The COVID-19 pandemic severely tested India’s social and economic strength. It raised questions about the ambit of a welfare state’s duty during a health crisis and the corresponding rights of citizens to public healthcare. With an enormous population to care for, India continues to strengthen the public healthcare system on several fronts. Yet, the pandemic raised challenges that highlighted several issues like disparities in access, poor quality, unequal distribution of healthcare units between regions, etc. At such a juncture, it is important for discussions on rights and duties associated with public health to strengthen relevant infrastructure to arm ourselves against future health crises.
Yet another disease that has plagued our country’s judiciary has been pendency of cases and judicial delays. It is often said that “Justice delayed is justice denied”. In addition to such a denial of justice, the judicial backlog also cripples public trust and faith in the system, which could have dangerous consequences. While reforms have been introduced in the past, they have not had the desired impact. An author argues that this is because past reforms have often been unsound policy decisions not based on critically analysed relevant data. The need of the hour is a new direction of change that will kick start our judicial system onto a faster lane to ensure speedier and more effective justice delivery.
The upliftment of women has been a longstanding global struggle. However, our nation’s grapple with this issue has its unique combination of impediments, such as identity politics, competitive federalism and communalism. With a nearing national election, it is an apt time to look back at the Modi regime’s contribution to this matter and assess the effectiveness of government initiatives taken over the past few years.
Of course, no government policy evaluation can be complete without an economic perspective. This edition’s issue of choosing is the impact of two amendments, made in 2016 and 2018, to the Financial Contribution (Regulation) Act, 2010. The retrospective nature of these amendments calls into question their very legality and brings up matters of constitutionality, separation of powers and legislative competence.
On another end of the policy spectrum, this edition also looks at Smart City programs- specifically, what exactly the Government must not do as a lesson from previous urbanisation schemes. The Smart City Mission has introduced measures like the Special Purpose Vehicle, which garnered criticism. Thus, a thorough analysis of this program is required to ensure that urbanisation happens with minimal issues.
On a more global note, an issue that has been grabbing headlines has been issues of international environmental policies and laws. One such important one is the interpretation of the Common but Differentiated Responsibilities (CBDR) per the Paris Agreement. The CBDR principle introduces different responsibilities for different nations based on their ability to contribute to the war against climate change. However, in complete contradiction, the Paris Agreement of 2015 imposes only voluntary actions on developed countries. This new model arguable dilutes the CBRD principle and does not hold nations to the standard against which they should answer. Thus, the Paris model must be re-thought and reexamined against the CBRD principle.
Another matter of global concern is that of extrajudicial killings. For instance, in Bangladesh, governmental agencies have been found to resort to extrajudicial killings, an option clearly dubbed illegal by both the law and the constitution. Such killings violate people’s rights to life and liberty, eroding the basic tenets of due process. What is needed is a study of a country’s obligation to protect the rights of its citizens and observe due process.
Lex Sportiva (sports law) is an interesting and upcoming field of law. However, owing to the nascent nature of the law, there exist several issues which must be ironed out to ensure smooth dispute resolution. One such issue is the exclusive arbitration clause used by FIFA, which has been highlighted owing to a clash with Nigerian national law in a recent dispute. It is pertinent that such tension is given immediate attention and resolved to ensure clarity that will come of immense assistance in future sporting disputes.
Every day, the world, including our own country, experiences diverse issues that traverse law, society and politics. The GNLU Journal of Law, Development and Politics is an apt platform for contemplative minds to analyze such issues and propose inter-disciplinary solutions. This edition of GJLDP covers national and global issues, ranging from judicial backlog in India to extrajudicial killings in Bangladesh. It covers matters of law and policy related to sports, health, political financing, urbanization and environmental law. Through such diverse scholarly works, we attempt to bring to our readers’ attention all forms of discrepancies that hinder development in the world of law and politics.
The GJLDP Editorial team takes this opportunity to thank the outgoing student members Anmol Rathore, Hansaja Pandya, Lalitha Nandula, Rishbha Arora, Angeline Priety Franklyn, Bhavnish Kaur Chhabda, Jalaj Jain, Keertana Venkatesh, Prominder Goyat, Delphina Shinglai, and Raunak Sood.
We hope this edition encourages our readers to think analytically and creatively and, hopefully, pen down some thoughts and solutions of their own.
- EDITORS
April 2022
GJLDP
Siddharth Singh
Abstract
International Environmental Law instruments have always incorporated differentiation provisions to equitably address developed and developing countries’ concerns while determining the environmental protection measures. The Common but Differentiated Responsibilities (CBDR) principle is recognized as one of the implementing arms of the differentiation. It allowed States Parties to adopt varied climate actions based on their socio-economic development. On the one hand, it considered the protection and conservation of the environment as a shared responsibility of all countries; simultaneously, it also acknowledged the difference in their capacity to address this responsibility. This principle has long existed in the international arena, yet it expressly got recognition after its adoption under UNFCCC in 1992. Considering that climate change is a global challenge, not all countries equally contribute towards it, nor do they have equal potential to curb this menace. Therefore, CBDR identifies different roles of the countries to tackle climate change. This principle facilitates developing and least developed countries in their environmental protection efforts by relaxing their ambition requirements. Along with its positive aspects, this form of differentiation has also led to several deadlocks and compromises in climate negotiations. As a result, while negotiating the Paris Agreement, developing countries alleged that developed countries are trying to dilute the core CBDR principle by transforming its structure under the UNFCCC and Kyoto Protocol. After adopting the 2015 Paris Agreement on climate change, the global community saw a different variation of this principle that now requires voluntary actions from developed and developing countries. Such a significant transformation necessitates the analysis of the CBDR principle as adopted under the Paris Agreement. It is also relevant to examine the extent of alleged dilution and ascertain the prospects and implications of this new differentiation model.
Keywords: Agreement, Climate, Change, Common, CBDR, Differentiation, Paris, Responsibilities.
D. Ganesh Kumar & Akshay D. Gudinho
Abstract
The paper examines the amendments made to the Financial Contribution (Regulation) Act, 2010 by the Finance Act, 2016 and the Finance Act, 2018. The effect of these amendments seems to override an order passed by the Honorable Delhi High Court. In this regard, the authors assert that the legislature did not have the competence to carry out such amendments. Further, the amendments do not satisfy the test laid down by the Supreme Court. Neither were the amendments merited as no judicial body raised concern regarding any possible lacuna in the law. The doctrine of separation of powers also comes to the fore because the amendments are Parliamentary actions that directly contravene an order passed by a judicial body, the Delhi High Court. The amendments also contradict the statutes in question as the aforementioned act and its predecessor, the Financial Contribution (Regulation) Act, 1976, prohibited any foreign funding to political parties in India. Amendments that attempt to rewrite such statutory objectives merit judicial scrutiny. The authors also tried to analyze the latest amendment pertaining to the Act.
The paper does not intend, directly or indirectly, to offend the Parliament, Judiciary or any Political Party but only attempts to incisively deal with the law and seeks to highlight the constitutionality of the same.
Keywords: Foreign funding, political parties, separation of powers, legislative competence.
Nour Mohammad
Abstract
None of the world’s legal systems should legitimize extrajudicial killing. It violates the core principle of natural justice. In a democratic country, every citizen has the right to life, liberty, and a fair trial. Most countries’ constitutions, along with the application of international Human Rights law ensures the right to life and a fair trial for all people accused of a crime. However, extrajudicial killings in the name of crossfire, gunfights and unexpected encounters deliberately violate the fundamental rights and human rights incorporated in various constitutions and human rights documents. The contemporary situation in Bangladesh is very alarming. There are now frequent violations of people’s right to life and their personal liberty, through the actions of enforcement agencies resorting to extrajudicial killings. These are not legalized in Bangladesh either in the law or the constitution. This article will explore the nature of the state’s obligation of ensuring the rights of its citizens and how to prevent the violation of fundamental human rights by applying the due process of law. It also examines the methods to take undertake investigation, prosecution and punishment of perpetrators under national and international legal regimes. The existing legal framework is analyzed, along with the gap between law and practice where the shielding of perpetrators of extrajudicial killings needs to be subjected to better justice.
Ogechukwu Miriam Akinsulore & Adedoyin Olusegun Akinsulore
Abstract
This paper interrogates the viability of the concepts of Lex Sportiva and sports law as legal realities founding the existence of FIFA and CAS. It then proceeds to engage the tension created between FIFA’s exclusive arbitration clause rule operative on its members and the sovereignty of the state's judicial power as enshrined in the Nigerian Constitution to resolve all disputes within the country's territory without exemption. Finally, the tension is resolved through careful analysis of the theory of the private mode of governance and the capacity of the state constitution to allow for the accommodation of such governance practice.
Keywords: sport, football, law, constitution, arbitration, Lex Sportiva, sports law
Nikhil Jain
ABSTRACT
Judicial delays and the huge pendency of cases is major bottleneck in the effective functioning of the judiciary. It is an undisputed fact that the Indian justice delivery system has become crippled to such an extent that it is shaking public trust and faith in the judiciary. This paper argues that the judicial reforms directed at minimising the delay and backlogs have either failed somewhere or have met with a limited favourable outcome. It discusses that the approach adopted by the policymakers for judicial reforms has rendered unsuccessful as it lacks effective critically analysed data to generate the required information for making productive policies. It also highlights that the policymakers have failed to consider the lacunae present in the existing justice delivery system. The paper advocates that it is the need of the hour to adopt the new different strategic policies which are based on well analysed empirical data to reduce the delays and pendency in the Indian courts. While doing so, it also suggests some non-conventional solutions for the existing issues which can upgrade the Indian justice delivery system.
Keywords: Judicial backlogs, Indian justice delivery system, National Court Management system, National Litigation Policy, Judicial Reforms
Eva Loreng
Abstract
The Indian diaspora has become a pivotal part of academic dialogue in the last two decades. The changing world and domestic politics and composition of the diaspora determined their involvement with the home state. The motivation behind their involvement has oscillated from nationalistic zeal to pragmatism due to uncertainty about stay in the host land in some cases. Contemporarily this vigour has taken the form of diaspora’s involvement with the assembly and state elections in India. The overseas wings of the national parties have emerged as determinants of election results, which also inspired several regional political parties to adapt the same path. The paper historically traces the evolution of diaspora’s participation in home state politics and how contemporarily different political parties woo it. It concludes with the general elections in 2014 and 2019 as they mark a zenith in their participation.
Keywords: diaspora, elections, political parties, voting, campaigning
Praveen Kumar
Abstract:
The pandemic in the form of COVID-19 or as alternatively known as spread of novel corona virus has given a chance to human societies to understand the inherent contradictions within. The problem is global, but the solution that is sought is mostly local. Using Gandhain philosophy as a conceptual tool, the paper argues that since Gandhi himself was a witness to the development of the ‘modernising world’ and he had carefully analysed India’s conditions in that background, Gandhi was conscious of the fact that India’s problems were required to be addressed in a way that should suit its conditions. The growth trajectory of the western civilisation in the socio-economic and political field may not perform the role of a universal model that India could follow. It is in this background that this work aims, first, to highlight the ‘needs’ of Indian society in a broader framework. Second, the salient features connected to contemporary economic issues and its linkages with thoughts of Gandhi have been highlighted in the context of conditions under COVID-19. Finally, a prescription to understand the opportunities to address the ‘economic needs’ of the society have been given. The work, in a way, contains arguments and explanations that are rooted in historical facts and contemporary happenings.
Dhanya. S and Meenu Chopra
Abstract
An effective and efficient health care system is a basic requirement of a welfare state. India being a welfare state its primary duty is to ensure welfare of the public. It is vital for every country to have proper healthcare system to provide care for the sick and to ensure physical and mental well-being of its citizens. India has an enormous healthcare system with many modern amenities and technologies. In India the public healthcare is a state subject under list II of the Constitution. The country has a decentralized approach to healthcare and all three tiers of the government have their specific roles to play. With the current pandemic and the transition in demand, India is striving to strengthen the public healthcare system by adding a greater number of healthcare units, amenities and human resources to the system. The country has also adopted hybrid mode of medical treatment to meet the increased demand for medical professionals. However, the country is still struggling to meet the increasing demand as the current pandemic poses major threat to the health and well-being of the 1.3 billion population. In addition to the challenges thrown by the pandemic, the public healthcare system of India is still under the curb of many other challenges including disparities in access, poor quality, unequal distribution of healthcare units between regions etc. This study is an attempts to understand and analyze the legal status, issues and challenges involving public healthcare in India. To study the same the researcher has adopted a doctrinal method.
Keywords: Right to healthcare; quality; healthcare units; out of pocket (OOP); health insurance; disparities in access; physical and mental wellbeing
Madhu Jha
Abstract
The contemporary political environment in India is marked with issues of identity politics, competitive federalism, communalism, nationalism and economic fallouts of liberalisation. It is in this background that one needs to locate the issue of increasing vulnerabilities of women as a category. The increasing importance of inclusive growth for determining the development parameters of a State puts before it the challenge to address the areas where gender inequality persists. As government is the key institution capable of formulating laws, and policies meant for uplifting the status of women, this paper attempts to assess the Indian government through the lens of women. The last two general elections in India have pronounced a clear mandate for one party with one leader, Narendra Modi. This study tries to examine the important initiatives of the Modi regime (2014-2020), to bring gender equity in the society and also points out areas where the government must deliver. Preparing a detailed feminist assessment report of the Modi regime will hopefully help in guiding the future trajectory of attaining women equality in India.
Keywords: Gender Inequality, development, policy, financial inclusion, Modi regime, triple talaq.
Manas Agrawal
Abstract:
Urbanization brings with it a host of problems. Some of these problems are traffic congestion, vehicular, emissions leading to pollution, lack of housing, and unsatisfactory transport activities. Furthermore, these issues are detrimental to the Indian nation both from a social and economic perspective. Hence, there is an imperative need to solve these issues by employing a good governance approach in the field of urban development. Towards that end, many schemes both from various state governments and central governments have been rolled out. However, these schemes due to the problems of insufficiency of funds, etc, have been insufficient. Therefore, these schemes should be regarded as models for what to avoid in the implementation of the Smart Cities Mission, the latest scheme in the area of urban development. Furthermore, the Smart Cities Mission itself has some contentious aspects such as the Special Purpose Vehicles. Thus, it becomes important to provide a comprehensive review of the Smart Cities Mission, identify issues in the scheme, and provide solutions for the same.
Keywords: Smart Cities Mission, Special Purpose Vehicles, Urban Local Bodies, Urban Development, 74th Constitutional Amendment
