General
Bharati Law Review
Volume III, Issue 2, October – December 2014
Editor: Prof. Dr. Mukund Sarda
Topic outline
Content Index
- Impacts of Regulatory Mechanisms on Trado-Medical Practice in Nigeria - Mr. Eric A. Okojie and Mr. L. E. Enakemere Esq
- Emerging Doctrines in Administrative Law: A Study - Prof. Dr. Mukund Sarda
- Combating Biopiracy of Indian Traditional Knowledge (TK) – A Legal Perspective - Dr. P. Sree Sudha
- Do Animals Have a Right Under Article 21 of the Constitution of India? – Comment on Animal Welfare Board of India Case - Dr. Uday Shankar
- Economic Empowerment of Tribal Communities through Traditional Knowledge: Problems and Prospects - Dr. S.C. Roy
- Constitutionality and Desirability of Right to Reject Candidates in Elections - Dr. Shashikant Hajare
- Restorative Justice: The New Paradigm in the Province of Justice in India? - Dr. Puranjoy Ghosh
- Evergreening of Patent - Dr. Vijay Oak
- Evolution of Due Process in India - Mr. A.H. Hawaldar
- The Myth of International Rule of Law: In Context to the Kadi Decision - Mr. Om Prakash Gautam
Impacts of Regulatory Mechanisms on Trado-Medical Practice in Nigeria
- by Mr. Eric A. Okojie* and Mr. L. E. Enakemere Esq**
* Senior Lecturer and the Head of Business Law Department, University of Benin, Benin City, Nigeria
** Benin based legal practitioner with interests in Environmental, Oil and Gas Law
Introduction:
The method of administering health care and the preparation of
traditional medicine has been subjected to adverse comments and
criticism especially by pro-western medicine who advocates sons
which includes the lack of standardization and safety which makes it
technically difficult to identify with precision the hundreds of
chemical constituents of the plants, roots, herb and other ingredients
used and the dosage, Lack of scientific diagnosis is also a factor,
methods of treatment which cannot be verified by scientific means,
lack of scientific proof of its efficiency, quackery and unhygienic
conditions under which traditional medicine is prepared and
preserved.In some countries, especially China and India the policy direction
is to train, retrain trado-medical practitioners and control their
practice by special national legislations. Some African countries like
Ghana are presently emulating these other countries to update
traditional medicine and practice.Before attempting to gauge the impact of the regulatory
mechanisms of trado-medical practice in Nigeria, it is pertinent to
highlight the said mechanisms which a combination of legislations
and agencies at both the national and state level.Emerging Doctrines in Administrative Law: A Study
Dean and Principal, New Law College, Bharati Vidyapeeth Deemed University,
Pune, Maharashtra.Introduction:
In a democratic set-up committed to rule of law and e-governance to
cope with the necessity of dealing with various types of demands in
the context of a welfare state, the administrative agencies have to
meet several challenges in resolving many issues that crop up in the
daily routine of discharge of varied functions. There is a growing
criticism that the administrative agencies have become not
responsive to various types of public issues. The judiciary, in the
exercise of powers of judicial review coupled with judicial activism
has been able to create a set of doctrines highly useful in increasing
the efficiency of such agencies and to attain a high degree of ‘quality
administrative justice’ to people.Combating Biopiracy of Indian Traditional Knowledge (TK) – A Legal Perspective
Assistant Professor, Faculty of Law, Dr. B.R. Ambedkar University, Srikakulam,
Andhra Pradesh, IndiaIntroduction:
In India, centuries of intimate human dependence on biodiversity
have generated a rich traditional knowledge of the use and
conservation of wild species, and have increased the genetic diversity
of agriculturally important plants and animals. The country is one of
the world’s eight major centers of crop diversity with an estimated
163 fruit tree and crop species having originated there. India is a
country which has centuries’ old traditional knowledge (hereinafter
TK) systems based on its rich biodiversity which the Indian people
have conserved through their traditional lifestyles and local
economies. Two-thirds of Indian population even today is directly
dependent on the biological resources and the indigenous knowledge.
India is subjected to the problem of biopiracy-where the unique
properties of biological material, from the forests and the seas is
taken from them without the knowledge and consent of it and these
are developed and patented into useful products and medicines which
are often unaffordable to the people from where the resources and
knowledge generates from. A study conducted in 1999 estimates the
global market value of industries using biological and genetic material
is between $500-800 billion. TK has been developed in many fields
and is still evolving. It is a technology or know-how capable of
providing sustainable solutions to many modern day problems. This
fact should be acknowledged and the commercial use of TK should be
handled in the same way that other technologies are. The economic
value of TK is to be seen in the herbal medicine and pharmaceutical
sector which is estimated to touch roughly 5 trillion by the year
2020.Do Animals Have a Right Under Article 21 of the Constitution of India? – Comment on Animal Welfare Board of India Case
Assistant Professor, Rajiv Gandhi School of Intellectual Property Law,
Indian Institute of Technology, Kharagpur, West Bengal, India
Introduction:
The idea of a constitution emanated from the need of controlling
arbitrariness, despotism and highhandedness of the ruler. The ruler
needs to commit to welfare of the people which gets reflected in a
foundational document of a country. The people designed a
framework to allocate limited power to the ruler and inalienable rights
for themselves to enjoy protection against every possibilities of abuse
of power by the government. The framework prescribed a governance
model and a set of rights to limit the power of the government.Economic Empowerment of Tribal Communities through Traditional Knowledge: Problems and Prospects
Associate Professor, Chanakya National Law University, Patna, Bihar, India
Introduction:
Education and wealth are the two wheels for the empowerment of any
community. Education develops the cognitive faculty of mind which
motivates to initiate new things and face new challenges for economic
gain and further empowerment.
The tribal communities are the lovers of nature, living close to the
vicinity of hills and forests which are the store house of the flora and
fauna. The tribals have been living in such places where the basic
facilities are quite unknown. Therefore they depend totally on the
knowledge developed through observation of the flora and fauna.
Thus they survive on the medicine which is found in the nature and
protect themselves from various diseases. They also depend upon
forest products. The tribals know how to combat environmental
hardships and earn sustainable livelihood. Their wisdom is reflected
in their water harvesting techniques, developing irrigation channels,
construction of cane bridges on hills, adaptation to desert life,
utilization of herbs and shrubs for medicinal purposes, meteorological
assessment.Constitutionality and Desirability of Right to Reject Candidates in Elections
Associate Professor, Symbiosis Law School, Pune, Maharashtra
Introduction:
India has a distinct identity in the world order as a vibrant and
functional democracy. Nevertheless, the Indian democracy faces
certain grave challenges, especially, in the area of electoral system.
Even though our Constitution creates an independent and apolitical
body in the form of Election Commission to conduct free and fair
elections, it does not exhaustively lay down the provisions to ensure
the participatory and representative character of the electoral
process. The power to legislate with regard to political parties, the
manner of conducting the elections and maintenance of purity and
probity of elections is vested in the Union Parliament. Unfortunately,
the political class as a whole is reluctant to bring the necessary
electoral reforms due to its own vested interests. The Indian judiciary,
despite of its inherent limitations, has endeavored to bring in at least
a few electoral reforms by way of judicial creativity, although, with
partial success. However, the courts have, at times, transgressed
their constitutional limits and encroached on the fields assigned to
the other organs of government. In its zeal to reform the electoral
system, the courts have inadvertently violated the principle of
‘separation of powers’ which is one of the basic features of the Indian
Constitution.Restorative Justice: The New Paradigm in the Province of Justice in India?
Assistant Professor, School of Law, KIIT University, Bhubaneswar, Odisha, India
Introduction:
The ‘thoughts’ about justice are so divergent and equivocal that any
attempt to design the panacea within the rubric of justice would be a
perfect disharmony. The scholastic experiments so far being
continued to achieve the utilitarianism in the province of justice are
being concluded to the adage, ‘every justice brings an injustice’.
Hence, the intellectual bickering on diverse perspectives with the
changing needs of the society make the evolutionary process to
achieve justice dynamic.
The present paper delves into the provinces or doctrines or ideas
or concepts of ‘restorative justice’ not to figure out the flaws in the
same rather to make a journey over the assumptions of restorative
justice in criminal justice administration, particularly in India. The
attempt of restorative justice, precisely, apart from the perpetrators
and victims, is to accommodate within the fold of the legal
frameworks to redress the harm or injury caused to the communities
and with the view of reforming and reintegrating contributory role
from the ends of communities in upholding social justice as well.
Telling incidents about restorative justice inspires more liberalization
of civil liberties in the framework of administration of justice while
variegated growing concern about public-order and safety irritates the
comparison for effective administration between such liberalized
approach and pragmatic approach. Again, the attempt to establish
peaceful relations among the members of the communities, social
control, to ensure equality and cultural expectations or even to
reduce recidivism have been mobilizing the disproportionate socioeconomic
or socio-cultural or even socio-political factors, like
communal politics, casteism, etc., and perpetuate conflicts among
different communities in any multicultural country like India.Evergreening of Patent
Assistant Professor, V.P. Law College, Baramati, Pune, Maharashtra, India
Introduction:
Patent is a monopoly right given for a limited period to an inventor
who has made a new, useful and non-obvious invention of some
product or process. Patent is essentially a statutory right. Patent has
emerged as an important form of intellectual property right in recent
times. In India product as well as process patents are granted for a
term of 20 years. After the expiry of 20 years the patented invention
falls in public domain.
For the grant of patent it is essential to show that it has novelty,
utility and non-obviousness. Further minor improvements in the
patented invention do not entitle a patentee to claim a fresh patent.
In Bishwanath Prasad v. H.M. Industries1 the Supreme Court
observed that the fundamental principle of patent law is to grant a
patent only for an invention which must be new and useful. The
thrust is on novelty and utility. It is essential for the validity of a
patent that it must be the inventor’s own discovery as opposed to a
mere verification of what was already known before the date of the
invention. The invention must be more than a mere workshop
improvement.Evolution of Due Process in India
Assistant Professor, Raja Lakhamgouda Law College, Belgaum, Karnataka, India
Introduction:
The history of democratic countries unfolds that realization of justice
is the ultimate end of every nation. Obviously the realization of justice
much depends upon the quality of legal system it has accommodated.
Indeed the nation’s quality of legal system is measured by its
commitment to the rule of law, fairness of laws and respect for
human rights. Second World War has made the international
community to think seriously the promotion and implementation of
human rights across the universe. India being democratic nation,
committed to rule of law cannot be indifferent to promotion of human
rights. In fact, the greatest heritage of democracy to mankind is the
right of personal liberty.1 The right to life and liberty is the most
important rights among the human rights because existence and
protection of life is precedent condition for the enjoyment of rest of
human rights. The importance of right to life and personal liberty can
be measured by the fact that it cannot be suspended even during
emergency.The Myth of International Rule of Law: In Context to the Kadi Decision
Assistant Professor, Damodaram Sanjivayya National Law University,
Vishakhapatnam, Andhra Pradesh, IndiaIntroduction:
Kadi decisions of the Court of First Instance (CFI) and the European
Court of Justice (ECJ) followed the two theories of relationship of
municipal law and international law i.e., Monist and Dualist theory.
The CFI placed Community law in a firm hierarchy of international
law norms at the apex of which stands the United Nations (UN)
Charter. The ECJ, determined that the EU is a self-contained order,
whose highest constitutional norms determine irrevocably the outer
limits of its competence. The ECJ’s conclusions and reasoning raise
fundamental questions concerning regime conflict and fragmentation
in international law. Since the effectiveness of sanctions imposed by
the Security Council depends to a large extent on their
implementation in domestic law, the judicial review of such
implementing measures at the national or regional level may deprive
those sanctions of what the ECJ might otherwise term their ‘effet
utile’.
This paper seeks to examine the relationship between
European Union law and international law in light of Kadi decision
of ECJ and CFI relating to economic sanctions against individuals.