2018/Issue 2

Juris Diurna

15th April to 30th April


Issue 2

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President Promulgates Ordinance providing death penalty for rape of minors below 12 years

President Ram Nath Kovind promulgated the Criminal Law (Amendment) Ordinance, 2018 which allows courts to award death penalty to those convicted of raping girls under the age of 12 years. The ordinance also provides for the setting up of fast-track courts to deal with such cases and special forensic kits for rape cases will be given to all police station and hospitals. This step has given further impetus to the debate on effectiveness of death penalty.

Further reading:

  1. Express Web Desk, What is the new ordinance on rape under Criminal Laws?, The Indian Express (April 21, 2018)
  2. Pravin Ghuge, Maharukh Adenwalla, Nandita Rao, Should those who rape minors get the death penalty?, The Hindu (April 27, 2018)
  3. Shalini Nair, Death poor deterrent: Three per cent convictions, 94% accused know victims in child rape cases, The Indian Express (April 23, 2018)
  4. Vrinda Bhandari, Kathua and After: Why the Death Penalty for Child Rape Will Not Deter Offenders, The Wire (May 7, 2018)
  5. Payaswini Upadhyay, 2013 Committee Had Cautioned Against Death Penalty For Rape, Bloomberg | The Quint (April 22, 2018)
  6. Smriti Singh, Global Executions And Death Sentences Slide; India Expands Scope of Death Penalty, Amnesty International India (April 12, 2018) 
  7. Editorial, For a fair trial: On shifting the Kathua Rape and Murder Case, The Hindu (May 9, 2018)

Centre reverts by expressing reservations against collegium’s recommendation to elevate Justice KM Joseph to the Apex Court.

The Union Government returned the collegium’s recommendation to elevate Uttarakhand Chief Justice KM Joseph as a Supreme Court judge, while accepting the elevation of senior lawyer Indu Malhotra. The Centre justified its stand saying that there was adequate representation of the state of Kerala in the apex court. Several former Chief Justices and senior judges have criticised the move as a move to interfere in the judiciary.

Further reading:

  1. Utkarsh Anand, How judges appoint judges, The Debate around it, The Indian Express (November 15, 2016)
  2. Bhadra Sinha and Ashoka Bagriya, Collegium defers decision on KM Joseph’s Elevation, CJI suggested other judges be considered, Hindustan Times (May 3, 2018) 
  3. K Parameshwar, Alok Prasanna Kumar, TarunabhKhaitan, Was the centre right in resisting Justice Joseph’s elevation?, The Hindu (May 4, 2018)
  4. Gaurav Vivek Bhatnagar, Data Shows Centre Erred In Citing Region, Senioruty to Spike Collegium Choice, The Wire (May 2, 2018) 
  5. Ravish Tiwari, Tension between Executive, Judiciary: The current conflict – and its fraught resolution, The Indian Express (April 29, 2018) 
  6. Express Web Desk, Who is Indu Malhotra?, The Indian Express (April 26, 2018)

274th and 275th reports of Law Commission of India

274th Report of the Law Commission of India recommended against making any amendments in the contempt law of the country. The 275th report suggested that BCCI should be construed as state and be made amenable to writ jurisdiction under Article 12. It also provides for the enterprise to be subjected to divulging of public records under the RTI Act. Another report also provides for measures to implement a legal framework for simultaneous polls in the country to save resources.

Further reading:

  1. Krishnadas Rajagopal, Reviewing the Contempt of Courts Act, The Hindu (April 20, 2018) 
  2. Gautam Bhatia, The BCCI Controversy, Public Functions and Cultural Goods, and the Return (?) of the Functional Test, Indian Constitutional Law and Philosophy (August 25, 2016)
  3. Sumit Chakraborty, BCCI vs Lodha Panel: All you need to know about the case, Financial Express (October 6, 2016) 
  4. PTI, Law Panel Proposes Tough Legal Framework for Simultaneous Polls, Bloombergg | The Quint (April 17, 2018)
  5. Y V Reddy, Simultaneous polls in India: Boon or bane?, Rediff.com (May 8, 2018) 
  6. Should India have simultaneous elections, The Hindu (February 2, 2018) 
  7. Alok Prasanna Kumar, Simultaneous Elections in India: Hard to see tangible benefits, but list of drawbacks continues to grow, First Post (February 2, 2018)

Fundamental rights must also be made applicable to non-state actors: Delhi HC

Holding in favour of horizontal application of fundamental rights, the Delhi High Court ruled in the favour of protecting a daughter’s right to choose and right to privacy against her parents and also directed the latter to pay her compensation for wrongly detaining her in a mental asylum. The case involved a 23-year old female who was living with her music teacher since she turned 18, and the parents had sought to get her back to the paternal home.

Further Reading:

  1. Ashutosh Gambhir, Here’s what the Delhi HC said about applicability of Fundamental Rights to non-state actors, Bar & Bench (April 20, 2018)​
  2. Akanksha Jain, In a Landmark Verdict, Delhi HC asks Parents to Compensate Daughter for Violating Her Right To Choice, Detaining her in Mental Hospital, LiveLaw.in (April 19, 2018)
  3. Venkatasubramnian, Tussle over Guardianship: Facing the Music, India Legal (April 29, 2018)
  4. Stephen Gardaum, The Indian Constitution and Horizontal Effect, Oxford Handbook of Indian Constitution, (2015).

President assents to Ordinance of Fugitive Economic Offenders

Due to the non-passing of bill in parliament owing to log-jam over other issues, the Central government has promulgated the Fugitive Economic Offenders ordinance. It will act as a supporting legislation along with the CrPC and Money Laundering Act, and also redefines a fugitive economic offender and provides for special courts. It would be applicable for offences with a monetary value of over Rupees 100 Crores.

Further Reading:

  1. PTI, President Ram Nath Kovind gives nod to Fugitive Economic Offenders Ordinance, The Indian Express (April 22, 2018)
  2. PTI, President Enacts Fugitive Economic Offenders Ordinance, The Wire (April 22, 2018)
  3. Vakasha Sachdeva, Is Govt’s Fugitive Economic Offenders Bill Unconstitutional? Bloomberg | The Quint (April 23, 2018)
  4. Arvind Kurian Abraham, The Fugitive Economic Offenders Bill Leaves a Lot to Be Desired, The Wire (March 20, 2018)
  5. Rohan Venkataramakrishnan, Explainer: What is the Fugitive Economic Offenders Bill and will it bring NiravModi back?, Scroll.in (May 9, 2018).

US Supreme Court struck down Deportation law

A legal provision that provided for compulsory deportation of immigrants convicted of certain crimes of violence was held to be unconstitutional by the US Supreme Court. In a verdict of close 5-4 majority, the judges observed that the law was extremely vague since no definition had been provided for what those ‘certain crimes of violence’ were. The court was hearing a case by a Philippine who was convicted for house-burglary twice and was being deported.

Further Reading:

  1. Alison Legal Parker, US Supreme Court Ends Vague Basis for Deportation, Human Rights Watch (April 19, 2018)
  2. Andrew Ching, US Supreme Courts Restricts Deportations of Immigrant Felons, Reuters (April 17, 2018)
  3. Greg Stohr, US Supreme Court Tosses Law Used to Deport Convicted Criminals, Bloomberg | The Quint (April 18, 2018)
  4. Garrett Epps, The Skillful Foreshadowing of Neil Gorsuch, The Atlantic (April 20, 2018)

We thank Bhavisha Sharma and Vishal Rakhecha for their assistance in collating the data, and Benjamin Vanlalvena for designing this newsletter.