Categories
TeLawgram

’22 Week 2 (17/02 – 24/02)

Hello! This week’s updates include developments in corporate, criminal, constitutional and human rights law among others. We look at decisions and laws to protect the LGBTQ+ community in India and New Zealand, the Tata-Mistry dispute and Russia’s “special military operation” in Ukraine, and much more! Happy Reading!

National 

1) Madras High Court published its own Tamil glossary of LGBTIA+ sensitive terminologies along with directions for action against ‘conversion therapies’.

Following the order in the case Mrs. S. Sushma & Ors v. The Director General of Police & Ors., the High Court of Madras issued both – a prescriptive glossary to the State press and media, and a suo moto directive to the State Medical Council to take appropriate medical action against conversion therapies. The former is intended to be a standardised compilation of LGBTQ+ sensitive terminologies approved by the High Court. 

The Court replaced the standardized guidelines/ prospective glossary submitted by the State Government with the current, alternative glossary – accepted from the submissions made by stakeholders belonging to the LGBTQ+ community (Queer Channai Chronicles, Orinam, The News Minute etc.). The Tamil Nadu State Medical Council was made a respondent in the case by the Court in a suo moto capacity. The Council was directed to take note of the expert committee recommendations, and take action on complaints received alleging conversion therapy. To further spread the information within the committee recommendation – the National Medical Council was directed to circulate the same to all State Medical Councils throughout the country. 

Additionally; treatment and care of transgender people in prisons, possibility of a Transgender Policy, enlistment of NGOs etc. were detailed by the court. Specific mention was made regarding the training modules to be issued by the NCERT on trans inclusion. The court stressed that the same must be ensured by the next academic session at the least. 

Suggested readings :

  1. Click here to read the order
  2. UNICEF Regional Office for South Asia, Glossary of Terms and Concepts (November 2017), https://www.unicef.org/rosa/media/1761/file/Gender%20glossary%20of%20terms%20and%20concepts%20.pdf
  3. Southern Utah University, Language in Regards to Sexuality/Gender, https://www.suu.edu/pridealliance/glossary.html 
  4. M. Tatvis & E. Perez, Language influences mass opinion toward gender and LGBT equality, Proceedings of the National Academy of Sciences (2019).
  5. R. Prayson, et al., LGBTQ Inclusivity and Language in the Workplace, Vol 12 Critical Values 28-30 (2019).
  6. S. Davidow, Queering Sexual Health: The Intersection of Sexual Health and LGBTQ Identities in Worcester, MA, International Development, Community and Environment (IDCE) (2018).
  7. Winy Daigavane & Anubhav Das, An analysis of conversion therapy in India: The need to outlaw and the allied socio-cultural concerns, https://blogs.lse.ac.uk/gender/2020/06/15/an-analysis-of-conversion-therapy-in-india-the-need-to-outlaw-and-the-allied-socio-cultural-concerns/ (

2) The Supreme Court decided to review its previous decision on the Tata v. Mistry case

As the latest addition to the five year old corporate dispute stemming from the removal of Cyrus Mistry, of the Shapoorji Pallonji family as Chairman of  the Tata Sons group; a review petition filed by Cyrus Investments Pvt. Ltd has been addressed by the court. A three-judge bench of the Supreme Court, comprising Chief Justice N. V. Ramana, Justice A. S. Bopanna and Justice V. Ramasubramanian has decided to enlist the matter for hearing in open court on the 9th of March, 2022. 

In 2019, NCLAT had passed an order restoring Mistry as Chairman – however, the same was set aside by the Apex Court in the year 2021. The instant petition had the SP group praying for alternative relief; with contentions surrounding mismanagement and oppression as arguments supporting their petition. Their suggestions included separation of ownership interests of the SP Group in Tata Sons shares by a scheme of reduction of capital. 

The previous bench, in its majority judgement, had refused to adjudicate on the issue of relief and directed the parties to avail methods under Article 75 – which empowers the Tata Group to make a minority shareholder sell their shares.  However, an open court hearing of the review has been posted for the following month. The order also confirmed that the court finds no merit whatsoever in claims of mismanagement and oppression as alleged by the SP group. Justice V. Ramasubramaniam chose to dissent with the order; he stated that the review petition holds little merit to be admitted, and that it does not fulfil the requirements to be qualified as one.  

Suggested readings:

  1. Click here to read the Order
  2. Click here to view previous Telawgram update regarding the Supreme Court’s judgement setting aside the NCLAT restoration order.
  3. Umakanth Varottil, Unpacking the Scope Of Oppression, Prejudice and Mismanagement Under Company Law in India (NUS Law Working Paper 2020/020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3659751 (July 2020).
  4. Umakanth Varottil, Paper on Shareholder Remedies: Oppression, Prejudice and Mismanagement (July 30, 2020), https://indiacorplaw.in/2020/07/paper-on-shareholder-remedies-oppression-prejudice-and-mismanagement.html
  5.  Abhishek Choudary, Review Jurisdiction of Supreme Court of India: Article 137,  SSRN (2012).

In an unprecedented move, an Ahmedabad special court awarded the death penalty to 38 convicts and sentenced 11 others to life imprisonment until death in a case related to the 2008 Ahmedabad serial blasts in which 56 persons were killed and over 200 were injured. This is the highest number of convicts who were awarded death sentences in a criminal case. The prosecution sought capital punishment for all 49 convicted while the counsel for the defence asked the Court for leniency considering the social and economic backgrounds of the convicts. The trial court termed the case as “rarest of rare”. The 38 convicts sentenced to death were convicted under Sections 302 (murder) and 120B (criminal conspiracy) of the Indian Penal Code and provisions of the Unlawful Activities (Prevention) Act. The 11 who were awarded life imprisonment were held guilty for criminal conspiracy and convicted under various sections of the UAPA. 

Suggested readings:

  1.  Abhinav Goyal and 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/
  2. Neetika Vishwanath and Preeti Pratishruti Dash, The Broken State of Capital Sentencing in India’s Trial Courts, (May 28, 2020), https://ohrh.law.ox.ac.uk/the-broken-state-of-capital-sentencing-in-indias-trial-courts.
  3. Yug Chaudhry and Sivaramjani Thambisetty, Mercy, fairness and the death penalty in India (Feb. 4, 2013), https://blogs.lse.ac.uk/southasia/2013/02/04/mercy-fairness-and-the-death-penalty-in-india/
  4.  Shubhangi Agarwalla, The role of mercy in India (Aug. 13, 2018), https://blogs.lse.ac.uk/southasia/2018/08/13/the-role-of-mercy-in-india/.
  5.  S. Muralidhar, Hang them now, Hang them not: India travails with the death penalty, 40 Journal of the Indian Law Institute 143 (1998).
  6.  Adhip Banerjee and Sunita Singh Khatana, Capital Punishment in India: Is it Time to Outstrip it?, IJLMH (2021).
  7. Vijay Pal Singh, Abolition of Death Penalty: A Study of the Rarest of Rare Cases, 3(3) International Journal of Law Management & Humanities 182 (2020).
  8. Kiran Ranganath Kale, Doctrine of “Rarest of Rare” and Indian Legal System, 3 South Asian Law Review Journal 55 (2017).
  9. Kritarth Pandey, Indian Judiciary on Death Penalty, SSRN (2014).

4) The Supreme Court upheld a Haryana State law that provides 75% reservation for local youth in private sector jobs.

In the case of State of Haryana v. Faridabad Industries Association, the Supreme Court upheld the Haryana State Employment of Local Candidates Act, 2020, which provides 75% reservations for local candidates in private sector jobs paying less than Rs. 30,000 a month. Faridabad Industries Association, a consortium of private-sector employers and other private sector employers, challenged the Act’s validity in the Punjab and Haryana High Court, stating that the Act violated Articles 14, 15, 16 and 19 of the Constitution. They held that the Act “affects the idea of India as an economic unit”. The High Court stayed the Act; however, the Supreme Court set aside the Interim Order of the High Court and directed the High Court to decide the writ petition of the industrialists expeditiously. The Supreme Court noted that every law passed by the legislature was presumed to be legal; a law may be set aside only on the grounds of patent illegality or unconstitutionality. The Court clarified that it had not dealt with the law’s merits but merely with how the High Court dealt with the matter.

Suggested readings

1.     Click here to read the Haryana State Employment of Local Candidates Act, 2020.

2.     Click here to read the Punjab and Haryana High Court Interim Order.

3. Click here to read the Supreme Court Order in State of Haryana v. Faridabad Industries Association.  

4. Tania Sebastian, Government Imprudence and Judicial Decisions in Domicile Reservations: A Comparative Analysis between India and the United States, 22 Chap.L.Rev. 119 (2019).

5. Ajit Warrier, The Perils of Domicile Linked Job Reservations, mondaq (Apr. 7, 2021), https://www.mondaq.com/india/employment-and-workforce-wellbeing/1055372/the-perils-of-domicile-linked-job-reservations.

6. Gautam Bhatia, Reservations, Equality and the Constitution (Jan. 19, 2014 – Apr. 9, 2014), https://indconlawphil.wordpress.com/?s=Reservations%2C+Equality+and+the+Constitution.

7. Aparna Singh, Constitutional Limits to Economic Reservations (Jan. 30, 2019), https://rmlnlulawreview.com/2019/01/30/constitutional-limits-to-economic-reservations/.

8. Harshita Dixit, Maratha Reservation Judgement: Analyzing The “Rule of 50% Ceiling” (Jul. 18, 2021), https://ijlpp.com/maratha-reservation-judgement-analyzing-the-rule-of-50-ceiling/


International 

1) Russia recognizes Donetsk and Luhansk Republics as States, authorises “special military operation” in Ukraine

On February 21, 2022, Russian President Vladimir Putin signed a decree to recognize the Donetsk People’s Republic and the Luhansk People’s Republic, commonly known as the “Donbas Region” as independent States. These two regions declared independence from Ukraine in 2014, but were not recognized by a majority of States in the international community. Three days after signing the recognition decree, on February 24, the Russian President announced “a special military operation” in Ukraine. The objective of such an operation is to “protect people who have been subjected to bullying and genocide by the Kiev regime for eight years”, Putin said. Reports indicate that Ukraine has been invaded by Russian forces and subject to aerial and missile strikes across its territory. Putin justified the Russian position on three grounds. First, the West’s prior violations of international law, specifically, their military operations in Belgrade, Syria and Libya. Second, the North Atlantic Treaty Organisation’s constant expansion. Third, Russia’s right to defend itself from “an even greater disaster” than what is happening today under Art. 51 of the United Nations Charter. Representatives of the  United States of America, the United Kingdom and France called for the withdrawal of Russian troops and peaceful negotiations to resolve the conflict. 

Suggested readings: 

  1. Devika Hovell, Council at War: Russia, Ukraine and the UN Security Council (Feb. 25, 2022), https://www.ejiltalk.org/council-at-war-russia-ukraine-and-the-un-security-council/.  
  2. Marko Milanovic, What is Russia’s Legal Justification for using force against Ukraine? Feb. 24, 2022), https://www.ejiltalk.org/what-is-russias-legal-justification-for-using-force-against-ukraine/
  3. Diane Desierto, Non-Recognition (Feb. 22, 2022), https://www.ejiltalk.org/non-recognition/
  4. Mary Ellen O’Connell, Russia-Ukraine: Resolving the World’s Most Dangerous Conflict (Feb. 01, 2022), https://www.ejiltalk.org/russia-ukraine-resolving-the-worlds-most-dangerous-conflict/
  5. Jennifer Trahan, A Reminder of the Importance of the Crime of Aggression: Considering the Situation of Russia and Ukraine  (Feb. 04, 2022), http://opiniojuris.org/2022/02/04/a-reminder-of-the-importance-of-the-crime-of-aggression-considering-the-situation-of-russia-and-ukraine/
  6. Aarshi Tirkey, The Ukraine crisis: Sovereignty and international law (Feb. 18, 2022), https://www.orfonline.org/expert-speak/ukraine-crisis-sovereignty-and-international-law/.
  7. Sir Hersch Lauterpacht, Recognition of States in International Law, 53 Yale Law Journal 385 (1944).  

2) Colombian Constitutional Court legalizes abortion until 24 weeks of pregnancy.

The Colombian Constitutional Court, on, February 21, 2022 followed the lead of several countries in Latin America and legalized abortion until twenty-four weeks of pregnancy. The Constitutional Court stated that abortion under Article 122 of Law 599 of 2000 would not be punishable if it took place before 24 weeks of pregnancy. It also clarified that the twenty-four-week time limit for abortion would not be applicable in case the pregnancy threatens the life or health of a woman, when there is serious malformation of the fetus, or when the pregnancy is a result of non-consensual sexual intercourse or incest. The decision forms part of a larger cultural shift in Latin America, with three of the four most populated Latin American countries now decriminalizing abortion. Women’s rights lawyers in Colombia labelled the move as “historic”. 

Suggested readings:  

  1. Click here for the Colombian Constitutional Court’s Press Release. 
  2. Click here for the previous TeLawgram update on Argentina’s legalization of abortion.
  3. Michele Goodwin & Allison M. Whelan, Reproduction and the Rule of Law in Latin America, 83 Fordham Law Review 2577 (2014). 
  4. Alba Ruibal, Movement and counter-movement: a history of abortion law reform and the backlash in Colombia 2006-2014, 22 Reproductive Health Matters 42 (2014).   
  5. Camilla Reutersward et al., Abortion Law Reforms in Colombia and Nicaragua: Issue Networks and Opportunity Contexts, 42 Development and Change 805 (2011).

3)  New Zealand’s Parliament passed the Conversion Practices Prohibition Legislation Bill, banning Conversion Therapy. 

The Conversion Practices Prohibition Legislation Act, 2022 seeks to avoid any harm caused by conversion therapy while also encouraging healthy gender and sexuality dialogues. This is an Act that seeks to criminalise conversion methods that attempt to change or suppress a person’s sexual orientation, gender identity, or gender expression. Civil remedies are also included in the law. 

Conversion therapy on children, minors under the age of 18, or anybody with impaired decision-making capacity would be illegal, according to the measure, the penalty for the crime could be up to three years in prison. It is also illegal to force anyone, regardless of age, to undergo conversion therapy and cause them serious harm, according to the statute, this offence carries a maximum sentence of five years in jail. The Act, however, is ambiguous on what “serious harm” entails. There is also the option of civil redress, which allows people to register complaints about conversion treatment with the Human Rights Commission, which will try to “facilitate a resolution.”

Suggested Readings: 

  1. Click here to read the Bill. 
  2. Marie-Amelie George, Expressive Ends: Understanding Conversion Therapy Bans, 68 ALA. L. REV. 793 (2017). 
  3. United Nations Human Rights Office of the High Commissioner, Report on Conversion Therapy, https://undocs.org/A/HRC/44/53
  4. Ishika Garg, Banning Conversion Therapy in India: The Do’s and Don’ts (Jun 21, 2021), https://ohrh.law.ox.ac.uk/banning-conversion-therapy-in-india-the-dos-and-donts/.  

4) CJEU Dismisses Hungary’s and Poland’s Challenge to Budget Regulation.

On February 16, 2022, the European Union’s Court of Justice (‘CJEU’) dismissed a case brought by Hungary and Poland contesting an EU regulation that makes cash flow to EU member states conditional on meeting specific criteria, including respect for the rule of law. Rather than all rule-of-law violations, the regulation is meant to defend against fraud against the EU fund. Western European governments, which are net contributors to the EU budget, have endorsed the concept. 

The statute was defended in court by Belgium, Denmark, Germany, Ireland, Spain, France, Luxembourg, the Netherlands, Finland, and Sweden. Hungary and Poland have complained that the new and contentious mechanism linking EU money to the rule of law is too broad and goes beyond what the EU’s laws allow. The advocate general, on the other hand, stated that the conditionality mechanism is intended to “establish a financial conditionality instrument to safeguard the value” of the EU, rather than to “replicate the Article 7 sanctions procedure based on the EU treaties.” The CJEU’s final decision is definitive and cannot be overturned. 

Suggested Readings:

  1. Click here to read the press release.
  2. Ágh A., Decline of Democracy in the ECE and the Core-Periphery Divide: Rule of Law Conflicts of Poland and Hungary with the EU, 11 Journal of Comparative Politics 30 (2018).
  3. Dimitry Kochenov, The Great Rule of Law Debate in the EU, 54 Journal of Common Market Studies. 1048 (2016).
  4. Read the Research Briefing on ‘Protecting the Rule of Law in the EU’ by the European Parliament here.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s