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TeLawgram

20.11.20 – 27.11.20

Hello, this past week has seen several developments ranging from the Madras High Court passing an interim order against sexual advertisements to the EU Court of Justice finding fleeing military draft as a ground for granting asylum. Happy Reading!

Greetings! Owing to exams, TeLawgram will be going on a short hiatus for the next month.

Week 9

India
International
CfPs and Seminars

India

Franklin Templeton moves SC against Karnataka HC’s ruling

The Franklin Templeton Mutual Fund has challenged the Karnataka High Court’s judgement regarding the winding up of its debt schemes before the Supreme Court. Franklin Templeton wound up six of its debt schemes on April 23rd, 2020. The winding up of debt schemes was challenged before the High Courts at Delhi, Madras and Gujarat. The Supreme Court transferred the petitions to the Karnataka High Court, which held that the winding up of debt schemes would not be interfered with. The Division Bench also held that Franklin Templeton was obligated to obtain the consent of a simple majority of the unit-holders under Regulation 18(15)(a) of the SEBI (Mutual Funds) Regulations of 1996. The Court observed that the trustees had obligations towards the unit-holders who had stakes in the six debt schemes. The High Court’s decision has now been challenged before the Supreme Court.

Suggested readings: 

  1. Securities and Exchange Board of India v. Franklin Templeton Trustees Services Pvt. Ltd., W.A. No. 399 of 2020.
  2.  Click here for the SEBI Mutual Funds Regulations. 
  3.  Keshav Malani & Ayush Gattani, The Franklin Templeton Mutual Funds Fiasco: Who’s At Fault? (May 9, 2020), https://thecclrblog.wordpress.com/2020/05/09/the-franklin-templeton-mutual-funds-fiasco-who-is-at-fault/. 
  4. Umakanth Varottil, Karnataka High Court Decision in the Franklin Templeton Case (Oct.25, 2020), https://indiacorplaw.in/2020/10/karnataka-high-court-decision-in-the-franklin-templeton-case.html. 
  5. See generally Ramabadran Uppily and M.S. Ramaratnam, Managing Mutual Fund Portfolio – The Franklin Templeton Credit Risk Fund Debacle, FIIB Business Review 1 (2020).

Madras High Court passes interim order against sexual advertisements

A Division Bench of the Madras High Court comprising of Justice N Kirubakaran and Justice B Pugalendhi passed an interim order against the telecast of sexual advertisements that promote the sale of condoms. The petitioner, KS Sagadevaraja argued that the advertisements would affect the minds of women and children since the promotions were being telecast on all television channels. The Madras High Court observed that certain promotions were comparable to pornographic material and such advertisements violated Section 16 of the Cable Television Network (Regulation) Act, 1995 and Rule 7(1) of the Cable Television Network Rules of 1994. The PIL will be heard on December 1st, 2020 and the Central Government will have to provide clarity on the aspect of censorship under Section 5(A) of the Cinematographic Act, 1952. 

Suggested Readings:

  1. Click here for the Madras High Court’s Order.
  2. FICCI, Advertising Standards in India: An Introduction (last visited Nov. 27, 2020), http://www.ficci.in/Sedocument/20240/Survey_on_Advertising_Standards.pdf. 
  3. The Advertising Standards Council of India, The Code for Self-Regulation of Advertising content in India (last visited Nov. 27, 2020), http://iprmentlaw.com/wp-content/uploads/2018/03/ASCI-Code.pdf 
  4. Jean J. Boddewyn, Controlling Sex and Decency in Advertising Around the World, 20 Journal of Advertising 25 (1991). 
  5. Steven S. Schechter, Extra-Governmental Censorship in the Advertising Age, 12 Loy. L.A. Ent. L. Rev. 367 (1992). 

SC directs Madras HC to determine the constitutional validity of Section 40(a)(iib) of the Income Tax Act

A three-judge bench of the Supreme Court, on November 25th, 2020, directed the Madras High Court to hear the constitutional challenge to Section 40(a)(iib) of the Income Tax Act, 1961. Section 40(a)(iib) of the Income Tax Act prevents the deduction of amounts paid as royalty, license fee, service fee etc. by State Government undertakings to compute income under the “Profits and gains of business or profession” head. The petitioner, Tamil Nadu State Marketing Corporation Ltd., argued that the provision violated Article 14 of the Constitution as it treated similarly situated tax assesses, in this case, Central Government and State Government undertakings differently. The Madras High Court dismissed the writ petition stating that the dispute regarding the inclusion of Value Added Tax (VAT) under Section 40(a)(iib) remained sub judice and the petition could be entertained at the appropriate time. The Supreme Court held that the High Court of Madras had failed to exercise its powers under Article 226 of the Constitution and directed the Court to hear the petition on merits.

Suggested Readings:

  1. Click here for the Supreme Court’s judgement. 
  2. Click here for the Madras High Court’s judgement. 
  3. Tarun Jain, Section 40(a)(iib) of the Income Tax Act – Appraising Fiscal Autonomy Concerns of the States,  256 Central Tax Reporter (Articles) 65 (2015). 
  4. K. Gopakumar, Computation of Taxable Income of State Government Undertakings in India: A Critique in View of the Amendments in Income Tax Law, 57 JILI 244 (2015). 
  5. See generally Edward B. Whitney, The Income Tax and the Constitution, 20 Harv. L. Rev. 280 (1907). 

CCI approves Future’s acquisition by Reliance; Delhi HC reserves orders

The Competition Commission of India (CCI) on November 20th, 2020 approved the Future Group- Reliance deal rendering a massive blow to the e-commerce giant Amazon. CCI approved the acquisition of retail, wholesale, logistics & warehousing businesses of the Future Group by Reliance.

Amazon, an investor in one of the Future Group’s holding companies, had won an injunction from Singapore International Arbitration Centre (SIAC) on October 25th, 2020. The interim Order passed in favour of Amazon was set to halt Future Group’s deal to sell retail assets to Reliance. Amazon argued that the Future group breached the contract between them. The Future Group had approached the Delhi High Court against Amazon to restore the deal with Reliance, which was stalled by an Emergency Arbitrator of the SIAC.

Subsequently, Amazon had approached the market regulator, Securities and Exchange Board of India (SEBI), stock exchanges and the CCI, urging them to consider the arbitration order and not to approve the deal. However, the decision of the CCI was a huge setback to Amazon. The Delhi High Court on November 20th, 2020 reserved its Order on Future Retail Limited’s plea seeking to restrain Amazon from approaching regulatory bodies against the deal with Reliance’s retail arm. The Court concluded hearing arguments by both the parties and reserved its judgment. The Court has directed the parties to file written submissions by November 23rd, 2020.

Suggested readings:

  1. Tansi Foteda, The Reliance-Future Deal And The Future Of Retail – Key Concerns For Competition Law (Sept 27, 2020)
  2. Chahat Walia, Deconstructing India’s Competition Law in the Context of the Indian E-retail Market: A Case of an Antitrust Paradox (Jan 31, 2020). 
  3. Stephanie Khan and Benson Lim, Emergency Arbitrator Procedures: What Should a Practice Note of Best Practices Consider? (Jan 11, 2019)
  4. Souvik Ganguly, India – Emergency Arbitration And Its Enforceability In Indian Context (April 17, 2020).

Kerala Governor Signs Ordinance Repealing Controversial Amendment To Police Act

Governor of Kerala Arif Mohammed Khan on November 25th, 2020, signed an ordinance repealing the controversial amendment to the Kerala Police Act, which had triggered a political storm with concerns being raised over its possible misuse by the police.

The amendment which was approved by the State cabinet last week introduced section 118A to the Kerala Police Act. The State had envisaged the new section to deal with crimes committed through social media. Section 118-A sought to give the State the right to prosecute and jail individuals for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory through any mode of communication.  It was contended that section 118-A gave undue discretionary powers to the police. 

The political outcry over the amendment, providing for up to five years jail term to those making defamatory social media posts, curbing the freedom of speech and media forced the Government led by Chief Minister Pinarayi Vijayan to withdraw the amendment.

A special cabinet met on November 24th, 2020 and  recommended to Governor Arif Mohammed Khan to promulgate an ordinance to repeal Section 118-A. Khan signed to withdraw the amendment. 

The Chief Minister guaranteed that a new law would only be passed only after detailed discussions in the Assembly and duly considering the opinions from all quarters.

Suggested readings: 

  1. Kerala Police Act, 2011, No. 8. Gazette of Kerala (2011).
  2. Kerala Police (Amendment) Ordinance, 2020, No. 79, Gazette of Kerala (2020).
  3. Kerala Police (Amendment) Withdrawal Ordinance, 2020, No. 80 ,Gazette of Kerala (2020).
  4. Find the link to the blog post on the NUALS Law Journal on Free Speech here. Ankita Amarnath Kamath, How Free Should Free Speech be (Sept 22, 2020).
  5. Hate Speech, Law Commission of India 267th Report (2017).

2018 Amendment To Prevention Of Corruption Act Has No Retrospective Effect: Delhi High Court

The Delhi High Court has held that the 2018 amendment to the Prevention of Corruption Act, does not have retrospective effect. Justice Brijesh Sethi observed that the Act does not reveal any intention of destroying the earlier provisions, or to obliterate the earlier law.

The Court heard the matter of CBI v. A. Raja. It rejected the plea of the accused objecting to the appeal of the Central Bureau of Investigation against the acquittals in the 2G case. They contended that the appeal has become infructuous given the 2018 amendment to the Prevention of Corruption Act.

One of the contentions raised was that the Section 6A of the General Clauses Act which speaks of continuity of prosecution under repealed laws for offences committed while in force will not apply as the amendment is beneficial. Referring to the provisions of Prevention of Corruption (Amendment) Act, 2018, the Court said that there is no express intention that Section 6 of the General Clauses Act will not apply. Moreover, the amending Act does not indicate that all pending proceedings or prosecutions undertaken under the unamended Act would lapse with the amending Act.

Suggested Readings:

  1. Prevention of Corruption Act, 1988, No. 49, Acts of Parliament (1988). 
  2. Prevention of Corruption (Amendment) Act, 2018, No. 16, Acts of Parliament (2018).
  3. General Clauses Act, 1897, No. 10, Acts of Parliament (1897).
  4. CBI v. A Raja, Crl.M.A.1731/2020.
  5. Neha Meena, Demand: Prerequisite for an Offence under the Prevention of Corruption Act (Jan 20, 2020).

International

EU Court of Justice finds fleeing military draft as a ground for granting asylum

The European Union Court of Justice ruled that foreign military draft evaders could be entitled to asylum in the EU. In a preliminary ruling the Court held that there was a strong presumption that people escaping military service in violent regimes were entitled to asylum, since evasion falls under the category of “expression of political opinions, religious beliefs, or motivated by membership of a particular social group” as provided by EU law.

The ruling follows a referral from the Administrative Court of Hannover, seeking an interpretation of the EU Directive on International Protection. The referral is a result of an action filed against the German Federal Office for Migration and Refugees by a Syrian national who fled Syria to avoid being drafted in the Military.  The Federal Office refused the asylum application on the grounds that the applicant had not been subject to persecution which induced him to leave. They further argued that regardless of the possible persecution, the asylum applicant did not qualify for any of the five criteria which may give rise to recognition as a refugee; race, religion, nationality, political opinion or membership of a particular social group.

While the case has been sent back to the Administrative Court to be decided on the merits, the German Court will be obligated to follow the interpretation of the directives laid out in the ECJ ruling. The decision of the EU Court in this case could also affect future and ongoing asylum applications by other men who have fled Syria in order to escape the military draft.

Suggested Readings:

  1. Click here to view the Hannover Court’s ruling.
  2. Click here to view the ECJ’s judgement.
  3. Click here to view the Direction.
  4. United Nations High Commissioner for Refugees, Safe at Last? Law and Practice In Selected Eu Member States With Respect To Asylum-Seekers Fleeing Indiscriminate Violence, July 2011.
  5. European Asylum Support Office, Annual Report on the Situation of Asylum in the European Union 2018, June 2019, Available at http://www.europeanmigrationlaw.eu/documents/EASO-annual-report-2018.pdf (last visited Nov. 27, 2020).
  6. European Law Institute, Detention of Asylum Seekers and Irregular Migrants and the Rule of Law, March 2020, Available at https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/Detention_and_the_Rule_of_Law.pdf (last visited Nov. 27, 2020).

Freshfields Bruckhaus Deringer overhauls German Legal Structure ahead of Brexit transition

Dubbed the World’s Oldest International Law Firm, Freshfields Bruckhaus Deringer, has overhauled the structure of its German partnership, in anticipation of a no-deal Brexit. Last week, the firm confirmed that it has converted its UK-aligned Limited Liability Partnership into the German equivalent, and is now called “Freshfields Bruckhaus Deringer Rechtsanwälte Steuerberater PartG mbB” in Germany.

In fact, over the past couple of years, UK law firms have been preparing for a hard Brexit by examining European jurisdictions individually. Their main concern is whether “in the event that an EU-wide trade agreement is not reached, U.K. LLPs will be recognised as having limited liability in the EU27”.

These changes follow a House of Lords’ EU Services Sub-Committee Report, which was published in mid-October. It suggests that even if a no-deal Brexit is averted, restructuring of UK-headquartered LLPs with EU offices is likely to be required. As a justification, the Committee draws a parallel – that the EU Member States can use ‘national reservations’ to protect their services sector from competition under the EU-Canada Comprehensive Economic and Trade Agreement (CETA), and that the same could apply to a UK deal.

Suggested Readings:

  1. Hannah Roberts, Freshfields Rejigs German Legal Structure in Brexit Move, (Nov. 24, 2020), https://www.law.com/international-edition/2020/11/24/freshfields-rejigs-german-legal-structure-in-brexit-move/.
  2. Giesela Reuhl, The complexity of the post Brexit era for English LLPs and foreign legal professionals in EU Member States: a French perspective, (Feb. 18, 2019), https://conflictoflaws.net/2019/the-complexity-of-the-post-brexit-era-for-english-llps-and-foreign-legal-professionals-in-eu-member-states-a-french-perspective/. 
  3. Click here for the Sub-Committee Report.  
  4. Click here for the CETA. 
  5. Lucy Trevelyan, UK LLPs in Europe eye disruption in face of no-deal Brexit, (No. 19, 2020), https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=E4087039-8BAE-4322-850D-C64B6333DF96.

Sweden rejects Google’s appeal for violating provisions of the GDPR

The Administrative Court of Stockholm rejected Google’s appeal against the decision of the Swedish Data Protection Authority and confirmed that Google has violated the provisions of the EU’s General Data Protection Regulation (GDPR). The Authority had imposed a fine of 75 million Swedish kronor (approximately 7 million euros) on Google in March for violating the provisions of the “right to be forgotten” under the GDPR. They observed that Google did not handle individuals’ right to search result listings with their names, removed from the search engine and ordered the company to remove these search results. The Court found that Google’s practice of informing webmasters after removing search results from its search engines is not permitted under the GDPR. The Court also noted that the penalty imposed on Google by the Authority could be reduced significantly and brought it down from 75 million Swedish kronor to 52 million Swedish kronor (approx. 5 million euros).

Suggested Readings:

  1.  Click here to view the Swedish Court’s press release.
  2. Click here to view the General Data Protection Regulation.
  3. European Data Protection Board, The Swedish Data Protection Authority imposes administrative fine on Google, (Mar. 11, 2020), https://edpb.europa.eu/news/national-news/2020/swedish-data-protection-authority-imposes-administrative-fine-google_en.
  4. Kerr, Julia, What is a Search Engine? The Simple Question the Court of Justice of the European Union Forgot to Ask and What It Means for the Future of the Right to be Forgotten, 17 Chicago Journal of International Law 217- 243 (2016).
  5. Christopher Kuner, The Court of Justice of the EU Judgment on Data Protection and Internet Search Engines, LSE Law, Society and Economy Working Papers 3/2015.

Producer of OxyContin (Opioid), Purdue Pharma pleads guilty to criminal charges

Purdue Pharma LP, the producer of OxyContin pleaded guilty to three federal criminal charges in relation to the company’s role in the creation of the America’s opioid crisis. It is pertinent to note that the opioid epidemic which has undergone three phases began with the introduction of OxyContin in 1996, and was fuelled by the over-consumption of these prescription opioids.

The alleged violations included two counts of conspiracy to violate the Federal Anti-Kickback Statute and one for dual-object conspiracy to defraud the United States, and to violate the Food, Drug and Cosmetic Act.

The plea deal, announced in October, carries above $5.5 billion (approx. ₹ 4,066 crores) in penalties, most of which is expected to go unpaid, on account of the company’s bankruptcy. The company will be dissolved as a part of the plea agreement, and its assets will be used to create a new “public benefit company” controlled by a trust or similar entity designed for the benefit of the American public.

The Justice Department has stated that Purdue Pharma will function entirely in public interest rather than to maximize profits. Its future earnings, according to the Dept. will go towards paying the fines and penalties, which will be used to combat the opioid crisis. This case holds relevance owing to the recent marijuana legalisation wave in the US.

Suggested Readings:

  1. Click here for the Bankruptcy Proceedings.  
  2. S. Chihuri, G. Li, State marijuana laws and opioid overdose mortality, 6 Inj. Epidem. 38 (2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6717967/. 
  3. A.K. Lopez, et al., Prescription Opioid Distribution after the Legalization of Recreational Marijuana in Colorado, 17 Int J Environ Res Public Health 3251, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7246665/. 
  4. Peter Grinspoon, Access to medical marijuana reduces opioid prescriptions, (May 09, 2018), https://www.health.harvard.edu/blog/access-to-medical-marijuana-reduces-opioid-prescriptions-2018050914509. 
  5. Ishida JH, et al., Substitution of marijuana for opioids in a national survey of US adults, 14 PLoS ONE 10,  https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0222577. 

The French Parliament passes controversial security bill

On November 22, 2020, thousands of French people protested against a bill, called the “Global Security Act” which aims to protect police officers and increase public surveillance. The protest was reported to have been encouraged by organizations like Reporters without Borders, Amnesty International France, the Human Rights League, journalists’ unions and other civil society groups. The French Parliament, on November 24, 2020, voted to pass the Bill.

The Global Security Act, which was introduced by the Governing Party, came under scrutiny primarily due to Article 24. Article 24 applies to civilians and journalists alike and would make it a crime to show images of an officer’s face unless it has been blurred. Publication of the same on social media or elsewhere with the intent to undermine the officer’s “physical or psychological integrity” would be punishable with a year in prison or a fine up to $53,000 dollars (approx. ₹40 lakh).

The other provisions of the Act which are being questioned are Articles 21 and 22, which aim to increase surveillance by using pedestrian cameras or drones.  

According to the Government, this measure is intended to protect police officers from online calls for violence. On the other hand, critics say that it would lead to journalists and other observers who record police at their work, constantly being monitored, which would amount to a violation of privacy and of their press freedom.

Suggested Readings:

  1. Click here for the Bill. 
  2. Click here for the Press Freedom Police Codex. 
  3. Click here for Amnesty International France’s Translated Analysis of the Law 
  4. Click here for the original Analysis. 
  5. For the history of Press Freedom in France – Thierry Vedel et al., Media Pluralism Monitor 2016: Monitoring Risks for Media Pluralism in the EU and Beyond, Country report- France, European University Institute (2016), https://cmpf.eui.eu/media-pluralism-monitor/mpm-2016-results/france/.

CfPs and Seminars

Call for Papers (India)

  • The Indian Journal of Constitutional Law (IJCL) NALSAR University of Law invites submissions for its 10th Volume, on contemporary issues in constitutional law or articles on comparative, critical or intersectional perspectives. The deadline for submission is January 21, 2021. Please click here for submission guidelines.
  • The Centre for Excellence in Criminal Law, ICFAI Law School invites submissions for its 1st Issue on contemporary issues of criminal law. The deadline for submission is December 15, 2020. Please click here for submission guidelines.

Call for Papers (International)

Webinars (India)

Webinars (International)

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