Journal on Law & Public Policy Vol-1 (2014)
About the Journal
The Journal of Law and Public Policy, a peer reviewed journal first released in 2014 is published annually by the Centre for Environment Law Education, Research and Advocacy. It touches upon various socio-legal issues in the interface between law and public policy such as human rights, consumer welfare, women rights, socio-economic rights, food security law, access to legal aid, medical law and ethics to name a few. The fourth, fifth and sixth volumes of the Journal have specially dealt with legal and policy issues on the Uniform Civil Code, Sustainable Energy and Sports. In addition to scholarly articles the Journal has also featured case comments and book reviews. JLPP is a peer reviewed journal with an ISSN No. 2350-1200.
“Income tax exemption to the third sector organizations in India: an analysis of the state-society synergetic relation from the perspective of re-democratization[1]
– Prof. P. Ishwara Bhat
The author critically examines the role of third sector organisations in India and the need for State government to encourage their activities through tax exemptions. The paper states that the State and Third Sector Organizations have been playing an imperative role in order to serve the society better. This paper analyses the conceptual understanding of the tax exemption clauses to the Third Sector Organizations thereby exploring the constitutional dimensions with regard to exemption of tax for such organizations. An analysis on the legal concept of charitable purpose and the method of identifying the same in light of legislative and judicial developments have been dealt elaborately. The author through this paper has analyzed various types of tax exemptions and deductions provided to Third Sector organizations under the Income Tax Act and its abuse by undeserving organizations and control mechanisms have been recommended.
“Dawn of a claim of legitimate expectation of fundamental right to property in land- a Myth or reality under the original constitution of India”
– Y R Rajeev Babu
The author in his article highlights the law on acquisition and how the alleged indiscriminate acquisition of land, payment of inadequate compensation and want of rehabilitation resulted in the citizens resorting to violent protests against the Government. The Indian Constitution under Article 300A necessitates only one restriction on the power of eminent domain, that is, “Authority of Law”. Intention of the founding fathers of the Indian Constitution was to make Right to Property as a Fundamental Right and the same was made as a Fundamental Right in the original Constitution. The makers of the Constitution knew that land reforms could have been introduced within the framework of the original Constitution by a process of harmonisation of the Fundamental Rights and Directive Principles of State Policy. The above intention and assurance to the people and the past conduct and practice of the Government allowing the masses to enjoy the fundamental right to property have instilled a firm belief that the Government would not deprive the people of the fundamental right to property. In reality, this has generated a legitimate expectation of fundamental right to property and the people of India rightfully expected the Government to honour the legitimate expectation of fundamental right to property.
Law relating to Rape: An International Humanitarian Perspective
– Miranda Das
The author in her write-up deals with international humanitarian law relating to rape. The author has not only critically analysed the law on rape but has also addressed the study of its evolution as a legal category along with the evolution of international law has also been attempted. Thus, the paper presents multiple definitions of rape which have been codified within the international jurisprudence at different points in time in order that this phenomenon may be properly dealt with in the legal structure.
“A Call for Tobin Tax”
-Tanmoy Majilla[2] & Orlaine Pereira
The authors discuss the issue of Tobin tax. Tobin tax has been debated globally since its introduction and achieved more significance after global financial crisis, which demands a new financial architecture. The tax has been looked at as an instrument to prevent volatility and fluctuations in exchange rate and achieve financial stability in Capital Markets throughout the world. On the other hand the feasibility of having a worldwide consensus for Tobin Tax remains an open question. This article examines the question of necessity and feasibility of imposing a Tobin Tax.
“The ‘blues’ of the Green Tribunal”
– Savio J F Correia
The author in this article gives a critical assessment about the functioning of the National Green Tribunal. While the National Green Tribunal Act 2010 was enacted to fill the long felt need to establish specialized environmental courts that would overcome the increasing complexity of environmental litigation and procedural rigidity of regular courts, concerns have been expressed over several critical provisions not being happily worded and leaving loopholes or scope for misinterpretation. Limiting the National Green Tribunal’s jurisdiction to “substantial questions relating to environment” would leave the given facts canvassed in a petition to the subjective assessment and mindset of an individual to judge. The author argues that litigant would be relegated to dealing with complex procedural technicalities coupled with delay tactics and perennial delays associated with regular civil courts, more so in cases of execution.
Pre-Legislative Consultation – Efforts so far & reality
– Josyula Lakshmi[3] & Tejbir Singh Soni
The authors in their write up state that the making of a law in India has had its historical legacies and is a reflection of its past in that it carries the English colonial past of its formulation and execution. Laws are made for society. They reflect the way societies organise themselves by way of harmonising any potential disruptions by adhering to set rules of living. In doing so, history shows that the socio-political elite plays a major part in spelling out what ought to be law and how it can best represent people’s aspirations and the society’s desire for maintaining normalcy. Most laws have come into being against the above mentioned backdrop and are hence time and again amended, reviewed and reinterpreted to suit the changing times and greater inclination towards human rights rather than pre-conceived societal rights alone. The act of putting law making into the public domain by way of taking inputs on draft legislations, consultation processes envisaged etc. give a new impetus to what law ought to be and how it can be a popular law if it is put to consultation at the making stage. While welcome, the process itself may not be sufficient to guarantee its acceptability. The paper tries to decipher the same.
“Judicial Accountability and Legislative Escapades: A Critical Evaluation of the 2012 Bill”
-Shivika Choudhary[4] & Sukant Singh Rawat
The authors iscuss the aspect of Judicial Accountability which has been an over-whelming concern currently in India. Amidst reports of misappropriation and impropriety, it is pertinent to ensure accountability so that the public continues to entrust its faith in the Judiciary. Taking cognizance of this requirement, the Judicial Standards and Accountability Bill 2012 had been passed by the Lok Sabha. The Bill lays down standards of judicial conduct and provides for investigation of charges by the Scrutiny Panel and the Oversight Committee. While the Bill awaits approval of the Rajya Sabha, it is desirable to analyse the provisions to understand the extent to which the Bill delivers on its promises without compromising judicial independence. This legislative note examines the impact of the Bill on the concepts of judicial accountability and judicial independence. While doing so, the authors examine the provisions of the Bill related to investigation, the constitution of Scrutiny Panel and Oversight Committee, the definitional issues, and concerns regarding the termination of services of the judge. The attempt is made to ascertain the efficacy of the Bill resolving the existing issues rather than creating more complexities.
“Outsourcing Wombs: Exploring the Ethical and Legal Issues in Surrogacy”
-Harman Shergill
The article highlights the Ethical and Legal Issues in Surrogacy. After the success of various other processes being outsourced from India such as business, legal and knowledge processes, the latest is the outsourcing of wombs. Over the past few years, India has seen an explosion of fertility services that promise a cure for the increasing rates of infertility. The fertility industry is an integral part of the country’s expanding ‘medical tourism’. Surrogacy, being the practice of gestating a child for another couple or an individual in return for remuneration, has drawn much attention and raised several ethical issues. India has emerged as a hub for surrogacy arrangements due to its conducive environment owing to a variety of reasons including lack of regulation, comparatively lower costs in relation to many developed countries, shorter waiting time, the possibility of close-monitoring of surrogates by commissioning parents, availability of a large number of women willing to be surrogates, and infrastructure and expertise comparable to international standards. On the other hand, there are issues concerning citizenship, surrogates’ payments, contract between the surrogate and the commissioning parents and exploitation. To address such issues and to regulate surrogacy arrangements, the Government of India has taken certain steps including issuance of guidelines but till now, there has been no legal provision dealing directly with surrogacy laws to protect the rights and interests of the surrogate mother, the child and the commissioning parents. The proposed Assisted Reproductive Technology Bill, 2010 is expected to beef up surrogacy guidelines authored by the Indian Council of Medical Research (ICMR) that have often gone unheeded by the few hundred Indian fertility clinics accustomed to writing their own rules. The author seeks to establish that there is an urgent need to initiate processes for a critical understanding of ‘surrogacy’, that has assumed the proportion of a transnational industry towards building a collective, feminist response to it.
“Genetically Modified Foods: Venom in our Salvers? – Consumer’s Right to Know”
–Bhuvanyaa Vijay
This article examines the Genetically Modified Foods and its impact on our lives. The author explores the arguments for and against and the challenges pertaining to GM Foods, why they are inept for consumption, how the arguments for its proponents find no tangible grounds and finally, how can the consumer’s right to health be protected by espousing their right to know about the food they consume through labelling of GM Foods. The article suggests that unless authentic studies do not validate safety of GM Foods for consumption, they may not be let loose for commercial distribution in markets. For those products regarded as innocuous and which ultimately do find a way onto our platter, labelling is the primary precautionary step to inform consumers and enable them to make guided choices. Till execution is lacklustre and the regulators are listless and dispirited to enforce laws prohibiting GM Foods, mere existence of regulations/laws will not protect consumer’s interests. We cannot be left becoming the lab-rats and guinea-pigs of a technology which is an infant science, far too uncertified and greenhorn to be left unbridled among us.
Case comments:
“In .Re: Indian Woman says Gang Raped on orders of Village Court published in Business and Financial News”
– Yashomati Ghosh
The author analyses the suo motto petition in the Supreme Court In Re: Indian Woman says Gang-Raped on orders of Village Court in which the author critically examines the incident of January 23, 2014, when the entire country was in a state of shock when media reported that a woman in the rural villages of Bengal had been gang-raped at the orders of the Salishi Court (equivalent to khap panchayats) for having relationship with a man outside her community. The country wide protest and media outcry at this inhuman incident made the Supreme Court take suo-motu action. The orders passed by the Court assumes academic significance on several counts like recognition of the rights of the victims, upholding the vicarious liability of the state, widening the scope of compensation and rehabilitation measures etc., and necessitates the need for critical study.
“Esha Ekta Apartments Co-operative Housing Society Ltd. and others v. Municipal Corporation of Mumbai and others”
-Sanyukta Singh
This is a case comment by the author on ‘Esha Ekta Apartments Co-operative Housing Society Ltd. and others v. Municipal Corporation of Mumbai’. The protracted dispute between the residents of the Campa Cola Society and Mumbai Municipal Corporation has been covered in several news reports. To most people, the demolition by the municipal authorities of the illegally constructed apartments in the Campa Cola Compound has seemed patently unjust, after the same have been home to the residents for decades. However, this entire matter was scrutinized and analysed in detail by the Supreme Court of India, which ultimately held that the demolition orders were legally sustainable. Unauthorised construction is widespread in our cities and possibly home to millions. Did the Supreme Court enforce the letter of the law at the cost of interest of the public or to safeguard it?. The author vide this case comment has sought to present the key facts of this case, the reasoning of the Supreme Court as well as analyse the key aspects that would be fundamental for resolving this issue.
Book review:
“ISRO is not just Rockets”
– Kumar Abhijeet
The author review the book titled, ‘Touching Lives – The little known triumphs of the Indian Space Programme’, S. K. Das New Delhi: Penguin Books India (2007) S. K. Das New Delhi: Penguin Books India (2007) written by Kumar Abhijeet. The book classified into thirteen chapters is a reckon ranging from the mountains of Himalayas to the God’s own country – Kerala, embracing the glittering Ganges in the East to the incredibly beautiful Lakshadweep Islands, revealing how human life have become keen by just one touch of ISRO. Most of the ISRO projects are ongoing in the remote areas where facilities are not so freely available as compared to cities. It has taken real life examples from various parts of the country sharing experiences of people where ISRO has significantly made contribution in addressing their social problems. “ISRO has capabilities that are comparable to the best anywhere in the world, but what makes it different is the way in which ISRO’s satellites deliver services to the society, by shrinking both time and space.” The book introduces the other side of the Indian space programme and reveals it’s little know triumphs in overcoming the miseries of the common man. Touching Lives is a manifestation of competence of space based technology to address the social problems in India.
Editorial Board:
Patron-in Chief
Prof. (Dr.) R. Venkata Rao
Professor of Law &Vice-Chancellor,
National Law School of India University, Bengaluru
Patron
Prof. (Dr.) O.V. Nandimath, Registrar, NLSIU
Prof.(Dr.) Sairam Bhat
Professor of Law & Coordinator
Centre for Environmental Law, Education, Research and Advocacy
National Law School of India University, Bengaluru
Editors
1. Mr. Kumar Abhijeet, Assistant Professor, NLSIU
2. Ms. Arpitha H.C., Assistant Professor, NLSIU
Editorial Advisory Board
1. Prof. (Dr.) N. R. Madhava Menon, Honorary Professor, IBA-CLE Chair, NLSIU
2. Prof.(Dr.) A. Lakshminath, Vice Chancellor, Chanakya National Law University, Patna
3. Prof. V.S. Mallar, Chair Professor, V.R. Krishna Iyer Chair on Public Law and Policy Choice, NLSIU
5. Prof. (Dr.) A. Prasanna Kumar, Director, Centre for Policy Studies, Vishakhapatnam
Contact: Manuscripts as well as questions should be submitted to the Editor at: ceera@nls.ac.in
SUBMISSION GUIDELINES:
What to Submit?
– Short Articles (3000 -5000 words, exclusive of footnotes).
– Case Comments, Legislative Briefs, Law Commission Report/Review (1500-2500 words, exclusive of footnotes).
– Book Review (700-1500 words, exclusive of footnotes).
How to submit?
All submissions must have a concise title with a maximum of 70 characters. Submissions made under the category of articles must contain an abstract of not more than 200 words along with a maximum of 5 keywords.
Formatting Guidelines
1. The paper should be free from all grammatical and spelling errors.
2. The submission must be word-processed and in Times New Roman. The main text should be in font size 12 and footnotes in font size 10, line spacing 1.5, and the text should be justified.
3. A one line gap must be maintained between all paragraphs and headings.
4. All hyperlinks must be in black colour and must not be underlined.
5. Heading levels should be clearly indicated.
6. Citations should appear as footnotes that are numbered consecutively. The Journal does not accept in-text citations and endnotes.
7. Tables, if included should be self-explanatory, numbered serially and accompanied by concise titles and sources.
8. Figures and images if included should be submitted in a separate file along with the manuscript in word format (.doc). Images and figures taken from external sources should be adequately captioned; sources acknowledged and should be of high resolution.
9. The manuscript must not contain the name of the author(s) or his/her institutional affiliation or any other information. A separate cover letter containing the name of the author(s), professional information, contact details, and other relevant information must be provided.
10. Only articles in English will be considered for publication.
11. Manuscripts submitted shall be understood as final versions, subject to subsequent corrections suggested by the Editor.
12. Manuscripts should be submitted electronically, in Word format, via e-mail to electronically, in Word format, via e-mail to ceera@nls.ac.in or submitted through our website – Submission | National Law School of India University (ceerapub.nls.ac.in).
Journal must not have been published elsewhere previously. If during the review process, the manuscript is accepted for publication in any other Journal; Book; any other format, including electronically, the responsibility shall solely lie on the author to immediately inform the Editor and withdraw the manuscript from the review process. On acceptance of any manuscript for publication, the author would be required to sign a ‘Consent to Publish and Grant of Exclusive Licence’ form.
1. For further information on style, see the CEERA Style Guide here.
2. Non-conformity with the submission guidelines will be a ground for rejection.
Ethics and Malpractice Statement
Confidentiality
Editor, Editorial Board and the Advisory Board shall ensure that the manuscript submitted for review shall remain confidential while under review. Unpublished manuscripts undergoing review and the ones rejected would not be used by the Editor, Editorial Board, Reviewers or the Advisory Board in any way for the personal advantage of the Editorial Team without the written consent of the author. Privileged information or ideas obtained through peer review would be kept confidential and not used for personal advantage.
Duties of Editor and Reviewers
1. It shall be the responsibility of the Editor to ensure that the peer review process is fair, unbiased, and timely.
2. The editor shall select reviewers for the manuscripts submitted based on their expertise in the relevant field, keeping in mind the need for diverse and inclusive representation.
3. Any submission made by the Editor or members of the Editorial Board shall be subject to the usual review processes of the Journal independent of the involvement of the relevant author or editor in question. The editor shall not be involved in decisions about papers which s/he has written him/herself or have been written by family members or colleagues or which relate to products or services in which the editor has an interest. A statement of this effect shall be clearly mentioned in any such submission that is published.
4. Reviewers shall bring to the notice of the Editor any suspicion of any breach of research ethics or misconduct, if any.
5. Reviewers shall bring to the notice of the Editor any potential conflicts of interest resulting from any relationship, professional or personal with any of the authors or institutions connected to the manuscripts submitted and recues himself or herself from reviewing the manuscripts in question.
Breach of Ethics
1. All cases of alleged misconduct and breach of research ethics shall be dealt with in an unbiased and objective manner.
2. The Editor and the Editorial Board would not out rightly reject submissions that raise concerns about possible misconduct. All alleged cases of misconduct shall be dealt with ethically and an opportunity of being heard and to file justifications and clarifications would be given to the author against whom allegation of misconduct has been raised and other affected parties.
3. Any allegation of plagiarism or publication misconduct raised by a third party would be dealt with after seeking clarifications from the original authors. The Editor reserves the right to not proceed against such allegations if deemed appropriate.
4 . The Editor would be willing to publish corrections, clarifications, retractions and apologies when needed.
Duties of Authors
Authorship
Authorship should be limited to those who have made a significant contribution to the manuscript submitted.
Originality, acknowledgement of sources and plagiarism
Manuscripts submitted should be original work of the author(s). Any work or words of others including tables, images and figures used in the manuscript must be appropriately cited or quoted, acknowledged and captioned with permission, where necessary.
All citations, references and quotations must be verified before submission of the manuscript.
All references should be carefully checked for completeness, accuracy and consistency. The accuracy of references is the responsibility of the author. Incorrect references and citations may be a ground for rejection of the manuscript. Verbatim copying, paraphrasing without attribution, self plagiarism of the author’s previous work without due acknowledgement would be deemed as misconduct and dealt with accordingly Notification of errors and competing interests –
All authors must disclose any financial and personal relationships with other people or organizations that could inappropriately influence (bias) their work or that may be construed to influence the interpretation of their submissions. Authors must disclose any interests in the title page file of the manuscript. If there are no interests to declare then the authors must state: “Declarations of interest: None”.
All sources of financial support, received if any in the conception, design or conduct of the research and/or preparation of the article should be disclosed.
Authors shall be obliged to provide retractions or corrections of mistakes or any significant inaccuracy in their published work or manuscript under review, in case of detection as soon as they come to their notice or are informed of the same. Such corrections shall be promptly notified to the journal Editor.
Copyright
Publication in the journal would be subject to authors signing a ‘Consent to Publish and Grant of Exclusive Licence’ form. By signing the Form, authors would have to warrant and represent that their manuscripts submitted to the journal have not be published elsewhere in whole or in part; that it is the original work of the author(s) and all the material taken from other sources have been duly cited and acknowledged by the author(s); that NLSIU shall be indemnified in case of any copyright violations; and that the views contained in the manuscripts are solely the views of the author(s) and shall in no way be construed as the views of the Editors, CEERA, and NLSIU, either jointly or severally