Panjab University Law Review is a half yearly publication of the Department of Laws, Panjab University, Chandigarh since 1951 having circulation in India and abroad. It is a refereed and a peer reviewed journal. This Journal publishes research papers/articles/book reviews/case comments etc., which are duly assessed and reviewed by a panel of experts and is exclusively devoted to the publication of original research papers/articles/reviews/Case Comments of a very high standard. Besides Law, this journal also invites original articles from different fields of Social Sciences like Commerce, Economics, Political Science, Sociology etc. The vision of this academic journal is to provide a platform to academicians, professionals and students to express their views in a manner which would be conducive to educating readers about various dimensions of the law as it stands and the law as it should be. Throughout the years, the editorial boards have attempted to maintain the threshold quality while ensuring that the frequency of issues is consistent. The Panjab University Law Review also seeks to sustain and support legal excellence through its continued standards of publication. It is worth mentioning that the Department of Laws, Panjab University have seen a steady increase in readership, article submissions, and citations to our published articles. Our reputation and visibility in the academic community continues to broaden, and our editorial board constantly reassesses and revises the editorial process to ensure the most efficient and satisfying experience for both the authors and our worthy readers. It is due to the support of our advisory board, the hard work of our editorial board, and the interest of our readers that we are able to come up with this new issue, and we hope that this tripartite support continues in the future. On a final Note, as always, we would like to thank our steadfast Advisory Board as their guidance and support made our journal possible, and we are deeply indebted to them for the time and effort that they put into our journal. Last but not the Least, we give our special thanks to the immense contribution of the Editorial Board who have worked with full dedication and always strives to improve the Panjab University Law Review, thereby continuing its tradition of academic excellence.
THE WORKING OF FAMILY COURTS IN INDIA: A STUDY
The family courts in India serve as specialised judicial bodies established to address legal matters pertaining to familial and matrimonial disputes. Rooted in the principle of providing efficient and expeditious resolution to family-related conflicts, these courts play a crucial role in upholding justice and preserving the sanctity of familial relationships within the Indian legal framework. The inception of family courts in India traces back to the enactment of the Family Courts Act of 1984, which aimed to provide a comprehensive mechanism for resolving disputes related to marriage, divorce, guardianship, custody, maintenance, and other allied matters. These courts operate with a distinct focus on promoting conciliation and reconciliation, thereby emphasising the preservation of family unity and the betterment of all parties involved, especially children. The functioning of family courts is guided by principles of fairness, impartiality, and sensitivity to the unique dynamics of familial relationships. They adopt a holistic approach to dispute resolution, considering not only legal aspects but also social and psychological factors influencing the parties' lives. Through mediation, counseling, and judicial intervention, family courts strive to facilitate amicable settlements while ensuring equitable outcomes for all parties. The jurisdiction of family courts extends across the entire spectrum of family-related disputes, encompassing diverse cultural, religious, and socio-economic contexts prevalent in Indian society. In an era marked by evolving societal norms and legislative reforms, it is imperative to assess the responsiveness of these courts to emerging challenges and changing needs. Therefore, this research paper endeavors to contribute to the discourse on understanding the structure of family courts in India, challenges and reforms needed in family courts, advocating for measures that promote inclusivity, fairness, and efficiency within the legal system. KEYWORDS: Challenges; Dispute resolution; Family courts; Jurisdiction.
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COMPACT URBAN DEVELOPMENT AND SUSTAINABLE DEVELOPMENT: A LEGAL STUDY
Compact urban development has emerged as a crucial strategy in the pursuit of environmental sustainability amidst the backdrop of rapid urbanisation. Urbanisation stands as a defining trend of the 21st century, with more than half of the global population now residing in urban areas. While cities offer economic opportunities and social amenities, they concurrently exert significant strains on the environment, contributing to pollution, resource depletion, and climate change. In response to these pressing challenges, the concept of compact urban development has ascended as a salient strategy to reconcile urban expansion with environmental sustainability. This research endeavour delves into the intricate relationship between compact urban development and environmental sustainability. Leveraging a comprehensive synthesis of literature this study scrutinises the environmental advantages, hurdles, and policy ramifications associated with compact urban development. Through an interdisciplinary approach, the study elucidates the potential of compact urban development to mitigate environmental degradation, curtail resource consumption, and fortify cities against the impacts of climate change. This research endeavour seeks to interrogate the role of compact urban development in advancing environmental sustainability. By scrutinising the environmental advantages, challenges, and policy implications entailed by compact urban development, this study endeavours to elucidate its potential as a transformative paradigm in urban planning and design.
BIOCULTURAL RIGHTS OF INDIGENOUS PEOPLES IN INDIA AND UNITED STATES OF AMERICA: AN ANALYSIS
The indigenous people are the most vulnerable and excluded groups in the economic development process. The biocultural rights are the bundles of rights that protecting, recognising, welcoming, emphasising, considering, bearing, believing and solemnly declaring certain traditional practices, knowledge and values in order to bring the indigenous peoples, tribals and other distinct local communities into the mainstream of the development process. The right to development and right to self-determination is core of the biocultural rights of the indigenous people. Their traditional system of knowledge, biocultural heritage and traditional authorities needs to be protected. The development is inclusive only when it is participatory in the decision-making process at local, regional and national level. This research study is an attempt to find out the impacts and implications of various conventions and UN Declaration on the indigenous people under the international law. It will remind always that indigenous people were subject to historical injustices, colonial exploitation and impacts of human rights violation and dispossession of the forest land in the development process. It provides the permanent forum for resolving indigenous issues through the specialised national, international and UN agencies.
LAW RELATING TO WOMEN AMID ARMED CONFLICTS: INSIGHTS FROM INTERNATIONAL HUMANITARIAN LAW WITH SPECIAL REFERENCE TO INDIA
Armed conflicts have profound impacts on women, leaving them more vulnerable to gender-based violence within societal and structural contexts. These conflicts lead to shifts in gender dynamics, affecting women's roles, attitudes, identities, legal frameworks, and beliefs. International humanitarian law offers a legal framework to protect women during armed conflicts, ensuring their human rights are respected. These protective measures are widely disseminated and enforced in conflict settings, applying to all parties engaged in armed conflict and UN peacekeeping missions. To address the issue of violence against women in armed conflicts, various experts, scholars, and organisations, including the UN, have generated extensive literature like books, articles, and papers, exploring the legal implications of armed conflict on women before and after such events. This study aims to comprehensively investigate the legal landscape and the challenges women encounter in armed conflicts. Keywords: armed; conflict; violence; war; women
ARCHEOLOGICAL MONUMENTS AND SITES: ROLE OF INDIAN JUDICIARY
India is home to a large number of archeological monuments and sites. Every archaeological monument and site tells a different, exquisite history from the past, which distinguishes the country. India is home to a large number of archaeological monuments and sites. Because these structures are valuable from an artistic, historical, and archaeological standpoint, it is now important to preserve them. The Ancient Monuments and Archaeological Sites and Remains Act, 1958, is the major piece of legislation governing archaeological monuments and sites in India. Recognizing the cultural and historical significance of ancient monuments and archaeological sites, this Act was passed with the intention of protecting and maintaining them. In India, the judiciary serves as the guardian of the people’s fundamental rights and the Constitution. This article aims to examine the laws that oversee archaeological monuments and sites in India, with a particular emphasis on the role of the Indian court through a discussion of significant rulings. The researchers have attempted to divide the paper into distinct sections. An overview of India’s archaeological monuments and sites is provided in the first section, along with a brief explanation of the laws pertaining to these sites and monuments. An extensive discussion of the judiciary’s contribution to safeguarding India’s archaeological monuments and sites is presented in the following portion of this article. In the last, conclusion and some suggestive measures for the protection of archeological monuments and sites have been given. Keywords: Archeological Monuments, Conservation, Preservation, Judiciary
CASE COMMENT - REVANASIDDAPPA AND ANR. V. MALLIKARJUN AND ORS. (CIVIL APPEAL NO. 2844 OF 2011)
Stigmatization around children born out of invalid marriages has existed in our society for a long time now. Even when the law grants legitimacy status to such children, still society treats them differently and they are often subject to discrimination. They are not given the due respect in their own family as well as the society. Not just on the social level, but they have been facing discrimination with respect to claiming rights in their parental property. As an evolving society, we must understand that children born out of such marriages are innocent and they should not be made the subject of discrimination, that too with respect to the rights that ideally should be theirs because of their parents. This topic has been a debatable issue not only with respect to the social sphere but also in the legal sense. The present case analysis will look into the recent judgement passed by the Supreme Court of India in this regard which grants such children the right to their parents’ property. Keywords: Legitimacy, coparcener, invalid marriages, Hindu law, etc.
ARTIFICIAL INTELLIGENCE AND PATENT LAW: ANALYZING PATENTABILITY OF AI-GENERATED WORKS
Industry 4.0 era has changed the dimension of the manufacturing sector with the integration of AI technologies into its domain. This has created an opportunity for the development of the Intellectual Property domain to adopt AI technology for the development of the nation economically. This research work analyses the existing patent regime and explores the idea of granting AI the inventorship for AI-generated inventions. Based on the analysis, this study identifies the different AI technologies including Artificial Neural Networks (ANN), Convolutional Neural Networks (CNN), and Fuzzy logic technology that can be used in the patent domain for creating an AI-generated invention. This study outlines the existing legal implications relating to the inventorship of AI-generated inventions in the U.S. and India and this research suggests a shift from the traditional view of the courts relating to recognising AI as an inventor of a patent. A model has been proposed relating to the assignability of patents and provides the categories of persons to whom such invention may be assigned by the patent office. Based on the analysis future framework has been recommended. Keywords: Artificial Intelligence (AI), Artificial Neural Networks (ANN), AI-Generated Invention, Inventorship, Patent
GENETIC JURISPRUDENCE: REIMAGINING INDIAN LEGAL SYSTEM'S APPROACH TO DNA EVIDENCE AND PRIVACY PROTECTIONS
Within the area of justice delivery system all over the globe, incorporation of DNA information has emerged as a crucial instrument in establishing truth, guaranteeing fairness, and preserving the ideals of justice. In India use of DNA information in criminal justice system has sparked extensive deliberation regarding its potential, as well as ethical, human rights, privacy concerns it entails. This research paper explores the complex terrain of DNA technology deployment, with a particular focus on delicate balance between individual rights and societal welfare. It shall examine two key legislative initiatives i.e., the DNA Technology (Use and Application) Regulation Bill, 2019 and the Criminal Procedure (Identification) Act, 2022. It shall delve into the implications of these laws on the judicial system's handling of criminal offenses, analysing the potential impact on due process, privacy, and the fundamental rights of citizens. The deliberation on this topic is significant to evaluate legislative intent, scope of DNA data collection, usage, and safeguards (or lack thereof) incorporated to protect individual liberties. By examining the Indian context within the broader global discourse on the use of DNA evidence in the justice system, this paper seeks to contribute to the ongoing dialogue on redefining the boundaries of genetic governance and striking a delicate balance between the imperatives of national security, public welfare, and individual rights in the face of an ever-evolving technological landscape. KEYWORDS: DNA, Privacy, DNA Bill, the Criminal Procedure (Identification) Act of 2022.
RETHINKING GOVERNANCE FOR SOCIETAL PROGRESS: A LEGAL STUDY FOR REFORMS IN INDIAN ADMINISTRATIVE LAW
The study of administrative jurisprudence is crucial to rethinking administrative law for societal progress in India. Understanding the legal framework that governs administrative law and its societal impact is essential to ensure that administrative law is fair and just for all. By conducting a legal study of administrative jurisprudence in India, we can identify the areas that need improvement and work towards creating a fair and equitable system. The research quarries into the challenges within India's administrative law framework, aiming to recognize and analyse flawed concepts leading to inefficiencies and legal inconsistencies. Through qualitative analysis of case law, statutes, and administrative procedures, outdated doctrines hindering effective governance are scrutinized. Employing doctrinal research, judicial interpretations, and legislative enactments perpetuating these flaws are critically evaluated, alongside comparative analysis with other jurisdictions. Beginning with a historical overview, the study highlights non-justiciability, excessive delegation, and procedural complexities as the main issues. Findings reveal unchecked administrative discretion, vague legislative guidelines, and opaque decision-making, eroding public trust and undermining the “Rule of Law”. The socio-legal implications are profound, impacting fairness, accountability, and economic evolution. Proposed reforms include judicial, legislative, procedural, and substantive measures to modernise administrative law. This research underscores the necessity of these reforms for a fair, efficient, and accountable administrative system, urging collective action from policymakers, practitioners, and academicians.
SARFARAZ ALAM V. UNION OF INDIA & OTHERS VIZ-A-VIZ PREVENTIVE DETENTION
Sarfaraz Alam v. Union of India and Others[1] is a Special Leave Petition filed under Article 136 of the Indian Constitution dealing with the preventive detention. The SLP has been filed by the brother in law of the detenue questioning the detention. The case was decided on 4 January 2024 by the Apex Court of the country. The decision was given by the Honorable Bench of Justice Aravind Kumar and Justice M.M. Sundresh. The present matter dealt with the requirement for detention as provided by the Article 22(5) of the Indian Constitution. The Court at length has discussed how serving the grounds times and effectively are the sine qua non of the right of the detenue to make a representation to object the order of the detention. Article 22(5) bounds detaining authority to make sure that the communication whether verbal or written in the language understandable by the detenue is of paramount importance and the failure to do so would lead the court to bend in favour towards the detenue. The court has emphasized on communication as being the first step to ensure that the detaining authority does not work in a manner that would blur the rights of the detenue. Sarfaraz Alam v. Union of India and Others[1] is a Special Leave Petition filed under Article 136 of the Indian Constitution dealing with the preventive detention. The SLP has been filed by the brother in law of the detenue questioning the detention. The case was decided on 4 January 2024 by the Apex Court of the country. The decision was given by the Honorable Bench of Justice Aravind Kumar and Justice M.M. Sundresh. The present matter dealt with the requirement for detention as provided by the Article 22(5) of the Indian Constitution. The Court at length has discussed how serving the grounds times and effectively are the sine qua non of the right of the detenue to make a representation to object the order of the detention. Article 22(5) bounds detaining authority to make sure that the communication whether verbal or written in the language understandable by the detenue is of paramount importance and the failure to do so would lead the court to bend in favour towards the detenue. The court has emphasized on communication as being the first step to ensure that the detaining authority does not work in a manner that would blur the rights of the detenue.
A CRITICAL ANALYSIS OF ISSUES AND CHALLENGES IN FREEDOM OF SPEECH AND EXPRESSION VIS-A-VIS CONTEMPT OF COURT IN INDIA
Although words break no bones yet freedom of speech needs regulation because unrestricted freedom of speech can have far reaching destructive and negative consequences. But the question is to what extent, one can exercise his freedom of speech especially when the speech right is exercised against the judiciary? Human power not only vests in his speech but also in its expression through which he has the potential to even bring a revolution; for good or for bad. Law therefore imposes restrictions on speech but only reasonable restrictions have given the sword to the judiciary for its protection and maintenance of dignity. But then why criminal contempt cases are mounting day by day? Is the law inadequate? Whether the restrictions which were considered reasonable earlier have become unreasonable in contemporary times? There are many unanswered questions that need to be delved upon and find out the solution failing which chaos will gradually lead to darkness. The paper is an attempt to study the legislative and judicial perspective towards the contempt law and analyse the imbalance between criticism and contempt power of court through the prism of freedom of speech and how the imbalance can be mitigated in an amicable and harmonious manner.
ISSUANCE OF PROCLAMATION TO ENSURE PRESENCE OF ACCUSED AT TRIAL: AN EMPTY RHETORIC
The author in this article shall be discussing proclamation as a mode for ensuring the accused presence at trial and the effects of issuing proclamation. A person’s right to liberty is seriously undermined by issuance of proclamation against him. The author shall discuss the Court’s duty before issuing a proclamation. Once proclamation is issued, the follow up procedure is sluggish. The Legislature in the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023 has enacted far reaching reforms with respect to proclaimed offenders. The Courts have also played an active role in trying to plug the loopholes of the mechanism. The author shall discuss the follow up procedure that shall be undertaken in order to ensure the efficacy of proclamation as a tool to ensure accused presence. In the end, the author explores the possibility of conducting trials of proclaimed offenders in absentia so that the rule of law is not undermined and there is no secondary victimisation of the victim who helplessly stares the criminal justice system where the accused takes the system for ransom by absconding himself and rendering the case infructuous. The author in the last part shall discuss the suggestions which shall be undertaken by the law enforcement agencies to ensure that proclamation does not become a mere formality but a robust tool to ensure accused presence at the trial. KEYWORDS: Absconding; Accused; Presence; Proclamation; Trial
SUPREME COURT’S LINKAGE OF CLIMATE CHANGE AND FUNDAMENTAL RIGHTS: A STEP IN THE RIGHT DIRECTION
Dr. B.R. Ambedkar was inevitably accurate and unerring in saying that, “Constitution is not mere a lawyer’s document, it is a vehicle of life and its Spirit is always the spirit of the age.” This invariably, lucidly, and unambiguously means that a constitution cannot be caged in the webbing or plexus of time and interpretations, thinking and ideologies, past and present or future, stillness or motion, correctness or fallaciousness, sorrow or happiness, originalism or living constitutionalism, textualism or contextualism, intentions or understandings, public meanings, or opinions of the framers; and lifelessness or submissiveness. This postulates that Constitution and the dynamics that are associated with it, should keep changing with the time, according to the needs of the society and legal morality as well. Recently, the Supreme Court of India has been giving out judgments and ratios that are in line with a progressive society, seeped deep into the constitutional morality that we seek to uphold. A lot of rights of the people have been recognised since a long time and today as well. So, when on April 7, 2024, the Indian national dailies, and a number of international news articles published that the Apex Court has recognised the rights of the persons (not just citizens), against the adverse impacts of climate change under articles 14, 21, 48A, 51A (g)- the Constitution of India once again became alive in sentience and rejoiced in happiness as well as zest. Keywords: Constitution; Fundamental rights; Citizens; Climate change; Supreme Court
FEMINIST LEGAL THEORY WITH SPECIAL REFERNCE TO INDIAN PERSPECTIVE
Feminist legal theory, also referred to as feminist jurisprudence, is rooted in the belief that the law has historically played a significant role in the subordination of women. Feminists assert that traditional laws and practices, which have been shaped predominantly from a male perspective, fail to adequately represent the viewpoint of women and acknowledge their historical contributions. This paper aims to explore feminist jurisprudence from an Indian perspective, delving into the history of the feminist movement in India and its transformative journey. Feminist jurisprudence challenges the notion that law constructs, maintains, reinforces, and perpetuates patriarchy. The ultimate aim of the feminists is to pull apart patriarchy by questioning the present societal principles and establishments. They believe that by eliminating patriarchy, everyone will be liberated from an unjust society. Feminist jurisprudence requires examining its connections with other disciplines, as it cannot be viewed in isolation. This paper seeks to commemorate the significant milestones achieved through the influence of feminist jurisprudence, both globally and in India, while also exploring the extent to which society has embraced these changes. It traces the evolution of feminism in India from 1915 to the present, analyzing the changing ideas and roles of women within society. The paper also addresses the various obstacles encountered by feminist jurisprudence and the growth of feminism through statutes and judicial interpretation. Additionally, it highlights the impact of post-independence efforts and sheds light on the progress made thus far.
DECEPTION DETECTION TESTS IN CRIMINAL INVESTIGATION WITH SPECIAL EMPHASIS ON NARCO ANALYSIS: EXAMINING THE LEGAL POSITION IN INDIA
There are several methods for Criminal Investigation. Scientific techniques like polygraph, narco-analysis, etc., are becoming common in the present time for crime detection. These scientific techniques have proved to be a boon in criminal investigation. Narco-analysis has become increasingly common and famous in India among criminal investigating agencies. However, these scientific techniques are also challenged and criticised as being violative of our constitutional ethos. The current paper attempts to examine issues concerning the scientific techniques of criminal investigation, and the author has focused specifically on the narco-analysis method of criminal investigation and will examine the evidentiary value of the narco-analysis test. Key Words: Criminal Investigation, Narco-analysis, Scientific Techniques, Constitutional Ethos.
LEGAL ASPECTS OF NATIONAL EDUCATION POLICY 2020: AN INTROSPECTION
The National Education Policy (NEP) 2020 that was in works since 2016 has come up with an extremely ambitious vision. It has delineated certain overhauls in the education system. As the global knowledge landscape evolves rapidly, the emergence of big data, machine learning, and artificial intelligence poses the risk of automation replacing numerous unskilled jobs worldwide. Conversely, there is a growing demand for skilled labour, particularly in fields like mathematics, computer science, and data science, alongside the need for multidisciplinary expertise across sciences, social sciences, and humanities. Planners, first of all, cannot ignore the legal constraints resulting from constitutional, legislative or regulatory measures. For example, the obligation of ethnical non-discrimination in the enrolment process, gender equity, compulsory attendance and duration thereof, regulations governing the curriculum, teachers’ obligations etc. The policy raises a number of constitutional concerns. While some of these concerns regarding the medium of instruction in schools and the undermining of the federal principles have been raised, certain questions of educational equity and interests of marginalised groups remain unaddressed till date. Through this article, the authors attempt to provide a constitutional background to the concerns for educational equity, while highlighting certain inherent deficiencies in the NEP.
EXPLORING THE LEGAL AND CULTURAL SIGNIFICANCE OF DOWER RIGHTS: A STUDY
Dower is a socio-religious and legal concept that has been in practice since antiquity, and it has a notable impact on various aspects of societal relations, including property rights, inheritance, protective security for women and other gender dynamics. The authors in this paper aim to find out the multifaceted dimensions of the dower in greater detail, exploring its socio-religious context and current legal status of the dower. The analysis attracts case studies and legislative frameworks to explore how dower promotes economic security for spouses, particularly for women. The legal debates on property distribution and its significance in contemporary times on gender equality and marital rights need to be understood through the prism of personal laws and their liberal interpretations. The paper examines how dower is a legal and religious obligation for a husband under Mohammadanian Law to ensure that a wife gets surety and security, also surviving wife is not left destitute after the death of her husband, by providing them with a portion of their husband’s property. Furthermore, this paper examines potential challenges and reforms that are associated with dower laws in the context of modern legal systems and societal norms. The research paper provides a comprehensive overview of the religious sanctity of the dower and its socio-cultural dimensions that stress the reliability of dower laws in promoting economic security for women.
EVOLUTION OF PROPERTY RIGHTS OF A HINDU FEMALE - AN ANALYSIS UNDER THE HINDU SUCCESSION ACT, 1956
Society has placed unequal expectations on women, often limiting their financial autonomy and defining their roles within the family structure. Fortunately, societies around the world are evolving, recognizing the importance of gender equality and women's rights. Efforts are being made to empower women economically, socially, and legally. The Hindu Succession Act of 1956 enforces and protects the property rights of Hindu women in the community. The enacted act and amendments allowed both married and unmarried daughters to inherit their ancestral properties thereby allowing them to be absolute owners of any property they inherit or purchase, with the freedom to handle it as they wish. The Hindu Succession (Amendment) Act, 2005 brought significant changes in the Act, which amended Section 6 of the Hindu Succession Act, 1956 and recognized a Hindu girl as a coparcener as that of a son. The various court rulings clarified that the provisions of section 6 of the Act are retroactive, not merely prospective or retrospective. This retroactive nature signifies that a daughter's equal coparcenary rights are established from 9th September, 2005 based on her birth as a past event. This rectified the legal gap concerning the timing of events and clarified that a Hindu female will have a right over the ancestral property as a coparcener like her brother.
CHALLENGES IN IMPLEMENTING COMPULSORY REGISTRATION OF MARRIAGES IN RAJASTHAN: AN ANALYSIS
Rajasthan’s attempt to impose mandatory marriage registration is complicated by the sociological, administrative, and legislative features of the state. There are complexities and difficulties surrounding Rajasthan’s requirement for marriage registration. Several obstacles impede the effective implementation of the registration obligation, such as legislative complexities, inadequate administrative infrastructure, insufficient awareness, and disparate cultural standards. The paper examines potential approaches and policy recommendations for enhancing the registration process and developing a comprehensive plan to ensure marriage registration, facilitate legal rights, and increase social welfare in the state of Rajasthan. The initial segment of the paper delineates the legal foundation supporting the authority of state governments to endorse laws pertaining to marriage registration, underscoring the importance of state legislation within the constitutional framework. Furthermore, the paper also provides elucidation on relevant legislations such as the Hindu Marriage Act and the Special Marriage Act, alongside the involvement of local government and adherence to national standards. The paper emphasises the necessity of implementing compulsory marriage registration, highlighting the importance of this procedure in guaranteeing legal acknowledgment, safeguarding the rights of spouses, and deterring underage or deceitful partnerships. The paper concludes with necessitating the crucial need of compulsory marriage registration in Rajasthan and recommendations to address the identified challenges.
UNIFORM CIVIL CODE: THE (UN) FULFILLED PROMISES OF THE INDIAN CONSTITUTION
A Constitution is continuously in flux. Implicit in a Constitution is its founders' vision, which unfolds itself in the very process of its fulfillment. In that sense, it is a mix of ideals and reality of what ought to be and what is. A constitutional document seeks to reckon with reality and reshape it in the mold of its aspirations. Constitution certain norms which are enforceable in courts of law and certain norms which, though fundamental in the country's governance, are not enforceable by the courts. Both sets of these constitutional norms have messages and mandates for the state, society, and individual, and those messages and mandates are the tasks that the Constitution entrusts to all branches of the state and the citizens for their progressive understanding. In other words; our Constitution gives us a basic structure, a set of primary goals, values, and norms, a body of mandatory and prohibitory injunctions, a quiver of constructive and declaratory arrows, and a manual of methodologies. All these are aligned with the teleology of the priority tasks of our Constitution. In context with the above, one of the unfulfilled promises of the Indian Constitution is the Uniform Civil Code (UCC). The Indian population is like a bunch of flowers in a vase. There is diversity in religious faith, customs, festivals, food, language, and culture, and consequently diversity in personal laws. The UCC, if enacted, will deal with the personal laws of all religious communities relating to marriage, divorce, adoption, inheritance, succession to property, etc., which are all secular in the character of the Indian state, and to enhance fraternity of unity among citizens by providing them with a set of uniform, personal laws. Initially, more support was needed to enact the Uniform Civil Code. The government has received certain representations from various quarters for bringing in a Uniform Civil Code as envisaged under Article 44 of the Constitution. Recently, the 22nd Law Commission issued a notification to elicit views on any issues about UCC. The commission has received the responses and has yet to come to a conclusion and make the recommendations. Objective of the study The objective of the paper is to analyze the situation as to how the government will fulfill the promise of the Constitution. The analysis will be conducted with the help of views of the members of the Constitution Assembly, the existing provisions of the Constitution and its interpretation. The international commitments will also be discussed. However, while resolving the dispute and interpreting the different personal laws, the Supreme Court of India has expressed the need to enact a uniform civil code to uphold the values of gender rights, equality, and justice. Research Methodology The research methodology of the literary work is doctrinal in nature, uses both exploratory and analytical approaches. Both primary and secondary sources of information were used. To provide the basis for the initial assessment of the paper, which has since been broadened to include a deeper analysis of the literature, the method entails a thorough review of books, articles, newspapers, judgements of the courts.
SIR HENRY MAINE'S PERSPECTIVE: UNRAVELING DICHOTOMOUS STATE OF PERSONAL LAWS OF PUNJAB UNDER BRITISH RULE
The Historical School of Jurisprudence has established that customs are driving force behind the development of codified laws and same has been witnessed in evolution of Personal laws in India. In the British India era when matter for codification of civil and criminal laws came up; the area of personal laws dealing specifically with succession, adoption, marriage etc. are left unaltered and customs prevalent at that time with respect to aforesaid matters are given due importance. During 1862-1869 when Sir Henry Maine acted as a legal member to Governor-General Council of India, it was observed that for the purpose of development of personal laws, customs and practices were stressed upon especially in the case of erstwhile State of Punjab. With the enactment of Punjab Laws Act, 1872, customary law was given legal status inspired by the fact that it regulates civil life and this is how the province of Punjab became an exception where customs of people became the law of the province by a single statute. Therefore, in order to understand why and how such customs got embedded into legal language it is necessary to conduct this study. Thus, in present paper the researcher with help of secondary data and historical research plan shall decipher process with which customs got embedded into legal language. It shall also reflect on its recognition altogether as a distinct code than Hindu Personal laws and critically examine Maine's perspective, analyzing its relevance, limitations, and implications for understanding Punjab's legal landscape under British rule.
The paper explores the complex dynamics surrounding the implementation of a Uniform Civil Code (UCC) in India, amidst its diverse culture and religion. It begins by highlighting India's historical diversity and the unity enshrined in the Preamble. The historical context of the UCC's inception is referred, tracing its roots to the colonial era and subsequent Constituent assembly debates. The conflicts between secular constitutional provisions and personal laws are examined, analyzing whether a balance can be struck between the two. Examples such as the Shah Bano case and subsequent legal developments are analysed where the judiciary highlighted the importance of UCC to address gender inequality and uphold constitutional principles. The paper also explores the constitutional basis for a UCC, highlighting conflicts between the directive principles of state policy and fundamental rights. While personal laws are protected under Article 25, they often clash with principles of equality, secularism, and the right to a dignified life outlined in Articles 14, 15, and 21. The abstract suggests that a UCC could reconcile these conflicts by promoting equality, secularism, and uniformity in laws governing personal matters. Benefits of implementing a UCC are discussed, including the promotion of equality, secularism, and uniformity across diverse communities. By addressing gender disparities and ensuring equal treatment under the law, a UCC could foster national unity and uphold constitutional principles. Challenges to implementing a UCC are also examined, such as conflicts within the Constitution, cultural diversity, and political opposition. In conclusion, the research presents an overview of the historical, legal, and social complexities surrounding implementation of UCC in India. It proposes the need for a balanced approach as per Bentham’s Utilitarian theory which respects individual’s rights while preserving and advocating national unity and secularism. Keywords – Uniform Civil Code, Gender Justice, Constitutional Law, Secularism
WHO DECIDES? THE STATUS OF REPRODUCTIVE RIGHTS IN INDIA: AN ANALYSIS
India gained Independence 76 years ago, and it’s an appropriate time to analyse the position of women in our country. The journey of a woman's position in Indian society has been truly remarkable. Women excelled in every sphere of life. Their contribution to professional as well as to social life has been dynamic. It would not be wrong to state that she emerged as a “Super Woman". However, her recognition as an equal partner in reproductive and sexual rights still is negligible. In India, the scope of reproductive rights has been extremely limited to the area of child marriage, female foeticide, sex selection, etc, although the area has a much wider scope. “As per the report of UNICEF India and World Bank data, India has the highest number of maternal deaths every year, and unsafe abortions are the major reason for maternal deaths The aim of this paper is to discuss reproductive rights in detail and to bring out the major issues related to them in India. The paper will broadly be divided into four parts the first part will be defining Reproductive Rights. The second part will be talking about the Legal framework related to them. The third part will discuss the role of the judiciary in shaping reproductive rights. Finally, the paper will provide a summary of the problems related to the implementation of these rights, and it will come up with some suggestions for the better implementation of these Rights.
AN ANALYSIS OF IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A GROUND OF DIVORCE UNDER HINDU LAW
Marriage is a considered sacrament and a sacred holy union under Hindu law for the fulfilment of religious obligations. Marriage is considered a sacrament and a sacred union according to Hindu law, with the purpose of fulfilling religious duties. Once a relationship is established, the law intervenes and binds the parties to a number of duties and liabilities. In earlier Hindu law, divorce was an unknown concept because marriage was considered an indissoluble union. Initially, the grounds for divorce under the Hindu Marriage Act, 1955, were based on the guilt theory, and a divorce decree may be obtained by either of the parties in accordance with Section13 of Hindu Marriage Act, 1955. The Hindu Marriage (Amendment) Act, 1964 introduced the theory of breakdown in Hindu law by inserting clause 13(1-A) under the Hindu Marriage Act, which is a small step in the direction of an irretrievable breakdown of marriage, despite the fact that Hindu law does not specifically recognize this concept as a ground of divorce. Irretrievable breakdown of marriage means when a marriage has broken down beyond any possibility of repair, then it should be dissolved. The determination of the question whether a marriage has broken down or not is left to the courts. The Honourable Supreme Court occasionally exercised the power provided in Art. 142 of the Indian Constitution to dissolve marriages in cases where it deemed that the marriage had irretrievably broken down and it would be unjust to the parties to continue it. Judiciary and Law Commission Reports suggested the Indian Legislature to incorporate "Irretrievable Breakdown of Marriage" as a ground for divorce under Hindu Marriage Act, 1955. This paper includes judicial approach towards the irretrievable breakdown of marriage, Law commission reports and Marriage (Amendment) Bill, 2010. Keywords: Irretrievable Breakdown of Marriage, Divorce, Hindu Marriage Act, 1955, Law Commission Reports, Supreme Court.
JUDICIAL INTERFERENCES ON RELIGIOUS FREEDOMS: SABARIMALA DECISION AND ITS FUTURE IMPLICATIONS
Hailed for its revolutionary stance on women's entry into the temple, the paper focuses on the fine balance between essential religious practises and universal tenets of public and constitutional morality. It does so by exploring the complex web of constitutional dynamics. The research explores the Indian top court's interpretation of the essential religious practise theory, drawing comparisons with the Sabarimala ruling. Examining the fine line that separates public morality from constitutional morality, it highlights the developing body of legal precedent regarding “non-discrimination” as defined by the Constitution. Additionally, the article makes the case that the Sabarimala ruling has broadened the application of Article 17, bringing the debate over untouchability to the forefront of judicial theory. This expansion empowers constitutional courts to issue criminal directives, fortifying the prohibition on untouchability and potentially dismantling various discriminatory practices. This extension strengthens the ban on untouchability and may lead to the abolition of other discriminatory practises by enabling constitutional courts to issue criminal directives. The authors in this paper discussed how religious freedoms towards a particular gender being discriminated from centuries. Further, the research paper throws light on the role of judiciary in protecting constitutional rights of its citizens with reference to Sabarimala ruling and its impact on essential religious practises.
AN ANALYSIS OF THE RIGHTS OF TRANSGENDER PERSONS UNDER TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019: GAPS AND CHALLENGES
The journey from ‘no’ law to have ‘special’ law viz. Transgender Persons (Protection of Rights) Act, 2019 recognizing the existence of transgender persons as human beings and conferring them legal rights has been full of challenges and obstacles. The manner in which the law was enacted so hastily without considering the concerns raised by activists opens up the debate if the rights conferred under the Act are adequate enough ensuring transgender persons to live their life with respect and dignity at par with cisgender.. With this question in mind, the authors analyses the gaps and challenges in legal rights guaranteed to binary genders but neither denied nor conferred to transgender persons such as right of inheritance, right to marriage, right to adoption etc. under the Act,2019.
REALTIONSHIP BETWEEN PERSONAL LAWS AND RELIGIOUS FREEDOM IN INDIA
This study explores the intricate interplay between personal laws and religious liberty in India, a country renowned for its multifarious religious and cultural traditions. Personal laws that influence people's lives and communities include those pertaining to marriage, divorce, inheritance, and succession. These laws have their roots in religious customs and practices. This research offers a comprehensive historical account of the development of personal laws, scrutinizing significant clauses and seminal court rulings concerning religious liberty and personal laws. Along with highlighting current challenges, case studies and in-depth analyses of individual instances draw attention to topics related to gender equality and secularism. The research assesses earlier attempts at personal law reform and suggests a reasonable strategy to deal with the difficulties of personal law enforcement while maintaining religious liberty. It advocates for a careful and comprehensive approach to legislative reforms in India that honours the various religious practises and beliefs of the country's populace. The study highlights the persistent conflict between personal laws and religious liberty in India and advocates for a thorough investigation to guarantee that legislative modifications properly balance safeguarding personal liberties with upholding religious customs.
IRRETRIEVABLE BREAKDOWN OF MARRIAGE WITH SPECIAL REFERENCE TO SHILPA SAILESH V VARUN SREENIVASAN CASE
With the rapid advancement in the socio-economic milieu of the society, the institution of marriage has also undergone a massive change. Concept of divorce, although regarded as an evil and stigmatizing, has also become common nowadays. Presently, fault grounds for obtaining divorce under the Hindu Marriage Act, 1955 have been inadequate in several extraordinary situations prevailing in a matrimonial relationship. In such circumstances, the judiciary has also endeavoured to invoke irretrievable breakdown of marriage to grant divorce to the spouses. The article studies the judicial opinion over irretrievable breakdown of marriage prior to the judgment of Shilpa Sailesh v Varun Sreenivasan and the precedent laid down by the Supreme Court in its judgment in Shilpa Sailesh case in the year 2023. The researcher has applied doctrinal research methodology for conducting the research. It is true that ground of irretrievable breakdown of marriage lacks legislative backing. That is why, there is no consensus among the courts about whether the ground of irretrievable breakdown of marriage should be invoked to dissolve a marital tie in a given case where all other fault grounds of divorce cannot be applied. Recently, the Supreme Court in Shilpa Sailesh v Varun Sreenivasan in the exercise of its powers under Article 142 of the Constitution dissolved the marriage on the ground of irretrievable breakdown of marriage. The Apex Court has laid down a precedent to be followed by all the subordinate courts in hearing divorce petitions which are based on no-fault grounds.
DRAWING CONTOURS OF BASIC STRUCTURE DOCTRINE: AN APPRAISAL
The recent remarks of Constitutional post holders over the Basic Structure doctrine have again spurred an age old controversy of Legislature and Judiciary conflict. Questioning the judicial prudence by criticizing fundamental constitutional safeguards have become a norm in contemporary, while the same poses a threat of delegitimizing the legal wisdom of the constitutional courts. Basic Structure Doctrine serves as the beacon of light for our darkest constitutional days by historically acting as sole guardian against arbitrariness and irrationality of legislative decision making. Interrogation of such paramount judicial innovation has put at doubt the authority of our judiciary to deliberate and decide over constitution matters. This paper makes an attempt to address the efficacy of Basic Structure Doctrine in redressing constitutional fallacies and attempts at bypassing rule of law. Legal Precedents and Jurisprudences have been studied to assess the present-day legitimacy of the doctrine. The paper aims to have discussions on the debated power struggle of our major constitutional institutions and the success of key constitutional provision like Basic Structure in addressing the same. The paper also legally analyzes whether the Parliament has legal power to disregard the constitutional wisdom of judiciary by legislatively overruling the judicial reviews. And also the authors will try to deliberate upon the current tussle on the basic structure doctrine and to analyze whether it would set a wrong precedent in a constitutional democracy.
RIGHT TO EMERGENCY MEDICAL CARE IN INDIA
Medical Emergency not only causes anxiety but also affects the families mentally as well as financially. The cumbersome and laborious procedures for availing the treatment, ill-timed medical care and inadequate quality of healthcare facilities make it difficult to save the victims in need of emergency medical care. As per the Road Accidents in India 2021, the latest data released by the Ministry of Road Transport and Highways, 1,53,972 people were killed in road accidents in India in 2021. Road Safety has become one of the biggest public health issues in India. Millions of lives are lost due to road accidents while the number of accidents is increasing. Goal three of Sustainable Development Goals too seeks to ensure healthy lives and promote well-being for all, at all ages. The right to health is one of a set of internationally agreed human rights standards as well. Keeping in view the dire need for Emergency Medical Care System in India, healthcare has been recognised as an extension of the right to life by the Supreme Court of India in the case of Kaushal Kishore v. State of Uttar Pradesh and Others in January 2023 in which the court emphasised that Articles 19 and 21 could be enforced against persons other than the state and its instrumentalities. This paper deals with the Constitutional perspective of the emergency medical care system in India and the challenges that India faces in providing medical care in emergent situations. The paper also proposes suggestions to overcome the challenges.