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TeLawgram

13.11.20 – 19.11.20

Hello, this past week has seen several developments ranging from the Tamil Nadu Government considering regulating online gambling to the Asia Pacific states entering into a Regional Comprehensive Economic Partnership. 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 8

India
International
CfPs and Seminars

India

The Supreme Court directs the Centre to evolve a redressal mechanism for complaints against biased media reporting

A three-judge bench of the Supreme Court comprising Chief Justice S.A. Bobde, Justice A.S. Bopanna and Justice V. Ramasubramanian expressed its disapproval at the Centre’s failure to satisfactorily respond to a petition alleging a biased reporting of the gathering at Tablighi Jamaat. In March 2020, when the lockdown was imposed, there was a mass gathering of about 9,000 people at Tablighi Jamaat. The petitioners alleged that biased reporting of the incident resulted in the spread of communal hatred throughout the country. The Supreme Court observed that the Centre had not addressed the key issues concerning the redressal mechanism for grievances against the media and the Centre’s actions under the Cable Television Networks (Regulation) Act, 1995. The Supreme Court directed the Centre to evolve a mechanism to address complaints against the media if a regulatory mechanism was not already in place. The hearing will resume in three weeks.

Suggested readings: 

  1. The Cable Television Networks (Regulation) Act can be found here
  2. Perry L. Moriearty, Framing Justice: Media, Bias and Legal Decision Making, 69 Md. L. Rev. 849 (2010). 
  3. Abhinav Gupta, The Psychology of Fake News and Social Media Regulation (Jul.13, 2020), https://lawschoolpolicyreview.com/2020/07/13/the-psychology-of-fake-news-and-social-media-regulation/
  4. Meera Mathew, Media Self-Regulation in India: A Critical Analysis, ILI L. Rev 25 (2016). 
  5. Harini Sudershan, Religion and Censorship in the Indian Media: Legal and Extra-Legal, 1 NALSAR Media Law Rev. 113 (2010). 

Tamil Nadu Government to consider regulating online gambling

The High Court, while considering the PIL, S Muthukumar v. Union of India and others, sought a response from the Tamil Nadu Government on its intent to ban or regulate online gambling. It prayed for appropriate laws and framework to regulate or ban online games.

The Court duly noted the matter in light of the multiple incidents that took place in the State as ten people unable to pay debts after losing money on online rummy died by suicide. The Additional Advocate General M Sricharan Rangarajan submitted to the Court that the Chief Minister of Tamil Nadu has already issued a public statement intimating a complete ban on online gambling.

The bench consisting of Justice N Kirubakaran and B Pugalendhi asked whether the State Government was planning on regulating online gambling at par with other states such as Telangana, Assam, Odisha, Andhra Pradesh and Nagaland. The Court wanted a report on the steps taken by the Government to pass an ordinance or an amendment or a legislation to ban online gambling. The Court also directed the Central Government to come out with its stand on online gambling since several people were losing their lives due to it.

Suggested Readings:

  1. Find the link to the NUALS Law Journal blog post here. (The blog post entitled, Analysing Online Fantasy Sports Gaming in India written by Sarthak Bhardwaj deals with the existing Indian regulatory framework around gaming in general. It also highlights the present framework’s inadequacy to regulate online fantasy games)
  2. Legal Framework: Gambling and Sports Betting including Cricket in India, Law Commission of India 276th Report (July, 5 2018).
  3. Orissa Prevention of Gaming Act 1955, Odisha Act 17 of 1955. 
  4. The Nagaland Prohibition of Gambling and Promotion and Regulation of Online Games of Skill Act 2015, Nagaland Act No. 3 of 2016.
  5. The Assam Game and Betting Act 1970, Assam Act 18 of 1970.
  6. Vibhore Yada, Online Gambling and the Regulation of Money Laundering (July 16, 2020).
  7. FICCI, Regulating Sports Betting in India (Nov 20, 2020).

The Supreme Court rules that non-party creditors can petition for the transfer of winding up proceedings from Company Courts to NCLT

The Supreme Court in the matter of M/S Kaledonia Jute and Fibres Pvt Ltd v.  M/S Axis Nirman And Industries Ltd & others has held that any creditor of a company can seek transfer of winding up proceedings pending before a High Court to a National Company Law Tribunal (NCLT). The Court heard a petition filed by a financial creditor against an Order passed by the High Court of Allahabad which refused to transfer the winding-up proceedings from the High Court to the NCLT. The Court answered two main questions. One, the circumstances under which a winding-up proceeding could be transferred and second,  the persons who can seek such a transfer. 

The Court relied on the precedent set in Forech India Ltd. v. Edelweiss Assets Reconstruction Co. Ltd to state that any person could apply for transfer of such petitions to the NCLT under the Insolvency and Bankruptcy Code. However, the Court clarified that any person would include only the parties to the winding-up proceedings.

The 3-judge bench comprising Chief Justice SA Bobde and Justices AS Bopanna and V. Ramasubramanian held that the proceedings for winding up of a company are proceedings in rem. Therefore, an entire body of creditors is a party and the words “party or parties” appearing in the 5th proviso to 434(1)(c) the Companies Act, 2013 would take within its fold any creditor of the company in liquidation.

Suggested Readings:

  1. Find judgment here.
  2. Anirudh Gotet, Winding-up under Section 271(a) of the Companies Act and its Impact on the Insolvency and Bankruptcy Code (Aug 18, 2017).
  3. Dheeresh Kumar Dwivedi, Transferability of Winding-up Proceedings from High Court to NCLT (March 31, 2018).
  4. Forech India Ltd. vs Edelweiss Assets Reconstruction, Civil Appeal 818 OF 2018.
  5. Akhil Kumar  and Ayushi Singh, Supreme Court on the Relationship between Insolvency and Winding-up Proceedings (April 19, 2019).

The Delhi High Court ruled that petitions for interim relief under the Arbitration Act cannot be disposed of ex parte

The Delhi High Court, on November 9th, ruled that petitions seeking interim relief under Section 9 of the Arbitration and Conciliation Act cannot be disposed of, ex parte. The petitioner, New Morning Star Travels, had purchased luxury buses on loan from the respondent, Volkswagen Finance, to run a business. The petitioner defaulted on payments, and Volkswagen filed sixteen arbitration petitions before the District Court. The District Court appointed a Receiver to take possession of the vehicles and disposed of the petitions on the first day of the hearing, without serving notice to the petitioner. Since the District Court had passed a coercive order that would halt Morning Star’s business, the Delhi High Court ruled that the Orders of the District Court would not stand. The Court observed that the standards for granting interim relief under Section 9 of the Arbitration Act were akin to those under Order XXXIX of the Code of Civil Procedure. The guidelines concerning interim relief in the Madras High Court’s judgement in Cholamandalam DBS Finance Ltd. v. Sudhees Kumar were approved by the Court, and the District Court’s Orders were set aside. 

Suggested readings:

  1. The judgement can be found here
  2. Cholamandalam Dbs Finance v. Sudheesh Kumar, 2010 (1) CTC 481 (see para.25).
  3. Click here for the previous TeLawgram update on interim relief.  
  4. Rishabh Gupta & Aonkan Ghosh, Choice Between Interim Relief from Indian Courts and Emergency Arbitrator (May 10, 2017), http://arbitrationblog.kluwerarbitration.com/2017/05/10/choice-between-interim-relief-from-indian-courts-and-emergency-arbitrator/
  5. Swastika Chakravarti, Interim Orders of an Arbitral Tribunal: Contempt, Execution and Beyond (Sep.8, 2017), https://indiacorplaw.in/2017/09/interim-orders-arbitral-tribunal-contempt-execution-beyond.html.

Karnataka High Court directs the State Government and BBMP to identify homeless and destitute children through a scheme

Letzkit foundation, an NGO, filed a writ petition before the Karnataka High Court to ensure that children do not engage in toy sales at traffic junctions. In the plea, the petitioners emphasized on the violation of the rights of several children under the Constitution as well as the Karnataka Prevention of Beggary Act. A Division Bench of the Karnataka High Court comprising Chief Justice Abhay Shreeniwas Oka and Justice Vishwajit Shetty observed that rights guaranteed by Articles 21 and 21A of the Constitution were being violated. The Court observed that such violations occurred either because of forced begging, or the socio-economic circumstances in which the children live. The Court directed the state government and the Bruhat Bengaluru Mahanagara Palike (BBMP) to collaborate with NGOs and evolve a scheme to identify destitute children in the city and the state. The petition will next be heard on November 30th, 2020.

Suggested readings: 

  1. The petition can be found here
  2. ILO & UNICEF, COVID-19 and Child Labour: A Time of Crisis, A Time to Act (last visited Nov. 20, 2020), https://www.unicef.org/sites/default/files/2020-06/COVID-19-and-Child-labour-2020.pdf
  3. Carmen S. Giordano,   Bandhua Mukti Morchina v. Union of India, 7 NYLS Journal of International and Comparative Law 455 (1986).  
  4. Anupma Kaushik, Rights of Children: A Case Study of Child Beggars at Public Places in India, 2 Journal of Social Welfare and Human Rights 1 (2014). 
  5. Lana Osment, Child labour; the effect on child, causes and remedies to the revolving menace (last visited Nov. 20, 2020), http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=4275652&fileOId=4275654.

International

EU presents first-ever LBGTIQ equality protection strategy

The European Union’s Executive Commission presented its first strategy on November 12th to promote lesbian, gay, bisexual, trans, non-binary, intersex, and queer (LGBTIQ) equality, proposing to extend the list of EU crimes to cover hate crime and ensure that EU policymaking reflects LGBTQI concerns. The strategy builds upon the Commission’s List of Actions to Advance LGBTI Equality and other European Commission strategic frameworks designed to end discrimination based on race and gender.The Commission President Ursula von der Leyen announced the plan in her 2020 State of the Union Address. The proposal aims to strengthen equality and non-discrimination in the EU, noting that discrimination against LGBTIQ individuals has increased in the EU in recent years. The measure also seeks to ensure that the legal status of LGBT relationships cannot be revoked when they cross borders.

Suggested Readings:

  1. Click here to find the new strategy.
  2. Click here to view the report.
  3. European Commission, Union of Equality: The Commission presents its first-ever strategy on LGBTIQ equality in the EU, (Nov. 12, 2020), https://ec.europa.eu/malta/news/union-equality-commission-presents-its-first-ever-strategy-lgbtiq-equality-eu_en.
  4. European Union Agency for Fundamental Rights, EU LGBT survey European Union lesbian, gay, bisexual and transgender survey, Available at https://www.scottishtrans.org/wp-content/uploads/2014/12/fra-eu-lgbt-survey-main-results_tk3113640enc_1.pdf (last visited Nov. 20, 2020).
  5. United Nations, Living Free and Equal: What States Are Doing to Tackle Violence and Discrimination against Lesbian, Gay, Bisexual, Transgender and Intersex People, HR/PUB/16/3, Available at https://www.ohchr.org/Documents/Publications/LivingFreeAndEqual.pdf (last visited Nov. 20, 2020).

The Canadian government proposes significant privacy measures in new bill

Canada’s Minister of Innovation, Science and Industry, Navdeep Bains, introduced a new bill in the Canadian House of Commons on November 17th that will bring about significant privacy reforms to comply with Canada’s Digital Charter. It aims to increase personal control over digital information and ensure stricter fines. The bill, entitled the Digital Charter Implementation Act, 2020, comes after Mr. Bains announced the Canada Digital Charter in 2019. The Charter was originally released in response to increasing data breach claims and consists of 10 principles that include transparency, portability, and interoperability, control and consent, and strong enforcement and real accountability. The Digital Charter Implementation Act 2020 aims to support and enforce these ten principles.

The Bill makes consent valid only if the  concerned organization gives the information in plain language. It grants individuals greater control by allowing them to transfer their personal information among institutions as well as request that their personal information be disposed of. It establishes fines of up to $25,000 or 5% of the organization’s revenue for breach of these new reforms. The Bill also intends to establish the Personal Information and Data Protection Tribunal to deal with relevant appeals and penalties. If passed, the Bill will enact the Consumer Privacy Protection Act and the Personal Information and Data Tribunal Act.

Suggested Readings:

  1. Click here to view the Bill.
  2. Click here to view the Digital Charter.  
  3. Colin Hyslop, Bill C-11: Canada proposes new data privacy legislation, (Nov. 20, 2020), https://www.dataprotectionreport.com/2020/11/bill-c-11-canada-proposes-new-data-privacy-legislation/.
  4. K. Thompson & K. Schober, Canada’s proposed new privacy law – Summary of business impacts, (Nov. 18, 2020), https://www.jdsupra.com/legalnews/canada-s-proposed-new-privacy-law-99504/.
  5. Office of the Privacy Commissioner of Canada, Privacy and Cyber Security Emphasizing privacy protection in cybersecurity activities, Available at https://www.priv.gc.ca/media/1775/cs_201412_e.pdf, last visited (Nov. 20, 2020).   

Russian Duma passes a draft law granting the President immunity from criminal prosecution for life

The Lower House of Russia’s Parliament, the Duma, passed the first reading of a draft law granting “guarantees to the President of the Russian Federation who has terminated the exercise of his powers” These guarantees (immunities) are to be extended to the former President’s family members as well. According to the Explanatory Note to the draft law, it brings the provisions of Article 3 of the Constitution ‘On guarantees to the President of the Russian Federation, who has terminated the exercise of his powers, and members of his family’ in accordance with Article 93 of the Constitution of the Russian Federation, which discusses impeachment.

The draft law will go through two more readings in the Duma before being passed on to the upper house of the Russian Parliament, the Federation Council. It will become law once assented to by President Vladimir Putin. The immunity provisions in the draft law protect the former President and his family from police searches, questioning, and confiscation of property. Additionally, they would be protected from prosecution for any crime they had committed in their lifetime, with the only exceptions being alleged acts of treason and other grave crimes in extraordinary circumstances. The proposed amendments will update the Constitution, which currently only protects a President from prosecution for crimes committed while in office.

Suggested Readings:

  1. Click here to view the draft law.
  2. Click here to view the Russian Constitution. 
  3. Jessica Needham, Protection or Prosecution for Omar Al Bashir? The Changing State of Immunity in International Criminal Law, 17 Auckland University Law Review 219-248 (2011). 
  4. Jadranka Petrovic et al, To Arrest or Not To Arrest The Incumbent Head Of State: The Bashir Case and the Interplay Between Law and Politics, 42 ed.3 Monash University Law Review 741- 782.
  5. Fred Kennedy, Immunity of State Officials before the International Criminal Court (ICC): the indictment of President Al-Bashir, 1 ed.1 Arizona Journal of International and Comparative Law (2013). 
  6. S. Williams & L. Sherif, The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court, 14 ed.1 Journal of Conflict & Security Law 71-92 (2009). 
  7. Asad G. Kiyani, Al-Bashir & the ICC: The Problem of Head of State Immunity, 12 ed.3 Chinese JIL 467–508 (2013).

Asia Pacific states enter into Regional Comprehensive Economic Partnership after a decade of negotiations

Leaders from fifteen Asia-Pacific states signed the Regional Comprehensive Economic Partnership (RCEP) after nearly a decade of negotiations. The RCEP is one of the biggest trade deals in history and marks a major step forward for economic integration amongst Asia- Pacific states. It seeks to reduce barriers in an area covering a third of the world’s population and to increase economic output. The agreement ensures better employment opportunities, raises living standards and improves the general welfare of people of the member states. The agreement establishes a free trade area and sets out a number of provisions on subjects including trade in goods, trade in services, temporary movement of natural persons, investment, intellectual property, competition and dispute settlement. The RCEP is the first trade agreement bringing together China, Japan and South Korea and could add almost $200bn annually to the global economy by 2030. 

India withdrew from the agreement in 2019, heightening concerns over China’s dominance in the pact. India disagreed on e-commerce sections and trade imbalances, particularly in agricultural and industrial trade. India pushed for a provision on “data localization” within the e-commerce section, which required personal data to be stored in the source nation. The RCEP is the first step towards Asia’s emergence as a significant trading zone, like Europe and North America.

Suggested Readings:

  1. Find the trade deal here.
  2. Peter K. Yu, The RCEP and Trans-Pacific Intellectual Property Norms, 50 Vand. J. Transnat’l L. 673 (2017), https://scholarship.law.tamu.edu/facscholar/1001
  3. Sourish Mohan Mitra, Bridges not Barriers (Mar. 15, 2020), https://law.asia/india-trade-bridge-barriers/
  4. Heng Wang, China-led RCEP provides starting point for reducing tensions and building new global trade rules (Jun. 4, 2020), https://www.law.unsw.edu.au/news/china-led-rcep-provides-starting-point-for-reducing-tensions-and-building-new-global-trade
  5. Haochen Sun, Statement of Public Interest Principles for Copyright Protection under the Regional Comprehensive Economic Partnership (RCEP), 48 International Review of Intellectual Property and Competition Law 334-337 (2017), https://ssrn.com/abstract=2996362.

Hong Kong court rules that the City Government breached Bill of Rights on torture & cruel treatment

The High Court of Hong Kong ruled that the City Government had failed to provide an independent mechanism to handle police complaints, breaching Hong Kong’s Bill of Rights on torture and cruel treatment. The Journalist Association in Hong Kong had launched a judicial review in 2019 following widespread anti-government protests.  The protests began in opposition to a proposed extradition bill which later became a broader pro-democracy movement. Protesters argued that the government had an obligation to set up an independent mechanism to “effectively investigate” into suspected ill-treatment by the police. The Chinese-ruled City’s leader, Carrie Lam commented  that the existing mechanism, the Independent Police Complaints Council (IPCC) was sufficient to deal with police complaints and there was no need for an independent system.

The High Court ruled that the system was inadequate to discharge the government’s obligations under the Bill of Rights, and the government was duty-bound to establish an independent mechanism. The Court observed that the Police Complaints Department (Capo) was an unsegregated part of the police force, and could not be regarded as a practically independent complaint redressal system. The IPCC, although  practically independent, lacked the powers to investigate and could not overturn Capo’s decisions. Hong Kong’s Bill of Rights was introduced in 1991 as the then British-ruled city was preparing for its 1997 handover to China under a “one country, two systems” formula aimed at guaranteeing it a high degree of autonomy.

Suggested Readings:

  1. Find the Bill of Rights here.
  2. Find the Summary on the Law On Torture, And Cruel, Inhuman And Degrading Treatment Or Punishment here.
  3. Find the order here.
  4. Civil Rights Observer, Policing Protests in Hong Kong: Torture & Cruel, Inhuman or Degrading Treatment or Punishment (Civil Rights Observer) (2020), https://www.hkcro.org/wp-content/uploads/2020/07/cidtp_final.pdf (last visited Nov 20, 2020).
  5. Hong Kong Human Rights Commission & Society for Community Organisation, Report to the United Nations Committee Against Torture on the Second Report by Hong Kong Special Administrative Region under Article 19 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2020), https://www.legco.gov.hk/yr08-09/english/panels/se/papers/se1027cb2-129-11-e.pdf (last visited Nov 20, 2020).

Trump Administration appeals against the Court order staying H-1B travel ban

The Trump administration has approached the Appeals Court (known as the ninth circuit) against an order of the California District Court, which granted a preliminary injunction against the travel ban for H-1B and other work visa holders, thereby contesting for the reimposition of the travel ban. Trump, in a proclamation, had temporarily banned entry for H-1B visa holders and other non-immigrant workers citing reasons of growing unemployment among US citizens amidst the pandemic. His decree froze new H-1B and H-4 visas, used by technology workers and their families, as well as L visas for intra-company transfers and most J visas for work and study abroad programs at least till the end of 2020. The California District Judge in his order on September 29, stayed the effective date of the framed final rule and denied the government’s request for a brief administrative stay. The Judge ruled that Trump exceeded his authority by imposing the immigration restrictions as the proclamation purely dealt with a domestic issue and since concerns of national security or foreign affairs were not involved, only normal policy-making channels are to be followed.

Suggested Readings: 

  1. Find the California District court order here.
  2. David Grunblatt, Erica Loomba, Valarie H McPherson & Jennifer Wexler, Immigration Proclamation Prohibits Entry to the U.S. for Most H-1B, H-2B, J and L Nonimmigrants, Effective June 24, 2020 (Jun. 23, 2020), https://www.natlawreview.com/article/immigration-proclamation-prohibits-entry-to-us-most-h-1b-h-2b-j-and-l-nonimmigrants
  3. Samuel Mudrick , An Extended Pause: New Presidential Proclamation Halts US Entry for Thousands of Workers (Jun. 23, 2020), https://www.employmentlawworldview.com/an-extended-pause-new-presidential-proclamation-halts-us-entry-for-thousands-of-workers/
  4. Virginia Gewin, The Visa Woes That Shattered Scientists’ American Dreams (Sept. 28, 2020), https://www.nature.com/articles/d41586-020-02746-y
  5. Frank Gogol, Complete Guide to the H1B Travel Ban Lawsuit (2020), https://www.stilt.com/blog/2020/07/h1b-travel-ban-lawsuit/ (last visited Nov 20, 2020).

CfPs and Seminars

Call for Papers (India)

  • The All India Legal Forum invites, on a rolling basis, submissions on any contemporary area of law. Please click here for submission guidelines. 
  • HNLU’s Journal of Law and Social Sciences invites submissions on contemporary legal and socio-political issues for its 6th Volume. The deadline for submission is 2nd December, 2020. 

Call for Papers (International)

  • The Yearbook of Socio-Economic Constitutions invites submissions to its 2nd Volume on the theme, “Triangulating Freedom of Speech”. The deadline for submission of proposals is 1st December, 2020
  • African International Economic Law Network invites submissions for its Virtual Colloquium 2021 on “COVID-19 and International Economic Law: Africa’s Experiences and Responses”. The deadline for submission is 31st December, 2020.  

Webinars (India)

  • South Asia Students for Liberty is hosting an Online Colloquium on ‘The Era of Cyberpreneurship’ on 29th November, 2020. Prior registration required. 

Webinars (International)

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