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TeLawgram

’21 Week 11 (13/03 – 18/03)

Greetings! This week has witnessed several developments in criminal law, public law and arbitration. We travel to Delhi, Portugal and Japan to revisit the pro-life versus pro-choice debate, death penalty jurisprudence, LGBTQ+ rights and 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

Delhi District Court sentences Batla House encounter convict to death

The South East Delhi District Court on 15th March, 2021 passed a death sentence in the State v. Ariz Khan case. Ariz Khan was involved in the Batla House encounter. The encounter took place on 19th March, 2008 and resulted in the death of a police officer. Since the co-accused in the case was awarded life imprisonment, the Defence argued that the principle of parity, which allows benefits granted to a co-accused to extend to an accused should apply to Ariz Khan. 

The Delhi Court rejected these arguments and took note of the aggravating circumstances, such as the fact that Ariz Khan had shot the police inspector who was unarmed at the time. The Court further noted, “there is no chance of reformation of the convict” based on the investigations conducted at the trial stage and the fact that he displayed no remorse. Ariz Khan’s age when the crime was committed, and the fact that there was no conspiracy to commit the crime were not considered to be sufficient mitigating circumstances. The Court stated that he is a threat to society owing to his involvement in terrorist attacks and therefore, has “forfeited his right to live”. 

Suggested readings:

  1. Click here for the judgement convicting Ariz Khan.  
  2. Click here for the sentencing judgement. 
  3. Atreya Chakraborty, The Death Penalty in India: Revisited (June 13, 2020), https://nualslawjournal.com/2020/06/13/the-death-penalty-in-india-revisited/
  4. Anup Surendranath, Neetika Vishwanath & Preeti Pratishruti Dash, The Enduring Gaps and Errors in Capital Sentencing in India, 32 NLSIR 46 (2020). 
  5. Project 39A, Death Penalty Sentencing in Trial Courts (2020).
  6. Abhinav Goyal & Meghna Nimbekar, Evaluation of Death Penalty in Modern Penology: A case for abolition (Sept. 16, 2020), https://criminallawstudiesnluj.wordpress.com/2020/09/16/evaluation-of-death-penalty-in-modern-penology-a-case-for-abolition/.  

Rajya Sabha passes Medical Termination of Pregnancy (Amendment) Bill, 2020

The Rajya Sabha, on 16th March, 2021 passed the Medical Termination of Pregnancy (Amendment) Bill, 2020. The Bill had been passed by the Lok Sabha on 2nd February, 2020. The Bill, if assented to by the President, will allow the termination of pregnancies between twenty and twenty-four weeks if two medical practitioners are of the opinion that the pregnancy would pose a serious threat to the life of the pregnant woman, or if there is a substantial risk that the child that is born will have serious physical or mental disabilities. Section 3 of the Bill provides for a registered medical practitioner to terminate pregnancies which do not exceed twenty weeks if the medical practitioner is of the opinion that a device or method used to limit children fails, or the pregnancy will cause grave mental harm to the pregnant woman. The current Medical Termination of Pregnancy Act, 1971 allows terminations of pregnancies that do not exceed 12 weeks with the opinion of one medical practitioner, and the termination of pregnancies that exceed twenty weeks with the opinion of two. 

Suggested readings: 

  1. Click here for the Bill. 
  2. Click here for the Medical Termination of Pregnancy Act, 1971.
  3. Shonottra Kumar, Why India’s Law on Abortion Does Not Use the Word ‘Abortion’ (May 15, 2020), https://vidhilegalpolicy.in/blog/why-indias-law-on-abortion-does-not-use-the-word-abortion/
  4. Shradha Thapliyal, Abortion jurisprudence in the Supreme Court of India: Is it the woman’s choice at all? (Feb. 08, 2019), https://clpr.org.in/blog/abortion-jurisprudence-in-the-supreme-court-of-india-is-it-the-womans-choice-at-all/
  5. Toshita Jha, Abortion and ‘Choice’ in India in light of the Medical Termination of Pregnancy (Amendment) Bill, 2020 (May 21, 2020), https://jilsblognujs.wordpress.com/2020/05/21/abortion-and-choice-in-india-in-light-of-the-medical-termination-of-pregnancy-amendment-bill-2020/

Emergency Award in Future Retail-Amazon dispute upheld by the Delhi High Court 

The Delhi High Court on 18th March 2021, examined the legal status of an Emergency Arbitrator under the Arbitration and Conciliation Act. The Court upheld the validity of the Emergency Award passed in accordance with the Singapore International Arbitration Centre’s (SIAC) Rules against Future Retail. The order was passed by Justice JR Midha, who went on to state  that there was a clear violation of the Emergency Award by Future Retail and related parties. Amazon submitted that it possesses protective rights in Future Retail and that it was violated by the sale of Future’s assets to Reliance. Future contended that the Emergency Award was invalid.

In holding that the group of company doctrine was rightly invoked, the Court stated that treating all agreements between Amazon and Future Retail as a single integrated transaction does not breach any law. It also imposed costs of Rs. 20 lakh on Future Retail and directed that the amount be deposited with the Prime Minister’s Relief Fund to provide COVID vaccination to senior citizens who fall in the BPL category, in Delhi. 

The Court held the following – “The respondents are directed not to take any further action in violation of the interim order dated 25th October, 2020. The respondents are further directed to approach all the competent authorities for recall of the orders passed on their applications in violation of the interim order dated 25th October, 2020 within two weeks.”

Suggested Readings: 

  1. Find the decision here
  2. Devika Sharma, From Emergency Arbitrator to Group of Companies Doctrine – Delhi HC covers all while restraining Future Group from proceeding further with Disputed transaction (Mar. 19, 2021), https://www.scconline.com/blog/post/2021/03/19/amazon-v-future-retail/
  3. Abhi Udai Singh Gautam, Future Retail v. Amazon – Legality of Emergency Arbitrators in India (Jan. 27, 2021), https://rmlnluseal.home.blog/2021/01/27/future-retail-v-amazon-legality-of-emergency-arbitrators-in-india/
  4. Aakanksha Jadhav and Mustafa Rajkotwala, Future-Amazon Case and the Bumpy Road to Emergency Arbitrations in India (Jan. 5, 2021), https://indiacorplaw.in/2021/01/future-amazon-case-and-the-bumpy-road-to-emergency-arbitrations-in-india.html
  5. Subhomoy Bhattacharjee, Arbitration Over Competition – The Strange Case of Amazon, Reliance, and Future Retail (Dec. 3, 2021), https://www.competitionpolicyinternational.com/arbitration-over-competition-the-strange-case-of-amazon-reliance-and-future-retail/

SC issues directions following controversial MP High Court decision on Rakhi as bail condition

In a plea which addressed the imposition of certain conditions that belittles the trauma experienced by sexual assault survivors, a bench consisting of S. Ravindra Bhat, and AM Khanwilkar JJ has held that the use of reasoning/language which downplays the gravity of the offence, ought to be avoided under all circumstances. The Bench on 18th March, 2021 made pertinent observations concerning this issue while setting aside the Madhya Pradesh High Court’s July 2020 decision. This decision had mandated that the person accused of sexual assault in the case must get a Rakhi tied by the survivor as a bail condition. 

Reiterating the non-compoundable nature of the offence, the Court said “The act perpetrated on the survivor constitutes an offence in law, and is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor”. On ‘Judicial stereotyping’, the Court opined that has become common practice amongst judges to ascribe to an individual specific characteristics with the only basis being their membership in a social group. It emphasised that a module on gender sensitization be included, as part of the foundational training of every judge and lawyer, including public prosecutors. 

Suggested Readings: 

  1. Find the decision here
  2. Find the MP High Court’s decision here
  3. Prachi Bhardwaj, No more asking sexual offence survivor to tie Rakhi or get married to the accused; Supreme Court calls for gender sensitisation of judges and lawyers (Mar. 18, 2021), https://www.scconline.com/blog/?p=245749.  
  4. Tiasha Mukherjee, Judicial Stereotyping in India and the Need to Combat Institutional Gender Bias (Oct. 19, 2020), https://www.jurist.org/commentary/2020/10/tiasha-mukherjee-judicial-stereotyping/
  5. OHCHR, Background paper on the role of the judiciary in addressing the harmful gender stereotypes related to sexual and reproductive health and rights (2018), https://www.ohchr.org/Documents/Issues/Women/WRGS/JudiciaryRoleCounterStereotypes_EN.pdf

SC re-iterates that default bail is a fundamental right 

The Supreme Court on 15th March, 2021 ruled that default bail per Section 167(2) of the Code of Criminal Procedure (CrPC) is a fundamental right and not just a statutory right. Citing the fundamental nature of the right to liberty, the Court stated that the time periods were specified, where at the instance of its lapse, the accused will have a right to default bail, deeming it a valuable right. This verdict in essence reaffirms the Supreme Court’s 2020 decision which also held that the time limit to complete investigation and file charge sheet under Section 167 cannot be extended by seeking to file the supplementary charge sheet with respect to offences under the Unlawful Activities Prevention Act (UAPA).

The appellant argued that the chargesheet had been filed after the lapse of 180 days and thus he was entitled to default bail. The Court, however, asserted that it was a supplementary charge sheet which was termed a second charge sheet and thus default bail would not be admissible. This view was confirmed by the High Court in an order passed by them, which was subsequently challenged before the Supreme Court. Therefore, this decision lays down that the State cannot use supplementary chargesheets with respect to UAPA offences to extend the time limit prescribed under Section 167 of CrPC.

Suggested Readings: 

  1. Find the decision here
  2. Find the SC’s 2020 decision here.  
  3. Bhawna Gandhi and Dhruv Arora, Default Bail: Practice and Procedure (Dec. 5, 2020) , https://thelawblog.in/2020/12/05/default-bail-practice-and-procedure/
  4. Prachi Bhardwaj,  Right to default bail under the first proviso to Section 167(2) CrPC not a mere statutory right but a fundamental right (Oct. 14, 2020), https://www.scconline.com/blog/post/2020/10/14/sc-right-to-default-bail-under-the-first-proviso-to-section-1672-crpc-not-a-mere-statutory-right-but-a-fundamental-right/
  5. Adeeti Singh, Understanding the right to default bail (Oct. 12, 2020), https://cjp.org.in/right-to-default-bail-is-an-extension-of-article-21-right-to-life-personal-liberty/

International

Minneapolis to pay George Floyd family $27 million in settlement

The city of Minneapolis has agreed to pay $27 million to settle the civil lawsuit filed by the family of George Floyd, an African-American man, whose death last May sparked protests worldwide. The city council unanimously voted for the settlement during the jury selection for the trial of Mr Derek Chauvin, the former police officer charged with the murder of Floyd. 

The attorney for the Floyd family, Ben Crump, said that it was the largest pre-trial civil rights settlement ever in a wrongful death lawsuit and sends a powerful message that Black lives do matter and that police brutality against people of colour must end.

The video of Mr Floyd’s death, which went viral on social media, showed four police officers confronting the man for allegedly using a counterfeit $20 bill at a local shop. The lawyers for the Floyd family had filed the civil suit against the city of Minneapolis for its negligence in training their officers and not taking actions against officers with a poor track record. 

The civil settlement has come during the criminal court trial proceedings against Mr Chauvin, the former officer, who is facing charges of second-and third-degree murder and second-degree manslaughter. Six jurors have been selected for the trial so far. The other officers involved in Mr Floyd’s death namely J Alexander Keung, Tou Thao and Thomas Lane, were charged with aiding and abetting murder and manslaughter and they will be tried separately later this year.

Suggested Readings:

  1. Bhoomika Agarwal, Law Against Police Brutality (April 30, 2020), https://criminallawstudiesnluj.wordpress.com/2020/04/30/law-against-police-brutality//.
  2. HeinOnline Blog, Researching the Facts About Police Brutality and Racial Disparity, (June 4, 2020), https://home.heinonline.org/blog/2020/06/researching-the-facts-about-police-brutality-and-racial-disparity/.
  3. Ronald Tyler & Suzanne A. Luban, Police Use of Force, Training, and a Way Forward After the Death of George Floyd (June 4, 2020), https://law.stanford.edu/2020/06/04/police-use-of-force-training-and-a-way-forward-after-the-death-of-george-floyd/.
  4. Human Rights Watch, “Kettling” Protesters in the Bronx: Systemic Police Brutality and Its Costs in the United States (Sept 30, 2020), https://www.hrw.org/report/2020/09/30/kettling-protesters-bronx/systemic-police-brutality-and-its-costs-united-states.
  5. Michael Malvenda, Use of force by police: what is the standard for determining misconduct? (Oct 28, 2020), https://ukhumanrightsblog.com/2020/10/28/use-of-force-by-police-what-is-the-standard-for-determining-misconduct/.
  6. Osagie Obasogie, How the Supreme Court allowed police brutality to persist (June 3, 2020), https://blogs.berkeley.edu/2020/06/03/the-bad-apple-myth-of-policing/ .

Portugal’s top court adjudges the Bill to legalise euthanasia, unconstitutional

The Constitutional Court of Portugal has declared the Bill approved by the Parliament legalising physician assisted death as unconstitutional. The verdict came after Portugal’s recently re-elected President Marcelo Rebelo de Sousa, asked the court to evaluate the legislation. The reference by the President to the Court primarily regarding the concerns raised with respect to its ambiguity; that it contained excessively undefined concepts.

The Bill was approved by the Parliament on 29th January 2021 and was due to receive the assent of the President. In a 7:5 majority, the judges effectively agreed with President Marcelo Rebelo de Sousa’s assessment and held that the legislation contained “excessively undefined concepts.” Moreover, the judges held that the rules on euthanasia must be “clear, precise, clearly envisioned and controllable.” The judges expressed that the legislation lacked “the necessary rigour” and failed to meet these requirements. The Parliament may now review the legislation again in a bid to address the Court’s concerns and get Rebelo de Sousa’s stamp of approval in order to legalise the practice.

Suggested Readings:

  1. New Zealand Parliamentary Library Research Paper, Assisted Dying: Overseas Parliament (Dec 2018).
  2. Susan F. Welsh, Crossing the Rubicon? Legal developments in assisted suicide, 20 Advances in Psychiatric Treatment , 20 Cambridge University Press 6, 369–377 (2014).
  3. Daniel Sokol, A step closer to the legalisation of assisted suicide? (Jan 5, 2012), https://ukhumanrightsblog.com/2012/01/05/a-step-closer-to-the-legalisation-of-assisted-suicide/.
  4. Mazloom, S., Hamidian Jahromi, A., & Bastani,  Legalization Of Euthanasia And
  5. Physician-Assisted Dying: Condemnation Of Physician Participation, 13 Online Journal of Health Ethics 1 (2017). 
  6. John Keown, Physician- Assisted Suicide: Lord Joffe’s Slippery Bill, 15 Medical Law Review 1, 126- 135 (2007).  

Japan court finds government’s failure to recognize same-sex marriage unconstitutional

On 17th March, 2021, the District Court of Sapporo in Japan ruled that the government’s failure to recognise same-sex marriage violates the right to equality, and is therefore unconstitutional.

Same-sex couples in the country filed lawsuits across four districts in February, 2019 alleging that the country’s denial to recognise same-sex marriage violates the constitution. These couples sought 1 million yen in damages for the psychological harm caused to them by the government’s negligence in not amending the law. Japan’s largest opposition parties, the Constitutional Democratic Party and the Japanese Communist Party, submitted a bill to recognize same-sex marriages.

The Court, in its ruling, found the government in violation of Article 14 of the Japanese Constitution by discriminatorily failing to implement legal measures to offer any marital benefits to same-sex couples. However, the Court refused to award monetary damages to the parties.

Suggested Readings:

  1. Find the Japanese Constitution here.
  2. Yuki Arai, Is Japan Ready To Legalize Same-Sex Marriage?, 4 Cornell Law School LL.M. Student Research Paper 122 (2014).
  3. Masahiro Sogabe, Status of Same-Sex Marriage Legislation in Japan, 15 National Taiwan University Law Review 1 (2020).
  4. Chi Naomi, What is at the End of the Rainbow? : Prospects and Challenges for Sexual Minorities in Japan, 10 Hokkaido University Collection of Scholarly and Academic Papers 75 (2016).

Thailand pro-democracy leaders face mass trial for sedition and royal insult

On 15th March, 2021, a mass trial against 22 Thai pro-democracy activists began. These activists have been charged under the country’s sedition act and other laws including the lèse-majesté (royal insult) laws. The government had arrested protesters in December of 2019 for their speeches and actions at one of the many mass pro-democracy protests against the country’s monarchy and military establishment.

The demonstrators have been charged under the Thai kingdom’s lèse-majesté law under Section 112 of the Thai Criminal Code, which proscribes acts of defaming, insulting, or threatening the king, the queen, the regent, or the heir apparent. The UN High Commissioner for Human Rights has asked that this law be amended for it to be brought in consonance with the International Covenant on Civil and Political Rights (ICCPR). Other UN experts have also expressed concern over these laws being used to quell protests.

The length and duration of the trial is unclear at the moment and will only be clarified once the prosecution and defence decides the number of witnesses.

Suggested Readings:

  1. Read Section 112 of the Thai Criminal Code here.
  2. Sukrat Baber, SHOUT FOR FREEDOM TO CURSE AT THE KINGDOM: CONTRASTING THAI LÈSE MAJESTÉ LAW WITH UNITED STATES FIRST AMENDMENT FREEDOMS, 24 IND. INT’L & COMP. L. REV. 693 (2014).
  3. Thongchai Winichakul, Confessions to Lese Majesty: A Lens into the Rule of Law in Thailand (2019).
  4. Lauren NuDelman, “Beyond Common Sense”: the Resurgence of Thailand’s Anachronistic Lèse Majesté Law, 83 International Immersion Program Papers 1 (2018).

Sri Lanka to ban burqa & close 1,000 Madrassas

The Sri Lankan Minister of Public Security Sarath Weerasekara signed a paper seeking the approval of the Cabinet of Ministers to ban burqas, in a move to stop ‘signs of religious extremism’. The document now needs to be approved by the Parliament where the government has a two-third majority. The Sri Lankan Government also seeks to ban more than 1,000 Madrassas which are not registered with the authorities and do not follow the national education policy. Sri Lanka had previously banned burqas temporarily in 2019 after the Eastern Sunday bomb attacks on churches and hotels killed more than 260 people. 

The ban will be enforced under the Sri Lankan Prevention of Terrorism Act, which has been denounced by the EU and other international organisations for undermining minority rights and for fostering the use of systemic torture. Amongst the Sinhalese majority, President Rajapaksa is extremely popular for orchestrating the military defeat of the Tamil Tigers in 2009 and bringing an end to the 26-year-long armed conflict. However, he remains deeply unpopular among the Tamil and Muslim communities. Minority activists claim that this ban is a part of the government’s strategy to advance an Islamophobic agenda under the guise of national security.   

Suggested Readings:

  1. Amnesty International, Countering Terrorism at the Expense of Human Rights (last visited Mar. 19, 2021), https://www.amnesty.org/download/Documents/ASA3797702019ENGLISH.PDF.
  2. Minority Rights Group International, No war, no peace: the denial of minority rights and justice in Sri Lanka (2011), https://minorityrights.org/wp-content/uploads/old-site-downloads/download-921-Download-the-full-report.pdf.
  3. Roomana Hukil, Muslims in Sri Lanka: Four Reasons for their Marginalisation (Oct. 31, 2014), http://www.ipcs.org/comm_select.php?articleNo=4722.
  4. Esther Hoole, Discrimination Against Sri Lanka’s Muslim Community During The Pandemic: A Chilling Foreshadow (Dec. 21, 2020), https://www.humanrightspulse.com/mastercontentblog/e0fx1ttlsxuwi0cm65e9xn0hokxnsk.
  5. Minority Rights Group International, Confronting intolerance: Continued violations against religious minorities in Sri Lanka (2016), https://minorityrights.org/wp-content/uploads/2016/12/MRG_Rep_SriLan_Dec16.pdf
  6. Find the TeLawgram update on Switzerland’s ban on burqas here.

Malaysian government enforces ‘anti fake-news’ law

The Malaysian government used its emergency powers to impose a law against the spread of fake-news about the COVID-19 pandemic. The Emergency (Essential Powers) (No. 2) Ordinance 2021 was issued in early January to criminalise the creation, publication, or dissemination of fake news relating to Covid-19 or the proclamation of emergency in the country, or the failure to take down such material upon the government’s request. The law also requires individuals, corporations and social media platforms to allow the police access to traffic data and computerized data upon request and permits corporate directors and other executives to be held criminally liable for company actions. This may override rules of evidence intended to ensure a fair trial. The ordinance applies to anyone violating its terms anywhere in the world. 

The ordinance increases the prescribed jail time to up to three years in prison. The ordinance, however, does not establish standards for determining what falls under the purview of false news, which has raised concerns about the use of the law to silence criticism or other speech against the government. It also allows criminal punishment without requiring that the person or company disseminating the “false” information knows that it is false, thus putting at risk those who share information believing it is true, or those who make critical comments based on a misunderstanding or misinformation.

Suggested Readings:

  1. Find the Ordinance here.
  2. Human Rights Watch, Malaysia: Revoke ‘Fake News’ Ordinance (Mar. 13, 2021), https://www.hrw.org/news/2021/03/13/malaysia-revoke-fake-news-ordinance.
  3. Find the Bill to repeal the former anti fake- news law here
  4. Fernandez, J. M, Malaysia’s Anti-Fake News Act: A cog in an arsenal of anti-free speech laws and a bold promise of reforms, Pacific Journalism Review : Te Koakoa, 25(1&2), pp. 173-192 (2019), https://doi.org/10.24135/pjr.v25i1.474
  5. Lasse Schuldt, Abstract panic: On fake news, fear and freedom in Southeast Asia (Apr. 14, 2020), https://verfassungsblog.de/abstract-panic-on-fake-news-fear-and-freedom-in-southeast-asia/.

CfPs and Seminars

Call for Papers (India)

Call for Papers (International)

Seminars (India)

Seminars (International)

  • The TRICI-law project and PluriCourts Centre are organising the2nd TRICI-Law Conference on 25th and 26th November, 2021 at The Hague. Deadline for submission of abstracts is 18th April, 2021

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