Patenting of Life Forms: Reflections on Some Legal and Ethical Issues

--M Hussain

Biotechnology and genetic engineering have made it possible to create new life forms or even to re-evolve the life forms. Stem cell technology, somatic cell hybridization, genome technology, gene therapy and cloning are the buzzwords of modern scientific developments and research. The developments in these branches of science in the field of pharmaceuticals, agriculture and human healthcare are significant, with medicines such as insulin, erythro protein and interferon produced on commercial scale. In agriculture, the development of disease-resistant plant varieties, hybrid seeds and plants, nitrogen fixing microorganisms, new plant varieties with shorter life cycle, etc., and in human life science, the reconstruction of organs and creating life through cloning, biotechnology and genetic engineering are making a long-lasting impact on the human life. A section of the scientific world argues that the risk involved in commercially applying most of these scientific techniques can cause serious and irreparable damages to environment. Some others view that patenting in such areas should not be allowed for the reasons of biodiversity preservation and rights of indigenous people. Some critics of cloning technology and organ reconstruction technology foresee the danger to nature as compared to its advantages. This paper attempts to analyze the arguments against the patenting of life forms, which have been divided into the following: ethical and religious arguments; environmental implications; economic considerations; and legal issues. The author has also attempted to analyze the questions as to whether there are certain inherent values in life and whether patenting life forms violates such inherent values. The paper concludes with some important suggestions as to patenting of life forms.

© 2014 IUP. All Rights Reserved.

Gender Equality in Islam: An Overview

--Shahnaz

Gender equality is an outcome of modern times which is progressively gaining social, political and legal significance, and is now assuming new dimensions. Are men and women equal? Who is superior: man or woman? Is woman an inferior being? These and many other questions are being constantly debated in the public domain. While they may seem to be diverse, these questions converge around a common theme: the issue of gender equality. Though secular law recognizes and protects the rights of women, yet the issue of gender justice continues to dominate legal thought and attract the attention of organizations working for the empowerment of women. Attempts are now being made to elevate their status by recognizing their rights. In fact, one can say with some confidence that in contemporary times, there hardly seems any law which favors men at the cost of women, while the reverse may be a possibility, viz., Article 15 (3) of the Constitution. Similarly, the Islamic legal system has also been sensitive towards gender-balanced reforms. However, it is now being labeled as a system which does not understand the position of women adequately, and consequently a Muslim woman’s condition is often portrayed as pathetic. Classical interpretations of Islamic law are seen as antiquated and unable to fulfil the needs of modern Muslim women. Slogans that Islam infringes on the rights of women and blocks all their ways towards liberation has become an accepted normative. The present paper is an attempt to analyze this normative understanding and in the process offer a more nuanced interpretation of Islamic legal system, especially on the gender question.

© 2014 IUP. All Rights Reserved.

Confidentiality in International Commercial Arbitration: Presumption and Reality

--Ajit Kaushal and Sumeet Gupta

The confidentiality of international arbitration proceedings and awards is one area with a crying need for corrective hands today. The conflicting needs of confidentiality and transparency in arbitration have compelled badly the courts and lawmakers to come with the innovations to harmonize the conflict. The road of confidentiality in international arbitration meets a dead end after crossing the barrier of ‘privacy’ as no national or institutional laws provide expressly for confidentiality (barring few exceptions like New Zealand) because of its inherent complications. This paper attempts to strike a balance between virtue and vice of confidentiality in the area of arbitration.

© 2014 IUP All Rights Reserved.

Application of International Law in India: An Appraisal

--Lakshmi Chebolu

International law is a law governing the relations of States. It may be defined as the body of general and specific principles which are binding upon the members of the international community in their mutual relations. By virtue of the sovereignty of States and the principle of separation of powers between the different organs of the State, international law is not automatically applicable internally. Since having uniform principles in this regard is not possible, the practice of the States has ranged from automatic incorporation to specific adoption. Nonetheless, the governments shall apply the international law wherever there is no conflict with the national law.

© 2014 IUP. All Rights Reserved.

The Legal Implications of the Instrument of Accession: A Critical Case Study with Reference to the State of Jammu and Kashmir

--Irfan Rasool

The Indian Independence Act, 1947 passed by the British Parliament had the effect of setting up the erstwhile British territory in India into two independent Dominions, Pakistan and India, which consequently became sovereign state, freeing the former princely states of India, including Kashmir, from the suzerainty of Britain. The princely states were, for internal purposes, outside the administrative, legislative and judicial control of the British India Government but were subject to the paramountacy of the British crown. The princely states which were thus freed from suzerainty became independent sovereign states. Kashmir became an independent sovereign state with effect from August 15, 1947. The Indian Independence Act, 1947 contained in Section 2 (4) a provision in terms of which the freed princely states could join either India or Pakistan. Several princely states, except the states of Junagadh, Hyderabad and Jammu and Kashmir, were persuaded by the then Governor- General Lord Mountbatten to enter into a relationship before the actual date of transfer of power, by executing an Instrument of Accession on three subject matters, viz., defence, external affairs and communication. Maharaja of Jammu and Kashmir executed the Instrument of Accession, an international treaty, on October 26, 1947 with Dominion of India. Article 7 of the Instrument of Accession was specific that Jammu and Kashmir was not committed to the acceptance of any future Constitution of India unless specifically accepted in terms of Article 5 of the Instrument of Accession. In other words, it was clear that the treaty relationship required a modification through a supplementary instrument, detailing the modified relationship. Against this backdrop, an attempt has been made in this paper to analyze the legal implications of the Instrument of Accession.

© 2014 IUP. All Rights Reserved.