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. 

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