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Banaras Law Journal 2012 Vol 41 No.1 THE BANARAS LAW JOURNAL Cite This Issue as Vol. 41 No.1 Ban.L.J. (2012) Editor Executive Editor Prof. D.P. Verma Dr. M.N. Haque BANARAS LAW JOURNAL PUBLICATION COMMITTEE Prof. D. P. Verma - Head & Dean Dr. M. N. Haque - Executive Editor Dr. Sibaram Tripathy Dr. Ajendra Srivastava Dr. V. K. Pathak Dr. V. P. Singh The Banaras Law Journal is published bi-annually by the Faculty of Law, Banaras Hindu University since 1965.Articles and other contributions for possible publication are welcomed and these as well as books for review should be addressed to the Editor, Banaras Law Journal, Faculty of Law, Banaras Hindu University, Varanasi - 221005, India. Views expressed in the Articles, Notes & Comments, Book Reviews and all other contributions published in this Journal are those of the respective authors and do not necessarily reflect the views of the Board of Editors of the Banaras Law Journal. In spite of our best care and caution, errors and omissions may creep in, for which our patrons will please bear with us and any discrepancy noticed may kindly be brought to our knowlede which will improve our Journal. Further it is to be noted that the Journal is published with the understanding that Authors, Editors, Printers and Publishers are not responsible for any damages or loss accruing to any body. In exchange for Banaras Law Journal, the Law School, Banaras Hindu University would appreciate receiving Journals, Books and monographs, etc. which can be of interest to Indian specialists and readers. c Law School, B.H.U., Varanasi-05 Composed and Printed by Raj Kumar Jaiswal, Dee Gee Printers, Khojwan Bazar, Varanasi-221010, U.P., (India). LAW SCHOOL Banaras Hindu University Visitor : The President of the Republic of India (ex-officio) Chancellor : Dr. Karan Singh Vice-Chancellor : Dr. Lalji Singh Registrar : Prof. V.K. Kumra Librarian : Dr. A.K. Srivastava Head of the Department and Dean, Faculty of Law : Prof. D.P. Verma (Prof. B.C. Nirmal, 22-5-2012) The Faculty Staff Sl. Name & Qualifications Designation No. 1. Baeraiya, Babita, B.A., LL.M. (Sagar) Assistant Professor 2. Gupta, Shailendra Kumar, B.A., LL.M., Ph.D.(Banaras) Associate Professor 3. Haque, Md. Nasimul, B.Sc., LL.M., Ph.D.(Banaras) Associate Professor 4. Kumar, Adesh, B.Sc., LL.M., LL.D. (Lucknow) Assistant Professor 5. Kumar, Ajay, LL.M., Ph.D.(Rohatak) (On leave) Associate Professor 6. Majhi, Raju, B.Com., LL.M.(Banaras) Assistant Professor 7. Malaviya, M.K., B.A., LL.M., M.Phil. Assistant Professor 8. Mehdi, Ali, B.Sc., LL.M., Ph.D.(Delhi) Professor 9. Mehra, Surendra, B.A.(Hons.), LL.M. (Rohtak) Assistant Professor 10. Mishra, Dharmendra Kumar, B.A., B.Ed., LL.M., Ph.D.(Banaras) Associate Professor 11. Mishra, N. K., B.Sc., LL.M., Ph.D. (Sagar) Assistant Professor 12. Mishra, Vinod Shankar, B.Sc., LL.M., Ph.D.(Banaras) Associate Professor 13. Murali, R. K., B.Sc., LL.M.(Andhra), Dip. In IRPM(Tirupati), Ph.D. Associate Professor 14. Nirmal, B. C., B.Sc., LL.M., Ph.D.(Banaras) Professor 15. Padhy, M. K., B.Sc., LL.M.(Berhampur), Ph.D.(Banaras) Reader 16. Pandey, Akhilendra Kumar, B.Sc., LL.M., Ph.D.(Banaras) Associate Professor 17. Pandey, B. N., B.Sc., LL.M., Ph.D.(Banaras) Professor 18. Patel, R. K., B.A.(Hons.), LL.M., Ph.D. (Gorakhpur) Assistant Professor 19. Pathak, V. K., B.Sc., LL.M., Ph.D. (Bareilly) Assistant Professor 20. Rai, J. P., B.A., LL.M., Ph.D.(Purvanchal) Reader 21. Rai, R. P., B.Sc., M.A., LL.M., Ph.D.(Rewa) Professor 22. Rai, S. P., B.Sc., LL.M.(Banaras), Ph.D. (Bhagalpur) Associate Professor 23. Ram Jee, B.A., LL.M.(Banaras) Associate Professor 24. Sahoo, G. P., B.A., LL.M.(Utakal), Ph.D. (Banaras) Assistant Professor 25. Saroj, V. K., B.A., LL.M., Ph.D. (Banaras) Assistant Professor 26. Sharma, D. K., LL.M., LL.D.(Meerut) Professor 27. Sindhu, P.K., B.A., LL.M. Assistant Professor 28. Singh, A. K., B.Sc., LL.M., LL.D. (Lucknow) Assistant Professor 29. Singh, M. P., B.Sc., LL.M., Ph.D.(Kashi Vidyapith) Professor 30. Singh, P. K., LL.M., Ph.D.(Agra) Associate Professor 31. Singh, R. K., LL.M., Ph.D.(Delhi) Assistant Professor 4 THE BANARAS LAW JOURNAL [Vol. 41] 32. Singh, S. P., B.Sc., LL.M., Ph.D.(Banaras) (On Leave) Professor 33. Singh, V. P., LL.B.(Hons.), LL.M., Ph.D. (Lucknow) Assistant Professor 34. Srivastava, Ajendra, B.A., LL.M., Ph.D.(Delhi) Associate Professor 35. Srivastava, D. K., B.Sc., LL.M., Ph.D.(Banaras) Associate Professor 36. Tewari, J., M.A., LL.M., Ph.D. (Banaras) Research Assistant 37. Tripathi, Bibha, B.A., LL.M., Ph.D.(Banaras) Reader 38. Tripathi, K. M., B.A.(Hons.), LL.M., Ph.D. (Banaras) Assistant Professor 39. Tripathy, Sibaram, LL.M., Ph.D. (Berhumpur) Associate Professor 40. Trivedi, Abha Km., B.A.(Hons), LL.M.(Banaras) Associate Professor 41. Upadhyay, C. P., LL.M., Ph.D.(Agra) Associate Professor 42. Verma, D. P., M.A., LL.M.(Dalhousie) Professor 43. Verma, G. P., M.A., LL.M., Ph.D.(Banaras) Professor LIBRARY STAFF 1. Nazim, Mohammad, B.A.(Hons.), M.Lib. & I. Sc. Assistant Librarian 2. Kumar, Prabhat, M.A., M.Lib. & I. Sc. Semi Prof. Asstt. 3. Lal, Chunni, B.A., B.Lib. & I. Sc. Professional Asstt. 4. Nath, Shobh, Inter, C.Lib.Sc. Semi Prof. Asstt. 5. Pal, Brij, M.A., M.Lib. & I. Sc. Semi Prof. Asstt. l THE BANARAS LAW JOURNAL Vol. 41 No. 1 ISSN 0522-0815 Jan. 2012 - June 2012 ARTICLES A Constitutionally Entrenched Approach to Conflict Management: The Nigerian Experiment Olaolu S. Opadere 7-25 Mandatory Death Sentence : A Comparison of - Judicial Perception Akhilendra Kumar Pandey 26-41 Rule, Principle and Policy Debate: An Analysis of Ronald Dworkin's Approach R.K. Murali 42-51 Reservation in Private Educational Institutions: A Journey FromT.M. Pai to Indian Medical Association Vinod Shankar Mishra 52-65 ILC's Draft Articles on State Responsibility: Contribution of Special Rapporteur Roberto Ago Ajendra Srivastava 66-84 Pollution of River Ganga and Regulatory Measures : With Special Reference to Varanasi M.N. Haque 85-97 Artificial Insemination: Emerging Legal and Moral Issues Dinesh Kumar Srivastava 98-110 E-Contract : Legal Issues Chandra Pal Upadhyay 111-126 6 THE BANARAS LAW JOURNAL [Vol. 41] Revolutionary Spirit of Article 21: Promoting Human Rights in India : A Conceptual Analysis Sibaram Tripathy 127-138 Suicide vis-a-vis Passive Euthanasia in India: A Need for Law Reform Dharmendra Kumar Mishra 139-152 Farmer's Right as Ownership Right under Plant Variety Protection Law : National and International perspectives Rajnish Kumar Singh &Digvijay Singh 153-174 SHORTER ARTICLES Female Foeticide and Law: An Analysis in Indian Perspective Arun Kumar Singh 175-181 BOOK REVIEWS Furqan Ahmad, Legal Regulation of Hazardous Substances Vinod Shankar Mishra 182-185 J.K. Das, Intellectual Property Rights Rajnish Kumar Singh 186-189 l ARTICLES Vol. 41, No. 1, Ban.L.J. (2012) 7-25 A CONSTITUTIONALLY ENTRENCHED APPROACH TO CONFLICT MANAGEMENT: THE NIGERIAN EXPERIMENT Olaolu S. Opadere* ABSTRACT For diverse reasons humanity has become rife with conflict, the resolution of which is often cost-enormous with incredible and virtually indelible scares in its trail. However, as long as there remains interaction, there must be conflict, which in itself is an essential component of a free society in which everyone has the right to compete for advantages. Realising therefore, that there is no monopoly of approach to managing conflict, this discourse is poised to explore the constitutionally entrenched Nigerian approach. This thesis proposes that nations are diverse and peculiar to the extent of their diversities; and in the same manner should be their search for means of conflict control and management. Hence this discourse is structured to consider conflict management; federal character principle-its historical perspective vis-a-vis quota system; legal and institutional bases for the principle; its successes and challenges, among others; and conclusion. KEY WORDS: Conflict Management; Federal Character; Nigeria; Experiment.. I. INTRODUCTION AS LONG as there is interaction between persons, organisations, communities, states and/or nations, conflict is bound to arise as a natural by- product of such interactions, of course, with varying degrees and dimensions. This is consequent upon divergence of views, opinions, perceptions, reactions, " Excerpt from author's Ph.D. thesis, successfully defended in December 2010, at the Obafemi Awolowo University, Ile-Ife, Nigeria. * Ph.D., Lecturer, Department of International Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria 8 THE BANARAS LAW JOURNAL [Vol. 41] as well as other inexplicable salient factors or influences. Therefore, in order to avoid the cost of conflict, which is usually enormous, and the eventual search for means of resolution, the need for conflict management becomes absolutely pertinent. Conflict management ordinarily involves implementing strategies to limit the negative aspects of conflict and to increase its positive aspects at a level equal to or higher than where the conflict is taking place. In other words, conflict management is the principle that all conflicts cannot necessarily be resolved, but learning how to manage conflicts can decrease the odds of non-productive escalation. It is however common knowledge among conflict management scholars that there is no one best approach to lead and/or manage conflict; against which backdrop this study seeks to examine the peculiar Nigerian experiment on the management of conflict, which is a variant of affirmative action. Importantly, every affirmative action structure is more an attempt at conflict management than resolution.
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