Legal Updates

16th August to 31st August

{2018}

Issue 10

Hi, welcome to our legal newsletter, we publish this newsletter fortnightly. We have renamed our newsletter from “Juris Diurna” to “Legal Updates”

We wish to introduce our Explainer section where we include small descriptive pieces which could assist in research and understanding the core of the issue.

• Supreme Court orders house arrest for all activists related to the Bhima Koregaon raids

The Supreme Court has ordered house arrests for the five human rights activists – Varavara Rao, Vernon Gonsalves, Arun Ferreira, Sudha Bharadwaj and Gautam Navlakha – who were arrested by Maharashtra police on August 28. The police had arrested the activists for alleged links to the Elgar Parishad which was said to be the cause of the Bhima Koregaon violence, as it was purportedly being funded by Maoists. The police also arrested them on the pretext of planning the assassination of the Prime Minister.

Further Reading:

1. Editorial, State of conflict: on the Bhima-Koregaon violence, The Hindu (January 04, 2018).
2. Express News Service, Elgar Parishad event: Activists attack govt over ‘muzzling dissent’, seek repeal of UAPA, Indian Express (August 20, 2018).
3. Kalpana Kannabiran, Activists’ Arrests a Dire Warning for Anyone Who Dares to Question or Resist, The Wire (August 30, 2018).
4. Sruthisagar Yamunan, Bhima Koregaon case: What are the options before the Supreme Court in the arrest of activists?, Scroll.in (September 01, 2018).
5. Bhima-Koregaon Violence: Pune Court Grants 90-Day Extension To Police To File Chargesheet Against 5 Accused, The Outlook (September 2, 2018).

• Supreme Court rules against having the NOTA option in Rajya Sabha elections

The Supreme Court ruled in favour of the petition filed by Congress’s Chief Whip Shailesh Parmar which contended that the NOTA option should not be extended to Rajya Sabha Polls. The verdict tried to balance an individual’s right to negative vote with the duty of elected legislator having to follow the party directions in terms of voting in indirect elections. Whereas the norms require a particular party’s legislator to vote according to the party high-command, the option of NOTA legitimises the act of not following orders. The Supreme Court observed that such an option may be used as an effective tool by a party member to show dissatisfaction towards the candidate chosen by his/her party. As a result, it opens doors to corruption and makes party-politics more conducive to the evil of defection.

Further Reading:

1. Express Web Desk, No NOTA in Rajya Sabha elections, rules Supreme Court, Express Web Desk, The Indian Express (August 21, 2018).
2. Live Law News Network, NOTA Option can’t be used in Rajya Sabha elections: Supreme Court, LiveLaw.in (August 21, 2018).
3. The Hindu net desk, NOTA in the Rajya Sabha polls: An explainer, The Hindu (August 3, 2017).
4. Scroll Staff, NOTA Option cannot be permitted in Rajya Sabha elections, says Supreme Court election, Scroll.in (August 21, 2018).
5. Editorial, The NOTA Principle: On Rajya Sabha polls, The Hindu (July 30, 2018).
6. Venu Sundaram, SC’s No to NOTA in Rajya Sabha Election is Riddled with Contradictions, The Wire (August 21, 2018).

• Delhi HC accepts first petition filed by lawyer against leakage of Aadhar data

This petition filed by Prof. Shamnad Basheer alleges a violation of the Fundamental Right to privacy as guaranteed under Article 21 of the Constitution. He contends that this petition contemplates an attack on the violation of statutory provisions by the UIDAI and fears of the data being misused for personal gains. The petitioner has substantiated his claims with the report of The Tribune, responses from the IT Ministry and press releases by the UIDAI. He asks for exemplary damages, information of data-breaches that have occurred and the scope and the possibility of further breaches, while advocating for an audit committee to scrutinize Aadhar’s functioning and all possible privacy breaches.

Further Reading:

1. Apoorva Mandhani, Delhi HC Issues Notice On Prof. Shamnad Basheer’s Petition Seeking Exemplary Damages For Aadhaar Data Leak, Live Law (August 21, 2018).
2. Upmanyu Trivedi, World’s largest Digital ID Operator faces suit for Data Leaks, Hindustan Times (August 22, 2018).
3. Vakasha Sachdev, Damages for Aadhar Data Leaks? Delhi HC Notice to UIDAI, Centre, The Quint (August 21, 2018).
4. Rachna Khaira, Rs 500, 10 minutes, and you have access to billion Aadhar details, The Tribune (January 3, 2018).
5. Vakasha Sachdev, Has UIDAI failed to fulfil its Obligations under the Aadhar Act?, The Quint (January 15, 2018).
6. ET Contributors, There has been no Aadhar data-breach till date: R S Sharma, The Economic Times (January 15, 2018).

• Whatsapp agrees to the government’s demands in dealing with fake news

Whatsapp has agreed to work with the central government to curb  the propagation  of fake news on the messaging platform. This agreement comes after the Union Information Technology Minister, Ravi Shankar Prasad held a meeting with Chris Daniels, the CEO of Whatsapp.  The platform will appoint a grievance officer in India and that it will have a corporate entity located in India. However, it refused to agree with making the messages traceable as the same would break its end-to-end encryption.

Further Reading:

1. Shruti Dhapola, WhatsApp and fake news: The problem goes beyond forwards, Indian Express (July 14, 2018).
2. Prashant Reddy T, If WhatsApp Doesn’t Regulate Itself, Parliament May Have to Step In, The Wire (July 18, 2018).
3. Ananya Bhattacharya, WhatsApp is limiting message forwarding in a country where fake news can kill, Quartz India (July 20, 2018).
4. PTI, Focus on fake news now, payments later, India tells WhatsApp, Live Mint (July 25, 2018).
5. PTI, Fake news issue: Govt portal starts advocacy on WhatsApp safety for students, others, Hindu Businessline (August 15, 2018).
6. Himanshu Gupta and Harsh Taneja, WhatsApp told India That Tracing Fake News Would Break Encryption. Is This True?, The Wire (August 25, 2018).
7. Megan Molteni, When WhatsApp’s Fake News Problem Threatens Public Health, Wired (September 3, 2018).

• Law Commission releases consultation papers on sedition, Uniform Civil Code and simultaneous elections

The Law Commission of India has released consultation papers on the proposed amendments to the sedition law and the viability of implementing the Uniform Civil Code (UCC). The Commission has suggested that the sedition law should be repealed, and has stated that India is still not ready for the implementation of the UCC. It also released a draft report on simultaneous elections, recommending the implementation of that policy.

Further Reading:

1. Flavia Agnes, Chapter 5 – Diverse personal laws, gender justice and controversy over the uniform civil code, Edited By Melvil Pereira, Bitopi Dutta, Binita Kakati, Legal Pluralism and Indian Democracy, London: Routledge India.
2. Bezwada Wilson, Dushyant, Gul Panag, Mukul Kesavan, Nilanjana Roy, S. Irfan Habib, Major General S. Vombetkere (Retd.) and T.M. Krishna, Draft of Progressive Uniform Civil Code (October 11, 2017).
3. Arvind Datar, Section 124A should stay, Indian Express (February 25, 2016).
4. PDT Achary, Sedition Laws Have No Place in a Democracy and Should be Repealed, The Wire (February 23, 2016).
5. Umar Khalid, Meenakshi Lekhi, TSR Subramanian, Left, Right, Centre | Should the sedition law be scrapped?, The Hindu (June 29, 2017).
6. Bibek Debroy and Kishore Desai, Analysis of simultaneous elections: the “what”, “why” and “how”, NITI Aayog.
7. Vivek Dahejia, Simultaneous elections are a bad idea, Scroll (July 10, 2018).
8. Yamini Aiyar, Why simultaneous elections are bad for India’s democracy, Hindustan Times (March 16, 2018).
9. Bhupender Yadav, Suhas Palshikar, S.Y. Quraishi, Yes, No, It’s complicated | Should India have simultaneous elections?, The Hindu (February 2, 2018).

• Malaysia repeals controversial ‘fake news’ law

The fake news law penalising the dissemination of fake news using imprisonment and exorbitant fines has been struck down by the new government which had promised to do so. This law introduced by former Prime Minister Najib Razak was globally criticised for being a regressive assault on free speech and an attempt to prohibit critics from analysing corruption scandals. Malaysia was the first South-East Asian country to introduce such a law and is the first country in the world to repeal it, within merely 6 months of its application.

Further Reading:

1. Praveen Menon, Malaysian parliament throws out laws against ‘fake news’, Reuters (August 16, 2018).
2. Hanna Elis-Petersen, Malaysia scraps ‘fake news’ law used to stifle free speech, The Guardian (August 17, 2018).
3. Associated Press, Malaysia repeals controversial law banning ‘fake news’, New York Post (August 16, 2018).
4. Jessie Yeung, Malaysia repeals controversial fake news law, CNN (August 17, 2018).
5. Adam Minter, Fake news laws are Fake Solution, Bloomberg (May 25, 2018).
6. Legal Analysis of Malaysia Fake News Act, Article 19 (April 2018).
7. New Jo-Lyn, Wait. Why does Malaysia need Fake News Laws when we have Defamation Laws?, Cilisos.my (March 23, 2018).

• Justice Ranjan Gogoi to be the next Chief Justice of India

Current CJI Dipak Misra has endorsed Justice Ranjan Gogoi to be the next Chief Justice of the country, when CJI Misra retires on October 2. Justice Gogoi shall be the first judge from North-East India. The endorsement is in-line with long-standing convention in the Supreme Court for the outgoing CJI to recommend his successor as well as the convention of second senior most judge to assume the post once the present CJI retires. Speculations regarding this recommendation arose when Justice Gogoi participated in the infamous Judge Press Conference that took place earlier this year questioning the internal working of Supreme Court and appointment of benches. His term as CJI would be one of the longest in history, ending on November 17, 2019.

Further Reading:
 

1. Scroll Staff, Chief Justice of India Deepak Misra recommends Ranjan Gogoi’s name as his successor, Scroll (September 4, 2018).
2. Justice Ranjan Gogoi endorsed as next Chief Justice of India, Bar & Bench (September 1, 2018).
3. Karishma, All you need to know about Ranjan Gogoi, the new Chief Justice of India, India Today (September 2, 2018).
4. Apoorva Mandhani, CJI Misra recommends Justice Ranjan Gogoi as the next Chief Justice of India, LiveLaw (September 1, 2018).
5. FP Staff, Justice Ranjan Gogoi set to be appointed next Chief Justice of India, will take oath on 3 October, Firstpost (September 1, 2018).
6. Justice Gogoi to be the next Chief Justice of India, Oath on 3 Oct, The Quint (September 3, 2018).

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Catch 22: The Treacherous Territory of the Article 35A/Kashmir Quandary

By Siddharth Sunil

Here, the author discusses various challenges surrounding Article 35A of the Constitution of India.

Long Parade to Freedom: Section 377 and the Queer Movement in India

By Priyamvadha Shivaji and Shweta Rao

The authors explore the Indian queer movement as both a watershed moment in legal history as well as an emancipatory force in philosophical and social thought tied into its notorious public face – Section 377 of the Indian Penal Code, 1860.

Ghost Provisions: Who Will Exorcise Them Out?

By Badrinath Srinivasan

The author discusses “ghost provisions”,which are those provisions in our statutes that have absolutely no reason for them to be there or for them to be drafted the way they are.