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TeLawgram

’21 Week 10 (06/03 – 12/03)

The past week has been fraught with judgements from various High Courts, the Supreme Court, the European Court of Justice and more. The subject of these judgements range from the Arbitration and Conciliation Act to the air pollution limits in the European Union. Apart from these, the updates also cover policy developments in countries like Spain, Germany and Switzerland. Hope you enjoy reading the updates and curated list of suggested readings!

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

The Supreme Court reads down Section 12(2)(c) of Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961

A three-judge bench of the Supreme Court in Vikas Kishanrao Gawali v. State of Maharashtra made a pronouncement on the constitutionality of Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (‘the Act’). Section 12(2)(c) of the Act provided for twenty-seven percent reservation for other backward castes (‘OBCs’) in local self-governments.

The Court relied on the three-prong test for reservations of OBCs in local bodies in K. Krishna Murthy v. Union of India to rule that the words “shall be twenty-seven percent” should be read as “may be twenty-seven percent”. The three conditions that were laid down were first, that a committee should be set up to gather empirical data on the backwardness in local bodies. Second, the empirical data should be the basis for recommendations on the proportion of reservation. And third, that the reservations for Scheduled Castes, Scheduled Tribes and OBCs must not exceed the constitutional limit of fifty percent. Since the petitioners argued that the reservations in local bodies exceeded fifty percent, the Court ruled that the twenty-seven percent OBC reservation requirement in Section 12(2)(c) must not be interpreted rigidly.

Suggested readings:

  1. Click here for the judgement.
  2. Click here for the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961. 
  3. Anant Sangal, The Supreme Court’s 100% Reservation Judgment – Two Inconsistencies (May 20, 2020), https://indconlawphil.wordpress.com/2020/05/10/guest-post-the-supreme-courts-100-reservation-judgment-two-inconsistencies/
  4. Evan Osborne, Culture, Development and Government: Reservations in India, 49 Economic Development and Cultural Change 659 (2001). 
  5. Mark Aronson, Statutory Interpretation or Judicial Disobedience? (Jun. 3, 2013), https://ukconstitutionallaw.org/2013/06/03/mark-aronson-statutory-interpretation-or-judicial-disobedience/

The Supreme Court directs the formation of a Committee to make recommendations on speedy disposition of Section 138 cases

A Constitution Bench of the Supreme Court in a suo motu petition initiated by the Court in March 2020, ordered the formation of a Committee to make recommendations for the speedy disposal of cases under Section 138 of the Negotiable Instruments Act. In October 2020, the Court had received a preliminary report from the amici curiae,  Senior Advocate Sidharth Luthra and Advocate K. Parameshwar. The report made several recommendations for the speedy disposal of Section 138 cases, some of which include the empowerment of Lok Adalats to conduct pre-litigation mediation, the use of WhatsApp and email for the service of summons etc. In its latest order on the petition, the court ordered the formation of a Committee to be headed by Justice R C Chavan, a former judge of the Bombay High Court. The Committee will submit its report to the court in three months.

Suggested readings:

  1. Find the report submitted by the amici curiae here.  
  2. Srihari Gopal & Vedant Malpani, Decriminalisation of Section 138: A Half-Baked Remedy (Jul. 12, 2020), https://indiacorplaw.in/2020/07/decriminalisation-of-section-138-a-half-baked-remedy.html
  3. Law Commission of India, Fast Track Magisterial Courts for Dishonoured Cheque Cases (Law Commission Report No. 213), https://lawcommissionofindia.nic.in/reports/report213.pdf
  4. P. R. Thakur, Dishonour of Cheque – A Deemed Offence Under Section 138 of the Negotiable Instruments Act 1881 (As Amended in 1988), 33 JILI 346 (1991).
  5. Kevin M. Clermont & Theodore Eisenberg, Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ from Negotiable Instruments, 2002 University of Illinois Law Review 947 (2002).  
  6. Nitika Khaitan, Shalini Seetharam & Sumathi Chandrashekaran, Inefficiency and Judicial Delay – New Insights from the Delhi High Court (March, 2017), https://vidhilegalpolicy.in/wp-content/uploads/2017/03/InefficiencyandJudicialDelay_Vidhi.pdf.  

Madras High Court rules that REPCO is not a “bank” or a “secured creditor” for the purposes of the SARFAESI Act

The Madras High Court on 3rd March, 2021 in S. P. Ganesan v. Authorised Signatory, REPCO Bank disposed of a writ petition questioning the authority of the REPCO Bank to invoke the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’). The petitioner had availed credit facilities from REPCO Bank and failed to repay the dues. REPCO Bank followed the procedure under Section 13(2) of the Act in an attempt to obtain possession of the secured assets. However, since the RBI did not provide REPCO Bank with a banking license, the Madras High Court ruled that it could not be regarded as a bank under Section 2(1)(c) of the SARFAESI Act. The Court observed that REPCO may be a co-operative society but, it was not a co-operative bank and therefore could not resort to remedies under the SARFAESI Act.

Suggested readings:

  1. Click here for the judgement. 
  2. Dhananjay Kumar & CAM Projects Team, The Changing Landscape of Securitisation & Debt Recovery (Aug. 18, 2016), https://corporate.cyrilamarchandblogs.com/2016/08/changing-landscape-securitisation-debt-recovery/
  3. Karan Kamath, Supreme Court on Applicability of SARFAESI to Co-operative Banks and the Banking (Amendment) Bill, 2020 (May 16, 2020), https://indiacorplaw.in/2020/05/supreme-court-on-applicability-of-sarfaesi-to-co-operative-banks-and-the-banking-amendment-bill-2020.html
  4. Ankit Tripathi, Ishrat Ali v. Cosmos Co-operative Bank: A Missed Opportunity by NCLAT to Advance the Jurisprudence of IBC, SARFAESI and Limitation Act (Apr. 6, 2020), https://cbcl.nliu.ac.in/insolvency-law/ishrat-ali-v-cosmos-cooperative-bank-ltd-anr-a-missed-opportunity-by-nclat-to-advance-the-jurisprudence-of-ibc-sarfeasi-and-limitation-act/
  5. Bharat Harne, Dual Regulation of Co-operative Banks – A Constitutional and Policy Analysis (Jul. 3, 2020), https://lawschoolpolicyreview.com/2020/07/03/dual-regulation-of-co-operative-banks-a-constitutional-and-policy-analysis/.

Supreme Court determines the scope of NCLT/ NCLAT jurisdiction over contractual disputes

A two-judge bench of the Supreme Court comprising Justice D Y Chandrachud and Justice M R Shah ruled that the NCLT and the NCLAT have jurisdiction over contractual disputes that have a nexus with insolvency disputes. In Gujarat Urja Vikas Nigam Limited v. Amit Gupta the appellant contested the decisions of the NCLT and the NCLAT to stay the termination of a Power Purchase Agreement on the ground that the NCLT and the NCLAT lack the jurisdiction to adjudicate on contractual disputes involving corporate debtors under Section 60(5)(c) of the Insolvency and Bankruptcy Code, 2016 (‘IBC’). 

The Supreme Court observed that the language of Section 60(5) of the IBC was similar to the language of Section 280(3) of the Companies Act, 2013. However, the Court emphasized on the need to interpret the IBC differently based on the object and purpose of the legislation. Since the Power Purchase Agreement contained a clause which made termination dependent on insolvency, the Court ruled that it would be counterproductive to have disputes related to insolvency decided at multiple fora when the IBC envisions speedy and convenient insolvency resolution process. 

Suggested readings:

  1. Click here for the judgement.
  2. Aishwarya V. & Raghavi R., NCLT’s jurisdiction: Changing dynamics in the field of insolvency (Jul. 26, 2020), http://www.nlujlawreview.in/nclts-jurisdiction-changing-dynamics-in-the-field-of-insolvency/
  3. Rozat Akolawala, Scope of NCLT/NCLAT’s Inherent Powers: Meeting the Ends of Justice (Mar. 5, 2021), https://cbcl.nliu.ac.in/insolvency-law/scope-of-nclt-nclats-inherent-powers-meeting-the-ends-of-justice/.   
  4. Abhishek Jamalpur, Construction of Exclusive Jurisdictional Clauses: Are Insolvency Proceedings Covered? (Sept. 9, 2019), https://indiacorplaw.in/2019/09/construction-exclusive-jurisdictional-clauses-insolvency-proceedings-covered.html.  
  5. Insolvency and Bankruptcy Board of India, Understanding the IBC – Key Jurisprudence and Practical Considerations – A Handbook (2020).

Supreme Court recognises vacuum in law concerning the applicability of Limitation Act in arbitration proceedings

On 10th March 2021, a Supreme Court bench consisting of Justice Indu Malhotra and Justice Ajay Rastogi held that the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act would be governed by Article 137 of the First Schedule of the Limitation Act, and will begin to run from the date when there is failure to appoint the arbitrator.

The Court was dealing with an appeal by Bharat Sanchar Nigam Limited (BSNL) challenging the Kerala High Court’s decision to refer a dispute between BSNL and Nortel for arbitration. The dispute dated back to August 2014.

A notice invoking arbitration was served by Nortel on BSNL in April 2020. Subsequently, Nortel moved a Section 11, Arbitration Act application in the Kerala High Court. The High Court referred the matter to arbitration. This ruling was confirmed after a review plea was dismissed by the High Court last January, prompting BSNL to move the Supreme Court.

The Court had to consider two main issues: (i) the period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996; and (ii) whether the Court may refuse to make the reference under Section 11 where the claims are ex facie time-barred?

With respect to the first issue, the bench noted that, since there is no provision in the Arbitration Act specifying the period of limitation for filing an application under Section 11, one would have to take recourse to the Limitation Act, as per Section 43 of the Arbitration Act, which provides that the Limitation Act shall apply to arbitrations, as it applies to proceedings in Court.

The Court went on to observe that there exists a vacuum in this area of law.

Suggested Readings:

  1. Read the judgement here.
  2. Find the Arbitration and Conciliation Act, 1996 here.
  3. Rohit Lalwani, Extension Of Limitation Period In Arbitration (May 13, 2020), https://www.mondaq.com/india/arbitration-dispute-resolution/933026/extension-of-limitation-period-in-arbitration .
  4. Devansh Mohta, Application of Law of Limitation in Computing Time Period Under Section 34(3) of the Arbitration & Conciliation Act, 1996 (Jan. 8, 2019), http://arbitrationblog.kluwerarbitration.com/2019/01/08/application-of-law-of-limitation-in-computing-time-period-under-section-343-of-the-arbitration-conciliation-act-1996/.

International

Switzerland votes to ban face coverings, such as hijabs or burqas, in public

In Switzerland, a public referendum on 7th March, 2021 came out favouring a ban on face coverings such as hijabs or burqas in public. Almost 51.2 percent of the eligible voters voted for a nationwide ban on face coverings in the referendum. The result is distressing to the Muslim community and the Muslim tourists to the country.  It affects the freedom of choice of many Muslim women who choose to wear a burqa or hijab in public for religious reasons.

The referendum initiated by the right-wing political party Swiss People’s Party spearheaded the “Yes” vote campaign. The campaign’s spokesperson Jean-Luc Addor called face covering an extreme form of Islam. He said that face-covering ban is a question of civilization, and free men and women must present themselves with uncovered faces. 

The face-covering ban has been heavily criticized for oppressing Muslim women’s freedom of choice.  The choice to wear a hijab or burqa is a complex form of personal, cultural, religious and political symbolism. The Swiss Council of Religions said that the ban is disproportionately restricting religious freedom. 

Suggested Readings:

  1. Marie Juul Petersen, Islam and human rights: Clash or compatibility? (June 11, 2018), https://blogs.lse.ac.uk/religionglobalsociety/2018/06/islam-and-human-rights-clash-or-compatibility/.
  2. Shaira Nanwani, The Burqa Ban: An Unreasonable Limitation on Religious Freedom or a Justifiable Restriction? 25 Emory International Law Review 1431- 1475 (2011).
  3. Machteld Zee, Redressing the Discourse on the Burqa Ban (Aug 12, 2012), https://leidenlawblog.nl/articles/redressing-the-discourse-on-the-burqa-ban.
  4. Why veil restrictions increase the risk of terrorism in Europe, LSE Blog ( Dec 17, 2019), https://blogs.lse.ac.uk/europpblog/2019/12/17/why-veil-restrictions-increase-the-risk-of-terrorism-in-europe/.
  5. Poppy Rimington-Pounder, The Round-Up: Niqab ban does not violate human rights (July 19, 2017), https://ukhumanrightsblog.com/2017/07/19/the-round-up-niqab-ban-does-not-violate-human-rights/.
  6. J. Marshall, The legal recognition of personality: Full-face veils and permissible choices, 10 International Journal of Law in Context 64-80 (2014).

European Union Court finds the United Kingdom in breach of EU air pollution limit

On 4th March, 2021, a European Union Court held that the United Kingdom was in breach of the bloc’s air pollution limit due to their failure to fulfil obligations under Article 13(1) and of Annex XI to Directive No 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe.

The Directive contains air quality objectives and targets for improving human health and environmental quality up to 2020. This judgement is especially peculiar as it raises the possibility of a country being fined even after leaving the EU.

Britain exited the EU along with the European Court of Justice in 2020. However, it agreed to apply the judgements of the Court in cases that were initiated when they were still a member of the bloc. This is the first judgement delivered after the country’s exit.

The Court found evidence that the UK has systematically failed to meet its obligations under Art. 13(1) between 2010 and 2017. UK Ministers admitted that pollution limits had been breached, but they argued that other nations had broken limits too. The Court ordered the UK to pay the legal costs incurred by the European Commission and warned them of penalties if  the failure to comply continued.

Suggested Readings:

  1. Find the Court’s judgement here.
  2. Find the European Parliament’s Directive here.
  3. Delphine Misonne, The emergence of a right to clean air: Transforming European Union law through litigation and citizen science, 0 RECEIL 1 (2020).
  4. Gemmer Marco and Xiao Bo, Air Quality Legislation and Standards in the European Union: Background, Status and Public Participation, 4 ADVANCES IN CLIMATE CHANGE RESEARCH 50 (2013).
  5. Raphael Hogarth, Dispute resolution after Brexit (Oct. 2017), https://www.instituteforgovernment.org.uk/sites/default/files/publications/IfG_Brexit_dispute_resolution_WEB.pdf.

Strike in Spain to submit the draft legislation that allows gender self-determination without a doctor’s diagnosis 

Activists in Spain are going on a hunger strike to force the ruling left-wing coalition to submit the draft legislation on transgender rights. Spain’s Equality Ministry had introduced a draft legislation on 3rd February, 2021 that is inclusive of transgender rights. It would potentially allow transgender people to officially change their gender without a medical diagnosis of gender dysphoria. 

Currently, the transgender rights activists are accusing Prime Minister Pedro Sánchez’s Socialist Party members for intentionally blocking the draft for the proposed transgender rights law. Deputy Prime Minister Carmen Calvo of the Socialist Party has said that allowing one to choose one’s registered gender without a gender dysphoria diagnosis and treatment could undermine other people’s rights, especially women. Calvo instead plans to suggest a new law that would protect the rights of all LGBT people.

The transgender rights activist Mar Cambrollé said that conditions must not be placed on self-determination, and putting locks on freedom would lead to increased violence against trans people

Suggested Readings:

  1. Peter Dunne and Tara Hewitt , Gender Recognition, Self-Determination and Segregated Space (Jan 16, 2018), https://ohrh.law.ox.ac.uk/gender-recognition-self-determination-and-segregated-space/.
  2. Andreas von Arnauld ed. et al. ed., Rights to Gender Identity in The Cambridge Handbook of New Human Rights: Recognition, Novelty, Rhetoric , Cambridge University Press 191–214 (2020).
  3. Jayna Kothari, Trans Equality in India: Affirmation of the Right to Self-Determination of Gender, 13 NUJS L. Rev. 3 (2020).
  4. Laura A Langley, Self-Determination in a Gender Fundamentalist State: Toward Legal Liberation of Transgender Identities, 12 Tex. J. on C.L. & C.R. 101 (2006-2007).
  5. S J Miller, A Queer Literacy Framework Promoting (A)Gender and (A)Sexuality Self-Determination and Justice, 104 The English Journal 37- 44 (2015).

Ghana Supreme Court affirms the election victory of President Nana Akufo-Addo

The Supreme Court of Ghana rejected the petition filed by National Democratic Congress candidate John Mahama to affirm the election victory of President Nana Akufo-Addo after the final result was legally challenged. All seven judges agreed on the ruling, stating that the opposition ‘had not produced any evidence’ that alleged errors and corrections on the election outcome by the Electoral Commission of Ghana. 

Mahama claimed the December election had been compromised by fraud, specifically asserting that votes had been inflated to the advantage of the current president. Mahama alleged that votes were added to Akufo-Addo’s total in some polling stations, pushing him above the 50% threshold needed to avoid a runoff. The court said his allegations were without merit. The election witnessed heated rhetoric during campaigning, in an otherwise stable West African democracy. Vote-related violence killed at least five people, which was a rarity in Ghana. Mahama had previously served a term as president in 2012 but failed to secure his re-election in 2016. It is not uncommon for election results to be contested in Ghana. In 2012, it was Akufo-Addo who contested the victory of Mahama. After eight months of deliberations, the Supreme Court rejected his claim and upheld Mahama’s win. Akudo-Addo and Mahama were running against each other for the third time.

Suggested Readings: 

  1. Mahama V Electoral commission and Another (J1/05/2021) [2021] GHASC 1 (04 March 2021), https://ghalii.org/gh/judgment/supreme-court/2021/1
  2. 1 Ransford Edward Van Gyampo, Selected Issues in Ghana’s Democracy 107-124 (Bossman. F. Asare & Alex K. D. Frempong, 2017), https://www.researchgate.net/profile/Ransford-Gyampo/publication/331152559_Proportional_Representation_as_Solution_to_Winner-Takes-All_Politics/links/5c6815eb92851c1c9de5ab39/Proportional-Representation-as-Solution-to-Winner-Takes-All-Politics.pdf#page=117
  3. Fabrice Lehoucq, Electoral Fraud: Causes, Types, and Consequences, 6 Annu. Rev. Polit. Sci. 233-256 (2003), https://doi.org/10.1146/annurev.polisci.6.121901.085655
  4. Gordon Pennycook & David. G. Rand, Research note: Examining false beliefs about voter fraud in the wake of the 2020 Presidential Election (Jan. 11, 2021), https://misinforeview.hks.harvard.edu/article/research-note-examining-false-beliefs-about-voter-fraud-in-the-wake-of-the-2020-presidential-election/
  5. Find major election law cases in the US here.

Germany’s Cabinet launches Bill to strengthen human rights protection in global supply chains

Germany’s cabinet approved a Bill for the Act on Corporate Due Diligence in Supply Chains (or Supply Chain Act). The law requires companies to enforce due-diligence in the protection of human rights and environmental standards along global supply chains. The law strengthens the protection of human rights, health and the environment in German companies’ global supply chains. German activists have long called for a law that would require companies to assess due diligence — not just at home but in places where raw materials are extracted and goods assembled right to their final destinations.

The Bill mandates German companies, with at least 3,000 employees, to maintain supply chain standards throughout the manufacturing process by analysing human rights-related risks, adopting measures that prevents and mitigates human rights violations, setting up grievance mechanisms and reporting on their activities. It also covers environmental risks that can lead to human rights violations. Penalties for non-compliance include a fine of up to 2 percent of the average annual sales of companies with an annual revenue of at least 400 million euros, and exclusion from public tenders for up to 3 years.

Activists, however, claim that the law is too watered- down to be effective, as the Bill only applies to larger companies, requiring compliance checks only of direct contractual partners, not indirect suppliers further down the chain. They also claim that the law does nothing to address one of the worst impacts of German consumption overseas, their devastating impact on the environment and on the livelihoods of people dependent on them.

Suggested Readings: 

  1. Find the Supply Chain Act here
  2. Human Rights Watch, Human Rights in Supply Chains (May 30, 2016), https://www.hrw.org/report/2016/05/30/human-rights-supply-chains/call-binding-global-standard-due-diligence
  3. Dr Olga Martin-Ortega & Andy Davies, Protecting Human Rights in the Supply Chain (2016), https://www.lupc.ac.uk/sites/default/files/Knowledge%20LUPC%20-%20Protecting%20Human%20Rights%20in%20the%20Supply%20Chain_1.pdf
  4. Kish Parella, A New Case for Human Rights Due Diligence in Supply Chains (July 24, 2020), https://clsbluesky.law.columbia.edu/2020/07/24/a-new-case-for-human-rights-due-diligence-in-supply-chains/
  5. Find the Business and Human Rights Resource Centre’s statement here.

CfPs and Seminars

Call for Papers (India)

Call for Papers (International)

Seminars (India)

Seminars (International)

  • The United Nations is organizing an International Law Seminar from 5th – 23th July, 2021 at the United Nations Office at Geneva, Switzerland. The registrations are open from 15th March 2021 – 2nd April 2021. Click here to register. 

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