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TeLawgram

’21 Week 5 ( 28/01- 03/02)

This week has witnessed several developments! We travel to Delhi, Australia, Portugal and Congo to explore developments in a variety of areas including public law, international criminal law and media law! Happy Reading!

Greetings! TeLawgram presents a roundup of the biggest legal updates of the past week, and reading material therein, for your perusal. Happy Reading!

India
International
CfPs and Seminars

India

Supreme Court grants bail to undertrial UAPA accused who was in prison for five years

On 1st February, a three-judge bench of the Supreme Court comprising Justice Aniruddha Bose, Justice N.V. Ramana and Justice Surya Kant upheld the bail granted to an undertrial who was charged under various provisions of the Indian Penal Code and the Unlawful Activities Prevention Act (UAPA). The accused was charged under these statutes for playing a key role in the conspiracy to attack the victim with dangerous weapons. The National Investigation Agency (NIA) argued that the Kerala High Court had failed to act in accordance with Section 43D(5) of the UAPA, which bars courts from granting bail when the accused seems prima facie guilty. The Supreme Court observed that the co-conspirators in the case who were convicted, served sentences between two and eight years, while the accused had already been incarcerated for over five years. The Court emphasized the need to find a balance between the seriousness of the charge and the time spent in custody. The Supreme Court upheld the decision of the Kerala High Court to grant bail to the accused and observed that the NIA did not make a serious attempt to screen the 276 witnesses involved in the case in the five-year incarceration period. 

Suggested readings:

  1. Click here for the judgement. 
  2. Abhinav Gupta, Critical Appraisal of Bail Law under S.43D(5) of the Unlawful Activities (Prevention) Act, 1967 (Jul. 28, 2020), https://criminallawstudiesnluj.wordpress.com/2020/07/28/critical-appraisal-of-bail-law-under-%c2%a743d5-of-the-unlawful-activities-prevention-act-1967/. 
  3. Nitika Khaitan, Silence and ‘Pragmatism’: Skirting bail conditions in the UAPA (Jun. 15, 2020), https://indconlawphil.wordpress.com/2020/06/15/guest-post-silence-and-pragmatism-skirting-bail-conditions-in-the-uapa/. 
  4. Deeksha Balaji, Bail Under the UAPA: A Case for Reconstruction (Jul. 27, 2020), https://lawschoolpolicyreview.com/2020/07/27/bail-under-the-uapa-a-case-for-reconstruction/. 
  5. Sushovan Patnaik, Reconciling Bail Law under UAPA in terms of a Regulation Based Model (Sept. 12, 2020), https://crlreview.in/reconciling-bail-law-uapa-regulation-based-model/. 
  6. Abhinav Sekhri, How the UAPA is Perverting the Idea of Justice (Jul. 16, 2020), https://www.article-14.com/post/how-the-uapa-is-perverting-india-s-justice-system.

The Supreme Court  rules that Section 21(2) of the IBC will continue to apply to past ‘related parties’ even if they are not related parties when resolution proceedings are initiated

A three-judge bench of the Supreme Court comprising Justice D Y Chandrachud, Justice Indu Malhotra and Justice Indira Banerjee, ruled that Section 21(2) of the Insolvency and Bankruptcy Code (IBC) will exclude past ‘related parties’ as well. The language of the proviso to Section 21(2) of the Code which was subsequently amended in 2018, disqualifies creditors from the Committee of Creditors (CoC) if the creditor ‘is’ a related party. The Court relied on Arcelor Mittal India Pvt. Ltd.  v. Satish Kumar Gupta to emphasize the need for a purposive interpretation of Section 21(2) of the IBC. Section 21(2) excludes related parties from the resolution process to prevent conflicts of interest in the CoC. The Court ruled that related parties could divest themselves of share holdings to take part in the resolution process, defeating the purpose of the IBC.  

Suggested readings: 

  1. The judgement can be found here.  
  2. Richa Saraf, Concept of Related Party: Interpretation by Letter or Spirit of the IBC (Aug. 11, 2018), https://indiacorplaw.in/2018/08/concept-related-party-interpretation-letter-spirit-ibc.html. 
  3. Vatsal Patel, Supreme Court on Preferential Transactions and Related Parties Under IBC (Mar. 31, 2020), https://cbcl.nliu.ac.in/insolvency-law/supreme-court-on-preferential-transactions-and-related-parties-under-ibc/. 
  4. S C Vaidyanathan, Related Party  vis-à-vis  a Corporate Debtor under Insolvency and Bankruptcy Code, https://ijlpp.com/related-party-vis-a-vis-a-corporate-debtor-under-insolvency-and-bankruptcy-code/  (last visited Feb. 6, 2021).  
  5. Ministry of Corporate Affairs, Report of the Insolvency Law Committee (March, 2018), https://ibbi.gov.in/uploads/resources/ILRReport2603_03042018.pdf.

The Supreme Court directs the distribution of Rs. 9122 crores to Franklin Templeton unitholders through mutual funds

In a major relief to the unitholders of Franklin Templeton Mutual Fund’s six debt schemes, the Supreme Court asked the company to return ₹9,122 crore to investors within 20 days from cash-positive schemes. The Court Order said that the disbursal of the fund would be done in proportion to the unitholders’ interest in the assets.

The bench comprising Justices S A Nazeer and Sanjiv Khanna entrusted the State Bank of India Mutual Fund to supervise these funds’ distribution. Nevertheless, there is no clarity whether the SBI Mutual Fund will be given the authorisation to sell the debt schemes during the winding-up process.

Franklin Templeton Mutual Fund closed six debt mutual fund schemes on 23rd April, 2020, citing redemption pressures and lack of liquidity in the bond market in the wake of the ongoing pandemic. The schemes had an estimated ₹25,000 crore as assets under management (AUM).  In the previous hearing in January 2021, the Supreme Court had said it would first deal with the issues regarding objection to the e-voting for winding up the six mutual fund schemes and the distribution of money to the unitholders.

Subsequently, Franklin Templeton Mutual Fund received the consent of unitholders for winding up with more than ninety per cent of them voting for the liquidation process.  The e-voting took place after the Supreme Court asked Franklin Templeton Mutual Fund to call a meeting of unitholders to seek their consent.

Suggested Readings:

  1. Find the Telawgram post here.
  2. 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/.
  3. Madhura Karmalkar, Decoding Franklin Templeton crisis (Apr 7, 2020), https://blog.sibmhyd.edu.in/2020/05/07/decoding-franklin-templeton-crisis/.
  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.

The Delhi High Court rules that offences under S.377 of the IPC and S.4 of POCSO Act are not private in nature and refuses to quash FIR despite settlement

The Delhi High Court held that the Court cannot permit quashing of an FIR merely on the ground that the parties have entered into a compromise where the FIR relates to heinous offences against small children under S.377 of Indian Penal Code and the POCSO Act in the case of Sunil Raikwar v. State.

Section 377 IPC deals with unnatural sexual offences and Section 4 POCSO Act deals with penetrative sexual assault.

The complainant,  father of the seven-year-old victim , registered the FIR after his son told him that the accused had sodomised him. On the completion investigation, the police filed a final report affirming that there was enough material to proceed against the accused of offences under Section 377 IPC and Section 4 of the POCSO Act.

However, the parties decided to end the disputes and differences due to the intervention of elders of the society. Thereafter, the accused moved a plea under Section 482 of the Code of Criminal Procedure (CrPC) in the High Court for quashing the FIR.

The Court, however, noted that the High Court could not mechanically quash FIRs for non-compoundable offences by exercising powers under Section 482 CrPC just because parties have decided to bury their hatchets. It is well settled that the power under Section 482 CrPC is distinguished on the powers that lie on the Court to compound the offences compoundable under Section 320 of the Code.

The Court stated that the offences under Section 377 IPC and Section 4 of the POCSO Act could not be allowed to compromise as quashing of FIRs would not secure the interest of justice. Thus, the Court held that the victim’s father could not be permitted to settle the dispute with the accused.

Suggested Readings:

  1. Find the judgment here.
  2. Find the POCSO Act here.
  3. Cases referred: State of Maharashtra v. Vikram Anantrai Doshi, (2014) 15 SCC 29; Narinder Singh v. State of Punjab, (2014) 6 SCC 466; Parbatbhai Aahir v. State of Gujarat, (2017) 9 SCC 641; Shiji v. Radhika, (2011) 10 SCC 705.
  4. Tanvi Rahim and Sannidhi Buch, The 2019 Amendment to POCSO: A Socio-Legal Analysis (June 6, 2020), https://criminallawstudiesnluj.wordpress.com/2020/06/06/the-2019-amendment-to-pocso-a-socio-legal-analysis/.
  5. Manya Oberoi, Section 377: The Essence of Freedom ( Aug 27, 2018), https://ohrh.law.ox.ac.uk/section-377-the-essence-of-freedom/.

Delhi Court dismisses Jamia Millia Islamia’s plea seeking an FIR against the police for their actions during the CAA protests

On 3rd February 2021, Delhi’s Metropolitan Magistrate dismissed an application filed by the Jamia Millia Islamia University administration which sought registration of an FIR against the Delhi Police. Their application stated that the police with the objective to clear the crowds “broke into the university campus without seeking any sanction and used excessive and arbitrary force, thrashed several security guards as well as students.”

In their response to the application, the Delhi Police had stated that they were constrained from entering into the university premises in order to maintain the law and order situation. The court observed that almost all of the actions taken by the police on 15th December, 2019 were directly connected to their official duties.

The Court, therefore, dismissed the applications as they fell within the purview of S. 197 of the CrPC.

Suggested Readings:

  1. Read the order here.
  2. Anuj Shukla & Giving Gehlot, Sanctions to prosecute MPs and MLAs : An analysis (July 31, 2020), https://criminallawstudiesnluj.wordpress.com/2020/07/31/sanctions-to-prosecute-mps-and-mlas-an-analysis/.
  3. See also, Prosecution of Civil Servants.

International

Portugal Parliament approves bill to legalize euthanasia

The Parliament of Portugal voted to legalize euthanasia, which, if signed into law, would make it the seventh country in the world to do so.

The vote was in favour of approving the bill, which would allow people over the age of 18 who are in extreme suffering or faced with an incurable and fatal disease to seek assistance in dying. The request would require the intervention of two or three doctors. An advising doctor and a specialist in a particular injury or illness are mandatory, and a psychiatrist would be necessary if there are any doubts about the patient’s state of mind or ability to make the request of their own free will. Access to assisted suicide would only be open to citizens and legal residents of Portugal.

The law now goes to the desk of President Marcelo Rebelo de Sousa, who could veto the bill. He has said in the past that the decision to veto the bill would depend on the state of society at the moment and that it would not be “an affirmation of personal positions.” The president has 20 days to consider the bill.

Suggested Readings:

  1. R. Polaks, Deficiencies of regulation of euthanasia in legal acts of foreign countries, 10 SHS Web of Conferences (2014).
  2. Nuno Ferreira, Revisiting Euthanasia: A Comparative Analysis of a Right to Die in Dignity, SSRN Electronic Journal (2005).
  3. José António Ferraz Gonçalves, Attitudes toward assisted death amongst Portuguese oncologists, 18 Supportive care in cancer: Official Journal of the Multinational Association of Supportive Care in Cancer 361 (2009).
  4. Margaret Brazier, Euthanasia and the law, 52:2 British Memorial Bulletin 317 (1996).

Australia media companies plead guilty to breaching gag order in cardinal sex abuse case

Twelve Australian media companies pleaded guilty in the Supreme Court of Victoria to contempt of court for breaching a gag order imposed by the County Court of Victoria preventing Cardinal George Pell from being named in the country as a convicted child sex offender until February of 2019.

The guilty pleas are part of a plea deal ending the trial. The media companies charged included The Herald and Weekly Times, News Life Media, Queensland Newspapers, Nationwide News, Advertiser Newspapers, Fairfax Media Publications, Mamamia, Allure Media, General Television Corporation, Radio 2GB Sydney, the Age Company and Geelong Advertiser. Individual journalists and editors who worked at the companies were also charged, but their charges were dropped as part of the plea deal. Sub judice contempt charges against the companies were also dropped. Although none of the companies or individuals named Pell in their coverage before the gag order expired, the prosecution argued that such coverage, which included mention of a “high-profile Australian” being “convicted of a serious crime,” was nonetheless prejudicial to legal proceedings.

In December of 2018 Pell was convicted in the County Court of Victoria by a jury and Chief Judge Peter Kidd of “one charge of sexual penetration of a child under 16 years and four charges of committing an act of indecency with or in the presence of a child under the age of 16 years.” The offending allegedly took place in the St Patrick’s Cathedral, where Pell served as the Archbishop of Melbourne. Pell’s convictions were later quashed by the High Court of Australia in a judgment released in April 2020. Also released in 2020, a Royal Commission into Institutional Responses to Child Sexual Abuse found that Pell knew of child sexual abuse in the 1970s “committed by clergy and Church personnel” but inadequately addressed the abuse.

Suggested Readings:

  1. Click here to read Queen v. Herald and Weekly Times PTY LTD & Others.
  2. Click here to read Pell v. Queen.
  3. Click here for a summary on Pell v. Queen.
  4. A. Dyer & D. Hamer, Before the High Court He ‘Came Across as Someone Who Was Telling the Truth’: Pell v The Queen, 42:1 SYDNEY LAW REVIEW (2020).
  5. Royal Commission into Institutional Responses to Child Sexual Abuse, FINAL REPORT Religious institutions, Vol. 16:2.5. Kate Gleeson, Reckoning with Denial and Complicity: Child Sexual Abuse and the Case of Cardinal George Pell, 9(4) IJCJ & SD (2020).

Australia’s proposed media laws supported by Microsoft

The Australian Competition and Consumer Commission (ACCC) in its interim report on digital advertising in Australia, have proposed that Google and Facebook pay local media for the content that drives traffic to their websites. These proposals have been adopted in the draft legislation by the government. Under the proposed legislation, if the media companies cannot come to a consensus with platforms like Google and Facebook with respect to the price for news content, then an independent arbitration body will resolve the dispute. 

In view of the issues this proposed legislation poses for the Big Tech giants, Google has threatened to withdraw its services in Australia if the legislation were to be approved. Last week, Microsoft Corp. came out in full support of these proposed legislations. They said that even though they were not included in the draft code, they would gladly abide by it, if required.

Suggested Readings:

  1. Click here to read the News Media Bargaining Code. 
  2. Microsoft News, Microsoft Supports Australian Government Proposal Addressing News Media and Digital Platforms, Read Microsoft’s statement (Feb. 3, 2021) https://news.microsoft.com/en-au/2021/02/03/microsoft-supports-australian-government-proposal-addressing-news-media-and-digital-platforms/.
  3. The Australian Competition and Consumer Commission, Digital Advertising Services Inquiry – Interim Report (December 2020) https://www.accc.gov.au/system/files/Digital%20Advertising%20Services%20Inquiry%20-%20Interim%20report.pdf.
  4. Gilbert+Tobin, The ACCC’s Ad Tech Inquiry Interim Report: What you need to know (Feb. 02, 2021), https://www.gtlaw.com.au/insights/acccs-ad-tech-inquiry-interim-report-what-you-need-know 
  5. Lesley Hitchens, Australian Media Reform – Discerning the Policy, 30 UNSW Law Journal 246 (2007).

Myanmar military junta blocks Facebook and Twitter

On 3rd February, Myanmar’s Ministry of Transport and Communication (MoTC) issued a direction to telecom companies to block access to popular social media platform Facebook within the country in order to maintain “stability” and peace and preclude any misunderstanding amongst citizens as a result of the “spreading [of] fake news and misinformation” after the junta’s coup d’état earlier this week.

Apart from Facebook Inc. per se, other services like Instagram, WhatsApp, and Messenger have also been restricted. On 5th February, NetBlocks, a network monitoring group, stated that Twitter was also being blocked and this statement was affirmed by multiple Reddit users.

According to data collected by Netblock on global internet usage, on the night before the coup, there were widespread internet disruptions. These cuts reportedly affected a variety of network operators including the state-owned Myanmar Posts and Telecommunications (MPT) and Telenor Myanmar, a subsidiary of Norway-based Telenor. 

Facebook is not only used by citizens but also by government bodies to share information and general news in Myanmar. It is pertinent to note that Facebook has drawn criticism for failing to curb hate speech and during the 2018 Rohingyan genocide. Critics have stated that the platform failed to uphold its very own community standards policy in this regard. Researchers have previously taken advantage of shutdowns to compare violence rates, which were significantly lesser during such cuts.  

Suggested Readings: 

  1. Find the direction here. 
  2. Find Facebook’s Community Standards Policy here.
  3. Find Twitter’s Rules and Policies here.
  4. Ananya Agrawal, Myanmar military junta blocks Facebook and Twitter, cracks down on dissent (Feb. 2, 2021),  https://www.jurist.org/news/2021/02/myanmar-military-junta-blocks-facebook-and-twitter-cracks-down-on-dissent/.  
  5. Isabella Banks, International Criminal Liability in the Age of Social Media: Facebook’s Role in Myanmar (Feb. 13, 2019), https://www.publicinternationallawandpolicygroup.org/lawyering-justice-blog/2019/2/13/international-criminal-liability-in-the-age-of-social-media-facebooks-role-in-myanmar.
  6. Emma Irving, ‘The Role of Social Media is Significant’: Facebook and the Fact Finding Mission on Myanmar (Sep. 7, 2018), http://opiniojuris.org/2018/09/07/the-role-of-social-media-is-significant-facebook-and-the-fact-finding-mission-on-myanmar/.

The United Nations rights office finds potential crimes against humanity in Congo

The UN Office of the High Commissioner for Human Rights (OHCHR), has stated in its report that the attacks against civilians in the Democratic Republic of Congo (DRC) may amount to crimes against humanity.

This declaration follows the numerous civilian attacks that were described in a report by the UN’s Joint Human Rights Office in the DRC. This report found that 849 civilians have been killed by the Allied Democratic Forces (ADF) along with 62 people being injured and four women sexually abused. 534 civilians were reportedly kidnapped by the ADF, a large majority of whom are still missing. On 13th January, the Twa community in Irumu territory were allegedly attacked by an unknown group of men with 14 civilians killed. The Congolese Defence forces have also been accused of serious human rights violations in their operations against the ADF. 

The report has provided recommendations for DRC authorities. These included upholding and adhering to international human rights law and humanitarian law, strengthening forces in areas under ADF control, and conducting thorough investigations into human rights violations by their defense forces.

Marta Hurtado, spokesperson for the OHCHR, in a press briefing has declared that some of the attacks are potential crimes against humanity, noting that the violence, “takes place in a context of impunity, where few human rights abuses and violations and violations of international humanitarian law are duly investigated and prosecuted. An ADF attack on Beni prison in October 2020 – that led to the escape of 1,300 inmates escaped – was a blow to accountability in the country.”

Suggested Readings: 

  1. Click here to find the Public Report (only in French).  
  2. Click here to find the  Press Briefing Note.
  3. “Report on violations of human rights and international humanitarian law by the Allied Democratic Forces armed group and by members of the defense and security forces in Beni territory, North Kivu province and Irumu and Mambasa territories, Ituri province,” (DRC: OHCHR-MONUSCO, 2020), https://www.ohchr.org/Documents/Countries/CD/ADF_EN.pdf. 
  4. Human Rights, Widespread attacks in DR Congo may amount to crimes against humanity (Feb. 2, 2021), https://news.un.org/en/story/2021/02/1083582. 
  5. Patryk I. Labuda, Applying and ‘misapplying’ the Rome Statute in the Democratic Republic of Congo, in Contested Justice: The Politics and Practice of International Criminal Court Interventions 408–431 (Christian De Vos, Sara Kendall, & Carsten Stahn eds., 2015).
  6. Alex Vandermaas – Peeler, Violence in DRC: UN and ICC warn of Crimes against humanity (Aug. 11, 2020), https://www.ushmm.org/genocide-prevention/blog/violence-in-drc-un-and-icc-warn-of-crimes-against-humanity.

France Court finds government liable for climate change inaction

An administrative court in Paris, ruled on 3rd February, 2021that the French government has failed to take sufficient action to curb the emission of greenhouse gases and tackle climate change as part of its obligations under the Paris agreement.

The case, which was filed in 2018 by a group of NGOs, was backed by more than 2 million citizens. Officials of the four NGOs that filed the case described this as a ‘historic victory for climate’. The Court ordered the State to pay a symbolic sum of 1 euro and gave itself two months to decide on the measures to rectify the problem. The Court held the opinion that awarding money in the present case would not be appropriate.

Suggested Readings:

  1. Joanna Setzer & Rebecca Byrnes, Global trends in climate change litigation: 2020 snapshot (July 2020) https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2020/07/Global-trends-in-climate-change-litigation_2020-snapshot.pdf.
  2. John S. Dryzek, Richard B. Norgaard, & David Schlosberg, Climate Change and Society: Approaches and Responses (August 2011), https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199566600.001.0001/oxfordhb-9780199566600-e-1?print=pdf.
  3. Deepa Badrinarayana, The Emerging Constitutional Challenge of Climate Change: India in Perspective, 19 Fordham Environmental Law Review 1(2009).

CfPs and Seminars

Call for Papers (India)

Call for Papers (International)

  • The Antitrust Law Journal (Symposium) invites article proposals for a symposium on the U.S. Antitrust Institutions. Deadline for submission of proposals is 12th February, 2021.  The deadline for submission of complete draft (upon selection) is 15th October, 2021.
  • The Trade, Law & Development Journal invites submissions for its Special Issue on ‘Trade and Technology: Rebooting Global Trade for the  Digital Millennium’. Deadline for submission is 31st March, 2021.

Webinars (India)

  • SLS Nagpur is organizing its 1st National Multidisciplinary Law Conference: ‘Interdisciplinarity, Multidisciplinarity and the Future of the Legal Academy’ on 9th March, 2021. Deadline for submission is 28th February, 2021. For more information, contact at : nmlc@slsnagpur.edu.in 
  • School of Law, Presidency University, Bangalore is organizing it’s 1st edition of National Seminar on ‘Gender and WASH: Problems and Prospects’ on 27th March, 2021. Deadline for submission is 25th February, 2021.

Webinars (International)

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