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TeLawgram

’21 Week 14 – 04/04 – 10/04

Greetings! This week in TeLawgram, we discuss a wide range of news ranging from the Indian Supreme Court allowing deportation of Rohingyas to Putin’s new constitutional amendment to retain his presidency 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

The Supreme Court allows the deportation of Rohingyas in accordance with the appropriate procedure

A three-judge bench of the Supreme Court comprising Chief Justice of India, S A Bobde and Justices A S Bopanna and V Ramasubramanian in Mohammad Salimullah and Anr. v. Union of India, ruled that the Rohingyas detained in Jammu and Kashmir will not be deported without following established procedure. The petitioners, represented by Advocate Prashant Bhushan and Senior Advocate Colin Gonsalves argued the principle of non-refoulement is a part of the right to life under Art. 21 of the Constitution, which is available to non-citizens as well. Additionally, since India is a signatory to the UDHR and the ICCPR, they argued that there were international obligations to abide by the principle as well.

The Supreme Court however, ruled that the right against deportation is an ancillary right to Art. 19(1)(e) of the Constitution, which provides for the right to settle in any part of India, and therefore is not available to foreigners. The Court observed that the principle of non-refoulement would not apply since India is not a signatory to the Refugee Convention. The Court ruled that the Rohingyas would not be deported to Myanmar unless the prescribed procedure of consulting the other country regarding the citizenship of the refugees is complied with. 

Suggested readings: 

  1. Click here for the Supreme Court’s order.  
  2. Sanya Samtani, Deporting Rohingya Refugees: Indian Supreme Court Violates Principle of  Non-refoulement (Oct. 18, 2018), https://ohrh.law.ox.ac.uk/deporting-rohingya-refugees-indian-supreme-court-violates-principle-of-non-refoulement/.  
  3. Vidushi Sanghadia, An International Law Perspective on India’s Response toward the Rohingya Refugee Crisis (Sept. 22, 2017), https://ohrh.law.ox.ac.uk/an-international-law-perspective-on-indias-response-toward-the-rohingya-refugee-crisis/. 
  4. Ashwini Kumar, Hope for the Homeless: The Case of the Rohingyas, 31 NLSIR 177 (2019).  
  5. Debanja Paul & Vidushi Mehrotra, Excluding the Excluded: What India’s refugee ‘law’ means for the Rohingyas (Sept. 4, 2020), https://blogs.lse.ac.uk/internationaldevelopment/2020/09/04/excluding-the-excluded-what-indias-refugee-law-means-for-the-rohingyas/.

The Supreme Court rules that novation of contract cannot be considered in a petition under Section 11 of the Arbitration and Conciliation Act

A three-judge bench of the Supreme Court comprising Justice Rohinton Fali Nariman, Justice B R Gavai and Justice Hrishikesh Roy in Sanjiv Prakash v. Seema Kukreja and Ors. ruled that courts cannot make decisions on novation of contracts when hearing a petition under Section 11 of the Arbitration and Conciliation Act, 1996. The issue before the court was whether a shareholders’ agreement (SHA) novated the initial memorandum of understanding (MoU) between the parties, since both of them contained an arbitration clause. The appellant attempted to invoke the arbitration clause under the MoU. The respondents contended that the SHA novated the MoU and therefore, the MoU ceased to exist.

The Supreme Court relied heavily on its decision in Vidya Drolia v. Durga Trading Corp. and several other decisions to rule that the Court’s jurisdiction was limited to the “existence” of the arbitration agreement under Section 11(6A) of the Arbitration Act. The Court observed that its role was limited to a prima facie review regarding the existence of an arbitration agreement. Hence, the Court held that it cannot determine questions regarding novation as such questions would require the Court to conduct a “mini trial” on the clauses of the two agreements and the circumstances in which they came into effect. 

Suggested readings:

  1. Click here for the judgement. 
  2. J.B. Ames, Novation, 6 Harv. L. Rev. 184 (1892).  
  3. Gracious Timothy Dunna & Juhi Gupta, Existential Crisis of Section 11(6A) of the Indian Arbitration Act? – Part I (June 11, 2019), http://arbitrationblog.kluwerarbitration.com/2019/06/11/existential-crisis-of-section-116a-of-the-indian-arbitration-act-part-i/.  
  4. Gracious Timothy Dunna & Juhi Gupta, Existential Crisis of Section 11(6A) of the Indian Arbitration Act? – Part I (June 11, 2019), http://arbitrationblog.kluwerarbitration.com/2019/06/11/existential-crisis-of-section-116a-of-the-indian-arbitration-act-part-ii/. 
  5. Aditya Mehta, Manasvi Nandu & Tanya Singh, Does an Arbitration Clause survive Novation of an Agreement (Nov. 6, 2020), https://corporate.cyrilamarchandblogs.com/2020/11/does-an-arbitration-clause-survive-novation-of-an-agreement/.

Central government. introduces pre-packaged resolution process for MSMEs through IBC (Amendment) Ordinance, 2021.

The Central Government notified the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2021 on 4th April, 2021. The Ordinance introduces Chapter III-A, which deals with entities which are eligible to take the benefit of pre-packaged insolvency resolution process, its initiation, duties of resolution professional etc. The Ordinance aims to provide an efficient alternative insolvency resolution process for corporate persons classified as MSMEs by ensuring quicker, cost-effective and value maximizing outcomes for all the stakeholders, in a manner which is least disruptive to the continuity of their businesses. It allows the corporate debtor to submit a “base resolution plan” to the resolution professional who will present it to the committee of creditors. This committee may approve the base resolution plan for submission to the adjudicating authority if it does not impair any claims owed by the corporate debtor to the operational creditors. If the committee does not approve the base resolution plan, the resolution professional shall invite prospective resolution applicants to submit a resolution plan or plans, to compete with the base resolution plan. When the adjudicating authority does not approve the resolution plan, it may inter alia terminate the pre-packaged insolvency resolution process and pass a liquidation order. The pre-packaged insolvency resolution process has to be completed within a period of one hundred and twenty days from the pre-packaged insolvency commencement date.

Suggested Readings:

  1. Click here to read the Ordinance. 
  2. Report of the Sub-Committee of the Insolvency Law Committee on Pre-packaged Insolvency Resolution Process, Ministry of Corporate Affairs (Oct. 2020), https://ibbi.gov.in/uploads/resources/24c7fc03cdffff69960ce374416fa646.pdf 
  3. PROPOSALS BY THE INDIAN MINISTRY OF CORPORATE AFFAIRS FOR A NEW PREPACKAGED INSOLVENCY RESOLUTION PROCESS, Herbert Smith and Freehills, (Jan. 21, 2021), https://www.herbertsmithfreehills.com/latest-thinking/proposals-by-the-indian-ministry-of-corporate-affairs-for-a-new-prepackaged. 
  4. Vishesh Jain & K.Amoghavarsha, Pre-Packs in Indian Insolvency Regime – A Much-Needed Paradigm shift, (Jul. 24, 2020), https://nualslawjournal.com/2020/07/24/pre-packs-in-indian-insolvency-regime-a-much-needed-paradigm-shift/. 
  5. Priyadarsini T P & Vishnu Suresh, Pre-packaged bankruptcy arrangements in the Indian context, (May. 17, 2018), https://cbcl.nliu.ac.in/insolvency-law/pre-packaged-bankruptcy-arrangements-in-the-indian-context/.
  6. Aparna Ravi, India Considers Introducing Pre-packs into its Insolvency Law, (Jan. 29, 2021), https://www.law.ox.ac.uk/business-law-blog/blog/2021/01/india-considers-introducing-pre-packs-its-insolvency-law.  
  7. Aparna Ravi, Introducing Pre-packs in India – A Useful Tool in Times of COVID-19? (May. 25, 2020), https://www.law.ox.ac.uk/business-law-blog/blog/2020/05/introducing-pre-packs-india-useful-tool-times-covid-19. 
  8. Himani Singh, Pre-packaged Insolvency in India: Lessons from USA and UK, (Jan. 13, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3518287.

Poverty of accused is not a mitigating factor while awarding punishment under NDPS

On 6th April, 2021 a 2-judge bench comprising Justices DY Chandrachud and MR Shah in the case of Gurudev Singh v. State of Punjab observed that while striking balance between the mitigating and aggravating circumstances, public interest and impact on the society as a whole will always be tilt in favour of the suitable higher punishment. Merely because the accused is a poor man or the sole breadwinner of the family cannot be a mitigating circumstance in his/ her favour while awarding the punishment under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The Supreme Court confirmed the conviction and sentence of 15 years imprisonment handed down by the trial court. The accused was found to be in possession of 1kg quantity of heroin and was found to be selling narcotic substances/drugs. 

Suggested Readings:

  1. Click here to read the judgement. 
  2. Astha Madan Grover & Sushovan Patnaik, India’s War on Drugs and the Challenges to Rehabilitative Justice (Feb. 12, 2021), https://vidhilegalpolicy.in/blog/indias-war-on-drugs-and-the-challenges-to-rehabilitative-justice/. 
  3. Shreevatsa Lakhotia &Harishankar Raghunath, A Case For Reformation Of Narcotics Law In India, (Mar. 16, 2019), https://jilsblognujs.wordpress.com/2019/03/16/a-case-for-reformation-of-narcotics-law-in-india/.  
  4. Arvind Pennathur, Intertwining Poverty and Crime: The Indian Bail System (May 22, 2019), https://criminallawstudiesnluj.wordpress.com/2019/05/22/intertwining-poverty-and-crime-the-indian-bail-system/.
  5. A.Avasthi & A.Ghosh, Drug misuse in India: Where do we stand & where to go from here?,149 Indian J Med Res 689-92 (2019).
  6. Naveed Ahmad & Neha Singhal, Criminalisation Leads To Exploitation: The Mumbai Story No One Knows About (Sept. 08, 2020), https://vidhilegalpolicy.in/research/criminalisation-leads-to-exploitation-the-mumbai-story-no-one-knows-about/.

Bombay HC issued guidelines for effective compliance with POCSO Act for victim participation

On 8th April, 2021, a Bombay High Court bench comprising Chief Justice Dipankar Datta and Justice GS Kulkarni issued guidelines for the effective implementation of the Protection of Children from Sexual Offences Act (POCSO Act).

The order was passed while hearing a PIL application filed by Mr. Arjun Malge, a social worker. The application sought to bring the Court’s attention to Section 40 (right of child to take assistance of legal practitioner) of the POCSO Act, Rule 4(2)(f) (inform the child of such right) of the POCSO Rules and Section 439 (1-A) (presence of victim/ guardian/ legal counsel during hearing of bail application moved by accused) of the CrPC. All of these are provisions of the POCSO Act and the CrPC stipulating the minor victim’s participation in the judicial process.

While discussing the legislative intent behind the POCSO Act, the Court placed reliance on the decisions in the cases Alakh Alok Srivastava Vs. Union of India & Ors. and Eera Through Dr.Manjula Krippendorf v. State (NCT of Delhi) and Anr. 

The Court observed that POCSO Act reads with Rules 4(13) and 4(15) recognised the statutory entitlement to the assistance of and representation by legal counsel for the family or the guardian of the child and entitlement to be present and to participate in proceedings.

Suggested Readings:

  1. Click here to read the judgement.
  2. Centre for Child and the Law, IMPLEMENTATION OF THE POCSO ACT, 2012 BY SPECIAL COURTS: CHALLENGES AND ISSUES (2018).
  3. S. Muralidharan, Rights of Victims in the Indian Criminal Justice System, National Human Rights Commission Journal (2004).
  4. Erin Ann O’ Hara, Victim Participation in the Criminal Process, 13 Journal of Law and Policy 229 (2005).
  5. Edna Erez and Pamela Tontodonato, The Effect of Victim Participation in Sentencing on Sentence Outcome, 28 Kent State University 451 (1990).

International

Putin signs law that allows him to retain presidency until 2036

Russian President Vladimir Putin has signed a law on 5th April 2021 to allow him to run for the presidency for two more terms in his lifetime, potentially keeping him in office until the year 2036.

Putin assumed the presidency in 2000, after his predecessor, Boris Yeltsin. He remained President till 2008 and then stepped down to become the Prime Minister from 2008 until 2012, after which he regained the presidency.

Putin’s current term expires in 2024. The amendment to the Russian Constitution would allow Putin to run for two additional six-year terms. The said amendment also limits Russian citizens to two presidential terms in their lifetime, banning any shuffling between the presidency and prime-ministership that Putin employed earlier in his career.

Critics have called this prospective new law a “reset” of his presidential terms and a “crude power grab”. If Putin remains in power till 2036, his tenure will surpass Joseph Stalin’s long-running rule of the Soviet Union for 29 years, making Putin the longest-serving leader of Moscow since the Russian empire.

Suggested Readings:

  1. Click here for the previous TeLawgram post.
  2. Timothy Frye, Russia’s Weak Strongman: The Perilous Bargains That Keep Putin in Power (2021), https://www.foreignaffairs.com/articles/russia-fsu/2021-04-01/vladimir-putin-russias-weak-strongman.
  3. Constitutional change in Russia: More Putin, or preparing for post-Putin?, European Union (2020), https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/651935/EPRS_BRI(2020)651935_EN.pdf.
  4. Lauri Mälksoo, International Law and the 2020 Amendments to the Russian Constitution, 115 American Journal of International Law , 78–93 (2021).

Sudan bill would end a 1958 law boycotting Israel

Sudan’s Cabinet consisting of the council of ministers has approved a bill that will abolish a 1958 law on boycotting Israel in the latest improvement of relations between the two countries. However, the move would still need the approval of a joint meeting of the Sudan’s Sovereign Council and the Cabinet, which serves as Sudan’s interim legislative body, to come into effect.

The 1958 law barred any diplomatic and business relations with Israel and imposed penalties including up to 10 years in jail and large fines for violators. The was in line with the policies of Arab nations at the time towards Israel. In October 2020,  the two nations brokered a deal facilitated by the Trump administration to normalize relations with each other. In exchange for the agreement, the former President Donald Trump removed Sudan from the US list of state sponsors of terrorism.

Sudan maintained a rigid anti-Israel stand during the three-decade rule of the former President Omar al-Bashir, who was ousted amid mass protests in April 2019. A post Omar al-Bashir government has been pushing for reintegration with the international community to rebuild the country’s economy after years of US sanctions and internal conflict.

Suggested Readings:

  1. Payton Knopf and Jeffrey Feltman, Normalizing Sudan-Israel relations now is a dangerous game (Sept 24, 2020), https://www.brookings.edu/blog/order-from-chaos/2020/09/24/normalizing-sudan-israel-relations-now-is-a-dangerous-game/.
  2. Larry Cruz, Israeli Cabinet Minister Visit To Sudan: An Important Starting Point But More Lies Ahead (Feb 11,2021), https://theowp.org/israeli-cabinet-minister-visit-to-sudan-an-important-starting-point-but-more-lies-ahead/ .
  3. Brianna Lifshitz, Why Israel-Sudan Normalization is Unlikely to Last (Dec 21, 2020), https://georgetownsecuritystudiesreview.org/2020/12/21/why-israel-sudan-normalization-is-unlikely-to-last/.
  4. Gabriel R Warburg, The Sudan and Israel: An Episode in Bilateral Relations, 28 Middle Eastern Studies 2, 385-96 (1992).

Federal judge dismisses New York residents’ lawsuit against WHO

A judge of the US District Court for the Southern District of New York dismissed a lawsuit filed by New York state residents of Westchester County, claiming that the World Health Organization (WHO) negligently responded to the COVID-19 pandemic. The plaintiffs also include a doctor from New Rochelle and six nearby residents, who contracted the virus around the time when the area was an early epicenter for the virus. The petitioners claimed that the WHO did not ‘properly monitor the response to the Coronavirus pandemic in China generally and within Hubei Province and the City of Wuhan’, thereby alleging that the WHO was negligent in handling the outbreak of the COVID-19 virus. 

The complaint alleges that the WHO failed to promulgate the correct treatment guidelines and appropriately guide its members on how to respond to the pandemic. The plaintiffs also claim that the WHO in fact conspired with the Chinese government to “cover-up the severity of the COVID-19 health pandemic” by “intentionally mislead[ing] the international community … about the coronavirus and its devastating medical and economic effects.” However, the U.S. District Judge Cathy Seibel dismissed the lawsuit ruling that the WHO is immune to such lawsuits under the 1945 International Organization Immunities Act. The Judge said the lawsuit only made “general and vague” assertions that the WHO violated its own international health regulations, and instead made decisions within its discretion, which keeps it immune from civil lawsuits.

Suggested Readings:

  1. Click here to find the lawsuit. 
  2. Click here to find the complaint.
  3. Click here to find the International Organization Immunities Act. 
  4. Fernando Lusa Bordin, Immunities Of Organizations Under International Law: Reflections In Light Of Jam V International Finance Corporation (Jul. 5, 2020), http://www.qil-qdi.org/to-what-immunities-are-international-organizations-entitled-under-general-international-law-thoughts-on-jam-v-ifc-and-the-default-rules-of-io-immunity/. 
  5. International Law Blog, Balancing Responsibility and Immunity of the World Health Organisation in times of COVID-19 (May 26, 2020), https://internationallaw.blog/2020/05/26/balancing-responsibility-and-immunity-of-the-world-health-organisation-in-times-of-covid-19/. 
  6. Ana Santos Rutschman & Robert Gatter, Smoke Screens: An Initial Analysis of the Coronavirus Lawsuits in the United States against China and the World Health Organization (Last visited: Apr. 9, 2021), https://protegopress.com/smoke-screens-an-initial-analysis-of-the-coronavirus-lawsuits-in-the-united-states-against-china-and-the-world-health-organization/.

US Supreme Court finds Google’s use of Oracle’s code is fair use

On 5th April, 2021, the United States Supreme Court ruled in favour of Google in the Google v. Oracle fair use lawsuit. The Court concluded that Google’s use of Oracle’s Application Programming Interfaces (APIs) was fair use.

Oracle, in 2010, had sued Google for copyright infringement after Google used parts of Oracle’s Java API code while developing their Android operating system. While developing Android, Google used approximately 11,500 lines of Oracle’s code.

The Supreme Court’s ruling has reversed the ruling by the U.S. Court of Appeals for the Federal Circuit which found that Oracle’s code was copyrightable and Google’s copying was not fair use.

The majority observed that the “declaring code” copied by Google is “further than are most computer programs…from the core of copyright” because it is “inextricably bound up with” non-copyrightable ideas.”

While assessing the other factors that need to be considered on application of the fair use defense, the majority noted that although Google copied 37 packages (about 11,500 lines) of declaring code, the copied code is only 0.4% of the nearly 3 million lines of code that make up Oracle’s entire API, which favours fair use. With respect to the most important factor i.e. Market Effects, the majority ruling found that Google’s use of the code to create a platform for developing smartphone apps did not interfere with Oracle’s use of the code for the separate market of laptop and desktop applications.

Suggested Readings:

  1. Click here to read the ruling.
  2. Daria Vasilescu-Palermo, APIS And Copyright Protection: The Potential Impact On Software Compatibility In The Programming Industry, 16 The John Marshall Review Of Intellectual Property Law 153 (2016).
  3. Peter S. Menell, RISE OF THE API COPYRIGHT DEAD?: AN UPDATED EPITAPH FOR COPYRIGHT PROTECTION OF NETWORK AND FUNCTIONAL FEATURES OF COMPUTER SOFTWARE, 31 Harvard Journal of Law and Technology 305 (2018).
  4. Pamela Samuleson and Clark D. Asay, Saving Software’s Fair Use Future, 31 Harvard Journal of Law and Technology 535 (2018).

Turkish prosecutors arrest retired navy officials for defending an 85 year old international maritime accord

Turkish authorities arrested 10 retired senior navy officials after a group of more than 100 former top navy officers declared their support to an 85 year old Maritime accord called Montreux Convention. President Tayyip Erdogan said that the document went beyond freedom of expression and implied a military coup. The high ranking navy personnel voiced concerns that the Montreux Convention could be debated or abandoned after having played an important role in Turkey’s security and past neutrality. The retired admirals were held as part of an investigation into whether they had reached ‘an agreement with the aim of committing a crime against the security of the state and the constitutional order.’

The Montreux Convention of 1936 is an agreement concerning critical waterways that run through Turkey, most notably the Dardanelles and Bosphorus straits. The international Convention provides that Turkey may control the straits, but must permit civilian vessels to pass through the waterways in times of both war and peace. The Convention also limits the access of warships and regulates foreign cargo ships on the waters. The treaty was designed primarily to ‘prevent the militarization of the Black Sea.’ The waterway between Europe and Asia through the two straits in Turkey is clogged with maritime traffic and has seen several shipping accidents in recent years. The Turkish Defence Ministry states that the statement made by the naval officers  had no purpose other than to undermine Turkey’s democracy. The open letter was also critical of President Erdoğan’s canal project, which is a plan to construct a waterway between the Black Sea and the Sea of Marmara that runs parallel to the Bosphorus Strait.

Suggested Readings:

  1. Click here to find the Convention.
  2. Paul Goble, Revision of Montreux Convention Could Work in Moscow’s Favor (Feb. 9, 2021), https://jamestown.org/program/revision-of-montreux-convention-could-work-in-moscows-favor/. 
  3. Alexy Zender, Is there a possibility of leaving the Montreux Convention? (Feb. 24, 2020), https://behorizon.org/is-there-a-possibility-of-leaving-the-montreux-convention/. 
  4. Ali Tugyan, The Montreux Convention: Russia’s Perspective (Jan. 28, 2020), https://edam.org.tr/en/the-montreux-convention-russias-perspective/. 
  5. Paul Pryce, Let Me Get This Strait: The Turkish Straits Question Revisited (Jun. 1, 2020), https://cimsec.org/let-me-get-this-strait-the-turkish-straits-question-revisited/.

CfPs and Seminars

Call for Papers (India)

Call for Papers (International)

  • The ILA-ASIL Asia-Pacific Research Forum invites submissions on ‘International Law and Post-Pandemic Asia: New Economic Challenges and Opportunities’. Deadline for submission is 20th July 2021. Submit to this email address. 
  • Cambridge International Law Journal invites submissions for the 2nd Issue of its 10th Volume on the theme ‘National Sovereignty and International Co-operation: The Challenges of Navigating Global Crises’. Deadline for submission is 14th May 2021. Click here to submit.

Seminars (India)

  • RGNUL and SAM are organising a Conclave on Arbitration in Practice on 8th May 2021 and invite submissions for the same. Deadline for submission of research proposal is 20th April 2021. Submit to this email address. 
  • NLU Assam is hosting the Kamrup Dialogue on issues relating to the region on 25th April 2021. Deadline for registration is 24th April 2021. 

Seminars (International)

  1. The University of Geneva is hosting a webinar on Dispute settlement of EU trade disputes between the WTO and FTAs mechanisms on 19th April 2021. Register here.
  2. IMS Noida is hosting the 6th Virtual International Conference on Global Impact of AI on HR in 2030 on 23rd and 24th April 2021. Submissions are invited. Deadline for submission of the abstract is 15th April 2021. Register here.

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