The last few months have been a challenging time for all four of India’s pillars: the Legislative, the Judiciary, the Executive, and the Press. Very recently, the Supreme Court rulings in 2017 strengthened fundamental rights, equal rights for women, and accountability for security forces violations. The court also declared the right to individual privacy ‘intrinsic’” and fundamental under the country’s constitution, and emphasized the constitution’s protections, including free speech, rule of law, and ‘guarantees against authoritarian behaviour.’ Later, the court ruling also ended the practice of “triple talaq,” allowing Muslim men the right to unilaterally and instantaneously divorce their wives.
However, the Judiciary’s challenges have been different. We have seen the people becoming more aware about the independent nature of the organ. That is a crisis of face for the Judiciary. In a bid to keep maximum independence, there is a lack of clarity on what the powers of the Chief Justice are, as Master of the Rolls. Other developed nations have developed a model where all Judges of the Supreme Court sit on every matter, ensuring that there is no issue of “different voices” speaking for the “same Court”. Whether India adopts a similar system is something left to be seen, but what is clear, is that the Judiciary has to gain back the confidence of the common man, and we would hope, that there are institutional mechanisms to resolve issues prevailing today.
The government pursued a series of reforms across areas including banking, power, taxation, improving the Ease of Doing Business rankings, among others. However, job creation has been slow. The Labour Bureau’s seventh Quarterly Employment Survey showed that in July-September 2017, job creation stood at 1,36,000 against 64,000 in April-June 2017 and at 32,000 in July-September last year.
The Government, having promised “Acche Din”, is now witnessing its judgment day in the build-up to the 2019 Elections. There is, today, discourse about whether the Government at the Center has been a success, or whether it is yet to deliver on promises that have been made. Where it is the latter, there is discussion about whether these promises deserve another 5 years for delivery. This discussion will be pivotal to the outcome of the 2019 elections.
Although the Karnataka election result was a cliff-hanger and the BJP failed to secure the majority numbers, it has made inroad into the southern states indicating a decline of the congress and that BJP, with Modi is the party of the future. The Karnataka election has also thrown up various issues for debate and discussion as to how the position of governor was compromised. What is What is worrying is that the Election Commission’s integrity has also become a matter of an ongoing debate. Such debate raises question as to whether the Indian democracy is in danger and India as a country can barely afford the public to lose faith in the system.
Globally, the political landscape of the world is changing. What was once impossible – a meeting of the leaders of the two Koreas, has now taken place. While this is a diplomatic victory, in all respects, one must not forget the role that Moon Jae-in’s background plays. The background of leaders is oft forgotten once they take public office, but plays a large role in the policies they enact and the approach they bring to the table. A peaceful world is only truly possible where everyone feels at ease with each other, and a commonality in background presents a common thread from which conversations can be spun.
This volume brings issues from Independence and Integrity of the Judiciary to discussing the Sixth Schedule of Indian Constitution and Tribal Development, to role of national commission in strengthening the backward class and much more.
The Editors takes this opportunity to thank the outgoing student editors; Gayathree Devi, Muizz Drabu, Nikhila Dewasthale, Nirmal Mathew, Sameer R. Bhat and also the present student editors who had dedicated and committed themselves to ensure the that the quality of GJLDP is maintained and that it meets the requirements of academic excellence. We hope that the incoming board of student editors will strive to honour the efforts of the past ten years and continue the tradition of academic scholarship and excellence.
- EDITORS
April 2018
GJLDP
Eric Gonsalves
An earlier version of the paper was presented at the Ambassador Lecture Series, organized by the Center for Foreign Policy and Security Studies, Gujarat National Law University, Gandhinagar, on 5 January, 2017.
Mr. Eric Gonsalves, Former Ambassador of India to European Union and Japan and former Secretary, Ministry of External Affairs, Government of India and currently Chairman of the Board, Centre for Policy Research, New Delhi.
Ravindra Kumar Singh
Abstract
Notwithstanding the nature of a legal system, for a cohesive social order and healthy political edifice, one of the most important prerequisites is the existence of an independent, impartial and robust judiciary. Realising this, the framers of the Indian Constitution have provided detailed provisions in the Constitution itself, so as to create an effective instrumentality for dispensation of justice. Besides independence and neutrality, ‘integrity’ of the judiciary — as an institution — is of paramount importance. In addition to the other features, integrity is the symbol of judicial discipline. Thus, a supreme onus lies on the judges, for the trust of the public gets affected or shaken by lack of integrity and character of the judges. They have been characterised as ‘hermits’; they have to live and conduct themselves like ‘hermits’ who have no desire or aspiration, having shed it through penance; and their mission is to supply light and not heat. Above and beyond the quality of judgments pronounced by a judge, the character and immaculate integrity of the judge in his public life are the reasons for the high standards of trust and faith that the public has reposed in high judicial offices of constitutional integrity. This paper aims at discussing the significance of independence, impartiality and integrity of the judicial system, especially of the higher judiciary; and in particular, it analyses the 12 January 2018 Press Conference by four senior judges of the Supreme Court of India whereby they attempted to bring to the fore the serious issue of allocation of cases (particularly in sensitive matters) and constitution of benches. In this paper, unless otherwise mentioned, the expression ‘Constitution’ means the Constitution of India.
Dr Ravindra Kumar Singh, Dean (Academic Affairs) & Associate Professor of Law, Gujarat National Law University, India, Email: rsingh@gnlu.ac.in and ravindrasinghshoorwar@yahoo.co.in
Divya Tyagi
Abstract
Transnational Corporations (TNCs) have emerged as major players in our contemporary globalised world. In the course of such emergence, they have alleged to be involved in the violation of right to clean and healthy environment. United Nations, though created to avert third world war, have become engaged in the task of developing Code for regulation of TNCs for violation of human rights. Attempts to come out with Draft code of conduct for TNCs presented first such opportunity. However, it could never become reality due to lack of consensus. After abandoning the Code, another opportunity came in 2003 in the form of Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (UN Norms). UN Norms provided the most comprehensive framework detailing human rights obligations of TNCs including the right to clean and healthy environment and their implementation procedure. However, owing to their binding nature, they too became highly contentious, sharply polarising the international community. Such polarisation reduced them to merely voluntary in nature. Despite such fate, UN Norms cannot be regarded as a lost opportunity. They are available to be revived as and when consensus emerges within the international community in their favour.
Dr. Divya Tyagi is Assistant Professor of Law, Gujarat National Law University, Gandhinagar, Email: dtyagi@gnlu.ac.in
Bikash Chandra Dash
Abstract
Constitution of India has special provisions for the development of tribal people in the country. One of the important constitutional provisions with regard to the development of tribal people is the provision for the constitution of Autonomous District Councils (ADCs) under sixth schedule. According to the provision, many ADCs were formed to work as a mechanism for the protection of the interest of the local people inhibiting in hostile hilly terrain of North East India with typical indigenous culture, life style and traditional socio-economic practices. After a brainstorming debate made in the Constituent Assembly on the issue whether there would be ADCs or not, it was decided in favour of the issue. Provision of formation of ADCs was incorporated under sixth schedule with some members like Gopinath Bordoloi, Shri Kuladhar Chaliha, Rev. J.J.M. Nicholas Roy making strong arguments justifying the creation of ADCs. Some tribe specific ADCs have also been constituted in order to promote development of a particular tribe. After six decades of the working of ADCs, there is a question in the mind of many academicians and policy makers to what extent the ADCs have been effective in fulfilling the objective of promoting socio-economic development of the local people of the region. The questions like what are the opportunities for the ADCs and challenges exist before the ADCs for the people of the region for their development need attention. This paper is an attempt to assess challenges of the ADCs in promoting development on the basis of the secondary sources and finds that ADCs have been given enough power to chalk out and implement many development projects notwithstanding the fact that these are controlled by the state governments through governor. Apart from that the ADCs are facing the problems of inadequate funding, corruption, overlapping of the institutional arrangements and interference by the state government etc. Finally the paper concludes that certain measures like adequate funding, cooperation of the state governments with ADCs, willingness of ADCs in promoting faster socio-economic development and participation of local people are required for getting expected results from ADCs in promoting tribal development in the region.
Dr. Bikash Chandra Dash is Assistant Professor of Department of Political Science Assam University Diphu Campus, Email: bikashsh@gmail.com
Ogwezzy Michael C., Olugbenga Oke-Samuel, Ogwezzy Oluwatosin O.
Abstract
All over the world the issue of insecurity is on the front burner of discourse among national governments, the international community, regional groups, the United Nations, academics and security practitioners. At any point in time, conferences are held in different parts of the world where issues of environmental protection, human rights or national security are being discussed. No nation is immune when it comes to issues of insecurity. In Nigeria and other parts of the world, natural disasters, flood, hurricane, mudslides, landslides, fires etc, have been identified as major causes of insecurity, resulting in millions of deaths and major challenges for governments and their national security, relief and allied agencies. Apart from the introduction, this paper commences with the clarification of keywords used: environmental insecurity, human rights and national security from varied perspectives. The other sub-issues considered in this paper are the legal challenges of insecure environment in the context of human rights, and national security, international dimensions and country specific situations of environmental insecurity, environment insecurity vis-à-vis national security, human rights context of environmental security followed by sets of recommendations and conclusion. The paper applies domestic and international human rights law and discourse in a contextual manner to link environmental insecurity, human rights and national security, in Nigeria and other jurisdictions. These three cardinal concepts, form the bedrock of this academic inquiry.
Dr. Ogwezzy Michael C., Associate Professor, Faculty of Law, Rivers State University, Nkpolu-Oroworukwo, Port Harcourt, Rivers State, Nigeria. Email: ogwezzym@yahoo.com
Olugbenga Oke-Samuel, Senior Lecturer, Head of Department, Jurisprudence and International Law, Faculty of Law, Adekunle Ajasin University, Akungba, Akoko, Ondo State, Nigeria. Email: lawville@yahoo.com
Ogwezzy Oluwatosin O., LL.B (OSU) B.L, (Enugu), LL.M (LAGOS), Faculty of Law, Adekunle Ajasin University, Akungba, Akoko, Ondo State, Nigeria. Email:ogwezzytosin@gmail.com
Mayuri Gupta
Abstract
India is an ancient country with a long history of caste practice. It has a composite population having a number of groups based on language, religion, caste and backwardness. The Indian society is characterized by a high degree of structural disparity based on the tenets of the caste system. The prevalence of social exclusion created a large group of marginalized population who were needed to be uplifted in order to exploit the benefit of equality. Fortunately, our constitution makers realized the need for social justice and affirmative action. The Indian Constitution provides a well knit provision of civil and political as well socio-economic rights for its citizens. It authorizes special preferential treatment for other socially and educationally backward classes. The provisions of the Constitution emanating from the Preamble cast an obligation on the State to promote these weaker sections. But in absence of any Constitutional meaning, the other backward classes in India have been recognized in caste lines. The recent call by the National Commission for Backward Classes for recognizing orphans as backward class influenced by the judgment in Ram Singh v. Union of India and the Supreme Court’s decision in National Legal Services Authority v. Union of India recognizing transgender people as socially and educationally backward classes has been welcomed throughout the country. The present paper examines the other backward classes in the light of the Constitutional provisions, the emergence of National Commission of Backward Classes, its function and role considering the recent developments proposed by the Commission.
Mayuri Gupta, former LLM student, Gujarat National Law University, Gandhinagar and is presently Advocate Patna High Court. Email: mayurigupta55@gmail.com
Filzah Belal
Abstract
Public Interest Litigation, or commonly called as ‘PIL’, is a very handy tool in the hands of the common people who feel that their fundamental rights have been violated.
President John F. Kennedy have expressed that a PIL makes a citizen feel like a part of the country and make him feel belonged to the country by way of the Constitution where it mentions "we the people". This was so because through PIL a citizen is made to feel like he has the power to enforce the constitution, be it against the state. PIL has been called as ‘social action litigation’ by Prof. Upendra Baxi who felt that PIL is a very important social tool to bring about constitutional enforcement to the fundamental rights granted by the constitution of India. Even the Judiciary has been very flexible with entertaining pills that concern of social matters in Public Interest.
A PIL has evolved over time and has undergone various phases. Over time, by way of PILs, various other rights have also been included into the ambit of other Fundamental Rights, for e.g.: including the Right to Clean Water with the interpretation of Right to Life under Art. 21. Many such developments have occurred through judicial interpretations of various Fundamental Rights by the Judiciary in PIL cases.
A PIL for have-nots had been a distant dream for a long time as they didn’t have enough knowledge or proper access to it. This category of ‘have-nots’ is diverse and can include all of those persons who have been deprived of their fundamental rights even while they have all other resources. These have-nots are the ones that PIL aims to strengthen by ensuring their fundamental rights. It will be a successful tool only when it will be fruitful for the have-nots as PIL is motived to enforce fundamental rights of those whose fundamental rights have been violated.
Filzah Belal, is a third year, B.A. LLB (Hons.) student at National Law University and Judicial Academy, Assam.
Aditya Manubarwala, Amogh Simha N.S.
Abstract
This article analyses the reasoning of the Supreme Court in the case of Rajbala v. State of Haryana upholding the Haryana Panchayati Raj Amendment Act 2015 that lists five more disqualifications to contest for the Panchayat Elections. Candidates against whom charges have been framed in criminal cases for offences punishable with imprisonment of 10 years and above, persons who have arrears pending with agricultural societies, agricultural banks and district co-operative banks, persons who have arrears of electricity bills, persons who do not possess requisite educational qualifications, and persons who do not have a functional toilet in their residence are disqualified from contesting the elections. In light of the doctrine of substantive due process, this article further elucidates the scheme of Haryana Panchayati Raj Amendment Act 2015, its effect on the operation of due process clause and discusses the evolution of doctrine of due process in India.
Aditya Manubarwala is a fifth Year BLS, LL.B student at Pravin Gandhi College of Law, University of Mumbai. E-Mail: simha.amogh@gmail.com
Amogh Simha N.S. is a fifth Year B.A., LL.B. (Hons.) student at School of Law, SASTRA Deemed University.
Avinash Bhagi
Abstract
In a democratic country, independence of judiciary is a sine qua non for upholding the rule of law. But judicial independence should not be understood as a value of its own. It should not be equated to isolation or to the nonexistence of the duty of accounting for the work a judge carries out. Judges should not be exempted from the controls that are applied to other institutions. Such independence entails a responsibility that demands adopting mechanisms for transparency and accountability in order to ensure that judges should be held accountable for their acts. This article analyses as well as looks into the effectiveness of the formal and informal mechanisms to ensure judicial accountability.
Avinash Bhagi, Assistant Professor of Law, Gujarat National Law University Gandhinagar, E.mail: abhagi@gnlu.ac.in
