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TeLawgram

TeLawgram (Week 3)

Hello! This past week, we’ve seen a number of legal updates, ranging from the Delhi High Court issuing a notice to the Centre in the same sex marriage plea, to Bangladesh passing a law increasing the maximum punishment for rape from life imprisonment to death penalty.
Enjoy our carefully curated content! Happy Reading!

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 3

India
International
CfPs and Seminars
Miscellaneous

India

PIL requesting the simplification of language in legal instruments filed in the SC

On 15th October, the Supreme Court issued notice in a PIL requesting the employment of plain English in government orders and notifications. The petition finds its premise in Articles 14, 21 and 39A of the Constitution, which, when read conjunctively guarantee the right to justice. The petition emphasised the need for increased awareness, which according to the petitioner, could only be achieved through limiting the use of jargons and simplifying languageThe law is to serve the common man and the petition argues that the use of simple language in legal instruments would provide every individual a deeper understanding of the rights and remedies that are guaranteed by the law.  

Suggested readings:

  1. The PIL can be found here.
  2. David Mellinkoff, The Language of the Law (1963). 
  3. Richard Wydick & Amy Sloan, Plain English for Lawyers (6th ed., 2019). 
  4. Carl Felsenfield, The Plain English Movement, 6 Can. Bus. Law Journal 408 (1982). 
  5. Robert Benson & Joan Kessler, Legalese v. Plain English: An Empirical Study of Persuasion and Credibility in Appellate Brief Writing, 20 Loy. of L.A.  L. Rev. 301 (1987).  
  6. Michael Friman, Plain English Statutes – Long Overdue or Underdone?, 7 Loy. Consumer L.Rev 103 (1995). 

Bombay HC passes injunction in favour of Parle   

The Bombay High Court passed an injunction in favour of the Parle Group, restricting the Future Group from using product packaging similar to Parle. Both Parle and Future manufacture and sell biscuits and other confectioneries.  In September, Parle came across Future’s products, namely “CrackO”, “Kracker King” and “Peek-a-Boo” which had labels identical to its products – “Monaco”, “Krackjack” and “Hide & Seek”.  

Since Future was using packaging similar to Parle, the Parle Group brought an action for infringement of copyright and passing off. For an injunction to be granted, three requirements must be fulfilled. First, there must be a prima facie case. Second,  irreparable injury must be suffered by the party seeking relief. Third, the grant of an injunction must not cause inconvenience to either partyThe Bombay HC held that there was a prima facie case to grant an injunction since the use  of similar packaging could result in irreparable damage to Parle. The Court Commissioners were directed to keep Future’s products under seal. 

Suggested readings:

  1. The order can be found here.
  2.   Sabreen Hussain, The ‘Magical’ Conundrum: ITC Limited v. Nestle India Limited (July 12, 2020), http://blog.ciprnuals.in/2020/07/the-magical-conundrum-itc-limited-v-nestle-india-limited/.  
  3.  Eashan Ghosh, What We Understand and Imagine Dynamic IP Injunctions To Be (Aug. 15, 2020), https://spicyip.com/2020/08/what-we-understand-and-imagine-dynamic-ip-injunctions-to-be.html
  4. Aditya Swarup, The Prima Facie Standard for Interim Injunctions in India, 4 Nat’l L.U. Delhi Student L.J. 20 (2017).
  5.  John Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L. Rev. 525 (1978). 

Madhya Pradesh HC rules that the ban on export of PPEs is a matter of policy 

The Ministry of Commerce and Industry, over the past six months has issued several notifications regarding export policy, exercising its powers under s.3 of the Foreign Trade Development and Regulation Act, 1992. The notifications restricted the export of certain categories of Personal Protective Equipments (PPEs) due to their shortage within the country.

Recently, the Madhya Pradesh High Court heard a writ petition challenging the validity of the ban on the export of PPEs. The petitioner argued that the PPEs he wanted to supply to the United States were manufactured in China. Hence, there was no need to export the PPEs from India for profits as the exports  are based on Merchant Trading Transaction (MTT) contracts. Since there would be no effect on the stock of PPEs in India, the ban on MTT contracts dealing with PPEs would serve no purpose and the ban, therefore violates Article 19(1)(g) of the Constitution. The Madhya Pradesh High Court found that there was no absolute ban on MTT contracts and the ban was restricted to certain categories of PPEs. Therefore, the Court held that the ban was constitutional as it was a reasonable restriction on trade to achieve a legitimate state aim. 

Suggested readings:

  1. The judgement can be found here
  2. The Foreign Trade Policy can be found here.
  3. Siddharth Aathreya, Are COVID-19 Related Trade Restrictions WTO Consistent? (Apr.25, 2020), https://www.ejiltalk.org/are-covid-19-related-trade-restrictions-wto-consistent/
  4.   Caroline Glöckle, Export restrictions under scrutiny – the legal dimensions of export restrictions on personal protective equipment (Apr.7, 2020), https://www.ejiltalk.org/export-restrictions-under-scrutiny-the-legal-dimensions-of-export-restrictions-on-personal-protective-equipment/

Kerala High Court calls for stringent actions against investigating officers and media platforms for leaking extrajudicial statements

In a recent order passed by the Kerala High Court while considering the bail application in the sensational case of Jollyamma Joseph v State of Kerala, Justice P.V. Kunhikrishnan called for strict actions against leaking of extrajudicial confessions.

The case, infamously known as the Koodathayi Cyanide Murders, had drawn considerable media and public interest.  The prime suspect, Jollyamma Joseph, has been accused of 6 murders, and the present bail application was only for one out of the six murders that she has been charged with The single-judge bench, while allowing her bail application, observed that it had become the general trend to leak extrajudicial statements such as the confessional statements to the media, especially in sensational cases. The Court, by relying on the case of Murukeshan v State of Kerala, reiterated that when a matter is sub-judice, no police officer has the right to leak information regarding the outcome of the investigation, until the final report is eventually filed before the Court. Justice Kunhikrishnan, as a concluding remark, further held that publication of such statements in the media would prove to be perilous. In the instance of extrajudicial statements not being admitted in the Court of law, the general public might suspect the credibility of the judicial system.The Court, therefore, warned that if the directions are violated, either by the investigating officers or the media, stringent actions will be taken against them.

Suggested Readings

  1. Kerala High Court Order can be found here
  2. Delhi High Court Order with a similar stance can be found here
  3. Sastry, V., 2019. Influence Of Trial By Media On The Criminal Justice System In India, Ph.D. Walden University.
  4. Dr. Sumayya H, Media trial and Indian legal system,6 International Journal of Law 37 (2020). 

Supreme Court rules that the testimony of the related witness if found truthful can form the basis for conviction

The Supreme Court in the criminal appeal of Karulal & Ors v The State of Madhya Pradesh has held that the testimony of a related witness can form the basis for conviction if found to be truthful.

The appeal challenged the judgment of the Madhya Pradesh High Court which approved the conviction of the appellants under Sections 148, 302 read with Section 149 of the IPC. The appellants pleaded false implication as  there existed an old enmity with the deceased’s family. Hence, they argued that  the testimonies of  family members who were prime eyewitnesses in the matter must not be admitted. The Madhya Pradesh High Court had rejected the appellants’ plea to discredit the eyewitnesses.

When the matter was taken up before the Supreme Court, a three-judge bench comprising Justice N.V. Ramana, Justice Surya Kant and Justice Hrishikesh Roy considered the law on the evidentiary value of related witnesses in detail. The Court upheld the conviction by the Madhya Pradesh High Court and ruled that a history of bad blood establishes a clear motive for the crime. It was also clarified that  if the witnesses are otherwise trustworthy, past enmity by itself would not discredit any testimony.

Suggested Readings

  1. The Supreme Court judgement can be found here.
  2. Sidney S. Bobbe, Uncontradicted Testimony of an Interested Witness, 20 Cornell L.Rev 33 (1934) , 
  3. Ritika Goyal, Inimical Witnesses: Can Animosity Affect the Credibility of a Witness?(May 11, 2020), https://criminallawstudiesnluj.wordpress.com/2020/05/11/inimical-witnesses-can-animosity-affect-the-credibility-of-a-witness/.

Delhi HC issues notice to Centre on same-sex marriage pleas

Dr Kavita Arora and others,  filed a writ petition before the Delhi High Court seeking registration/recognition of same sex marriages by invoking the relevant provisions of the Foreign Marriage Act, 1969 and the Special Marriage Act, 1954. 

The case was filed after the authorities, under both these statutes refused to entertain the petitioners’ application for registration of marriage for they were same sex couples. Since there were no remedies of appeal to the said authorities under these statutes, they approached the High Court.

The petitioners, represented by advocates Dr Maneka Guruswamy and Ms Arundhati Katju, contended that both the Foreign Marriage Act and Special Marriage Act do not define the term marriage.  

The statutes only require couples to be of the permissible marriage age, and do not explicitly prohibit same sex marriages. Marriage under these two statutes does not rely on any customary law, and with particular reference to the Special Marriage Act, the petitioners  contend that the legislation was to permit marriages outside the customary laws. Therefore, registration/recognition must be allowed.

The Order passed by the two-judge bench consisting of Justice Rajiv Sahai Endlaw and Justice Asha Menon held that the petition undoubtedly contained merit and required due consideration. However, the Court observed that the tenets of marriage under the personal or customary, which prohibits same-sex marriage remains unchallenged.

Suggested Readings

  1. The Delhi High Court Order can be found here.
  2. Paras Sharma, The Unanswered Question of Same-Sex Marriages in India (Oct. 9, 2020), https://www.jurist.org/commentary/2020/10/paras-sharma-india-same-sex-marriage/.
  3. Vanita, R., 2010, Same-Sex Weddings, Hindu Traditions, and Modern India,  Tikkun, 25(4), pp.43-45.

International

Bangladesh Cabinet approves death penalty for rape

On Monday, Bangladesh’s Cabinet  approved instating the death penalty as the maximum punishment for those convicted of rape and sexual assault, through the Women and Children Repression Prevention (Amendment) Bill, amending Section 9(1) of the existing Prevention of Women and Children Repression Act 2000 . Previously, a life sentence served as the maximum punishment that a convicted person could receive. In an effort to oppose  the “government’s failure to provide security for women and the surge of rapes,” Bangladeshi lawmakers have passed this statute in response to recent protests across Bangladesh. The protests in Bangladesh erupted after a video of a group of men attacking, stripping, and sexually assaulting a woman went viral. Bangladeshi lawmakers are attempting to change the laws to hold more sexual abusers accountable. With mounting pressure from protests and civil unrest, Bangladesh is being forced to acknowledge that the country’s history of disregarding victims of sexual assault must end, and that its treatment standards for  survivors must be improved.

Suggested Readings:

  1. Click here to find a copy of the law.
  2.  Meenakshi Ganguly, Death Penalty Not the Answer to Bangladesh’s Rape Problem (Oct. 13, 2020), https://www.hrw.org/news/2020/10/13/death-penalty-not-answer-bangladeshs-rape-problem.
  3. Human Rights Watch, Bangladesh: Protests Erupt Over Rape Case (Oct. 9, 2020), https://www.hrw.org/news/2020/10/09/bangladesh-protests-erupt-over-rape-case.
  4. Monica C. Bell, Grassroots Death Sentences?: The Social Movement for Capital Child Rape Laws, 98 J. Crim. L. & Criminology 1 (2007). 
  5. S.B. Sinha, To Kill or Not to Kill: The Unending Conundrum, 24 National Law School of India Review 1 (2012), 

UN condemns Nigerian rape laws which allow castration of rapists

The UN High Commissioner for Human Rights, Michelle Bachelet, on Thursday, called on governments worldwide to strengthen their efforts to prevent rape and other forms of sexual violence, improve access to justice and reparations for victims and ensure prompt criminal investigations and prosecutions of perpetrators. The new law passed in the North-Western Nigerian state of Kaduna indicates  that men convicted of rape will face castration and a life sentence in prison, while anyone who molests a child under the age of 14 will face the death penalty. Women who molest children over 14 will have their fallopian tubes removed. Prior to this, the maximum sentence for rape in Nigeria was 21 years, or life imprisonment  for the rape of a child. Many activists in Nigeria have welcomed the bill and hope that the rising rates of rape in the country will be curbed. hoped for the curbing of the rise of rapes in Nigeria. Although surgical castrations are a controversial law,   a few countries have adopted it as a punishment for rape. Chemical castration is legal in Indonesia,  parts of Europe like Ukraine and Czech Republic, American states Alabama, California, Florida, Louisiana and Wisconsin.

Suggested Readings:

  1. Anifowose David Iyanuoluwa, An Overview of the Crime of Rape under the Nigerian Criminal Law, Sep. 2020, https://www.researchgate.net/publication/344326858_AN_OVERVIEW_OF_THE_CRIME_OF_RAPE_UNDER_THE_NIGERIAN_CRIMINAL_LAW_BY_ANIFOWOSE_DAVID_IYANUOLUWA.
  2.  Rape is wrong but death penalty, castration, not the answer: UN rights chief, UN News, (Oct. 15, 2020), https://news.un.org/en/story/2020/10/1075452.
  3. Rithu Krishna B R, Nigeria’s Kaduna Passes Law Allowing Castration of Child Rapists (Oct. 15, 2020),  https://libertatem.in/law/international/nigerias-kaduna-passes-law-allowing-castration-of-child-rapists/.
  4. Zachary E. Oswald, “Off with His __”: Analyzing the Sex Disparity in Chemical Castration Sentences, 19 MICH. J. GENDER & L. 471 (2013). 
  5. G. K. Goswami, Castration laws: Marching towards imperfect justice, 82 Medico-Legal J. 70 (2014).  https://www.researchgate.net/publication/262579903_Castration_laws_Marching_towards_imperfect_justice.
  6. Louisa Elsie Heathcote, Chemical Castration: Limiting an Absolute Human Right, 3 IKAT: Indonesian Journal of Southeast Asian Studies 201 (2020). 
  7. L.E. Weinberger et al., The Impact of Surgical Castration on Sexual Recidivism Risk Among Sexually Violent Predatory Offenders, 33 J. Am. Acad. Psychiatry & Law 16  (2005)., 

U.K. Supreme Court rules on law governing Arbitration agreements

The UK Supreme Court in a landmark judgement, Enka v. Chubb laid down the tests applicable under the English laws which govern an arbitration seated in London. The decision settles a much debated question of law that has produced conflicting Court of Appeal rulings and provides clarity for commercial parties who t choose London as their seat of arbitration.

The Supreme Court applied common law rules, mandating that the courts must first decide whether the parties have made an express choice of law  in  their  arbitration agreement. It was also held that in determining the applicable law, the courts should interpret the contract, including the arbitration clause, as a whole. In the absence of explicit specification of applicable law, the court should apply that law which is more closely connected with the main contract containing the arbitration agreement. This would follow the presumption that the parties intended the arbitration agreement to be governed by the same law as that of the contract. The court held that the law closely connected to the seat of arbitration would apply as a general rule. 

Suggested Readings:

  1. The judgement can be found here.
  2. Iurii Nikitin, UK Supreme Court clarifies approach to determining governing law of arbitration agreements (Oct. 12, 2020), https://www.fieldfisher.com/en/insights/uk-supreme-court-clarifies-approach-to-determining
  3. Mihaela Maravela, Enka v Chubb Revisited: The Choice of Governing Law of the Contract and the Law of the Arbitration Agreement (Oct. 11, 2020), http://arbitrationblog.kluwerarbitration.com/2020/10/11/enka-v-chubb-revisited-the-choice-of-governing-law-of-the-contract-and-the-law-of-the-arbitration-agreement/.
  4. Mihaela Maravela, Hold on to Your Seats, Again! Another Step to Validation in Enka v Chubb Russia? (May 5, 2020), http://arbitrationblog.kluwerarbitration.com/2020/05/05/hold-on-to-your-seats-again-another-step-to-validation-in-enka-v-chubb-russia/.

French court orders Google to negotiate with media outlets to display their news on its platform

The Paris Court of Appeals upheld an order of the French Competition Authority, which mandated Google to negotiate with French media outlets over payments to use the publishers’ news content. France was the first EU nation to ratify a ‘neighbouring right ’, a principle adopted by the European Parliament in a wide ranging Copyright Directive in 2019. According to the ‘neighbouring rights’ principle, newspaper agencies and other publishers must  be paid for displaying their content on search engines and social media platforms, as a form of copyright protection. The Competition Authority said Google’s practices “were likely to constitute ‘abuse of a dominant position’ ”. The French regulators insist that Google sit down for talks with publishers to finalise deals to detail display news snippets and other information on their search results. 

The decision comes amidst an international struggling news industry which is finding it hard to sustain quality journalism. Google is facing a growing international criticism for displaying news content free of cost. The search engine had earlier announced plans to spend $1 billion over three years to form partnerships with news agencies around the world to use their content. This case against Google in France is seen as a pivotal test of copyright of news among other EU nations. 

Suggested Readings:

  1. Autorité de la concurrence, Related rights: the Autorité has granted requests for urgent interim measures presented by press publishers and the news agency AFP (Apr. 09, 2020), https://www.autoritedelaconcurrence.fr/en/press-release/related-rights-autorite-has-granted-requests-urgent-interim-measures-presented-press
  2. Directive 2019/790, of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, 2019 O.J. (L.130) 92. 
  3. Brad Spitz, Press Publishers’ Right: the Court of Appeal of Paris upholds the Competition Authority’s order for Google to negotiate with the publishers (Oct. 14, 2020), http://copyrightblog.kluweriplaw.com/2020/10/14/press-publishers-right-the-court-of-appeal-of-paris-upholds-the-competition-authoritys-order-for-google-to-negotiate-with-the-publishers/. 

China introduces military style labour policy for Tibet replicating Xinjiang model

China introduced ‘Xinjiang’ type military style labour policy and training mechanism in Tibet, leading to further subjugation of the local population under President Xi Jinping. The labour policy involves government- set quotas and includes a focus on ideological training. It mandates farmers to undertake a centralized “military-style” vocational training, which aims to reform the conventional Tibetan thinking and includes work disciplinary training, laws in work spaces, and the Chinese language. 

Reports indicate that the militarized training regimen is being conducted by the People’s Armed Police drill sergeants, and Tibetan trainees dressed in military uniform. This policy is in pursuance of the ‘Farmer and Pastoralist Training and Labor Transfer Action Plan 2019-20’ which ultimately aims to enhance laborers’ sense of discipline to comply with national laws and regulations and work unit rules. The policies affect around 15% of the Tibetan population and is in line with China’s multi-year plan to eradicate deep poverty by the end of 2020. 

Suggested Readings:

  1. Adrian Zenz, Xinjiang’s System of Militarized Vocational Training Comes to Tibet (Sept. 22, 2020), https://jamestown.org/program/jamestown-early-warning-brief-xinjiangs-system-of-militarized-vocational-training-comes-to-tibet/
  2. Adrian Zenz, Beyond the Camps: Beijing’s Long-Term Scheme of Coercive Labor, Poverty Alleviation and Social Control in Xinjiang (Dec. 10, 2019), https://www.jpolrisk.com/beyond-the-camps-beijings-long-term-scheme-of-coercive-labor-poverty-alleviation-and-social-control-in-xinjiang/.
  3. Melvyn C. Goldstein, Cynthia M. Beall, The Impact Of China’s Reform Policy On The Nomads Of Western Tibet (last visited Oct. 16, 2020), https://case.edu/affil/tibet/booksAndPapers/Impact_China_Reform_Policy.htm

CfPs and Seminars

Call for Papers (India)

  • NLUD Journal of Legal Studies invites submissions on any legal issues of contemporary importance for Volume III of the journal. The deadline is January 10, 2021 
  • NLIU’s CBCL Blog invites submission on a rolling basis on contemporary issues relevant to the areas of corporate law, company law, securities law, insolvency law, banking law, capital markets, and securities.

Call for Papers (International)

  • Call for Papers for Volume 8 Issue II of the Groningen Journal of International Law, preferably on an international law issue in the context of COVID 19. The deadline is 15th November 2020

Seminars (International)

Seminars (India)

  • IMGL Virtual Conference, hosted by Nishith Desai and Associates, on 11th November, 2020. Please watch the space below for the link and other updates

Miscellaneous 

  • Online Volunteering Opportunity at the UN, “For individuals who wish to volunteer for peace and development”. For more details, please register here.

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