Delhi High Court lays down the procedure for the Removal Of Offending Content From the Internet
A single judge bench of the Delhi High Court, on 20th April, 2021, in the case of X v. Union of India, held that photographs taken from Facebook and Instagram accounts uploaded on pornographic websites without the consent of such a person amounts to an offence under S. 67 of the Information Technology Act (hereinafter the Act). Such an act committed without the consent of the person would amount to a breach of privacy. The Court held that intermediaries are mandated to remove and disable access to offending content once they receive actual knowledge by way of a Court order or notification of the government, or else they will be liable to lose their exemption from liability under S.79(1) of the Act. Intermediaries are expected to deploy proactive measures such as automated tools that can detect and remove content that is “exactly identical” to the content that the court has deemed offensive. The Court refers to the IT Rules, 2021 provisions and reiterates that the intermediaries must ensure that the users must not publish offensive content. Search engines must make offensive content unavailable by de-indexing and de-referencing it from search results. The Court ruled that search engines, upon being issued an order to remove or disable access to some content, must “block the search results throughout the world since no purpose would be served by issuing such an order if it has no realistic prospect of preventing irreparable harm to a litigant.”
- Click here to read the judgement.
- Click here for the Information Technology Rules, 2021.
- Click here for the previous TeLawgram update on the Rules.
- Vallari Dronamraju, Intermediary Guidelines and Digital Media Ethics Code: Curtailing Online Freedom and Liberties (Apr. 13, 2021), https://intellectechlaw.in/2021/04/13/intermediary-guidelines-and-digital-media-ethics-code-curtailing-online-freedom-and-liberties/.
- A. Mehta, S. Chatti & R.Jaiswal, From Harbour to Hardships? Understanding the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 – Part I, (Apr. 15, 2021), https://corporate.cyrilamarchandblogs.com/2021/04/from-harbour-to-hardships-understanding-the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-part-i/#more-4378.
- Divij Joshi, A Little ‘Over The Top’: Examining India’s New Laws for Online Speech (Part I), (Mar. 08, 2021), https://clpr.org.in/blog/a-little-over-the-top-examining-indias-new-laws-for-online-speech-part-i/.
The Supreme Court confirms that Indian parties can choose a foreign seat of arbitration
A three-judge bench of the Supreme Court comprising Justice Rohinton Fali Nariman, Justice B R Gavai and Justice Hrishikesh Roy in PASL Wind Solutions Pvt. Ltd. v. GE Power Conversion India Ltd. confirmed that Indian parties could choose a foreign seat of arbitration. The Supreme Court observed, “The elusive expression “public policy” appearing in section 23 of the Contract Act is a relative concept capable of modification in tune with the strides made by mankind in science and law.” The Court proceeded to describe the importance of party autonomy in arbitration and affirmed that when there is no tangible effect on public interest, Indian parties should be given the freedom to contract and choose a foreign seat of arbitration. The Supreme Court held that an international element such as a foreign seat is sufficient for arbitration proceedings to fall under the definition of an “international commercial arbitration” for the purposes of the enforcement of a foreign award.
However, the Court did not entirely affirm the Gujarat High Court’s decision. The Gujarat High Court ruled that Section 9 petitions for interim relief would not be maintainable. The Supreme Court ruled that such a view is incorrect and stated that the proviso to Section 2(2) of the Arbitration and Conciliation Act was inserted to ensure that courts in India could take interim measures involving assets of Indian parties when the arbitration proceedings take place outside India.
- Click here for the judgement.
- Click here for a factual background from our previous TeLawgram post.
- Shivani Singhal, Ramifications of Two Indian Parties Choosing a Foreign Seat of Arbitration (Dec. 15, 2020), http://arbitrationblog.kluwerarbitration.com/2020/12/15/ramifications-of-two-indian-parties-choosing-a-foreign-seat-of-arbitration/.
- Malika Singh & Shivang Mukherji, Indian parties opting for a foreign governing law: Analyzing the Dholi Spintex Judgment (Feb. 24, 2021), http://www.nlujlawreview.in/indian-parties-opting-for-a-foreign-governing-law-analyzing-the-dholi-spintex-judgment/.
- Duncan Speller & Dharshini Prasad, The Choice of a Foreign Seat in Domestic Disputes – An Opportunity for One More Step Forward in India’s Journey to Establish itself as an Arbitration Friendly Jurisdiction?, 6 Indian Journal of Arbitration Law 43 (2018).
The Manipur High Court stated that the principle of non refoulement where refugees are liable to be subjected to persecution can be read into Article 21
A two judge bench of the Manipur High Court, in the case of Nandita Haksar v. State of Manipur & Ors., said that the principle against refoulement or the forcible return of refugees to a country where they are liable to be subjected to prosecution, can be prima facie read into Article 21. The Court, in an interim order, restrained the State as well as Centre from taking any coercive or adverse steps against seven people from Myanmar who were taking refuge in Manipur. The Court stated that since India was a signatory to the Universal Declaration Human Rights and the International Covenant on Civil and Political Rights and that the applicability of Article 21 extends to non citizens, the principle would be a part of Article 21.
- Click here to read the judgement.
- 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/.
- Nafees Ahmad, The Constitution-Based Approach of Indian Judiciary to The Refugee Rights and Global Standards of the UN Convention, 8:1 Kings Student Law Review 30-55 (2017).
- Bhairav Acharya, THE FUTURE OF ASYLUM IN INDIA: FOUR PRINCIPLES TO APPRAISE RECENT LEGISLATIVE PROPOSALS, 9 NUJS L.Rev. 173 (2016).
- Saurabh Bhattacharjee, SITUATING THE RIGHT TO WORK IN INTERNATIONAL HUMAN RIGHTS LAW: AN AGENDA FOR THE PROTECTION OF REFUGEES AND ASYLUM-SEEKERS, 6 NUJS L.Rev. 41 (2013).
The Supreme Court observed that the provisional attachment power under the GST Act cannot be made preemptively as it is draconian
A two-judge bench of the Supreme Court comprising of Justice D Y Chandrachud and Justice M R Shah in M/s Radha Krishna Industries v. State of Himachal Pradesh, observed that the provisional attachment power under Section 83 of the Himachal Pradesh Goods and Services Tax Act (‘HPGST Act’) cannot be made preemptively. Section 83 of the HPGST Act allows the Commissioner to order provisional attachment of property of the assessee if such an attachment is required to protect government revenue. The Commissioner issued an order of attachment against the appellant, M/s Radha Krishna Industries and the order was challenged by the appellant before the Himachal Pradesh High Court through a writ petition. However, the Himachal Pradesh High Court ruled that the petition was not maintainable since the appellant had the alternate efficacious remedy of appeal against the order under Section 107 of the HPGST Act.
The Supreme Court observed that the power of provisional attachment was “draconian” in nature and could only be exercised when proceedings against the assessee are pending under Section 74 of the HPGST Act. The Court held that powers under Section 83 must be exercised with caution as they require the Commissioner to fulfil the standard of “necessity” when ordering provisional attachment to protect government revenue. The Court held that the Joint Commissioner had incorrectly ordered provisional attachment as there were no proceedings pending against the appellant. The Supreme Court held that the writ petition would be maintainable before the High Courts in such scenarios since alternate remedies need not be exhausted if there is a violation of judicial procedure.
- Click here for the judgement.
- Letter from Department of Revenue, Ministry of Finance, Government of India to the Commissioners of Tax (Feb. 23, 2021), https://www.cbic.gov.in/resources//htdocs-cbec/gst/Guidelines%20for%20Provisional%20Attachment.pdf.
- Prannoy Raikhy, Can the High Court Entertain a Writ Petition Under Article 226 of the Constitution If an Alternative Statutory Remedy is Available? (Feb. 21, 2018), https://www.mondaq.com/india/securitization-structured-finance/675220/can-the-high-court-entertain-a-writ-petition-under-article-226-of-the-constitution-if-an-alternative-statutory-remedy-is-available.
- Justice Ashok Bhushan, Bar to Writ Petitions in Context of Availability of Alternate Remedies, http://www.ijtr.nic.in/webjournal/4.htm (last visited Apr. 24, 2021).
- Financial Express, Writ Jurisdiction of High Courts (Aug. 5, 2002), https://www.financialexpress.com/archive/writ-jurisdiction-of-high-courts/53998/.
U.S. Supreme Court turns away firearms cases
The U.S. Supreme Court rejected appeals from people who lost their right to own a firearm when convicted of nonviolent crimes. The Court’s stance to stay away from the politically charged issue of gun rights comes in the wake of a spate of mass shootings in recent weeks.
The Court left intact lower court decisions that said the three people whose crimes included driving under the influence of alcohol, tax fraud and smuggling could be barred from owning guns without violating the Constitution’s Second Amendment, the right to keep and bear arms.
The Supreme Court’s landmark 2008 Heller decision while interpreting the Second Amendment suggested that the government continue to bar possession by convicted people of serious crimes. The appeals sought to carve out exceptions to the federal law that outlaws gun possession by people convicted of most crimes punishable by more than a year in prison.
- Click here for the Heller decision.
- John J. Donohue III, Two Mass Shootings, and the Uniquely American Gun Problem (Mar. 25, 2021), https://law.stanford.edu/2021/03/25/stanfords-john-donohue-on-one-tragic-week-with-two-mass-shootings-and-the-uniquely-american-gun-problem/.
- John J. Donohue III, How US gun control compares to the rest of the world (June 20, 2017), https://law.stanford.edu/2017/06/20/how-us-gun-control-compares-to-the-rest-of-the-world-2/.
- Second Amendment, Legal Information Institute, https://www.law.cornell.edu/wex/second_amendment.
- Joseph Blocher, Good Cause Requirements for Carrying Guns in Public: Should any reason for wanting a gun be good enough?127 Harv. L. Rev. F. 218 (2014).
France Minister of Justice proposes law to allow filming of trials
The French Council of Ministers was presented with a draft law that seeks to “restore confidence in the judicial institution” by introducing several reforms, including filming and broadcasting court trials.
Minister of Justice Eric Dupond-Moretti introduced the draft bill. He said, “the publicity of the hearing is a great democratic guarantee.”
The draft law authorises the use of cameras inside the courtrooms. The purpose of the bill is to film trials and make them available to the public. However, the recordings will be publicised once the case has been decided. The draft law also mandates a written consent from all relevant stakeholders like the parties to the case before filming.
Other reforms introduced under the draft law include an overhaul of the penalty reduction system and strengthening lawyers’ secrecy.
- Ruth Ann Strickland, Cameras in the Courtroom (2009), https://www.mtsu.edu/first-amendment/article/989/cameras-in-the-courtroom.
- Adam Wagner, Should justice be televised? (Dec 6, 2010), https://ukhumanrightsblog.com/2010/12/06/should-justice-be-televised/.
- Suzanna R. Barber, TELEVISED TRIALS: WEIGHING ADVANTAGES AGAINST DISADVANTAGES, 10 The Justice System Journal 3 (1985), https://www.jstor.org/stable/20877787?seq=1#metadata_info_tab_contents.
- Shelly Rosenfeld, Will Cameras in the Courtroom Lead to More Law and Order? A Case for Broadcast Access to Judicial Proceedings, 6 American University Criminal Law Brief 1 (2010), https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1050&context=clb.
Derek Chauvin found guilty of murder and manslaughter in death of George Floyd
On April 20th, 2021, a jury found former Minneapolis police officer Derek Chauvin guilty of murder and manslaughter in the death of George Floyd. Chauvin was charged with counts of second and third-degree murder, along with second-degree manslaughter at the Hennepin County District Court. The jury found Chauvin guilty on all three charges. Sentencing guidelines in the state of Minnesota indicate that Chauvin will be sentenced for the second-degree murder charge, which carries a maximum sentence of 40 years in prison.
Considering the vast media and political coverage that this case got, Chauvin’s legal counsel has stated that they will appeal the decision as they believe that the jurors were swayed by external forces.
The other police officers involved in the death of George Floyd – J. Alexander Kueng, Thomas Kiernan Lane, and Tou Thao – have also been criminally charged and their trials are expected to begin in August.
- Click here to read the verdict.
- Click here to read a previous TeLawgram update on this case.
- Rachel A. Harmon, Legal Remedies for Police Misconduct, Virginia Public Law and Legal Theory Research Paper No. 2017-40 (2017).
- Donna Coker, Addressing the Real World of Racial Injustice in the Criminal Justice System, 93 J. Crim. L. & Criminology 827 (2003).
- Joel Cohen, Can Derek Chauvin Possibly be Acquitted? (April 6, 2021), https://www.stroock.com/uploads/NYLJ-JC-Can-Derek-Chauvin-Possibly-Be-Acquitted.pdf .
French National Assembly passes bill to protect minors from sexual crimes and sets age of consent at 15
The French National Assempbly, the lower house of Parliament, adopted legislation that protects minors from sexual crimes and incestual relations by characterizing sex between adults and minors under the age of 15 as rape. Under the Bill, such acts will be punishable with 20 years in prison, unless the age gap between the consensual partners were small. Existing laws in France did outlaw sex with children with a child under 15, but only characterised the act as rape if the act was non consensual. This was the second reading of the bill.
The bill also penalizes persons who incite children under 15 to commit sexual acts over the internet by up to 10 years in prison and a fine of 150,000 euros. The bill also makes incest a specific crime. The incest ban would also apply to sexual relationships between children under 18 and their stepparents. The draft law was initiated by members of the Senate, who had suggested the age of consent be set at 13, which would have been one of the lowest in Europe.
- Click here to find the bill (in French).
- Child Rights International Network, Age Is Arbitrary: Setting Minimum Ages (Last visited: Apr. 23, 2021), https://archive.crin.org/sites/default/files/discussion_paper_-_minimum_ages.pdf.
- Stephen Robertson, Age of Consent Laws (Last visited: Apr. 22, 2021), https://chnm.gmu.edu/cyh/teaching-modules/230.
- Click here to find French government’s actions ‘Against sexual and sexist violence’.
- Angelo Fichera, Putting France’s Consent Issue Into Context (Aug. 10, 2018), https://www.factcheck.org/2018/08/putting-frances-consent-issue-into-context/.
Spain parliament approves bill to protect victims of child abuse
The Spanish Parliament passed a bill that protecst child victims of sexual abuse, following a public campaign by British pianist and Spanish resident James Rhodes and several charities. The bill, commonly known as ‘Rhodes law’, sets out far-reaching protection measures for children and teenagers at risk of abuse. The bill was one of the signature issues of the governing coalition of the Socialist Party (PSOE) and the leftist Unidas Podemos group. The new legislation contains elements of prevention, early detection, protection and reparation for victims of violence.
The Rhodes law guarantees fundamental rights to children and adolescents to physical, psychological and moral integrity against any form of violence.The law lays down protective measures that also includes substantial awareness about abuse. The law intends to protect children through a system of information and advice, the right to comprehensive care and providing free assistance in bringing their rights forward through judicial procedures. Minors can report crimes any time before they turn 35 years old. The law also eliminates the expiration for criminal liability in cases where the victim is a child or a person with disabilities in need of special protection. The draft bill will now start making its way through Parliament. Government sources said they will seek fast-track approval.
- Click here to find the report of the World Organisation Against Torture on the ‘Rights of the Child in Spain.’
- Click here to find the U.S. Department of Justice report on the ‘Prevalence and Consequences of Child Sexual Abuse in Spain.’
- Dr. Mª Belén Sánchez Domingo, Legal Protection of Minors: Implementation of EU Directives in Spain (Jul. 3, 2020), https://eucrim.eu/articles/legal-protection-minors-spain/.
- Philip Alston, Children’s Rights in International Law (Last visited: Apr. 23, 2021), https://www.culturalsurvival.org/publications/cultural-survival-quarterly/childrens-rights-international-law.
- Click here to find international trends on the Legal ban on violence against children.
CfPs and Seminars
Call for Papers (India)
- The Kautilya Society, a newsletter of NLUO, Cuttack invites submissions on the theme “Public Policy Issues in the times of Pandemic”. The deadline for submissions is 7th May 2021. Submit to this email address.
- Faculty of Law, Jagran Lakecity University, Bhopal, in collaboration with the Centre for Excellence in Taxation Laws (CETL), is organizing a two-day Conference on the theme “Changing Paradigm of Corporate and Commercial Laws” on 19th and 20th June, 2021. The deadline for the submission of the abstract is 5th May 2021. Submit to this email address.
- Aligarh Muslim University invites submissions for its journal volume on the “Justice Delivery System and Judicial Ethics in India”. The deadline for submission is 31st May 2021. Submit to this email address.
- The Constitutional Law Society of TNNLU invites submissions on a rolling basis for publication on its Blog. Submit here.
Call for Papers (International)
- The Institute of Justice invites submissions on the theme “Penalization of international Crimes in National law”. The deadline for submission of proposals is 25th May 2021. Submit to this email address.
- The Goettingen Journal of International Law (GOJIL) invites submissions to its 12th Volume on COVID, its direct and indirect effects. The deadline for submission is 1st September 2021. Submit to this email address.
- HNLU is hosting the 6th Ex Arca Webinar on Emerging IP Landscape of India and China on 26th April 2021. Register by scanning the QR code in the web poster given here.
- LSAC is organising a webinar on “Law Reimagined: Innovation and the Future of Legal Practice” on 30th April 2021. Register here.