Journal Title : National Journal for Legal Research and Innovative Ideas
Frequency : Quarterly
Volume : 1
Issue : 4
Period : July - September
1. Surrogacy and Law : A Critical Analysis
By - Anirudh Agrawal & Roshan Jaju , HNLU
• Abstract
Nature endowed women with the magnificent ability to procreate, and every woman cherishes the experience of motherhood. Regrettably, some women cannot give birth to their offspring due to certain physiological conditions. Their desire for motherhood drives them to seek alternative solutions, of which surrogacy is the most viable. Surrogacy is a reproductive technique in which a woman agrees to become pregnant and deliver a child on behalf of another party. Surrogacy has established itself as a reliable method of childbirth for infertile couples. Surrogacy is also recognised by the Indian Council of Medical Research's 2005 guidelines which state that surrogacy is used to assist people who arcannotave children naturally. In recent years, the rapid growth of surrogacy throughout the world has garnered widespread attention and raised several concerns about human rights and the rights of the child and surrogate mother. Globally, it is estimated that 15% of couples are infertile, making infertility one of the most prevalent medical problems. The primary reasons women choose to be surrogate mothers are poverty and a desire to help others, which has physical and psychological consequences for the surrogate mother.
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2. Application of Narco-Analysis in Crime Investigation
By - Stephy Siby & Guyyam Vaishnavi
• Abstract
In this paper researchers want to give a detailed account of deception detection techniques used in crime investigation in India. One of the major technique is Narco-analysis. This study discusses the use of polygraph and narcotics analyses in gathering evidence and determining constitutional validity. The criminal justice system is not without defects, and hence there are still ambiguous areas. Judicial system is increasingly relying on various technological technologies to cover in these unclear places. In both the investigative and criminal processes, scientific approaches are used. This paper discusses on the need for Narco-analysis, principles, the procedure followed in Narco-analysis. This paper analyses the constitutionality of deception tests in the light of legal framework and several case laws and compare the constitutionality of Narco-analysis in India concerning the USA. Despite the fact that science and law are two separate professions, the judicial system now has to deal with scientific facts on a regular basis. These tools are vital not just for investigating crimes, but also for locating future criminal behaviours that offenders will engage in society. These tests can appear to be in violation of the examinees' fundamental rights since they subject them to pain and suffering.
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3. Independence of Judiciary in India
By - Sristi Nimodia & Vinit Udernani
• Abstract
Independence of judiciary’ is sine qua non of ‘democracy and rule of law’. Judiciary can be regarded as the guardian of the constitution. Independence of Judiciary makes judges powerful and more able and further helps them in ensuring the rights of the citizens. In this paper the theoretical understanding behind the concept of ‘independence of judiciary’ has been introduced. Also, the constitution assembly perspective, the role of the committees and the judicial approach towards establishing the independency has been discussed. The paper has also highlighted the NJAC controversy.
In the early 20th century, an uprise was seen in the Freedom struggle and the aggression against the British rule was visible. Followed by which Indians had increasingly been demanding greater role and power in the government of their country. Also, India’s support to Britain during the First World War (1914-1918) aided to the British acknowledgment of the need for the inclusion and presence of more Indians in the administration of their own country.
Restitution of conjugal rights in India was originally adopted from the British, in order to preserve the institution of marriage. However, in doing so, there has been an oversight in the acknowledgement of the individual rights of people bound in the marriage. In the past, the courts have upheld the restitution of conjugal rights under Section 9 of the Hindu Marriage Act 1955, as constitutionally valid. However, the recent judgement of the Supreme Court in the Puttuswamy case has led to the understanding of right to privacy in a new light and this insight can be used for interpreting Restitution of Conjugal Rights as a violation on the right to privacy of an individual. As a result, people should not be compelled by law to live with their spouses against their wishes, for it may cause the violation of their privacy and autonomy, in addition to the possibility of sexual cohabitation without consent.
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6. Should Criminal Liabilities Ever Be Made Strict
By - Roudro Mukhopadhyay
• Abstract
In the past, to announce the verdict of guilty to an accused, it was of utmost importance that the criminal's mens rea was proved. Nonetheless, the doctrine of strict liability has negated the requirement to prove mens rea to held someone guilty. That has led to a rise in offences where mens rea is not integral to held someone guilty. No matter the authority, no major concord is present than the protest to strict criminal law liability. On what this protest is dependent? Many legal analysts will confront the idea of inflicting liability without Fault.
Climate Change is an imminent crisis that the entire world is facing. The effects of climate change may be varied depending on geographical and other factors, but they are being felt in almost all regions nonetheless. The imminence of the crisis was highlighted by one of Manhattan’s prominent art projects, Metronome’s electronic clock, which now counts down the time available to prevent effects of global warming from becoming irreversible. As of today, the timeframe is predicted to be just over 7 years.
The Indian Patent act of 1970, was considered and existed in law for relating for the matter of patent law there were drastic changes seen after the Amendment of 2005, the struggle between the patentability of the pharmaceutical companies for Drug has always been seen. The amendment recognized with the advent of the TRIPS agreement, that the products which don’t patent are given the desired recognition. The process of the patent has been in the “patentability subject of matter” the pharmaceutics sector has been taken the advancement from a day-to-day basis and the cases of the duplication of the drug and medicines are high. The acceptance of the drug patentability can be novel, non-oblivious, and should be based on the basic idea of whether it qualifies the prerequisites test for intervention of the granting the patentability. The case of Novartis Ag V. Union of India gives detailed analyses of the qualification for the test of patentability for the pharmaceutics companies after the Amendment of 2005.
With the growing horizons of the commercial realm, the complexities of arbitration are also escalating. More and more issues pertaining to arbitration are coming forth. One such issue relates to a non-responsive respondent. Arbitration, as globally understood, is a mutual dispute resolution arrangement between the parties. However, at times, it has been seen that many respondents turn ‘non-responsive’ to the arbitration proceedings. This non-participative attitude of the respondent leads to some significant issues. Many times, this non-responsive behavior of the respondent is a part of his ‘tactical game-plan’ to either force the claimant for termination of arbitration or to raise hindrances in the enforcement of the ex-parte award. Both the claimant and the arbitral tribunal face tremendous difficulty in proceeding with such arbitration. No doubt, various institutional rules, and national laws recognize the arbitrator’s inherent power to proceed ex-parte but hardly any rules or laws provide for an elaborated procedure to handle such issues. Due to this, sometimes, the claimant is left with no other option but to give up being fed up with the noncooperative behavior of the respondent. In this article, the author has discussed an elaborative procedure to handle such arbitrations right from the beginning. At appropriate places, the author has also suggested some practical solutions to the problems that usually arise due to non-responsive respondents. This article also discusses some practical tips and tactics which the claimant and the arbitrator(s) can keep in mind to lower any chances of the ex-parte award being jeopardized by the non-responsive respondent at the enforcement stage.
‘Internet defamation suits’ are different from ‘traditional defamation suits’. Cyber defamation is a new phenomenon in which defamation is carried out via a new medium, or virtual medium, but the definition of conventional defamation still applies to cyber defamation. The unique challenges faced by plaintiffs seeking remedies to damage goodwill or damage their reputation includes: the anonymity off the author responsible for defamation, and the costs and jurisdiction issues of successfully tracing the defendant. Online defamation is neither limited by time nor borders.
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11. Concept of Legal Aid In India
By- Shradhha Srivastava
• Abstract
Dynamism is the law of nature and law being no exception is inherently of dynamic character bringing unprecedented changes in the present age by virtue of its transforming forces of society. As aptly pointed out by Roscoe Pound that, ‘ Law must be stable yet it cannot stand still’ connoting the notion that there is need of change with stability in society for meting out the interests of modern society. Law can perform its function of resolving issues of society effectively if it can reconcile the needs of change and stability. For this, the framework of legal system with operational norms aiming towards liberation from social, political and economic oppression were enshrined in our statutory provisions but the socio- economic revolution from a police state to a welfare state especially in an underdeveloped country like India would be of no use if it is not securing the balancing interests of society at large which are recognized by law.
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12. White Collar Crimes : A Financial Sabotage
By- Rajesh Kumar Wundavalli & Pavani Garapati
• Abstract
White collar crimes are those crimes that are committed by the elite people of the society and these crimes are committed only with the intension and with the aim to increase their financial status. Basically white collar crimes are the falsification of financial information. These crimes are not just seen in the developed countries but are also seen in the economically developing countries. The first case on the white collar crimes dates back the age old of 15th Century in England Carrier Case 1473 whereas the first case in India is seen as Mundhra Case .
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13. Gender, Sexuality and Crime : A 21st century trend in India
By- Harsimran Kaur, Hidayatullah National Law University, Raipur
• Abstract
The paper hereby gives a broad interpretation of crime and its relation to gender and sex in the 21st century India. Through this paper the author has tried to introduce the difference between the terms gender and sex. An overview of the definition of crime from a sociological perspective, the various forms of oppressions led on such basis, covering from LGBTQ rights to the recently seen violence against men have also been included.The author has incorporated the role of gender in crime and the way society affects it. The project by the end, highlights the issue of violence against women. Also, an attempt has been made to examine the reasons behind such behavior.
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14. IS IT Mandated BY THE TRIPS AGREEMENT TO USE TRADEMARKS?
By- Ronald Philips & Delicia Getzi Surendher
• Abstract
This article examines whether there is a positive right to use trademarks under the TRIPS Agreement, in light of recent complaints based on bilateral investment treaties and WTO regulations against legislation restricting the use of tobacco-related trademarks. It investigates the argument that Article 20 of the TRIPS Agreement, as well as other articles, should be construed as compelling WTO members to acknowledge such a right. A patent holder could not be prohibited from using his licensed work, regardless of whether it harms the environment or the general public's health. However, the TRIPS Agreement does not obligate WTO members to provide a choice to use a brand name. Individuals in the WTO are pursuing open arrangement objectives, and the elite rights guaranteed under Article 16.1 of the TRIPS Agreement are only breaking point private business activities that could affect the brand name proprietor's interests. The article finds that members are only required to offer negative rights in regard to trademarks, based on WTO jurisprudence. A positive right of use would negate states' regulatory power and prohibit them from enacting measures they believe necessary for public health protection.
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This paper argues that the current state of law in India is unsatisfactory as it conflates the concept of competence with the quite distinct doctrine of repugnance. It highlights some leading judgements and analyses several controversial questions relating to legislative competence of the Centre and States. The legal provisions have been invoked in a fragmented manner during the wake of this pandemic showing a lack of clarity in how States and the Centre have interpreted their role under the Constitution. It is contended that the manner in which legal provisions are invoked to deal with any crisis should be in line with the constitutional scheme of division of powers between the Centre and States.
A contract is a key component of everyday transactions. Everywhere we go and everything we do in our everyday lives is governed by a contract. A contract can be formed at any time, from the purchase of a tiny candy bar to the purchase of a bus ticket. The contract governs all financial transactions. We all enter into contracts, whether wisely or foolishly. For contracts, it might be written or verbal. Contracts in India are governed under the Indian Contract Act of 1872.: This research paper portrays a brief about the remedies of Breach of Contract under the Indian Contracts Law and the New Zealand Contracts Law. The paper contains references from various online law journals and cases of national and international jurisdictions.
In this paper, the author has thoroughly analyzed the doctrine of excessive delegation. Delegation non potest delegate is a Latin maxim which is an essential part of Jurisprudence; it simply means an agent to whom an authority or decision-making power has been delegated by a principal authority may not delegate it to a sub agent. However, due to complexity in today’s society this doctrine has evolved. In the first segment of this article we will try to understand the meaning of this doctrine by analyzing some definitions. In the second segment we will discuss about the stand taken by Indian Judiciary on this aspect, by analyzing important case law and through it understanding the development of this doctrine on the Indian legal system. In the third segment we will further discuss the development of this doctrine in USA and UK. In the fourth segment we will try to understand the importance of this doctrine and reasons for its development. After this analysis we will get a fair idea about this concept and hence we would provide some suggestion for its development in the India system, where the knowledge of comparative analysis will play a major role. Finally, we will conclude each aspect of this paper and complete the analysis.
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18. WEST BENGAL STATE ELECTRICITY BOARD V. DILIP KUMAR RAY: ANALYSIS OF MALACIOUS PROSECUTION IN INDIA AND ENGLAND
By- Shivani B
•Abstract
The purpose of this paper is to introduce the concept of "Malicious prosecution." Through example analysis, the paper explains the concept. It begins by using several judicial rulings to explain the concept of malicious prosecution under torts. The author then goes on to discuss how the lack of a correct definition of the phrase "malicious prosecution" caused issues, as well as examine the court's interpretation in the landmark judgement which defined the case. The paper explains how the case was a watershed moment in the history of the phrase. The author then goes on to describe the notion in English law and compares it to Indian law. Finally, the paper is ended, along with a list of the different references that were used to complete it. The paper is finished using a doctrinal research method.
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19. Digitalization:A gateway to Cyber Crimes?
By-Ritika Saxena
•Abstract
The world has so far changed in each and every aspect and the main reason behind is development. More the necessity of anything arises more are the efforts made in the field of development to fulfill them. Some of us belongs to the era where hand written letters were sent, some of us holds back to the time where we used landlines phones to have a word with others and now today’s era has come to that point where sending a message or communicating with others can be done even faster than a blink of an eye.
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20. DEEPFAKE: HOW THEY ARE WEAPONIZED AND HOW THEY CAN BE STOPPED
By- SHIVANGI SRIVASTAVA & PRASHANT KRISHNA
•Abstract
Humans have a strong tendency to believe their own eyes and ears," and that is totally acceptable, but nowadays we are living in a world of high technology where it looks like the concept of 'seeing is believing' will soon be replaced by 'believing is seeing.' There's no doubt that artificial intelligence is advancing with high pace starting from, creating good for the society, to creating massive threat by generating indistinguishable fake and fabricated videos and images of people. Such advancement of AI has made it possible for even ordinary people to learn and misuse this technology by creating fake replicated images of famous personalities and use it for spreading misinformation, which is known as deepfake media. Not only this but it is also prevailing among common people as a new way of taking revenge.
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21. IMPLEMENTATION AND INTERPRETATION OF SECTION 89 OF CPC : A CRITICAL ANALYSIS
By- Aditi Mohpatra
•Abstract
The Civil Procedure Code is a compressed text detailing various procedures to be practiced by the courts adjudicating any litigation brought before them dealing with all of India's civil disputes. In Part V-Special Proceedings (Arbitration) of the CPC, Section 89 was first adopted the settlement of conflicts outside the forum. Section 89 which is incorporated in the Civil Procedure Code, delegates dispute settlement authority to the federal courts by using alternative dispute resolution methods which include the following- conciliation, arbitration, and judicial settlement including mediation and Lok Adalat. Alternative Dispute Resolution (ADR) deals with a range of methods used to settle conflicts in ways other than lawsuits. The ADR scheme aims to provide justice that is inexpensive, easy, fast, and available.
A day without access to internet or a day without a computer or smart phone is unimaginable to any human being, today. This rapid development of technology has led to the increase in the rate of copyright infringement. This is because, with the existence of many secondary online websites and gadgets such as pen-drives and external hard-drives, almost anyone can store, share or reproduce works created by others without authorization. Countries have been working for centuries against the exploitation of intellectual producers. However, with the advent of the digital world, the legislations that were used to protect these works also became obsolete. As such, the copyright system of the world also had to evolve alongside the digital world. This paper looks into some of these legislative changes that countries all over the world had to go through in order to keep up with the ever-changing technologies.
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23. INTERNATIONAL COMMERCIAL ARBITRATION- LAW AND DEVELOPMENT IN INDIA
By- Dr. Ishita Chatterjee | Associate Professor | School of Law, G.D.Goenka University | Haryana | India
•Abstract
With expansion and augmentation of investments, trade and other commercial activities, globalization acting as a stimulus, there is a rise in cases of International commercial disputes to which India is a party as well. This has made India the focal point of world to check out its International arbitration system. Indian government has taken various steps and opportunities to attempt to amend arbitration laws and rules in India to adopt to the dynamic nature of arbitration. The Arbitration and Conciliation (Amendment) Act, 2015 went through two failed attempts of being passed in 2001 and 2010 before coming into force, it was finally on 23rd October, 2015 when the 2015 Act came into effect. This Act does not have retrospective effect and is applicable on the proceedings be it arbitral or court proceedings, which occur after 23rd October, 2015, that is, after passing of this Act. This Act proved to be efficient and effective and have helped in conducting arbitral proceedings in India in a constructive manner.
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24. Exploring Corporate Governance: Decoding the Myths in Reality
By- Aditya Narayan Sinha & Palak Gupta
•Abstract
Today, the corporate sector is growing on a large scale globally. Corporate governance is an idea that has been conceptualized by western countries where these practices have been developed tremendously in the last few decades. In every corporate company, corporate governance plays a vital role in the smooth functioning of that corporate company. The practise of corporate governance is the leading and primary condition for any firm's smooth efficiency, but has corporate governance been successful? In this manuscript, we have deeply examined the term “Corporate Governance”. We have also studied and analyzed the status of corporate governance internationally with the help of few case studies. We have also discussed the innovations made in corporate governance and its issues through various case studies. Not only internationally, but we have also studied and examined the status of corporate governance in India. We have examined corporate governance before and after liberalization.
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25. It is time to revamp Indian judiciary
By- Shashank Shekhar Singh | LL.M Student | RASTRIYA RAKSHA UNIVERSITY
• Abstract
The core principle of rule of law says that ‘Be you ever so high, the law is above you’. It has been seen that the law is a pre-eminent way of understanding how our society works and how it functions. The constitution of India provides an equilibrium in between the three pillars of Democracy i.e., legislature, the executive and the judiciary. Each has a specific field to cover and role to play. All three pillars of democracy have their own jurisdictions. The courts are there to maintain the most fundamental equilibriums of our society.
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