Editorial

Abstract

The Central University of Kashmir Law Review (CUKLR) provides a platform for scholars interested in quality research and aims to focus on multidisciplinary research in contemporary legal issues that resonates the spirit of NEP, 2020. The object is to encourage holistic approach to legal research that transcends traditional boundaries. It is necessitated by the increasing appreciation of pervasiveness of legal principles to areas hitherto considered as non- legal domains.

Justice Mukundkum Sharma, Hon’ble Judge of the Supreme Court of India in his paper ‘Criminal Justice System in 21st Century: A Way Forward’ has raised a host of current issues. This paper is a mixture of experience and thought. The paper sharply traverses through different issues confronting criminal justice system and the offers solutions as a way forward.

Francis X. Shen, Professor of Law, & McKnight Presidential Fellow, University of Minessota; Instructor in Psychology, Harvard Medical School, MGH Department of Psychiatry in his paper ‘Law and Neurosciences’ has discussed very interesting co-relation between law and neurosciences. This is a subject about which little literature is available in Asian sub-content. Prof Shen has, with the help of medical technology, proved that a man cannot think rationally when his/her brain is not in a proper order. He argues that human flesh be not inflicted pain by way of punishment when it is not in sync with the signals that it receives from its brain which is reeling because of its defects. He also argues that juvenile brain matures only after attaining the age of twenty and in some cases beyond. Once this thesis of Prof Shen is further clarified and refined, it is bound to bring radical changes in the criminal justice system, more particularly in Juvenile justice and the sentencing of the accused.

Prof. Farooq Ahmad Mir, Dean School of legal Studies, Central University of Kashmir, in his research paper captioned, ‘Legal Validity of the Pre-nuptial Contracts: An Analysis’ argues that it is not correct to contend that the Pre-nuptial Contracts are against public policy or there is a need to have separate legislation to declare that the prenups are legally valid. These agreements are legally valid and indeed will promote public policy, if properly constructed. The paper discusses relevant laws on the subject in detail, together with the newly created fundamental rights of ‘right to privacy and right to choose’, and holds the opinion that Prenups are natural corollaries of the constitutionally protected rights and thus promotes constitutional spirits and constitutionalism.

Prof. Mohammad Ashraf, Chairman and Dean, Faculty of Law and Absar Aftab Absar, Research Scholar, AMU, in their research paper titled ‘An Insight into the Applicability of Plea Bargaining in India in Light of Judicial Pronouncements’ have discussed in detailed how courts India have changed their approach before and after the introduction of Plea Bargaining in the criminal justice system. The courts had initially shown reluctance in accepting the doctrine of Plea Bargaining for bargaining the punishment as it was considered unethical to trade in punishment. It was viewed with great circumspect and also against Article 21. The courts then changed their approach and started applying Plea Bargain doctrine and did not even wait for amendment in the Criminal Procedure Code, once it was made clear that the Plea Bargaining will be now a part of the Criminal Justice system in India. The authors are of the opinion that the initial fervour shown at the time of introduction of Plea bargaining in the Criminal Justice system in India did not last long. It not only lost the direction but also the purposes because of which it was made part of the system. The authors argue that there is dire need to revisit the application of doctrine so that the ills of the system can be addressed.

Dr. Mudasir Bhat, Assistant Professor, Department of Law, School of Legal Studies, Central University of Kashmir and Mainaaz Qadir Judicial Magistrate, Jammu and Kashmir Judiciary in their paper bearing title, ‘An Analysis of Victim Compensation Law in India: Acid Attack Victims in Context’ have developed an argument that acid victims area separate species of victims who deserve separate treatment. These victims do not have any statutory role in a criminal trial in which she/he should have been a pivot. The recent developments in the area of victim compensation have been discussed in detail. The authors have pleaded that the money compensation to the acid victims must be supplemented by their social, psychological and lasting economic rehabilitation.

Dr. Purnima Khanna, Assistant Professor, Khalsa College of Law, Amritsar and Dr. Pawandeep Kaur, Assistant Professor, Department of Laws, Guru Nanak Dev University, Amritsar in their paper captioned, ‘Legalisation of Passive Euthanasia in India:  Right to Die with Dignity with Special Reference to Advance Medical Directive’ have discussed at length why votaries of Euthanasia are increasingly gaining support world over and how Scandinavian countries are coping with this problem as some of them have legalized it, some have partly legalised it and some have outrightly rejected this idea. Indian legal position, in light of Judicial decisions of the apex court in which passive euthanasia with legal safeguards have been enunciated, have been discussed but legislative intervention has been found as the alternative to remove any mist of confusion.

Dr. S. Ali Nawaz Zaidi, Associate Professor, Department of Law, Aligarh Muslim University, Aligarh and Samiya Khan, Research Scholar, Department of Law, Aligarh Muslim University, Aligarh in their paper carrying the titled ‘Recent Trends in Banking Sector with Special Reference to E-Banking Frauds in India: An Analysis’ traverses through diverse E-banking frauds, analyses them and finds that the present law is struggling to meet their challenges. E-banking frauds not only require legal measures but non legal measures are equally important for which governmental as well as non- governmental measures have to be undertaken.

Shailja Shukla, Dept. of Law, School for Legal Studies Babasaheb Bhimrao Ambedkar Central University and Dr. Sufiya Ahmad, Assistant Professor, Dept. of Law, School for Legal Studies Babasaheb Bhimrao Ambedkar Central University in their paper, ‘Rape in Marriage: A Socio-Legal Analysis of Perception and Attitude of Wife’, has made an empirical analysis of martial rape for which data has been collected through a questionnaire administered to the women respondents residing in Lucknow and has come up with a strong finding in favour of law penalizing marital rape. The paper was submitted before the split verdict of Delhi High Court on marital rape which has been included by the Chief Editor, along with his comment.

Amit Ghosh, Assistant Professor, Surendranath Law College, University of Calcutta and Dr. Mohammadi Tarannum, Vice-Principal, Surendranath Law College, University of Calcutta in their paper, ‘A Curious Case of Radio-Taxi Market under Indian Competition Law- An Analysis’, have discussed issues pertaining to common consumers failing within the Domain of the Competition Act. Three cases have been discussed in detailed because of their conflicting opinions and it has been suggested that the present approach of the competition commission that does not taken into account ‘collective dominance’ is not tenable. Section 27(b) read with Section 4 of the Competition Act may be revisited by the legislature.

Syed Shahid Rashid in his paper titled, “Jurisprudential Analysis of Constitutional Interpretation in India: Some Hindsights” traces the evolution of constitutional interpretation that went through many phase influenced by the emancipation of the judges on the given bench, social awakening about the rights of individuals and changing role of a welfare state. The author has argued that the constitutional letters are the articles of faith, they remained mostly unchanged but their meaning and ambit changed through judicial gloss that made the constitution of India a living and organic document that has stood the challenges of changing times.