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Environmental © 2019 Mohd Imran No part of this publication should be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording and/ or otherwise without the prior written permission of the editors. ISBN: 978-93-5382-326-9 Information contained in this work has been received from respective research scholar’s/paper authors. For information published herein, Indian Society for Legal Research is not responsible. Authors are solely responsible for any damages arising out of use of this published information. Published by: Mohd Imran Founder, Indian Society for Legal Research Address: Ganga Vihar Colony, Kaithwalia, Ghazipur (UP), 233001 Contact No.- +91-9455971918 Email: [email protected] Printed & Distributed By: Indian Society for Legal Research Address: Ganga Vihar Colony, Kaithwalia, Ghazipur (UP), 233001 Contact No.- +91-9455971918, +91-7076681156 Email: [email protected] Website: https://indiansocietyforlegalresearch.wordpress.com/ 1 Preface Law is the reflection of the will and wish of the society. It is said that if you want to study any society, you have to study the laws enacted by that society and you come to know whether the society is developed or wild world. The law, though it is the product of the society is responsible for the social transformations. While law making is primarily a job of legislators, in common law system, courts play huge role in shaping and modifying the law of the land. No study of law in India could be complete without having mentioned the contributions made by the courts time to time. Needless to say that the Supreme Court of Indian and other High Courts have come out with several principles and doctrines which have paved way for new legislations. Keshvananda Bharti, Sunil Batra v. Delhi Administration, Vishakha v. State of Rajsthan, M.C. Mehta v. Union of India, Shah Bano, etc. are some examples of marvelous work done by the courts in India. Be it Environmental Protection, Human Rights Protection or Uniform Civil Code the Courts in India have shown the real wisdom of being the guardians of people’s Fundamental Rights. With the new advancements in the field of science and technology, several issues relating to laws have triggered the minds of legal professionals. The legislative bodies and judicial organs have been giving new dimensions to the already known and established legal principles. This book is a sincere effort to stimulate, deliberate and initiate the positive change we desire to see in legal system. We appreciate the efforts of all our contributors for sharing their wisdom, conviction and thoughts to set the stage for a larger debate in the society. We are also thankful to the members of Indian Society for Legal Research for their constant support and encouragement. Editors 2 About the Editors Heena Praveen Heena Praveen is working as Assistant Professor at Adamas University Kolkata. She has completed B.A.LL.B.(Hons.) from Aligarh Muslim University, Murshidabad Centre (W.B.) and LL.M from West Bengal University of Juridical Sciences, Kolkata. She teaches Public International Law, Law of International Organisation, Air and Space Law, International Environmental Law, International Dispute Settlement Laws etc. Mohd Imran Mohd Imran is a LL.M candidate at South Asian University, New Delhi. He is also pursuing Masters in Conflict, Peace and Security (Distance Mode) jointly delivered by the United Nations Institute for Training and Research and the Universitat Oberta de Catalunya. He is Senior Editor at Droit Penale: Indian Law Journal on Crime and Criminology. He has worked as Student Reporter and the Chair-Person, Editorial Committee, Indian National Bar Association. He has got his several articles published in India's reputed law journals such as Indian Bar Review, IUP Law Review etc. He has been co-editor of two books; Access to Justice: Need for Reforms (published by Faculty of Law, AMU Murshidabad Centre), and Technology-Based Violence against Women published by RIGI Publication as a project with "Kal Ki Soch." 3 Table of Contents 1. IMPLEMENTATION PROGRESS AND ISSUES WITH THE POLLUTER PAYS PRINCIPLE IN INDIA ........................ 6 2. DESIGNING ZERO PLASTIC POLICY & IMPLEMENTATION (MAJOR ROLE OF LAW TO PROTECT ENVIRONMENT) ....................................................................................................................................... 19 3. ENVIRONMENTAL GOVERNANCE ON THE LEGAL RIGHTS OF RIVERS .......................................................... 36 4. LEGAL RIGHTS OF RIVER .......................................................................................................................... 51 5. BIO ETHICS- SOLECISM OF CLINICAL TRIALS IN INDIA .............................................................................. 66 6. ROLE OF RAWLSIAN JUSTICE ON ENVIRONMENTAL GOVERNANCE ............................................................ 88 7. UNIFORM CIVIL CODE: A HIDDEN TRUTH OF AN ABSURDITY ....................................................................101 8. UNIFORM CIVIL CODE IN INDIA ..............................................................................................................118 9. POSITION AND RIGHTS OF WOMEN FROM ANCIENT TO MODERN AGE .....................................................134 10. IRRETRIEVABLE BREAKDOWN OF MARRIAGE: JUSTICE DELAYED! ...........................................................153 11. INTESTACY LAWS ...................................................................................................................................181 12. BLACK STONE OR BISMARK – DILEMMA IN DETERMINATION OF AGE OF JUVENILES IN CONFLICT WITH LAW ......................................................................................................................................................188 13. PUNISHMENT AND CATHARSIS FOR RAPE .............................................................................................203 14. THE THEORY OF JUSTICE: JOHN RAWLS’ PERSPECTIVE ............................................................................214 15. PRECEDENT AND GROWTH OF LAW: INDIAN EXPERIENCES .....................................................................226 16. THE JOURNEY FROM “COMMITTED SUICIDE” TO “DEATH BY SUICIDE” IN INDIAN LAW ON DECRIMINALIZATION OF SECTION 309 OF THE IPC .................................................................................247 17. PASSIVE EUTHANASIA AND ADVANCE DIRECTIVE- A CRITICAL ANALYSIS ................................................266 18. WITNESS PROTECTION SCHEME, 2018: A NEW WEAPON IN THE ARSENAL OF CRIMINAL JUSTICE SYSTEM ................................................................................................................................................286 19. DYING DECLARATION: A CRITICAL ANALYSIS ..........................................................................................298 4 20. INDIAN YOUNG LAWYERS ASSOCIATION AND ORS. V. THE STATE OF KERALA- TUSSLE BETWEEN CONSTITUTIONAL MORALITY AND SOCIAL MORALITY ..............................................................................305 21. RECENT AMENDMENT TO CHILD AND ADOLESCENT LABOUR (PROHIBITION AND REGULATION) ACT, 1986: A CRITIQUE ..............................................................................................................................................318 22. JOSEPH SHINE V. UNION OF INDIA: A TRANSFORMATIVE STEP WITH CHALLENGES AHEAD .......................329 23. LEGAL PERSONALITY TO ANIMALS: KARNAIL SINGH AND OTHERS V. STATE OF HARYANA.........................339 24. THE CPIO SUPREME COURT OF INDIA V. SUBHASH CHANDRA AGARWAL & ANR. W.P. (C) 288/2009 ...348 5 IMPLEMENTATION PROGRESS AND ISSUES WITH THE POLLUTER PAYS PRINCIPLE IN INDIA Harsh Mahaseth NALSAR, Hyderabad An environmental policy has been created which requires the polluter to bear the costs and responsibilities of the pollution and the externalities that are proximate in cause of it. This is the Polluter Pays Principle (PPP). In a purely free market one only faces their private costs; however, due to the externalities created there is an additional cost which is the environmental cost. Thus, the PPP is the idea of paying the total social cost of the act rather than only paying the private cost. It is a method of internalizing the externality. The two broad rationales behind the implementation of the PPP in the environmental jurisprudence include firstly, a penalty or fine to act as a discouragement and deterrent and secondly, to form compensation for the communities who have suffered damage due to pollution. Following the Stockholm Declaration of 1972, India has developed a wide range of laws for the protection of the environment such as the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986 and the Forest (Conservation) Act, 1980. In this light, it is pertinent to note that the PPP plays an important role in both national as well as international environmental policies.1Furthermore, it has been crucial in the judgments delivered by the Indian Courts, especially by the National Green Tribunal 1Margaret Rosso Grossman, Agriculture and the Polluter Pays Principle, Electronic Journal of Comparative Law, Vol,11.3 (December 2007). 6 (NGT) thereby becoming an integral part of the environmental jurisprudence of India.2 The Principle evolved from the rule of ‘absolute liability’ which was laid down in the case
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