Categories
TeLawgram

03.10.20 – 10.10.20

Greetings! We are pleased to present ‘TeLawgram’, our new weekly segment focussing on events of legal importance – in India and elsewhere. For your ease, we will be providing a brief summary of events, as well as a reading list that explores different points of view. With TeLawgram, we hope to both inform readers and expand the debate. Feel free to peruse our Call for Papers and Webinars Section. Happy Reading!

Week 2

India
International
CfPs and Seminars

India

Decision on the Jurisdictions of Krishna and Godavari River Management Boards

An Apex Council headed by the Union Water Resources Minister decided that the Central Government will notify the jurisdictions of the KRMB and GRMB. Telangana’s request to refer the Krishna Dispute to an interstate tribunal was accepted in lieu of the State’s withdrawal of the case filed by it before the Hon’ble Supreme Court. Additionally, it was held that the Godavari dispute would be referred to a tribunal after both states sent formal requests to that end. The step to notify jurisdictions of both Boards will aid in regulating the supply of water.  

The Krishna dispute,  initially involved Andhra Pradesh, Maharashtra and Karnataka. Subsequent to its formation, Telangana became a party to the dispute. by virtue of being the fourth riparian to the Krishna river basin. It requested that the issue be adjudicated again as the State was not a party earlier. The second KWDT was accordingly extended and it was decided that there would only be redistribution between AP and Telangana.  This week’s decision marks a significant attempt towards resolving this contentious water sharing dispute, which has been under consideration since the State’s formation in 2014. The resolution of these disputes is important not only for its politico-legal significance but also for its far-reaching consequences on the ecology of the river basin area. 

Suggested readings:

  1. The Tribunal’s order can be found here. 
  2. Ramaswamy R. Iyer, Federalism and Water Resources, 29 Economic and Political Weekly 733 (1994). 
  3. Alice Jacob, The Interstate River Disputes: Some Recent Developments, 18 JILI 611 (1976). 

The Supreme Court and NEP make the case for multilingualism

The tussle between English and vernacular languages as the medium of instruction has existed since the Karnataka High Court’s decision in 1989. In 2014, the Supreme Court had held that imposing the local language or the mother tongue as the medium of instruction on children in primary school was unconstitutional. 

In a similar order this week, the Apex Court struck down the Andhra Pradesh Government’s order making English the medium of instruction for classes 1 to 6. 

This judgment is especially relevant in recent times with the announcement of the new National Education Policy (NEP). The Union, in its affidavit to the Court stated that it had issued orders to education boards in the country to begin implementing the NEP, which promotes the use of home language as the medium of instruction. The affidavit was filed as a response to the Court’s decision examining the children’s right to education in light of the AP government’s appeal. The court held that the imposition of the English language on children, would infringe upon the right to education guaranteed under Article 21A. The NEP has triggered the medium of instruction debate due to its promotion of multilingualism and the mother-tongue. 

Suggested Readings: 

  1. The NEP can be found here. 
  2. Carole Benson, The Importance of mother tongue-based schooling for educational quality, 2004 (UN Document Code: 2005/ED/EFA/MRT/PI/9) 

Cases:

  1. Decision by the Karnataka High Court – General Secretary, Linguistic Minorities Protection Committee v. State of Karnataka,  ILR 1989 Karnataka 457. 
  2. Decision by the Madras High Court – Tamil Nadu Tamil & English Schools Association v. The State of Tamil Nadu rep. by its Secretary to Government School Education Department,  2000 (2) C.T.C 344. 
  3. The petition before the Karnataka High Court – Associated Managements of Primary and Secondary Schools in Karnataka v. The State of Karnataka by its Secretary, Department of Education and Ors,  I.L.R. 2008 (Kar.) 2895.
  4. The 2014 decision of SC on appeal from the Karnataka High Court- State of Karnataka v. Associated Management of English Medium Primary & Secondary Schools, 9 SCC 485 (2014). 
  5. Other subject-relevant cases may be found here – Suprotik Das, Mother Tongue and the Right to Choose the Medium of Instruction in Primary Education: A Constitutional Basis (May 15, 2014). 

Madhya Pradesh High Court judgment on Unlimited Undertrial Time Periods

The Madhya Pradesh High Court while hearing a  bail application noted that an undertrial cannot be kept in jail for an unlimited period at the mercy of the prosecution. The Court noted that the applicant was incarcerated in 2016 and that the Court had no other option, but to allow the application for grant of bail . The court held the officers to be negligent,  while reprimanding them for justifying their actions by challenging the order sheets of the respective Trial Court. Further, the Court rejected the plea that the delay was because of the nationwide lockdown. The High Court’s decision has caused the revival of the discussion on the fundamental right of any accused to a speedy trial under Article 21 of the Constitution. This also brings to the forefront  a lapse in criminal procedure which has persisted for decades causing an upward spiral in the number of undertrial cases in the country.

Suggested Readings: 

  1. The MPHC decision can be found here. 
  2. Supreme Court Order – In Re: Speedy Trial of Undertrial Prisoners, W.P. (C) 749/2018
  3. Orissa High Court decision – CRLA/174/2009
  4. Niranjan Sahoo and Vivek Jain, Justice System in Crisis: The Case of India’s Undertrial Prisoners (August 2015). 

Delhi HC judgement on grant of bail in POCSO cases

Recently, the Delhi High Court explained the various factors to be considered while granting bail to an accused in a case registered under Protection Of Children from Sexual Offences Act (POCSO). Much like the Narcotic Drugs and Psychotropic Substances Act 1985,  Section 29 of the POCSO Act deviates from the general principles of criminal law as it imposes on the accused a  presumption of guilt. The rationale behind this presumption was the low conviction rate of those accused in cases of sexual offences against children. The Court in its judgement indicated that the presumption of guilt must not be the sole reason to reject bail applications for offences under POCSO. It is essential to determine the stage at which the presumption of guilt begins to operate against the accused, especially when a legislation departs from the general rule of presumption of innocence of the accused.  The Delhi HC noted that the presumption would only begin to operate when the prosecution had made out an ex facie case against the accused and laid down certain factors to be considered while granting a bail.

 While POCSO offences are viewed with a great amount of seriousness in our country, the court emphasized on the need to uphold cardinal principles of criminal jurisprudence while hearing bail applications in such cases. 

Suggested readings:

  1. The order is available here.
  2. Angad Kamath, Section 29 POCSO Act – From Guilty Presumptions to Proof of Guilt (Jun.3 2020), https://theproofofguilt.blogspot.com/2020/06/guest-post-section-29-pocso-act-from.html. 
  3. Kavya Lalchandani, Constitutionality of Reverse Onus Clauses Under POCSO Act (Jul. 13, 2019), https://criminallawstudiesnluj.wordpress.com/2019/07/13/constitutionality-of-reverse-onus-clauses-under-pocso-act/. 
  4. Rajya Sabha HRD Rep No.240, The Protection of Children from Sexual Offences Bill, 2011, https://www.prsindia.org/uploads/media/Protection%20of%20children/SCR%20Protection%20of%20Children%20from%20Sexual%20Offences%20Bill%202011.pdf (Dec. 21, 2011). 
  5. Aditendra Singh, Production of Evidence by the Accused at the Pre-Charge Stage: A Right or a Mini-Trial? (Apr.22, 2020), https://lawschoolpolicyreview.com/2020/04/22/production-of-evidence-by-the-accused-at-the-pre-charge-stage-a-right-or-a-mini-trial/. 

Supreme Court decision on Shaheen Bagh Protests 

On October 7th, a three-judge bench of the Supreme Court held that the protests at Shaheen Bagh  were unlawful. The interlocutors appointed by the Court reported that the protests caused inconvenience to commuters. Despite the peaceful nature of the protest, the Court relied on these reports and ruled that public places cannot be occupied for an indefinite period of time when it operated to the detriment of the public. The Court recognized that the right to dissent played an important role during the colonial times and emphasized that it forms an integral part of the democratic roots of India even today. The Supreme Court held that the protestors have the right to protest against a legislation (the Citizenship Amendment Act [CAA]) when it is sub-judice. However, the Court noted that the right to dissent is not absolute and Article 19 of the Constitution restricts it when it disrupts public order. 

Suggested readings:

  1. Amlan Mishra, Preventive Measures under CrPC: A Tool to Stifle Peaceful Protests? (Dec. 19, 2019), https://criminallawstudiesnluj.wordpress.com/2019/12/19/preventive-measures-under-crpc-a-tool-to-stifle-peaceful-protests/. 
  2. NUJS CLS, Constitutional Validity of S.144 : A Conundrum, (Sept. 20, 2020), https://wbnujscls.wordpress.com/2020/09/20/constitutional-validity-of-section-144-a-conundrum/. 
  3. The judgement is available here.
  4. The text of the CAA can be found here. 

Gujarat High Court finds Yatin Oza guilty of contempt. 

The Gujarat High Court found Yatin Oza, the President of the Gujarat High Court Advocates’ Association guilty of contempt of court. The court had initiated suo moto contempt proceedings against Oza in June 2020 for comments that he  made during a live Facebook conference regarding maladministration by the registry. Subsequently, Mr. Oza apologized for his comments. . However, the Gujarat High Court was not satisfied by Mr. Oza’s apology and continued the contempt proceedings against him. Earlier this week, the Court found Mr. Oza guilty of contempt and imposed a fine of Rs.2000 on him. The judgement is yet to be released by the Gujarat High Court and the sentence has been stayed until the appeal period lapses. If Mr. Oza defaults on payment, he will be imprisoned for a period of two months. 

Suggested readings:

  1. Swapnil Tripathi, Judgment convicting Prashant Bhushan for Contempt: Some Reflections (Aug. 25, 2020), https://thebasicstructure.com/2020/08/25/judgment-convicting-prashant-bhushan-for-contempt-some-reflections/#more-591. 
  2. Tanishka Goswami, In Re Prashant Bhushan: Two Cents On Contempt and Free Speech (Sept.1, 2020), https://lawschoolpolicyreview.com/2020/09/01/in-re-prashant-bhushan-two-cents-on-contempt-and-free-speech/. 
  3. V. Venkatesan, Prashant Bhushan and Suriya: A Search for Natural Justice in Non-Contempt Proceedings (Sept.25, 2020), https://lawandotherthings.com/2020/09/prashant-bhushan-and-suriya-a-search-for-natural-justice-in-non-contempt-proceedings/. 
  4. Chhavishree Somani & Shubham Mittal, Prashant Bhushan’s Case – Constructive Criticism or Contempt? (Sept.27,2020), https://thegclsblog.wordpress.com/2020/09/27/prashant-bhushans-case-constructive-criticism-or-contempt/. 
  5. Gautam Bhatia, Free Speech and Contempt of Court – I (Jun.8, 2014), https://indconlawphil.wordpress.com/2014/06/08/free-speech-and-contempt-of-court-i/. 
  6. Gautam Bhatia, Free Speech and Contempt of Court – II (Jun.13, 2014), https://indconlawphil.wordpress.com/2014/06/13/free-speech-and-contempt-of-court-ii/. 

International

EU court rules unrestricted surveillance of phone data as unlawful

The European Court of Justice has ruled that the unrestricted mass surveillance of phone data is unlawful. The ruling intends to curb surveillance measures adopted by several EU Member States. The petitioners are privacy advocates, challenging the extension of surveillance mechanisms adopted for protecting national interests by the governments of France, Belgium and Britain. 

The court ruled that the ‘Directive on Privacy and Electronic Communications’ is applicable to national legislations. This  Directive  precludes Member States from adopting legislations that allow providers of communication services to carry out indiscriminate retention of traffic data and location data. It mandates Member States to ensure confidentiality of communications and traffic data. The access to  phone and internet users’ data should only be for a strictly, limited period and when Member States face serious threats to national security. This threat should also be effectively reviewed by a court, to verify whether such a situation exists. 

Suggested Readings: 

  1. Court of Justice of the European Union, Press Release (Oct. 6, 2020), https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-10/cp200123en.pdf. 
  2. Directive 2002/58/EC, of the European Parliament and of the Council of 12 July 2000 concerning the processing of personal data and the protection of privacy in the electronic communications sector, (Directive on privacy and electronic communications) 2002 O.J. (L201) 37.
  3. Catherine Van de Heyning, Op-Ed: “La Quadrature du Net e.a. : balancing data retention with general interests and the right to security…again” (Oct. 8, 2020), https://eulawlive.com/analysis-la-quadrature-du-net-e-a-balancing-data-retention-with-general-interests-and-the-right-to-securityagain-by-catherine-van-de-heyning.

US Supreme Court rejects appeal from clerk who refused to register gay marriage

The United States Supreme Court dismissed an appeal by a former Kentucky clerk Kim Davis, who was incarcerated in 2015 for refusing to issue marriage licenses to same-sex couples. The Court, while declining to hear the case, remarked that the present case was a ‘stark reminder of the  consequence’ of the 2015 landmark decision in Obergefell v Hodges which legalised gay marriage. Justices Clarence Thomas and Samuel Alito stated that, while choosing to validate same- sex marriage, which is a novel constitutional right, the decision has ‘created problems that only the court can fix’. 

The court remarked that same-sex marriages undemocratically transgress an individual’s religious liberty, which is explicitly protected by the First Amendment, and while Ms. Davis might have been ‘one of the first victims of the decision, she certainly will not be the last’. The court, bound to follow the precedent in the Obergefell decision, dismissed the petitioner’s contention on religious liberty.

LGBTQ campaigners denounced the comments as they fear the present case is an indication and warning of differential treatment of gay marriages by the Court. Following the nomination of the conservative Indiana federal judge Amy Coney Barrett to the Supreme Court, experts believe the judiciary might reconsider the Obergefell decision.

Suggested Readings: 

  1. Lucas Acosta, Amy Coney Barrett is an Absolute Threat to LGBTQ Rights (Sept. 22, 2020), https://www.hrc.org/news/amy-coney-barrett-is-an-absolute-threat-to-lgbtq-rights. 
  2. Darnell Weeden, Marriage Equality Laws Are A Threat To Religious Liberty (last visited Oct. 9, 2020), https://law.siu.edu/_common/documents/law-journal/articles-2017/winter2017/6%20-%20Weeden%20Proof.pdf. 
  3. Chris Schmidt, Religious Liberty and Resistance to Same-Sex Marriage (Sept. 1, 2015), http://blogs.kentlaw.iit.edu/iscotus/religious-liberty-and-resistance-to-same-sex-marriage. 

Japan court orders payment of damages to Fukushima nuclear accident victims

The Sendai High Court has ordered the Japanese Government and Tokyo Electric Power Company (TEPCO), the operator of the Fukushima nuclear plant, to pay 1 billion yen ($9.5 million) in damages to victims of the 2011 disaster. Affirming the decision and rationale of a Fukushima district court, the Sendai High Court made its decision on Wednesday based on the following grounds: foreseeability of a major tsunami, countermeasures that could have been implemented, and the sufficiency of the government’s compensation levels. Refuting the government’s argument that the tsunami and nuclear disaster were not foreseeable, the High Court determined that the nuclear disaster could have been prevented if the government had ordered the implementation of additional safety measures after a 2002 earthquake assessment, which stated that waves higher than 15 meters were possible in cases of a tsunami. This is the first case in which a High Court has acknowledged the government’s responsibility for the disaster.

Suggested Readings:

  1. Paul Jobin, The Fukushima Nuclear Disaster and Civil Actions as a Social Movement, 18 ASIA-PACIFIC JOURNAL JAPAN FOCUS (May 1, 2020), https://apjjf.org/-Paul-Jobin/5392/article.pdf.
  2. Feldman, Eric A., Compensating the Victims of Japan’s 3-11 Fukushima Disaster (2015). Asian-Pacific Law & Policy, Journal Vol. 16, P. 127, 2015, U. PA. L. REV, Public Law Research Paper No. 16-7, Available at SSRN: https://ssrn.com/abstract=2738214.
  3. World Nuclear Association, Liability for Nuclear Damage, https://www.world-nuclear.org/information-library/safety-and-security/safety-of-plants/liability-for-nuclear-damage.aspx.
  4. Japanese court opens government and TEPCO to further Fukushima claims, Reuters. (Sep. 30, 2020), https://in.reuters.com/article/japan-fukushima-court/japanese-court-opens-government-and-tepco-to-further-fukushima-claims-idINKBN26L2M6
  5. Sayuri Umeda, Japan: Legal Responses to the Great East Japan Earthquake of 2011, The Law Library of Congress, https://www.loc.gov/law/help/japan-earthquake/Great-East-Japan-Earthquake.pdf

Complaint filed before a US federal court seeking constitutional review of Trump’s sanctions against the ICC

On October 1st, the Open Society Justice Initiative, together with four law professors, filed a complaint before a US federal court alleging violations of plaintiffs’ rights under the US constitution, including freedom of speech. 

A sweeping executive order issued on June 11 by President Donald Trump declared a national emergency and authorized asset freezes and family entry bans that could be imposed against certain ICC officials and others assisting them. On September 2, the Trump administration announced that the US had designated the ICC prosecutor and another senior official within the court’s Office of the Prosecutor for sanctions. The Trump administration had repeatedly threatened action to thwart ICC investigations in Afghanistan and Palestine into conduct by US and Israeli nationals.

Suggested Readings:

  1. Find a copy of the complaint here. 
  2. Emily Beeken, The Futility of Trump’s Sanctions Against ICC Investigators, and the Need for Accountability, JURIST – Student Commentary, (Jul. 30, 2020), https://www.jurist.org/commentary/2020/07/emily-beeken-trump-sanctions-icc/
  3. ELDH, European lawyers protest against US sanctions on the International Criminal Court, (Sep. 11, 2020), https://eldh.eu/en/2020/09/11/european-lawyers-protest-against-us-sanctions-on-the-international-criminal-court/.
  4. Open Society Justice Initiative, Open Society Justice Initiative Sues Trump Administration over International Criminal Court Executive Order, (Oct. 01, 2020), https://www.justiceinitiative.org/newsroom/open-society-justice-initiative-sues-trump-administration-over-international-criminal-court-executive-order.

UK court reverses judgement in Venezuela gold controversy

In a dispute over who is entitled to almost USD $2 billion in gold warehoused at the Bank of England, the English Court of Appeal overturned an earlier High Court ruling on whom the UK officially recognizes as Venezuela’s president. The decision is the latest in a multi-year dispute as to who is the president—Nicholás Maduro or Juan Guaidó. The competing claimants both assert they are entitled to give instructions to the Bank of England on behalf of the Central Bank of Venezuela.  In May 2020 the Banco Central de Venezuela (BCV) sued the Bank of England to regain control over the gold to assist the country with COVID-19-related expenses. However, in July the English High Court held that Guaidó’s appointment was an executive act of the state of Venezuela, “which the English court would recognize and not question.”

Monday’s decision, however, granted the Maduro-backed BCV appeal, sending the case back to the High Court to determine a “more definitive answer” to whether:

(1) The UK recognizes Mr. Guaidó as President of Venezuela for all purposes and therefore does not recognize Mr. Maduro as President for any purpose; or

(2) The UK recognizes Mr. Guaidó as entitled to be the President of Venezuela and thus entitled to exercise all the powers of the President but also recognizes Mr. Maduro as the person who does in fact exercise some or all of the powers of the President of Venezuela.

Suggested Readings:

  1. Find a copy of the judgement here. 
  2. Ricardo Vaz, Venezuela Sues UK over Frozen Gold Reserves, Loses CITGO Appeal, (May. 20 2020) , https://venezuelanalysis.com/news/14880
  3. Ricardo Vaz, Venezuelan Gov’t Wins Appeal on Gold Reserves Held in the UK, (Oct. 5, 2020), https://venezuelanalysis.com/news/15014
  4. James Beeton, High Court denies Nicolás Maduro access to $1 billion in Venezuelan gold held by Bank of England, (Jul. 24, 2020), https://internationalandtravellawblog.com/2020/07/24/high-court-denies-nicolas-maduro-access-to-1-billion-in-venezuelan-gold-held-by-bank-of-england/
  5. Rafael Macía Briedis, The Venezuelan Presidential Crisis: A Response, Int’l J. Const. L. Blog, (Mar. 14, 2019), http://www.iconnectblog.com/2019/03/the-venezuelan-presidential-crisis-a-response/ 
  6. The Order of this case is similar to the issues in the case of Pakistan v. Prince Muffakham Jah. 
  7. A case comment regarding the above mentioned case can be found at 36 CAN. B. REV. 549 (1958). 

CfPs and Seminars

Call for Papers

  •  Language, Literature, and Interdisciplinary Studies (LLIDS), an open access academic e-journal, invites original and unpublished research papers and book reviews from various interrelated disciplines including, but not limited to, literature, philosophy, psychology, anthropology, history, sociology, law, ecology, environmental science, and economics. Deadline for submissions:  October 20, 2020. 
  • The Editorial Board of the Cambridge International Law Journal is pleased to invite submissions for its tenth anniversary volume (issues to be published in June and December 2021.) Submissions are to be made by 11:59 pm (BST) on Sunday, 25 October 2020. 
  •  The Call for Abstracts for Issue no. 3 of the Yearbook of International Disaster Law, published by Brill, is now open. The Yearbook welcomes abstracts related to both its ‘Thematic Section’ devoted to “Health and Disasters” and its ‘General Section’ which addresses any topic relevant in the area of international disaster law. Deadline for submissions: 31 October 2020
  • The Organizing Committee of 3rd Indian Law Conclave  invites original abstracts of research papers and case studies on selected themes for presentation at Indian Law Conclave 2020. 3rd Indian Law Conclave is a two day National Conclave organized by Adhrit Foundation – a member organization of the Alexis Group, Online from 31st October – 1st November, 2020.
  • Papers are invited for an online conference series on Contract Law in Common Law Countries: A Study in Divergence.  This conference series is organised jointly by London Centre for Commercial and Financial Law (LCF) and Jindal Global Law School, India. Abstracts of up to 500 words should be submitted for review by 15 December 2020. 

Webinars

  • The Glasgow Centre for International Law and Security has recently launched a new webinar series. In the testing times of pandemic, the series aims to provide an online platform for forward-thinking debates on the most pressing issues and challenges in international law and global affairs. All webinars will be held on Wednesday afternoons at 3pm, and are free and open to the public. 
  • Oxford Seminars in Jurisprudence is an online forum for discussion of new ideas and fresh perspectives in the philosophy of law. This forum is one way to carry on a conversation about the nature and grounds of law, the understanding of fundamental legal concepts, the analysis of important areas of law, and much more.  Once a month 
  • The London Centre for Commercial and Financial Law (LCF) is hosting their fifth annual conference on The Future of the Commercial Contract in Scholarship and Law Reform. Welcome Address is by Professor Mads Andenas QC LCF, University of Oslo and Institute of Advanced Legal Studies and the keynote speaker is Professor Franco Ferrari, New York University. Friday 16 October 2020.

Leave a Reply

Fill in your details below or click an icon to log in:

Gravatar
WordPress.com Logo

You are commenting using your WordPress.com account. ( Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. ( Log Out /  Change )

Cancel

Connecting to %s