Legal Updates

1st June to 15th June
Issue 25
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  • Bombay High Court rejects challenge to Section 376-E, IPC
The Bombay High Court upheld the constitutional validity of Section 376-E of IPC which provides that repeat offenders in rape cases can be awarded life imprisonment or death penalty. The landmark judgement was delivered by a division bench comprising of Justice B P Dharmadhikari and Justice Revati Mohite Dere. The petition was filed by three convicts in the Shakti Mill gang rape case, who were sentenced to death under Section 376-E. The stringent provision was added by an amendment made by Parliament in 2013, following the Nirbhaya gangrape incident. The Court reasoned that repeat rape has to be viewed more seriously and thus, a more stringent punishment has to be prescribed.

Further Reading:
  1. Express Web Desk, Bombay HC upholds death penalty clause for repeat offenders in rape cases, The Indian Express (June 03, 2019).
  2. Shashank Bengali, Five men convicted in Mumbai rape cases that drew international focus, Los Angeles Times (May 20, 2014).
  3. Nitish Kashyap, Shakti Mills Gangrape: Section 376E IPC is unconstitutional: argues convict’s lawyer before Bombay HC, LiveLaw (March 06, 2019).
  4. Sruthi Radhakrishnan, The Hindu Explains: What is Section 376E and how does it affect the Shakti Mills gang rape case? , The Hindu (June 03, 2019).
  5. Ritika Jain, Split between SC & State Courts over death penalty in rape cases, The Print (June 04, 2019).
  6. Pallavi Prasad, Can rapists be sent to the gallows? Breaking down IPC Section 376E, The Quint (February 02, 2019).
  • The Punjab and Haryana High Court declared all animals as legal persons.
Justice Rajiv Sharma of the Punjab and Haryana HC declared the entire animal kingdom as legal entities, having a distinct persona with corresponding rights, duties and liabilities of a living person. He also declared citizens to be the guardians of the animal kingdom with a duty to ensure their welfare and protection and directed the police to ensure that carts driven by animals were given the ‘right to way’. He passed a similar judgement with Justice Lok Pal Singh while serving as a judge in the Uttarakhand HC. The Uttarakhand Court was of the view that the society needs to speak on the behalf of animals, who are entitled to justice and cannot be treated as objects.

Further Reading:
  1. Varun Nambiar, Indian court rules in favour of legal person status for all animals, Jurist (June 03, 2019).
  2. Rashid MA, P&H HC Declares Entire Animal Kingdom Including Avian And Aquatic As Legal Entities With All Rights And Duties Of Living Persons, LiveLaw (June 02, 2019)
  3. Kavita Updadhyay, Animals are legal entities with rights, duties and liabilities of a living person: Uttarakhand HC, The Indian Express (July 05, 2018).
  • SC orders release of journalist, Prashant Kanojia, who was arrested by the Uttar Pradesh Police.
The vacation bench of Justice Ajay Rastogi and Justice Indira Banerjee, in a habeas corpus petition, passed the order of release of Prashant Kanojia. He was arrested for allegedly making objectionable comments  against the Uttar Pradesh Chief Minister, Yogi Adityanath. Uttar Pradesh Police filed a suo moto FIR under Section 500 of the Indian Penal Code and Section 66 of the Indian Technology Act. The bench criticised the magistrate for Kanojia’s 11-day judicial remand but also made it clear that the release should not be read as approval of his social media posts. The Court opined that even though such comments should not have been posted, but arrest in such cases is a curtail to liberty of an individual.

Further Reading:
  1. Abhinav Sekhri, Prashant Kanojia’s case: A strange kind of justice, Live Law (June 12, 2019).
  2. Ananthakrishnan G, Right to liberty not negotiable, release journalist, Supreme Court tells UP Govt, The Indian Express (June 12, 2019).
  3. Mehal Jain, This is a nation that has a Constitution, Liberty cannot be infringed like this: Indira Banerjee on Kanojia’s arrest, Live Law (June 11, 2019).
  4. Neha Jain, India’s attacks on a free press are part of a disturbing trend, The Washington Post (June 13, 2019).
  5. Gautam Bhatia, The Prashant Kanojia bail order: Two Constitutional Issues, The  Leaflet (June 12, 2019).
  6. Editorial, Thin-skinned masters: On journalists arrest, The Hindu (June 12, 2019).
  • Ministry of Home Affairs lays out specific guidelines to detect, detain and deport foreign nationals staying illegally across the country.
The Ministry of Home Affairs has amended the Foreign (Tribunals) Order, 1964 which now empowers district magistrates in all states and union territories to set up tribunals to decide whether a person staying illegally in India is a foreigner or not. Before the amendment, undocumented immigrants in other states were tried before a local court under the Passport Act, 1920 or the Foreigners Act, 1946. If found guilty, they were imprisoned for three to eight months and detained in special centres thereafter, until their respective countries took them back. With the amendment, state governments and district collectors/magistrates can now locally constitute a special tribunal anywhere in India to “detect” and take action against an “infiltrator”.

Further Reading:
  1. Sangeeta Barooah Pisharoty, Explainer: What Do the MHA's Changes to 1964 Foreigners Tribunals Order Mean?, The Wire (June 14, 2019).
  2. Scroll Staff, Foreigners Tribunals Order applicable to the whole country, says Home Ministry, (June 12, 2019).
  3. Gautam Bhatia, Inhumane and utterly undemocratic, The Hindu (June 10, 2019).
  4. Dharamananda Deb, Foreigners Tribunals In Assam : Practice & Procedure, Live Law (June 13, 2019).
  5. The Wire Staff, Expanding Foreigners Tribunals May Be Amit Shah's First Step to Pushing NRC Across India, The Wire (June 12, 2019).
  • Brazil Supreme Court criminalizes homophobia.
Brazil Supreme Court ruled that homophobia should be criminalized under existing legislation until Congress creates a specific law for the subject. A total of eight of eleven judges voted in favour of criminalising homophobia. The court’s judges observed that the ruling was to address an omission that had left the LGBT community legally unprotected. The court’s decision was necessary because of persistent violence against LGBTQ people in Brazil. Even though same-sex marriage is legal in Brazil, it remains a dangerous country for the LGBT community. According to the reports of the Grupo Gay da Bahia, 420 LGBT people were killed in Brazil in 2018 and 141 have been killed so far in 2019.

Further Reading:
  1. Sao Paulo, Brazil Supreme Court rules homophobia a crime, Reuters (June 14, 2019).
  2. Marina Lopes, Brazil’s top court votes to protect LGBT+ community after post-Bolsonaro spike in attacks, Independent (May 24, 2019).
  3. Michael Royster, Brazil’s Supreme Court enters the Political Thicket, The Rio Times (February 21, 2019).
  4. The Staff, Majority in Brazil's top court to make homophobia and transphobia crimes (May 24, 2019).
  5. AFP, Brazilian president says decision to criminalise homophobia 'completely wrong', Euro News (June 16, 2019).
Introduction to a Book Discussion on Julia Stephen’s Governing Islam: Law, Empire and Secularism in South Asia
By Rohit De
This is an introductory post on a book discussion on Julia Stephen’s Governing Islam: Law, Empire and Secularism in South Asia.Julia Stephens is an Assistant Professor of History at Rutgers University and a scholar of law in South Asia and the Indian Ocean World. Her book Governing Islam: Law, Empire and Secularism in South Asia traces the colonial roots of contemporary struggles between Islam and secularism in India, Pakistan, and Bangladesh.
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We thank Raghunandan Sriram and Anushree Verma for their assistance in collating the data, and Benjamin Vanlalvena for designing this newsletter.
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Law and Other Things · NALSAR University of Law · Hyderabad, 500101 · India

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