Deepa Kansra

BAIL JURISPRUDENCE in India (as in other common law countries) has evolved laying emphasis on the right to liberty of the accused as opposed to the requirement of the State to keep him/her under custody... The mechanism for cancellation of bail is provided in law in order to ensure that justice will be done to the society by preventing the accused who had been set at liberty by the bail order from tampering with the evidence in a heinous crime. At the same time, cancellation of bail takes away the liberty granted by the Constitution and affirmed by an order of the Court, which granted bail. Taking note of the fact that cancellation of bail necessarily involves the review of a decision already made, it has been emphasized that the same should always be exercised very sparingly by the court of law.

The judgment depicts the strong and compassionate approach taken by the court towards animals, particularly bulls used in bullock cart races and Jallikattu. The case is another addition to the several decisions that have pushed in for a more expansive reading to the expression “life” and “dignity” under the Constitution. With the objective of giving a more inclusive meaning to life and dignity, the case accommodates the duty to preserve the dignity and wellbeing of animals as being a part of the constitutional framework.

The state has always authoritatively used criminal law to give effect to its policy of condemning acts either antisocial or unacceptable to the conscience of the law and society. The existence of criminal law is well justified on grounds of ‘social welfare’ or “reinforcement of those values most basic to proper social functioning”. This initiates or sustains the process of criminalization. The relativity of ‘social welfare’ makes law ‘dynamic’ as well as ‘varying’, vis-à-vis its ambit and scope. Current scholarship is critical of what is referred to as the trend of overcriminalization or rapid increase in criminalizing of acts, as leading to ‘uncertainty’ in criminal law. The rationale for such a critique is that there are activities that need not be labeled as offences if they do not possess the potential to cause damage that criminal law seeks to protect. In light of the overcriminalization critique, this paper examines the criminalization of certain offences labeled as public welfare offences.

The law confers rights on non-human entities, namely nature, machines (AI), and animals. While doing so, the law is either viewed as progressive or sometimes as abstract and ambiguous. Despite the critique, it is undeniable that many of the rights of non-humans have come to solidify in statutory and constitutional rules of different systems. In the context of these developments, the article sheds light on the core justifications for advancing the rights of non-human entities. In addition, it discusses the conditions for the emergence of these rights and the non-binding normative statements adopted by different stakeholders for advocacy. These include the Charter on the Law of the Living (2021), the Toulon Declaration (2019), and the Vienna Manifesto on Digital Humanism (2019), etc. The paper also discusses the relevant theoretical frames, namely post-humanism, digital humanism, and multi-species justice, followed by selective critical views on the subject.

The aim of this paper is to explain the emergence and use of DNA fingerprinting technology in India, noting the specific concerns faced by the Indian Legal System related to the use of this novel forensic technology in the justice process. Furthermore, the proposed construction of a National DNA Data Bank is discussed taking into consideration the challenges faced by the government in legislating the DNA Bill into law. A critical analysis of the DNA Technology (Use and Application) Regulation Bill, 2019 is provided to throw light upon many ethical, social, and legal issues that need to be addressed before the operationalization of the Bill to ensure that this technology is governed democratically to protect the civil liberties of citizens

A psychology-informed view of human rights has been taken into account by many scholars while examining the short-term and long-term effects of human rights violations on individuals and communities. In Trauma and Human Rights: Integrating Approaches to Address Human Suffering, for instance, the authors discuss the trauma-informed approach in the context of human rights violations, namely domestic violence, racial and other forms of discrimination, etc. In the paper on Trauma among children and legal implications, the authors advance a trauma-informed approach to human rights. The approach considers the experiences of trauma associated with physical abuse, sexual abuse, neglect, psychological/emotional abuse, community violence, natural disasters, serious accidents, parental death/grief, medical procedures and conditions, and terrorism. In the case of violations including rape and torture, the paper Torture by means of Rape concerns the psychological suffering of victims of rape, abuse, and torture in light of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As for the jurisprudence of international human rights bodies, the advancement of a psychology-informed view of human rights is noticeable. Take the example of the Report of the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment on Biopsychosocial factors conducive to torture and ill-treatment. The Report explores the root causes of the current worldwide complacency concerning torture and ill-treatment and recommends the urgent and proactive incorporation of science-based conclusions into ongoing, policy-based global governance reform processes. Further, the report provides that the root cause of the systemic governance failure is attributed to the generic biopsychosocial factors that have shaped human decision-making throughout history, irrespective of national, cultural, religious, or other distinctive influences. Since the two fields are creating a landscape of new concepts and perspectives, one may study this interface broadly under three headings; (a) Psychology in Human Rights. (b) Rights-Based Approach to Psychological Science and Research. (c) Psychology and Human Rights in Law and Policy.

The proliferation of criminal laws in different legal systems has made legal practitioners and scholars deliberate upon the present day relevance of old age principles and concepts. The maxim ignorantia juris non excusat (ignorantia juris hereinafter) also falls in this category. The application of criminal law is said to rest on the maxim ignorantia juris, meaning ignorance of law is no excuse. The application of the maxim has from time immemorial been defended on grounds of convenience, utility, and community interests. At the same time it has been challenged on grounds of legality and morality. The application of the maximin criminal matters is secured through penal laws. These laws are further validated through judicial pronouncements. Penal statutes and judicial pronouncements have largely been the basis to determine the exceptions and scope of the maxim. Breaking it down to a single case in hand, several factors come into picture including the nature of the crime in question, the mental state of the person accused, the conduct of the accused person, the objective or public utility of the criminal legislation or provision, and the reasons or justifications offered for its rigid or qualified application. The single case is viewed in light of the general provisions of criminal law of the legal system in which the case is being tried. The uniqueness of each case and the criminal statutes of legal systems make it both complex and conducive to generalize or conclude on the true import and application of the maxim ignorantia juris.

The human mind has been a subject matter of study in psychology, law, science, philosophy and other disciplines. By definition, its potential is power, abilities and capacities including perception, knowledge, sensation, memory, belief, imagination, emotion, mood, appetite, intention, and action (Pardo, Patterson). In terms of role, it creates and shapes societal morality, culture, peace and democracy. Today, a rapidly advancing science–technology–artificial intelligence (AI) landscape is able to reach into the inner realms of the human mind. Technology, particularly neurotechnology enables access to the human mind for research, treatment and other purposes. This enabling feature is now a growing concern. In the field of human rights, this human-science–technology interface is leading to articulation of new human rights to safeguard against modern threats. The wider usage of expressions like neurolaw and mental autonomy reflects on the emerging field of standards to protect the human mind from interference, manipulation and control. Growing literature on the subject sheds light on the human-rights-based approach to the challenge.

The chapter gives an overview of the binding and non-binding international norms which govern and regulate the activities of states and other actors in outer space. It covers the key agendas and challenges being addressed within international space law in the wake of advancements in technology and greater access to outer space by multiple actors. For a comprehensive view of the subject, the chapter gives an overview of the nature of space laws within national systems, and the interface of space law with other fields of law namely environmental law, human rights law, and intellectual property law.

In different parts of the world, attempts have been made to define the principle of fraternity as a political and legal value as compared to a historic/rhetoric one. Fraternity or fraternal relations (occasionally also referred to as solidarity, humanity, compassion, brotherhood) are forged in the everyday lives of societies, when they share common aspirations and vulnerabilities. The wider use or the linking of the principle to conditions of conflict and mass frustration makes it a sort of mirror of realities. These lived experiences and contexts also give the principle a dynamic and propelling quality within law and politics.

At this juncture, the relevance of the human right to science is undeniable. The right, for a long time, has been a subject matter of deliberation under Article 15 of the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR). Most of these deliberations emphasised the need for a concise meaning and scope of the right to science. In the year 2020, the Committee on Economic, Social and Cultural Rights (CESCR) under the ICESCR made two interventions with the objective of defining, advancing and mainstreaming the right to science. The two interventions include General Comment No. 25 on Science and Economic, Social and Cultural Rights, and the Statement on the Coronavirus Disease (COVID-19) Pandemic and Economic, Social and Cultural Rights. This paper concerns the above mentioned statements of the CESCR, in particular, the interpretations and standards being advanced by the Committee.

Backlashing is a perennial challenge for human rights. Its manifestation in various forms including the repudiation of human rights standards or resistance to being evaluated by them has made the phenomena central to the discourses on human rights. The backlash or reversal of progress, a strong negative reaction, and counter reactions have been witnessed in various settings across the world. An analysis of the phenomena what can be called the backlash analysis is done in light of specific rights like LGBT rights, women’s sexual and reproductive freedom, rights of immigrants and ethnic and religious minorities. The analysis also covers the behaviour of institutions and movements. The backlashers have been identified as state institutions, a group of states, movements and non-state actors. With growing attention on the subject, it is of great value to ascertain whether there a way to comprehensively understand it?

Earth consciousness involves an understanding of our relationship with earth. It involves the study of earth forms, their life processes and inherent needs. The concept has created a field of frameworks and knowledge systems permeating into the day to day lives of humans including their political-economic-cultural spaces. The expression earth consciousness can be interpreted in many ways to include human awareness of nature & its processes, or the bond with mother earth and all its forms . Earth consciousness or the universal respect for nature and all of its forms is manifesting in different ways. The multidisciplinary approaches that build the idea of Earth consciousness have added much weight to building frameworks for protection & preservation. One can see an influence of cultural, ethical, legal, philosophical, religious, & spiritual perspectives in the realization of a deep & meaningful relationship between humans with nature. This document sheds light on the diverse frameworks evolved and evolving to give effect to the growing earth consciousness. Much emphasis also placed on the "Rights in Nature Framework" and the "Post 2020 Bio-diversity Framework".

Today, major disciplines (including psychology, philosophy, science, etc.) are seeking to forge a deeper connection with spirituality/spiritual values. Emanating from these efforts are clues about the role of spirituality as an inspiration, a fertile source, and a benchmark for research, policy-making, and reforms. In the case of law/the law, scholars explore its relationship with spirituality in light of diverse topics including human rights, crime prevention, family relations, humanitarianism, development, education, security, conflict resolution, and freedom. A few of these works offer fascinating insights, and a few emphasize the need for more detailed analysis. This chapter seeks to highlight a few aspects of the relationship between law and spirituality. First, it highlights the importance being given to spirituality or spiritual values across disciplines, including law. Second, it aims to map the influence of spirituality in the working of laws and legal systems. This exercise will be undertaken in light of the expressions such as spiritual needs, spiritual rights, the spiritualization of law, etc. Third, the chapter raises a few questions of conceptual and practical importance.

Domestic courts are often quoting foreign case law on human rights. The conversation pursued through cross-referencing across jurisdictions has added to the globalization of international human rights standards. As the practice is gaining ground and becoming a more permanent feature of domestic judgments, its relevance needs to be examined. A closer look at the practice will bring forth a more realistic understanding of the approaches of domestic courts and the advantages which they offer to the institution. This paper raises few questions on the value and influence of cross-referencing in the area of human rights. Questions in this regard can be posed as to (a) whether cross-referencing is reflective of an emerging consensus on the subject matter? (b) Is it strategic for domestic courts to quote foreign case law? (c) Is the practice of cross-referencing simply a trend or an urge to belong to a community of courts? (d) Is the practice of relevance towards the implementation and advancement of international human rights standards? The topic can shed light on broader themes including the universality of human rights, contestations/disagreements over human rights standards, and the measure of acceptability of international human rights standards within domestic settings. This paper discusses the practice, its role and influence in relation to international human rights standards. Three judgments [of the courts of Nepal, India and Singapore] addressing the human rights and homosexuality agenda have been illustrated for discussion.

From the scholarship available we can gather that fraternity has been subjected to several interpretations and linked with several virtues. For a few, it stands close to the actualities of solidarity, humanity, compassion, companionship, and brotherhood. For others, it is the “glue that binds equality and liberty to the civil society” and “presents a sense of continuity with the past and the future”. Omvedt replaces the word fraternity with “community” as an important component of a human vision for the new millennium along with equality and justice. Historically, ‘liberty, equality, and fraternity became a major influence on political thought since the French Revolution. The Revolution marked the triumph of the people and pronounced the Declaration on Rights of Man and of the Citizen in 1789. In modern societies, although there are many differences in interpretation, the idea of fraternity is less directly accepted, but the principles of collective action and social responsibility are widely recognized’. According to Johnston, 'fraternity' was rather less central to the preconceptions of the enlightenment predecessors of the revolutionary era, their emphasis being given rather to the 'rights of man' and to the equality of entitlement to those rights. To date, our pre-occupation with liberty and equality has left vacant a conceptual upbringing of fraternity in the postcolonial context.

In the field of human rights, expressions like justice and legal reform are closely linked to the process of harmonization of domestic and international human rights standards. Harmonization of human rights standards can be described as a process wherein international human rights are incorporated or given full effect to at the domestic level. [i] To harmonize the two set of standards i.e. domestic and international is viewed as both a commitment and obligation of states under international law. [ii] In terms of state practice, the process of harmonization may entail a set of actions including adoption of laws and creation of mechanisms for enforcement and redressal of violations. At the international level, the harmonization agenda is actively promoted at forums including the Universal Periodic Review (UPR) or during consultations between states and human rights treaty bodies, etc. Questions on whether states are in compliance with their international human rights commitments under treaties and other resolutions are to a large extent determined based on the extent of harmonization. Other pertinent questions being whether existing domestic laws are compatible with international human rights standards? What conditions obstruct and facilitate harmonization of human rights standards? Are there any parameters to measure harmonization? While harmonization is widely promoted, its study and assessment is complex.

Human rights treaties are often attached and complemented with Optional Protocols. The Optional protocol instruments are adopted after careful deliberation between different stakeholders including member states to human rights treaties. The present document on Introduction to the International Covenant on Economic Social and Cultural Rights- Optional Protocol [OP-ICESCR] is an addition to the on-going work on the Human Rights Framework on ESC Rights. It covers basic information on the objectives of the OP and the key provisions dealing with the redressal mechanisms and processes. Much emphasis is given to highlighting the expansion of the normative framework through the works of the Committee under the ICESCR. The document highlights a few of the important standards developed, interpreted and applied by the Committee in its dealing with member states. The document also mentions a few areas that need further study and analysis in order to understand the impact of the OP-ICESCR mechanisms within domestic jurisdictions, particularly of the member states.

Recent years have illustrated how the reproductive realm is continuously drawing the attention of medical and legal experts worldwide. The availability of technological services to facilitate reproduction has led to serious concerns over the right to reproduce, which no longer is determined as a private/personal matter. The growing technological options do implicate fundamental questions about human dignity and social welfare. There has been an increased demand for determining (a) the rights of prisoners, unmarried and homosexuals to such services, (b) concerns over child’s information and health needs, (c) claims for wrongful birth and wrongful life, (d) the role of donors and physicians, (e) posthumous reproduction etc. In addition, the role of national and international law has been emphasized for an efficient system of functioning and delivery. This paper is an attempt to explore the pressing claims to reproductive choices, coupled with a marked increase in demand for legislative intervention in India.

The transitory and ever-evolving process of law making plays a role of primal importance in the regulation of human conduct of society. It goes without saying that in this entire process, judges have a participation. The power entrusted by law and the nature of judicial process, make judges the prime mover of the development of law. It matters how judges decide cases. It matters most to people unlucky or litigious or wicked or saintly enough to find themselves in court... The effect emanating from the decision of a case affects the life of a person in many ways that at times has far reaching impact...When the law in question happens to be criminal law, it requires a cautious consideration to see how the interpretive tools used by judges affect the life of a litigant in ways both seen and unseen... Several areas concerning adjudication and judicial interpretation have been the subject matter of study. This paper includes a discussion on the principle of non- retrospectivity in light of judicial adjudication in criminal matters.

There are many reasons to suggest that human rights have a spiritual flavor. Grounded in the understanding that individuals and communities have spiritual interests, the idea of human rights has been called upon time and again to protect and provide for them. This development has raised questions about what spiritual interests are and what role human rights can play in this regard. On a cursory glance, linking human rights to spirituality benefits three right-holders: individuals, communities, and humanity as a whole. Human rights contribute to the realization of a person’s human dignity through the satisfaction of his or her developmental, physical, psychological, and spiritual needs (UNFPA: 2005). And the spiritual interests of communities reflect in the specific rights—namely cultural rights, land rights, environmental rights, the right to peace, etc. In addition, commitments to the spiritual rights of human beings and the planet could be considered essential for the survival and evolution of humanity. (Universal Declaration of Spiritual Rights). Noteworthy in human rights cases is the use of spirituality-based concepts—namely spiritual development, spiritual needs, spiritual rights, spiritual reparations, etc.—as benchmarks for research, policy interventions, and reforms.

The prosecution of international crimes is a challenge both under international and domestic law. Taking the example of international criminal law (ICL) , the fullest realization of its objectives is influenced by many factors including; (a) the adoption of appropriate laws by states, (b) the adequacy of the ICL framework on definitions of crimes and principles of criminal responsibility, (c) the level of political control and involvement in decision making related to investigation, prosecution or extradition, (d) Problems with exclusion including restrictions on the rights of victims with regard to the proceedings and to reparation, and (e) The application of provisions for amnesties and similar measures of impunity. Over the years, the mandate of States under ICL has expanded. Key reforms under ICL and domestic laws have been led by the above mentioned concerns. The scope of state obligations, in particular, has been shaped by the standards adopted under the ICL framework including the "duty to prosecute" international crimes. The article discusses the normative significance of the "duty to prosecute".

The Human Rights Studies Programme, School of International Studies (JNU), in collaboration with the Centre for Inner Asian Studies, School of International Studies (JNU), and the Indian Law Institute (Delhi), organized a Human Rights Day Webinar on the Intersections of Human Rights and Criminal Law on December 9-10, 2021. Experts and young scholars from the field shared their insights and research on the webinar theme. The presentations were organized under four sessions, including Session I on Rights Jurisprudence and Criminal Law, Session II on Proposals for Criminalisation and Decriminalisation, Session III on Crimes, Victims, and Punishments, and Session IV on Reforms in the Future. The Webinar was conceptualized keeping in view the responsibility of states under international human rights law to prohibit and punish for the protection of human rights and the redressal of violations. The obligations of States to prohibit and punish inform the development of criminal rules and procedures under different legal systems, leading to the near universalization of legislative frameworks, legal justifications, and punishments. In the working of international human rights institutions, the criminal laws adopted by States are an indicator or marker of the level of compliance of States with the international mandates. In recent years, the interface between the two fields, i.e., international human rights and domestic criminal laws, has sparked great jurisprudential, political, and constitutional debates in different parts of the world. Against this backdrop, the Webinar was organized on Human Rights Day to discuss the relevant issues.

Justice for human rights violations involves taking into account psychological harm caused to individuals and communities. Justice for psychological harm is specifically grounded in four considerations: (1) that harm to human persons can be both physical and psychological (2) that even in the absence of physical injuries, psychological harm can constitute a human rights violation (3) that those causing psychological harm ought to be accountable, and (4) that claims for justice for harm are supported by human rights principles. One finds that across legal systems, laws align and support these considerations while making justice for psychological harms a matter of rights, well-being, and state responsibility. Human rights practice, literature, and studies highlight the contribution of law and psychology toward justice for psychological harms. Questions of interest to both are whether there is a universal theory on psychological harms to inform matters of justice; whether psychological harm can have a cultural context; whether psychological suffering can have an empirical measure; and whether newer threats like climate anxiety and technology-based harm are being addressed.

Mental health is a global priority, and states and stakeholders are taking steps toward advancing a human right to mental health for all (APA, 2018). This is evidenced by international studies, initiatives, declarations, and domestic policy interventions. From a right-based perspective, mental health is not the mere absence of a psychiatric condition or psychosocial disability (WHO, 2022). It speaks of an environment in which individuals live a life of dignity. The application of human rights principles to mental health allows us to incorporate novel ideas about the role of all stakeholders in fostering the security, freedom, justice, and dignity of individuals. With this point of view in mind, many states are revisiting their mental health laws and governance practices.

Duties constitute an integral part of the constitutional scheme of values. The nature and influence of duties is of great interest to practitioners and scholars. The literature on the subject is primarily concerned with the exactness of duties as operational values within constitutions. In general, Bauer and Bolsinger attribute three functions to constitutional values. Namely, they regulate by directing human action at the desired target, enabling legitimation and justification of actions, and simplifying decision-making. While debating whether duties have a functional quality, several questions gain prime importance. To name a few- do constitutional duties enable positive action? Is there a universal binding framework on duties? How are duties related to other constitutional values within constitutions? Are duties within constitutions interpreted in light of international standards? Are there unenumerated or un-written duties? etc.

Today, property rights have occupied tremendous academic and political space because of their close affiliation to human rights. At the global forums, the right to property is often advocated as a "fundamental human right" essential for the integrity of the individual, and also crucial to freedom, prosperity, and realizing equality. However, beyond the human rights proposal, economic development in the globalization decade has affected the state policies that have disturbed the sanctity of property rights for many households. Owing to such occurrences, the issue of ‘property’ is now one of the biggest concerns of the state and the society, giving adequate reasons to question or dispute illusionary human rights discourse on property. In India, the harsh reality of land acquisition in the exercise of the power of eminent domain has reduced property to a mere political construct. The conflicts over acquisition and subsequent social exclusion have begun to expand their ambit and have taken over the streets, courtrooms, and public spaces. This paper attempts to put forth substantial arguments to satisfy that a human rights discourse on the property is either faulty or ignorant of reality, if devoid of context. Also, theorizing on property rights does not suffice as a standard for reasonable reforms in state policy vis-à-vis property.

The idea of natural law has a long history. It has had different meanings for different people and continues to occupy intellectual engagements as to the connotations of the expression ‘natural law’ in diverse and different contexts. This requires delving deep into the hoarypast and analyzing the gradual development of the idea of natural law through the ages. Understanding natural law necessitates exploring its relation with positive law, its application, and, notably, the import of the word ‘natural’ in the expression ‘natural law’. Be that as it may, there is no denying the fact that there is an element of exclusivity in natural law that has kept it alive and going across generations. Even some of the jurists who adhered to the principles and tenets of legal positivism have shown an inclination towards the principles of natural law, especially as regards the relation between law and morality. It has survived the tests of time. The present paper seeks to explicate the various dimensions of natural law and explore its growth application.

AN ATTEMPT to understand the role of dignity in human rights is worthwhile and challenging. Popularly referred to as a “constitutional principle”, “moral precept”, or a “supreme virtue”, dignity has allowed legal systems to adopt evolutionary and impactful practices concerning the welfare of human beings. Defined also as the precursor and basis to the various human rights defined and adopted, dignity continues to facilitate the integration of diverse interests and stakeholders within the framework of human rights thought and practice. By embracing several values and interests, dignity has reached out to protect-preserve-provide for the worth of human beings as well those that cease to be or are not human beings. This introduces a student of human rights to expressions like “interspecies dignity”, “intergenerational dignity”, “trans human dignity”, and “posthumous dignity”, which are all opening the door for a new consciousness in the field of human rights. The proliferating interests of the non-human entities in the form of territorial sovereignty for animals, privacy of the deceased, rights for the dead to be found in case of war/conflict etc., have been attached with an undeniable quality as that is readily found in the understanding of dignity of human beings. In the wake of such developments, there appears a strong sense of regeneration of dignity as a foundational principle, leaving the earlier formulations of personhood, sentience, capacity, and worth into disenchantment.