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2018/Issue 8

Juris Diurna

16th July to 31st July

{2018}

Issue 8

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

  • SC: Mob lynching is unacceptable, Parliament should make a separate law dealing with it.

Outlining the duty of the government to protect its citizens from perpetrators of orchestrated lynching and vigilantism, the Supreme Court directed the Parliament to legislatively deal with lynching as a separate offence and provide adequate punishment. The verdict also prescribed a series of guidelines that may be referred to for tackling such issues. Skepticism arises as irrespective of the motives, the offence of killing a human being already exists, and formulation of such a law may create problems owing to classification of crimes on the basis motives.

Further Reading:

  1. Krishnadas Rajgopal, SC asks Parliament to bring in special law against lynching, The Hindu (Jul 17, 2018).
  2. Apoorva Mandhani, Lynching: Parliament May Create A Special Law [Read Supreme Court Guidelines], LiveLaw.in (July 17, 2018).
  3. Sunil Prabhu, “No need for law on lynching,” says BJP despite Supreme Court Advice, NDTV (July 19, 2018).
  4. Harsh Mander, The mob that hates, The Indian Express (July 19, 2018).
  5. Rebecca Mammen John, Supreme Court order on mob lynching strong, but new law will be useless unless existing rules are enforced, Firstpost (July 17, 2018).
  6. Sarim Naved, Lynchings Highlight a Systemic Crisis, A Bureaucratic solution won’t fix it, The Wire (July 26, 2018).
  7. Annie Gowen, India’s Supreme Court warns of ‘mobocracy,’ urges government to pass anti-lynching law after deadly attacks, The Washington Post (July 17, 2018)
  • Delhi HC: Using a Trade Name similar to a Registered Trademark is not a Trademark Infringement

Hearing the case between Mankind Pharma Ltd. and Mercykind Pharmaceutical Private Ltd., the Delhi HC laid down that an infringement of Section 29(5) of The Trade Marks Act, 1999 using the ‘trade name’ of a company is constituted only when that trade name uses the exact registered trademark or a part of it. Furthering the verdict, it clarified that the test of “similarity or deceptive similarity” is applicable only for the trademark infringements discussed under Section 29(1) to 29(4) and does not extend to the impugned section.

Further Reading:

  1. Manu Sebastian, Use of Trade Name Similar to Registered Trademark Not Infringement: Delhi HC, , The Wire (July 17, 2018).
  2. Jasneet Kaur, Interplay between S. 29(4) and 29(5) of the TM Act : Smile at the Perils Past?, SpicyIP (May 13, 2016).
  3. Eashan Ghosh, Mankind Pharma v. Tiwari, Section 29(5), and Indian Trademark Law’s Trade Name Defence, Medium (July 9, 2018)
  • Bill to Amend Right to Education Act? Passed by Lok Sabha allowing detention of Students until class VIII

The Lok Sabha passed an amendment Bill to the Right of Children to Free and Compulsory Education Act, 2009 relaxing the prohibition against holding back students till class VII. The amendment replaces Section 16 of the Act, which stated that no student should be held back in class or expelled. The new section states that state governments are now allowed to decide to have rules holding back of students till the completion of elementary education. The amendment has not made a change to the phrase which prohibits expulsion.

Further Reading:

  1. Express News Service, RTE amendment Bill passed in Lok Sabha, no-detention policy set to fail, The Indian Express (July 19, 2018).
  2. Shradha Chettri, To ‘improve learning’, Delhi govt to scrap no detention policy after RTE amendment, The Indian Express (July 20, 2018).
  3. Editorial, Detention no cure: on RTE Act amendment, The Hindu (July 26, 2018).
  4. Gunjan Sharma Reversing the Twin Ideals of Right to Education, Economic and Political Weekly (27 Feb, 2016).
  • Justice BN Srikrishna Committee Submits Report and Draft Bill to the Ministry of Electronics and Information Technology

The Justice BN Srikrishna Committee of Experts on Data Protection released its report and the draft legislation ‘The Personal Data Protection Bill, 2018’ on 27 July, 2018. The committee has submitted the recommendation with regards to the jurisdiction and applicability of a data protection law should extend to all processing of data that happens in India. Additionally, personal data is determined by standard of identifiability.

Further Reading:

  1. Editorial, A good beginning: on draft data protection bill, The Hindu (July 31, 2018)
  2. Save Our Privacy Team, Initial Statement on Justice Srikrishna Committee Report, Save Our Privacy (27 July, 2018).
  3. Compilation of Resources, Privacy isn’t negotiable, Mozilla Foundation
  4. Arghya Sengupta, A free & fair digital economy: Draft data protection bill asserts our sovereignty and safeguards citizens’ interests, Times of India Blog (July 30, 2018)
  5. Amba Kak, The Srikrishna Committee’s Data-Protection Bill Does Not Do Enough To Hold The Government Accountable For Use Of Personal Data, The Caravan (28 July, 2018)
  6. Prashant Reddy, Data protection bill: The problem isn’t just the proposed law – it is also who will enforce it, Scroll.in (August 01, 2018)
  • Tarunabh Khaitan wins the Letten Prize 2018

Indian Legal Scholar Tarunabh Khaitan has been awarded the Letten Foundation and Young Academy of Norway’s inaugural prize for his research on the root cause of inequality and injustice in today’s society. He is currently affiliated with the University of Oxford and will be using the prize money of USD 260,000 towards an ‘Indian Equality Law Program’ aimed at supporting doctoral students and early-career scholars. Selected for this award from around 200 scholars from all-over the world, Khaitan is a Rhodes Scholar and a 2004-graduate of National Law School, Bangalore.

Further Reading:

  1. Editorial, Tarunabh Khaitan wins 2018 Letten Prize, University of Oxford – Facult of Law (August 3, 2018).
  2. Prasun Sonwalkar, Indian law expert Tarunabh Khaitan at Oxford wins research prize, Hindustan Times, London (August 3, 2018).
  3. Editorial, Winner of the 2018 Letten Prize, Letten Prize (August, 2018).
  4. Tarunabh Khaitan, Assistant Professor of Law, Wadham College, University of Oxford.
  • Supreme Court Reserves Order in Sabarimala Temple Case

The Supreme Court reserved its order in the Sabarimala Temple case where petitioners had challenged the ban on entry of women between the age of 10-50 into the temple. The five-judge Constitution bench headed by Chief Justice Dipak Misra heard that matter. The court said that the celibate status of deity cannot be the basis for barring entry of women as it was a Hindu temple.

 
Further Reading:
 

  1. Suhrith Parthasarathy, The Sabarimala Singularity, The Hindu (July 26, 2018)
  2. Sruthisagar Yamunam, Sabarimala case gives the Supreme Court the chance to set right its inconsistency on personal laws, Scroll (July 24, 2018)
  3. Nihal Sahu, The Sabarimala Case: What Works And What Doesn’t, Swarajya (August 06, 2018)
  4. Alok Prassana Kumar, Women in Shani Shingnapur temple: A brief history of entry laws and how times are changing, First Post (April 12, 2016)
  5. Satya Prasoon, The Sabarimala Case Has the Potential to Be a Constitutional Watershed, The Wire (November 07, 2016)
  6. Gautam Bhatia, Sabarimala case: It’s not a struggle to defeat religious faith, Hindustan Times (July 23, 2018)
  • Uganda’s Constitutional Court upholds the amendment scrapping age limit for the post of President

Speaking from the High Court of Mbale, a 5-judge bench led by Deputy Chief Justice Alphonso Dollo upheld the parliamentary amendment that scrapped the age-limit for contesting elections from the post of President, thus allowing current president Museveni to contest in next Presidential elections. However, the bench struck down the amendment allowing an increase of 2-years in the terms of MPs. Many legal scholars have invoked the Basic Structure doctrine enunciated by the Supreme Court of India to oppose the age-limit amendment and this verdict in that regard, which was otherwise applied to strike down the MPs’ extended term.

 
Further Reading:
 

  1. East African, Uganda court delivers verdict on presidential age limit petition, The East African (July 26, 2018).
  2. Daniel Mumbere, Uganda court upholds age limit removal, dissenting Justice Kakuru is declared hero online, Africa News (July 27, 2018).
  3. Myivule Gyagenda, Politicians React to Court Ruling on Constitutional Amendments, Soft Power News (July 27, 2018).
  4. Sulaiman Kakaire, Uganda: Tracing Origin of Age Limit Article 102 (B), All Africa (Septembe 29, 2017).
  5. Mary Kisakye, Lifting age limit will make our Constitution null and void, says Makerere don, PML Daily (November 9, 2017).
  6. Benson Tusasirwe, Constitution amendment is void as it violates ‘basic structure’ doctrine, Daily Monitor (October 25, 2017).
  7. Min Bane, Age Limit: Erias Lukwago statement after Age Limit Judgement on the 26th July 2018, MinBanewordpress.com (July, 2018).
  8. Julius Barigaba, Uganda Parties to appeal ruling that upheld law on age limit, The East African (August 4, 2018).

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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