ISSN 0975-8208 A S P I R E T R U T H I S G O D Army Institute of Law Journal Volume XII 2019 Peer Reviewed Journal Vol. XII, 2019 Refereed Journal Since 2006 Listed in UGC-CARE List, 2019 ARMY INSTITUTE OF LAW JOURNAL Vol. XII, 2019 (ISSN: 0975-8208) Registration No. PUNENG/2007/25057 PATRON Maj. Gen. M.L. Aswal MG AOC & Chairman, Army Institute of Law EDITOR-IN-CHIEF Dr. Tejinder Kaur Principal, Army Institute of Law EDITOR Dr. Puja Jaiswal Assistant Professor of Law Army Institute of Law STUDENT EDITORS Mr. Vaibhav Latiyan Ms. Vidhatri Bharti Disclaimer: The views expressed in the Articles and all other contributions to the “AIL Journal 2019” singularly belong to the individual authors and do not belong to the Editorial Board or the Army Institute of Law. No part of this publication may be reproduced or transmitted in any form by any means, or stored in any system of any nature without prior permission. Applications for permission to use the material shall be made to the publisher. Although every care has been taken to avoid errors or omissions, this journal is being sold on the condition that information given in this journal is merely for reference and must not be taken as having authority or binding in any way on the authors, publishers and sellers who do not owe any responsibility for any damage or loss to any person, for the result of any action taken on the basis of this work. Copyright © 2019 The Army Institute of Law, Mohali, Punjab. All rights reserved. ArmyArmy InstituteInstitute Ofof LawLaw JOURNALJournal A S P I R E Army Institute of Law Sector 68, Mohali Contents 1. Religion v. Reform: Role of Indian Judiciary vis-à-vis Essential Religious Practices Test 1-15 Ms. Aishwarya Deb 2. The Constitutionality of Khap Panchayats: A Socio-legal Critique 16-30 Dr. Ajaymeet Singh and Mr. Gaurav Hooda 3. Why Has India’s Punjab Fallen into the Grip of Drug Abuse? 31-40 Dr. Amit Kashyap 4. Emerging Trends in Green Marketing in India and the Interface with 41-54 Patent Regime Mr.Ankit Singh 5. A Study Analysing Recognition of Food Security and Food Justice in a 55-69 Globalising World Mr. Ayush Johri 6. Rights of Older People in India: An Introspect 70-84 Mr. Babu Sarkar and Mr. Pritam Banerjee 7. Role of Intelligence Agencies in Governance 85-97 Ms. Deepinder Kaur 8. Live-in Relationships in India: Socio Legal Aspect 98-105 Dr. Gurpreet Pannu 9. Media Freedom and Right to Privacy: Bridging the Gap 106-117 Ms. Jasleen Chahal and Mr. Ankit Malik 10. Frauds in Online Shopping in India: Need to Sensitize Rights of Online 118-128 Consumers in E-commerce Dr. Jay Prakash Yadav 11 Pre-Trial Rights of Accused and Media Trial: Gender Matters 129-137 Ms. Jyothi Abraham 12. Rivers as Legal Persons 138-150 Ms. Kriti Parashar 13. Trembling on Trance- A Mesmerism for Muslim Women 151-167 Dr. Madhuri Irene 14. Access to Justice vis-à-vis ADR system in India 168-182 Dr. Puja Jaiswal 15. An Analytical Study of Regulations Under the Drugs and Cosmetics 183-194 Act, 1940 Ms. Rohini Attri 16. Impact of Media: Pawned Democratic Psychology 195-209 Dr. Shruti Bedi and Ms.Jayanti Singla 17. Adultery-Offence Turned Into an Act: A Milestone from Original Intent 210-220 to Living Intent Ms. Shikha Dhiman 18. The Plight of Mentally Ill Undertrial Prisoners: An Untold Misery 221-231 Dr. Shipra Gupta 19. The Farce of Cabinet Form of Government in Delhi: Time to Revisit 232-246 Article 239AA Mr. Subhaprad Mohanty and Mr. Deepak Singh 20. Corruption in India vis-à-vis Violation of Human Rights: Establishing 247-260 Relationship through Cause, Effect and Consequence Ms. Supreet Gill Sindhu and Ms. Naina 21. Terrorist Victimization: A New Dimension to Victimological 261-275 Perspective Dr. Varinder Kaur 22. Techcount 2.0: Era of Bio Banking and Right to Privacy 276-293 Ms. Trisha Mukherjee 23. Metamorphosis of Rights in a Digital Society vis-à-vis the Principle of 294-305 Net Neutrality Ms. Vidhatri Bharti Vol. XII, 2019 1 Army Institute of Law Journal RELIGION v. REFORM: ROLE OF INDIAN JUDICIARY VIS-À-VIS ‘ESSENTIAL RELIGIOUS PRACTICES’ TEST Aishwarya Deb* INTRODUCTION “Religion is most threatening to liberal democracy where it informs national identity or permeates everyday life.1” Religion is undoubtedly an important facet of Indian nationhood. However one cannot deny the fact that in India, primarily, the source of discrimination has been religious personal laws, unlike other countries where it results from the codification of the prejudices of the powerful.2 Despite such inconveniences, it is difficult to identify a person without referring to his or her religion, owing to the fact that India is a deeply religious society and religion also provides certain perks to respective communities. In such a scenario, religion in India is not just a problem to overcome but also a presence to be accommodated. The concept of religious freedom in India, enshrined under Article 25 of the Constitution of India, has been clubbed with a mandate to the state to intervene in religious affairs which go against the societal order. This emanates from the idea that even though Indian nationalism commits itself to social reform, it is anchored to rival and contentious religious or cultural traditions. So much so, the State, more often than not, has to intervene in matters of religious concern in pursuit of justice. However, the inability of the State to develop any proper mechanism in achieving the fundamental objective of the Constitution, i.e. to seek an amelioration of the social conditions of people long burdened with inequities of religiously based hierarchies, has exacted the Judiciary to take a remedial measure. This eventually led to the development of the ‘essential religious practices’ test by the Supreme Court of India, in its earliest days, in order to determine the immunity of religious practices from State intervention. Back then, it was inevitable for the judges to avoid the questions of theological controversy considering the fact that religion was inscribed in routine social patterns in India. * Ph.D. Scholar (Law), The WB National University of Juridical Sciences, Kolkata. 1. Gary Jeffrey Jacobsohn preface to GARY JEFFREY JACOBSOHN, THE WHEEL OF LAW (2003). Vol. XII, 2019 2 Army Institute of Law Journal Subsequently, the Judiciary began applying the doctrine in matters which sought to bring about societal transformation. Considering the fact that religion plays a profound role in people’s lives, it became somewhat necessary for the Courts to inquire into the essentials of religion in order to give effect to social reform efforts which would otherwise have been overshadowed by the complex religious practices. Since then, it has been a juridical journey of determining ‘essential religious practices’ to arrogating to itself the right to decide the ‘essentials of religion’. While embarking upon such a journey, the judiciary has more often than not been burdened by interpretive responsibilities that exceed their field of expertise. Such an attempt made by the Judiciary, even though necessary for guaranteeing the rights of people, has been criticised by many scholars as an interventionist approach. So much so, the scholars believe that such an approach has led the Court to become a seat of theological authority rather than a constitutional authority. For instance, recently, the Supreme Court deliberated upon the issue of triple talaq in the case of Shayara Bano v. Union of India3 , and declared the practice as arbitrary and unconstitutional, relying upon the said doctrine of essential religious practice. It is true that the use of this test has facilitated remedying of several social evils, similar to the aforementioned, hence promoting the interests of justice at large. However, it would be pertinent to note that the Court could have used reasoning based only on gender discrimination instead of resorting to the scriptures of Muslim personal laws and figuring out whether triple talaq is an essential practice of Islam. Similarly, with the case of Goolrokh Gupta4 pending before the Supreme Court, we only have to wait and watch whether the Court refrains from using the essential religious practices doctrine and adopts an approach towards horizontal application of fundamental rights instead. The issue pertaining to the legitimacy of the doctrine, which has hardly ever been questioned in the Court of law, however remains unanswered. Secondly, what also remains debatable is the issue regarding the capacity of the Courts when they interpret the religious doctrines and rule exclusively on the interpretation of the same. The fact that the doctrine has been used by the Courts in various circumstances, that also quite inconsistently, portrays the arbitrary use of discretion by various Courts. The role of the Supreme Court as the protector of individual’s fundamental rights is conflicting with its role as a constitutional court, when it is 2. GARY JEFFREY JACOBSOHN, THE WHEEL OF LAW 104 (2003). 3. (2017) 9 SCC 1. 4. Mehal Jain, Parsi Woman’s Identity Crisis: Prima Facie No Case For Accepting ‘Doctrine Of Merger Of Wife’s Religious Identity With That Of Husband, Observes SC, (December 7, 2017), http://www.livelaw.in/parsi- womans-identity-crisis-prima-facie-no-case-accepting-doctrine-merger-wifes-religious-identity-husband- observes-sc/. Vol. XII, 2019 3 Army Institute of Law Journal acting as a religious authority in determining the essentials of religion. In such a scenario, it is pertinent for us to explore the likelihood on the part of the Courts to make shift from the said test in cases where an alternative approach can be possibly resorted to.