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TeLawgram

18.10.20 – 23.10.20

Hello! This past week, we’ve seen a number of legal updates, ranging from the Jharkhand HC ruling that the “right to equal pay” is a cardinal principle of service jurisprudence, to the US DOJ charging Russian military officers for worldwide cyberattacks.
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 4

India
International
CfPs and Seminars
Miscellaneous

India

Jharkhand HC relies on DPSPs to rule that the “right to equal pay” is a cardinal principle of service jurisprudence

On 21st October, the Jharkhand High Court heard a writ petition regarding employment and ruled that the right to equal pay is firmly entrenched in service jurisprudence. The petition was filed by a body corporate under the Food Corporation of India Act to quash an award of the Central Government Industrial Dispute Tribunal reinstating the workman. The workman was a Hindi typist appointed by the body corporate on a casual basis. The workman’s employment was never regularized despite the fact that he was doing work similar to the regularized typists. The petitioner argued that the workman’s employment was not regularized because he did not meet the requirements prescribed by the Food Staff Regulations. The respondent argued that the workman had applied for the vacant post of a typewriter and his employment was still not regularized. The respondent emphasized on the fact that the workman had been in service for two and a half decades. 

The Jharkhand HC found that there was no difference between the respondent’s work and the work of regularized typists. Relying on Article 39(1)(d) of the Constitution, the Court dismissed the writ petition, upheld the Tribunal’s order and held that the principle of ‘equal work for equal pay’ formed a fundamental principle of service jurisprudence.

Suggested readings:

  1. The judgement can be found here
  2. J.K Mittal, Casual Labour and “Equal Pay for Equal Work”, 28 JILI 260 (1986). 
  3. P. Pavani, Indian Supreme Court and Worker Oriented Industrial Jurisprudence, 27 JILI 128. 
  4. Rishika Sahgal, Equal Pay for Equal Work? Flaws in the Indian Law (Dec.8, 2019), https://ohrh.law.ox.ac.uk/equal-pay-for-equal-work-flaws-in-the-indian-law/
  5. S. Fredman, Reforming Equal Pay Laws, 37 Industrial L.J 193 (2008).

Gauhati HC issues notice to the Centre on PIL to appoint the National Council for Transgenders as per Section 16 of the Transgenders Act

The High Court of Gauhati has issued a notice directing the Centre to take necessary steps to appoint the National Council for Transgenders according to section 16 of the Transgender Person (Protection of Rights) Act, 2019. The Order comes in light of the Public Interest Litigation filed by the All Assam Transgender Association earlier this year.

The PIL has received mixed responses from the community as it seeks relief from the provisions of a legislation that is being constitutionally challenged. The Act was enacted in furtherance of the landmark judgment by the Supreme Court in NALSA v Union of India.

The primary contention of the petitioner is that the members of the National Council for Transgenders were appointed without adherence to the standard protocol.  Trans and non-trans persons with no expertise have been appointed to the Council. Since the National Council for Transgenders performs essential functions, such as providing the right to self perceived gender identity, it is unjust to make appointments which adversely affect the welfare of the community. Therefore, the petitioner has called the appointments arbitrary and thereby violative of Article 14.

The petition has sought for the quashing of the gazette notification by the Ministry of Social Justice and Empowerment notifying the constitution of the said Council.

Suggested Readings:

  1. The Order can be found here.
  2. The Transgender Persons (Protection Of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India).
  3. National Legal Services Authority v Union of India, AIR 2014 SC 1863 (India).
  4. Challenge to Transgender Persons Act, Supreme Court Observer (2020), https://www.scobserver.in/court-case/challenge-to-transgender-act (last visited Oct 23, 2020).
  5. Dhruva Gandhi & Unnati Ghia, A Constitutional Challenge to the Transgender Persons Act in India (Dec.27,2019) , http://www.iconnectblog.com/2019/12/a-constitutional-challenge-to-the-transgender-persons-act-in-india/

The Madhya Pradesh High Court to examine whether a State can violate privacy rights of accused by publishing their photographs in media

The High Court of Madhya Pradesh will examine whether the State Government can violate the right to privacy of an accused by publishing their photos in the media or parading them in the society. The Court was considering a petition filed by an individual who claims his reputation was tainted when his photographs were published in the media while he was in police custody.

In response to the petition, the State notified the Court that they had wrongly arrested the petitioner and had consequently taken statutory actions against those responsible. Moreover, the State Government claims that the publication of the photographs is justified. They cited a Circular issued in the year 2014 regarding the same. This Circular allows for the sharing of information with the media and photographs of the accused, subject to restrictions.

Therefore, the question  as to whether the State Government can infringe the right to privacy of the accused based on such a circular, becomes moot. The Court has taken note that the State has remained silent on this pertinent issue and has ordered the State to give a detailed response on all the issues identified in the Order.

Suggested Readings:

  1. The Order can be found here.
  2.  In-Re Banners Placed On Road Side In The City Of Lucknow v. State of U.P., WRIT PETITION (P.I.L) (2020). The UP High Court taking suo moto cognizance of the action of the State of UP arbitrarily putting up name-and-shame banners of 50 and odd persons accused of vandalising  public and private properties. 
  3. Constitutional Rights and Freedom of Media in India, 36 Journal of the Indian Law Institute 429 (1994).
  4. Justice K. S. Puttaswamy (Retd) & Anr v. Union of India & Ors, (2017) 10 SCC 1 (India).
  5. K.Ramaraj v. State, Criminal Appeal No.301 of 2012. The photographs getting leaked to the Press, will affect the process during the test identification parade. – Madras High Court.

Gujarat HC issues guidelines regarding preventive detention

Recently, the Gujarat High Court issued guidelines to the State and the Detaining Authority regarding the laws of preventive detention. The appellant filed a letters patent under Clause 15 of the Letters Patent Act as he was aggrieved by the Court’s affirmation of his detention under S.2 of the Gujarat Prevention of Anti-Social Activities Act. 

The appellant was detained because he had used lethal weapons to harm the complainant and witnesses in public and consequently, because of the risk that he posed to  society. Additionally, there were four FIRs involving the appellant that were pending, and one of them involved serious offences under the Indian Penal Code. However, the Detaining Authority was not aware that the appellant had been acquitted in that case and believed that he was out on bail. Therefore, the Gujarat High Court quashed the detention order of the District Magistrate. The Court also issued guidelines to the State Government and the Detaining Authority, some of which include, clearly distinguishing the grounds of detention when multiple grounds are present and providing evidence for each of these grounds. The court expressed its disapproval at the Detaining Authority’s failure to exercise due diligence when dealing with serious matters that deprive individuals of their liberty. 

Suggested readings:

  1. The order can be found here.
  2. Shrutanjaya Bhardwaj, Preventive Detention, Habeas Corpus and Delay at the Apex Court: An Empirical Study, 13 NUJS L. Rev 2 (2020).  
  3. Abhinav Sekhri, Dr. Khafleel Khan and our Punitive Preventive Detention Law (Sept.4, 2020), https://criminallawstudiesnluj.wordpress.com/2020/09/04/dr-kafeel-khan-and-our-punitive-preventive-detention-law/.  
  4. Derek P. Jinks, The Anatomy of an Institutionalized Emergency: Preventive Detention and Personal Liberty in India, 22 Mich. J. Int’l. Law 311 (2001). 
  5. Manoj Mate, The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases, 28 Berkeley J. Int’l L. 216 (2010).

International

U.S Dept. of Justice charges Google with violations of US antitrust laws

The US Justice Department formally charged Google with antitrust violations. The lawsuit alleged that Google is abusing its dominant position over its smaller rivals by using anti-competitive and other exclusionary practices in the advertising markets. The DOJ has charged Google of violating the Sherman Act on behalf of Arkansas, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, South Carolina, Texas and Florida, subsequent to a 16-month investigation. 

Google is a widely preferred search engine with billions of users world-wide, accounting for about 90% of all ‘general search engine’ searches. This has forced several advertisers to pay a toll to Google’s search advertising and general search text advertising monopolies. These anti-competitive practices have allegedly pushed consumers to accept Google’s policies and privacy practices. Seven other states continue investigations against Google, and could join the present lawsuit to litigate cooperatively. Google had anticipated the lawsuit as it was being investigated for over a year, along with Apple and Facebook.

Suggested readings: 

  1. Find the lawsuit here.
  2. Laura P. Sawyer, US Antitrust Law and Policy in Historical Perspective  (Harv. Business School Working Paper 19-110), https://www.hbs.edu/faculty/Publication%20Files/19-110_e21447ad-d98a-451f-8ef0-ba42209018e6.pdf.  
  3. G. Manne & W. Rinehart, The Market Realities that Undermined the FTC’s Antitrust Case Against Google,  Harv. J.L. & Tech. – Occasional Paper Series (2013).  
  4. Wilson Freeman & Jay Skyes, Antitrust & Big Tech (Congressional Research Service Report, 2019),  https://fas.org/sgp/crs/misc/R45910.pdf.  

EU launches legal action against the ‘Golden Passport’ Scheme of Cyprus & Malta

The European Commission launched legal action against Cyprus and Malta over their ‘Golden Passport’ schemes. The schemes enable wealthy investors to acquire EU citizenship through pre-determined payments or investments. The EU has termed the scheme as a ‘sale of citizenship’ which undermines the essence of EU citizenship.  

EU initiated ‘infringement procedures’ against the countries, which is equivalent to legal action against countries failing to implement EU laws. The Commission characterized the schemes as being violative of Article 4 (3) of the Treaty on the European Union which calls for  cooperation among Member States. EU passports are highly priced and gives the owners the right to travel, work and live throughout the 27 members of the bloc. The scheme therefore, is not limited to the Member States implementing them. Cyprus began offering citizenship in exchange for substantial investments in 2007, revamping the scheme again in 2013. Malta had been selling its citizenship since 2014. Both countries have made significant gains from the scheme, which has strengthened their economies since the Euro crisis. 

Suggested Readings:

  1. Transparency International (L. Brillaud & M. Martini), European Getaway – Inside the Murky World of Golden Visas (2018), http://transparency.eu/wp-content/uploads/2018/10/REPORT-European-Getaway-Inside-the-Murky-World-of-Golden-Visas_web.pdf.
  2. European Commission, Report on Investor Citizenship and Residence Schemes in the European Union  (Jan.23, 2019).
  3. European Commission, Investor Citizenship Schemes: European Commission opens infringements against Cyprus and Malta for “selling” EU citizenship (Oct.20, 2020), https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1925.

Poland’s top court has ruled that a law allowing abortion of fetuses with congenital defects is unconstitutional

Two judges of Poland’s 13 member Constitutional court ruled that a law allowing the abortion of fetuses with congenital defects is unconstitutional. Abortions due to birth defects make up a majority of all legal terminations in Poland. The decision renders abortion unconstitutional in cases where the mother risks giving birth to a seriously ill child with faint chances of survival. However, abortion is allowed if the mother’s health is at risk or if the pregnancy was a result of an illegal act, like rape. 

The Court’s decision came after a motion filed by right-wing lawmakers who argued that abortions due to fetal defects, violates the constitutional protection accorded to an individual’s life. The Court compared the act to eugenics – a 19th century notion of genetic selection used by the Nazis. This method of abortion was termed as a form of banned discrimination since a decision was being made on the health of a child before it was even born. The impugned law was introduced in 1993, and was seen as a compromise between the Catholic church and State authorities. Several human and women’s rights activists have objected to  the ruling, observing that it violates basic human rights. 

Suggested Readings: 

  1. Wanda Nowicka, The Struggle for Abortion Rights in Poland in Sex Politics: Reports from the Front Lines (Parker & Petchesky eds.) (2015).  
  2. Janine P. Holc, The Purest Democrat: Fetal Citizenship and Subjectivity in the Construction of Democracy in Poland, 29 Signs: Journal of Women in Cultural & Society 755 (2004).
  3. Julia Hussein et al.,  Abortion in Poland: politics, progression and regression (May 08, 2018), https://www.tandfonline.com/doi/full/10.1080/09688080.2018.1467361.

China passes new law protecting minors from abuse and cyberbullying

The Standing Committee of China passed a revised Law on the Protection of Minors on 17th October. The law will come into effect on June 1, 2021.The Law on the Protection of Minors increases the responsibility of guardians and parents towards minors. Parents or guardians of minors will now not only have to protect the life, health, and safety of minors, but will also need to tend to their physical, psychological, and emotional needs. 

Furthermore, if they cannot fulfil these obligations, they will be required to entrust minors under their care to a person with full civil capacity and an ability to care for the minor. Additionally, the law imposes an obligation on internet product and service providers to refrain from offering any addiction-inducing products or services to minors. Service providers will be required to set up time and consumption limits for minors. The law also includes several provisions to combat cyberbullying. Any minor who has suffered cyberbullying, or their caregiver, will now have the right to notify network service providers to delete, block, and disconnect links associated with the content. Service providers will be required to take timely action upon such a request, to stop cyberbullying and prevent the spread of misinformation. 

Finally, several provisions of the law create a mandatory obligation for schools and kindergartens to report cases of sexual assault and sexual harassment of minors. In situations involving bullying, the guardians or parents must also be immediately informed of such behaviour. The legislation also creates new regulations that must be followed by schools for recruiting staff members. 

Suggested Readings:

  1. Click here to view the act. 
  2. Reuters, China revises laws to strengthen protection of minors online (Oct.18, 2020), https://www.reuters.com/article/us-china-parliament-cyber/china-revises-laws-to-strengthen-protection-of-minors-online-idUKKBN273075
  3. LOC, Child Protection Law and Policy: China (Jul.24, 2020), https://www.loc.gov/law/help/child-protection-law/china.php.
  4. Internet Society, Mapping Online Child Safety in Asia-Pacific (July 2017), https://www.internetsociety.org/wp-content/uploads/2017/08/Online20Child20Safety20in20Asia-Pacific20report20final.pdf

New China biosafety law seeks to prevent infectious disease spread after COVID crisis

The Standing Committee of China passed a new biosafety law on 17th October, which will come into effect on April 15, 2021. The Biosafety Law deals with risks in the biosafety field, national biosafety governance, and systems for minimising biosafety threats. The law provides for the establishment of 11 basic systems for biosecurity risk prevention and control. These preventative measures include systems for risk monitoring and early warning, information sharing, biosafety review, and emergency response. The Biosafety Law also contains provisions relating to specific risk prevention and response systems, which combat emerging infectious diseases, animal and plant epidemics, bioterrorism, biological weapon threats, and other biosecurity risks. The provisions are designed in part to prevent duplication of the COVID-19 crisis.

The law also lays down the responsibilities of various departments, including the Central National Safety Leadership Agency, the national biosafety work coordination mechanism and its member units, the coordination mechanism office, and other relevant departments of the State Council. These units are to be established in all provinces, autonomous regions, and municipalities under the direct control of the central government. These units would clarify the responsibilities of local people’s governments and their relevant departments. 

Suggested readings:

  1. View the act here
  2. WHO, Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19) (Feb. 2020), https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf
  3. ·       Tie-Long Xu, et al., China’s practice to prevent and control COVID-19 in the context of large population movement (Aug. 19, 2020), https://idpjournal.biomedcentral.com/articles/10.1186/s40249-020-00716-0.   

DOJ charges Russia military officers for worldwide cyberattacks

The US Department of Justice (DOJ) indicted six military officers in Unit 74455 of the Russian Main Intelligence Directorate (GRU), a military intelligence agency of the General Staff of the Armed Forces.

The charges against the officers include using malware to cause blackouts in Ukraine in 2015 and 2016. $1 billion in losses to three corporations in 2017. Disrupting computers supporting the 2018 PyeongChang Winter Olympics. Hack-and-leak efforts against French President Emmanuel Macron’s party prior to the 2017 elections. Targeting Georgian companies and government entities in 2018. The officers are also accused of damaging computer networks in France, Georgia, the Netherlands, Republic of Korea, Ukraine, the UK and the US. The indictment does not mention Russian interference in the US presidential elections. Russia allegedly interfered in the 2016 election and poses a potential threat to the November election.

Assistant Attorney General for National Security, John Demers, accused Russia of weaponizing its cyber capabilities maliciously and irresponsibly, “wantonly causing unprecedented collateral damage to pursue small tactical advantages and to satisfy fits of spite.” In support of his allegations, Demers pointed out that the attacks on the Ukrainian power grid took place during winter.

Suggested Readings:

  1. Click here to view the chargers. https://www.justice.gov/file/1080281/download 
  2. United States Department of Justice, Six Russian GRU Officers Charged in Connection with Worldwide Deployment of Destructive Malware and Other Disruptive Actions in Cyberspace (Oct. 19, 2020), https://www.justice.gov/opa/pr/six-russian-gru-officers-charged-connection-worldwide-deployment-destructive-malware-and#:~:text=On%20Oct.%2015%2C%202020%2C,the%20General%20Staff%20of%20the.
  3. Meduza, What is the GRU? Who gets recruited to be a spy? Why are they exposed so often? (Nov. 6, 2018), https://meduza.io/en/feature/2018/11/06/what-is-the-gru-who-gets-recruited-to-be-a-spy-why-are-they-exposed-so-often.
  4. S. Fry & S. Rebo, Summary: Justice Department Charges Six Russian GRU Officers (Oct. 20, 2020), https://www.lawfareblog.com/summary-justice-department-charges-six-russian-gru-officers.

CfPs and Seminars

Call for Papers (India)

  • The Christ University Law Journal invites submissions for its 2022 Issue on the theme, “Imbibing Ecocentrism in Environmental Law: Scope, Challenges and the Way Forward”. The deadline is 30th June 2021.
  • NLUD Journal of Victimology and Victim Justice invites submissions on. The Journal seeks to contribute to a greater understanding of victims, victimization, victim-offender relations, institutional functioning, and allied issues.

Call for Papers (International)

  • Journal of International Law and Comity has issued a Call for submissions to their latest issue. They encourage contributions that engage with pressing issues of human rights, environment, disarmament, peace, justice, and equity in international law are particularly welcome. The deadline is 15th November 2020. 
  • The Journal of Medical Law and Ethics has issued a Rolling Call for Submissions. They encourage diversity of authors and topics within the field of contemporary medical law and ethics.

Seminars (International)

Seminars (India)


Miscellaneous 

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