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Volume 2 Issue 2

Editorial note

"The great thing in the world is not so much where we stand, as in what direction we are moving."

Oliver Wendell Holmes

An indelible mark and a long lasting impression will remain a dream if one is not willing to believe in his affirmations with conviction and confidence. We at the The GNLU Law Review have always believed in the affirmation of making our review among the very best and have always continuously strived to achieve the same. Since our inaugural issue in 2008, the The GNLU Law Review has masterfully captured the interest of the legal fraternity at large through its careful selection of contributions. It is our belief in always trying to cater to the legal fraternity at large and the belief that has been vested in us that has made the law review what it is today. Before we go into describing the heart of this Issue, we would like to take a moment and thank our esteemed advisory panel, our contributors and readers for having stood by us as pillars of support and strength. On this note, let us sink into the core of contemporary legal issues that face not only India, but the entire world, thus calling for our attention.

The present issue, follows the same pattern of balancing between extremely well written articles, thought provoking insights in the form of notes and critical analysis in the form of comments. H.M. Seervai in his 'Constitutional Law of India' observed that 'Difficult and complicated problems are raised by Part XIII of our Constitution largely due to defective drafting'. What these difficulties are and other related unanswered queries are discussed and dissected in detail in this largely jurisprudential analysis of Part XIII of the Indian Constitution is the first contribution of our articles section. The author sheds focus on Art. 304 in which the unsettled nuances of a tax imposed by the state governments on goods coming into their area of jurisdiction, known as Entry Tax, have been deliberated upon, in light of its effectiveness and the impact of freedom granted under Article 301.

The next article delves into the sensitive issue of 'Honour killing' that has swallowed innumerable women of our country under the defence of 'Mistake of Law'. The author wishes to elucidate that such hideous acts are not to be cajoled as heroic actions, rather a reminder to take an unforgiving remedialapproach to these practices. The reason that it is part of a host of customs followed in a culture, should be nipped in the bud and be subject to harsher sentencing.

Terrorism has gripped our country many a times subjecting thousands of Indians to its throes, but has our country realistically formulated a framework that will address the woes of those who fear for their loved onesand an ultimatum for those who dare to impose their fanatical ideals on our citizens? Reasonability and feasibility of the new Indian Anti-Terror Law forms the crux of our next published article. The 26/11 attacks that exampled the colossal failure of Indian antiterror legal regime, has prompted the author to question the new regime that has apparently displeased civil libertarians and human rights activists.

Our notes section begins with a note which is dedicated to the burgeoning issue of female criminality and the dismal conditions that female prisoners are faced with while in prison. Theories related to female criminality, factors contributing to the same and reasons for the pathetic state of women prisoners are discussed through the study of a lone women jail in Punjab. The authors suggest suitable recommendations to address the current pitiable state of women criminals and also indicate an important facet to study female criminality, the facet of understanding women criminals from the perspective of the social relationships that they enter into, which can go a long way in bettering their current state in jails.

Technology's child, the Web, in addition to making our lives simpler manifold, also bestowed great responsibilities on those who wish to make the best out of its multifarious resources database. Our next published note brings to our notice the rampant plagiarism prevalent in the internet and a need for Intellectual Property Laws to regulate legal implications caused by this inalpractice. The author in this note provides a solution to the aforesaid raised concern by suggesting an overarching international regulatory agency that oversees the rights of users,creator-companies, and third-party companies that would be the source of all legal regulation and resolution.

George Washington once made a casual remark that 'A Lottery is the perfect tax, laid only upon the willing'. However, the author of the Comments section of our issue in 'Res Extra Commercium' thinks otherwise. Lotteries are similar to commercial transaction in a trade, where this exchange of goods. The author questions the difference between any other trade and lottery. Res extra commercium refers to activities outside the scope of commerce because they are considered to interfere with the safety and welfare of society. Lotteries since time immemorial have been compared with gambling, but often the commercial aspect that qualifies it to be considered a trade is shrouded by the popular notion that it is an illegal activity. Our final contribution in this issue ends with an interesting analysis of whether the disadvantaged section of the children of scheduled tribes have been afforded an equal opportunity in terms of educational attainment. This situational analysis is the next note in the notes section.

We have continued to showcase our calibre of excellence and our belief in striving to be the very best as can be witnessed in all the contributions published. We hope to continue doing so and effectively contribute to the legal fraternity at large through a rich legal resource such as ours.

We invite suggestions and feedback regarding any improvements for the betterment of the Review. We, now take the pleasure in ushering you into another splendid venture of the The GNLU Law Review!

Board of Editors,
The GNLU Law Review.

Entry tax and part xiii: theoretical and legal reflections

BRAJENDU BHASKAR' AND SHIVENDRA SINGH(Students, V Year, B.A. L.L.B. (Hons.), National Academy of Legal Studies and Research, Hyderabad, India)

Part XIII of the Constitution of India has always been subject to immense discussion before the Supreme Court. This is primarily because this Part is replete with non-obstante clauses and the mix up of exception upon exception in the series of articles has often presented complex questions of interpretation. The decision of the Court in Jindal Stainless Ltd. v. State of Haryana has not finally settled the intricacies of Part XIII. A divisionbench of the Supreme Court, in Jaiprakash Associates Ltd. v. State of Madhya Pradesh, referred the question of the impact of entry tax on the freedom guaranteed under Article 301 to a Constitution Bench. The Constitution Bench will also have to dealwith several other ancillary questions related to entry tax and Part XIII.

This article is an attempt to answer the questions posed by Jaiprakash Associates. The researchers contend that every single question may be answered by relying and interpreting the prior jurisprudence of the Court on the subject matter. Further, the researchers indicate key issues which require further enquiry and analysis.

Ignoring the law in the name of honor

Dr. Gabriel hallevy (associate professor, faculty of law, ono academic college)

Can people ignore the law in the name of honor? About five thousand women are murdered by their families each year in the name of family honor. These crimes are committed in both advanced western countries and countries of origin. It is difficult to get precise numbers of "honor killings," since most cases are not reported. When a woman is murdered in the name of family honor in the country of origin, it is justified by law, since the concept of family honor justifies the killing of women in these societies. The perpetrators of such killings in these societies are considered heroes of their culture. In these societies, the concept of woman as a vessel of the family reputation is prevalent, and this concept is completed and accompanied by the concept of honor killings. Honor killings are not the only offenses committed against women in the name of culture. When the perpetrators are charged in court, they frequently claim the "ignorance of law" defense, since they have been behaving that way for generations, and why would the legal situation be different in their new homeland. In most cases, this claim is rejected, but it is used to mitigate punishments down to ridiculous sentences. Most western countries share this problem. This article argues that the mistake of law defense is irrelevant in relation to culture-based crimes against women. It is further argued that committing an offense on the grounds of preserving a culture in and of itself justifies harsher sentencing.

Gendering criminology: an analysis of jagged justice behind the bars with special reference to a study conducted in a lone women jail of state of punjab

Dr. Ashish virk' and dr. Aman a. Cheema (m.a. (pol. Sc.), li.m., ph.d., lecturer-in-laws, university institute of laws, punjab university regional centre, extension library, civil lines, ludhiana)

Until recently, the world of crime has been a man's world. However, female criminality, a relatively new chapter in criminology books, is indeed a serious social problem; it may be considered a crucial problem because of its impact on family, upbringing of children and the overall fabric of society. The predominant factors which are found to determine criminal tendencies in women are economic insecurity, social deprivation and emotional disturbances. Although women in detention constitute only around three percent of the total prisoners in various jails in the country, their condition is pathetic in terms of the prisons environment, the treatment meted out to them in jail. Women prisoners suffer from greater disabilities than man. The psychological stress caused by separation from children, the unhelpful attitude of close relations, uncertainty about the future are all factors which make their life miserable in jail.

Prisons are unlike any other kind of institution or organization in modern society. They areforeign to the experience of most citizens, for few individuals other than prisoners and their keepers ever see the inside of a prison. Although life in a penal institution can be described to persons who had not been in one, such a description can hardly portray all the atmosphere of the place. It fails to capture the noises of clanging cell doors, harsh flavor of institutional living, even in the most humane penitentiary. Hence, this paper offers a multifaceted exploration of female criminals and delinquents, theories dealing with the problem, factors enhancing female criminality and delinquency in modern society, feminist perspectives of female crime and the annotations made during the pragmatic study led to witness the wretched conditions faced by women and their children inmates in the lone women jail of State of Punjab, Ludhiana.

Taming the new virtual world: a proposal for an intellectual property regulatory agency for the internet

Daniel le huynh (intellectual property litigation associate, alston & bird llp, charlotte, north carolina, united states)

Virtual worlds are relatively unregulated. Traditionally, Internet activity has been regulated by either individual website term of service agreements or the statutory laws that govern the Internet. However, these rigid and broad sweeping standards may not be entirely applicable to the virtual world. When Second Life and other similar virtual worlds were created the need for dispute resolution and regulation were not immediately recognized or needed. This note dissects the problems facing virtual world regulation with afocus on intellectual property rights in the United States. In this paper to solve the proposed problem, an overarching regulatory agency that oversees the rights of users, creator-companies, and third-party companies should be formed. Having one decision-making source would have its obvious benefits. A centralized institution would allow users, providers, and corporations to govern their online behavior with a level of certainty that is currently lacking by limited terms of service agreements. A pre-determined regulatory scheme would provide third- party corporations with clarity and uniformity in predicting user interaction allowing them to predict with more accuracy the legal consequences of their actions. This clarity would give foresight corporations and users alike in guiding their actions in the virtual world. In fact with the growing commercial value of online virtual worlds, a regulatory law or commission similar to a regulatory agency would be the most effective and efficient way to ensure that rights of citizens are upheld and the investment of corporations are protected.

The new indian anti terror law: distinguishing myth and reality

PARESH blhari LAL (Student, B.A. LL.B. (Hons.), 4th Year, National Law Institute University, Bhopal, India)

In the aftermath of Terror attacks of 26th of November 2008, possibly the worst ever in the history of this terror torn nation, when cries for a full scale attack against the perpetrators of terrorism had been resounding throughout the length and breadth of the nation, the government chose to reply with a legislative swiftness seldom seen. In a span of a few weeks the parliament had unanimously assented to enactments that promised to revamp India's entire anti-terror law.

Undoubtedly the new legal provisions are stricter than their predecessors but they are also supposed to assure effectiveness and aimed at deterring the wrongdoers. Substantial powers have been bestowed upon the executive. The penalties are more unforgiving than ever, and a lot can be done in the name of precaution. The combined effect of the same has been a nervous dread, which along with comparisons with the erstwhile POTA and the mistrust against those who wield the power, has rooted itself deep within the public heart. The human rights activists cry foul and their vocal resentments have but added to an already formed mist around the new-anti terror law of our country.

Hence the need of the hour is to scrutinize the various facets of this new legal regime, to test their soundness against the touchstone of the Fundamental and Human rights that have been guaranteed by India to its citizens. For any law to be truly effective it must have the trust of the people it governs there should not be ambiguities regarding it and the people must feel that it should not be put to wrong use. Thus the truth must be separated from untruth and the veracity of the allegations against the law must be ascertained.

This paper is an effort to accomplish the same. An attempt has been made by the author to examine every allegation leveled against the new law and to determine whether the same could have any ounce of truth in it. The ultimate aim of this paper is to dispel fog surrounding the new legislations and to determine whether the common man can feel safe or he needs to hide when he sees the first policeman walk by.

Res extra commercium and lotteries: can a change in its constitutional interpretation ensure its flow as trade and commerce in india?

Meghna srinivas (student, iii year, national law school of india university, bangalore, india)

Res extra commercium refers to activities outside the scope of commerce because they are considered to interfere with the safety and welfare of society. Lotteries are considered to be games of chance with no skill and hence have deemed to be compared with gambling. Hence lotteries are considered to be res extra commercium. Through this paper, based on a study of germane cases the researcher hopes to prove that lotteries should no longer be considered res extra commercium. Since it is no longer res extra commercium it must be considered as trade and commerce. The Courts would have to change their attitude on lotteries affecting public interest. If so, then any ban in the name of public interest by either the Centre or the State government would amount to impeding the flow of trade and commerce and be prohibited by the Courts.

Right to education vis-a-vis 'disadvantaged groups' in kerala

Dr. Sheeba pillai (senior lecturer, school of indian legal thought, mahatma gandhi university, kottayam, kerala)

Different forms of deprivation affects child's participation in school. In this article, the focus is on those groups who are disadvantaged due to social and economical depriuaiion and the study is limited to primary education. The targeted group is the Scheduled Tribes. Compared to other States, Kerala has been able to do much more for the disadvantaged sections. However it is far from true to say that the State has been able to provide 'right to education' to these children. Moreover there is a deep gulf between the educational attainment of the general category. and that of the children belonging to this group, thus giving rise to inequality in educational opportunity. Main questions addressed in this article are whether the scheduled tribes in Kerala have been denied right to education? The parameters used for assessment will be - Whether they have accessibility to free and compulsory, quality education? Also as what kind of educational disparity they suffer as compared to others? What measures were taken by the government and their results. Finally the article concludes with a few suggestions as to how this right can be effectively implemented within this group in the context of Article 2M which makes right to free and compulsory education for children between the age of 6 to 14 years a fundamental right.