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International Journal of Human Rights and Constitutional Studies

International Journal of Human Rights and Constitutional Studies (IJHRCS)

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International Journal of Human Rights and Constitutional Studies (33 papers in press)

Regular Issues

  • The new constitutional provision for the protection of decent living and its implementation in criminal sanctions in Greece   Order a copy of this article
    by Styliani Christoforidou 
    Abstract: After the constitutional amendment of 2019, a new constitutional provision (Art. 21 Para 1b Gr. Const.) provides the states obligation to protect decent living. This provision belongs systematically to the field of social welfare rights, and its purpose is to enhance the protection of socio-economic rights. This paper argues that the same provision can also apply to the criminal system, mainly during the sentencing. Article 21 Para 1b Gr. Const. in conjunction with the human dignity principle (Article 2 Para 1 Gr. Const.) can enhance the rights of the sentenced in two ways: setting the constitutional limit of decent living protection during sentencing with non-custodial sentences and enhancing the right of judicial protection of those that serve custodial sentences under conditions that violate Article 3 ECHR.
    Keywords: prison; detention conditions; human dignity; decent living; alternative sanctions; Greece.
    DOI: 10.1504/IJHRCS.2021.10043471
     
  • The right of custody of minor: a comparative study of Shariah and Pakistani legal system   Order a copy of this article
    by Afrasiab Ahmed Rana 
    Abstract: In Islamic law, custody (hazanat) is looking after a person who is unable to look after himself, i.e., a person of unsound mind or a minor but in Pakistani statutory provisions do not define the concept. However, from judicial dicta, one can infer that guardianship of person' be equitant to the term custody, and it is possession of person of ward for purpose of protection, either actual or constructive. This paper aims to compare the right of custody of minor in Shariah and legal system of Pakistan as poses certain recommendations to bring the Guardian and Wards Act, 1890 in line with Islamic law of custody of minor. This paper will compare, differentiate and resolves the conceptual clashes between the Guardian and Ward Act, 1890 under legal system of Pakistan and Shariah prospective of the right of custody of minor.
    Keywords: guardianship; custody; hadanah; minor; visitation; wishes of the minor; qualifications of custodian.
    DOI: 10.1504/IJHRCS.2021.10043612
     
  • Online education - issues and challenges in digital equality matters   Order a copy of this article
    by Avinash Bhagwan Awaghade 
    Abstract: Access to education based on equality is ongoing objectives of developing countries like India. The focus of this article is on conceptual understanding of online education issues and challenges in digital equality matter. It has been discussing the existing gap between the marginalised peoples and socially advanced peoples. In the system of imparting education, it is expected to be student-centric approach in earning and learning knowledge and wisdom of survival professional skills. In the context of digitalisation of education, internet access is the most influencing factor in digital equality matters. The purpose and objective of this article are to understand conceptual issues and challenges in online education. The analytical discussion will be made by non-empirical methods of research and conclusion will be made by an armchair method in line of objectives and purpose of understanding of issues and challenges of digital equality in online education.
    Keywords: digital equality; education; human rights; information and technology; constitution.
    DOI: 10.1504/IJHRCS.2021.10043636
     
  • The constitution comes second: how the Constitutional Court of Kosovo disregards the supremacy of the constitution   Order a copy of this article
    by Jeton Hasani 
    Abstract: This article examines the Kosovo Constitutional Court’s controversial practice of overlooking the Kosovo Constitution’s normative supremacy in its jurisprudence. While all constitutional organs can participate in ensuring constitutional supremacy, the role of a Constitutional Court in this regard is unsurpassed as the final interpreter of a constitution’s meaning. That said, rather than carefully following the Kosovo Constitution, the Kosovo Constitutional Court frequently relies on other legal sources to reach a decision, although they might directly contradict the Constitution. These sources include ordinary legislation, foreign legal experience, Venice Commission materials, and ECtHR’s case-law (not on Kosovo). Often, this practice results in diminished human rights protection, as evidenced best in the Etem Arifi case.
    Keywords: Kosovo Constitutional Court; constitutional supremacy; normative hierarchy; constitutional interpretation; comparative constitutional law; human rights; judicial review; Kosovo.
    DOI: 10.1504/IJHRCS.2022.10044081
     
  • Controlling state power in Vietnam after Doi moi (1986): an increasing challenge and perspective   Order a copy of this article
    by Giao Cong Vu, Cu Thanh Vu 
    Abstract: Controlling state power - a prerequisite in every democracy - assures 'we the people' fundamental principles and prevents power abuse from public officials. Due to the characteristic of the political regime, this issue has not captured Vietnam and other socialist countries attention. In the past, since the severe abuse of power threatened socialism, the Communist Party of Vietnam (CPV) and the State strived continuously to control state power from the Doi moi era (1986). This article analyses the premise triggering the escalating abuse of power for corruption in Vietnam since the Doi moi era. It then reveals the CPV and the state's achievements and limits in establishing controlling state power mechanisms over the last 30 years. From the ground, the paper suggests some initiatives to enhance the efficiency in controlling state power in Vietnam in the future.
    Keywords: state power; control of state power; Doi moi era; Vietnam.
    DOI: 10.1504/IJHRCS.2022.10044322
     
  • Re-imagining, re-conceptualising and re-shaping cities in post-pandemic India: interpreting the urban space   Order a copy of this article
    by Koyel Basu 
    Abstract: The COVID-19 pandemic has busted the myth of the invincibility of globalisation. Borders are suddenly no longer that significant. Open spaces are becoming pertinent in urban reconstruction. At present, post-pandemic recovery is an important challenge globally. The need to develop modern urbanisation with planned cities that accommodate all sections of people is being universally acknowledged by experts. These cities need to be resilient, inclusive and sustainable. For cities to be sustainable, they need to utilise public spaces judiciously. The paper focuses on what makes cities sustainable in a post-pandemic world order and how India is navigating the challenges of urban reconstruction. The paper brings up the binary between public and private space and points out that wellness of individuals is very significant pointer in newly planned cities. The paper concludes that big cities are here to stay whatever be the predictions of naysayers.
    Keywords: cities; urbanisation; urban space; sustainable; resilient; density; India.
    DOI: 10.1504/IJHRCS.2022.10045383
     
  • Human rights mechanism: a theoretical perspective   Order a copy of this article
    by Satnam Singh Deol 
    Abstract: Present article is an attempt to understand the process of individual realisation, social recognition, legal codification and political enforcement of human rights through the systems approach. The study implies that the process of social composition and political construction of human rights can be referred to as human rights mechanism. In the article, various processing units of the human rights mechanism, its operating structures and their functions are defined and explicated. Along with this, the article also explains the energy setting the mechanism in motion, besides interpreting the objectives of the mechanism and the capacity as well as conflicts of the mechanism to achieve the objective.
    Keywords: individual; choices; society; culture; claims; state; law.
    DOI: 10.1504/IJHRCS.2022.10045554
     
  • The synthesis of law, judicial duty and enforcement of rights in Africa   Order a copy of this article
    by Peter A. Atupare 
    Abstract: The ideals of judicial duty and the law cannot be sufficiently realised in Africa where there is a theory of human rights which sought to suggest that socio-economic rights are less important for the subjects of law on the continent. Rights, whether socio-economic or civil and political in nature, must be seen as an essential component of the rule of law. In that light, any conception of rights by any court that discounts socio-economic rights in the African human rights constituency is a negation of the ideals of the rule of law within the larger context of law on the continent. Democracies in Africa and consistent with their true plural customary values cannot sustain a theory of law and rights that bifurcate the structure of rights. Rights are rights and must be conceived and enforced without any nominative classification that discounts their unity; it is the best way that rule of law can have a better meaning for the people on the continent as subjects of the law so enacted.
    Keywords: law; judicial duty; human rights; synthetises; enforcement of rights in Africa; theory of rights; rule-based rights; value-based rights; legal rights; legal rights; constitutional democracy; courts.
    DOI: 10.1504/IJHRCS.2022.10045736
     
  • The impact of low child legal age on children's rights: the case of Vietnam   Order a copy of this article
    by Giao Cong Vu, Lai Thi Cam, Quyen Thu Thi Vu, Cu Thanh Vu 
    Abstract: Vietnam is one of the few countries in the world that still sets the legal age of children (those are under 16 years old) lower than the age of children specified in the United Nations Convention on the Rights of the Child (CRC, which is under the age of 18). This regulation is causing difficulties for Vietnam in ensuring the rights of children. This paper analyses the impact of the low child legal age regulation on children’s rights in Vietnam, focusing on its impact on the children’s right to education and the children’s right to protection from being exploited for the labor of children group from full 16 to under 18 years old in Vietnam. On that basis, the authors recommend that Vietnam amend the current Law on Children (adopted in 2016) to raise the legal age of children from under 16 to under 18 according to CRC.
    Keywords: child legal age; children’s rights; education for children; child labour; Vietnam.
    DOI: 10.1504/IJHRCS.2022.10045865
     
  • Long lasting state of emergency in Turkey and the recent constitutional amendments under its shade   Order a copy of this article
    by Peri Uran Murphy, Pasquale Pasquino 
    Abstract: On July 21, 2016, right after the July 15, 2016 coup attempt, a three-month state of emergency was declared throughout the entire country by the Turkish government. The state of emergency was prolonged seven times until July 18, 2018, when it was eventually lifted. Between 2016 and 2018, Turkey was essentially under a continuous and permanent state of emergency1and during this period, more than 30 emergency decree-laws were adopted which granted considerable powers to the executive and administrative authorities. These emergency decree-laws were criticised because of their wide regulatory areas and permanent provisions. Another significant development during the state of emergency was the approval of constitutional amendments by a referendum on April 16, 2017. The essence of the amendments was the transition to a new form of government which was later named as 'Turkish type presidential system'. This system has sparked major criticisms. In the aftermath of the referendum, 2018 Turkish presidential election and parliamentary election took place on the same day under the state of emergency.
    Keywords: state of emergency; emergency decree laws; judicial review; supremacy of constitution; Turkish Constitutional Court; Turkish constitutional amendments; legitimacy issue; Turkey.
    DOI: 10.1504/IJHRCS.2022.10045866
     
  • The ideological-legal bedrock of modern nation-states: a critical examination   Order a copy of this article
    by Vishnu Aravind 
    Abstract: An invisible ideology and jurisprudence are governing the world society. This has been governing human society from ancient to modern. When law and ideology start to change, a corresponding change takes place in human society and its structure. The change in the basic ideology of society occurred during the transition of European society from Ancient to medieval and to modern. Similarly, modern nation-states are the result of this transition, later globalised. Therefore, the study aims to analyse the ideology of modern-nation states. Specifically, it investigates its origin, evolution and working principles. In this context, the study attempts to analyse what factors contributed its development. As a result, it found that modern nation-states are the result of basic ideological and jurisprudential changes of medieval European society. It concludes all the crisis facing today can not be resolved until the transformation of the basic ideology or jurisprudence of the society.
    Keywords: accumulation; capitalism; legal thought; nation-states; political philosophy; private property; scientific thought; ideology; jurisprudence; ancient-medieval society.
    DOI: 10.1504/IJHRCS.2022.10046051
     
  • Re-visiting Article 370: the politics of autonomy in Jammu and Kashmir   Order a copy of this article
    by Javid Ahamd Ahanger, Abdul Haseeb Mir 
    Abstract: This paper revisits one of the significant provisions of Indian Constitution vis-a-vis Jammu and Kashmir Article 370. In this article, an attempt has been made to draw upon the historical trajectories of the inclusion, dilution and finally revocation of the Article 370. It also study the issue related to this provision and its criticism in the political corridors of state. The paper focuses on its political significance then and now. It scrutinises the issue related to this provision and its criticism in the political corridors of Jammu and Kashmir (J&K). The paper further explores the political ramification on Jammu and Kashmir after the abrogation.
    Keywords: Jammu; Kashmir; Article 370; constitution; revocation; state.
    DOI: 10.1504/IJHRCS.2022.10046160
     
  • Awareness of human rights in Uttarakhand   Order a copy of this article
    by Richa Thapliyal 
    Abstract: This paper explores the comparison of awareness between both Districts, i.e., Dehradun and Tehri of Uttarakhand on the basis of impact of independent variables such as age, caste and education. The paper also reveals role of The State Human Rights Commission of Uttarakhand as well as role of various NGO’s and common people in creating awareness of Human Rights among the people of Uttarakhand State. The researcher has made effort to understand the extent level of human rights awareness among urban and rural areas of Dehradun and Tehri District of Uttarakhand State. For the present study a sample consisted of 400 responded from Dehradun and Tehri District of Uttarakhand State was taken.
    Keywords: human rights; awareness; women; fundamental rights; Dehradun; Tehri Uttarakhand.
    DOI: 10.1504/IJHRCS.2022.10046743
     
  • Human rights concerns in the state of Assam, India in situation of insurgent movement: special reference to the rights of women   Order a copy of this article
    by Jahnabi Devi, Bipul Das 
    Abstract: The problem of insurgency has posed a major threat to the whole concept of human rights and human security. The North East region of India in general and Assam in particular has been experiencing the problem of insurgency since last six to seven decades. The state of Assam has also been witnessing this problem and the insurgent movements led by different groups have created major problems to the rights and security of the common people. Particularly women have to face insecurity and violence and this has resulted in gross human rights violation of Assam. Rights of women are being violated both by the insurgent groups as well as state actors in situation of insurgency and armed conflicts in Assam. Through this article, an effort is being made to examine the issue of human rights violation of women in the context of insurgency movement in Assam.
    Keywords: insurgency; gender; human rights of women; India.
    DOI: 10.1504/IJHRCS.2022.10046745
     
  • Protection of human rights of oustees in India: a review   Order a copy of this article
    by Rajesh Kumar Karna 
    Abstract: In this age of human rights, the rights of development-induced displaced persons deserve proper attention hitherto consciously ignored by both state and international regimes. Unlike other internally displaced sections, the rights of oustees have been violated by its own state in the name of public purpose. Unfortunately, they never attract international attention despite constituting a major portion of internally displaced persons. Paradoxically, the state who bears the responsibility as protector of human rights has become its sole violator and does not even care to rehabilitate. Using published literature on various cases of development-induced displacement, this paper examines how different human rights of oustees protected under various international covenants are being violated and constantly side-lined, particularly in India. It concludes that oustees who suffer in the name of nation-building are often called 'beneficiaries' of the very project that destroyed their livelihood while the state responds opportunistically by breaching national and international human rights regimes.
    Keywords: human rights; development; displacement; state; oustees; internally displaced persons; IDPs; rehabilitation; India.
    DOI: 10.1504/IJHRCS.2022.10047046
     
  • Locating the role of altering nature of public healthcare as a 'commodity' in a market society   Order a copy of this article
    by Mayank Mishra 
    Abstract: The article intends to critique and problematise the historical evolution and contemporary understanding of Markets and contextualises its evolving role in public goods. The COVID19 pandemic, just as the global financial crisis of 2008 has called for an intensive appraisal of how and what went wrong. In the stated context, the article intends to explore the nature, theoretical understanding and evolving role of markets in public healthcare systems, briefly taking South Asia as a case study. Contrary to what has been a trend across the countries in privatising healthcare premised on the efficiency of markets in allocating resources, the article problematises healthcare as a commodity subject to a competitive marketplace. The increasing privatisation of the healthcare sector in South Asia has increased inaccessibility in availing healthcare services.
    Keywords: market economy; market society; commodity; public health; South Asia.
    DOI: 10.1504/IJHRCS.2022.10047336
     
  • Abuse of power by law enforcement authorities in India with reference to human rights violation - a legal analysis   Order a copy of this article
    by Sanghmitra Buddhist, Lakshmi Priya Vinjamuri 
    Abstract: Human rights are referred to as the natural rights acquired by a human being by virtue of his birth which is indispensable for leading a dignified life. It is the duty of the state to protect the human rights of its subjects and one of the most important machineries of the state to protect human rights is the 'police' which sometimes itself turns out to be the violator of such rights. This paper highlights the deficiencies in the Indian policing system and the situations which encouraged the police to commit abuse of power along with the decided case laws of human rights violation resulting from police brutality. The paper also throws light upon the remedies available to victims of human right violation and the role of National Human Rights Commission and judiciary in upholding victims rights, and finally concludes by giving appropriate suggestions to curb police dysfunction and bring about good governance throughout the country.
    Keywords: policing; atrocities; police; police brutality; human rights; India.
    DOI: 10.1504/IJHRCS.2022.10047588
     
  • Federalism: comparative study between India and Canada   Order a copy of this article
    by Arushi Sharma, Shivanshi Gupta 
    Abstract: Federalism is a political doctrine, like liberalism and socialism, whereas 'federation' is a term used to describe a government structure. Federations are a subspecies of 'federative systems', which refers to the genus as a whole. It is vital to understand federalism as a concept in order to compare federations like Canada and India. Since their inception, Canada and India have evolved into full-fledged federations. They are not founded on the idea of federalism. We call this political system 'federalism', and it is an interconnected set of ideas of government that differs greatly from Canadas and India's parliamentary traditions, which were passed down from the UK to both countries. They will have to re-evaluate their legislative past and evolve their own federalism concept if these two countries want to go beyond treating federation as a distribution of power. Federalism as a concept and its evolving manifestations in India are the focus of this article. This article will also emphasise the importance of cooperative and collaborative federalism in achieving the constitutional goal.
    Keywords: federalism; Canada; India; constitution; cooperative; parliament.
    DOI: 10.1504/IJHRCS.2022.10047636
     
  • Judicial discourse on 'slum' and the state practice of demolition and forced eviction in urban India   Order a copy of this article
    by Deepak Kumar 
    Abstract: An attempt has been made in this article to explore the emerging judicial discourse surrounding 'slum'1 and its impact on the state practice of demolition and forced eviction of 'slum-dwellers'2 in urban India. It examines the cases of eviction in metros and court orders in some of these and other related cases legitimising demolition, evictions and relocation of families. The discourses of 'illegality', 'encroachment' and 'development' stand questioned here. And the 'larger public interest' discourse, it is argued, presents urban governance challenge having implications on the citizenship rights and its realisation in cities.
    Keywords: slum; right to the city; encroachment; development; citizenship; India.
    DOI: 10.1504/IJHRCS.2022.10047686
     
  • From constituent power to constituent continuum: the case of Sudan   Order a copy of this article
    by Umberto Lattanzi, Giuseppe Martinico 
    Abstract: This article investigates both the role of the Constitutional Charter for the Transitional Period (TCC) in facilitating the peace process and the impact of the Juba Peace Agreement (JPA) on the drafting of a new (permanent) constitution and on the new balance of power in Sudan. In so doing, it will put the Sudanese peace process into the context of Sudan's constitutional reforms and transition to democracy.
    Keywords: Juba Peace Agreement; JPA; constitution; constituent power; democracy; Sudan.
    DOI: 10.1504/IJHRCS.2022.10047946
     
  • Faces and implications of the legal framework on democratic consolidation in Tanzania   Order a copy of this article
    by Edwin Babeiya 
    Abstract: This paper examines the implications of the country’s legal framework on democratic consolidation. It establishes that since the adoption of plural politics in Tanzania, the enacted laws have had several faces that have contributed differently to the country’s bid to consolidate democracy. These faces have been supportive, restrictive, controversial and indifferent. The paper maintains that despite regulating the conduct of politics especially among political parties, the legal framework has significantly stifled measures and initiatives to consolidate democracy. Consequently, the legal framework has led to an endless battle between laws and party norms, the fragility and reversibility of democratisation gains, suffocation of the voice mechanisms, consolidation of vertical leadership as well as the birth of parallel democratisation movements. The paper reiterates the need for reforming the country’s constitution for the good of ongoing initiatives to consolidate democracy.
    Keywords: democracy; political parties; democratic consolidation; legal framework; Tanzania.
    DOI: 10.1504/IJHRCS.2022.10048113
     
  • Interpreting moral narratives of regimes in power with a pinch of salt   Order a copy of this article
    by Brajesh Mishra, Avanish Kumar, Ishaan Mishra 
    Abstract: The article analyses public action of the state which are contested between societal perception and state predicaments. The article is driven by the research question - how a state seeks moral purposive arguments to legitimise perceived oppressive actions? Four cases of state actions related to two autocratic regimes (North Korea and Saudi Arabia) and two largest democracies (India and the USA) have been analysed. The difficulty in contemporary governance arises due to the blurring of three distinct classical arguments of states and is being replaced by simultaneous instrumentality to seek political legitimacy. The crux of findings of the study, inter-alia, include classification of moral narratives, which may be used by the regimes in power to legitimise their oppressive actions - namely, traditional doctrines of colonial era, radical nationalistic ideologies, religious and geopolitics, legislative illegality of racial discrimination, law and order or internal security issues.
    Keywords: legitimacy; oppressive; welfare; instrumental role; moral purposive arguments; regimes in power.
    DOI: 10.1504/IJHRCS.2022.10048404
     
  • The vague perception of commercial sex work and exploitation of women: the Indian legal framework   Order a copy of this article
    by Alisha Verma, Saroj Bohra 
    Abstract: Prostitution is a profession which exists in the history of mankind since time immemorial. The Immoral Traffic (Prevention) Act, 1956 is the single legislation in India that deals with prostitution, and it prevents soliciting in public, but does not and cannot prevent prostitution in private, the right to life and personal liberty and to carry on any profession saw to that. The practice of sex work has been considered exploitative to women by many international conventions and India being a signatory party to them needs to adhere. Despite this, we cannot deny the fact that this practice is going on a large scale in India and has various forms of discrimination and illegal practices around it. In the current paper, the authors have addressed the issue and have conducted a survey for recording opinions from various parts of the country, based on which, various suggestions have been put forth.
    Keywords: prostitution; commercial sex work; discrimination; conventions; Immoral Traffic (Prevention) Act; 1956.
    DOI: 10.1504/IJHRCS.2022.10048531
     
  • A 21st century quest for gender neutral maintenance in the Indian legal system   Order a copy of this article
    by Alisha Baloni, Khaleeq Ahmad 
    Abstract: Today, women and the queer community are liberating themselves from the shackles of patriarchy and the world is moving towards a more egalitarian outlook. The growth of individualism across the globe has led to the renunciation of gender stereotypes. The guarantee of protection of rights resonates with the existence of an individual irrespective of his gender identity. The article aims to analyse the existing legislations on maintenance in India for gender neutrality with reference to the progressive trends of the modern society which has witnessed wide acceptance of live-in relationships and the homosexual community, and also the changing norms of inheritance legislations.
    Keywords: dependent; discrimination; gender; justice; maintenance; marriage; sexual orientation; society; women.

  • Gender based violence in Afghanistan: a distraught state in denial   Order a copy of this article
    by Koyel Basu 
    Abstract: Gender based violence implies physical, sexual and mental harm or suffering to women including threats of such acts, coercion or arbitrary deprivation of liberty whether occurring in public or private life. Moreover, when this is culturally embedded or rooted in societal structure (as Galtung argues), it is expansive and often invisible as 'tranquil waters'. In war-ravaged Afghanistan, which has paid the price of external interventions, dominance of regional military factions, brutal insurgent forces like the Taliban, and a state that has failed to give legal and medical protection to half of its citizens (read women); structural violence as found in gendered forms are quite common. This chapter identifies structural violence as the most widespread form of violence in Afghanistan and how it is deeply rooted in gender inequality. It focuses on case studies of violence where it is essentially gendered and how health of women is getting affected.
    Keywords: gender-based violence; right to health; human rights; distress; domestic abuse; structural violence; survivors; invisibility of women; 'baad'; 'baadal'; gender activism; Taliban; sexual violence; Afghanistan.
    DOI: 10.1504/IJHRCS.2022.10048597
     
  • Constitutional court of Bosnia and Herzegovina   Order a copy of this article
    by Filip Novaković, Nataša Babić, Aleksej Indžić 
    Abstract: The paper deals with the topic of the Constitutional Court of Bosnia and Herzegovina, established under the Constitution of Bosnia and Herzegovina (Annex IV of the General Framework Agreement for Peace) since 1995, its structure, election and appointment of judges, and special attention will be paid to its jurisdiction and decisions, which relates, and their impact on the Bosnian legal order and society in general. An analysis of the work of the constitutional court through different parts of the paper will be performed depending on the importance. The author will also touch on the basic concepts, types and ways of protecting constitutionality and legality, with special reference to Bosnia and Herzegovina in the post-Dayton period.
    Keywords: constitutional court; decision; Bosnia and Herzegovina; appointment; constitution.
    DOI: 10.1504/IJHRCS.2022.10048778
     
  • Comparative study on separation of power in India and USA   Order a copy of this article
    by Rajamani Shankar 
    Abstract: The Lockean constitution, in its broadest sense, is a complex system of power separation. Locke split political authority between an executive and a legislature, both with their own fiduciary trusts to operate in the public interest. This concept is one of the most important factors when it comes to democracy of any country, a country who has a written constitution and is in a habit of performing for the welfare of the country and its people will admit to this process. Basically, this argues a system where the judicially, executive and legislative have different independent powers and how other cannot influence the one to make a policy or a decision. The study explores the various key aspects of the two countries namely, the USA and the Republic of India to enhance the key factors, compare the differences in these mentioned countries.
    Keywords: trias politica; legislative; executive; judiciary; constitution; separation; India; the USA.
    DOI: 10.1504/IJHRCS.2022.10048779
     
  • Role of Indian courts in reshaping the law of sedition: constitutionality and relevance since colonised India to democratic India   Order a copy of this article
    by Kriti Kaushik, Sonu Agarwal 
    Abstract: Right to dissent is the very essence of freedom of speech and expression mentioned under the Constitution of India and its abrogation without just cause must be regulated. Time and again the Indian courts have expressed their opinion on law of sedition that it should be repealed entirely due to repeated misuse, however the reality remains that sedition not only persists in our legal system, but its application is also growing day by day. This article attempts to study the jurisprudence that has been developed in India around law of sedition through several judgments given by the Indian courts, to understand its trajectory of interpretation since colonised India to democratic India. A comparative analysis of the status of sedition law has been made to understand why some countries either repealed or revised this law in their respective jurisdictions and why India must follow similar footsteps.
    Keywords: freedom of speech and expression; sedition; democratic; Constitution of India; courts; dissent; society; freedom; protests; India; Indian Penal Code.
    DOI: 10.1504/IJHRCS.2022.10049148
     
  • Violation of human rights of convicts of capital punishment   Order a copy of this article
    by Samriti Arora, Lakshmi Priya Vinjamuri 
    Abstract: The Universal Declaration of Human Rights laid out the right to life as well as the option to be liberated from brutality, fierce, and corrupt treatment. Thus, the death penalty is opposed because it violates these two fundamental rights. It is the intentional death of a prisoner for the purpose of punishment and as a deterrent - a goal that can easily be achieved through other means in many cases. Regardless of the seriousness of the offence for which the prisoner has been sentenced, such cruelty cannot be condoned. Furthermore, if we believe that Right to life is a fundamental right endorsed in the Constitution as a provision under Article 21 along with the freedom under Article 19, death sentence, an affront to our most basic human right. This research paper examines the death penalty from a human rights jurisprudence standpoint and provides a brief overview of the subject. In addition, the international context of the death penalty is discussed. The decisions which were proven to be arbitrary and unfair in the eyes of human rights law are highlighted to assert the analysis.
    Keywords: death; penalty; fundamental; punishment; deterrent.
    DOI: 10.1504/IJHRCS.2022.10049160
     
  • The modern trend to decriminalise adultery:a critical study   Order a copy of this article
    by Shradha Chauhan, Lakshmi Priya Vinjamuri 
    Abstract: Adultery is when you have sexual relations with someone who is not your husband. Adultery was considered a criminal offence under Section 497 of the Indian Penal Code. On September 27, 2018, however, the Supreme Court ruled that the 158-year-old law was unconstitutional. As a result, adultery is no longer a punishable offence in India. Adultery is forbidden in many religions, including Hinduism and Christianity. Many people in society were opposed to the decriminalisation of adultery because they believe marriage is not something to be despised. It will also allow adulterous relationships to play more freely. However, Deepak Misra, a former Chief Justice of India, stated that although adultery is no more a criminal offense, it is nonetheless grounds for divorce. By dismissing down Section 497 of the Indian Penal Code, the Supreme Court promised the country’s that no one can stop women from achieving their dignity and independence. In the end, the research work throw light on decriminalising adultery in the modern society along with some judicial pronouncement regarding the topic and including the conclusion.
    Keywords: adultery; marriage; criminal offence; decriminalising; divorce.
    DOI: 10.1504/IJHRCS.2022.10049167
     
  • Trafficking in persons (prevention, care and rehabilitation) bill: an analysis   Order a copy of this article
    by Meenakshi Rawat, Sandhya Verma 
    Abstract: Human trafficking is mostly seen in economically poor regions with among vulnerable individuals, cheap labour, and victims are targeted. Women and children are compelled to participate in sexual activities after trafficking and selling them. Victims endure a variety of social, economic, and physical obstacles while incarcerated as well as readjusting to their old life after they are free of their exploiters. In addition, the article aims to raise knowledge of existing national anti-trafficking laws, as well as its efficacy. This may be quite damaging in the long-term since it conceals the true facts about human trafficking and related crimes. Despite taking action, via anti-trafficking units in the districts, the government has failed to address the involvement of officials, police, and politicians in this racket. There is also evidence of a weakening of legal options, which is very harmful to the timely delivery of justice and adequate recompense.
    Keywords: human trafficking; law; racket; women; children.
    DOI: 10.1504/IJHRCS.2022.10049477
     
  • Dowry death: violation of right to life   Order a copy of this article
    by Uruba Naaz, Lakshmi Priya Vinjamuri 
    Abstract: Consistently in India, something like fifteen young ladies are killed by their spouses or parents in law for neglecting to create an adequate endowment during the marriage. Despite the fact that India has many different laws in order to prevent and punish these dowry deaths, still these deaths continue to take place in an increasing numbers due to vague or ambiguous legislative language, bad enforcement, cultural attitudes, and economic inequality against women. The right to life refers to a person’s right to live his or her life, more specifically, the right not to be killed or murdered by any other person or authority. It is a violation of article 21 of the Indian constitution by failing to prevent such murders which are termed as dowry deaths which occur for the lust to obtain dowry. This research problem highlights the traditions of dowry and problem of dowry death. Further, this research article also explains twthat it is the violation of the different domestic laws and article 21 of the Constitution by practising of killing a bride for the sake of dowry.
    Keywords: dowry; death; culture; inequality; life.
    DOI: 10.1504/IJHRCS.2022.10049573
     
  • Land rights of the ethnic minorities in Chittagong Hill Tracts   Order a copy of this article
    by A.K.M. Samiul Haque 
    Abstract: Land is a raging issue that directly affects the enjoyment of various human rights. It is a mean, if not the most important mean of survival for many individuals and is a fundamental as well as economic right. Land is most related mainly to the identities of individuals, and as a result, intensely connected to various social, traditional and cultural rights. More and more of ethnic minorities, are forcibly driven out or dispossessed from their land. The Bengali Settlement program is just one of the names for all the dispossession caused to the tribal and ethnic sects. The focal point of this paper is to find out the violation of land rights for the tribal people from the pre independence to current time. This article also goes on to explore these sides and tries to come up with some solutions.
    Keywords: ethnic minority; land rights; Chittagong Hill Tracts; peace accord; Bengali settlement.
    DOI: 10.1504/IJHRCS.2022.10049828