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TeLawgram

’22 Week 3 (25/02 – 03/03)

Hello! This week’s Telawgram update brings you developments from the Supreme Court, High Courts, International Courts and the United Nations. Touching upon the nuances of public law, IT law, criminal law, identity issues, climate challenges and more; we hope to give you an amazing read this weekend! The TeLawgram team will be on a temporary hiatus until the end of March. Happy Reading!

National 

1) UIDAI agrees to issue modified Aadhar Cards to sex workers in response to Supreme Court Order 

Earlier last month, the Supreme Court directed all States and Union Territories to complete the issuance of ration cards and voter cards to all sex workers. In compliance with such directions, the Unique Identification Authority of India has informed the Supreme Court that Aadhaar cards can be issued to sex workers if, Gazetted Officers from the National Aids Control Organization (NACO) or the State Health Department are willing to give certificates to that effect. Additionally, the Court also insisted that the issuance of such IDs must be without a mandate of proof for personal information such as residence,/identity etc. The implications of the Order, as submitted by the council for UIDAI would be greater assurance of basic amenities like food rations to these sections of workers.The removal of identity proof as a prerequisite puts aside fears of social stigma. However,  consequent to the latest hearing, the Court has asserted that the state-wise sex workers’ numbers provided by NACO on the same was not convincing and suggested taking inputs and lists from Community Based Organizations as well. 

This comes in the wake of a Supreme Court Order from earlier last month wherein the Court directed all States and Union Territories to complete issuance of ration cards/ voter cards to all sex workers. Additionally, the Court insisted that the issuance of such IDs must be without a mandate of proof for personal information such as residence, identity etc. 

The implications of the Order, as submitted by the council for UIDAI would be greater assurance of basic amenities like food rations to these sections of workers. The removal of identity proof as a requisite puts aside fears of social stigma. However,  consequent to the latest hearing, the Court has asserted that the state-wise sex workers’ numbers provided by NACO on the same was not convincing and suggested taking inputs and lists from Community Based Organizations as well. 

Suggested readings 

  1. Click here to read the Order
  2. Bidhubhushan Mahapatra, Measuring vulnerability among female sex workers in India using a multidimensional framework, PLoS One (2018)  
  3. Treena Stafford and Dr Loes Witteveen, An Exploratory Study on the Barriers and Conditions for Reintegration of Commercial Sex Workers of Guwahati, Assam, India, 4 International Journal for Arts and Social Science (2021)
  4. Shweta Banerjee, Aadhaar: Digital Inclusion and Public Services in India (BACKGROUND PAPER, Digital Dividends – Social Protection Team, World Bank Group – World Development Report, 2016) ,https://thedocs.worldbank.org/en/doc/655801461250682317-0050022016/original/WDR16BPAadhaarPaperBanerjee.pdf 
  5. Vidhu Banerjee University of Lucknow, Status and remedies of female sex workers: An Indian Perspective, https://repository.ucatolica.edu.co/bitstream/10983/16336/1/Status%20and%20remedies%20of%20female%20sex%20workers.pdf

2) The Kerala High Court rules that admins of Whatsapp groups cannot be held liable for posts by group members

The Kerala High Court recently ruled that WhatsApp group administrators are not liable for posts by group members. The judgement by Justice Kauser Edappagath concerns a POCSO case filed under Sections 67 (a), (b) and (d) of the Information Technology Act as well as Sections 13, 14 and 15 of the Protection of Children from Sexual Offences Act, 2012. The accused was the admin of a WhatsApp group.  One of the group members had shared a video of minors engaging in sexual activity. The questions before the Court were whether vicarious liability can be imposed on the administrator of the group; and, whether an administrator can be considered an intermediary. .The Court ruled that neither vicarious liability nor intermediary liability could be imposed on the accused because there is no legal provision concerning the same. . The Court dismissed the charges against as intermediary liability could not be imposed on the accused owing to a lack of mens rea. Additionally, the fact that a WhatsApp administrator does not have the power to censor or moderate data further reduced the nature of  an intermediary role to the administrator.. Thereby the charges were dismissed. 

Several judgments from the High Courts of Delhi, Madras and Bombay have taken similar positions. Ashish Bhalla v. Suresh Chawdhary & Ors (2016) was a  case in which a Whatsapp group administrator was charged for defamation as defamatory content was shared by a group member – the Delhi High Court court recused the administrator of liability stating his non-intermediary role as reason. Similarly, in R.Rajendran v. the Inspector of Police (2021), the name of a Whatsapp group administrator was removed from the final investigatory report following a Madras High Court order directing the same.  In Kishor Chintaman Tarone v. State of Maharashtra & Another (2021) the Bombay High Court opined that – ‘a Group Administrator cannot be held vicariously liable for an act of a member of the Group, who posts objectionable content, unless it is shown that there was common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a WhatsApp Group and the Administrator.’

Suggested readings

  1. Click here to read the judgement
  2. Anja Kovacs and Nayantara R. , Criminal Law and Freedom of Expression on the Internet in India (Association for Progressive Communications (Ed.). Unshackling Expression: A Study on Laws Criminalising Expression Online in Asia. No place: Association for Progressive Communications) , https://internetdemocracy.in/reports/unshackling-expression-a-study-on-laws-criminalising-expression-online-in-asia 
  3. Nazli Ismail Nawang et. al, Potential Liability of WhatsApp Admins: A Critical Appraisal of the Legal Position in Malaysia, https://pdfs.semanticscholar.org/2fa5/abd270948837bae7bffa353ee37ba5f5a0e4.pdf 
  4. Ben Medeiros and Pawan Singh, Addressing Misinformation on Whatsapp in India Through Intermediary Liability Policy, Platform Design Modification, and Media Literacy , Vol. 10 (2020)
  5. Giancarlo F. Frosio, Internet Intermediary Liability: Wilmap Theory and Trends, 13 Indian Journal of Law and Technology  (2017).

3) The Punjab and Haryana High Court Holds That a Couple in Live-In Relationship Is Entitled to Protection

The Punjab and Haryana High Court awarded protection to a live-in couple who had approached the Court fearing for their lives and liberty. The couple approached the Court by invoking the fundamental right to life guaranteed under Article 21 of the Constitution. The woman in the case was a married woman and had voluntarily gone to the company of another male. However, the couple was facing grave danger from the woman’s husband and others. The Court clarified that it was not adjudicating on the woman’s marriage’s validity or her decision to cohabit with another male partner but adhering to its fundamental duty of guarding their lives.

Suggested readings

  1. Click here to read the Order. 
  2.  Sarthak Wadhwa, The “Right” to be in a Live-In Relationship (Oct. 30, 2020), https://lawschoolpolicyreview.com/2020/10/30/the-right-to-be-in-a-live-in-relationship/
  3. Manju Jamwal, Live-In Relationships in India: Legal Moves and Judicial Attitudes: Some Observations, 4 RGNUL Law Review 1, 1-11 (2014).
  4. Vidhan Malik & Saurav Gupta, Can ‘Right to Life’ Be Denied to Married Individuals in a Live-In Relationship, https://clsnluo.com/2021/08/14/can-right-to-life-be-denied-to-married-individuals-in-a-live-in-relationship/ (last visited Mar. 7, 2022). 
  5. Choudhary Laxmi Narayan, Mridula Narayan and Mridul Deepanshu, Live-In Relationships in India—Legal and Psychological Implications, 3 Journal of Psychosexual Health 18, 18-23 (2021).
  6. Krushna Chandra Dalai, Live- in Relationship: A Comparative Analysis on Issue and Challenges in India, 1 Journal of Law and Judicial System 34, 34-38 (2018).

4) The Bombay High Court Holds That Child Born Out of POCSO Crime Would Be a Victim Under Section 2(wa) of the CrPC

The Bombay High Court, while reducing the life sentence awarded to a rape convict to 10 years, held that the child born out of his illicit acts was a victim under Section 2(wa) of the CrPc. The Court directed the convict to pay compensation of Rs 2 lakhs to the child born to the rape victim. The Court held that “victim” under section 2(w a) of the Code of Criminal Procedure means a person who has suffered any loss or injury due to the act or omission of the accused, and this includes the child born to the victim. The child born to the victim is her legal heir and is entitled to compensation. It was noted that the rape victim was a child when she was impregnated due to the sexual assault. The convict was held responsible for her untimely death and abandoning the child born to the victim at an orphanage. 

Suggested readings

  1.  Click here to read the Order.
  2. Restrictive interpretation of “victim” and “legal heir” in the light of sections 2(wa) and 372 of CrPC was overruled by the Delhi High Court in the case of Ram Phal v. State. Click here to read the judgement.
  3.  Sandhya Gupta, Compensation to Rape Victims- A Critical Analysis (Aug. 30, 2019), https://criminallawstudiesnluj.wordpress.com/2019/08/30/compensation-to-rape-victims-a-critical-analysis/
  4. S. Muralidhan, Rights of Victims in the Indian Criminal Justice System, International Environmental Law Research Centre (2004).
  5. Atreya Chakraborty and Aurin Chakraborty, Proviso to Section 372 or Section 378(4) of the Code of Criminal Procedure, 1973; which remedy to avail? – An Interpretative Perplexity (Mar. 22, 2021), https://criminallawstudiesnluj.wordpress.com/2021/03/22/proviso-to-section-372-or-section-3784-of-the-code-of-criminal-procedure-1973-which-remedy-to-avail-an-interpretative-perplexity/.

International 

1) The International Criminal Court’s Prosecutor will investigate Russian conduct that took place in Ukraine after February 20, 2014

The International Criminal Court’s (hereinafter ‘ICC’) Prosecutor on February 28, 2022 announced that the Office of the Prosecutor would seek authorization to begin an investigation into the Situation in Ukraine. Although Ukraine is not a State party to the Rome Statute – the founding treaty of the ICC – it has allowed the ICC to exercise jurisdiction over any conduct that took place in its territory through two declarations in accordance with Art. 12(3) of the Statute. These declarations allow the ICC to exercise territorial jurisdiction over conduct that took place in Ukraine from February 20, 2014 onwards. The Office of the Prosecutor’s (hereinafter ‘OTP’) Report on Preliminary Examination Activities, 2020 found a reasonable basis to believe that crimes were committed on Ukrainian territory. Additionally, several State parties also referred the Ukrainian situation to the OTP thereby prompting the Prosecutor to initiate the investigation.  

Suggested readings: 

  1. Click here for Ukraine’s first declaration accepting the jurisdiction of the Court.  
  2. Click here for Ukraine’s second declaration accepting the jurisdiction of the Court.
  3. Office of the Prosecutor, Report on Preliminary Examination Activities (Dec. 14, 2020), https://www.icc-cpi.int/itemsDocuments/2020-PE/2020-pe-report-eng.pdf at pp.68-72.   
  4. Rustam Adjanov, War Crimes Committed During the Armed Conflict in Ukraine: What Should the ICC Focus On? in The Use of Force Against Ukraine and International Law (S. Sayapin and E. Tsybulenko eds.). 
  5. Carsten Stahn, More Than Rhetoric? International Criminal Justice, Crime Semantics and the Role of the ICC in the Ukraine Conflict (Feb. 25, 2022), http://opiniojuris.org/2022/02/25/more-than-rhetoric-international-criminal-justice-crime-semantics-and-the-role-of-the-icc-in-the-ukraine-conflict/.  

2) Ukraine files an application against Russia before the International Court of Justice for violations of the Genocide Convention

The Ukrainian Government filed an application before the International Court of Justice (hereinafter ‘ICJ’), requesting for provisional measures from the Court for violations of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter ‘Genocide Convention’). Ukraine’s claims were two-fold;  first, Russia violated the spirit of Article I of the Genocide Convention which imposes a duty on State Parties to prevent and punish genocide by acting in a mala fide manner and using it as the foundation of its “military operation” without factual substantiation. Second, Russia violated Art. VIII of the Genocide Convention, which states that the parties to the Convention ‘may’ call on the organs of the United Nations to take action against States that commit the crime of genocide. Ukraine requested the ICJ to declare that the Ukrainian Government did not commit genocide and that the Russian “special military operation” could have no justification. 

Suggested readings

  1. Click here for Ukraine’s provisional measures request. 
  2. Marko Milanovic, Ukraine files ICJ Claim against Russia (Feb. 27, 2022), https://www.ejiltalk.org/ukraine-files-icj-claim-against-russia/
  3. Priya Pillai, New Method at the International Court of Justice on Implementation of Provisional Measures: Significance of the Gambina v. Myanmar (Dec. 22, 2020), http://opiniojuris.org/2020/12/22/new-mechanism-at-the-international-court-of-justice-on-implementation-of-provisional-measures-significance-for-the-gambia-v-myanmar/
  4. Jake W Rylatt, Provisional Measures and the Authority of the International Court of Justice: Sovereignty vs. Efficiency, 1 Leeds Journal of Law and Criminology 45. 
  5. Gentian Zyberi, Provisional Measures of the International Court of Justice in Armed Conflict Situations, 23 Leiden Journal of International Law 571 (2010). 

3)  Kuwait Constitutional Court Rules Provision Criminalising “Imitating Opposite Sex” Unconstitutional

A lawsuit challenging Article 198 of the Kuwaiti Constitution was brought by Kuwaiti lawyer Ali al-Aryan. Such a challenge was brought after Kuwaiti authorities summoned a transgender woman Ms Mutairi in June 2020 after she posted recordings on Snapchat claiming that police officers raped and abused her during a seven-month imprisonment in a men’s prison in 2019. The Kuwaiti Constitutional Court  on February 16, 2022, declared that Article 198 of the Penal Code, which makes it illegal to “imitate the opposite gender in any way,” was unconstitutional. Article 198, which was repealed, says that any person who imitates the other gender in public faces up to a year in prison or a fine of 1,000 Kuwaiti dinars (about $3,315), or both. Article 198, empowers law enforcement to determine its meaning, which according to the Court can be interpreted in a variety of ways.  The Court emphasised that leaving the interpretation of Article 198 to the organisation enforcing the legislation could lead to its misinterpretation and an expansion of the types of crimes punishable under it. Such an interpretation could contradict the Kuwaiti Constitution’s guarantee of personal liberties. As a result, the Court ruled that Article 198 was invalid. The Court’s judgement was hailed by Amnesty International as a ‘major breakthrough’ for transgender rights in the region.

Suggested Readings

  1. Click here to read the official notification.
  2. Click here to view the penal code.
  3. Click here to read the case.
  4. Click here to read Amnesty International’s response.
  5. Alessa, Amani Saleh, Sex Discrimination within Kuwaiti Laws. Part 2, 24 Arab Law Quarterly 225-92 (2010).
  6. Rehman J., Is Green a Part of the Rainbow? Sharia, Homosexuality and LGBT Rights in the Muslim World, 37 Fordham International Law Journal 1 (2013).
  7. Nour Almazidi, Policing the Borders of Sex/Gender in Kuwait: on Transmisogyny and State-mediated Violence (Jul. 29, 2020), https://blogs.lse.ac.uk/gender/2020/07/29/policing-the-borders-of-sex-gender-in-kuwait-on-transmisogyny-and-state-mediated-violence/

4) UN Intergovernmental Panel on Climate Change Releases Report on the Impact of Climate Change on the Planet’s Ecosystems 

On February 28, 2022, the United Nations Intergovernmental Panel on Climate (hereinafter ‘IPCC’) released the second half of its sixth assessment report titled “Climate Change 2022: Impacts, Adaptation and Vulnerability.” It discusses climate change’s effects, dangers and vulnerabilities, as well as adaptation strategies. For the first time, the panel has included regional assessments in its report, including focusing on megacities. According to the IPCC, India is one of the most susceptible countries in the world in terms of the population that would be affected by sea-level rise. The Report also focuses on providing a solutions framework (Climate Resilient Development or CRD) that combines climate adaptation with actions to reduce greenhouse gas emissions (mitigation) to improve nature’s and people’s well-being. It mentioned India’s enormous environmental concerns, including disease burden, a drop in agricultural production, an increase in climate refugees, and catastrophic coastal destruction. However, India may not be able to cope with the IPCC’s forecasts because its adaptation and mitigation plans appear insufficient to deal with the expected effects of rising world temperatures.

Suggested Readings

  1. Click here to read the report. 
  2. Michael B. Gerrard, Will International Law Save Us From Climate Disasters?, 108 Proceedings of the Annual Meeting (American Society of International Law) 180-83 (2014).
  3. Harro Von Asselt, Beyond COP26: Time for an Advisory Opinion on Climate Change? (Dec. 17, 2021),  https://www.ejiltalk.org/beyond-cop26-time-for-an-advisory-opinion-on-climate-change/.  
  4. Julian Ku, Did the IPCC Screw Up Climate Change Policy? (Feb. 10, 2012), http://opiniojuris.org/2012/02/10/did-the-ipcc-screw-up-climate-change-policy/.  
  5. Eeshan Chaturvedi, Climate Change Litigation: Indian Perspective, 22 German Law Journal 1459–1470 (2021).

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