DME Journal of Law

Reading the Preamble to the Constitution of India from an Environmental Perspective

Aditya Ranjan — 2024-07-10

The Preamble to the Constitution of India declares the constitution to be a people’s document and it also sets basic objectives sought through the constitution. Even the apex court of India has stated that preamble is a key to open the minds of the framers of the constitution1. In such a scenario, the preamble to the Constitution of India holds an important place as the guide to the legislators. But the preamble to the Indian Constitution has no mention of ‘Environment’ which needs to be interpreted in the light of other philosophical aspects including Justice (social, economic and political), Liberty (of thought, expression, belief, faith and worship), Equality (of Status and opportunity); and Fraternity (assuring the dignity of individual and the unity and integrity of nation). The environment is one of the basic elements which contributes to the growth of human being2 and in such conditions the requirement of a clean and unpolluted environment is necessary for an individual’s growth, therefore, the equal access to clean environment becomes a right on part of individuals and a duty\ on state to provide every individual with a clean environment. This paper will attempt to elaborate the different perspectives of the Environment under the head Justice; and a further investigation regarding the religious aspects of environment and their contribution to the environmental pollution will also be done.

Laws related to use of Drone in India - A Critical Analysis

Pragati Singh — 2024-07-10

There has been tremendous development in India where unmanned aerial vehicles (UAVs), also known as drones, have been applied in various industries, mainly because of the advancement in technology & increased employment opportunities in respectively agriculture, defence, healthcare, e-commerce etc. This spike in drones in the use has set the need to develop and update the legal systems so that people can get safe, private and secure in the country. With the advancements in technology renewed legal framework guiding drone utility are shaped to keep pace with technological advancements and their implications. This paper critically assesses the existing laws in India as they pertain to the operations with drones. It delves into their broadness and implications, with a particular focus on their effectiveness in tackling the multifaceted issues raised by drone technology. It covers CAR (Civil Aviation Requirements) guidelines which DGCA (Directorate General of Civil Aviation) published for speaking about violation of operational restrictions, document requirement and for directional zones. The paper examines the problem in relation to tractability, safety, and national security regarding the drone usage that reveals the main nuances in the law-making and executive mechanisms against the drone operation. Taking a critical look closely, the paper is meant to parse the effectiveness of current regulations in tackling technological developments in a balanced way of ensuring people’s security and private life. Along with this, it has emerged with the proposition of some regulations to be made to the current regulatory framework, which is the plan towards a robust, flexible, and more comprehensive governance of drone technology in India

President Rule Article 356 Federalism and Issue of National Security

Mandeep Mishra — 2024-07-10

Federalism is an organisational structure in which authority is shared or split among all of the subordinate governmental institutions rather than being solely vested in the central government. The relationship between the Union and the States is depicted
in the Indian system.
Because the constitutional division of powers by levels of government can control the potential hazards that security and intelligence authorities represent for individual and collective freedoms, federalism may be preferable to unitary security regimes. Federalism, however, can also be a security problem since it is believed to obstruct effective decision-making about public safety.
The legal-institutional framework and constitution of the federal system in India exhibit a unique trend. Studies on national security legislation typically centre on striking a balance between security and liberty, with the vast majority of these studies\ examining this balance along the horizontal axis between federal branches. The vertical axis and the post-9/11 emergence of state and local government in American national security legislation and policy are two additional features that this article adds to question that traditional focus. It promotes a federalist framework that places a strong emphasis on vertical intergovernmental arrangements for the longterm promotion and mediation of a wide variety of policy values. When it comes to national security intelligence and counterterrorism, the federal and local governments collaborate and sometimes clash. This federalism framework clarifies these dynamics and provides insights that can help shape future reforms.

Striving for Peace: Addressing Human Rights Challenges in UN Peacekeeping Operations

Alisha Syali — 2024-07-10

United Nations (UN) peacekeeping operations have been pivotal in global efforts to stabilize conflict zones and mitigate violence for over seven decades. Utilizing soldiers, police personnel, and civilian peacekeepers from diverse backgrounds, these missions aim to implement multidimensional mandates while upholding international legitimacy. Beyond traditional roles of maintaining peace and stability, modern peacekeeping endeavours encompass a spectrum of responsibilities, including civilian protection, demobilization, and human rights enforcement, thereby fostering the transition from conflict to peace. However, amidst these noble goals, the UN has faced persistent criticism regarding human rights violations and sexual abuse by peacekeepers. This paper delves into the UN’s efforts to address legal and policy concerns, ensuring human rights protection and restoring the integrity of peacekeeping. It examines normative frameworks guiding peacekeeping missions and the evolving role of human rights therein. Despite advancements, challenges persist, including ambiguous mandates, political discord, and accountability deficits. Ambiguities in\ conceptual frameworks further complicate operationalization, necessitating clarity and coherence in mandates and implementation.
Recommendations for improvement include prioritizing civilian protection and human rights, fostering political consensus, and addressing discrepancies in resource allocation. Additionally, measures to ensure accountability, including penalties for troop-contributing countries and re-evaluation of peacekeepers’ immunity, are vital. In conclusion, while UN peacekeeping remains indispensable in global peace efforts, addressing human rights violations and enhancing accountability are imperative to uphold its integrity and effectiveness.

Gendered Realities: Reforming Juvenile Justice in India

Shikha Vasishta — 2024-07-10

For the past few decades, the juvenile justice system in India has shifted from a rehabilitative to a retributive paradigm, leading researchers to become increasingly interested in the gendered implications of paradigm change that may exacerbate problems of young offenders, especially females. The current article explores the question of how social attitudes, institutional prejudices, and intersectional identities affect the ways in which female offenders are perceived and treated in India. The framework for the current study includes theoretical concepts of rehabilitation, retribution, and feminist theory. The use of secondary analysis and the description of policy changes and historical context studies are included in the research. Employing a data-driven analysis based on a combination of case studies, quantitative data, and inter-state comparison, the research reveals that female offenders face systemic
institutional and individual problems, including re-victimization, trauma, and inadequate access to quality rehabilitation services. This article argues for genderresponsive and intersectional juvenile justice policies and redirects attention to rehabilitation available results for future policy and research initiatives

The Disaster Management Act, 2005: A Critical Review

Manindra Singh Hanspal — 2024-07-10

India has faced numerous devastating natural and man-made catastrophes during the last four to five decades, resulting in significant loss of life, resources, property, and trauma. Until 2005, India had no system or policy for disaster management, leading to a response-based conscious attitude, and there was no structure for prevention or pro-activeness. Policymakers recognised the need for a formalised disaster management strategy after the 2004 tsunami, leading to the adoption of the Disaster Management Act, 2005. This paper aims to examine the key features of the Disaster Management Act 2005 of India and identify its key limitations in order to provide appropriate recommendations.
Methods: This study is based on a comprehensive review of secondary data and a detailed analysis of India’s Disaster Management Act, 2005. The analysis includes a critical examination of the Act’s sections, institutional frameworks, and implementation mechanisms, ensuring a thorough understanding of the Act’s strengths and weaknesses.
Discussion: A meticulous and comprehensive review of the 2005 Disaster Management Act reveals that while it has established a structured framework for disaster management, it has several limitations. The Act does not appear to put enough emphasis on proactive steps to reduce disaster risk, making it seem reactive. Besides, there are no clear accountability procedures in place, which may result in implementation-related inefficiencies and non-compliance. The Act also lacks financial allocations for disaster management authorities at lower administrative levels (district, block, and village), affecting the preparedness and responsiveness of local responders. Political and economic constraints, bureaucratic inefficiencies, and corruption further undermine the Act’s effectiveness. Given these issues, an urgent revision of the Act is imperative to establish a more robust and effective disaster management framework in India

Personality Rights and Real Person Fictions: Do The Real Person Get a Say?

Shugandhi D — 2024-07-10

In this rapidly evolving world individuals have found various ways to express themselves and share that part of them with the world. In this modern age anyone with smart device and an internet connect can become a celebrity and with the same items anyone can create fictional works that are based on those and other celebrities. These creations are generally referred to as Real Person Fictions (RPFs). RPFs can bem short stories, poems, artworks and even full length novels. These works help creators practice their craft, bond with a community and break the bounds of reality but what happens if this right of the author to express themselves starts interfering with the real person’s right to publicity and privacy? Celebrities have expressed the implication of harmful portrayals in these RPFs which have had real life implications. The growing trend of commercializing RPFs on a big scale adds an incentive to look into this issue
and address it as a bud. The concept of personality right is well established in India however the lack of codification of the same has led to contradictory judgments and blurred lines of boundaries. In this regard this article attempts to address the issue of personality
right or the right to publicity when it comes to real person fictions. This paper is divided in three parts. The first part deals with definition of real person fictions and how it differs from the existing classifications of fictional creations. The second part analyzes the efficiency of existing Indian laws when it comes to governing RPFs and the implication of the same. The third chapter provides informed suggestions for an enactment to govern personality right in India.

In Re Rohit Arora v. Zomato (P.) Ltd. (CCI Case No. 54 of 2020)

Nituja Singh — 2024-07-10

Competition law which is also known as ‘Anti-Trust’ law is comparatively a new set of legislation. It enables corporate laws across the globe and endeavour to protect the interest of consumers as well as small business class and traders. The Competition Act, 2002 [hereafter referred as ‘the Act’] upholds the spirit of Indian Constitution. The Constitution of India under Part IV, Article 39(c) says that the State has to make such an economic policy and principle that the process of the economic system may not yield into concentration of assets as well as means of production to the handful capitalist or industrialist causing common detriment to nation and its economy.

The Bhaktivedanta Book Trust India vs. Www. Friendwithbooks. Co

Rajasri Reddy Dwarampudi — 2024-07-10

The case of “The Bhaktivedanta Book Trust India vs. Www. Friendwithbooks. Co.” centers around a legal dispute involving the copyrights of works authored by A.C. Bhaktivedanta Swami Prabhupada, the founder of the International Society for Krishna Consciousness (ISKCON), who had taken the vow of sanyasa, traditionally involving the renunciation of all worldly possessions. The Bhaktivedanta Book Trust India (BBT India), the plaintiff, claims ownership of these copyrights, arguing that despite Swami Prabhupada’s renunciation, he retained intellectual property rights which were legally assigned to BBT India, thus granting them the right to protect and enforce these copyrights. The defendant, Www. Friendwithbooks. Co., challenges this claim by questioning the validity of copyright ownership by a sanyasi, suggesting that his vow of renunciation precludes him from holding any material or intellectual property, and defending their distribution of his works under the principles of fair use or public domain. The court navigates the intersection of religious principles and legal doctrines, particularly examining whether spiritual vows affect the legal capacity to own and transfer intellectual property. The case’s outcome will significantly impact how copyrights are managed within religious contexts, potentially setting a precedent for future legal interpretations regarding the rights of religious figures who have taken vows of renunciation.

Refugee Rights and Policy Wrongs:A Frank up-todate Guide by Experts by Jane McAdam and Fiona Chong, Published by NewSouth Publishing (2019)

Harshwardhan Mishra — 2024-07-10

Jane McAdam, a respected legal scholar, and Fiona Chong, a lawyer with a background in human rights, co-authored the book “Refugees: Why seeking asylum is legal and Australia’s policies are not.” Jane McAdam is the Scientia Professor of Law and Director of the Andrew & Renata Kaldor Centre for International Refugee Law at the University of New South Wales. Fiona Chong, a Columbia University Human Rights Fellow, has previously worked for the Refugee Advice and Casework Service and Refugees International, demonstrating her dedication to refugee rights.

These Seats are Reserved: Caste, Quotas and the Constitution of India – Book Review

Raj Krishna — 2024-07-10

These Seats are Reserved by Dr Abhinav Chandrachud explains the legal history of the Indian Constitution’s affirmative action and demystifies the intricate system of regulations and processes that these policies rely upon for being implemented. The first half of the book chronicles the process of constitutionalizing reservation, starting with Jyotiba Phule’s campaigning and ending with the 103rd ConstitutionalAmendment’s enactment, which grants 10% quota to the economically weaker sections. The analysis of judicial rulings and constitutional amendments in the second\ part provides important clarification on the bewildering complexity of the legislation
regulating reservations. It is interesting to note that not many issues in India spark as much passion as those pertaining to reservations. The most frequent points of contention between lawmakers and judges have been around reservation policy, along with judicial independence and land reforms. It is important to remember that there could be two extremes in these arguments. Either they focus on the details without taking the larger context of the constitution into consideration, or they use impersonal ideals to conceal the fact that reservations are specific policies that have altered public life. As a result, a critical study upon this issue becomes important