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Volume 9 Issue 1

Editorial Note

As this issue goes to the press, our country, a billion strong, stands on the brink of an epic election. Over the course of the sweltering summer, we will see millions of voters flock to the polling booth to cast their votes, with veteran resignation or naïve hope.

As temperatures and rhetoric soar, India will witness what pundits predict to be one of the closest elections in years. It is also one of the most participative, drawing a young population exploding with ambition and aspiration, ready to shape the destiny of India in this century.

Elections are an apposite time for us to reflect on pressing practical, normative and existential questions we must ask ourselves as voters, and more importantly, as citizens. Questions about our political choices, and the legality of our actions as a nation. Questions about our institutions and their functioning, about society and the rule of law.

These elections, however, are significant not just because of the sheer numbers of voters engaging in a fundamental exercise of democracy. They are also significant because they are occurring at a time of immense political and legal importance, domestically and internationally.

Trade wars rage on, tensions escalate across the border, extradition show downs occur in foreign courtrooms, refugees spill across country and continental boundaries. It is occurring at a time when nations across the world are also engaging in exercises of democracy and are grappling with the repercussions of popular choice - the modalities of Brexit totter to a stalemate, Prime Minister Netanyahu contemplates a fifth term in office and President Al-Bashir is deposed by the sheer will of mass protests.

Closer to home, the Supreme Court passes one celebrated judgement after the other, expanding its recognition of inalienable rights, upholding dignity, protecting privacy and free speech, and elevating the person to a position of prime importance in society. Yet it has difficulties of its own, constantly living up to the challenges of maintaining its image of credibility, integrity and independence.

Poised against the backdrop of a simultaneously tumultuous and revolutionary year in terms of domestic and international political and legal developments, this issue highlights several key concerns that demand our attention.

President Donald Trump’s term has been marked by trade wars with China, that have inadvertently but unavoidably drawn in the rest of the world. One author explores the repercussions of such trade wars and the means to stop them.

Another global problem is the perennial concern about climate change, and the unabated quest to look for solutions at an individual, local, national and international level. Against this background is an incisive article on the pragmatism of a carbon trading market for vehicular pollution between private individuals. As the climate change impacts continue to spur apprehension, we also look at the security threats such changes in Bangladesh can have on India.

On an institutional level, there is an exposition of whether the judiciary should be included under the term “State” as found under Article 12 of the Constitution. There is also an analysis of the legal evolution of the privilege of self-incrimination and whether it unfairly skews the judicial system. This issue also includes a detailed analysis of the legal framework for free and compulsory education for children in India.

Pertinently, there is a relatable and particularly relevant elucidation on intellectual property problems in an era of social media. Indeed, perhaps it is fitting that our attention returns to a dissection of social media for the montage of rights it represents - free speech, free expression and privacy. Given that the discourse in this era of data proliferation has pivoted towards data regulation and protection in the pursuit of a broader goal of privacy, this conversation should have found a prominent position on the manifestos of all political parties.

Social media giant Facebook recently announced that it would be removing over a million fake accounts a day in a quest to combat misinformation, foreign interference in domestic elections, and the use of artificial intelligence to run ‘inauthentic coordinate campaigns’. This underscores the vitality of public consciousness on the potential of social media to unfairly shape election outcomes. The absence of this discussion indicates a glaring disconnect with the global trend of thought. It remains to be seen how this will mould the elections, and which regime will assume the reigns for the next half decade.

The Editors take this opportunity to thank the outgoing student editors; Sakshi Sharma, Sanskriti Sanghi, Smrithi Bhaskar, Surabhi Saboo, and Vishal Sinha and also the present student editors who have dedicated and committed themselves to ensure that the quality of GJLDP is maintained and that it meets the requirements of academic and research 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.


April 2019

The Global Trade War Triggered by the United States

Shilpa Parasrampuria


The article analyses the motivations behind the on going trade war between United States and the rest of the world. United States has launched a unilateral trade war against its own allies. America surprised itself and the world by voting for a very unconventional man for the post of the President. The issues lay deep within as the society faced loss of jobs and revenue and a huge influx of foreigners. Donald Trump vowed to correct this malaise and accordingly unleashed a plethora of tariffs on many imported items. His target was primarily China, but with the tariffs on steel and aluminium the whole gamut expanded considerable to include not only the neighbouring countries of Canada and Mexico but Europe and Asia as well. This did not go well for the traditional U.S. allies who then imposed counter tariffs. The article endeavours to analyse the repercussions of the impeding trade war and offer an insight into possible solutions. The trade war if extended for a long period could set in a world-wide recession. The world has witnessed a gradual transformation of the relationship between nations from, ‘warring nations’ to ‘trading nations.’ This resulted in free flow of trade and commerce and if some correction needs to be done then it is probably the right time.

Shilpa Parasrampuria, is a doctoral student, School of Liberal Studies, Pandit Deendayal Petroleum University, Gandhinagar, email: shilpaparasrampuria.ir@gmail.com

The Dilemma Created by the Privilege against Self Incrimination

Bhat Waseem Ahmad


The right against self-incrimination is viewed as an essential safeguard in criminal procedure. The underlying rationale broadly corresponds with the three characteristic features - firstly, that the accused shall be presumed to be innocent unless proved guilty, secondly, that the prosecution shall establish the guilt beyond all the reasonable doubts, and thirdly, that the accused shall not be compelled to make any statement against his will. The protection against self-incrimination is considered one of the elementary principles of the accusatorial system of criminal administration of justice and is a reaction against the inquisitorial criminal administration of justice. The sole ambit of this protection is to prevent the use of ‘third-degree’ and ‘torture’ methods during the criminal investigation. In the past few years objections are being raised that this protection is becoming a major hurdle in the criminal investigation. Some of the experts are alleging that, the right of the accused has been given more importance then the social interest. If the overall objective of the criminal justice system is to ensure public safety through expediency in investigations and prosecutions, it is alleged that the privilege against self-incrimination protects the guilty at the cost of society. This paper elaborates one of the hurdles created by the privilege against the self-incrimination during rescue operations carried on by the law enforcement agencies.

Waseem Ahmad Bhat, is Assistant Professor of Law, Gujarat National Law University, Gandhinagar, E-mail: waseembhat2@gmail.com

Climate Change Regime in Bangladesh Security Challenge for India

Ningthoujam Koiremba Singh & Lakshmi S.


Climate change is the phenomena which affects various countries in many forms due to its multifaceted nature of the threats. Today, several countries face the threat of extinction owing to the problem of climate change and it’s going to be more in near future. However traditionalist idea security promotes to use of the military only to the threats which disrupts the cohesion, integrity and sovereignty of the nation. Non-conventional protection threats are defined as demanding situations to the existence and welfare of the people and states that get up usually other than non-military sources. These forms of threats mainly challenges to the well-being of the human and to the lifestyles of the state. India faces unique set of challenges both internally and externally. It has huge records of sectarian conflicts as a result of wide style of troubles including class poverty, faith and migratory flows. Climate related dangers threaten no longer simplest on the lives food safety and fitness internationally but additionally it’s going to impact the security of the country. If those issues are not addressed competently and equitably then it will convey in threat to India’s security. This paper is a modest attempt study at the impacts of climate change as a risk for security for India due to migration from Bangladesh. Further researcher also tries to unearth collateral damages in the region due to climate change.

Ningthoujam Koiremba Singh, Assistant Professor, Department of International Studies and History, School of Law, Christ University, Bangalore, email: ningthoujam.singh@christuniversity.in

Lakshmi S., Student Master of International Studies, Department of International Studies and History, School of Law, Christ University, Bangalore, Email: lakshmi.s@law.christuniversity.in

Prospects and Challenges of Islamic Banking and Islamic Investments in Gujarat

Mobin Shaikh


Economic growth and development is dependent on the system and the policies of the country. Financial system plays a pivotal role in the economic growth of a country. The country achieves its economic objectives via the four components of the financial system viz. Markets, Institutions, Instruments and Services. Banks and Financial Institutions which are important components of the system, are the inventions of the modern society. Modern economic societies needs intermediaries, to transfer funds from savers to investors because savers are generally different than the investors who have the ability, expertise and time to explore profitable investment opportunities and put their savings to productive purposes. India is largely a bank based financial system. The banks play a leading role in the financial planning, organization and implementation of schemes and policies of the Governments and also have the backing of the government and the judicial system. This discussion highlights the importance of banking, access to credit and finance for inclusive growth and also for the development of the economy. In the recent years, Islamic banking and finance have emerged as an alternative to the conventional banking and finance not only in the in the Muslim dominated countries but also in European countries. According to Census 2011 data, Muslims with a population of 172,245,158 constitutes 14.2% of the population in India and with a population of 5,846,761, constitute 9.4% of the population in the state of Gujarat. Due to religious reasons, the Muslims stay away from traditional banking, which is largely dependent on ‘interest’ as an important factor for banking activities of borrowing and lending. Since, Islamic banking and Islamic investments offers a substitute to the conventional banking, therefore, it becomes pertinent to study the prospects and challenges of Islamic banking and Islamic investment in Gujarat.

Dr. Mobin Shaikh is Assistant Professor of Commerce & Management, Gujarat National Law University, Gandhinagar, Email: mshaikh@gnlu.ac.in

Legislative Framework of Right of Children to Free and Compulsory Education in India ― An Analysis

Asha Verma


The influence of education system depends on learning, unlearning and relearning. The social and economic development of the nation depends upon its educated population. For a successful democratic system of government education is the fundamental requirement. The aim of the right to education is to provide everyone with the opportunity to learn and benefit from the education. It is not a matter of privilege but a matter of right. The Right of the Children to Free and Compulsory Education Act was passed by the Indian Parliament on 4th August 2009. This is an historic Act passed by Parliament to ensure free and compulsory education to all the children in the age group of 6-14 years. Free and compulsory education was also made a fundamental right under Article 21 A of the Indian Constitution in December 2002 by the Constitutional 86th Amendment Act. The rough draft of the Bill was drafted in 2005 which received much opposition due to the mandatory provision to provide 25% reservation in private schools for disadvantaged children. The Right of Children to free and Compulsory Education Act, 2009 is an attempt to truly enforce the Fundamental Right of free and compulsory education in India. This Article aims at highlighting the legislative framework of the Right to free and Compulsory Education and also to critically evaluate the provisions of the Act.

Dr Asha Verma is Assistant Professor of Law, Gujarat National Law University, Gandhinagar, email: averma@gnlu.ac.in

Judiciary State or not – A Critical Analysis

Gaurav Kumawat


The debate started around the year 1960’s that whether violation of fundamental rights can be enforced against the Courts, but the Supreme Court declined to accept that Judiciary comes within the ambit of ‘State’ under Article 12 of the Constitution, stating that Court cannot violate the fundamental rights of a person and if the courts are included within article 12 it would affect their adjudicatory functions. The judgment of the court was criticized as taking away the fundamental right of a person to approach the court. Though Judges is not unanimous on this view and some of them, in their minority judgment, sharply criticize it stating that Courts are not above the Constitution. Albeit what might the minorities say, the present position, even after around 50 years, is that the Court may violate fundamental rights of a person while exercising the judicial functions. It will be an attempt to critically evaluate the judgment of the courts, with special reference to the case of Naresh Mirajkar v. Union of India and to see whether the reasoning of non-inclusion of the judiciary in article 12 holds water even after a lot of decades. Also to know the position of the U.S. Supreme Court, with regard to the enforcement of the writ against the Courts.

Gaurav Kumawat, 5th Year student of B.A. LL.B. (Hons.), National University of Study and Research in Law, Ranchi, Email: gauravkumawat12@gmail.com

Social Media and IPR issues

Niharika Behl


Media plays a very important role in dissemination of information as it has a direct impact on the viewers. It derives its freedom from Article 19 (1)(a) i.e. freedom of speech and expression over which only reasonable restrictions can be imposed.Social media has revolutionised the way we communicate and spread information. Today, information is readily available on the digital sphere, making us more susceptible to IP violations. In general terms, social media is a media, generated on the web through social-interactions by the user. It is distinct from television, radio and newspapers which have a target audience and go one way, as with the advent of the advanced web 2.0 technology the information flows from multiple sources.Social media allows one to publish, download, stream or transmit information. Some common social media sites include Twitter, Instagram, Facebook, Myspace, YouTube, Piratebay, etc.Social media imposes a number of threats to Intellectual Property Rights. In the virtual world too, the same legislations and common law rules apply but the speed by which the information is transmitted and the number of audience it targets at a time is what that poses a problem for the IP owners.This research focusses on the intellectual property issues that arise on social media. The major problem areas identified include copyright, trademark and trade-secrets.

Niharika Behl, 5th Year student of BA LLB (Hons.), College of Legal Studies, University of Petroleum and Energy Studies, Dehradun, email: niharikabehl3@gmail.com

Creating a Carbon Trading Market for Vehicular Pollution Between Private Individuals

Aditya Prasad


This paper seeks to hypothesize the creation of a market in India for the trade in carbon units between people who utilize vehicles for transport. This market created, is built in a way to ensure that people will profit by participating and once they do participate, they will be further incentivised to ensure that more and more of them take to using the public transport services and those that continue to drive their cars, do so more efficiently.

Aditya Prasad, 5th Year student of B.A.A. LL.B. (Hons.), Jindal Global Law School, Haryana, Email: 14jgls-aprasad@jgu.edu.in