’22 Week 1 (01/02 – 16/02)

National

1) Karnataka High Court hears petitions challenging a Karnataka Government Order banning hijabs in educational institutions in the state.

A three-judge Bench of the Karnataka High Court is hearing challenges to the Karnataka Government’s Order regarding the Dress Code of students of all schools and colleges in the state, which bars hijabs in educational institutions where College Development Committees (CDCs) have imposed dress codes. The Government Order clarified that banning the hijab in educational institutions does not violate the right to religious freedom and cited three High Court Judgments supporting its claim. The Court delivered an Interim Order on February 10, stating that no student shall be permitted to wear religious attire to the classroom. The Court held that the right to profess and practice religion was subject to reasonable restrictions. The petitioner requested the Court to lift the ban on hijabs at educational institutions. They argued that wearing the hijab was an Essential Religious Practice for Muslim women and that the ban violates the right to freedom of speech and expression and the right to privacy. The Department of Education held that the Order aimed to ensure equality among students and that students do not wear clothes that threaten saamajika suvyavasthe, loosely translated to social harmony or public order. However, the Court was not satisfied with this translation. The matter was mentioned in the Supreme Court. However, the Chief Justice held that it would be improper to list the matter while the Karnataka High Court was hearing it. 

Suggested Readings:

1. Karnataka Government Order on Dress Code for Students (Translated to English), SUPREME COURT OBSERVER (Feb. 14, 2022).
2. Click here to read the interim order by the Karnataka High Court. 
3. Hari Kartik Ramesh, The Hijab Case through the Lens of Article 19(1)(a), (Feb. 10, 2022), https://indconlawphil.wordpress.com/category/freedom-of-religion/essential-religious-practices/. 
4. Gautam Bhatia, The Essential Religious Practices Test and the Inversion of Agency: Notes from the Hijab Hearing (Feb. 9, 2022), https://indconlawphil.wordpress.com/2022/02/09/the-essential-religious-practices-test-and-the-inversion-of-agency-notes-from-the-hijab-hearing/.  
5. Vineet Gupta and Anjali Mehrotra, Analysis Of The Essential Religious Practice Test Vis-A-Vis The Sabarimala Judgement, RGNUL STUDENT RESEARCH REVIEW (RSRR) (Nov. 16, 2018). 
6. Kalindi Kokal, Uniformity In Diversity?: Reflecting On The Essential Practices Doctrine And Its Implications For Legal Pluralism, 14 NALSAR STUDENT LAW REVIEW 20 (2020). 
7. Bhagirath Ashiya, Triple Talaq and Women’s Rights in the Indian Supreme Court (Oct. 13, 2017), https://indconlawphil.wordpress.com/2022/02/09/the-essential-religious-practices-test-and-the-inversion-of-agency-notes-from-the-hijab-hearing/.  

2) Haryana Cabinet approves The Haryana Prevention of Unlawful Conversion of Religious Bill, 2022. 

The Haryana Cabinet approved the Haryana Prevention of Unlawful Conversion of Religious Bill, 2022 [Hereinafter ‘the Bill’]. The Bill aims to prohibit religious conversions effected through misrepresentation, force, undue influence, coercion, allurement, marriage, or any other fraudulent means, making it an offence. The Bill’s statement of objects and reason recognizes the fundamental right to profess, practice, and propagate one’s religion; however, it holds that the individual right to freedom of conscience and religion cannot be extended to construe a collective right to proselytise. The Bill was introduced in light of the umpteen cases of mass and individual religious conversions and the presence of pseudo-social organisations with a hidden agenda to convert the vulnerable sections of other religions.

The Bill will now be tabled before the Assembly. Nine states in the country, namely, Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Odisha, Uttar Pradesh and Uttarakhand, already have laws restricting religious conversions. 

Suggested Readings:

1. Click here to read the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021.     
2. Faisal Ahmed, Constitutionality of the Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020, 4 IJLMH 2561 (2021).
3. Shubham Gandhi, Religious Freedom and the Anti-Conversion Statute in India (Nov. 8, 2021), https://blogs.lse.ac.uk/southasia/2021/11/08/religious-freedom-and-the-anti-conversion-statute-in-india/.   
4. Kruthika R, Indian Anti-Conversion Laws Have No Place in a Constitutional Democracy (Nov. 20, 2021), http://www.iconnectblog.com/2021/11/indian-anti-conversion-laws-have-no-place-in-a-constitutional-democracy/. 
5. Advent of Anti-Conversion Laws In India: A Miscarriage of Religious Freedom, 7(2) CASIHR NEWSLETTER 2 (2021).
6. Laura Dudley Jenkins, Legal Limits on Religious Conversion in India, 71 LAW AND CONTEMPORARY PROBLEMS 109 (2008).
7. Febin A.K., The UP Anti-Conversion Law: A Nightmare In The Making, RGNUL STUDENT RESEARCH REVIEW (RSRR) (Dec. 30, 2020). 
8. Varun Garg, Anti-Conversion Laws : Complementing or Contravening the Special Marriage Act? (June 17, 2021), https://lawandotherthings.com/2021/06/anti-conversion-laws-complementing-or-contravening-the-special-marriage-act/. 
9. Yash Tayal and Shivang Berry, Criminalising the Marriage : Interplay Of Utilitarianism and Love Jihad Laws (June 20, 2021), https://jilsblognujs.wordpress.com/2021/06/20/criminalising-the-marriage-interplay-of-utilitarianism-and-love-jihad-laws/. 
10. Shantanu Dey, Translating Questions of Religion Conversions to Issues of Human Rights: The Proposed Ban on Religious Conversions in a Secular Indian State  (Jan. 30, 2015), https://ohrh.law.ox.ac.uk/translating-questions-of-religion-conversions-to-issues-of-human-rights-the-proposed-ban-on-religious-conversions-in-a-secular-indian-state/.  

3) The Kerala High Court ruled that teachers using force against students cannot always attract penal liability 

In a recent High Court judgement, Justice Kausar Edappagagth discharged a teacher from charges under Section 324 of the Indian Penal Code and Section 23 of the Juvenile Justice (Care and Protection of Children) Act – both concerning voluntarily causing hurt.

The allegation was that the teacher applied intentional and hurtful force upon the complainant using a cane – resulting in a corneal aberration in his eye. The prosecution argued that the act was in furtherance of the enmity she had towards him. Deciding the case in favour of the teacher due to lack of ‘sufficient ground’ to proceed against her, the court also went on to opine that, “paddling children or inflicting disproportionate corporal punishment on them either by a parent or a teacher is, no doubt, forbidden”. However, reaffirming an earlier High Court decision that made gravity of the corporal punishment the decisive factor to affix criminal liability, the Court stated that “a teacher who without malicious intention administers a moderate and reasonable force to a pupil to enforce discipline in classroom/school cannot be exposed to criminal prosecution or fastened with penal liability” 

Suggested readings:

1. Click here for the High Court Order
2. Click here to view a similar instance where the Kerala High Court mentioned corporal punishments are to be weighed as per the gravity of the act   
3. National Commission for Protection of Child Rights, Guidelines for Eliminating Corporal Punishment in School, https://cdnbbsr.s3waas.gov.in/s3cf2226ddd41b1a2d0ae51dab54d32c36/uploads/2020/12/2020123068.pdf 
4. Corporal Punishment And Child Rights: Spare The Rod, Save The Child (Mar. 5, 2019), https://nujshsfbridgeproject.wordpress.com/2019/03/05/corporal-punishment-and-child-rights-spare-the-rod-save-the-child/ 
5. Maria Jose Ogando Portela  & Kirrily Pells,Corporal Punishment in Schools Longitudinal Evidence from Ethiopia, India, Peru and Vietnam (Office of Research – Innocenti Discussion Paper: UNICEF 2015), https://www.unicef-irc.org/publications/pdf/CORPORAL%20PUNISHMENT%20IDP2finalrev.pdf. 

4) The Bombay High court opined on the invalid status of a minor’s consent as per the POCSO Act

The Bombay High Court’s Nagpur Bench, in a recent order, discussed the invalidity of minors’ consent at length. The case was an appeal against an Additional Session Judge’s order rejecting a bail application on grounds of legal invalidity of a minor’s consent. The appellant argued that there existed a love affair between himself and the victim; yet, the court had its hands tied when it came to the final order. Quite “reluctantly” the appeal was dismissed.

The underlying issue, however, is that the POCSO Act, 2012 pegs the age to grant legally valid consent at 18. Though POCSO was initially intended to protect children from sexual offences, a significant number of POCSO cases registered have been registered by family members of adolescents engaged in relationships. Several High Court judgements in recent years have recognized this grey area and have warned against its occasional use as a tool to abuse the process of law. There have even been instances where the courts have either acquitted the accused or suggested legislative corrections to redefine the age of valid consent as sixteen. 

Suggested Readings:

1. Click here to read the High Court Order 
2. Click here for the POCSO Act 
3. Click here to read the 2021 Bombay High Court Judgement where the same issue was recognized as a grey area in law
4. Click here to read the 2021 Calcutta High Court Judgement which resulted in acquittal of the accused against charge of a similar offence
5. Veenashree Anchan et al., POCSO Act, 2012: Consensual Sex as a Matter of Tug of War Between Developmental Need and Legal Obligation for the Adolescents in India, 43 Indian J Psychol Med. (2021) 158–162.
6. Centre for Child and Law & National Law School of India University,  Implementation of the POCSO act, 2012 by special courts: challenges and issues. Bengaluru, https://ccl.nls.ac.in/wp-content/uploads/2017/01/Implementation-of-the-POCSO-Act-2012-by-speical-courts-challenges-and-issues-1.pdf 
7. Centre for Criminology: University of Oxford, Child Brides and the Capacity to Consent: A Comment on Independent Thought v Union of India, https://www.law.ox.ac.uk/centres-institutes/centre-criminology/blog/2017/10/child-brides-and-capacity-consent-comment 

---

International 

1. ICJ orders for reparations in the Armed Activities in the Territory of Congo case

On February 9, 2022, the International Court of Justice (“ICJ”) delivered a landmark judgment that favours the Democratic Republic of Congo (“DRC”). The ICJ, in December 2005, found that the Republic of Uganda had violated international law by engaging in the use of force against the Congolese civilian population. The Court concluded that Uganda would have to pay reparations for exploiting natural resources in Congo while Congo would have to pay reparations for failing to protect Ugandan Diplomats and violating the Vienna Convention on Diplomatic Relations. Negotiations took place for six years, before the DRC filed a new application as a result of the failed negotiations. The ICJ relied on the general standard of “full reparation” for injury which was established in the Chorzow Factory case and clearly laid out the burden of proof on each of the parties. The Court engaged in fact-finding exercises on all claims for reparations and notably, awarded a “global sum” of reparations for acts of sexual violence, recruitment of child soldiers and deportation. The DRC was finally awarded $330 million in compensation. 

Suggested readings: 

1. Click here for the judgment.  
2. Diane Desierto, The International Court of Justice’s 2022 Reparations Judgment in DRC v. Uganda: ‘Global Sums’ as the New Device for Human Rights-Based Inter-State Disputes (Feb. 14, 2022), https://www.ejiltalk.org/the-international-court-of-justices-2022-reparations-judgment-in-drc-v-uganda-a-new-methodology-for-human-rights-in-inter-state-disputes/.  
3. Kévine Kindji and Michael Faure, Assessing reparation of environmental damage by the ICJ: A lost opportunity?, 6 QIL 57 (2019). 
4. Margaret McGuinness, Case Concerning Armed Activities on the Territory of the Congo: The ICJ Finds Uganda Acted Unlawfully and Orders Reparations (University of Missouri School of Law Legal Studies Research Paper No. 2009-11), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1394533 (last visited Feb. 17, 2022). 
5. Dinah Shelton, Righting Wrongs: Reparations in the Articles on State Responsibility, 96 AJIL 833 (2002). 

2. ICC’s Office of the Prosecutor decides against conducting an investigation in Bolivia

The chief prosecutor of the International Criminal Court, Karim Khan, said Monday that he will not open a full investigation into allegations that former Bolivian President Evo Morales and his supporters committed crimes against humanity (Hereinafter “CAH”) by erecting roadblocks that prevented people from receiving critical medical care during the coronavirus pandemic. However, the Prosecutor stated that a preliminary investigation showed the incidents did not fit the legal criteria for CAH under the Rome Statute. 

According to Human Rights Watch, Morales’ terrorism charges emanating from the November violence were politically motivated. Bolivia’s government, led by interim President Jeanine Anez, accused Morales and his Movement for Socialism (MAS) of causing deaths by denying people access to medical supplies and oxygen. The pandemic struck as Bolivians continued to be divided by political tensions. According to a report by Amnesty International, the country’s interim government has harassed and threatened perceived political opponents. After 14 years in power, Morales, Bolivia’s first indigenous president, withdrew into exile in 2019 amid protests over his own questionable re-election that year. He strongly denied any wrongdoing in regards to the blockages.

Suggested readings:  

1. Click here to read the statement.
2. Click here to view the complaint. 
3. Click here to view the statement on the referral. 
4. Amnesty International, Healing the Pandemic of Impunity (20 Human Rights Recommendations for Candidates in the 2020 Presidential Election in Bolivia), https://www.amnesty.org/en/documents/amr18/2871/2020/en/. 
5. Human Rights Watch, Justice as a Weapon (Political Persecution in Bolivia), https://www.hrw.org/report/2020/09/11/justice-weapon/political-persecution-bolivia. 
6. Hector Olasalo, The prosecutor of the ICC before the initiation of investigations: A quasi-judicial or a political body, 3 Int’l Crim. L. Rev. 87 (2003).  
7. Roger Lu Phillips & Layla Abi-Falah, Criminal Responsibility for the COVID-19 Pandemic in Syria, 52 Columbia Human Rights L. Rev. 523 (2021). 

3. Brexit Freedoms Bill to facilitate the UK’s abandonment of EU Regulations

Two years after Brexit, the British government aims to introduce a new ‘Brexit Freedoms’ Bill. Prime Minister Boris Johnson’s office said in a statement on Monday that legislation being drafted will make it easier to amend or repeal statutes that remain in the U.K. Statute Books, a measure that will help the government cut regulations that cost businesses 1 billion pounds ($1.3 billion). It will be part of a larger cross-government effort to reform, repeal, and replace outdated EU law. Despite the U.K’s departure from the European Union (“EU”), EU regulations enacted prior to January 1, 2020 continue to have precedence in their domestic legal system. The new legislation will make it easier to make adjustments, allowing the UK to take advantage of Brexit freedoms sooner. The Bill is expected to make it easier for the Executive to alter or repeal retained EU law without having to pass primary legislation.

Suggested readings:   

1.  Click here to read the U.K. Government press release. 
2. Hancox, Emily, EU Law in the UK After Brexit (July 9, 2021), EU Law Live, Weekend Edition No 66 (2021).
3. Click here to read the European Union (Withdrawal Agreement) Bill.
4. Click here to read the Government of the United Kingdom Policy Document on ‘The Benefits of Brexit.’
5. Click here to read the Research Briefing on the ‘Status of Retained EU Law’ published by the House of Commons Library.
6. Click here to view the resources published by the European Commision on the ‘Consequences of Brexit.’

4. Devas issues fresh notice of arbitration under the India-Mauritius BIT

The dispute regarding India’s termination of the 2005 satellite agreement between Devas and Antrix turned a new leaf on February 2, 2022. Three Mauritius-based investors in Devas Multimedia issued a fresh notice of arbitration to the Government of India alleging expropriation. Devas now argues that the Supreme Court’s order earlier this year upholding the liquidation of the company due to fraud has deprived it of its right to enforce the $1.2 billion arbitral award that it received from the International Chamber of Commerce. Devas was able to bring the claim under Art. 13(3) of the terminated India-Mauritius BIT, which is the survival clause that grants investors ten years of protection after the treaty is terminated. 

Suggested readings: 

1. Click here for the India-Mauritius BIT.  
2. Click here for the previous TeLawgram update on the Antrix-Devas saga.  
3. Prabash Ranjan, India and Bilateral Investment Treaties – A Changing Landscape, 29 ICSID Rev. 419 (2014). 
4. James Harrison, The Life and Death of BITs: Legal Issues Concerning Survival Clauses and the Termination of Investment Treaties, 13 Journal of World Investment and Trade 928 (2012). 
5.  Federico M. Lavopa, Lucas E. Barreiros & M. Victoria Bruno, How to Kill a BIT and Not Die Trying: Legal and Political Challenges of Denouncing or Renegotiating Bilateral Investment Treaties, 16 Journal of International Economic Law 869 (2013).
6. Tanya Voon, Andrew Mitchell & James Munro, Parting Ways: The Impact of Mutual Termination of Investment Treaties on Investor Rights, 29 ICSID Review 451 (2014)

---