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Volume 3 Issue 2

Editorial note

"The difference betweenfailure and success is doing a thing nearly right and doing a thing exactly right."

Edward Simmons

They say the first impression is the best impression and the one that lasts. We, at the GNLU Law Review, can proudly say that we not only made that first best impression amidst the elite legal practitioners and the fraternity alike three years ago, but have continued with the commendable excellence uptil this Volume 3 Issue 2 that we bring to you. With every new issue the Review has had an overwhelming response from researchers, scholars, legal practitioners and the students at large both in terms of contributions and audience. From the shelves of our very own university to the book racks at the Peace Palace Library, Hague, the journey to this juncture would not have been possible had it not been for the unwavering and untiring support of our faculty advisors and the expert opinions rendered by our eminent advisory panel. We take this as an opportunity to thank each and everyone who have both directly and indirectly been a part of the successful journey that TGLR has witnessed.

In this issue as well, TGLR has adhered to demarcating the contributions into articles, notes and comments. We begin with an enthralling article on judicial activism, its journey since India's independence and its eventual overstepping into the realm of judicial adventurism. The author in her work has sought to analyse the judicial over activism, shift in the judicial paradigm and the consequential exercise of judicial restraint by courts. In light of the directives given by the courts in legislative, administrative and policy matters, this insightful article also highlights the present status quo of the concept of judicial activism as it stands in the country today.

The India that we see today is progressive, and ready to deal with changing times. Addressing this very issue is the next article which deals with the proprietary rights between unmarried cohabiters. The author has attempted to analyse the law as it stands in various other jurisdictions, primarily that of Europe which has showcased unmatched reform in this area. The article highlights the pressing need for expeditious legislative intervention in the interests of safeguarding property rights of unmarried cohabiters in light of the present legislative position on the issue of cohabiting rights post the Delhi High Court decision in the Naz Foundation case.

Following this is a thought provoking article on anti-beggary laws in India, the author in her work has analysed various facets concerning anti-beggary laws in India, starting with unconstitutionality of the basis of such a law, the author has analysed Article 14 and Article 21 and has recommended an urgent move towards a rights-based approach while dealing with beggary in India. This article which unfolds with a historical background of the subject matter makes for an engrossing read as it goes on to highlight and critically observe judicial precedents concerning the matter.

We now proceed to the note section where the author questions compensation allocation for victims of crime under the Indian legal system; the author has articulately analysed the criminal legal system in the country and the compensation provision for victims thereunder. This well researched note includes within its ambit recent developments in law, analysis based on judicial pronouncements and an international perspective on the topic.

Moving on to the comments, we have an interesting read that investigates the possible interlink between religion and refugee protection around the world at large. The conceptual hurdles in promoting a notion of refugee protection at a societal level which consequentially determines the quality of legal protection and the impact that religion can have in the process of altering the value emphasis of a society with positive consequences on the perspective of the legal system are some of the issues that are scrutinised by the author.

Finally, we have a comment that explores a hitherto unperceived viewpoint on the much critiqued Right to Education Act. This comment searches for the very meaning and extent of the term 'right' as used in the context of right to education. The author in this well researched and globally relevant work has used an international dimension to the subject matter thereby making it an interesting read.

The committed and dedicated team at The GNLU Law Review Association have strived to not only deliver but also maintain qualitative excellence in our publication. This has been possible largely due to the great importance we give to constructive and valuable criticisms that we use to forge ahead in our venture. We continue to welcome any number of feedbacks and suggestions for the betterment of the TGLR. In the meantime, lean back to enjoy this splendid issue of The GNLU Law Review!

Board of Editors,
The GNLU Law Review

"Informal" bonds and incomplete rights -property rights of cohabitees in india and the need for reform

Kunal ambastn

The present article aims to analyse the area of law relating to property rights between unmarried cohabitees. It undertakes an inter- jurisdictional study of various models of law that address the issue of such property rights and highlights the need for reform of the Indian law in this regard. Particular regard is given to the study of legal frameworks in Europe that have displayed unmatched reforms in this area. The lopsided development of the law in India is highlighted through the tracing of the history of 'reform' in Personal laws. Further, the article analyses the present legislative position in India on the issue of cohabitee rights in the light of the decision of the Delhi High Court in the Naz Foundation case. The area of law that is analysed presents significant challenges due to changes in society and the inertia of the law. It is therefore, imperative that a clear and incisive understanding of the existing legal lacunae be obtained. The article aims to fulfil the same objective. An argument is made for expeditious legislative intervention in the interests of safeguarding property rights of unmarried cohabitees which is currently only nebulously developed through case law.

From activism to restraint: retrograde judicial philosophy or merely controverting judicial overreach

Pubali sinha chowdhury

A lot has been discussed, in the past decade, regarding the attitude of the Indian judiciary; whether the acts of judicial activism are desirable and necessary in public interest or whether judicial activism is dangerously overstepping into the realm of judicial adventurism, something which is not permitted in a democratic set up. Towards the latter half of the decade, in the light of severe criticism of judicial over activism, there happened to be a shift in the judicial paradigm and courts wanted to exercise judicial restraint. The doctrine gained prominence in the apex judiciary and judicial pronouncements were made in consistence with preserving the balance between the three branches of the government. The courts attempted to refrain from taking up contemporary socio- political issues and issuing directives, suo motu. This phenomenon, what appears to be a shift in the judicial philosophy, is not unprecedented in India and is rather a retrograde step taken by the judiciary. However, the judiciary has not been guided by the philosophy of restraint in the strictest sense and Court directives in the field of legislative process as well as administrative policy issues have made the headlines in the ending years of the last decade. This article analyses whether the Indian judiciary has finally closed the book on judicial activism and whether it is desirable for the same to be done. The article also traces the journey of legitimization of acts of judicial positivism since independence to the present day.

Begging for change: anti beggary laws in india

Ipshita ahujn

Although the news of mass arrests of beggars in New Delhi ahead of the Commonwealth Games generated indignation for a while, it quickly sank without a trace. With both the citizens and the Government of India considering the beggars superfluous irritants, it is not surprising that a draconian law enacted about six decades ago still continues to penalize and incarcerate those who cannot even afford the basic necessities of life. The laws, while pursuing the objective of preventing begging, in reality seem to aim at the annihilation of beggars themselves. Lack of judicial discourse and an insensitive Bill aimed at 'abolishing' begging only serve to exacerbate this problem.

This article, therefore, shall, in different parts, address questions which are raised while examining the anti-beggary laws and the scanty judicial discourse on the topic. This article shall also examine the extension of the 'right to free speech' extended to begging and panhandling in different countries, and whether such an extension would be possible, and more importantly, useful, in India. This article shall also seek to establish an argument towards the unconstitutionality of anti-beggary laws. Part I of the article shall introduce the anti-beggary laws and shall provide a historical background of the same. Part II shall critically analyse the opinion delivered in Ram Lakhan v State in juxtaposition with other judicial precedents. Part III shall discuss the development of begging as a constitutionally protected right. Part IV shall layout a creative judicial interpretation of Articles 14 and 21 by which the anti-beggary laws can be declared unconstitutional; Part V lays out the conclusion, pointing out that an urgent move towards a rights-based approach while dealing with beggary is required.

Right to education and international law - defining the right

Dr. Sheeba pillai

"Education for all is important for three reasons, first education is a right, second education enhances individual freedom, and third education yields important development benefits"

John Daniel, UNESCO's Assistant Director General for Education.

The importance of education in today's life has been proved beyond doubts. 'Right' to education is a vast area and would naturally cover a large number of issues and aspects. It is necessary to comprehend as to what is the possible content/ingredient in the 'right' to education, as this alone can provide a platform for the right holders to seek redress for any violation. Since already mentioned, education covers a vast terrain which includes pre-primary, primary, secondary and higher education and also forms of non:formal education, adult literacy etc. The discussion on the parameters of the 'right'is being limited to 'primary education'.

Promoting a notion of refugee protection; role of religion as a value-influence on law

Rangin pallav tripathy

The objective of this research paper is to investigate the relevance of religion in promoting a post-positivist justification for refugee protection and how it can improve both the approach and content of law in this regard. It examines the reasons why the notion of refugee protection in a society and consequently in the legal regime of the state might not be reasonably developed. It seeks to explore the tendency of mankind to surrender its reason to identities of affiliation and the role religion can play in alleviating the consciousness of the society. It essentially evaluates the prescriptions of religions as a source of not simply reformulating the value structure of the society but also consequentially permeating into the dynamics of legal principles. It discusses the theory of cultural jurisprudence as the means by which religion can operate as a value-influence in determining the content of law.

In entirety, this paper seeks to deal with the following fundamental issues;

01.) What are the conceptual hurdles in promoting a notion of refugee protection at a societal level which consequentially determine the quality of legal protection?

02.) Does religion as a 'repository of values' provide answers to any of the hurdles?

03.) What role can religion play in altering the value emphasis of a society with consequential impact on the perspective of the legal system?

04.) What is the influence of Religion itself as a factor of persecution?

How to construct the role of religion in influencing the process of policu-formulatioti or law-making?

Compensation for victims of crime under indian legal system

Dr. Adesh kumar

Sir Henry Maine observed that

"Penal law of ancient communities is not the law of crimes; it is the law of wrongs. The person injured proceeds against the wrong done by an ordinary civil action and recovers compensation in the shape of money damages if he succeeds".

International Developments

Almost all the countries of Europe and North America have passed legislation for victims of crime. The UN General Assembly adopted the "Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power" with certain principles.

Victim's Compensation and the Law in India:

Criminal Procedure Code, 1973.
Compensation was also recognized under Criminal Procedure Code 1898 but was limited to fine. The Cr.P.C. 1973 provides compensation under Section 250, 357, 358, 359. Recommendations of the Law Commission of India in the 41st Report 1969, accepted as under section 357.

Criminal Procedure (Amendment) Act 2008:
The 14th Law Commission in its 154th Report suggested a comprehensive victim compensation scheme and an amendment in Criminal Procedure code is made by way of section 357-A.

Fatal Accidents Act, 1855
Compensation to the families for the loss occasioned by the death of a person caused by an actionable wrong.

Motor Vehicles Act, 1988
Chapter X of the Act of 1988 In section 140 to 142 provides compensation to the victims, Judicial Approach

In Mohammed Shah v Emperor, the offender was fined of rupees 500 out of which rupees 400 were awarded to the heirs of the victim. In Palaniappa Gounder v State of T.N., the Supreme Court has denied combining the punishment of fine with a death sentence and even with life imprisonment but changed its view later on. The Apex Court in the Hari Singh v Sukhbir Sinqli discussed the scope of the Section 357.

Compensationfor Sexual Assault
In Chairman Railway Board v Chandrima Das" and Bodhisattwa Gautam v Subhra Chakarbornf the Supreme Court has awarded interim compensation to victims.

As per the recommendations of the Supreme Court of India, a Criminal Injuries Compensation Board is yet to be constituted. However section 357-A is a masterpiece.