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VOLUME I GNLU LAW & SOCIETY REVIEW 2019 GNLU LAW & SOCIETY REVIEW VOLUME I 2019 1 VOLUME I GNLU LAW & SOCIETY REVIEW 2019 ISSN: 2582-2446 Disclaimer: The views expressed in the articles, essays, case comments, reviews, published in the GNLU Law & Society Review are those of the individual author/s and do not represent the views of the editorial board of the Review. No part of this work may be produced and stored in a retrieved system or transmitted in any form or by any means, electronic, mechanical, photocopying recording or otherwise without written permission from the publisher. Published by: Centre for Law & Society, Gujarat National Law University, Attalika Avenue, Koba, Gandhinagar – 382436, Gujarat, India E. [email protected] 2 VOLUME I GNLU LAW & SOCIETY REVIEW 2019 ADVISORY BOARD B. S. Chimni, Distinguished Professor of International Law, Jindal Global Law School Mrinal Satish, Professor of Law, National Law University, New Delhi Roberta Ruggiero, Centre for Children’s Rights Studies, University of Geneva Rohit De, Associate Professor of History, Yale University Seyla Benhabib, Professor of Political Science & Philosophy, Yale University Tarunabh Khaitan, Professor of Public Law & Legal Theory, University of Oxford 3 VOLUME I GNLU LAW & SOCIETY REVIEW 2019 4 VOLUME I GNLU LAW & SOCIETY REVIEW 2019 EDITORIAL BOARD Editor-in-Chief Dr. Saurabh Anand Managing Editor Zaid Deva Associate Editors Chaitra S Nabarun Ray Sanskriti Sanghi Shantanu Singh Shruti Trikanad Tejas Rao Yashi Saraswat Copy Editors Aman Garg Anmol Rathore Bhavnish Chabda Keertana Venkatesh Mansi Avashia Manthan Nagpal Nalin Malhotra Raghav Kohli Sarthak Makkar Venkata Supreeth Cover Design Shivam Kaith 5 VOLUME I GNLU LAW & SOCIETY REVIEW 2019 6 VOLUME I GNLU LAW & SOCIETY REVIEW 2019 CONTENTS EDITORIAL NOTE .............................................................................................. 9 - Dr. Saurabh Anand THE LEGAL STATUS OF ISRAELI-ARABS/PALESTINIANS IN ISRAEL ... 14 - Raphael Cohen-Almagor and Mohammed S. Wattad ETHICAL STATES & RESPONSIBLE GOVERNANCE IN THE GLOBAL AGE OF PLURAL LAWS .............................................................................................. 54 - Werner Menski WHY NO STUDIES CONCERNING THE IMPACT OF JUDICIAL DECISIONS? ........................................................................................................ 80 - Upendra Baxi THE NEED FOR SOCIAL BOYCOTT LAWS IN INDIA .................................. 98 - Akhileshwari Reddy GENDER MAINSTREAMING IN INDIAN JUDICIARY: PARTICIPATORY PARITY AND REPRESENTATION IN THREE-TIER SYSTEM .................. 119 - Keerty Nakray & Arshiya Chauhan 7 VOLUME I GNLU LAW & SOCIETY REVIEW 2019 INTERNATIONALLY COOPERATIVE SOLUTIONS TO THE DETERIORATING SITUATION IN ANTARCTICA ....................................... 134 - Armin Rosencranz, D.K. Kaul & Aditya Vora MEASURING THE PROGRESS OF JUSTICE AT THE GRASSROOTS IN INDIA: CIVIL SOCIETY’S COLLABORATIVE ROLE IN TRACKING SDG 16 ............................................................................................................................ 152 - Jane E. Schukoske LIBERTY, PRIVACY AND AADHAR: HAS THE SUPREME COURT USHERED IN A SURVEILLANCE SOCIETY? ............................................... 166 - Shyam Divan 8 VOLUME I GNLU LAW & SOCIETY REVIEW 2019 EDITORIAL NOTE - Dr. Saurabh Anand*1 It brings me immense pleasure to present the reader with the special issue of the GNLU Law and Society Review. With its launch, we hope to bring forth issues and concerns in a manner that concern not just our laws and society, but also generate a solemn interest in the mind and instill in us, a true sense of social justice. The GNLU Law and Society Review is the flagship publication of the Gujarat National Law University’s Centre for Law and Society. The Review is available online and is open-access oriented. It is faculty led, edited by students and aims at providing a befitting analysis of the socio- legal issues at hand. The Review encourages an interdisciplinary approach to research in law, with a particular eye towards the sociological aspect of the issues. This allows the opportunity to assess the issues from a socio- legal point of view. This idea that backs the work of the Review is a result of the Centre for Law and Society’s guiding philosophy. Established in 2015, the Centre for Law and Society was founded with the view to act as the pivot for socio- legal research at Gujarat National Law University. For as long as the Centre has been in existence, one of its aim has been to promote multidisciplinary perspectives in research and to facilitate a forum for informed analysis and debate regarding socio-legal issues. This aim of the Centre is realized in the form of the Review, which values the identifying issues of contemporary importance and distilling academic rigor and expertise with the aim of providing accessible information to practitioners. * Editor-in-Chief, GNLU Law & Society Review and Director, Centre for Law and Society, Gujarat National Law University, India. 9 VOLUME I GNLU LAW & SOCIETY REVIEW 2019 This Special Issues sees contributions from the most esteemed academicians, persons with high recognition in Legal Studies and the Humanities and celebrates their work with the ultimate goal of informing the public at large. Among the Articles, Raphael Cohen Almagor and Mohammed S Wattad raise the case for the protection of the Israeli-Arabs/Palestinians under the Israeli law. Their work outlines the status of the Israeli- Arabs/Palestinians in Israel and recognizes the fact of their underrepresentation. Their writing’s significance is further highlighted by the passing of the Nation State Law by the Israeli Knesset. The law, they say, degrades Israel’s democratic commitments and push for making Israel a better place for its minorities. Next, Werner Menski brings the ideas and ideals of legal plurality and legal pluralism to be employed in the Indian context. He espouses that responsible governance in the Global South will require taking plurality and local values into consideration. He suggests that from the problems faced in the legal education process in India to those that the lawyers grapple with, the solution lies in the act of paying keen attention to ethics and local realities in the context of legal education, governance and judicial decision-making. Moving to the Essays, Upendra Baxi raises the pertinent question that lingers in most legal circles. He delves into the field of legal scholarship in India and laments the recurring persistence of ‘unidisciplinarity’ even when there exists a pressing need to study the impacts of the decisions of the various courts in India. He quite adeptly points out the need to assess the larger consequences of the judgements of the courts rather than subscribe to the standard acontextual application and study of judgements. 10 VOLUME I GNLU LAW & SOCIETY REVIEW 2019 Lacuna in the legislations of society is bound to have serious consequences for the governance of the people and this adage is explored at length by Akhileshwari Reddy in her writing on the need for a social boycott law in India. Broadly, her work addresses the social and psychological impact of social boycotts and also explicates the Rights of the Dalits in India. She points to the burgeoning incidents of hate crimes and caste-based discrimination in the country and how the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016, which prohibits discrimination and social boycott in the name of caste, community, religion, rituals or customs, marks a welcomed change in tackling the menace of social boycott. Following this, Keerty Nakray and Arshiya Chauhan examine the possibility of gender mainstreaming in the Indian judiciary. They explore the advancement made by the Indian Judiciary and the Judicial setup in bringing women into positions of constitutional power and attempt to reflect plurality of Indian society. In doing so, they first provide an overview of the representation of women in the Indian judiciary and then explain at length why judicial diversity matters in a multi-cultural society such as India, wherein they conclude that it may be timely that affirmative action for women be brought in this regard. Departing from the Indian mainland, we get to the continent of Antarctica. Armin Rosencranz, D. K. Kaul and Aditya Vora present a case for reassessing the legal standards that govern Antarctica in light of the creeping global warming crisis. Their exploration begins from the legislations that govern the continent. Thereafter, they demarcate the issues that are faced by the region due to increase in human activities and global warming. Their writing would have remained a worrying and poignant take on the situation, save for the proposed suggestions and recommendations made by them to improve the situation concerning Antarctica through the means of International law, courts and consensus. 11 VOLUME I GNLU LAW & SOCIETY REVIEW 2019 Belling a curtain call for Essays, we return to an analysis of justice and its progress at the grassroot level in India. Jane Schukoske explores United Nations Sustainable Development Goal 16 (SDG 16) and its focus on social justice. With the High-Level Political Forum set up by the United Nations to take voluntary national reviews on the progress of SDG 16 in 2019, her analysis of SDG 16’s performance in India involves the approaches taken by the NITI Aayog, inputs given by Civil Society initiatives and the
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