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TeLawgram

’21 Week 7 (11/02 – 18/02)

Hello! This past week has seen several developments ranging from the Supreme Court stating that Trial Courts cannot impose life imprisonment to the Bangladesh International Crimes Tribunal passing judgment on 9 Liberation War prisoners. 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 reiterates that Trial Court’s cannot impose life imprisonment for the remainder of life

On 16th February 2021, A two-judge bench of the Supreme Court comprising Justice Indu Malhotra and Justice Ajay Rastogi, approved the sentence of imprisonment for the remainder of natural life imposed by a Trial Court. The appellant was convicted under Section 302 of the Indian Penal Code for poisoning and murdering two children. The appellant contested the legality of the sentence imposed by the Trial Court by relying on Union of India v. V. Sriharan @ Murugan where the Supreme Court stated that modified punishments for offences can only be imposed by the High Courts and the Supreme Court. The Court approved the sentence of the Trial Court because of the motive behind the crime. However, it noted that the appellant was “correct on legal principles” and reaffirmed that the Trial Court cannot impose modified sentences.

Suggested Readings: 

  1. The judgement can be found here.  
  2. Nishant Gokhale, Life Imprisonment in India: A Short History of a Long Sentence, 11 NUJS L. Rev 395 (2018).  
  3. Manwendra Kumar Tiwari, Shades of Life Imprisonment and the Issue of Primacy between Union and State in Releasing Life Convicts in India, 7 RMLNLU Journal 65 (2015). 
  4. Himanshu Agarwal & Amartya Kanjilal, Life without Remission: An Irreviewable and Unconstitutional Punishment (Sept. 4, 2019), https://lawandotherthings.com/2019/09/life-without-remission-an-irreviewable-and-unconstitutional-punishment/
  5. Vikram Aditya Narayan, Sentencing and the Possibility of Reform in India (Jan. 26, 2016), https://ohrh.law.ox.ac.uk/sentencing-and-the-possibility-of-reform/

The Supreme Court directs police officers to pay Rs. 3.5 lakhs to the legal heirs of custodial violence victims

A two-judge bench of the Supreme Court comprising Justice Ashok Bhushan and Justice Ajay Rastogi upheld the conviction of two police officers under Section 324 of the Indian Penal Code (IPC) and observed, “The offence committed by the accused is not against the deceased alone but against humanity.” The two officers had brutally assaulted the deceased who went to the police station to file a complaint. The court considered the ages of the police officers and directed them to pay a Rupees 3.5 lakhs to the legal heirs of the deceased and reduced their sentence from one year of imprisonment to six months. The Court refused to compound the offences since Section 320 of the Code of Criminal Procedure does not list grievous hurt under Section 324 of the IPC as a compoundable offence. 

Suggested readings: 

  1. The judgement can be found here.  
  2. Aditya Manubarwala, Revisiting India’s Obligations against Custodial Torture (May 19, 2017), https://blogs.lse.ac.uk/humanrights/2017/05/19/revisiting-indias-obligations-against-custodial-torture/
  3. Gahna Rajani & Himanshu Bhargava, Police in India: Protectors against Injustice or Perpetrators of Injustice? (Jul. 13, 2020), https://criminallawstudiesnluj.wordpress.com/2020/07/13/police-in-india-protectors-against-injustice-or-perpetrators-of-injustice/
  4. Jitendra Mishra, Custodial Atrocities, Human Rights and the Judiciary, 47 JILI 508 (2005).  
  5. Winy Daigavane, Presumption of Custodial Violence: A Need to Confront Police Brutality in India with Legislation (Jul. 13, 2020), https://www.jurist.org/commentary/2020/07/winy-daigavane-custodial-violence/

Jharkhand High Court clarifies the nature of Court’s role in victim compensation under the CrPC; rules that voluntary payment of compensation cannot be a ground for bail

The High Court of Jharkhand made observations on Section 357A  of the Code of Criminal Procedure (CrPC), which deals with the victim compensation scheme’s formulation. In Sumit Kumar Shaw and Ors. v. The State of Jharkhand and Anr., the Court explained that an accused person could not be burdened with the liability to pay compensation to the victim. Especially when the guilt or innocence is yet to be proven. Imposing liability will run counter to both the CrPC and the fundamental principle of criminal jurisprudence that a person is presumed innocent until proven guilty.

The Court pointed out that if the accused person is eventually acquitted and is told to recover the amount paid by him earlier as compensation would give rise to unnecessary litigation. Further, the Court added that accused persons’ voluntary undertakings to pay victims compensation should not be a ground for the grant of bail. The Court opined,  “there will be persons with criminal intent in their mind, who will be roaming in the society with a knife in one hand and a purse full of money in another.” Therefore, the Court concluded that (1) the Court cannot quantify and fix the amount of victim compensation under Section 357A. (2) The amount of compensation payable to the victim under Section 357A has to be paid from the fund created by the State only, and an accused cannot be directed to pay victim compensation.

Suggested Readings:

  1. Find the judgement here.
  2. K. I.Vibhute, Compensating Victims Of Crime In India : An Appraisal, 32 Journal of the Indian Law Institute 1 (1990).
  3. Sandhya Gupta, Compensation to Rape Victims- A Critical Analysis (Aug. 30, 2019) https://criminallawstudiesnluj.wordpress.com/2019/08/30/compensation-to-rape-victims-a-critical-analysis/.
  4. Mangoli, Dr. Riyazahmed and Devarmani, Nandini, Role of Victims in Criminal Justice System: A Critical Analysis from Indian Perspective (Aug. 1, 2014), https://ssrn.com/abstract=2814578.
  5. Archit Shukla, Victim Compensation- Need of the Hour (Jun. 13, 2020), https://ccjarmlnlu.wordpress.com/2020/06/13/victim-compensation-need-of-the-hour/.

Delhi District Court acquits Priya Ramani in defamation case

On 17th February 2021, the Rouse Avenue District Court in Delhi acquitted Priya Ramani in the defamation case filed against her by politician and journalist M. J. Akbar. In 2017, Priya Ramani had written an open letter in Vogue India detailing an interview with a male boss. M. J. Akbar alleged that in the subsequent years Priya Ramani had published more defamatory material connecting to her previous article. Akbar alleged that all of these accusations were fabricated and done so with the motive to harm his reputation. In the wake of the #MeToo movement in Hollywood, Priya Ramani stated that she was researching for an article on the subject and could not help but recall her experiences with her first male boss.

During trial, Priya Ramani took the defence of truth stated in good faith and in public interest. Counsel for defence argued that the facts of this case fall under the exception given under S. 499 of the IPC. They relied on an ample number of cases including Vishakha v. State of Rajasthan. The Court observed the need for the society to take a more progressive view on matters relatingto sexual harassment at the workplace. The Court further stated that the stellar reputation of a person cannot be proof of innocence in these matters as more often than not, sexual harassment happens behind closed doors and privately.

Suggested Readings:

  1. Read the judgement here.
  2. Shivi, DEFAMATION LAWS AND JUDICIAL INTERVENTION: A CRITICAL STUDY, Summer Issue, ILI Law Review 170 (2016).
  3. A. G. Harmon, Defamation in Good Faith: An Argument for Restating the Defense of Qualified Privilege, 27 Barry L. Rev. 27 (2011).
  4. Elizabeth C. Tippett, The Legal Implications of the MeToo Movement, 57 Minnesota Law Review 229 (2018).

International

Epic Games files EU antitrust complaint against Apple 

Fortnite maker Epic Games has taken its battle against Apple to the European Union (EU), in an effort to step up its dispute with the iPhone producer over its App Store installment framework and authority over application downloads. Epic’s complaint follows the EU’s announcement in 2020  that it has opened a formal antitrust investigation against Apple over its App Store and Apple Pay practices. The dispute began in August 2020, when Epic Games attempted to evade Apple’s 30% charge on some in-application buys on the App Store by releasing its own in-application installment framework. 

Epic Games’ originator and Chief Executive Tim Sweeney said that Apple has violated antitrust law by banning competitors from utilising their own gaming membership administration on its platform by precluding them from packaging a few games together. Notably, Microsoft has been vocal in its support of Epic’s claim against Apple. Microsoft documented a letter of support for Epic’s claim against Apple, which primarily revolved around Apple’s choice to obstruct Epic from accessing the Unreal Engine. Apple had removed Fortnite from the App Store and took steps to end an associated account stopping the distribution of Unreal Engine, a product device utilized by many application creators to make games. 

It is also pertinent to note that this issue is also the subject of a lawsuit pending in California. On this matter, the judge after a Court hearing ruled in support of Apple. The Californian District Court favored Apple, and decided that they didn’t need to promptly reinstate Fortnite onto the App Store. The matter is pending a preliminary hearing. Epic has launched legal proceedings in Australia, and earlier in 2020 complained to the UK’s antitrust tribunal about Apple’s actions as well.

Suggested Readings: 

  1. Find the Order of the District Court here
  2. Find Microsoft’s declaration of support here
  3. Epic Games, Epic Games extends its fight against Apple to Australia (Nov. 18, 2020), https://www.epicgames.com/site/en-US/freefortnite-australia-press-release
  4. Epic Games, Epic Game Files EU Antitrust Complaint Against Apple (Feb. 17, 2021), https://www.epicgames.com/site/en-US/news/epic-games-files-eu-antitrust-complaint-against-apple.  
  5. Damien Geradin and Dimitrios Katsifis, The Antitrust Case Against the Apple App Store (Apr. 22, 2020).  

Central African Republic war crimes suspects deny all charges at opening of ICC trial

Alfred Yekatom and Patrice-Edouard Ngaïssona’s trial before the ICC which concern charges for atrocities such astorture, murder, and assaulting non military personnel and religious structures in the Central African Republic (CAR) region, opened on 15th February with them denying all charges. Both of the accused first appeared before the court in 2019. The region saw an armed clash between the Seleka and Anti-Balaka groups. Yekatom and Ngaïssona are suspected to hold leadership positions in the Anti-Balaka faction and have been accused for assaulting Muslim non military personnel in the CAR region for purportedly supporting the Selekas. 

The Pre-Trial Chamber II proceeded to Yekatom and Ngaïssona for trial in the wake of affirming charges of war crimes and crimes against humanity. As per the decision of the Pre-Trial Chamber, Yekatom’s and Ngaïssona’s roles allegedly comprised of training people for armed conflicts, purchasing weapons, stationing children under 15 years old at checkpoints and ordering a mass attack on the Muslim population.

Suggested Readings: 

  1. Find the Press Release here
  2. Case Information Sheet, Situation in Central African Republic II, The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona, ICC-PIDS-CIS-CARII-03-011/20_Eng. 
  3. Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona, Case No. ICC-01/14-01/18 (December 11, 2020). 
  4. Mahima Acharya, Central African Republic war crimes suspects deny all charges at opening of ICC trial (Feb. 17, 2021), https://www.jurist.org/news/2021/02/central-african-republic-war-crimes-suspects-deny-all-charges-at-opening-of-icc-trial/.  
  5. Human Rights Watch, Central African Republic: First Anti-Balaka Trial at ICC (Feb. 8, 2021), https://www.hrw.org/news/2021/02/07/central-african-republic-first-anti-balaka-trial-icc

Bangladesh International Crimes Tribunal passes judgment on 9 Liberation War prisoners. 

The three-member International Crimes Tribunal of Bangladesh, acquitted one person and sentenced three to imprisonment for life while five others were sentenced to 20 years in prison for committing crimes against humanity during the 1971 Liberation War. The court found each of the eight persons guilty of the crimes in at least one of the four charges against them.

The International Crimes Tribunal was set up in Bangladesh in 2009 to prosecute persons involved in the 1971 genocide committed by the Pakistan Army and its local allies during the Bangladesh Liberation War that led to establishment of Bangladesh as a county separate from Pakistan. Md. Abdul Latif, was a minor in 1971, and was acquitted of the two charges against him, as it could not be proved that he had the intent to participate in or facilitate the attack against civilians. Among the 42 cases tried by the tribunal to date, this is the first time that an accused has been acquitted.

Investigation of the 11 original accused began in October 2014. Two of them died after the framing of charges in March 2018. Consequently, the proceedings continued against nine persons, five of whom were already in jail and four were absconding. The nine accused persons were charged for “actively participating, facilitating, abetting and substantially contributing to the commission of the offence of ‘abduction’, ‘confinement’, ‘looting’, ‘arson’ and ‘murder’ as crimes against humanity” provided in the International Crimes (Tribunals) Act, 1973. The trial concluded in January 2020. 

Suggested Readings:

  1. Find the judgement here.
  2. Muhammad Abdullah Fazi et al, Bangladesh’s Approach towards International Criminal Law: A Case Study of International Crimes Tribunal Bangladesh, 12:3 Journal of Politics and Law 80 (2019).
  3. Sai Ramani Garimella, The Bangladesh War Crimes Trials – Strengthening Normative Structure, 13 Journal of Law, Policy and Globalization 27 (2013).
  4. Abdus Samad, The International Crimes Tribunal in Bangladesh and International Law, 27:3 Criminal Law Forum (2016).
  5. Muhammad Abdullah Fazi, International Crimes Tribunal Bangladesh and violations of right to fair trial, 9 Maarif Research Journal 11 (2015).
  6. Muskan Yadav, Bangladesh International Crimes Tribunal sentences eight for Liberation War atrocities while acquitting one (Feb. 13, 2021), https://www.jurist.org/news/2021/02/bangladesh-war-crimes-tribunal-sentences-eight-for-liberation-war-crimes-acquits-one/

The UK Supreme Court allows a Nigerian lawsuit against Shell over oil spills

The Supreme Court of the United Kingdom allowed a case filed by 42,335 Nigerian claimants against Shell’s parent company and a Nigerian subsidiary to proceed in UK Courts. The claimants had initially sued Shell and its Nigerian subsidiary in 2015 over allegedly leaking oil from pipelines in the Niger Delta that resulted in the destruction of farmland, the death of fish stock, and poisoned drinking water. It was argued that the oil spills occurred due to the negligence of the subsidiary company responsible for operating the pipelines. They argued that Shell’s parent company “owed them a common law duty of care” since it exercised significant control over the operations of the Nigerian subsidiary.

In 2017, the High Court ruled that although the Court could try the matter against the parent company registered in the UK, “it was not reasonably arguable that there is any duty of care” for the parent company. In 2018, the Court of Appeal dismissed the claimant’s case by ruling that there was “no arguable case” that the parent company owed the Nigerian claimants a common law duty of care. This decision was appealed to the UK Supreme Court. The International Commission of Jurists (ICJ) and the Corporate Responsibility (CORE) Coalition Ltd. intervened and submitted a legal brief setting out the applicability of comparative law and standards in cases of environmental protection and human rights violations concerning companies’ responsibilities in such situations. CORE and the ICJ had previously filed a similar legal brief in a case filed by Zambian communities against the mining giant Vedanta (Lungowe v. Vedanta Resources PLC), in which the court ruled that “companies can be held to account for public commitments regarding their subsidiaries’ operating standards.”

The Supreme Court allowed the Nigerian claimants to proceed against Shell’s parent company and the Nigerian subsidiary by reversing earlier High Court and Court of Appeal decisions, and reaffirmed the precedent established in the Vedanta judgment.

Suggested Readings:

  1. Find the judgement here.
  2. Liesbeth Enneking, The Future of Foreign Direct Liability? Exploring the International Relevance of the Dutch Shell Nigeria Case, 10(1) Utrecht Law Rev. 44 (2014).
  3. Gibson Dunn, Okpabi v Shell: Clarification from the English Supreme Court on Jurisdiction and Parent Company Liability (Feb. 15, 2021), https://www.gibsondunn.com/okpabi-v-shell-clarification-from-the-english-supreme-court-on-jurisdiction-and-parent-company-liability/.
  4. Amnesty International, UK:  Landmark ruling forces Shell to face up to its abuses in Nigeria (Feb. 12, 2021), https://www.amnesty.org/en/latest/news/2021/02/uk-landmark-ruling-forces-shell-to-face-up-to-its-abuses-in-nigeria/.
  5. Amnesty International, On Trial: Shell in Nigeria Legal Actions Against the Oil Multinational (2020), https://www.amnesty.de/sites/default/files/2020-02/Amnesty-Bericht-Nigeria-Shell-on-trial-Februar-2020-ENG.pdf.
  6. Ekaterina Aristova, Tort Litigation against Transnational Corporations in the English Courts: The Challenge of Jurisdiction, 14(2) Utrecht Law Rev. 6 (2018).

Asia Internet Coalition criticized the Cyber Security Bill proposed by Myanmar military coup leaders

A group of the world’s biggest internet companies, including Apple, Facebook, Google and Amazon, joined Myanmar’s civil society in raising alarm over cyber laws floated by the new junta, saying they would contravene fundamental rights and hurt the economy.

The Coalition stated that the proposed bill would give unprecedented censorship powers and violate privacy, contravening democratic norms and fundamental rights. The aims of the Bill are stated as protecting the public and preventing crime and the use of electronic technology to harm the state or its stability. The Bill also states that internet providers would have to prevent or remove content deemed to “cause hatred, destroy unity and tranquillity” to be “untruthful news or rumours” or to be inappropriate to Myanmar’s culture, such as pornography.

Myanmar’s military overthrew the country’s democratic government in a coup on 1st February, arresting civilian leaders, shutting off the internet and cutting off flights. The possibility of the coup emerged after the military, which had tried in the country’s Supreme Court to argue that the election results were fraudulent, threatened to “take action” and surrounded the houses of Parliament with soldiers. The military detained the leaders of the governing N.L.D. party and Myanmar’s civilian leadership, including Ms. Aung San Suu Kyi and President U Win Myint, along with cabinet ministers, the chief ministers of several regions, opposition politicians, writers and activists. The country now returns to a full military rule after a short span of quasi-democracy that began in 2011, when the military, which had been in power since 1962, implemented parliamentary elections and other reforms.

Suggested Readings:

  1. Responding to the Myanmar Coup, International Crisis Group (Feb. 16, 2021), https://www.crisisgroup.org/asia/south-east-asia/myanmar/b166-responding-myanmar-coup.
  2. Priya Pillai, Myanmar Coup d’état – Implications for International Justice, OpinioJuris (Feb. 11, 2021), http://opiniojuris.org/2021/02/11/myanmar-coup-detat-implications-for-international-justice/.
  3.  Stefan Collignon, The Military Coup in Myanmar must not end the democratic transition (Feb, 03, 2021), https://blogs.lse.ac.uk/seac/2021/02/03/the-military-coup-in-myanmar-must-not-end-the-democratic-transition/.
  4. Paul Chambers, Interpreting Myanmar’s 2021 “Veto” Coup d’etat (Feb. 11, 2021), https://blog.prif.org/2021/02/11/interpreting-myanmars-2021-veto-coup-detat/.
  5. Dictating the Internet: Curtailing Free Expression, Opinion and Information Online in Southeast Asia, International Commission of Jurists (December 2019), https://www.icj.org/wp-content/uploads/2019/12/Southeast-Asia-Dictating-the-Internet-Publications-Reports-Thematic-reports-2019-ENG.pdf.
  6. Human Rights Watch, Myanmar: Scrap Sweeping Cybersecurity Bill (Feb. 12, 2021), https://www.hrw.org/news/2021/02/12/myanmar-scrap-sweeping-cybersecurity-bill#.

CfPs and Seminars

Call for Papers (India)

  • NLU Delhi’s Journal of Insolvency, Restructuring, Entrepreneurship Law and Policy [JIREP] invites submissions for its 1st Edition on areas of insolvency and restructuring laws in light of the entrepreneurship environment. The deadline for submission is 15th March, 2021.
  • Maharashtra National Law University (MNLU), Nagpur’s Contemporary Law Review (CLR) invites submissions for its special issue titled, ‘In Memoriam- Prof. Shirish. L. Deshpande and his contribution to Indian Legal Education’. The theme of the journal is the Constitution of India, Jurisprudence, Interpretation of Statutes, Disability Jurisprudence and any other theme associated to Dr. Deshpande’s philosophies. The deadline for submission is 15th March, 2021.
  • Rajiv Gandhi National University of Law, Patiala’s (RGNUL) Financial and Mercantile Law Review (RFMLR) invites submissions for its VIII Volume Issue II on all areas of business and allied laws. Deadline for submission is 30th March, 2021.
  • The Centre for Research in Criminal Justice of Maharashtra National Law University Mumbai (MNLU) invites submissions for its MNLUM Criminal Law Review Blog on the topic of criminal law with a significant implication on international or domestic criminal law and interdisciplinary work.

Call for Papers (International)

  • The Hague Yearbook of International Law is inviting submissions for its upcoming volume on issues of public or private international law. Deadline for submission is 1st May, 2021.
  • The Goettingen Journal of International Law invites submissions for its Student Essay Competition on the topic, ‘International Law in Times of a Pandemic’. Deadline for submission is 1st August, 2021.
  • The Wolverhampton Law Journal (WLJ) invites submissions for its Spring Issue on all areas of the law and criminal justice. Deadline for submission is 30th April, 2021.

Seminars (India)

Seminars (International)

  • Oxford Seminars in Jurisprudence invites full working papers for its virtual seminars. Deadline for submission of the abstract is 29th March, 2021.
  • The Center on International Commercial Arbitration at American University Washington College of Law is inviting submissions for its fifth Symposium on Salient Issues in International Arbitration. The deadline for submission is June 15, 2021.

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