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2018/Issue 3

Juris Diurna

1st May to 15th May

{2018}

Issue 3

Hi, welcome to our legal newsletter Juris Diurna, we publish this newsletter fortnightly.

Supreme Court issues directions for the better implementation of POCSO Act.

The Supreme Court of India directed all high courts in the country to constitute committees of judges to monitor cases pending under the Protection of Children from Sexual Offences (POCSO) Act, 2012. Shocked by the high rate of pendency of child sexual assault cases, the high courts were also directed to set up special courts with an aim to fast track pending cases. This comes in response to a PIL filed by Alakh Alok Srivastava who sought general reliefs for child victims across the country and specific reliefs for an eight-month-old girl raped by her 28-year-old cousin in January. The petition also played a crucial role behind the centre’s decision to bring in an ordinance allowing courts to pronounce death penalty to those convicted of raping children below 12 years. The move came in the backdrop of the nationwide outrage over the alleged rape and murder in Kathua and Unnao.

Further Reading:

  1. FE Online, What is POCSO Act, Financial Express, (April 21, 2018).
  2. Correspondent, In 2016, over one lakh children faced sexual assault: Supreme Court informed, The Indian Express (March 18, 2018).
  3. Express Web Desk, What is the new ordinance on rape under criminal laws?,The Indian Express (April 21, 2018).
  4. Anamitra Roychowdhury, Curbing Child Rape: Are we barking up the Wrong Tree?, The Wire (May 3, 2018).
  5. Correspondent, SC issues directions on fast-tracking child sexual abuse cases, Business Standard (May 1, 2018).

Centre to introduce DNA Profiling Bill soon in the Parliament’s monsoon session

The government informed the Supreme Court that it would introduce a DNA Profiling Bill in the Monsoon Session of Parliament. The Centre provided the information in its response to a PIL petition filed by NGO Lokniti Foundation in 2012. The petition sought directions to address the issue of thousands of unclaimed dead bodies reported annually and for the maintenance of DNA profiles of the dead bodies, before their disposal, to aid in their identification by family members. The Supreme Court while disposing off the petition observed that, “The legislature is the competent authority to address the concerns regarding unidentified dead bodies and missing children. The relevant legislation may be brought into force as expeditiously as possible”. The Centre had made a similar assurance to the court in 2015 that a DNA Profiling Bill would be introduced in the parliament but couldn’t succeed because of privacy concerns. The Law Commission of India, in its 271st report, has prepared the draft Bill named The DNA Based Technology (Use and Regulation) Bill, 2017 after the July 2015 version was criticised for arbitrarily assigning wide-ranging discretionary powers and for not possessing the necessary privacy and data-security safeguards.

Further reading:

  1. Amitabh Sinha, Understanding the new DNA tech Bill: All your questions answered, The Indian Express (August 1, 2017).
  2. Mehal Jain, DNA Profiling Bill Will Be Introduced In The Monsoon Session Of Parliament: Centre Tells SC, Live Law (May 1, 2018).
  3. Correspondent, DNA data banks to be set up at national, state level to store DNA profiles, Live Mint (May 13, 2018).
  4. Narayan Ramachandran, Is profiling in India’s DNA?, Live Mint (August 7, 2017).
  5. Vasudevan Mukunth, India’s Blind Faith in DNA and Aadhaar Profiling Will Lead to No Good, The Wire (April 27, 2018).
  6. Elonnai Hickok, Here’s why we need a lot more discussion on India’s new DNA Profiling Bill, Hindustan Times (August 7, 2017).

Impeachment of CJI

Kapil Sibal, counsel of two Congress MPs, withdrew a petition challenging the Vice-President Venkaiah Naidu’s decision to reject an impeachment motion against CJI Dipak Misra. This incident preceded the decision of a five-judge Constitutional Bench that refused to inform Kapil Sibal as to who directed the issue to be placed before the bench. Notice of the impeachment motion had been submitted by the opposition one day after the Supreme Court bench headed by Justice Misra rejected calls for an independent inquiry into the death of Judge B.H. Loya. Venkaiah Naidu in his 10-page order had rejected the notice and had claimed that it was “neither desirable nor proper”. The petition had stated that the impugned order was ex facie illegal, arbitrary and violative of Article 14.

Further reading:

  1. Faizan Mustafa, In the bid to impeach chief Justice of India, issues of constitutionalism, accountability, The Indian Express (April 24, 2018).
  2. Pratap Bhanu Mehta, Judicial quicksand,The Indian Express (April 25, 2018).
  3. Express Web Desk,CJI impeachment: Two Congress MPs challenge Venkaiah Naidu’s decision in SC, bench to hear plea tomorrow, The Indian Express (May 7, 2018).
  4. The Wire Analysis, Why Congress MPs Withdrew Petitions Challenging Naidu’s Impeachment Motion Order, The Wire(May 8, 2018).
  5. Maneesh Chibber, CJI Misra shouldn’t have constituted five-judge bench to hear impeachment petition,The Print(May 8, 2018).
  6. Shekhar Gupta, Supreme Court crisis exposes a terrifying reality about political & judicial leadership,The Print(May 8, 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. Faizan Mustafa, In the bid to impeach chief Justice of India, issues of constitutionalism, accountability, The Indian Express (April 24, 2018).
  2. Pratap Bhanu Mehta, Judicial quicksand,The Indian Express (April 25, 2018).
  3. Express Web Desk,CJI impeachment: Two Congress MPs challenge Venkaiah Naidu’s decision in SC, bench to hear plea tomorrow, The Indian Express (May 7, 2018).
  4. The Wire Analysis, Why Congress MPs Withdrew Petitions Challenging Naidu’s Impeachment Motion Order, The Wire(May 8, 2018).
  5. Maneesh Chibber, CJI Misra shouldn’t have constituted five-judge bench to hear impeachment petition,The Print(May 8, 2018).
  6. Shekhar Gupta, Supreme Court crisis exposes a terrifying reality about political & judicial leadership,The Print(May 8, 2018).

Parliamentary committee reports can not be questioned in courts

The Apex Court held  that validity of parliamentary committee reports cannot be challenged or questioned in courts and that they could be referred to in order to facilitate statutory interpretation.  It further held that admission of published parliamentary standing committee reports as evidence does not amount to breach of parliamentary privilege. The judges also observed that there was no reason for courts to exclude published parliamentary standing committee reports for checking historical facts, nature of the problem addressed, the cause of the social evil and its remedies.

Further Reading:

  1. Approva Mahanadi, Summary of Constitution Bench on Parliamentary Standing Committee Reports, Live Law (May 9, 2018)
  2. Krishnadas Rajagopal, Blackout of parliamentary reports will lead to totalitarianism, says SC, The Hindu (May 9, 2018)
  3. Sarojini Nadimpally, Prathibha Siva, Deepa Venkatachalam and Adsa Fatima,Why Relying on Parliamentary Panel Reports is Important in Litigation, The Wire (May 16, 2018)

Centre says it would have final say in inter-state dispute of the Cauvery Scheme.

The draft Cauvery Water Management Scheme for water sharing of the river amongst the southern states was prepared by centre in conformity the Supreme Court’s decision in February. Both states put heavy reliance on the river to meet their water needs and the dispute dates back to pre-independence wherein the Madras Presidency and Mysore Kingdom had agreements for water sharing, which Karnataka alleges to be skewed in the favour of Madras presidency. The draft scheme also proposes an implementing authority which would have nominated members from all three states and Pondicherry would also be part of the authority, to ensure that ample voice is given to all states. In case of any non-corporation or dispute, the decision of the Centre would be final.

Further Reading:

  1. Express News Service, Cauvery verdict out: What was the dispute all about, what happens now, The Indian Express (February 17, 2018)
  2. HT Correspondent, From 1924 to 2018: The twists and turns in the Cauvery water dispute case, Hindustan Times (February 16, 2018)
  3. Live Law Network, Read the Summary of Cauvery Judgment, Live Law (February 16, 2018)
  4. V. Shivshankar, Decades-Old Cauvery Water Dispute Comes to an End, Karnataka Cheers as Tamil Nadu Water Quota Is Cut, The Wire (February 16, 2018)
  5. Krishnadas Rajagopal, Centre’s say is final on Cauvery, SC told, The Hindu (May 15, 2018)

ICYMI

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By Tarunabh Khaitan

Tarunabh Khaitan writes four pieces on constitutional backsliding and democratic decay in India, with recommendations of articles by other authors for more global/comparative perspectives […]

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Hung Assembly, Governor and the Constitutional Conundrum

By Lovish Garg

The Karnataka assembly polls resulted in a fractured mandate with no single party able to secure a majority in the house of 224 seats. While the BJP which emerged as the single largest party fell short of the majority figure by 8 seats; in a rather dramatic turn of events the incumbent Congress offered unconditional support to the Kumaraswamy-led JDS […]

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We thank Chittkrishna Thakkar and Gayatri Gupta for their assistance in collating the data, and Benjamin Vanlalvena for designing this newsletter.

 

 

 

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