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2018/Issue 4

Juris Diurna

16th May to 31st May

{2018}

Issue 4

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

The aftermath of a Karnataka Assembly elections raises questions on the powers of the constitutional post of governer.

The decision of Karnataka governor Vajubhai Vala to invite BJP, which was the largest party with 104 seats out of 222, in spite of the Congress – JD(S) Alliance presenting a letter which showed a majority of 114 seats attracted a lot of criticism. This led to the other parties approaching the Supreme Court at 2 am in the morning contending misuse of powers by the governor. The Supreme Court decided to hold the swearing-in as per schedule. However, in the next hearing on Friday, May 18, 2018, it reduced the 15-days-time provided by the governor to a 24-hours-notice to hold the no-confidence motion and prove majority. This line-of-events  has attracted criticism towards governor discretion and the political connections of governor in the present political paradigm, vis-à-vis the ideal role of a governor as described in the constitution and in the guidelines laid down by various committees.

Further reading:

  1. Faizan Mustafa, The question of discretion, The Indian Express (May 18, 2018).
  2. Rajeev Dhavan, To Avoid Future Karnatakas, the Supreme Court Must Law Down Clear Principles, The Wire (May 21, 2018).
  3. Lovish Garg, Hung Assembly, Governor and the Constitutional Conundrum, Law and Other Things (May 18, 2018).
  4. V. Venkatesan, A court in need, Frontline (June 8, 2018).
  5. Arvind P. Datar and Rahul Unnikrishnan, Need for a Governor’s Manual, Bar & Bench (May 25, 2018).
  6. Yogesh Singh, The Governor’s Role In The Hung Assembly, JagranJosh (May 16, 2018).
  7. Subodh Ghildiyal, Supreme Court should set rules for governors in government formation: Abhishek Singhvi, The Economic Times (May 21, 2018).
  8. Gautam Bhatia, Do we need the office of the Governor?, The Hindu (May 24, 2018).
  9. Jai Prakash Ojha, Can The Post Of Governor Be Redeemed?, HuffPost (July 19, 2017)

Ireland votes to Repeal Abortion.

The Republic of Ireland has voted by a landslide to legalise abortion in its sixth referendum of the issue. The voters rejected Ireland’s eight amendment which hitherto gave equal rights to the foetus and the woman carrying it. The death of Savita Praveen in October 2012 who was refused abortion while having a miscarriage angered the general populace and brought global media attention to the Ireland’s strict abortion laws.

Further reading:

  1. Padraic Halpin and Graham Fahy, Ireland Set to End Restrictive Abortion Ban in Landslide Vote, The Wire (May 26, 2018).
  2. Jennifer Duggan, Ireland Grapples with the Thorny Issue of Repealing an Abortion Ban, The Time (October 27, 2016).
  3. Sorcha Uí Chonnachtaigh, Ireland’s abortion referendum: why it’s morally right to repeal the 8th amendment, The Conversation (February 1, 2018).
  4. James Kingston, The Need for Abortion Law Reform in Ireland, Position Paper, Irish Council for Civil Liberties.
  5. de Londras, Fiona and Markicevic, Mima, Reforming Abortion Law in Ireland: An Analysis of Submissions to the Citizens Assembly (October 10, 2017).

Employers could force employees to use individual arbitration instead of initiating class action to fight legal disputes: US Supreme Court

The issue has arisen from the conflict between two statutes, the Federal Arbitration Act (1925) and the National Labor Relations Act (1935). While the former provides for arbitration clauses to be enforceable under any circumstances except for grounds existing in law or for equity, the latter enables employees to form trade unions and take collective actions against employers. The verdict delivered by a close majority of 5-4 overturned the earlier ruling and held that the lawmakers were clear in their intentions and cannot-sue provisions are not unenforceable . The minority judgment highlighted the power of collective movements and how this verdict would be specifically harmful for certain sensitive matters. Interestingly, the earlier Obama government had sided with the challengers, but when the Trump-led Republicans came in power, they extended support to the employers.

Further reading:

  1. Greg Stohr, Supreme Court Says Employers Can Bar Worker Class-Action Lawsuits, Bloomberg (May 21, 2018).
  2. Ariana de Vigue and Maegan Vazquez, Supreme Court sides with Employers in class action arbitration cases, CNN (May 21, 2018).
  3. S.M., Can companies block employees’ class action lawsuits?, The Economist (September 20, 2017).
  4. Adam Liptak, Supreme Court upholds Workplace Arbitration Contracts Barring Class Actions, The New York Times (May 21, 2018).
  5. Alex Swoyer, Supreme Court sides with employers to prevent class-action lawsuits, The Washington Times (May 21, 2018).
  6. Andrew Hanna and Josh Gerstein, Supreme Court rules employers can ban class action lawsuits in arbitration, Politico (May 21, 2018). 
  7. Michele Gilman, Supreme Court ruling against class action lawsuits is a blow for workers – and #MeToo, The Conversation (May 22, 2018).
  8. Lydia Wheeler, Supreme Court upholds agreements that prevent employee class-action suits, The Hill (May 21, 2018).

Court cannot compel the party to give divorce by mutual consent: Delhi HC

While deciding the question of law in reference to numerous contempt petitions filed in the court, a division bench held that the courts cannot compel a party to divorce by mutual consent despite settlement agreements, i.e. if he/she gives the consent earlier but later withdraws. However, the withdrawing party may be held for civil contempt of court and there may be attachment of property but still cannot be forced for divorce as it would be against the basic ideal of this provision embodied in Section 13(B) of the Hindu Marriage Act, 1955.

Further Reading:

  1. Ashutosh Gambhir, Court cannot compel party to give divorce by mutual consent, Delhi HC, Bar & Bench (May 16, 2018).
  2. Apoorv Mandhani, Despite Settlement Agreement, Courts Cannot Compel Party To Consent To Mutual Divorce: Delhi HC [Read Judgement], LiveLaw.in (May 18, 2018). 
  3. Soibam Rocky Singh, Can’t force divorce by mutual consent: HC, The Hindu (May 16, 2018)
  4. Aneesha Mathur, Should a rethink on divorce attract contempt action? Delhi HC has its doubts, The Indian Express (January 31, 2017).

Madras HC deprecates practice of filing Habeas Corpus petition in man-missing cases.

The court held that the scope of a habeas corpus petition is limited and cannot be invoked in missing persons cases unless there is a strong suspicion of illegal detention. The court pointed out the concern of expenditure to the exchequer in such petitions and that competent court systems already exist to deal with missing cases.

Further Reading:

  1. Press Trust of India, Scope of Habeas Corpus Petition limited, says HC, Business Standard (May 17, 2018).
  2. Ashok K.M, Madras HC Deprecates Practice Of Converting Man Missing Cases As Habeas Corpus Petitions [Read Order], LiveLaw.in (May 16, 2018).
  3. Sureshkumar, HC frowns at too may habeas corpus petitions, The Times of India (May 17, 2018).
  4. Meera Emmanuel, Madras HC frowns upon filing of Habeas Corpus petitions in missing persons cases, Bar & Bench (May 16, 2018).

Judge rules Trump’s blocking of Twitter users is unconstitutional

A federal judge in Manhattan declared Donald Trump’s practice of blocking critics on Twitter as unconstitutional. The judge addressing the issue while applying constitutional principles to social media held that the president’s Twitter feed is a public forum, hence blocking individuals would amount to violating their First Amendment rights.

Further Reading:

  1. John Herrman and Charlie Savage, Trump’s Blocking of Twitter Users Is Unconstitutional, Judge Says, The New York Times (May 23, 2018).
  2. Apar Gupta, Unconstitutional Twitter Blocks, apargupta.com (Aug 10, 2017).
  3. Biran Fung, No, Twitter still isn’t subject to the First Amendment — even if a judge said Trump’s account is, The Washington Post (May 23, 2018).
  4. Issie Lapowsky and Louise Matsakis, Trump can’t block critics on Twitter, Wired (May 23, 2018).
  5. Philip Bump, A federal judge just all but dared Trump not to unblock people on Twitter, The Washington Post (May 23, 2018).

Prior restraints on media possible after the privacy judgement: Madras HC

While giving an order to the Kumudam Magazine, restraining it from publishing articles on MP Kanimozhi’s private life without her prior consent, the Madras HC held that the theory that there cannot be any prior restraint on media stands diluted after the judgement of Puttaswamy v Union of India.

Further Reading:

  1. Special Correspondent, HC imposes curbs on Tamil magazine, The Hindu (May 18, 2018).
  2. Akanksha Jain, Madras HC Restrains Kumudam Magazine From Publishing Articles on MP Kanimozhi’s Pvt Life Without Her Prior Consent [Read Order], LiveLaw.in (May 21, 2018).
  3. Sidhant Kumar, Privacy of Public Figures and the Chilling Effect on Free Speech, Bar & Bench (May 31, 2018).
  4. Tessa Mayes, Privacy vs Free Speech: two competing rights?, Spiked (October 22, 2002). 
  5. David Pallister, Right to know v prior restraint, The Guardian (March 7, 2007).

ICYMI

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By Namratha Murugeshan and Prachi Srikant Tadsare

In the second post of a two part series on the legal nature of cryptocurrencies in India, the authors explore whether cryptocurrencies fall within the scope of Article 300A (the right to property) under the Constitution of India […]

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Rule of Law in India- A Quest for Reason

By Harish Narsappa

OUP has published Harish Narsappa’s book “Rule of Law in India- A Quest for Reason” which discusses the contours of the rule of law in India, the values and aspirations in its evolution and its meaning as understood by the various institutions.[…]

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

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