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TeLawgram

’21 Week 9 (26/02-03/03)

This week saw major developments in the legal arena with the Supreme Court of India allowing High Courts to quash FIRs using the writ jurisdiction and the Westminster Magistrate Court allowing the extradition of Nirav Modi to India and much more. 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

Moratorium under S.14 of the Insolvency and Bankruptcy Code bars the initiation of S.138 proceedings

The Supreme Court in P Mohanraj v. M/S Shah Brothers Ispat Pvt. Ltd. ruled that when an order under Section 14 of the Insolvency and Bankruptcy Code (IBC) is passed, the right to bring forth proceedings for dishonouring of a cheque under Section 138 of the Negotiable Instruments Act(NIA) is circumvented. The judgment was delivered by a bench of Justices Rohinton Nariman, Navin Sinha and KM Joseph in an appeal against a July 2018 judgment of the National Company Law Appellate Tribunal (NCLAT) (Shah  Bros. Ispat (P) Ltd. v. P. Mohanraj.  It stated that in an order of moratorium passed under the IBC, parallel proceedings under Sec. 138 against the Corporate Debtor cannot be allowed to continue as the same will be covered by the bar under Section 14 of the IBC. 

Notably, Justice Nariman stated, “ … for the period of moratorium, since no Section 138/141 proceeding can continue or be initiated against the corporate debtor because of a statutory bar, such proceedings can be initiated or continued against the persons (directors/persons in management or control of the corporate debtor) mentioned in Section 141(1) and (2) of the Negotiable Instruments Act.”

In conclusion, it also disagreed with the Bombay High Court and the Calcutta High Court judgements in Tayal Cotton Pvt. Ltd. v. State of Maharashtra, and M/s MBL Infrastructure Ltd. v. Manik Chand Somani.

Suggested Reading: 

  1. Find the verdict here. 
  2. Find the NCLAT decision here.
  3. Find the Tayal Cotton case here.
  4. Find the MBL Infrastructure case, here. 
  5. Debayan Roy, Moratorium order under Section 14 IBC bars parallel proceedings against Corporate Debtor under Section 138 of NI Act: Supreme Court (Mar. 1, 2021), https://www.barandbench.com/news/litigation/moratorium-order-section-14-ibc-bars-parallel-proceedings-section-138-negotiable-instruments-act-supreme-court#:~:text=The%20Supreme%20Court%20on%20Monday,by%20the%20bar%20under%20Section.  
  6. Akaant Kumar Mittal, Cheque Proceedings Against a Company During Insolvency Proceedings – A Legal Complication [SCC Archives] (Sept. 27. 2020), https://www.scconline.com/blog/post/2020/09/27/cheque-proceedings-against-a-company-during-insolvency-proceedings-a-legal-complication-scc-archives/.

The Supreme Court directs prisoners in Delhi who were released due to COVID to return to prisons

The Supreme Court, on 1st March, 2021 passed an order directing 2,674 prisoners who were released on interim bail in Delhi, to return to prisons. In March 2020, the Supreme Court had directed prison authorities across the country to release prisoners in light of the possibility of a COVID-19 outbreak within prisons. High-Powered Committees (‘HPC’) were constituted in every state so as to identify prisoners who could be released. In Delhi, when the pandemic was in its nascent stages, 2907 prisoners were released on the HPC’s recommendation, 2318 undertrials were released by the District Courts and 356 prisoners were released by the Delhi High Court. The Supreme Court has taken note of the improving COVID-19 situation in Delhi and directed the 2318 inmates released by the Delhi District Courts along with the 356 prisoners released by the Delhi High Court to return to prisons within fifteen days. 

Suggested readings:

  1.  Click here for the Supreme Court’s order.
  2.  Click here for the Supreme Court’s order on containing COVID-19 in prisons.
  3. Vijay Raghavan, Prisons and the pandemic: the panopticon plays out (Dec. 7, 2020), https://link.springer.com/article/10.1007/s40847-020-00127-9.  
  4. Jared R. Dmello & Sheetal Ranjan, Lock Unlock: The Impact of COVID-19 on Health Security in Pakistani and Indian Prisons (Oct. 21, 2020), https://www.tandfonline.com/doi/full/10.1080/15564886.2020.1822973. 
  5. Brandy F. Henry, Social Distancing and Incarceration: Policy and Management Strategies to Reduce COVID-19 Transmission and Promote Health Equity Through Decarceration, 0 Health Education and Behavior 1 (2020). 
  6. Commonwealth Human Rights Initiative, Responding to the Pandemic: Prisons and Overcrowding (Volume 1), https://humanrightsinitiative.org/download/Responding%20to%20the%20Pandemic%20%20Prisons%20&%20Overcrowding%20Vol%201.pdf. 
  7. Commonwealth Human Rights Initiative, Responding to the Pandemic: Prisons and Overcrowding (Volume 2), https://humanrightsinitiative.org/download/Responding%20to%20the%20Pandemic%20Prisons%20&%20Overcrowding%20Vol%202.pdf.

Supreme Court rules that powers under Article 226 of the Constitution can be used to quash an FIR

The Supreme Court on 1st March, 2021, ruled that High Courts can quash First Information Reports (‘FIR’) by exercising writ jurisdiction under Article 226 of the Constitution, when there is abuse of process. In Kapil Agarwal and Ors. v. Sanjay Sharma and Ors., the respondents filed an application under Section 156(3) of the Code of Criminal Procedure (‘CrPC’) to register an FIR against the appellants. However, the Magistrate did not direct the registration of an FIR and instead chose to conduct an enquiry. The Magistrate did not pronounce an order for over two years since the filing of the original application. Subsequently, another application was filed seeking the registration of an FIR with the same allegations without making any reference to the earlier FIR that was pending before the Magistrate. The Supreme Court held that multiple FIRs filed with the intention of harassing the accused can be quashed under Article 226 of the Constitution or, Section  482 of the CrPC. 

Suggested readings:

  1. Click here for the judgement.
  2. Keshab Roy Choudhury, Running Roughshod Over Legislative Concerns and Entrenching the Public-Private Dichotomy – Scrutinizing the Inherent Powers of the High Court Under S.482 of the CrPC – Part I (Jul. 23, 2020), https://criminallawstudiesnluj.wordpress.com/2020/07/23/running-roughshod-over-legislative-concerns-and-entrenching-the-public-private-dichotomy-scrutinizing-the-inherent-powers-of-the-high-court-under-s-482-of-the-crpc-part-i/. 
  3. Keshab Roy Choudhury, Running Roughshod Over Legislative Concerns and Entrenching the Public-Private Dichotomy – Scrutinizing the Inherent Powers of the High Court Under S.482 of the CrPC – Part II (Jul. 24, 2020),https://criminallawstudiesnluj.wordpress.com/2020/07/24/running-roughshod-over-legislative-concerns-and-entrenching-the-public-private-dichotomy-scrutinizing-the-inherent-powers-of-the-high-court-under-s-482-of-the-crpc-part-ii/. 
  4. Sheetal Rani, First Information Report: An Analytical Study (2019) (LLM Dissertation, National Law University, Delhi). 
  5. For guidelines on quashing FIRs, see Parbatbhai Aahir v. State of Gujarat, Crl. App. No. 1723 of 2017 (Supreme Court of India). 
  6. Wasim Beg & Karan Dev Chopra, 156(3), CrPC: Interlocutory or not? Treading a Paradoxical Course  (Nov. 23, 2018), https://www.mondaq.com/india/civil-law/757740/1563-crpc-interlocutory-or-not-treading-a-paradoxical-course.

OTT Platform programs must be screened : SC observes in the Aparna Purohit Bail Plea

On 5th March, 2021, a Supreme Court bench consisting of Justice Ashok Bhushan and Justice Subhash Reddy observed that shows and programs on Over-The-Top (OTT) platforms must be screened and that there should be “a balance” between the right to free speech and expression and regulation of content.

These observations were made during the anticipatory bail hearing of the India Head of Amazon Prime Video, Aparna Purohit. The case filed against her was in relation to the web series ‘Tandav’. The FIR against Purohit was filed by the Uttar Pradesh Police  for offences under Sections 153A (promoting enmity between different groups), 295 (defiling place of worship), 295A (hurting religious sentiments), 505(1)(b), 505(2) (statements conducive to public mischief) of Indian Penal Code (IPC) and Sections 66 and 67 of the Information Technology Act.

As of the writing of this update, the Supreme Court has granted Ms. Purohit protection from arrest, while remarking that existing regulations for OTT platforms are insufficient.

Suggested Readings:

  1. Read the newly notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules here.
  2. Shubhangi Heda, How to Regulate OTT Streaming Services in India (2019) (Research Paper, Center for Media, Data and Society, Central European University).
  3. Deepali Bhandari and Abhigyan Tripathi, Censorship of OTT Media Services: Restraining Freedom of Expression? (Dec. 23, 2020), https://lawschoolpolicyreview.com/2020/12/23/censorship-of-ott-media-services-restraining-freedom-of-expression/ .
  4. Gaurav Kumar, Emergence of OTT Market in India: Regulatory and Censorship Issues (Sept. 27, 2019), https://techlawforum.nalsar.ac.in/emergence-of-ott-market-in-india-regulatory-and-censorship-issues/.

International

UK court approves extradition of Nirav Modi to India

On 25th February, 2021, the Westminster Magistrates Court ruled in favour of Nirav Modi’s extradition to India for facilitating the investigation into his involvement in the Punjab National Bank (PNB) fraud case.

During extradition proceedings, it was contended by Modi’s counsel that the Indian judiciary is politicized, and not independent. Additionally, Justice Markande Katju, who appeared as an expert witness for Modi, echoed the same view.

However, the Court presided by Judge Sam Goozée, found no cogent, reliable and sufficient evidence to indicate that the Indian judiciary is not independent. It held that the independence of the Indian judiciary, as enshrined in the Constitution of India, remains intact.

In 2018, Nirav Modi, billionaire jeweller and designer, was found to have been part of the defrauding of India’s second-largest State-run bank, PNB. The fraud was undertaken by issuance of evergreen loans through using fake Letters of Undertakings in favour of Indian bank branches for importing pearls for a one-year period.

Suggested Readings:

  1. Read the ruling here.
  2. Find the India – UK Extradition Treaty here.
  3. Aarshi Tirkey, India’s Challenges in Extraditing Fugitives from Foreign Countries, 270 ORF Issue Brief (2018).
  4. Harita Ramachandran, BRINGING ECONOMIC OFFENDERS TO JUSTICE: A LEGAL ANALYSIS OF EXTRADITION OF ECONOMIC OFFENDERS TO INDIA AND THE HURDLES AHEAD, 4 JCIL 224 (2018).
  5. Ashish Jajodia, A Case Study On Nirav Modi & The Punjab National Bank Fraud (March 27, 2018), https://blog.bahwancybertek.com/a-case-study-on-nirav-modi-the-punjab-national-bank-fraud/ .
  6. S. Gayathri and T. Mangaiyarkarasi, A Critical Analysis of the Punjab National Bank Scam and Its Implications, 119 International Journal of Pure and Applied Mathematics 14853 (2018).

Cuba passes a  legislation on animal welfare 

The Government of Cuba passed its long-awaited animal welfare law. The new legislation comes amid mounting pressure from the younger generation of animal activists who have been organizing public protests and social media campaigns. The Animal Welfare Bill requires State agencies and animal welfare organizations to prohibit all forms of animal abuse. These duties extend to the keepers of livestock, animals in sport and pets. Animal custodians are now required to seek preventative and emergency veterinary care for their animals. Any violations will carry fines of up to 7,000 pesos.

The Ministry of Agriculture stated that the decree aims to “regulate the principles, duties, rules and purposes regarding the care, health and use of animals to guarantee their well-being.” Legislators hope to create a national dialogue to change commonly held beliefs about animal rights in Cuba.

The Cuban Parliament expects the Animal Welfare Bill to come into force within 90 days and is due to be published in the Republic’s Official Gazette.

Suggested Readings:

  1.  Rivera et al, Laboratory Animal Legislation in Latin America, 57 ILAR Journal 293–300 (2016).
  2. Anastasia Niedrich, Animals in Circuses and the Laws Governing Them (2020), https://www.animallaw.info/article/animals-circuses-and-laws-governing-them.
  3. Animal Legislations In The World At National Level, Global Animal Law, https://www.globalanimallaw.org/database/national/index.html.
  4. Kristin Jones, Colorado Combats Animal Cruelty (Mar 1, 2021), https://animalblawg.wordpress.com/2021/03/01/colorado-combats-animal-cruelty/.
  5. Marissa O’Connor, The Case Against Captivity (Mar 1, 2021), https://animalblawg.wordpress.com/2021/03/01/the-case-against-captivity/.
  6. Nicolette Merli, A Proposed Bill in New York Seeks to Prohibit the Shipment of Live Animals by Mail After Recent USPS Delays Reveal Devastating Impacts (Mar 1, 2021), https://animalblawg.wordpress.com/2021/03/01/a-proposed-bill-in-new-york-seeks-to-prohibit-the-shipment-of-live-animals-by-mail-after-recent-usps-delays-reveal-devastating-impacts/.

UK Supreme Court rules Shamima Begum cannot return to appeal citizenship revocation

The Supreme Court of the United Kingdom dismissed Shamima Begum’s request to return to the country to appeal the deprivation of her citizenship on 26th February, 2021.

Shamima Begum was one of the three schoolgirls who left the United Kingdom to join the Islamic State of Iraq and the Levant (ISIL) in 2015. In early 2019, the Secretary of State sent a notification to revoke her British citizenship because of her association with ISIL. Subsequently, Begum filed an application to appeal the decision of deprivation of citizenship effectively. It was dismissed, and later, she appealed to the Special Immigration Appeals Commission (SIAC) and the Court of Appeal, with the Court of Appeal deciding in her favour.

However, the Supreme Court reversed the decision rendered by the Court of Appeal. It observed that the Court of Appeal erred in four respects: firstly, it misunderstood the scope of an appeal against the Secretary of State’s decision; secondly, its approach to the appeal against the dismissal of Begum’s application for judicial review by making its assessment; thirdly, by giving precedence to the right to fair hearing over the requirements of national security; and fourthly, treating the Secretary of State’s discretionary guidance policy as the rule of law. In light of these observations, the Supreme Court dismissed Begum’s application for judicial review of the decision of deprivation of citizenship.

Suggested Readings:

  1. Find the ruling here.
  2. Mercedes Masters & Salvador Santino F Regilme, Jr., Human Rights and British Citizenship: The Case of Shamima Begum as Citizen to Homo Sacer, 12 Journal of Human Rights Practice, 341-363 (2020).
  3. Bangladeshi or Stateless? A Practical Analysis of Shamima Begum’s Status (May 9, 2019), https://internationallaw.blog/2019/05/09/bangladeshi-or-stateless-a-practical-analysis-of-shamima-begums-status/.
  4. Sheri Labenski, Women’s violence and the law: in consideration of Shamima Begum, (November 20, 2019), https://blogs.lse.ac.uk/wps/2019/11/20/womens-violence-and-the-law-in-consideration-of-shamima-begum/.
  5. Steve Clarke, Shamima Begum and the Public Good (May 15, 2019), http://blog.practicalethics.ox.ac.uk/2019/05/shamima-begum-and-the-public-good/.

ICC investigates alleged crimes in Palestinian territories

The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda announced that the her office has launched an investigation into alleged war crimes by Israel in Palestinian territories committed since 2014. The Prosecutor stated that the probe will be conducted ‘independently, impartially and objectively, without fear or favour’. The ICC had previously conducted a preliminary examination of the Palestine situation in 2019. The present probe, and the ongoing examinations began after Palestine had referred the Situation in the State of Palestine to the Prosecutor in May 2018, pursuant to articles 13(a) and 14 of the Rome Statute. 

The office states that there is ‘reasonable basis’ to open a war crimes probe into the Israeli military actions along the Gaza Strip as well as the Israeli settlement activity in the occupied West Bank.

The Chamber’s conclusions were only pertaining to the conduct of investigation proceedings, and it stated that in the event the Prosecutor submits an application for the issuance of a warrant of arrest or summons, the Chamber would examine the further questions of jurisdiction that arose in the present pre- trial. The investigation will be conducted on the military operations that were carried out against Palestinians in the Gaza strip, and on the expansion of Jewish settlements in Jerusalem and the West Bank. The Prosecutor stressed that the investigations will be grounded objectively on facts and law and that the ICC possesses no other agenda than performing its duties mandated by its founding statute, which is to “promote accountability for Rome Statute Crimes.”

Suggested Readings:

  1. Find the Statement of ICC Prosecutor, Fatou Bensouda here.
  2. Click here to see the “Situation in the State of Palestine” Document.
  3. Situation in the State of Palestine, ICC-01/18, Pre-trial Chamber I ( Feb. 5, 2021), (https://www.icc-cpi.int/CourtRecords/CR2021_01165.PDF )
  4. Annex I to Decision assigning the situation in the State of Palestine to Pre-Trial Chamber I,  ICC-01/18-1-AnxI, Pre- Trial Judicial Document (May. 24, 2015), https://legal-tools.org/doc/7b9d1c/. 
  5. International Criminal Court (ICC), Understanding the International Criminal Court, https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf (last visited Mar. 6, 2021). 
  6. Moses Retselisitsoe Phook, How Effective the International Criminal Court Has Been: Evaluating the Work and Progress of the International Criminal Court, 1 Notre Dame J. Int’l & Comp. L. (2011).
  7. Caroline Sweeney, Accountability for Syria: Is the International Criminal Court Now a Realistic Option?, 17 J. Int’l Crim. Just. (Dec. 2019).

TikTok to pay $92M to settle 21 US class-action privacy lawsuits

TikTok Inc. agreed to pay $92 Million, after settling a series of class-action privacy lawsuits affecting 89 million users in the US. The settlement was a result of 21 federal lawsuits filed mostly on behalf of minors accusing TikTok of the “theft of private and personally identifiable TikTok user data.” The proposed settlement is one of the largest privacy-related payouts in history and affects TikTok users in the U.S. whose personal data was allegedly tracked and sold to advertisers in violation of state and federal law. The app allegedly illegally recorded and compiled users’ facial scans and user data, and disclosed it to third parties, and later sold it to advertisers based in China. 

The Plaintiffs’ lawyers contend that TikTok took several measures to hide the data collection and sharing practices. Tiktok also allegedly shared user information with Facebook, Google and other tech companies. Under the proposed terms of the settlement, TikTok will no longer record a user’s biometric information, including facial characteristics, nor track a user’s location using GPS data. TikTok also committed to stop sending U.S. users data overseas and it can no longer collect data on draft videos before the content is published. The legal battle has been ensuing for more than a year. The suits were merged into one multi-district action in the Northern District of Illinois that cited violations of privacy laws in Illinois and California. It requires technology companies to receive written consent before collecting an individual’s personal data. The suit also claimed TikTok broke federal laws, including privacy and computer fraud. 

Suggested Readings: 

  1. Find motion for settlement here. 
  2. BEUC files complaint against TikTok for multiple EU consumer law breaches, BEUC – The European Consumer Organisation (2021), https://www.beuc.eu/publications/beuc-files-complaint-against-tiktok-multiple-eu-consumer-law-breaches/html (last visited Mar. 6, 2021).   
  3. BEUC, Tik Tok Without Filters, https://www.beuc.eu/publications/beuc-x-2021-012_tiktok_without_filters.pdf (last visited Mar. 6, 2021)
  4. Siri Swayampu, The Tik(Tok)ing of privacy rights in the digital era: the need for an international framework to protect data privacy (Aug. 31, 2020), https://www.universal-rights.org/contemporary-and-emerging-human-rights-issues/the-tiktoking-of-privacy-rights-in-the-digital-era-the-need-for-an-international-framework-to-protect-data-privacy/. 
  5. Luhao Xue, Contradictions between public perception of privacy and Corporate privacy policy: A case study of TikTok (2020), http://summit.sfu.ca/item/20753. 
  6. Jufang Wang From banning to regulating TikTok: Addressing concerns of national security, privacy, and online harms (2020), https://www.researchgate.net/publication/344584442_From_banning_to_regulating_TikTok_Addressing_concerns_of_national_security_privacy_and_online_harms. 

CfPs and Seminars

Call for Papers (India)

Call for Papers (International)

  • The Cambridge Law Review invites contemporary submissions for its Volume VI, Issue 2 on English law, the law in other common law jurisdictions, European law, and international law; comparative pieces; as well as interdisciplinary legal scholarship that has regard to economics and political studies. Deadline for submissions is 10th May, 2021. 
  • The Stanford Law Review invites submissions for Volume 74 on any contemporary topics of law. 
  • The Stanford Law Review Online invites submissions for Volume 73 on any contemporary topics of law. Click here to submit an article. 
  • The King’s Student Law Review invites submissions for its Volume XII Issue II on topical or timely work concerning new developments in the law. Deadline for submissions is 20th May, 2021. 

Seminars (India)

  • The Tamil Nadu National Law University (TNNLU), Tiruchirappalli is conducting the 2nd All India Legal History Congress (AILHC) on May 21st and 22nd, 2021. The theme is Pursuit of Legal History of India in the 21st century. Deadline for submission of the abstract is 13th March, 2021. Deadline for registration is 29th March, 2021. Click herefor registration. 

Seminars (International)

  • The International Maritime Law Seminar will be held in London on 28th October, 2021. Click here for more information. 

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