Legal Updates

1st August to 15th August

{2018}

Issue 9

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

• Justice Indira Banerjee, Vineet Saran, K.M. Joseph Sworn in as Supreme Court Judges

Justices Indira Banerjee, Vineet Saran and K.M. Joseph were sworn in as judges of the Supreme Court, taking the total strength of the judges in the Supreme Court to 25. Justice Indira Banerjee will become its eighth female judge and for the first time, three female judges will be sitting simultaneously in the Supreme Court. Justice Joseph’s elevation as a Supreme Court judge ended a stand-off between the government and judiciary wherein the government had withheld the elevation of K.M. Joseph on the grounds of seniority and regional representation. The three judges were sworn in according to the order of seniority notified by the Central government which made Justice Joseph junior to Justices Indira Banerjee and Vineet Saran in the Court.

Further reading:

1. Apoorva Mandhani, Breaking: Justices Indira Banerjee, Vineet Saran and K.M. Joseph Sworn In As SC Judges; No Changes In Order Of Seniority, Live Law.in, (August 7, 2018).
2. Live Law Research Team, A Journey Trough Notable Judgments of The Newly Sworn-In SC Judges, Live Law.in, (August 8, 2018).
3. Editorial, The right thing, The Indian Express (August 7, 2018).
4. K. Parameshwar, Alok Prasanna Kumar, Tarunabh Khaitan, Was the Centre right in resisting Justice Joseph’s elevation?, The Hindu, (May 4, 2018).
5. Sushant Singh, How is seniority decided in the SC?, The Indian Express (August 7, 2018).
6. Murali Krishnan, KM Joseph J. and Seniority controversy – Uncharted territory and why the MoP needs to be finalised, Bar & Bench, (August 6, 2018).

• Anti-Begging Law is Unconstitutional : Delhi High Court

The Delhi High Court delivered a landmark judgement that decriminalized begging and declared 25 sections of the Bombay Prevention of Begging Act, 1959 (hereinafter, the Act), as extended to Delhi as unconstitutional. This comes in response to petitions filed by Harsh Mander and Karnika Sawhney challenging the validity of all sections, except Section 11 of the Act. The bench consisting of acting Chief Justice Gita Mittal and Justice C. Hari Shankar struck down those provisions that either dealt with begging as an offence committed by the beggar or dealt with ancillary issues. They further observed that “Criminalizing begging violates the most fundamental rights of some of the most vulnerable people in our society.” The bench also added that the consequence of the judgement would be that all prosecutions against persons alleged to have committed the offence of begging would be liable to be struck down.

Further reading:

1. Soibam Rocky Singh, Delhi High Court decriminalizes begging in the national caapital, The Hindu, (August 8, 2018).
2. The Wire Analysis, As Delhi HC Decriminalises Begging, the Centre Must Address the Root Causes,The Wire (August 10, 2018).
3. Sadaf Modak, Beyond Delhi: how law makes begging a crime,The Indian Express (August 13, 2018).
4. Ashish Goel, Decriminalising of Begging Is a Rare Example of an Activist Court, The Wire (August 9, 2018).
5. Gautam Bhatia, Undoing a legacy of injustice, The Hindu, (August 13, 2018).
6. Vijay Raghavan, Mohammed Tarique, Penalising Poverty: The Case of the Bombay Prevention of Begging Act, 1959, Economic & Political Weekly (June 2, 2018).

• Supreme court Reserves Judgment in Joesph Shine v. Union of India

The Supreme Court reserved its judgement in the Joseph Shine v. Union of India case where the petitioner has challenged the constitutional validity of Section 497 of the Indian Penal Code (adultery) and Section 198(2) of the Criminal Procedure Code. The five- judge constitutional bench headed by Chief Justice Dipak Misra observed that the survival of marriage should be left to the discretion of the husband and wife, and that the state should not intervene in the same. The bench also observed that Section 497 IPC would be either struck down or left alone, adding that there was no scope of reading down the provision.

Further Reading:

1. Krishnadas Rajagopal, Criminalising adultery does not appeal to common sense, says CJI, The Hindu (August 8, 2018).
2. The Wire Staff,As Centre Justifies Criminalisation of Adultery, SC Looks Determined to Strike it Down, The Wire (August 8, 2018).
3. Madhu Mehra, Should Adultery Be a Crime at All?, The Wire (August 4, 2018).
4. Dr. Tarunabh Khaitan, On the Gendered Criminalisation of Adultery, Indian Constitutional Law and Philosophy (August 3, 2018).
5. Gautam Bhatia, The law on adultery is aysymmetric,The Hindustan Times, (May 17, 2018).
6. Faizan Mustafa, Not a criminal act, The Hindu (January 11, 2018).

• Bills Passed by the Parliament

The Parliament passed The Constitution (123rd Amendment) Bill, 2017 which extended constitutional status to the National Commission for Backward Classes (NCBC). Several members in the Rajya Sabha urged the government to make public the caste census findings and implement reservations accordingly.
The Parliament also passed the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2018, seeking to overturn the Supreme Court order in SK Mahajan v. State of Maharashtra which watered down the punitive aspect of the SC/ST Act. The bill does away with the requirements of undertaking preliminary inquiry and procuring approval prior to making an arrest. It also precludes an accused from applying for an anticipatory bail and provides for special courts for deciding cases related to SC/ST Act.

Further Reading:

1. PTI, Parliament Passes Bill to Grant Constitutional Status to NCBC, The Wire (August 6, 2018).
2. Vijayta Lalwani, Everything you need to know about the OBC Bill, and what it means for the BJP, Scroll.in (August 8, 2018).
3. Express News Service, Parliament okays bill to restore original SC/ST atrocity law, The Indian Express (August 9, 2018).
4. Editorial Board, Managing perceptions: on amending the SC/ST Act,The Hindu (August 3, 2018).

• Cabinet Approves Amendments to Proposed Instant Triple Talaq Bill

The Cabinet approved three amendments to the proposed triple talaq bill. The offence of pronouncing instant triple talaq will continue to be non-bailable. However, the magistrate, if satisfied that reasonable grounds exist to grant bail, can grant bail after hearing the wife on whom talaq is pronounced. Further, the offence is now compoundable, giving the magistrate the power to settle the dispute between husband and wife. Lastly, to tackle the fear of misuse due to frivolous complaints by neighbours, a FIR would only be lodged if the complaint is filed by the victim (wife), her blood relations or her relatives by virtue of the marriage.

Further Reading:

1. Sruthi Radhakrishnan, What is the instant triple talaq bill, The Hindu (December 28, 2017).
2. A. Faizur Rahman, The Trouble with the triple talaq Bill,The Hindu (December 28, 2017).
3. Arvind Kurian Abraham, Bill Criminalising Triple Talaq a Hasty Legislation, Exposes Gap in Indian Lawmaking, The Wire (December 30, 2017).
4. Faizan Mustafa, Legal Excess, Indian Express (December 29, 2017)
5. PTI, Government Adds Safeguards in Triple Talaq Bill, The Wire (August 10, 2018).

• Supreme Court Approves Draft Constitution of BCCI, Modifies Lodha Panel Recommendations

In a major relief to the BCCI, the Apex court rejected two major recommendations of the Lodha Panel which had faced significant opposition from the cricketing board. The first recommendation it rejected concerned the ‘one state one vote’ rule, as per which voting each state, regardless of the number of cricket associations it has (Gujarat and Maharashtra, each have 3 associations), would have one vote in the BCCI. It observed that this rule was problematic as it excluded associations on the basis of territoriality and ignored the contributions made by each association to the development of the game. It also modified the recommendation of Lodha Committee regarding cooling off period; as per which an office bearer could not directly re-contest election, after a single term a three years.However, the court modified the same, it held that an office bearer has to under cooling off period but only after six years, i.e. two consecutive terms. It did so to strike a balance between the needed experience and avoiding a monopoly of power with few office bearers.

Further Reading:

1. Express Web Desk, Lodha Panel Report: Top 10 recommendations, Indian Express (September 28, 2016).
2. Krishnadas Rajagopal, SC junks ‘one State one vote’ proposal of Lodha panel, tweaks cooling-off period for cricket bosses,The Hindu(August 09, 2018).
3. Live Law News Network, BCCI-SC Approves Draft Constitution, Modifies Lodha Panel Recommendations Including ‘One State One Vote’ and Cooling Off Period, Live Law (August 9, 2018).

• Attorney General Recommends that Officers be Held Responsible to Check Mob Violence

A Public Interest Litigation was filed by Kodungallur Film Society at the time of protests by Karni Sena against the release of Padmavati. It sought framing of guidelines to deter violence by outfits during public protests. During the recent hearing of this PIL, the Attorney General said that it would be very difficult to control such incidents unless responsibility was fixed on some officer. He drew an analogy to the DDA where an officer is responsible for any buildings in his zone that violated the law and opined that responsibility be fixed on superintendent of each zone. This act also brought into limelight the attorney general’s independent and non-political role.

Further Reading:

1. The Wire Analysis, Behind the Attorney General’s Anguish Over Rising Tide of Vigilantism, The Wire (August 13, 2018).
2. Dr. Lokendra Malik, The Leader of Indian Bar: Changing Horizons of the office of The Attorney General of India, Live Law (June 3, 2015).
3. The Wire Analysis, Why Motilal Setalvad’s Legacy is Important While India Chooses a New Attorney General, The Wire (June 16, 2017)
4. Express News Service, To check public violence, we need to hold officer responsible: Attorney General K K Venugopal to Supreme Court, Indian Express (August 11, 2018).

• Final Assam’s National Register of Citizens (NRC) Draft Released

The final draft of Assam’s National Register of Citizens (NRC) was published on 30th July, 2018. The NRC is a list of all Indian citizens who have been residing in Assam since 1971. The objective of the NRC is to address a major concern of the historic Assamese movement, which is to vet out illegal immigrants from neighbouring areas, mainly Bangladesh. Around 3.29 crore people had filled in their applications, of which 2.89 crore found their names in the draft, excluding 40 lakh people. However, the Supreme court ruled that no coercive action shall be taken based on this draft. Further, the Centre submitted a standard operating procedure (SOP) to the Apex court in order to deal with any claims or objections to the NRC. The court also sought views of various stakeholders on the draft SOP and asked the NRC coordinator to submit the percentage of population that has been excluded in each district. Lastly, questions were also raised about the fact as to why an Assamese judge, Justice Gogoi is hearing the case.

Further Reading:

1. Correspondent, People not in NRC won’t be jailed or deported: All you should know about Assam’s National Register of Citizens, India Today (July 30, 2018).
2. Markandey Katju, Debate: The NRC Will Not Resolve Assam’s Humanitarian Crisis, The Wire (August 16, 2018).
3. Abhijet Iyer-Mitra, NRC list: Why this is the right time for India to get tough on illegal immigrants, Daily O (August 2, 2018).
4. Shiv Vishvanathan, Citizenship and Compassion, The Hindu (August 6, 2018).
5. Apurva Viswanath, Guwahati advocate asks CJI Misra why Justice Gogoi, an Assamese, is hearing NRC case, The Print (August 8, 2018).
6. PTI, NRC Cannot Be Basis for Any Coercive Action: SC, The Wire (July 31, 2018).

Tenure of SC Judges getting shorter-Intentional or Incidental?

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Dr. Tarunabh Khaitan wins the inaugural Letten Prize

By Parika Kamra

Dr. Tarunabh Khaitan, one of the former editors of the Law and Other Things Blog is awarded the inaugural Letten Prize for his award on equality and non-discrimination. The author documents Dr. Tarunabh Khaitan’s contributions. His scholarship on discrimination and other issues can be accessed from his SSRN page. […]

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