24.10.20 – 30.10.20

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 5

India
International
CfPs and Seminars
Miscellaneous

India

SC invokes Art.142 to allow mother to take child in custody battle to Singapore

A three-judge bench of the Supreme Court exercised its powers under Article 142 of the Constitution to allow a child, involved in a custody battle, to be taken to Singapore. The High Court of Karnataka, in its judgement, ruled that the child could not be allowed to leave Bangalore as it would jeopardize the jurisdiction of the Family Court over the child. The Supreme Court heard the appeal to the High Court’s judgement. The appellant argued that the child had been living with his maternal grandparents and his mother since 2016. Regarding the jurisdiction of the Family Court, the purpose of relocating to Singapore was the employment opportunity there and not because she wanted to evade the jurisdiction of the Family Court. The Apex Court considered the welfare of the child, and his desire to live with his mother. Exercising its powers under Art.142, the court allowed the mother to take the child to Singapore since restraining the child to Bangalore would have an impact on the child’s education. However, the Court held that the parties’ interests must be balanced and granted the child’s father visiting rights. 

Suggested readings: 

1. The judgement can be found here. 
2. Rajat Pradhan, Ironing out the Creases: Re-Examining the Contours of Invoking Article 142(1) of the Constitution, 6 NALSAR Stud. L. Rev. 1 (2011). 
3. Virendra Kumar, Judicial Legislation Under Art.142 of the Constitution: A Pragmatic Prompt for Proper Legislation by Parliament, 54 JILI 364 (2012). 
4.  Harshad Pathak, Article 142: Incomplete Justice?, 3 CNLU L.J. 40 (2013). 
5. Dhanishta Patel, The Excesses in the Application of Article 142 (last visited Oct.30, 2020), https://clsnluo.com/2020/05/13/excessive-application-of-article-142/#more-395.

CIC issues show cause notice to NIC for failing to provide information regarding Aarogya Setu

The Central Information Commission (CIC) issued a show cause notice to the National Informatics Centre (NIC), the developer of Aarogya Setu, to provide information regarding the contact tracing application. The complainant had filed an RTI to obtain information regarding Aarogya Setu, including its creation. However, the NIC in its response stated that it did not have the information despite being the creator of the application. The complainant emphasized that there was no information on the measures taken to prevent a large-scale misuse of data and that the app could violate the privacy of millions in the country.

The CIC found that the respondent was evasive in its answers and had failed to provide a response to the RTI for over two months. The CIC specifically asked the NIC to explain how the website for Aarogya Setu was created under a government domain when they did not have any information regarding it. The CIC took cognizance of the complaint under Section 18(1) of the RTI Act and issued a show cause notice to three central public information officers. 

Suggested Readings

1. The order can be found here. 
2. Devansh Kaushik, COVID19 – XI: Aarogya Setu – The False Dichotomy Between Health and Privacy (Apr.30, 2020), https://lawschoolpolicyreview.com/2020/04/30/aarogya-setu-the-false-dichotomy-between-health-and-privacy/. 
3. Ashi Mehta, Does India’s COVID-19 Contact Tracing App Violate Digital Rights? (May 11, 2020), https://ohrh.law.ox.ac.uk/does-indias-covid-19-contact-tracing-app-violate-digital-rights/. 
4. Gautam Bhatia, Coronavirus and the Constitution – XXI: The Mandatory Imposition of the Aarogya Setu App (May 2, 2020), https://indconlawphil.wordpress.com/2020/05/02/coronavirus-and-the-constitution-xxi-the-mandatory-imposition-of-the-aarogya-setu-app/. 
5. NUJS CLS, The Aarogya Setu Application: Necessary Evil? (Jul.28, 2020), https://wbnujscls.wordpress.com/2020/07/28/the-aarogya-setu-application-necessary-evil. 
6. Tanya Rathod & Tanay Singh, Privacy and Pandemic: Decoding the Aarogya Setu App (Jun.11, 2020), https://thegclsblog.wordpress.com/2020/06/11/privacy-and-pandemic-decoding-the-aarogya-setu-app/. 
7. Manish Soni & Aditi Mozika, A Camel’s Nose Under the Tent: How Coronavirus Tracking Apps Threaten the Privacy of Citizens (May 29, 2020), https://jilsblognujs.wordpress.com/2020/05/29/a-camels-toe-under-the-tent-how-coronavirus-tracking-apps-threaten-the-privacy-of-citizens/.

Officers investigating NDPS cases are police officers and any confessional statement made to them is not admissible in Court, rules the Supreme Court

The Supreme Court in Tofan Singh v State of Punjab held by a 2:1 majority that officers of the Central and State agencies appointed under the Narcotic Drugs and Psychotropic Substances (NDPS) Act are police officers. Therefore, any confessional statement recorded by such officers is inadmissible.

Justices Rohinton Fali Nariman, Navin Sinha and Indira Banerjee considered a referral made by a division bench which questioned the correctness of the ratio laid down in Raj Kumar Karwal v. Union of India and Kanhaiyalal v. Union of India. The Court identified two primary issues. Firstly, whether the officer investigating the matter under the NDPS Act would qualify as a police officer? Secondly, whether the statement recorded by the investigating officer would become a confessional statement under Section 67 of the Act, even if the officer does not qualify as a police officer? Justice Nariman and Justice Singh gave a concurring opinion whereas Justice Banerjee dissented.

The Indian Evidence Act bars the admission of any confessional statement made to the police officer in the Court of law. Consequently, since the Court has held that the officers under the NDPS are police officers, the confessional statements made to them have no evidentiary value.

Suggested Readings:

1. The judgment can be found here.
2. Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409 (India).
3. Kanhaiyalal v. Union of India,  (2008) 4 SCC 668 (India).
4. Narcotic Drugs and Psychotropic Substances Act, 1985, No. 61, Acts of Parliament, 1985 (India).
5. Indian Evidence Act,1872, No. 1, Acts of Parliament, 1872 (India).
6. Arghya Sengupta, Confessions in the Custody of a Police Officer: Is it the Opportune Time for Change, 18 Student Bar Review 31-44 (2006).
7. Abhinav Sekhri, Confessions, police officer and  S.25 of the Indian Evidence Act, 1872, 7 NUJS L.Rev. 1 (2014). 

Bombay High Court hears arguments on media trials interfering with the administration of justice 

The Bombay High Court heard a  PIL seeking restraint on parallel investigations conducted by the media when there is an ongoing police investigation. The petitioners contended that trial by media results in interference with the administration of justice. It would, therefore, amount to contempt of Court as per Section 2(c) of the Contempt of Court Act, 1971.

Section 2(c) defines criminal contempt as any publication that scandalises any court, prejudices,  interferes the due course of any judicial proceeding or interferes or obstructs the administration of justice in any other manner. The petitioners argued that when the media pre-judges the guilt of the accused, it obstructs the administration of justice. They also said that it undermines the right to free and fair trial under Article 21 of the Constitution and the presumption of innocence. Further, the petitioners perused Sections 5, 6 and 20 of the Cable TV Network Regulation Act which bars the media from publishing anything contemptuous.

A total of eight former DGPs and Commissioners of Police from Maharashtra filed this PIL in light of media reporting of the Sushant Singh Rajput case. They have alleged unfair, malicious and false media campaigns against the Mumbai police.

Suggested Readings:

1. The PIL can be found here. 
2. The Contempt of Court Act, 1971, No. 70. Acts of Parliament, 1971 (India).
3. The Cable Television Networks (Regulation) Act, 1995, No.7, Acts of Parliament, 1995 (India).
4. Find similar content on the Telawgram page. 

Gauhati High Court directs NRC Coordinator to explain the inclusion of ‘undeserving’ individuals in Assam National Register of Citizens (NRC)

The Gauhati High Court directed the NRC Coordinator to file a comprehensive affidavit and bring on record the situations along with necessary particulars for the inclusion of undeserving individuals in the NRC. They are not legally entitled to be a part of the National Register of Citizens.

The Court passed the order in a writ proceeding Rahima Begum v Union of India and others, initiated by a resident of Assam. The petitioner has challenged an order of the Foreign Tribunal, which declared her a foreigner. The Court was surprised to find the petitioner’s name in the NRC when the proceedings remained pending against her. The Court remarked that such insertion of names is a violation of the law.

Inclusion in the NRC requires proof of residency in Assam before the cutoff date or trace of legacy to ancestors who had been staying in Assam before such date. ‘Legacy documents’, i.e., a list of government-approved documents, must be attached as well.

It observed that this is an issue of great importance, and that it is not a solitary instance. In several cases, the Court has noticed and recorded similar problems. The Court ordered the coordinator to file the affidavit within three weeks on October 19.

Suggested Readings:

1. The Order can be found here. 
2. Gautam Bhatia, The NRC Case and the Parchment Barrier of Article 21, (April 26, 2019), https://indconlawphil.wordpress.com/2019/04/26/the-nrc-case-and-the-parchment-barrier-of-article-21/.
3. Khetrimayum Monish Singh, Infrastructure as Digital Politics: Media Practices and the Assam NRC Citizen Identification Project (Draft Paper), (May 15, 2018), https://cis-india.org/raw/infrastructure-as-digital-politics-media-practices-and-the-assam-nrc-citizen-identification-project-draft-paper.
4. Rafiul Ahmed, The NRC as ‘Truth Machine’ in Assam, (Dec 19, 2019), https://blogs.lse.ac.uk/southasia/2019/12/19/from-the-archive-the-nrc-as-truth-machine-in-assam/.
5. Vatsal Raj, The National Register of Citizens and India’s commitment deficit to international law, (Aug 10, 2020), https://blogs.lse.ac.uk/humanrights/2020/08/10/the-national-register-of-citizens-and-indias-commitment-deficit-to-international-law/.
6. Raunak Sood, An Analysis of the NRC controversy in Assam: Migration and Citizenship in India, (Dec 14, 2018), https://ohrh.law.ox.ac.uk/an-analysis-of-the-nrc-controversy-in-assam-migration-and-citizenship-in-india/.

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International

UN treaty prohibiting nuclear weapons passes threshold to enter into force from 22nd Jan, 2021

The UN, on 24th October, announced that 50 countries have ratified a treaty seeking to destroy all nuclear weapons and permanently ban their use. A treaty must be ratified by a minimum of 50 countries to become law, and the UN had completed negotiations on the Treaty on the Prohibition of Nuclear Weapons at its New York headquarters in July, 2017. The treaty constitutes a legally binding instrument to prohibit nuclear weapons, leading to their total elimination. Following negotiations, the treaty was open to signatories from September 2017. The treaty prohibits State parties from “developing, testing, producing, manufacturing, or otherwise acquiring, possessing or stockpiling nuclear weapons or other nuclear explosive devices.” It further bans countries from issuing threats on their use. Honduras joined Jamaica, Nauru and Tuvalu as the most recent country to ratify the treaty. Governments representing 84 countries have signed the treaty, and of those, 50 have ratified it. The US and the world’s eight other nuclear powers—Russia, China, Britain, France, India, Pakistan, North Korea and Israel—have not signed the treaty.  With the fiftieth ratification, the treaty will enter into force on 22nd Jan , 2021. In an official statement, the UN Secretary-General’s spokesperson Stéphane Dujarric said that it represents, “the culmination of a worldwide movement to draw attention to the catastrophic humanitarian consequences of any use of nuclear weapons”.

Suggested Readings:

1. UN News, UN treaty banning nuclear weapons set to enter into force in January, (Oct. 25, 2020), https://news.un.org/en/story/2020/10/1076082.
2.  Click here to view the treaty.      https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-9&chapter=26&clang=_en.
3. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 (July 8).  
4. Matheson, Michael J, The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons, 91 The American Journal of International Law 417–435 (1997). 
5. United Nations Secretary – General, UN Secretary-General’s Spokesman – on the occasion of the 50th ratification of the Treaty on the Prohibition of Nuclear Weapons, (Oct. 24, 2020), https://www.un.org/sg/en/content/sg/statement/2020-10-24/un-secretary-generals-spokesman-the-occasion-of-the-50th-ratification-of-the-treaty-the-prohibition-of-nuclear-weapons.
6. Oireachtas Library & Research Service, L&RS Note: The Treaty on the Prohibition of Nuclear Weapons, 2019. 

Chile citizens vote to overhaul Pinochet-era constitution

Chilean citizens voted overwhelmingly to draft a new Constitution and replace the guiding principles put in place four decades ago under General Augusto Pinochet’s military dictatorship. More than 7.5 million of the 14.97 million eligible voters opted to overhaul the Constitution on 25^th October. The citizens want the new Constitution to reflect their demands for healthcare, pension and education reforms. A Convention of 155 elected members is set to draft the new Constitution over a nine-month period, which may be extended  up to three months. Four-fifths of voters said they wanted the new Charter to be drafted by a specially-elected body of citizens—made up of half women and half men—over a mixed Convention of lawmakers and citizens. The election process is due to take place on 11th April, 2021. After Convention-members are fairly selected, proposals must be approved by a two-thirds majority. By mid-2022, the country will hold a plebiscite to approve or reject the draft Constitution. If the Convention approves the draft, the Plenary Congress will convene to formally approve the new Constitution, and an official announcement will be published within 10 days in the Official Gazette. The new Constitution will enter into force on the day of publication.

Suggested Readings:

1. A. Laing & F. Cambero, ‘Rebirth’: Chileans vote by millions to tear up Pinochet’s constitution, (Oct. 26, 2020), https://in.reuters.com/article/chile-constitution/rebirth-chileans-vote-by-millions-to-tear-up-pinochets-constitution-idINKBN27B05A.
2. Click here to read the statement.
3. Click here for more information.
4. Click here for the Pinochet-era constitution.
5. Margarita R. Seminario, The 2020 Chilean Plebiscite: Overview, Citizen Engagement, and Potential Impact, (Oct. 05, 2020), https://www.csis.org/analysis/2020-chilean-plebiscite-overview-citizen-engagement-and-potential-impact.
6. CIA, Chile: How authoritarian is Pinochet’s Constitution?, 1988. https://www.cia.gov/library/readingroom/docs/DOC_0000451593.pdf.
7. Dante Figueroa, Constitutional Review in Chile Revisited: A Revolution in the Making, 51 Duquesne L.R. 387 (2013).  
8. Claudia Heiss, Legitimacy crisis and the constitutional problem in Chile: A legacy of authoritarianism, 24 Constellations 470 (2017). 

Russian Parliament approves Bill allowing Russia to trespass international rulings

The Russian Parliament approved a Bill that would provide Russian national legislations precedence over international treaties and rulings of international bodies. The Bill seeks to provide authority to national legislation in cases where international rules conflict with the Russian Constitution. The lawmakers approved the Bill, originally proposed by President Vladimir Putin, in a third reading of his amendments to the Constitution. The Bill further requires approval   from the Upper House of the Russian Parliament, and the assent from the President.

The Lower House of the Russian Parliament, the State Duma, stated that  the decisions of interstate bodies contradicting the Constitution of the Russian Federation, will not become subjected to execution in Russia.

The Bill takes away the right of citizens to appeal to international bodies over human rights violations in Russia. Every year hundreds of Russians appeal to the European Court of Human Rights seeking justice that they claim to have been denied at home.

President Vladimir Putin’s Bill on amendments to the Constitution provides expansive rights to the Parliament and the Constitutional Court restricts the number of presidential terms and gives priority to national legislation over international agreements.

Suggested Readings:

1. William Partlett, Five Things To Know About Russia’s Constitutional Amendments (July 2, 2020), https://pursuit.unimelb.edu.au/articles/five-things-to-know-about-russia-s-constitutional-amendments. 
2. PHILIP REMLER, Russia at the United Nations: Law, Sovereignty, and Legitimacy (Jan 22, 2020), https://carnegieendowment.org/2020/01/22/russia-at-united-nations-law-sovereignty-and-legitimacy-pub-80753. 
3. Yulia Loffe, The Amendments to the Russian Constitution: Putin’s Attempt to Reinforce Russia’s Isolationist Views on International Law? (Jan 29, 2020), https://www.ejiltalk.org/the-amendments-to-the-russian-constitution-putins-attempt-to-reinforce-russias-isolationist-views-on-international-law/. 

Federal Appeals Court rejects request for immediate ban on WeChat in the US

The US Court of Appeals rejected a Department of Justice (DOJ) request to immediately ban WeChat from the US. A three-judge panel for the Ninth Circuit Court of Appeals rejected the request to ban Apple and Google’s app stores from offering the messaging app. The Order states that the Trump administration failed to show that Americans would “suffer an imminent, irreparable injury during the pendency of this appeal.” The Justice Department argues WeChat and Chinese short video sharing app TikTok threaten US national security.

President Donald Trump had signed an Executive Order on the 6th of August, calling for a ban on all transactions between WeChat’s parent company, Tencent, and all U.S. entities. Subsequently,  a U.S. WeChat Users Alliance group  sued the Government over the ban. They argued that the move violates the free-speech rights of Chinese-speaking Americans who rely on WeChat for communication..

In September, a US Magistrate Judge  of the District Court for the Northern District of California granted a preliminary injunction against the Executive Order prohibiting transactions related to WeChat. The Trump administration appealed the ruling in early October. The DOJ requested the Judge to reverse the decision preventing the ban, which was also rejected. 

Suggested Readings:

1. Find the decision here.
2. Find the Executive Order here.
3. Richard Altieri, Benjamin Della Rocca, Trump Signs Ban on TikTok, WeChat; U.S. Officials Report Chinese Election Interference (Aug. 14, 2020), https://www.lawfareblog.com/trump-signs-ban-tiktok-wechat-us-officials-report-chinese-election-interference. 
4. Huan Zhu, WeChat or We Don’t Chat? A Total Ban on WeChat Goes Too Far (Sept. 17, 2020), https://www.cato.org/blog/wechat-or-we-dont-chat-total-ban-wechat-goes-too-far.
5. Keman Huang & Stuart Madnick, The TikTok Ban Should Worry Every Company (Aug. 28, 2020), https://hbr.org/2020/08/the-tiktok-ban-should-worry-every-company. 

California Court of Appeals orders Uber and Lyft to classify drivers as employees

A California Court of Appeals upheld an Order mandating Uber and Lyft to classify their drivers as employees rather than independent contractors. The Court found that the ride-hailing companies were violating Assembly Bill 5 (A.B 5), a state labour law. The decision will not be immediately enforced as voters will decide the future of AB 5, since it is on the November ballot.

The decision was a result of  a lawsuit filed by a California Attorney and the City Attorneys of Los Angeles, San Diego and San Francisco . The new California law, Assembly Bill 5 lays down a three factor test to decide a worker’s status as an independent contractor. The law permits companies only to classify workers as contractors if they perform work “outside the usual course” of the companies’ business. Treating the drivers as employees, instead of independent contractors, would guarantee benefits such as overtime pay, sick leave and expense reimbursements for drivers who make up much of the companies’ income.

Uber and Lyft are hoping that the California voters will overturn the A.B. 5 law in the November ballot and pass ‘California Proposition 22’,  a ballot campaign sponsored by the two companies. Proposition 22 would reclassify drivers of ridesharing apps as independent contractors while giving them limited benefits. 

Suggested Readings:

1. Find the decision here.
2. Ballotpedia, California Proposition 22, App-Based Drivers as Contractors and Labor Policies Initiative (2020) ( Last visited Oct. 30, 2020), https://ballotpedia.org/California_Proposition_22,_App-Based_Drivers_as_Contractors_and_Labor_Policies_Initiative_(2020). 
3. Find the Assembly Bill No. 5 here.

US Senate votes to confirm Justice Amy Coney Barrett to the Supreme Court

The US Senate confirmed Justice Amy Coney Barrett to the US Supreme Court by a 52-48 vote. Justice Barrett was nominated by President Donald Trump to replace Justice Ruth Bader Ginsburg following her demise. Judge Barrett is the fifth woman to be appointed to the top Court. 

The nomination of Judge Barrett was the quickest confirmation proceeding in modern times. 

Supreme Court Justice Clarence Thomas administered the Constitutional oath to Barrett at a White House ceremony. Chief Justice John Roberts will administer the judicial oath, after which Judge Barret will begin her work. Ms Barrett reiterated that she would work independent of the President who nominated her and the Republican lawmakers who confirmed her vote during a presidential campaign. Democrats had been against President Trump’s hasty appointment of Judge Barrett during the end of his presidential term, claiming that Republicans were pushing the appointment of the conservative Judge to help reshape abortion and health care laws.

Suggested Readings:

1. United States Senate, Roll Call Vote 116th Congress – 2nd Session (Last visited Oct. 31, 2020), https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=116&session=2&vote=00224. 
2. Congressional Research Service, Supreme Court Appointment Process: President’s Selection of a Nominee (Last visited Oct. 29, 2020), https://fas.org/sgp/crs/misc/R44235.pdf. 
3. FAQs on Supreme Court Judges.

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CfPs and Seminars

Call for Papers (India)

• National Law School Bangalore’s Business Law Review invites submissions for its Special Issue on “International Arbitration”. The deadline for submission is 20th November 2020.

• The NUJS Law Review, flagship journal of the National University of Juridical Sciences, Kolkata, invites submissions. 

• MNLU Aurangabad invites submissions for the 1st Volume of the 3rd Issue of its  Comparative Law e-Newsletter, on the theme “Labour and Modern Slavery: Framework on Social Security Laws”. The deadline for submission is 24th November 2020. 

Call for Papers (International)

• The Ex Curia International Blog invites articles on a rolling basis throughout the year on various aspects of international dispute resolution, and contemporary analyses.   

• The Age of Human Rights Journal (TAHRJ) invites submissions for its June 2021 publication on the topic of Human Rights from Different Approaches. The deadline for submissions is 1st February 2021. 

Webinars (India)

• ALS Noida invites submissions for its International Conference on Comparative Law on the broad theme “Comparative constitutional law”. The deadline for submission is 1st December, 2020.  

• ILS’ Sports Law Cell is hosting the ILS Sports Law Webinar Series on Introduction to Sports Law and Management on 3rd November 2020.

Webinars (International)

• International Academy of Family Lawyers is hosting a webinar on “Successfully Developing an International Family Law Practice with the IAFL” on 19th November 2020. Prior registration required. 

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Miscellaneous 

• The IBAHRI and Oxford University Press is hosting the virtual book launch of ‘The Right to a Fair Trial in International Law’, authored by Barrister and Professor Amal Clooney and Barrister and Professor Philippa Webb, on 16th December 2020. The book provides a comprehensive and systematic overview of international jurisprudence on one of the most litigated rights in the world: the right to a fair trial. Prior Registration required.