Globalization And It’s Impact On Law And Justice By - Kunal

Globalization And It’s Impact On Law And Justice         

 Authored By - Kunal                                                                                                                                                                                                                                                                                                                                                    

Introduction

Globalization is not a new concept based on development as the countries entered in the dimension of widespread growth. they adopted the globalization with this the liberalization and privatization also emerged so as to support its growth. globalization takes a country and its products, peoples, places at a world level where people from different countries create a global market place

All knows that when a new thing comes it comes with some pros and cons, same is the situation with the concept of globalization. far before entering in India it reached in developed countries they have seen its impacts and from them we can study and learn the various impact it caused on the legal and social life of peoples in those countries how their lifestyle got changed and the loss of employment, loss of land, loss of labour, import of goods and services, foreign investment, growth in industries, outsourcing of work, advancement of technology and such others are the examples of globalization’s effect on a country

The dimension of globalization also has changed with the change in the technology as the advancement of technology led to the shift in globalization as previously the globalization deals with the goods, services, capital, and labour but now it also covers the technologies which are available throughout the world.

In our usual life what we use in our daily exercise such as social platforms e.g. facebook, twitter, Instagram etc. and the mobile applications and games such as tiktok, shareit, pubg etc. all these belongs to different countries but there users are worldwide.in case of India the users of these apps might surprise you as they are used in our country more than the country of their origin

though the impacts of globalization are numerous but I will try to restrict myself to the impacts of globalization on law

in India the globalization was existed before independence the establishment of the east India company and the trade of spices by Portuguese are example of globalization that how they take goods from here and sell them worldwide.

the Britishers forced the farmers to cultivate indigo in their lands because the indigo was in high demand worldwide and they enjoyed monopoly in it but the cultivation of indigo makes the soil useless for other crops and this led to the indigo revolt in Bengal in the year 1859. the foreigners who came here as businessmen but later they rule on our country and exploited our resources for their use.

Post-Independence

the making of our constitution also reflects the globalization as we have borrowed different parts of our constitution from various countries though we have the largest written constitution and hence our grundnorm is the content of globalization on which all the laws are made

we also borrowed the five-year plan from Russia to enhance our gross domestic price (GDP) in a systematic manner though we are not ready to allow foreign invasion in our country because we have faced the consequences of permitting them to do business in our country. but our GDP was not achieved in many five year plans because of the war with china and Pakistan in 1962 and 1965 and proclamation of emergency in 1975 and later during 1991 we faced economic crisis because of the huge imports we are doing and in comparison to that we are exporting few goods this led to the deficiency in balance of payment and we are indebted towards international financial institutions

it was become the need of hour at that time to change the economic policy of India and we are also dominated by the creditors and thus the then prime minister P V Narsimha Rao and finance ministry headed by Manmohan Singh adopted the LPG REFORMS to tackle the situation

liberalization, privatization and globalization for the sake of economic reforms to enhance our GDP

liberalization: means to reduce the formalities for new entrants to enter into the market removing entry barriers and by making the process simplified the abolition of license raj was one step under this concept

Privatization: means the disinvestment by government in various trade sector and allow private ownership to take in their hands the trade sector which was previously in the hands of government except in some sectors

Globalization: means the removing the boundry of country and enter into a global market where everything is available beyond the boundry of country

As per the Parmanand Singh in his work this reform is intended to create an ideology that the possibility of growth is dependent only on foreign capital and technology and by involvement of rich businessmen[1] 

The case of Delhi science forum[2] the supreme court observed that it is outside for the court to review a policy matter of parliament as it is the domain of parliament to lay down policies.

Justice N. P. Singh observed:

              The policy making in area of economy, finance, communications, trade, telecommunications and others have to be decided by parliament and any question and challenge to any such policy is to raise by the representatives of people in the parliament[3]

The court’s view was that the telecom policy of government is meant to improve the telecom service so as to benefit common man

Parmanand Singh in his conclusion pointed on the new policy of LPG that the laws relating to labour are not updated so as to compatible with the growth. it will be just only if it is in tune with constitutional mandate to benefit the masses. He also referred this policy as a illusion which will be moulded by politically dominant person to satisfy their personal comfort and the social justice will not be provided to the impoverished masses[4]

The author conveyed that the reality of economic policy is that Indian state is controlled by the international economic institutions through market and state, and the social, economic and political Justice as enshrined in our constitution is not taken into consideration and this policy without sufficient change in law will affect the poor and middle class rather to benefit them.

Globalization in USA

America also faced various economic disparity due to the globalization especially the loss of jobs and the disparity among the society between the middle class and the top ten percent of American society who have taken greater advantage of globalization[5]

The main cause for change in political dimensions of the country and the emergence of new parties and movement was “the Failure of representation” of the voters who feel ill treated  and unrepresented by the dominant parties the other cause was the “Lack of Compensation” to those who are affected by the globalization such as the labour who lose their jobs[6]

Hence the impact of globalization can be assessed from these developed countries and here it appears that these countries also failed to do equality in distribution what they gain by the foreign investors which led to change in political structure in these countries.

The current event of custodial death of a black person also reflects the ill treatment they are facing which led to a widespread protest not only in USA but also in other countries which is going to affect the political dimension of USA in the upcoming president election.

Law and Justice

Indian judicial process also have changed with the adoption of globalization as the incorporation of new chapter in code of criminal procedure, 1973. Chapter 21A (plea bargaining) was introduced in our criminal jurisprudence through the Criminal Law (Amendment) Act, 2005

Plea Bargaining is an American concept originated in America during 19th century which was a successful concept to avoid delay in criminal proceeding. By this huge numbers of cases were never tried in court and the Malimath committee report, 2003 recommended to introduce a system of plea bargaining for early disposal of cases and reduce the burden of court[7]  

It is not just the law which get affected by the globalization but also the apex court also changed the fundamental jurisprudence in dealing with global matters.

As professor Upendra Baxi in his article pointed out the double standard followed by the supreme court in dealing with the globalized and non-globalized persons which created a “wall of difference” between citizens that how justice is served differently taking in consideration extraneous consideration. He pointed out many judicial decisions in which this dual standard was reflected and the fundamental rights of the citizens were compromised either it be the Narmada dam construction or the Bhopal gas tragedy in both the cases the affected were not provided with adequate compensation and the proper rehabilitation and settlement was not taken care of the court reflected different approach in these cases such as the union carbide was granted full immunity from criminal charges and the compensation was also reduced to a very low than what the government computed as it is the fact that the government computed US $3 billion which was reduced to $470 million by the court and this way the court given a message that we are taking care of foreign entities operating in our country[8] 

prof. baxi termed this swift in judicial action as “structural adjustment” by the apex court he observed that in the case of narmada bachao andolan “the enforced evacuees stand denied all rights of constitutional due process, including access to their erstwhile meager belongings. The bulldozers remove the last sight of their existence as documented citizens; all evidence of title and occupation -including the only passport they possess by way of pattas, their inchoate title deeds, and prominently their ration cards stand maliciously and wantonly destroyed.[9]

The apex court while dealing with the cases of contempt in some cases take a lenient view and in a case of Gujarat riot take a somewhat different action which was also noted by the prof. baxi he observed that the supreme court take a lenient view in case of narmada bachao andolan against Arundhati Roy an activist marshalling the power of international union of journalists though the case fall under contempt jurisdiction of apex court but in case of Zahira Sheikh the witness and victim of best bakery case the court was harsh on her and this way revictimized her[10]

His view was that these decisions created a “wall of difference” between the globalized and de-globalized Indian citizens and this shows not just dual standard of justice but multiple standards of access to Justice[11]

The globalization is a multidimensional concept which cannot be restricted to goods, services, capital and labour but it goes beyond that and its effects are also multidimensional different on different sector.

From this approach the legal systems in various countries have a variety to learn from each other both in reference to institutional design and emergence of substantive laws. the comparative constitutional law is an important field to learn from the experiences of other countries it will be very helpful as the globalization leads to growth of new legal challenges to the countries such as the commercial disputes that arose between private parties located in different countries hence the international trade law and the investment law have become quite prominent in legal exchanges as well as education[12]  

Justice K.G. Balakrishnan prompted the need of strengthening our domestic legal  and regulatory infrastructure it was felt due to the collapse of many financial institutions in recent times he noted that the retention of stringent government controls over the banking sector has reduced the impact of the crisis in India though it is true that the liberalization and privatization has led to widening of many sectors such as banking, telecommunications, information technology, media broadcast etc. and this  created many jobs, an environment of competition and availability of choices to customer is made out but at the same time this widening has created a regulatory gaps and reflected the loopholes which needs to be addressed through establishment of independent regulatory agencies[13]      

With reference to the economic reforms Justice Balakrishnan pointed that many economists have argued that “the progressive financial sector reforms have only benefitted the traditional elite sections of the society and that the trickle-down benefits for the masses have been negligible. Some have even argued that the forces of economic globalization have actually widened the existing socioeconomic inequalities.”[14]

The example of such effect can be seen from the rapid migration from rural to urban. People migrating to metropolitan cities such as Delhi, Mumbai, Bangalore, Hyderabad etc. where large scale expansion in service sector created high salary jobs for qualified professionals as well as low salary jobs in the informal sector.[15]

It reflects that the growth was centred to the metro cities or to the capital region of different states which leads to huge migration from countryside to cities every year which suggests that economist were right in saying that it largely benefits the elite class as these decision to setup industry was also politically motivated and it also reflects the capitalist state which provides facilities in these region only due to which every year not just the working class migrates to such cities but also those for higher

In the current scenario of the global epidemic COVID-19 the huge level of migration that can be seen in India cannot be seen elsewhere and the government also fail to provide satisfaction to the migrant labour to either stay where they are or to provide them timely transportation facility which in turn again affected the poor masses of our country

These kinds of epidemic such as COVID-19 are best example of effects of globalization as how far this epidemic spread in almost all the countries on the globe which was an impossible act without globalization. the world had already faced such kind of epidemic which started from one region of a country and then largely affected the globe Spanish flu is one such epidemic.

The land of poor farmers was taken in the name of development which then sold to the businessman who made huge profit from the lands and leave the farmer in bad condition also the compensation paid to the farmers for their land was inadequate and was not utilized by the farmer because of lack of education it was truly reflected by the Arundhati Roy in Narmada Bachao Andolan in her book “The Greater Common Good” she said “ a cash compensation, to be paid by an Indian government official to an illiterate tribal man (the women get nothing) in a land where even the postman demands a tip for a delivery most tribal people have no former title to their land and therefore cannot claim compensation anyway. Most tribal people or let’s say most small farmers- have as much use of money as a Supreme Court judge has for a bag of fertilizer.”[16]

Our legal system also follows international standard to resolve conflict such as alternative dispute resolution mechanism which is largely focuses on the amicable settlement of dispute which is good for contractual relations to survive as it is usually difficult for traditional courts to have jurisdiction on such matters involving different countries and different laws governing the parties in such cases it os better to follow the universal system followed in corporate sector.

These ADR techniques includes Arbitration, Conciliation, Mediation and Lok Adalat

In arbitration the parties not only have the right to choose the place of jurisdiction but also the laws to be applicable as well as the arbitrator also appointed by the parties. In these systems a problem resolving approach is followed rather than a right based approach.

With respect to other legal principles sometimes when some conflict of laws arises the domestic courts looks in to the international instrument to interpret the statute this trend is more frequently used in cases pertaining to interpretation of constitution especially the international instrument ideas from which are borrowed in new constitutions such as the United Nations Charter and the Universal Declaration of Human Rights (UDHR), The  European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR), International Covenant on Civil Political Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR)[17]

The incorporation of constitutional features such as the Bill of Rights, Judicial Review over legislation, the due process and equal protection of laws are all impact of globalization on law[18]

The development in cyber space and information technology also initiated various challenges to the law frame of our country in which various issues pertaining to jurisdiction, enforcement supervision arose for which there was need of a law required. It was in the year 2000 the parliament passed the information technology act[19] which created many offences in the cyber space but the mens rea a necessary element of crime was absent in this provision creating offences also their was vagueness in the definition of various terms used in the statute which are also contrary to criminal jurisprudence which says that the law defining an offense must be clear and specific.

The information technology act was also called as a hasty legislation just because of the many vagueness in the act which needs to be clarified though the act was amended by the information technology (amendment) act 2008 and the information technology (Intermediary guidelines) Rules, 2011 also clarifies the law. The courts also interpreted the law also struck down the ambiguous provisions in the Act in case of Shreya Singhal v. Union of India[20] the apex court struck down section 66A of the IT act.

The safe harbour regime from European union law of commerce was also incorporated under section 79[21] of the Information technology act which provides conditional immunity to the intermediaries in certain cases. The purpose behind granting such an immunity was to protect those who have no fault in such activity though they act as just a facilitator as imposing liability in such cases will not only affect the investment in such technology but also affect the growth in this field.      

Conclusion

The globalization flooded the countries with labour, capital, goods, services and technology by which various challenges emerged and to overcome those issues the countries are learning from the experience of those who was previously involved in it that can be seen in the reception of laws from different countries. Hence in this era it is difficult to live in isolation because of interdependence of each other but at this time of Covid 19 when we are experiencing the side effect of globalization we are trying to restraint us from interdependence and to become self-reliant through the “AATMNIRBHAR BHARAT” an initiative by Indian government to promote use of country made products and services.

[1] Parmanand Singh, State, Market and Economics Reforms, XVIII Delhi Law Review (1996), pp.100-110 Available at lawfaculty.du.ac.in/files/Delhi Law Review. (Last visited on 31/05/2020)

[2] Delhi Science Forum v. Union of India (1996) 2 SCC 405.

[3] Id. at 412 also referred in supra note1.

[4] Supra note 1 p.110.

[5] Jeffry Frieden, “The political economy of the globalization backlash: sources and implications”, Harvard University, presented at the annual meetings of the American Economic Association, January 2018

[6] Id. at p.14-18.

[7] Manmeet Singh, “Plea bargaining in Indian legal system” available at http://www.legalserviceindia.com (Last visited on 01/06/2020)

[8] Upendra Baxi, Dual Standards of Justice Since Globalization, reported at http://www.bhopal.net/dual-standards-of-justice-since-globalisation-prof-upendra-baxi/(2006).

[9]   Id.

[10] Id.

[11] Id.

[12] CJI hon’ble Mr. K.G. Balakrishnan, “Justice in the 21st century: The challenge of globalization” Introductory note for the plenary session at the Qatar Law Forum, (Doha, Qatar-May 29-31,2009) available at www.delhihighcourt.nic.in/library/articles/Justice%20in%20the%2021st%20century%20-%20The%20challenge%20of%20globalisation.pdf. (last visited on 25/05/2020)

[13] Id. at p. 3.

[14] Id. at p.4.

[15] Id.

[16] Roy Arundhati, The Greater Common Good. Bombay: India Book Distributer (Bombay) Ltd.,1999.

[17] Bruce Ackerman, The Rise of World Constitutionalism, 83 University of Virginia Law Review 771-797 (1997) also referred in supra note12 at p.10.

[18] Supra note12.

[19] The Information Technology Act, 2000. In short the “IT ACT”

[20] AIR 2015 SC 1523.

[21] Information Technology Act, 2000, §79: “Exemption from liability of intermediary in certain

cases.–

(1) Notwithstanding anything contained in any law for the time being in force but subject to

the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any thirdparty

information, data, or communication link hosted by him.

(2) The provisions of sub-section (1) shall apply if–

(a) the function of the intermediary is limited to providing access to a communication

system over which information made available by third parties is transmitted or temporarily

stored; or

(b) the intermediary does not–

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act

and also observes such other guidelines as the Central Government may prescribe in

this behalf.

(3) The provisions of sub-section (1) shall not apply if–

(b) the intermediary has conspired or abetted or aided or induced whether by threats or

promise or otherwise in the commission of the unlawful act;

(c) upon receiving actual knowledge, or on being notified by the appropriate Government

or its agency that any information, data or communication link residing in or connected

to a computer resource controlled by the intermediary is being used to commit

the unlawful act, the intermediary fails to expeditiously remove or disable access to

that material on that resource without vitiating the evidence in any manner;

Explanation — For the purpose of this section, the expression ‘third-party information’

means any information dealt with by an intermediary in his capacity as an intermediary.”