SC lays down guidelines to determine maintenance and compensation in matrimonial cases
The Supreme Court on November 4th, issued guidelines to determine the quantum of compensation in matrimonial disputes. The husband appealed against the order of the Bombay High Court and argued that he did not have the finances to pay the maintenance amount to the wife. The wife argued that the husband had made investments in the real estate sector and was concealing it from the Court. The Court upheld the judgement of the Bombay High Court and addressed three issues in maintenance disputes. First, the Court held that previous maintenance proceedings instituted under other statutes must be disclosed. Second, the Court laid down factors to determine the quantum of compensation, some of which include, the status of the parties, the reasonable wants of the claimant, the number of persons the applicant must provide for etc. Third, the Court relied on the purposive interpretation of maintenance provisions to rule that maintenance shall be paid from the date the application is filed as the duration of the proceedings are not under the claimant’s control.
- The judgement can be found here.
- Anjani Kant, Right of Maintenance to Indian Women, 38 JILI 392 (1996).
- Paras Diwan, Permanent Maintenance and Alimony: When Petition Is A Matrimonial Cause Is Dismissed, 37 JILI 246 (1995).
- Vijender Kumar, Impact of Divorce on Children: A Socio-Economic and Legal Study, 6 NALSAR L. Rev. 124 (2011).
- Christa Rautenbach, Phenomenon of Personal Laws in India: Some Lessons in South Africa, 39 Comp. & Int’l L.J. S.Afr. 241 (2006).
Gujarat HC rules that foreign arbitral awards are enforceable in India if both parties choose a foreign seat of arbitration
The Gujarat High Court in GE Power Conversion Pvt. Ltd. v. PASL Wind Solutions Pvt. Ltd. ruled that foreign arbitral awards are enforceable in India if the parties are companies incorporated in India and choose a foreign seat of arbitration. The parties to the dispute were both companies incorporated in India under the Companies Act, 1956 and the award was passed by a Tribunal in Zurich. The petitioner argued that the award is enforceable in India since the award fell within the definition of a ‘foreign award’ under Section 44 of the Arbitration and Conciliation Act, 1996 and fulfilled the criteria prescribed by Section 48 of the Act. The respondent argued that the award was not binding since the parties were incorporated in India. The respondent relied on the ‘Closest Connection Test’ to argue that the intention of the parties was to have Mumbai as the seat of arbitration. The Gujarat High Court relied on the agreement between the parties, the decision of the Supreme Court in Bharat Aluminium Co. v. Kaiser Aluminium Practical Services Ltd. and other procedural orders to conclude that the seat of arbitration was Zurich and the award is a foreign award under Section 44 of the Act. With regard to the enforcement of the award, the Court ruled that the conditions set out in Section 48 have been met and the award is enforceable in India.
- The judgement can be found here.
- Divya Suwasini & Shreya Bose, Arbitration in India Not for the Faint-Hearted: Enforcing Foreign Arbitral Awards, 6 NALSAR Student L.Rev. 14 (2011).
- Nandini Garg, Considerations of “Public Policy” for the Enforcement of Foreign Arbitral Awards in India (Mar. 10, 2018), https://indiacorplaw.in/2018/03/considerations-public-policy-enforcement-foreign-arbitral-awards-india.html.
- Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Jun.10, 1958, 330 U.N.T.S. 38.
- Sunil Tagotra, Recent Developments in the Enforcement of New York Convention Awards in India (Jul. 6, 2020), http://arbitrationblog.kluwerarbitration.com/2020/07/06/recent-developments-in-the-enforcement-of-new-york-convention-awards-in-india/.
- Prof. J. Martin Hunter & Ranamit Banerjee, Bhatia, BALCO & Beyond: One Step Forward, Two Steps Back?, 24 NLSIR 1 (2013).
- Bharat Aluminum Co. v. Kaiser Aluminium Practical Services Ltd., (2012) 9 SCC 552.
The SC held that refusal to submit to Test Identification Parade cannot be the sole ground for finding guilt
A three-judge bench of the Supreme Court held that guilt could not be established on the sole reason of refusal to undergo a test identification parade. Consequently, the bench comprising of Justices D Y Chandrachud, Indu Malhotra and Indira Banerjee acquitted the murder accused in the matter of Rajesh @ Sarkari v. State of Haryana.The Trial Court convicted Rajesh alias Sarkari, and Ajay Hooda under Section 302 read in conjunction with Section 34 of the Indian Penal Code for murdering a law student by shooting him. The Trial Court sentenced them to imprisonment for life.
The Supreme Court found glaring errors while re-appreciating the evidence. The Court observed that there were severe infirmities within the ballistics report and in the testimonies of crucial eyewitnesses. However, the prosecution contended that an adverse inference is required to be drawn against the accused for refusing to submit themselves to a test identification parade. The Court observed that, in the present case, it would be detrimental to draw an adverse inference considering the facts and circumstances. Nonetheless, it held that a test identification parade is intended to confirm the identity of the accused. Therefore, finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.
- The Judgment can be found here.
- A 2012 judgment on Test Identification Parade, Shyamal Ghosh v. State Of West Bengal, (2012) 7 SCC 646.
- Test Identification Parade, A Short Read (Nov. 14, 2018). https://crlreview.in/test-identification-parade-a-short-read/.
- Aakash Sai Gundu & Pranav Sai Tirunagiri, Test Identification Parade: A Critical Analysis In India Practice (Nov. 6, 2020), https://thelawbrigade.com/criminal-law/test-identification-parade-a-critical-analysis-in-india-practice/.
- Prachi Agarwal, CCTV footage: A silent witness (Sep. 5, 2020), https://criminallawstudiesnluj.wordpress.com/2020/09/05/cctv-footage-a-silent-witness/.
- Akash Mukherjee, A Case on Silence: Dissecting the Right to Silence of an Accused (May. 15, 2019), https://criminallawstudiesnluj.wordpress.com/2019/05/15/a-case-on-silence-dissecting-the-right-to-silence-of-an-accused/.
Kerala HC Issues Notice on PIL Challenging the Government Order to Enforce the Economic Reservation
The High Court of Kerala issued a notice to the State Government in a PIL which challenges the decision to implement the reservation for Economically Weaker Sections (EWS). The reservation is applicable to Government jobs and seats in educational institutions. The division bench, comprising Chief Justice S Manikumar and Justice Shaji P Chaly, was considering the contentions raised by the petitioner, that the 103rd Amendment of the Constitution which inserted Article 15(6) and 16(6) is invalid. The petitioner contended that the Amendment which allows for reservation on the ground of economic growth cannot be permitted. Therefore, the Order issued by the Government of Kerala is to be set aside. This petition comes after a 3-judge bench led by the Chief Justice of India, referred petitions challenging the Constitution amendment providing for EWS reservation to a larger bench in the Supreme Court. The petition, further, sought a directive to the State Government to re-evaluate the 10% reservation for economically weaker sections. It prayed for a proper study and analysis into the population of the EWS in the general category.
- EWS Reservation, Youth for Equality v. Union of India, Supreme Court Observer (Aug. 5, 2020), https://www.scobserver.in/court-case/reservations-for-economically-weaker-sections.
- Ind. Const. art 15 & 16, amended by the Constitution ( One Hundred and Third Amendment) Act, 2019.
- Malavika Prasad, The Case against the 103rd Amendment (Jan. 28, 2019), https://indconlawphil.wordpress.com/2019/01/.
- Aparna Singh, Constitutional Limits to Economic Reservations (Mar. 8, 2020) https://rmlnlulawreview.com/2019/01/30/constitutional-limits-to-economic-reservations/
- Manisha Bahu, Special Undergraduate Series—Reservations Based on Economic Criteria: A Policy Assessment: Will the Government Succeed in Bringing an End to Poverty with Reservation? (Nov. 23, 2019), http://www.iconnectblog.com/2019/11/special-undergraduate-series-reservations-based-on-economic-criteria-a-policy-assessment-will-the-government-succeed-in-bringing-an-end-to-poverty-with-reservation/.
Calcutta HC bans firecrackers in West Bengal during festive period, NGT issues notice to 18 States and UTs
A two-judge bench of the Calcutta High Court banned the display and bursting of firecrackers in the State of West Bengal during Kali Puja and Diwali celebrations. The Court directed the State Government and the police to ensure that no firecrackers are brought into West Bengal except for transit purposes. The Court held that certain firecracker associations would have to suffer a loss because of the public interest involved. The Calcutta HC pronounced the judgement in furtherance of the National Green Tribunal issuing notice to 18 States and Union Territories in a similar case which called for the ban on firecrackers during the festive period. Initially, the petition before the NGT was restricted to the use of firecrackers in the National Capital Territory of Delhi. However, the NGT exercised its powers to expand the scope of the case to include several other States and Union Territories because of the poor air quality in 122 cities. The NGT is expected to pass its order on November 9, 2020.
- The Calcutta High Court’s judgement can be found here.
- Keshav Somani, The Suo Motu Powers of the National Green Tribunal (Jul.12, 2020), https://lawschoolpolicyreview.com/2020/07/12/the-suo-motu-powers-of-the-national-green-tribunal/.
- Himanshu Pabreja & Neelotpalam Tiwari, NGT’s Jurisdiction in Controversy, 3 Environment, Law & Society Journal 84 (2015).
- For an explanation regarding the suo motu powers of the NGT, see LG Polymers India & Anr. v. Union of India & Anr., Original Application No.73 of 2020 (National Green Tribunal).
- Nikhil Reddy Kothakota, Reconciling the Nature and Religion: Efficacy of the Cracker Ban, its Implications and the Way Forward (Part I) (Dec.31, 2018), https://rmlnlulawreview.com/2018/12/31/reconciling-nature-and-religion-efficacy-of-the-cracker-ban-its-implications-and-the-way-forward-part-1/.
Nikhil Reddy Kothakota, Reconciling the Nature and Religion: Efficacy of the Cracker Ban, its Implications and the Way Forward(Part II) (Jan.1, 2019), https://rmlnlulawreview.com/2019/01/01/reconciling-nature-and-religion-efficacy-of-the-cracker-ban-its-implications-and-the-way-forward-part-2/.
United States formally exits Paris Agreement
On October 4th, the United States formally left the Paris Agreement, the nearly-universal global accord to reduce carbon emissions in an attempt to slow climate change. The U.S. began the exit process one year ago, when it notified the United Nations of its intent to withdraw from the agreement, triggering the effective date of withdrawal. The decision to withdraw was made in an attempt to fulfil remarks by Donald Trump in 2017, in which he claimed that the Paris Agreement was less about climate change and more about other countries taking advantage of the US financially, by transferring coal-mining jobs from the U.S. to those countries.
Following the official withdrawal, Chile, Italy, France, the United Kingdom and the United Nations issued a joint statement expressing regret that the United States chose to leave the agreement. The statement noted that December 12th is the fifth anniversary of the Paris Agreement, that the science is clear and that it is absolutely imperative that the world take renewed action to hold the temperature rise to well below 2 degrees Celsius. Of the 197 signatories to the agreement, the United States is the only country to have left. However, the U.S. withdrawal could be temporary depending on the results of the presidential election. Former Vice-President, and now President-Elect Joseph Biden has pledged to recommit the U.S. to the Paris Agreement if he is elected. Unlike leaving, re-joining the agreement would only take 30 days.
- United Nations Climate Change, What is the Paris Agreement?, https://unfccc.int/process-and-meetings/the-paris-agreement/what-is-the-paris-agreement.
- Pavone, I.R., The Paris Agreement and the Trump administration: Road to nowhere?, 11 Journal of International Studies 34 (2018).
- Hillary Aidun et al, Climate Reregulation in a Biden Administration, Sabin Center for Climate Change Law, Columbia Law School, (2020).
- Böhringer, Christoph, and Thomas F. Rutherford, US Withdrawal from the Paris Agreement: Economic Implications of Carbon-Tariff Conflicts, Discussion Paper 2017-89. Cambridge, Mass.: Harvard Project on Climate Agreements, August 2017.
- Congressional Research Service, Potential Implications of U.S. Withdrawal from the Paris Agreement on Climate Change, April 5, 2019.
- David Robinson, The Significance of the US Withdrawal from the Paris Agreement on Climate Change, Oxford Institute for Energy Studies, June 2017.
- Valentin Steinhauer, Leaving the Paris Agreement: The United States’ Disengagement from the Global Climate Regime and its Impact on EU Climate Diplomacy, EU Diplomacy Paper 4/2018.
- Hillary Aidun et al, Climate Reregulation in a Biden Administration, Sabin Center for Climate Change Law | Columbia Law School (2020).
New Zealand legalizes euthanasia for terminally ill patients
New Zealand’s electoral commission announced on October 30th, that voters had approved the End of Life Choice Act legalizing euthanasia in New Zealand in a referendum held on October 17th. Over a million people constituting 62.5% of the electorate voted in favour of legalization. The End of Life Act, approved in the New Zealand parliament last year with the proviso that it has to be approved by 50% of voters in a referendum, allows people to choose to end their life if they have less than six months to live and have the approval of 2 doctors.
The assisted death must be performed by their attending medical practitioner who must remain available until the patient passes away. This means that they should be either in the same room or nearby and available. The Act also outlines the discussion that must happen between the practitioner and the patient before assisted dying is chosen. This includes explaining to the patients the diagnosis and the irreversibility of euthanasia. Medical practitioners must also encourage the patient to think about and discuss their choice with medical professionals and their family. The Act will formally become a law in November of 2021.
View the Act here.
2. Sarah Elizabeth Mathieson, Live and Let Die: The Legalisation of Euthanasia in New Zealand, Dissertation in University of Otago, (October 2013).
3. Assisted Dying: New Zealand, Parliamentary Library Research Paper 2018/06.
4. B.CH. Tsai & D.B. Menkes, New Zealand doctors and euthanasia—legal and practical considerations of the End of Life Choice Act, 133 NZMJ 149 (2020).
5. Grant Gillett, A report on euthanasia for the NZMA, New Zealand Medical Association, (2017).
6. Margaret Brazier, Euthanasia and the law, 52/2 British Medical Bulletin 317-325 (1996).
7. Rodriquez Eduardo, The Arguments for Euthanasia and Physician-Assisted Suicide: Ethical Reflections, 68/3 The Linacre Quarterly 251 (2001).
Huawei CFO Meng Wanzhou alleges abuse of process in extradition case
A Canadian Court on October 29th, agreed with Huawei CFO Meng Wanzhou that some of the allegations in a US extradition case against her have the potential to mislead the court. The United States is seeking to extradite Wanzhou from Canada to New York for her alleged role in a bank fraud, wire fraud and conspiracy case involving Huawei. Wanzhou served as chief financial officer to Huawei, and also served on the board of directors of the Iranian company Skycom. The United States alleges that Wanzhou participated in deceiving HSBC Bank about Huawei’s relationship with Skycom during a 2013 presentation in Hong Kong. HSBC was wary of being subject to U.S. sanctions by doing business with Skycom. Wanzhou was arrested in Vancouver in 2018 while on layover to Mexico, and is currently being held under house arrest there.
Associate Chief Justice Heather Holmes of the British Columbia Supreme Court held that, “some of that evidence is realistically capable of challenging the reliability of the record of the case (ROC) on issues relevant in the hearing.” She further found that there is an “air of reality” to Wanzhou’s claims that the State has engaged in abuse of process in its handling of the ROC. Holmes will allow Wanzhou to submit a limited amount of new evidence to the extradition hearing but also hold that the new evidence is not strong enough on its own to grant an outright dismissal of the case. The extradition trial is expected to continue through April of 2021.
- United States v. Meng, 2020 BCSC 1607.
- Updates in the case can be accessed here.
- Department of Justice, Chinese Telecommunications Conglomerate Huawei and Huawei CFO Wanzhou Meng Charged With Financial Fraud, (Jan 28, 2019), https://www.justice.gov/opa/pr/chinese-telecommunications-conglomerate-huawei-and-huawei-cfo-wanzhou-meng-charged-financial.
- Preston Lim, Canadian Judge Dismisses Meng Wanzhou’s Application to End Extradition Hearings, (28 May, 2020), https://www.lawfareblog.com/canadian-judge-dismisses-meng-wanzhous-application-end-extradition-hearings.
- L. M. Bloomfield, The Impact of Recent Extradition Cases Involving Canada and the United States: A Canadian Perspective, 7 Can.-U.S. L.J. 93 (1984).
- M. J. Garcia & C. Doyle, Extradition to and From the United States: Overview of the Law and Recent Treaties, CRS Report for Congress (March 2010).
- United States Seeks Extradition of Huawei Official Charged with Violating Sanctions Against Iran, 113 American Journal of International Law 388–393 (2019).
- W. H. Timbers & I. M. Pollack, Extradition from Canada to the United States for Securities Fraud: Frustration of the National Policies of Both Countries, 24 Fordham L. Rev. 301 (1955).
- Click here to view the Extradition Treaty between US and Canada.
Courts reject lawsuits filed by the Trump campaign against mail in ballots
Judges in Georgia and Michigan rejected lawsuits filed by President Donald Trump’s election campaign, challenging the legal validity of mail-in ballots. President Donald Trump and his allies pushed to have the mail-in ballots held fraudulent, alleging that ‘ballot fraud’ infected the counting process in battleground states. They were, however, unable to produce any evidence for the same, thereby being subjected to two immediate defeats in court.
A Chatham County Superior Court Judge in Georgia, denied the Trump campaign’s lawsuit mandating to disqualify about 50 ballots, claiming that ballots arrived after the 7 p.m. deadline on Election Day. In Michigan, a Court of Claims Judge denied the campaign’s request for an emergency halt to the counting of votes in the state. The Judge reasoned that counting had stopped in Michigan, and the present lawsuit ‘made little sense’. The campaign also failed to provide evidence to show that the ballots had arrived late, while Election Officials testified that it had arrived on time.
The campaign, however, succeeded in having greater access for its election observers in Pennsylvania. A state Court allowed them to be within six feet of the vote counting process. The present legal challenge was part of a group of lawsuits filed by the Trump campaign against mail-in ballots in Pennsylvania. Trump’s latest Pennsylvania lawsuit draws on the “equal protection” argument cited in Bush v. Gore, the infamous Supreme Court case that decided the contested Presidential Election of 2000, wherein the US Supreme Court held that the Supreme Court of Florida had violated the US Constitution when it ordered the recount only in certain districts.
- Ian MacDougall, ProPublica’s Guide to 2020 Election Laws and Lawsuits (Nov. 3, 2020), https://www.propublica.org/article/propublicas-guide-to-2020-election-laws-and-lawsuits.
- Find the Bush v. Gore decision here.
- Zachary Fryer-Biggs, Trump Reshaped the Court. Now his Lawyers want them to limit Voting (Jul. 22, 2020), https://publicintegrity.org/politics/elections/ballotboxbarriers/trump-reshaped-courts-lawsuits-limit-voting/.
- The election of an Indian Prime Minister was for the first time, set- aside in Indira Gandhi v. Raj Narain. Find the decision here
- Election Commission of India, Landmark Judgements On Election Law (Last visited Nov. 7, 2020), http://ceojammukashmir.nic.in/pdf/LandmarkJudgementsVOLII.pdf.
California passed Proposition-22, holding Uber and Lyft drivers as independent contractors
Californian voters approved Proposition-22, which allows ride sharing apps and delivery service apps to continue to classify their workers in California as independent contractors rather than employees. This law gives ride sharing apps like Uber and Lyft, an exemption from having to bestow its drivers with employee benefits such as minimum wage, sick leave etc. Changes to the new law can only be effected by a seven-eighths majority in the California Legislature.
The California State Legislature had previously passed Assembly Bill 5( A.B. 5), a law which classified delivery personnel, drivers of ride sharing apps and other gig company workers, as employees. This law was enacted following a 13-year long 2008 California Supreme Court decision, which held that workers of delivery service, Dynamex, were employees and not independent contractors. Uber and Lyft, fought against A.B. 5 in Court, who on appeal by California state attorneys, ordered Uber and Lyft to classify eligible drivers as employees. Uber and Lyft moved a new ballot initiative named Proposition -22 that carves out an exception within A.B. 5 for app-based services. Proposition-22, is not a referendum on A.B. 5, but a tech-industry specific exemption called the “App-Based Drivers as Contractors and Labor Policies Initiative.”
- BallotPedia, California Proposition 22, App-Based Drivers as Contractors and Labor Policies Initiative (2020), (Last visited Nov 7, 2020).
- Pratik Rungta, Proposition 22 and the Future of California’s Gig Economy (Oct. 13, 2020), https://bpr.berkeley.edu/2020/10/13/proposition-22-and-the-future-of-californias-gig-economy/.
- SCOCAL, Dynamex Operations West, Inc. v. Superior Court (Last visited Nov. 7, 2020), https://scocal.stanford.edu/opinion/dynamex-operations-west-inc-v-superior-court-34584.
- Find the brief of the Dynamex decision here.
- Shelly Steward, Pablo Aguera Reneses, Srujana Katta & Mark Graham, California’s Proposition 22 Presents an Alarming Turning Point in Labor Law (Oct. 28, 2020), https://fair.work/proposition-22/.
Algeria voters approve Constitutional reforms
A referendum proposing constitutional reforms to the Algerien constitution was passed despite a very low participation of voters. The changes approved in the referendum include presidential term limits, new powers for the parliament and judiciary and a clause to let the army intervene outside Algeria’s borders. Pro-democracy advocates, who had been protesting for a more democratic constitution for more than a year, claim that the amendment does not produce a new order in line with democratic values. The voting on the referendum recorded one of the lowest participation rates in the country’s history, with only 23% of registered voters participating. The proposals won the support of 67% of voters in a plebiscite, according to the Election Commission. It also mandates public institutions to guarantee freedom to the press. The changes were pushed forward by President Tebboune who came to power last year in a controversial election following the resignation of Mr Bouteflika over protests against his bid for a fifth term in office.
Critics contend the amendments give the president more power and expand the authority of the influential military. The protest movement continues to demand a constituent assembly, an independent judiciary and fairer distribution of the nation’s wealth.
- Abdennour Toumi, Algeria’s New Constitution Between the Spirit of the Law and the Practice of Power (Oct. 10, 2020), https://orsam.org.tr/en/algerias-new-constitution-between-the-spirit-of-the-law-and-the-practice-of-power/.
- Zaid Al-Ali, Algeria’s Draft Constitution 2020 ( May 14, 2020), https://blog-iacl-aidc.org/2020-posts/2020/5/14/algerias-draft-constitution-2020.
- Zine Labidine Ghebouli, Algeria, One Year into the Hirak: Successes and Setbacks (Feb. 20, 2020), https://www.washingtoninstitute.org/fikraforum/view/algeria-one-year-into-the-hirak-successes-and-setbacks.
CfPs and Seminars
Call for Papers (India)
- Society for Constitutional Law & Human Rights has issued a rolling call for articles for their blog. The submissions can be made here.
- The Criminal and Constitutional Law Blog has issued a rolling call for submissions, on Criminal and Constitutional Law in India. This site provides submission guidelines.
Call for Papers (International)
- Transnational Legal Theory Journal has issued a call for papers for their special issue on the theme “Transnational Legal Feminism – Beyond Western Hegemonies of International Law and Feminist Theory“. The deadline for submission of abstracts is 15th December, 2020.
- PluriCourts at the University of Oslo has issued a call for papers on the theme “Political and Legal Theory of International Courts and Tribunals“. The deadline for submission of abstracts is 4th January, 2021.
- The Harvard International Law Journal has issued a rolling call for online submissions. This site provides further submission details and guidelines.
- Think India International Relations Forum is conducting an Interactive Session on Permanent Seat for India in UNSC on 9th November 2020. Prior Registration required.
- Mediators of the Supreme Court of India, Commonwealth Lawyers Association, The Youth Bar Association of India & The Sports Dispute Resolution Centre, India are hosting an International Webinar on Scope of Mediation in Sports Dispute. Prior Registration required.
- The American Law Library of Congress is hosting the “Review of Recently Published Law Library Research Reports” on 20th November, 2020. It sheds light on some of the foreign and comparative law issues currently being researched by the foreign law and international law experts. Prior registration required.
- Associate Professor at the University of Minnesota Law School Alan Rozenshtein, Chief Data Officer for NASA Ron Thompson and other panelists discuss “Contact Tracing and the Right of Privacy” on 11th December 2020. Prior registration required.