Weekly Update [18th-24th July 2016]

Updates from the last week: blogs, articles, opinions, editorials and journalism.

• Dr. Upendra Baxi (Warwick, UK) writes in the Indian Express on securing the Uniform Civil Code, arguing that alternative dispute resolution methods might be a first step towards it.
• Anumeha Yadav writes in Scroll on the background to a crucial hearing at the Supreme Court regarding evidence in a case against labourers protesting at Maruti’s Manesar factory.
• Anubhav Dutt Tiwari writes in Scroll on the Supreme Court’s interim order in a case concerning AFSPA and executions in Manipur, asking if the National Human Rights Commission has failed in its mandate to protect and promote human rights in India.
• Abhinav Sekhri writes about the Supreme Court’s judgment in Muthuramuralingam v Union regarding the legality of consecutive life sentences, on The Proof of Guilt 
• Vinita Govindrajan writes in Scroll on a recent Madras High Court order calling on the state to consider affirmative action for transgender people, noting that judicial orders alone will be insufficient to remedy the problem of employment.
• Gautam Bhatia (advocate, Delhi) writes on the Indian Constitutional Law and Philosophy blog on a recent Supreme Court judgment upholding affirmative action in promotions for disabled persons.
• Arun Mohan Sukumar (Observer Research Foundation) writes in The Wire on the possibility that India’s hasty response to the South China Sea verdict may have overlooked important implications.
• Sreeja Sen in Live Mint writes on the evolution of corporate litigation in India, noting governmental interventions to increase the speed of dispute resolution.
• Alok Prasanna Kumar (Vidhi Center for Legal Policy) writes in Economic and Political Weekly on the recent creation of a ‘cyber cell’ aimed at securing the right of women to free speech on social media.
• Menaka Rao writes in Scroll on a recent Supreme Court case concerning the rights of women to have abortions after a 20 week gestation period, which is the legal deadline under the MTP Act 1973.
• Anjali Mody writes in Scroll on how amendments to the Child Labour Act will continue to disadvantage the poorest of children. Shantha Sinha in The Wire argues that the amendments do not actually ban child labour because of significant loopholes.
• Chitragada Chowdhury and Neera Singh write in The Wire that the Compensatory Afforestation Bill ought not be passed in its current (flawed) form.
• Meher Dev writes in The Wire on legal hurdles to ensuring the welfare, rehabilitation and access to justice for women who have survived acid attacks.
• Shashank Reddy and Tarun Krishnakumar write in The Wire on the inadequacies of the DGCA’s proposed regulatory framework for drones in India.
• Rahul Unnikrishnan writes for Law and Other Things on the Supreme Court’s current nine-judge bench which is examining issues relating to entry taxes in India.

Ranjan on Restating the Law of Res Judicata in India

Brajesh Ranjan (Jindal Global Law School) has posted A Restatement of the Law of Res Judicata in India on SSRN.

Abstract:

The law of res judicata is a universal principle of law which requires that matters judicially determined must not be re-litigated. In India, this law is embodied in section 11 of the Code of Civil Procedure, 1908. However, the Indian courts have also resorted to what they call a ‘general law’ to affect res judicata when the statutory law is inapplicable. This paper employs two approaches to study the development of the law of res judicata in India: legislative and interpretational. It begins with a brief narration of the historical background to the statutory law. It then picks up three distinctive features of the statutory law to analyze how the content of the general law of res judicata, created and developed through judicial interpretations, compares to that of the textual law. Next, the paper maps the terminologies that Indian courts use for articulating this general law onto those used by the statute for defining the statutory law. Through a comparison of the vocabularies of the two laws, the paper shows the operating requirements of the general law. The paper then discusses the scope of application of general law by looking at the situations in which courts have invoked it. By studying the general law in contrast to the statutory law, the paper argues thus: (a) the general law neither answers to the common law of res judicata nor suffers the limitations of the statutory law. (b) This court-created general law is the law of res judicata reduced to its bare essentials which makes it applicable in almost all situations – even in situation where the statutory law is the controlling law (c) with its unfettered scope; the general law appears to have taken away the exclusivity of the statutory law. The paper then concludes by restating the principle clause of statutory law to bring it in conformity with the law of res judicata, as it stands today in India.

Vidhi Centre for Legal Policy Report on Disruptions in the Indian Parliament

The Vidhi Centre for Legal Policy has posted a two-part report on ‘Disruptions in the Indian Parliament‘ on their website. They describe the report as follows:

With the beginning of the Monsoon Session of Parliament earlier today, the Vidhi Centre for Legal Policy is pleased to release its Report on Disruptions in the Indian Parliament.

In recent years, the proceedings in the Indian Parliament have come to be largely characterised as unproductive, in view of ceaseless disruptions by various members of Parliament. While the expression of dissent in the confines of parliamentary etiquette is a legitimate form of protest, the manner in which it currently manifests itself in Parliament, is far from acceptable. The natural consequence of such behaviour is twofold – first, taxpayers’ money gets wasted over non-functioning Parliament; second, the legislative paralysis stultifies the overall governance in the country.

This Report hopes to make two key contributions— first, to identify the causes for disruptions by closely analysing the proceedings in both Houses of Parliament for two distinct Sessions, namely the Winter Session of 2013-2014 and the Monsoon Session of 2015; second, to make the argument that the nature of Parliament has changed from being the apex legislative body in India to a forum for grandstanding on matters of public importance. By grounding its conclusions on empirical research and comparative experiences, this report is an effort to invite wider public engagement on the conceptualising of legitimate dissent in a parliamentary democracy.

The Report is divided into two parts. The first part comprises the observations and analysis of two Sessions of Parliament, and can be accessed here. The second part, which is in the form of an annexure to the Report, summarises the day to day proceedings of the two Sessions of Parliament that have been analysed in the first part, and can be accessed here.

Varottil and Majumdar on Regulating Equity Crowdfunding in India

Umakanth Varottil (National University of Singapore-Faculty of Law) and Ariya B. Majumdar (Jindal Global Law School) have posted Regulating Equity Crowdfunding in India: Walking a Tightrope [in PM Vasudev and Susan Watson (eds), Global Capital Markets – A Survey of Legal and Regulatory Trends (Edward Elgar, 2016)] on SSRN.

Link

Abstract

Start-up companies face difficulties in raising finances, and the situation has exacerbated since the global financial crisis in 2008. As a result, crowdfunding has made its appearance as an attractive alternative capital-raising mechanism by harnessing technology (primarily the Internet) to access funding from the “crowd”.

In this chapter, we explore the core question of how should one regulate equity crowdfunding in a manner that enhances its appeal to engender the development of small and new-age businesses through accessible funding opportunities and at the same time protect investors against undue risks, such as fraud, which arise from the activity. We analyse the regulatory conundrum on equity crowdfunding by examining the legal regime for crowdfunding in India.

The rules relating to fundraising by companies in India have been considerably tightened under the Companies Act, 2013 that limits crowdfunding activity. However, the Securities and Exchange Board of India (SEBI) has issued a consultation paper that proposes a framework for ushering in crowdfunding in India. We find that the unduly onerous conditions imposed by SEBI have the effect of deterring rather than promoting the growth of crowdfunding. The existing (and proposed) legal framework in India have erred on the side of caution and sought to emphasise more on investor protection than to engender the market for crowdfunding.

Weekly Update: Blog Posts, Opinions and Articles

Updates from the last week: blogs, articles, opinions, editorials and journalism: On Law and Other Things,  Dr Tarunabh Khaitan (Oxford) has posted an update on his research concerning housing discrimination and the need for legal regulation. The update relates to the Gujarat Disturbed Areas Act, as well as the draft rules under the Real Estate Regulation Bill 2016.

AG Noorani has also written about housing discrimination and redress under Article 21 of the Indian Constitution, for Frontline.

On The Proof of Guilt, Abhinav Sekhri (advocate, Delhi) has posted an analysis of provisions of the Indian Penal Code that deal with rash and/or negligent behaviour, arguing that a historical analysis of Section 304-A suggests a more objective approach to understanding criminal liability for negligent acts.

On SpicyIP, Dr. Shamnad Basheer (IDIA Trust, P-PIL) has posted on copyright access and infringement in the case of the Malayalam film, Avalude Rakal (‘Her Nights’) as part of anongoing series on intellectual property and sex.

In Caravan, Nikita Saxena has a longform piece that details the history behind the ongoing sexual harassment complaints and litigation against RK Pachauri, former Chairman of the The Energy and Resources Institute (TERI).

Proposals for a Uniform Civil Code have been in the news lately:

• In Economic and Political Weekly, Alok Prasanna Kumar (Vidhi Centre for Legal Policy) writes on the Uniform Civil Code proposals, arguing uniformity in personal laws may not be the best approach in the absence of clear proposals for the content of such a code.
• Dr. Nivedita Menon (Jawaharlal Nehru University) writes in The Hindu that current proposals for a Uniform Civil Code are less concerned with gender justice and more with advancing a Hindu national agenda.
• Justice K Kannan (retd, Punjab and Haryana High Court) writes in The Hindu as well, arguing that the time is not right for a Uniform Civil Code.

On Legally India,  Alok Prasanna Kumar (Vidhi Centre for Legal Policy) also writes that India might need fewer judges than has been claimed by the Chief Justice of India, in order to resolve critical issues of judicial pendency (mirrored at Hindustan Times and Mint).

Saikat Datta writes in Scroll on the recent Supreme Court judgment concerning 1,528 encounter deaths in Manipur, arguing that the first step towards a radical reinterpretation of human rights has been taken.

Apar Gupta (advocate, Delhi) writes in The Wire on the Supreme Court’s slow march towards eroding online intermediary liability, analysing a recent case concerning advertisements for prenatal sex determination.

Sanjay Ghose writes in The Wire on recent proposals by the cabinet to rename the Calcutta and Bombay High Courts, arguing that their colonial legacies extend beyond nomenclature.

Ilangovan Rajasekharan writes in Frontline on protests by lawyers at the Madras High Court, against amendments to the Advocates Act that will allow for debarment on grounds of discipline.

On LiveLaw, former Supreme Court, Justice KT Thomas writes on the judgment in the recent case on judicial appointments, arguing that any future cases that touch upon the basic structure doctrine should be decided by a bench of the same strength (or larger) as the one that decided Kesavananda Bharati. 

CFP: Annual National Conference on Contemporary Legal Scholarship (SPS, Pune)

Link

Symbiosis Law School, Pune is organizing its Fifth Annual National Conference on Contemporary Legal Scholarship to be held on 10th September 2016. (The list of themes is available at the link).

CFP:

All  Ph.D, PG and UG students are cordially invited to submit papers or works in progress on any topic relating to the themes given below. To participate in the conference please send by email or surface mail an abstract of 300 words (max) to slspnc2016@symlaw.ac.in by 22nd of July, 2016. Paper presenters will be selected on the basis of the abstract submitted to Symbiosis Law School, Pune and email communication will be sent to the selected authors/researchers by 20th August, 2015. The final paper should reach Symbiosis Law School, Pune by 29th July, 2016. The final paper should not exceed 6,000 words. Within the conference theme, papers will be grouped within broad subject areas with sessions.

The conference will be held in Parallel tracks. The schedule of the conference is as follows:

Inaugural Session Plenary Session: Transnational Collaboration in Research: Significance & Opportunities

Track I: International Law and Human Rights

Track II: Public Law and Governance

Track III: Business Laws

Track IV: IPR, Technology and Innovation Laws

Concluding Session

An Indicative list of sub-themes under the broad themes can be found at Annexure 5 on which the papers may be written. It is an indicative list and not exhaustive.

Note:  Symbiosis Law School, Pune will not be providing any TA/DA and accommodation to the participants. However they are glad to provide assistance in locating the accommodation on prior information. Best three papers shall receive cash prize and certificate. Other presenters shall receive a certificate of participation Contact: For further queries or information please contact Mr. Kiran Sonar (Office Superintendent) at 020-66861125 or Raj Varma at 8380020927.

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Chopra on Seeking and Preserving Records relating to Mass Sectarian Violence in India

Surabhi Chopra (Chinese University of Hong Kong, Faculty of Law) has posted Archives of Violence: Seeking and Preserving Records Relating to Mass Sectarian Violence in India (forthcoming, National Law School of India Review 28.1) on SSRN.

Link

Abstract:

“Since India gained independence, it has experienced a number of episodes of targeted sectarian violence against religious minorities. The worst of these episodes have claimed hundreds of lives, injured hundreds, and displaced thousands from their homes. This article evaluates access to information about mass sectarian violence in India.

The article focuses on four occasions between 1983 and 2002 when religious minorities were attacked on a large scale. It discusses an attempt to secure official records related to these four episodes of mass violence using India’s Right to Information Act. The article considers why access to information about these grave atrocities is vital. It proposes that the state create public archives related to mass violence and suggests how it might do so.”

 

Fletcher and others on the Legal Regime Concerning Enforced Disappearances

Laurel E. Fletcher and others (University of California, Berkeley – School of Law, USA) have posted The Right to a Remedy for Enforced Disappearances in India: A Legal Analysis of International and Domestic Law Relating to Victims of Enforced Disappearances on SSRN.

Link

Abstract:

The practice of enforced disappearance has reached a global scale, and India is not immune to this human rights violation. Individuals and communities in several Indian states have been targeted for enforced disappearance and suffered injury as a consequence. Simultaneously, international law continues to develop norms to prevent, prohibit, and redress enforced disappearances. As a sovereign state in a global context, India has assumed some, but not all, of these international legal obligations. In order to assist advocates in developing strategies to promote redress for the victims of enforced disappearance, including women placed in the precarious position of losing their family breadwinners, this paper analyzes the international law applicable to enforced disappearances, examines Indian law in light of these international standards, and points to areas where advocates can use international legal standards to argue for reforms to Indian law and policy.

This paper proceeds in eight parts. First, it places enforced disappearances in its historical context. Second, it discusses the development of the International Convention for the Protection of All Persons from Enforced Disappearance, a recent treaty that significantly shapes modern international law on enforced disappearances. Third, it examines the international human rights framework for enforced disappearances in India. Fourth, it discusses India’s obligations under international humanitarian law, specialized law that applies during times of armed conflict. Fifth, it reviews the relationship between international human rights law and international humanitarian law, and explores the applicability of these bodies of law to enforced disappearances. Sixth, it examines the international right to a remedy and the various forms that remedies may take. Seventh, it analyzes Indian domestic law against the backdrop of India’s international legal obligations. This analysis offers Indian activists guidance in considering the role that international norms may play in developing an advocacy strategy to promote redress for victims of enforced disappearances and torture. Part eight concludes.

This Working Paper was prepared by students in the International Human Rights Law Clinic under the supervision of Laurel E. Fletcher. Angana Chatterji, Co-Chair of for the Project on Armed Conflict Resolution and People’s Rights (ACRes), Center for Social Sector Leadership, Haas School of Business at the University of California, Berkeley and Mallika Kaur, Director of Programs, ACRes provided helpful comments. Clinical Fellow Katrina Natale ’15 gave invaluable editorial assistance. We thank Olivia Layug, Associate Administrator for Berkeley Law’s clinical program for her help with production.

Note: This Working Paper was prepared by students in the International Human Rights Law Clinic under the supervision of Laurel E. Fletcher, Clinical Professor of Law and Director, International Human Rights Law Clinic for the Project on Armed Conflict Resolution and People’s Rights (ACRes), Center for Social Sector Leadership, Haas School of Business at the University of California, Berkeley. Angana Chatterji, Co-Chair of ACRes and Mallika Kaur, Director of Programs, ACRes provided helpful comments. Clinical Fellow Katrina Natale ’15 gave invaluable editorial assistance. We thank Olivia Layug, Associate Administrator for Berkeley Law’s clinical program for her help with production

 

 

Jakhu and Kaul on Regulating Space Activities in India

Ram Jakhu (Institute of Air and Space Law) and Ranjana Kaul (Dua and Associates) have posted Regulation of Space Activities in India on SSRN.

Link

Abstract:

Abstract by B. Goswami: “In the past decade India has emerged as a significant space player with its increasing and expansive space operations. India having taken international obligations under the space treaties, thus ought to confirm with the principles established thereof while carrying out its space operations. At present Indian space programs essentially remain a governmental activity and this approach has been witnessed to work well until now. However, with growing interest in space, involvement of private entities remains inevitable and thus, domestic regulatory mechanisms for space activities are due since long. This chapter addresses major avenues involving space viz. launch activities, satellite telecommunications and broadcasting, remote sensing, intellectual property rights and satellite navigational services, in whichIndia has performed extensive activity, but often lacks domestic regulations to balance the rights and obligations. Each activity is analyzed in depth along with the current state of law vis-à-vis existing international obligations to safeguard various interests at international level, through enactment of domestic laws.”

Ruparelia on Social Activism in the Supreme Court

Sanjay Ruparelia (New School for Social Research – Department of Politics, USA) has posted A Progressive Juristocracy? The Unexpected Social Activism of India’s Supreme Court on SSRN.

Link

Abstract:

Since 2005, India has introduced a series of progressive social acts that legislate a right to various socioeconomic entitlements. These range from information, work, and education to forest conservation, food, and public service. Three features distinguish these acts: the explicit use of rights-based claims; the design of innovative governance mechanisms that seek to enhance the transparency, responsiveness, and accountability of the state; and the role played by social activists and activist judges in spearheading these pieces of legislation with the help of progressive party politicians. This paper analyzes a key slow-burning stimulus of India’s new rights-based welfare paradigm: the socially activist turn of its Supreme Court. I address two main questions. First, what explains the rise of progressive socioeconomic jurisprudence inIndia in the late 1970s? Following the prevailing scholarly consensus, I analyze the role of antecedent conditions and particular causal mechanisms to explain high judicial activism in India: deepening political fragmentation, endogenous judicial change, and the strategic political retreat of elected representatives. None of these factors can fully explain the timing, sequence, and focus of the social activist turn of the Indian Supreme Court in the late 1970s, however, which owed much to the rise of popular social formations during these years and their proliferation in the 1980s. Thus the complex interaction effects of several causal factors, whose weight has differed over time, provides a more convincing explanation. Second, what have been the achievements and failures of high judicial activism in India regarding socioeconomic rights? As many scholars persuasively demonstrate, its direct impact has been limited, while its pro-poor posture has been inconsistent. However, by focusing excessively on direct material consequences in the short-run, these studies discount the powerful long-term ramifications, many of which are symbolic and indirect, of the Indian Supreme Court’s earlier progressive turn.