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TeLawgram

’21 – Week 6 (04/02- 11/02)

Greetings! This week our updates look at decisions ranging from the Madras HC’s ruling on HRC recommendations to the ICC’s ruling on jurisdiction over crimes committed in Palestine. 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

Madras High Court rules that recommendations of Human Rights Commissions are akin to judicial orders

A full-judge bench of the Madras High Court made a landmark ruling on 5th February, 2021. The Madras High Court recognized that there were several conflicting opinions delivered by the Court on the nature of recommendations made by the State Human Rights Commission under Section 18 of the Protection of Human Rights Act, 1993 and decided to resolve such confusions in Abdul Sathar v. The Principal Secretary to Government, Home Department and others. The Court made observations on several judgements pertaining to human rights. The bench relied on the object and purpose of the Protection of Human Rights Act to conclude that the recommendations of the State Human Rights Commissions have the nature of judicial “order” and states had no discretion in implementing the recommendations made under Section 18 of the Act. The Court remarked that a failure to interpret Section 18 contextually would result in the Commissions being reduced to “toothless tigers”.

Suggested Readings:

  1. The judgement can be found here.
  2. Mandeep Tiwana, Needed: More Effective Human Rights Commissions in India, CHRI News (2004). 
  3. Sanjoy Hazarika & Sarthak Roy, NHRC: A Toothless Tiger?, https://www.humanrightsinitiative.org/blog/nhrc-a-toothless-tiger (last visited Feb. 13, 2021). 
  4. Gautam Bhatia, Giving Human Rights Commissions more teeth (Mar. 20, 2020), https://www.thehindu.com/opinion/lead/giving-human-rights-commissions-more-teeth/article31111463.ece
  5. Anne Winckel, The Contextual Role of a Preamble in Statutory Interpretation, 23 Melb. U. L. Rev. 184 (1999).  
  6. Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 EJIL 655 (2008). 

The Supreme Court ruled that the embargo against the initiation of resolution proceedings under Section 10A of the IBC is retrospective 

A two-judge bench of the Supreme Court comprising Justice D Y Chandrachud and Justice M R Shah ruled that the embargo on the initiation of corporate insolvency resolution proceedings under Section 10A of the Insolvency and Bankruptcy Code, 2016 (IBC) is retrospective. Section 10A was inserted into the IBC on 5th June, 2020 through an ordinance. The appellant claimed dues of over one hundred and four crore rupees in operational debts and filed an application under Section 9(1) of the IBC claiming that the date of default was 30th April, 2020. The appellant contended that the bar on the initiation of resolution proceedings was prospective and would not apply between 25th March and 5th June. The Supreme Court observed that such an interpretation would go against the intention of the ordinance, which was to protect corporate persons from financial distress caused due to COVID-19. The Court ruled that the embargo under Section 10A would apply retrospectively. 

Suggested readings: 

  1. Find the judgement here.
  2. Cyril Shroff & Dhananjay Kumar, Indian Insolvency responds to the COVID-19 Pandemic, https://corporate.cyrilamarchandblogs.com/2020/03/indian-insolvency-law-responds-to-the-covid-19-pandemic/
  3. Cyril Shroff & Dhananjay Kumar, Indian Insolvency responds to the COVID-19 Pandemic – Part II (Jun. 10, 2020), https://corporate.cyrilamarchandblogs.com/2020/06/indian-insolvency-law-responds-to-the-covid-19-pandemic-part-ii/
  4. Ritik Khatri & Aanand Sanctis, Pandemic Pandemonium: Suspension of Fresh Insolvency Cases (Jun. 22, 2020), https://cbcl.nliu.ac.in/insolvency-law/pandemic-pandemonium-suspension-of-fresh-insolvency-cases/
  5. Rongeet Poddar & Sayak Banerjee, The IBC (Amendment) Ordinance, 2020: Need to Iron out the Creases, https://indiacorplaw.in/2020/06/the-ibc-amendment-ordinance-2020-need-to-iron-out-the-creases.html

Unilateral Withdrawal Of Consent From Joint Divorce Petition, After Other Party Has Performed Obligations, Cannot Be Permitted : Kerala HC

The High Court of Kerala on 5th February, 2021 held that a spouse’s unilateral withdrawal of consent from a joint petition filed for divorce after the other party has performed their respective obligations under the agreement is unsustainable in law. 

The Court termed it a “sharp practice, which cannot be permitted or tolerated for a moment as it would shatter the faith of the litigants in the justice delivery system and make a mockery of the alternate dispute resolution mechanism.”

The division bench was considering the case of Benny v. Mini which was an appeal against the Order of a Family Court dismissing a joint petition after the wife withdrew her consent. The joint petition was filed during the pendency of the petition filed by the husband seeking a divorce. The Family Court relied on the Supreme Court’s judgement in Hitesh Bhatnagar v. Deepa Bhatnagar, which held that the wife was free to withdraw her consent at any time before the passing of the decree.

The Court, however, said that it was constrained to observe that the wife has taken advantage of her wrong and is attempting to enrich herself unlawfully. The Court held that the wife was barred from withdrawing her consent by the principles of promissory estoppel.

Suggested Readings:

  1. Find the judgement here.
  2. Find the judgement of Hitesh Bhatnagar v. Deepa Bhatnagar here.
  3. Can A Party Withdraw Its Consent For Mutual Divorce ? (July 15, 2019), https://gslo.in/can-a-party-withdraw-its-consent-for-mutual-divorce/. 
  4. Achal Gupta, Divorce by Mutual Consent and Contempt of Court (Nov 9, 2020), https://www.scconline.com/blog/post/2020/11/09/divorce-by-mutual-consent-and-contempt-of-court/
  5. Kusum, DIVORCE BY MUTUAL CONSENT, Journal of the Indian Law Institute 29, No. 1, 1987 (Feb 12, 2021).

Sudden Provocation Without Premeditation’: Supreme Court Orders Release Of Murder Accused Farmer Who Spent 18 Years In Jail

The Supreme Court directed the release of an agriculturist accused of murder who spent 18 years in jail. The bench consisting of Justices Hemant Gupta and S. Ravindra Bhat held that he is liable under Section 304 Part I of the IPC and not under Section 302 IPC. Pursuant to a dispute over construction of a wall, Pardeshiram had allegedly attacked the deceased with a spade and hit him with a stone. The Trial Court convicted him under Section 302 of the IPC and sentenced him to life imprisonment. The High Court dismissed his appeal.

The Supreme Court however, held that the offence was committed without premeditation. It was a sudden fight in the heat of passion and, thus, falls within the 4th exception under Section 300 of the IPC. Therefore, it will be culpable homicide not amounting to murder falling under the first part of Section 304 IPC. The Court deemed his duration in custody as a sufficient punishment and did not impose a further sentence.

Suggested Readings:

  1. Find the judgement here.
  2. Leader-Elliott, SUDDEN FIGHT, CONSENT AND THE PRINCIPLE OF COMPARATIVE RESPONSIBILITY IN THE INDIAN PENAL CODE, Singapore Journal of Legal Studies, 2010, 282-303 (Feb 12, 2021). 
  3. Isha Choudhary, Gives Partial Relief to the Accused Charged for the Offence of Murder Considering his Temperament to be a Decisive Factor ( Dec 30, 2019), https://criminallawstudiesnluj.wordpress.com/2019/12/30/sc-gives-partial-relief-to-the-accused-charged-for-the-offence-of-murder-considering-his-temperament-to-be-a-decisive-factor/
  4. R.V. Kelkar,  PROVOCATION AS A DEFENCE in THE INDIAN PENAL CODE, Journal of the Indian Law Institute 5, No. 3 (1963),  319-56 (Feb 12, 2021).

Rajya Sabha Passes Jammu and Kashmir Reorganisation (Amendment) Bill, 2021

The Rajya Sabha cleared The Jammu and Kashmir Reorganisation (Amendment) Bill, 2021 that seeks to replace the ordinance to merge the Jammu and Kashmir (J&K) cadre of the existing Indian Civil services officer with the Arunachal Pradesh, Goa, Mizoram Union Territory (AGMUT) cadre.

Minister of State for Home Affairs G. Kishan Reddy said the Constitution of India is now fully applicable to Jammu and Kashmir, and that the Bill will enable the availability of officers in Jammu and Kashmir who have experience in running Union Territory administration. Further, he said the Bill will increase officers’ strength in the Union Territories of Jammu and Kashmir and Leh.

Suggested Readings:

  1. Find the Bill here
  2. Gautam Bhatia, The Article 370 Amendments: Key Legal Issues ( Aug 5, 2019), https://indconlawphil.wordpress.com/2019/08/05/the-article-370-amendments-key-legal-issues/.
  3. Ayjaz Wani, Life in Kashmir after Article 370 ( Jan 28, 2020) https://www.orfonline.org/research/life-in-kashmir-after-article-370-60785/.
  4. Varun Kannan, The Article 370 amendments: will non-use of Article 368 prove costly? ( Oct 25, 2019), https://lawschoolpolicyreview.com/2019/10/25/the-article-370-amendments-will-non-use-of-article-368-prove-costly/

International

ICC declares jurisdiction over crimes committed in Palestine

The International Criminal Court (ICC) on 5th February, 2021 ruled that the Court has jurisdiction over the crimes committed in Palestine. The Court, established in 2002, derives its jurisdiction from Article 12 of the Rome Statute. According to the Article, the Court can exercise jurisdiction over a crime if “the State on the territory of which the conduct in question occurred” is a party to the Statute or otherwise accepts the jurisdiction of the court. Israel argued in Court that the Court cannot rule on the circumstances based on Palestine giving it jurisdiction as it is not a sovereign state with jurisdiction over its own territory and nationals.

When considering whether Palestine was a State under Article 12, the Chamber concluded that regardless of its political status, Palestine acceded to the Statute through due process as given under Article 125. When defining the territory, the Court turned to Resolution 67/19 of the United Nations General Assembly which granted non-member observer status to Palestine. The Resolution affirmed Palestinian sovereignty over Gaza and the West Bank, including East Jerusalem.

The Chamber concluded by stating that its ruling only pertains to Palestine being a State party to the Rome Statute and does not extend to any “border dispute under international law nor [prejudges] the question of any future borders.”

Suggested Readings:

  1. Find the ruling here.
  2. Read UNGA’s Resolution on the Status of Palestine here.
  3. Robert Weston Ash, IS PALESTINE A “STATE”?, 36 Rutgers Law Record 186 (2009).
  4. Michael G. Kearney, On the Situation in Palestine and the War Crime of Transfer of Civilians into Occupied Territory, 28 Criminal Law Forum 1 (2017).
  5. Steven Kay & Joshua Kern, The Statehood of Palestine and Its Effect on the Exercise of ICC Jurisdiction (July 05, 2019), http://opiniojuris.org/2019/07/05/the-statehood-of-palestine-and-its-effect-on-the-exercise-of-icc-jurisdiction%EF%BB%BF/

UK Legal opinion finds a “credible case” that China is committing genocide against Uighurs 

On 8th February, 2021, a report written by three Essex Court Chambers barristers concluded that there exists a ‘very credible case’ of acts of genocide being committed against the Uighur population in China. This report was commissioned by The Global Legal Action Network, the World Uyghur Congress and the Uyghur Human Rights Project. This legal opinion is considered the first formal legal assessment in the United Kingdom of the Chinese government’s actions in the Xinjiang Uyghur Autonomous Region (XUAR).

The opinion finds that existing evidence points to the fact that crimes against humanity as defined in Article 7 of the Rome Statute are being committed in the region. This finding was reached because, according to the opinion, the Uighur population is an ethnic group for the purposes of Article 6 of the Rome Statute and that “it is at least arguable on the available evidence that there is an intent to destroy, in whole or in part, the Uyghur population of XUAR,” accompanied by genocidal actions.

This opinion comes a month after the US Congressional – Executive Commission on China declared that China has possibly committed genocide against the Uighur population in the Xinjiang region.

Suggested Readings:

  1. Read the legal opinion here.
  2. Ciara Finnegan, The Uyghur Minority in China: A Case Study of Cultural Genocide, Minority Rights and the Insufficiency of the International Legal Framework in Preventing State-Imposed Extinction, 9 Laws 1 (2020).
  3. Congressional-Executive Commission on China, Annual Report 2020 (December, 2020).
  4. Vaishnavi Chaudhary, China’s Liability for Uighur Genocide Under International Law- Part I (Oct. 14, 2020) https://ilg2.org/2020/10/14/chinas-liability-for-uighur-genocide-under-international-law-part-i/ .

Japan considers response to new Chinese law that allows the use of weapons against foreign vessels

On 1st February China’s newly enacted Coast Guard law came into force. It allows the Chinese coast guard to open fire against vessels around the East China Sea’s Senkaku Islands. The coast guard may also forcefully remove superstructures constructed by other nations on territories claimed by China. These islands are being claimed by both Japan and China. The law also permits said action around many reefs and islands in the South China Sea on which it has infamously contested claims with the Philippines, Taiwan, Vietnam etc. Reportedly, Japan is currently debating a response to this law. 

The law lays down certain steps that the coast guard may take against a foreign vessel. These not only include police actions, but also the use of hand-held weapons if the coast guard believes that the vessel carries criminal suspects, or ambiguously defined materials related to state secrets among other things. Nobuo Kishi, Japanese Defence Minister has conveyed strong concerns against the law, stating that it violates international law. Critics of the law state that apart from jurisdictional and environmental concerns, the law tends to contravene established UNCLOS norms and infringes on a State’s freedom of navigation.

Suggested Readings: 

  1. Click here to read the law. 
  2. Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397. 
  3. Anne Bardin, Coastal States Jurisdiction over Foreign Vessels 14 Pace Int’l L. Rev. 28 (2002).  
  4. Jianwei Li and Ramses Amer, Freedom of navigation and peaceful uses of the seas: UNCLOS, Chinese perspectives and personal thoughts in Securing the Safety of Navigation in East Asia 139-160 (2013). 
  5. B.A. Hamzah, China and the freedom of navigation in the South China Sea, 22 Korean Journal of Defense Analysis 235-247 (2010).  
  6. Jinxing Ma and Shiyan Sun, Restrictions on the use of force at sea: An environmental protection perspective 98 Int’l Rev. of the Red Cross 515–541 (2016). 

ICC finds Ugandan LRA fighter guilty of War Crimes and Crimes against Humanity 

On 4th February, one of ICC’s (International Criminal Court) Trial Chambers found Dominic Ongwen, the Lord’s Resistance Army (LRA) fighter, guilty of 61 crimes against humanity and war crimes. The Court released a press report explaining that the conviction is in relation to acts that were committed in Northern Uganda against the Government of Uganda between 2002 and 2005. The Defence pled that Ongwen acted under duress, having been a victim of these crimes himself. However, the Court determined that Ongwen ought to bear complete responsibility for all crimes at issue. Subsequently, the Chamber will decide on the sentence for the crimes of which Ongwen has been convicted. 

Statutorily, Ongwen may appeal within 30 days. In the absence of an appeal, the Chamber will receive submissions on the sentence from the Prosecutor, the Defence and the legal representatives of the victims participating in the trial. The Rome Statute, the ICC’s founding treaty, does not provide for a death penalty. Therefore, the sentence may be up to 30 years of imprisonment and/or a fine. In exceptional circumstances, the Court is empowered to sentence the convict to life imprisonment. Additionally, a phase of hearings will be opened to decide the reparations to be given to the victims.

Suggested Readings: 

  1. Find the judgement here
  2. Find the Press Release here
  3. Find a summary of the Judgment here
  4. Clare Frances Moran, A Perspective on the Rome Statute’s Defence of Duress: The Role of Imminence 18 Int’l Crl. L. Rev. 154–177 (2018). 
  5. Sarah J. Heim, The Applicability of the Duress Defense to the Killing of Innocent Persons by Civilians 46 Cornell Int’l L.J. 165 (2013). 
  6. Matthew Lippman, Conundrums of Armed Conflict: Criminal Defenses to Violations of the Humanitarian Law of War, 15 Dick. J. Int’L L. 1, 19–23 (1997). 

CfPs and Seminars

Call for Papers (India)

Call for Papers (International)

Seminars (India)

  • The ICFAI Foundation for Higher Education is organizing a International Conference on Human Rights and Access to Justice. Deadline for registration of the Abstract is 18th February, 2021.
  • Symbiosis Law School, Hyderabad’s Centre for Banking & Fraud (CBF) is organizing a National e-Conference on Financial and Corporate Frauds on 27th March, 2021. Deadline for submission is 15th February, 2021.
  • Institute of Law, Nirma University, Ahmedabad, is organizing an International Virtual Conference On Sports And Law from 5th to 6th March, 2021. Deadline for submission is 28th February, 2021.

Seminars (International)

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