• Color Scheme

Volume 9 Issue 2

Editorial Note

As we close this year with volume 9.2 of the GJLDP, a lingering identity crisis has dominated 2019, taking on a rather aggressive route with the second half pulling out the guns on major political, historical, literary and environmental developments. With major action plans implemented by the present government in the form of the abrogation of the constitu-tional status of Jammu & Kashmir, to the recently concluded forty-day Supreme Court hearing of the hotly debated Ayodhya title dispute; one wonders whether the human race even knows where to draw the line. Further, basic contemporary human rights (such as the right to inter-net access) have been neglected with its newest victims being the young generation of Kashmiri leaders and entrepreneurs that are working hard to generate funds to tackle the serious cash crunch in the state. Another wave of the identity debate surrounds the recently announced Nobel Prize winner in economic sciences, Abhijit Banerjee. While on the one hand, Abhijit Banerjee’s victory has been claimed by one and all in the motherland, others criticized the country for the lack of suitable infrastructure and environment that led to the Indian-born economist to choose the United States as his base to do all his work. Moving beyond nationalistic lines towards global debates focusing on immigration and climate change, there is a deep sense of resentment from feeling uprooted. This lack of belongingness stemming from multiple factors (as aforementioned) has and will continue to compromise upon the integrity of the valuable mechanisms essential for the smooth functioning of a democratic society. Working along these lines, this vol-ume seeks to give an insight into the fractured state of the constitutional democracy in the United States, Brazil and Nigeria. The Indian landscape is fraught with political disputes involving the election commission and inter-state river disputes. Further, government initiatives such as the Ayushman Bharat - National Health Protection Scheme of India and legislations such as the Maternity Benefits Act, 2017 are good starting points for a system crippling on the national healthcare front and the economic empowerment of women. The last two articles, albeit off-beat in this series, nonetheless remain true to the theme of the journal. It is ardently hoped that readers find these articles gripping on the recent trends in the nation and worldwide.

As India, and the world moves toward 2020, we reach the year of assessing how well we have done as a nation in regard to the late President APJ Abdul Kalam’s vision. In doing so, we are likely to ques-tion our identity far more closely than these debates have asked us to. The harder part will be asking the difficult questions: have we actually grown as a nation in the last 20 years? And where do we go from here?


October 2019

Trade-off between Soft Law versus Hard Law in Developing Jurisprudence of Prudential Global Financial Regulatory Framework

Hiteshkumar Thakkar


The existence of the Global Financial Regulatory Framework (GFRF) as a legal entity or an informal association, may or may not be subject to a state enactment. Often, the GFRF performs in a formal setup of professionals and representatives of various states, without any compulsion of implementation resolution. Therefore, the GFRF sets standards/guidelines are non-binding in the legal sense. Moreover, these standards are considered a standard of an efficient financial sector and provide incentive for compliance in the global financial regulatory framework.The validity of the global financial regulation is subject to the international legal norm where principles of legitimacy will always be challengeable in the jurisprudence of international financial soft law. The notion of a hard law as a World Financial Authority (WFA) replacing the international soft law regime looks unfeasible in the exiting framework. However, the World Financial Authority (WFA) can substantially influence sovereign supervision and regulatory decision at a multi-jurisdiction level, where the membership is universal across the globe regardless of size and economic contribution.

The roadmap of implementing prudential GFRF is a tough task because countries differ in size, economic features, and priorities; it is difficult to impose straight-jacket prudential regulation formula without examining their cross-country requirement. On the other hand, the hard law, i.e., stick/sanction cannot guarantee to implement the prudential regulation. The same can be implemented through soft law, i.e., carrot/incentive, for example, in the framework of soft law mechanism, the adequate incentive can provide member jurisdictions to update and upgrade regulations in accordance with prudential GFRF.

Dr. Hiteshkumar Thakkar, is Assistant Professor of Economics, Gujarat National Law University, Gandhinagar. Email: hthakkar@gnlu.ac.in

Health Initiatives: The Case of India’s Ayushman Bharat- National Health Protection Mission

Manoj K. Sahoo & D. Sriram


Agility in governance is being viewed as a new idea and thought in public administration and public policy implementation. The adoption of new tools and techniques in public policy strategization will go a long way in enhancing agility in governance – when appropriate public service delivery mechanisms are developed keeping in mind the complexities of various problems that citizens face today. One such initiative in public health governance is the introduction of Ayushman Bharat - Pradhan Mantri Jan Arogya Abhiyan by the Government of India under its flagship public health programme named ‘Ayushman Bharat Mission’. Under this mission, two major public health initiatives were announced and await a full-fledged roll out: ‘Health and Wellness Centers’; and ‘National Health Protection Scheme’. National Health Protection Mission aims to provide health insurance cover of INR 500 thousand per family per year for about 100 million poor families, ensuring secondary and tertiary healthcare cover to nearly 40 per cent of India’s underprivileged population. Under the Health and Wellness Centers programme, existing 1.5 lakh public health sub-centers will be converted into centers of comprehensive healthcare, catering to the holistic healthcare needs of the people with the aim of rooting out major communicable and non-communicable diseases, and improving maternal and child health services. These two programmes are expected to reduce the exorbitant in-patient hospitalization expenditure, which has risen about 300 per cent during the last decade ending 2015 as per the 71st NSSO Survey 2015. The health insurance cover is pitiable in the country, as more than 80 per cent of the health expenditure is met from out of pocket, i.e., primarily from ‘household income or savings’ and ‘borrowings’. By addressing this issue, those who remain under abject poverty due to exorbitant healthcare costs will be uplifted. However, the success in this aspiration will depend a great deal on agility in integrating these schemes and adopting sophisticated public service delivery systems. This paper makes an attempt to analyze the different aspects of this opportunity and challenges in attaining agility in public health governance in India. It also makes a case for adopting state-of-the-art technologies and management techniques to public health delivery.

Mr. Manoj K. Sahoo, is Assistant Professor of Economics, School of Liberal Studies, Pandit Deendayal Petroleum University, Gandhinagar. Email: Manoj.Sahoo@sls.pdpu.ac.in

Dr. D. Sriram, is Assistant Professor, School of Liberal Studies, Pandit Deendayal Petroleum University, Gandhinagar. Email: Sriram.D@sls.pdpu.ac.in

The Problem of Electoral Malpractices in the Democratic Politics of Nigeria: A Contemporary Discourse

Andrew Ejovwo Abuza


The Nigerian Government has enacted the Electoral Act 2010, as amended and taken other measures to address the problem of electoral malpractices in the democratic politics of Nigeria. This article undertakes a contemporary discourse on the problem of electoral malpractices in the democratic politics of Nigeria. The research methodology adopted is mainly doctrinal analysis of applicable primary and secondary sources. The author is of the view that governmental efforts to address the problem of electoral malpractices, as represented by these measures, have not yielded the desired results, as electoral malpractices continue unabated in the democratic politics of Nigeria. This is basically due to the ineffectiveness of these measures. The ineffectiveness of measures taken by the Nigerian Government on electoral malpractices control can be attributed to, among other factors, a lack of adequate implementation or enforcement of Laws on electoral malpractices control and the winner-takes-it-all syndrome associated with the practice of the presidential system of government in Nigeria. It is concluded that for the problem of electoral malpractices in the democratic politics of Nigeria to be effectively addressed, the Nigerian Government must, among other recommendations, rise to the challenge of faithfully implementing or enforcing the laws on electoral malpractices control and embrace the practice of a parliamentary system of government with traditional rulership authorities playing vital roles in governance in line with the practice in other countries such as Japan and the United Kingdom (UK) or a system of election-less or non-election democracy.

Dr. Andrew Ejovwo Abuza, Senior lecturer, former Acting Head of Department of Commercial and Property Law and Sub-Dean, Faculty of Law, Delta State University, Abraka (Oleh Campus), Nigeria, Legal Consultant and Principal of the Law firm of Abuza & Associates. Email: andrewabuza@yahoo.com/ abuzaandrew@gmail.com

Brazil: Clear Visions and Their Contested Acceptance

Devika Mishra


With the end of the Cold War and the subsequent events that culminated in the coming to power of Lula Da Silva in Brazil in 2002-2003, under the rubric of South-South diplomacy, Brazil attempted to manoeuvre the international system through the platforms of various regional groupings like the BRICS, IBSA, G4, G20+ in order to achieve its long standing understanding of its own ‘grandeza.’ Supported by the commodity price boom, the emerging economies of India and China as well the rise of left leaning politicos in Latin America, it attempted to utilise the regional level to bolster its position at the international one. However, the stratification in the South as it presents itself in the new North-South and rest divide rendered Brazilian claims of leadership problematic. This paper attempts to analyse the contested nature of Brazilian leadership in Latin America, the intricacies of new South-South Cooperation as well as the future of Brazilian leadership today under a very different ideological and political leadership.

Devika Misra, PhD Research Scholar, Latin American Studies Programme Centre for Canadian, US and Latin American Studies (CCUSLAS), School of International Studies, Jawaharlal Nehru University, New Delhi; email. devika.misra@gmail.com

Understanding Development of Two States; a Study of the Bifurcation of Andhra Pradesh

Chaketi Raju


State formation does not mean merely the creation of a new state from others. It continues the dynamic process of development and interaction which affects many variables through a new centralised government structure in a situation where one did not exist before. In this process, different groups may find a prominent place in decision makings and policy formulations. Moreover, it is the process of the managerial functionary in various phases through new structural organisation and planning. It is an activity which claims a good deal of new governance. In this case, the sort of perception in the development process plays a significant role in the new state. Frustration with the continued lack of development of the region, the dominance of political class from other parts of the state, and the failure to fully implement prior agreements regarding Telangana kept the potential for a statehood movement alive over the subsequent. Therefore, their revolt combined with the agitations. All this drove the movement for bifurcation forward, and eventually, the new state of Telangana came into existence.

Chaketi Raju, is ICSSR Doctoral Fellow at Centre for Political Studies, Jawaharlal Nehru University, New Delhi. Email: rajuchaketi@gmail.com

Maternity Benefit Act, 2017 – A Game Changer for Women’s Economic Empowerment

Nidhi Buch


Women count for almost half of the population. Their active participation in all spheres of life is crucial to achieve the goal of sustainable development for any country. The reconciliation of employment responsibilities along with the demands of child birth and child-rearing remain a critical issue in achieving the goal of equal employment opportunities for women. In order to lay the foundation of equality, women should be made economically independent. This paper makes an endeavor to elucidate the legislative framework for grant of maternity benefit in India. The constitutional framework of India which ensures equality to women in all walks of life is discussed in the beginning followed by the international recognition of maternity protection through the efforts of the International Labour Organization. In view of the progressive step taken by India in broadening the horizons of maternity benefits, the paper draws a comparative analysis of the Maternity Benefit Act, 1961 and The Maternity Benefit (Amendment) Act, 2017. Finally, it throws light on the framework of maternity protection available in various countries. The paper concludes with an observation that the goal of sustainable development and women empowerment will not be achieved by only making a progressive move in the direction of providing better maternity benefits. It will see the daylight only when it is ensured that maximum number of women participate in the workforce and continue with the employment to secure economic independence.

Dr. Nidhi Buch, is Assistant Professor of Law, Gujarat National Law University, Gandhinagar. Email: nbuch@gnlu.ac.in

Election Commission : A ‘Watchdog’ of Free and Fair Election

Parag Agrawal & Harshita Chaarag


The constitution has declared India as a democracy where only citizens can elect the government. A democracy will be futile without the active participation of its citizens. Free and fair elections are the chief essence of a democracy. However, elections can be very notorious as they witness power drifts and clashes for the seat which may kill the essence of the fairness and freeness of election, therefore, a watchdog is required to check this menace so that every citizen gets their right. Thus to ensure a free and fair election, an autonomous body was created to meet the needs of the time: the Election Commission. This is a body which is autonomous in character and insulated from political pressures and executive influence. However organizing elections is not easy; they face huge challenges. Targeting the aforesaid situation this research has been made on the doctrinal model of research relying on secondary sources. It aims to determine the role of the election in a democracy and the structure of election commission and its constitutionality. It further determines the problems election commission faces and constitutional validity of the remedies it takes. Thus, this research determines how the election commission is a guardian to free and fair elections in India.

Parag Agrawal is CEO, Jus Dicere & Co. Email: know-parag@outlook.com / parag@jusdicere.co.in

Harshita Chaarag is Graduate, Army Institute of Law, Mohali. Email: harshita.chaarag@gmail.com

Separation of Powers and the Charade of ‘Separateness’: Core Legal Dilemmas Under Nigeria’s Constitutional Democracy

Olusola Babatunde Adegbite, Oreoluwa Omotayo Oduniyi & Jubril Akinwunmi Farinde


This Paper examines the doctrine of Separation of powers and its complicatedness as regards its practice in Nigeria’s Constitutional democracy. Drawing from historical insights and Nigeria’s constitutional model, and the of the practice in Nigeria’s constitutional democracy, this Paper makes the case that given that the doctrine has been heavily eroded so much so that instead of ‘separation’ what obtains practically speaking is nothing but ‘fusion’ particularly as it relates to the Executive and the Legislature, the doctrine operates in more of a dilemmatic situation. This Paper however offers a flicker of hope by pointing to the fact that all hope does not appear lost, as the Judiciary still maintains some level of ‘separateness’, except that only time will tell as to how much this lasts.

Olusola Babatunde Adegbite, Ph.D. Candidate, Faculty of Law, Rhodes University, Grahamstown, Eastern Cape, South Africa, & Lecturer, Department of Public Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria. E-mail: solar9ng@yahoo.com / g19a2584@campus.ru.ac.za / adegbite@law.cardozo.yu.edu

Oreoluwa Omotayo Oduniyi, Lecturer, Department of Public Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria. E-mail: oreoduniyi@oauife.edu.ng

Jubril Akinwunmi Farinde, Junior Trainee Fellow, Department of Public Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria. E-mail:jubrealfarinde@gmail.com

Water Disputes in India: Constitutional Mechanism and Judicial Control of Disputes on Inter-State Rivers

Girish R


Water disputes among the states of India assumed great importance in the adjudicatory mechanism, as the Constitution of India provides for a limitation on the jurisdiction of Courts. The role of Parliament and Union executive expected to perform under the Constitution and Laws were found to be not effective for the adjudication of disputes among States. The power of judicial review exercised by the Supreme Court of India turned to be an effective mechanism for balancing States rights and creating a harmony among States. The limitations of courts in exercising jurisdiction and tribunals exercising jurisdiction and authority of central government to decide the implementation of the award of the tribunals makes this area of centre-states relations very complex. The authority exercised by states to overcome the decisions of tribunal or courts through their legislative power makes constitutional dilemma as many time there exist direct conflict between state laws and tribunal orders. Networking of rivers, the union taking control of rivers, establishing a tribunal a permanent tribunal at central level and establishing appellate jurisdiction over tribunal decision are suggested improvements in minimizing the legal disputes in water sharing. There need to be a review on Article 262 of the Constitution of India and provisions of Inter-State Water Disputes Act, 1956.

Dr. Girish R, is Assistant Professor of Law, Gujarat National Law University, Gandhinagar. Email: rgirish@gnlu.ac.in