it at a critical policy juncture. Rapid urbanisation; decline in agricultural productivity, growing energy demands; environmental degradation; weak human capital; unemployment; new security threats; and re-positioning India in a changing global order are some of the emerging issues and challenges. It is therefore to be seen how India can negotiate these challenges to build a robust economy and a vibrant democracy.

India’s GDP was recorded at its lowest in the first quarter of the financial year 2020-21 with little to no signs of recovery. The nation’s macro-economic challenges, employment crisis, infrastructure deficit and agricultural distress requires measures that not only decreases the growing wealth gap while enhancing competition and also addressing certain aspects of crony capitalism.

The issue of law, politics and development took a center stage in the later half of 2020 with the passage of the three contentious legislations- The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Act and The Essential Commodities (Amendment) Act. The farmers from various states across India have been registering their protest against the afore-mentioned laws since September 2020. It is apprehended that due to the power imbalance between unorganized farmers and private corporate entities and the markets exploitative nature, the development promised is for the riches. However, the Government maintains that the legislations further the goal of development of the farming sector by opening doors for innovation and free market forces. The utility and validity of the Acts is still an open question. The issues of democratic consultation with various stakeholders, regional politics, right to freedom, separation of powers and parliamentary procedure have gained as much traction as the content of the legislations.

This volume consists of articles on the features of Indian democracy including the freedom of speech and expression, with a focus on the freedom of press and political communication and the nature of the relationship shared between the three organs of the government. The volume also brings a perspective on the need to retain capital punishment in the current criminal judicial system and takes the human rights approach to understand international investment law, artificial intelligence, Yugoslav crisis and the Rohingya displacement in Bangladesh.

GJLDP solemnly resolve to continue to deliver quality academic scholarship, support informed politics and infuse hope for development and transformation towards a brighter future.


October, 2020

Closure of ICTY: The Mandate is Not Yet Over

V.K. Ahuja


The humanitarian crisis in terms of “willful killing, ethnic cleansing, mass killings, torture, rape, pillage, and destruction of civilian, cultural and religious properties” in the former Yugoslavia since 1991 sent the shocking waves to the entire international community and shook its conscience. Thousands of people were killed and wounded in those conflicts. Lot of atrocities including torture, expulsion from house, sexual abuse in detention camps, ethnic cleansing, etc. were committed on the civilians during the conflict. The genocide in Srebrenica haunted the global conscience. In order “to create the conditions of peace and security required for the negotiation of an overall settlement of the Yugoslav crisis”, the Security Council in the month of February 1992 established United Nations Protection Force (UNPROFOR) for an initial period of 12 months. The operational mandate of UNPROFOR extended to “five Republics of the former Yugoslavia - Croatia, Bosnia and Herzegovina, Macedonia, Montenegro and Serbia”. It also had a liaison presence in the sixth Republic Slovenia. The mandate of UNPROFOR was extended from time to time. In spite of its best efforts, the peaceful situation did not arise and violence went on unabated. The international community felt that these unforgivable crimes could not be tolerated and should not be left unpunished. The Tribunal has contributed substantially to the jurisprudence of international criminal law. It has ushered a new era of accountability, end of impunity and set an excellent example by listening to the voices of the victims.

Prof. V.K. Ahuja, is Professor In-Charge, Law Centre-II, Faculty of Law, University of Delhi. E-mail: vkahuja2002@yahoo.co.in

An Overview of Political Communication under the Freedom of Speech and Expression

Anil Kumar Thakur & Krishan Kanha


The freedom of speech and expression is the essence of any civilized state which claims to be democratic in its spirit and ethos. This freedom of speech and expression plays an important role in the electoral democracy for voters as well as the politicians and political parties. Although, in India, freedom of speech and expression of political parties is not recognized separately, but as is the case with the press, this freedom emerges from the freedom given to every citizen under Article 19 of the Constitution of India. The political parties use this freedom of speech and expression to appeal to voters by promising voters various benefits of electing them, to criticize the ideas and policies of their opponents and give an insight into the vision and plan they have devised for their fellow citizens. The political communication is also controlled by the clause 2 of Article 19 as it imposes various restrictions on freedom of speech and expression. Thus under the cloak/garb of electoral freedom and the freedom of speech and expression, politicians are neither allowed to do any illegal act nor are they allowed to commit any offence or incite anyone to commit an offence. Even then there are numerous allegations against the current political environment of country wherein the freedom of political communication is used for the petty benefits of getting elected at the cost of national interest. So the purpose of this paper is to analyse the legal political situation in this regard with special reference to communal politics, hate speeches, paid media/news and unfulfilled manifestos.

Dr. Anil Kumar Thakur, is Associate Professor, Department of Laws, Panjab University, Chandigarh; E-mail : anilthakur@pu.ac.in
Krishan Kanha, is an Advocate, Punjab and Haryana High Court. E-mail: gargkrishan0@gmail.com

Envisaged Relationship between Parliament and Judiciary: An Analysis of Constituent Assembly Debates

Brijesh Yadav


A study of constituent assembly debates helps us to configure the interrelationship between Indian Parliament and Judiciary in working of democracy in India. Parliament and Judiciary in the post independence period in India have been in apparent friction over mainly two issues. Firstly, tussle between amending power of Parliament versus power of judicial review over Fundamental Rights. Secondly, on the question of primacy in case of conflict between Fundamental Rights and Directive Principles of state policy. The assembly pitched for a limited judicial review through rejection of ‘due process clause’ in favour of procedure established by law’ owing to need of socio-eco transformation of the country and the broader representative character of the Parliament. The Assembly had a broad consensus that directive principles were equally salient as fundamental rights and mode of harmonisation could be achieved between the two by Parliament and Judiciary. Certain vagueness in the provisions of the constitution indicates an expectation of institutional maturity on behalf of the two institutions to prevent precipitation of a constitutional crisis. The Assembly conceptualised a democratic limited government under the constitution with significant limitation on Parliament and Judiciary with expectation to act in unison and harmony in line with the constitutional mandate and democratic aspirations of masses.

Brijesh Yadav, is Assistant Professor, Dept. of Political Science, National Defence Academy, Khadakwasla, Pune; E-mail: brijacademics@gmail.com

The Rohingyas Crisis: An Interminable Journey of Statelessness

Dipikanta Chakraborty


The article examines the root causes of Rohingya displacement and their present condition in Bangladesh. It critically discusses the role of major powers in South and South-East Asia. Rohingya is an ethnic group in Myanmar. The eluding of the natives of Myanmar to other countries is one of the biggest humanitarian crises in Asia. Having been an abject victim of atrocities perpetrated by the Myanmar regime the Rohingya community absconded to many nearby countries in South and South-East Asia. Their social and political culture is at risk due to the social-cultural and economic exclusion in their native state. A large and considerable section of Rohingya took shelter in Bangladesh. But sheltering of this Rohingya is not an amicable solution to this man-made plight because the Rohingya in Bangladesh is leading the worst life in the camps; they are escaping from there in search of livelihood. The collective and benignant initiative of the major powers across the world is the only solution to the crisis. The present work explicitly highlighted the socio-economic and political conditions of the Rohingyas at the local and the global level. It is a brace to support a community who are ill-treated and exiled on the ground of religion.

Dipikanta Chakraborty, is Assistant Professor, Faculty of Liberal Arts, ICFAI University, Tripura: E-mail: dipikanta03@gmail.com

Rethinking Ram Jawaya Kapur: How far the Executive can go without Legislative Authorisation?

Waseem Ahmad Bhat


The essence of a written constitution is the definition, demarcation and limitation of powers of the government. It not only creates the governmental branches and invests them with the powers, but, also demarcates the boundaries and limitations on the exercise of the governmental power. A constitutional democracy in government demands to have checks and balances so that the power should not concentrate in one branch which may endanger the individual liberties and may abuse the constitutional principles. There is no doubt that the executive branch of the government has remained more gravitational to the governmental powers and often fling the functioning of the other two branches of the government. The gravitational pull and the fling exert maximum force when the essences of checks and balances diminish because of some contingent situations like the emergency ignited by external aggression or financial breakdown or any other gravesituation like the one which humanity is experiencing in wake of the breakdown of Novel Coronavirus (COVID-19). In this paper, the author analyses how the Supreme Court of India established an expensive authority of the executive government in Ram Jawaya Kapur in the mid-nineteen fifties cornerstone for subsequent legal development in India. This paper will unleash how this unnoticed legal foundation laid down by the Supreme Court is lethal to individual liberties and democratic ethos. The author draws the analogy by revisiting the Youngstown, the Patriot and the Executive Order issued by the Bush administration on September 13, 2001. The first part of this paper will explore and analyse the nature, meaning and scope of the executive powers of the Central Executive of India. It contains an analysis of the relevant provisions of the Constitution, history and Judicial precedents. It establishes that specific language of the provisions of the Constitution of India bestows no authority to the executive beyond or without legislative authorization of the Parliament. The second part analysis the precedent laid down in Ram Jawaya Kapur and authorities relied upon to reach such a conclusion. It evaluates the opinion of Justice Mukharjee and the subsequent effect of the precedent in the development of the law of this branch. The third part analyses the judicial and intellectual persuasion of the USA Patriot Act and The Bush Administrative Order in the aftermath of the September 11, 2001, terrorist strikes and the “police action” in Korea during the early nineteen fifties. The paper concludes by suggesting the revision of Ram Jawaya Kapur precedent as it seemingly eliminates the legislative authorization for constitutionally permissible action taken by the executive. The proposition that executive powers are coextensive with legislative power is an erosion of the legislative authority of the Parliament as it upsets the meticulously calibrated equilibrium between the legislative and executive powers of the Government.

Waseem Ahmad Bhat, is a Doctoral Scholar, Gujarat National Law University and Assistant Professor (Law), Gujarat Maritime University, Gandhinagar; E-mail: waseem-smlpa@gmu.edu.in

Freedom of Speech and Expression with Special Reference to Freedom of Press

Forum R. Patel & Purvi Pokhariyal


Freedom of Press, popularly considered as the fourth pillar of modern-day democracy, is an essential and quintessential part of the democratic nation of India. Active participation of a modern and informed citizenry acts as a much-needed vigilance upon the actions of the administration, which in turn is a necessary feature in the modern democratic society. Freedom right related to media denotes the right to speech, communicate & express through the mediums such as several electronic and print media, and now the omnipresent and omniscient Internet sources. While the essential prerequisite of freedom of the press is the limited intervention of an overreaching state, its preservation through constitutional or other protections is as much vital for the nation as the preservation of democracy itself. The media, strong mass communication medium, should be kept free to play its part in building a healthy society. Not giving the right to people freedom of the press and media will weaken the power to influence public opinion and will be against the idea and concept of democracy. The paper argues that the authenticity and justifiability of freedom of the press will be fructified only by the determining and defending their rights and protect their valuable freedom. The rights given to the media should only be to bring real facts before public and not to pass judgments and deliver justice.

Forum R. Patel, is a Research Scholar, Institute of Law, Nirma University, Ahmedabad, Gujarat; E-mail: thakar.foram@gmail.com
Prof. (Dr.) Purvi Pokhariyal, is Director, Institute of Law, Nirma University, Ahmedabad, Gujarat; E-mail: director.il@nirmauni.ac.in

In the Matter of Great Public Importance Touching upon the Independence of Judiciary –A Great Opportunity Missed

Sanjeev Kumar Choudhary


“In general, court confines its findings and remarks within the realm of the dispute at hand. However, when the issues addressed are of larger public importance, remarks become significant for the public at large. The remarks and the guidelines issued by the judiciary time-to-time through various judicial pronouncements have positive impacts in the life of the citizens. It also fosters confidence in the citizens that judiciary, which is an independent institution, will protect their rights in case of infringement/curtailment, by deciding the issues following the principle of natural justice and without being biased at all. Fortunately, our judiciary had stood firm in protecting the faith and keeping the trust of citizens intact. One such prominent example is the Vishakha Guidelines. Therefore, we, as a citizen, have immense faith in our judiciary: especially in the Supreme Court of India. However, the unprecedented and historic press conference by the four then senior most Judges of the Hon’ble Supreme Court of India in the month of January 2018, indicating the need of preservation of the institution for the survival of democracy, has raised serious concerns in the common public. Later, the issue pertaining to the allegation of sexual harassment against the then Chief Justice of India, Hon’ble Mr. Justice Ranjan Gogai, the comment of the then Chief Justice thereon, incidental issues brought on record in the meanwhile, have raised a thoughtful concerns in the mind of the citizens. Probably, for the first time in the history of the Supreme Court of India, such allegation has been raised against the sitting Chief Justice. The matter is resolved now. The then Hon’ble Chief Justice had been given a clean chit and recently, the complainant have also been reinstated in the service. But, certain concerns remained answered. This article is an attempt to identify those concerns, to analyze the popular public perception pertaining to the concerns and most importantly, to evaluate conduction process implied to resolve the dispute in the light of principle of natural justice and also to analyze its impact on the judicial independence.”

Sanjeev Kumar Choudhary, is Assistant Professor of Law, Gujarat National Law University, Gandhinagar; E-mail: schoudhary@gnlu.ac.in

Critical Analysis of the Legal Manner of GST PCT

Kritika Tekwani & Rinku Raghuvanshi


With the introduction of GST Law in 2017, GST replaced various taxes and levies and came as a single indirect tax. To discharge the GST compliances on behalf of the taxpayers the need for Goods and Services Tax Practitioner (GST PCT) has been increased. These practitioners play a very crucial role in the execution of GST formalities. The objectives of this research paper are to do a critical analysis of the legal aspect for GST PCT and to study the responsibilities of a GST PCT. This paper focuses on the qualification to become a GST PCT. In the CGST Act 2017, there are several provisions and laws associated with GST PCT. This study also points out the GST activities performed by the GST PCT. This research paper reports that the GST PCT has to face various key issues while doing the GST practices. Researchers have critically analyzed the legal aspect of GST PCT. Some recommendations have also been provided in this research study including furnish correct return details, avoid GST evasion practices, etc.

Kritika Tekwani, Research Scholar, Management, Bhartiya Skill Development University, Jaipur, E-mail: kritika. tekwani@ruj-bsdu.in
Dr Rinku Raghuvanshi, Associate Professor, Management, Bhartiya Skill Development University, Jaipur.

Artificial Intelligence and its Creation: Who Owns Intellectual Property Rights?

Soaham Bajpai


Humans are considered as the most intelligent living creature on the earth. They are the only creatures who can create something by using their intelligence. Humans, using intellectual capacity, have created somewhat near to their intelligence which is commonly known as Artificial Intelligence. Interestingly, Artificial Intelligence has recently developed the capability to generate content in such a way that it may be intellectual property and thus required to be protected. On the other hand, the content generated by Artificial intelligence may also infringe on intellectual property rights of others. Consequently, in this new world of technology led by Artificial Intelligence, it will be imperative for law-makers to determine how to protect intellectual property in those instances where an Artificial Intelligence has learned independently of its creator and used that knowledge in a way that generate intellectual property which could be called as “invention” or “creation” within the definitions existing in legislation. This will also necessitate to provide legal mechanisms to deal with the issues of infringement by Artificial Intelligence. These autonomous systems will bring forth pertinent questions concerning Intellectual Property Rights which will challenge not only traditional notions of concepts such as patents and copyrights but will also lead to the emergence of questions related to the regulation of such creations amidst others. This paper seeks to provide insight into the expanding scope of Intellectual Property Rights and Artificial Intelligence, along with the inevitable challenges it brings from a worldwide lens on the matter and to give possible suggestive measures. This paper will also draw a comparative analysis of legal framework available for Intellectual Property Rights in different jurisdictions like EU, Singapore and India with special reference to the interface of Artificial Intelligence and Intellectual Property.

Soaham Bajpai, Assistant Professor of Law, Gujarat National Law University; E-mail: sbajpai@gnlu.ac.in

Capital Punishment: To be or not to be?

Kavita Bhatia


It is universally accepted fact that Capital punishment is the most deterrent punishment amongst the other forms of punishment. Owing to its nature there are different views of different community of people. It is the debatable phenomena amongst different nations as well. Till July 2015, the Indian Judiciary has sentenced with death penalty 1,3031 and 371 Indians are on death row and only 4 have been executed in last 13 years2. In September 2016 the Supreme Court has acquitted the accused in four cases of rape cum murder and three cases of multiple brutal murder and upheld life imprisonment. The author tried to give answer to the question “whether capital punishment should be a part of our criminal justice system or it should be abolished from the statutes?”

Kavita Bhatia, Assistant Professor, Faculty of Law, The Maharaja Sayajirao University of Baroda, Vadodara; E-mail: kavita.bhatia-law@msubaroda.ac.in

Forest Conservation Framework for Sustainable Development: A Study of the Malki System in Dangs, Gujarat, India

Dinesh Dasa


Community Forest Management (CFM) is increasingly recognized as a strategic solution for maintaining forests. Thus there is an urgent need to explore how CFM can be implemented more effectively such that more benefits are harnessed on a sustainable basis. The CFM ‘Malki system’ enacted by Government of Gujarat, which evolved through a period of many decades, paved a strong way of maintaining forests, supporting biodiversity conservation and carbon storage in the state of Gujarat, India along with strengthening the livelihood of the tribal community which is directly dependent on the forests. The startling success of the Malki system can be gauged by the very fact that 800,000 new trees were planted in the Dang forest during 1994-2019 while Rs 299.4 crores was earned by the 19,936 beneficiaries till December, 2019 by selling the forest produce. Juxtaposing the Environmental Success along with the Economic Success, the CFM Malki system practised in the State of Gujarat emerges as a classic example of ‘Sustainable Development’ which can be replicated or drawn upon for evolving CFM framework to be implemented in different forests of the world.

Dinesh Dasa, is as Ph.D. Scholar, Gujarat National Law University, Gandhinagar, E-mail: dineshdasa@ymail.com