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Juris Diurna

23rd March to 15th April
{2018}
Issue 1
Hi, welcome to our legal newsletter Juris Diurna, we plan to publish this newsletter fortnightly. Should you wish to unsubscribe to the newsletter an option is present at the bottom
‘The Office of profit’ Quandary in Indian Constitutional Law

The Delhi High Court has ordered to set aside the Election Commission of India’s (ECI) recommendation for disqualification of 20 Aam Aadmi Party (AAP) MLAs for holding office of profit as parliamentary secretaries. Justice Sanjiv Khanna and Justice Chander Shekhar said that the opinion of the ECI dated January 19, 2018 was vitiated as it failed to comply with the principles of natural justice. The court has directed the ECI to hear the matter afresh.

Further reading:
  1. Sruthi Radhakrishnan, The Hindu Explains: Office of profit, The Hindu (January 20, 2018).
  2. Faizan Mustafa, Rethinking the ‘Office of Profit’ disqualification, Law and Other Things (March 11, 2018).
  3. Rajshree Chandra, The Curious Case of no Profit in 'Office of Profit’, The Wire (March 27, 2018).
  4. Madhav Khosla, There are better, clearer ways to assess office-of-profit issue, but jettisoning process isn’t one, The Print (March 28, 2018).
Stay not to be granted beyond 6 months in Criminal/ Civil Proceedings unless extended by a speaking order.

A three judge bench of the Supreme Court of India directed that in all pending cases where stay against civil or criminal trial proceedings is operating, it will automatically come to end from 6 months commencing from 28th March 2018 The 6 month limit will also apply for future cases wherever stay is granted. However, in exceptional cases the stay can be extended by a subsequent speaking order showing why continuing the stay was more important then commencing the trial. The bench also elaborated as to when stay ought to granted and how such power is to be exercised. The judgment is significant as it would help tackle judicial delays, considering that findings of a study showed that stay on proceedings cause a delay of up to 6.5 years

Further reading:
  1. Arghya Sengupta, Hidden factors that slow our courts and delay justice, Economic Times, (March 29, 2017).
  2. Ashok K.M., Stay In Civil/Criminal Proceedings Not To Be Granted Beyond Six Months; Further Extension Only By Speaking Order: SC, Live Law (March 28, 2018).
  3. Correspondent, Graft or criminal cases should not be stayed for over 6 months: Supreme Court, The Indian Express (March 28, 2018).
 Central Selection mechanism & full time body for appointment & Evaluation of Judges

In a recent judgment, a division bench of the Supreme Court has asked the centre to consider the proposal for a central selection mechanism for filling up vacancies in non-constitutional courts and to figure out ways to reduce inadequacies in present system of appointment to the constitutional courts. Further, it opined that the need of having full time experts in order to assist in identifying, evaluating ad scrutinizing candidates at pre-appointment stage and to evaluate performance post appointment should also be considered. While suggesting this, the Court cautioned that the same should be done without affecting the independence of judiciary. Previously, the apex court had asked the states for their responses regarding a central selection mechanism for subordinate judiciary. This is significant considering the complex problem of judicial vacancies in India.

Further reading:
  1. DikshaSanyal& Shriyam Gupta, What is to blame for the mounting shortage of district court judges in India?, Scroll.in (January 13, 2018).
  2. Prabhati Mishra &Aproova Mahanadi, SuoMotu PIL On Central Selection Mechanism for Subordinate Judiciary: SC Seeks Response from States, Live Law (May 9, 2017).
  3. LiveLaw News Network, Breaking: SC Asks Centre To Examine The Need For New Judicial Fora To Decongest SC&HCs, Central Selection Mechanism, Full Time Body For Appointment & Evaluation Of Judges, Live Law (March 28, 2018).
  4. Ashwani Sharma, Vacancies in judiciary a national challenge, says CJI T S Thakur, The Indian Express (August 20, 2016).
The Malaysian parliament passes ‘The Anti-Fake News’ bill

The Anti-Fake News Bill, 2018 was passed in the Malaysian parliament with a view to safeguard the public against the spread of fake news. It proposes a 6-year jail term and a fine of up to 500,000 Ringgit for those deemed guilty of creating, distributing, or publishing ‘fake news’. Amnesty International has termed the bill as an “assault on freedom of expression” because of its vague definition of ‘fake news’, extra-territorial jurisdiction and arbitrary arrest powers for police. In India, the Information & Broadcasting Ministry had to withdraw its ‘fake news’ directive when orders came from Prime Minister’s Office on being accused of restricting press freedom. However, the Ministry has also constituted a new committee to frame rules for regulating news portals and media websites.

Further Reading:
  1. Reuters Staff, Malaysia outlaws ‘fake news’; sets jail of up to six years, Reuters (April 2, 2018).
  2. Siddharth Varadarajan, Doctor Modi’s Cure for Fake News is Worse Than the Disease, The Wire (April 3, 2018).
  3. Sruthisagar Yamunan, Opinion: It isn’t surprising that guidelines on fake news were scrapped- they were bad in law, Scroll.in (April 3, 2018).
  4. FP Staff, Fighting fake news: India joins series of nations issuing directives against sowing of disinformation in media, Firstpost (April 3, 2018).
  5. The Wire Staff, Modi Government turns its Sights on Freedom of Digital Media, The Wire (April 6, 2018).
Supreme Court refuses to recall its verdict on the SC/ST Atrocities Act

The Supreme Court refused to keep in abeyance its recent ruling in SK Mahajan v. State of Maharashtra wherein it laid down stringent safeguards that must be complied before arresting an accused under a case vide the Scheduled Castes and the Scheduled Tribes Act, 1989. The court was hearing a plea by the Centre seeking an interim stay on the SC’s March 20, 2018 order, in the wake of violence in several states. The Supreme Court judgement which proposed anticipatory bail for the accused and a preliminary enquiry before registering a case under the SC/ST Atrocities Act has been criticized for diluting its provisions. Recently, the Kerala Government petitioned the Supreme Court to review the verdict.

Further Reading:
  1. The Wire Staff, SC/ST Act Cannot Be Used for Blackmail or Vendetta, Says Supreme Court, The Wire (March 21, 2018).
  2. Kalpana Kannabiran, SC/ST Act: A Hostile Environment and an ‘Atrocious’ Interpretation,The Wire (March 26, 2018).
  3. Madhav Khosla, The Supreme Court didn’t dilute the SC/ST law, but just ensured that it applied to genuine cases,The Print (April 2, 2018).
  4. Ananthakrishnan G, Changes in SC/ST Act: Apex court doesn’t stay its order, says ‘we’re not going by any agitation, The Indian Express (April 4, 2018).
  5. Akansha Jain, Kerala Govt Seeks Review/ Recall Of SC’s Verdict Diluting Stringent Provisions Of SC/ST Act, Live Law (April 14, 2018)
  6. The Wire Staff, As SC Reviews SC/ST Order, Modi Government Yet to Admit Its Errors, The Wire (April 4, 2018).
Shanti Bhushan challenges CJIs power as master of the roaster

Former law minister and Senior Advocate Shanti Bhushan has filed a petition in the Supreme Court to put in check Chief Justice of India’s power as master of the roaster. The petition seeks that the power to list matters should be shared with the senior most judges of the court and cannot be used arbitrarily by the chief justice acting solely. This petition is significant in the context of the unprecedented press conference wherein the four senior most judges of the Supreme Court criticized the incumbent CJI Dipak Misra for abuse of administrative power in allocation of cases. This press conference invoked mixed reactions and has been a major topic of debate in the legal community. This petition was mentioned before Justice Chelameswar who refused to hear it citing that he does not want a reversal of his order within the next 24 hours, after which it was mentioned in the CJI’s court. A similar petition questioned the unilateral power Chief Justice of India to arbitrarily constitute benches, wherein the court reiterated the superiority of the Chief Justice. 

Further Reading:
  1. FP Staff, Four senior SC judges take on CJI at press conference, allege crucial cases being allotted 'selectively, Firstpost (January 12, 2018).
  2. Sruthi Radhakrishnan, The Hindu Explains: ‘master of the roaster’, The Hindu (January 13, 2018).
  3. A.P. Shah, Chief Justice: A First Among Equals, The Wire (March 9, 2018).
  4. Namratha Murugeshan, The Honourable Dissent: Who Said what? Part 1&Part 2, Law and other things (January 23 and February 9, 2018).
  5. Mehal Jain, Chelameswar Refuses to Hear Plea on CJI's Powers, Says Doesn't Want Order Reversed, The Wire, (April 12, 2018)
  6. Ravichandran Iyer, Reiteration of Constitutional Convention of CJI being the Master of Roster, Bar and Bench (April 15, 2018)
  7. Aditya AK, Shanti Bhushan Challenges Chief Justice of India’s Power as Master of the Roaster, Bar and Bench (April 6, 2018).
Right to marry a person of choice protected under Article 21

The Supreme Court released its full judgement following a brief order in which it reinstated the marriage of Hadiya and Shafin Jahan while setting aside Kerela High Court’s order that annulled Hadiya’s marriage. The apex court allowed NIA to continue its investigation with respect to criminality of the situation albeit with the rider that the same should not encroach upon marital status of the couple. The court held that “The right to marry a person of one’s choice is integral to Article 21 of the Constitution.” The majority judgment, from a three-judge bench, was written by Chief Justice Dipak Misra and Justice Khanwalkar supplemented by Justice DY Chandrachud’s separate concurrent judgement.

Further Reading:
  1. Ananthakrishnan G, Right to marry person of one’s choice is integral to right to life & liberty: SC on Hadiya case, The Indian Express (April 10, 2018).
  2. The Wire Staff, Supreme Court Restores Hadiya’s Marriage, Sets Aside Kerela HC Order, The Wire (March 8, 2018).
  3. The Editorial Board, Supreme order, The Indian Express (April 11, 2018).
  4. Alok Prasanna Kumaar, Supreme Court has still not acknowledged its own role in subjecting Hadiya to a ‘judicial affront’, Scroll.in (April 13, 2018).

ICYMI

Lok Prahari: A Struggle for Legislative Accountability and Reform
By Hrishika Jain
The Supreme Court’s [‘SC’] decision in Lok Prahari v. Union of India marks an important addition to electoral reform jurisprudence in India.
Hrishika Jain examines the decision and assesses its implications [...]
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Birth of the Indian Supreme Court
By B.V. Nagarathna
The book “Supreme Court of India – The Beginnings” is a study of the role of the Federal Court in India, which was the precursor to the Supreme Court, and the initial years of the Supreme Court. This book has been edited and introduced by Mr. Vikram Raghavan and Mr. Vasujit Ram.
Justice B V Nagrathna, a judge at the High Court of Karnataka gives a speech at the event of the book release in Bangalore [...]
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The Legal Regime and Political Economy of Land Rights of Scheduled Tribes in the Scheduled Areas of India
By Namita Wahi
The CPR Land Rights Initiative report on The legal and political economy of land rights of Scheduled Tribes in the Scheduled Areas of India’, delineates a conflicting regime of protective and displacing laws, as well as conflicting policy narratives underlying these laws which facilitate the displacement of Scheduled Tribes and their corresponding landlessness. [...]
 
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Reflections of an American lawyer in India
By Susan L. Karamanian
The author visits Tamil Nadu National Law School in Tiruchirappalli (Trichy), India to teach a short course on international law, focusing on issues such as the value of a US perspective on law, in general, to Indian law students and lawyers [...]
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We thank Gayatri Gupta and Chitkrishna Thakkar for their assistance in collating the data, and Benjamin Vanlalvena for designing this newsletter.
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