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Juris Diurna

1st June to 15th June
{2018}
Issue 5
Hi, welcome to our legal newsletter Juris Diurna, we publish this newsletter fortnightly.
  • SC temporarily allows reservation in promotions for SC/ST employees, as per law
The Supreme Court today temporarily permitted the Centre to allow reservation in promotions for its SC/ST employees “in accordance with law”. The vacation bench of justices AK Goel and Ashok Bhushan has passed the interim order till the constitution bench finally rules on the issue. The Supreme Court was hearing the Centre’s plea in connection with the Delhi high court’s judgement dated August 23, 2017 that quashed an office memorandum on such reservations [as per the Article 16(4A) of the Constitution] and had restrained the Union government from granting reservation in promotion without first collecting the data on inadequate representation. The high court judgement relied heavily on M. Nagaraj v. UOI wherein it held that the state must demonstrate backwardness, inadequacy of representation and maintenance of efficiency before providing reservation in promotions. However, the Supreme Court has not stayed the Delhi high court order dated August 23, 2017.

Further reading:
  1. PTI, Reservation in Promotions for SCs/STs Can Now Be Implemented, Says Supreme Court, The Wire (June 7, 2018).
  2. The Print Team, SC’s interim order on reservation in promotion: Implementable orpremature?, The Print (June 6, 2018).
  3. Faizan Mustafa, Questions of promotion, The Hindu (June 9, 2018).
  4. Ananthakrishnan G, Nagaraj: The law on SC/ST promotions, The Indian Express (June 7, 2018).
  5. Gautam Bhatia, Reservations, Equality and the Constitution – VII: Exploring the Boundaries in M. Nagaraj, Indian Constitutional Law and Philosophy (March 27, 2014).
  6. Anup Surendranath, Winning the case for promotion quotas, The Hindu (September 6, 2012).
  7. Madhav Khosla, ‘Promotion quota seeks equality of outcome’, The Hindu (September 12, 2012).
  8. Scroll Staff, Centre asks departments, states to implement Supreme Court order allowing quota in SC/ST promotions, Scroll.in (June 15, 2018).
  • Law Minister proposes national level test for entry into lower judiciary

Law Minister Ravi Shankar Prasad has proposed a national level entrance test in order to help talent infusion in the lower judiciary. He also mentioned that the same would facilitate the entry of young lawyers from national law universities into the lower judiciary. Last year, the Apex court had taken  cognizance of the issue of central selection mechanisms for the lower judiciary based on a letter issued by law ministry. In furtherance of the same, Mr Arvind Datar was appointed as Amicus Curiae and had submitted a concept note supporting the proposal.


Further reading:
  1. Amit Anant Choudary, All India common test for selection of lower court judges a need of the hour, says Supreme Court, Times of India (August 4, 2017)
  2. Meera Emmauel, Amicus Arvind Datar suggests All-India District Judges Recruitment Exam, Bar & Bench (August 5, 2017)
  3. Diksha Sanyal, Nitika Khaitan, Shalini Seetharam, Shriyam Gupta, Ranking lower court appointments, Vidhi Centre for legal Policy (October 2017)
  4. Apoorv Mahanadi, Neither Centre, Nor States Responsible For Judicial Vacancies; Need All-India Test For Lower Judiciary: Law Minister Ravi Shankar Prasad, Live Law (June 12, 2018)
  • Power tussle over Delhi governance escalates as uncertainty about the national capital's constitutional status continues
Power tussle between Centre and Delhi Government continues as Delhi Chief Minister and ministers sit on a Dharna outside the Lieutenant governor’s office. The bone of contention here is the question of who enjoys supremacy in governance over the national capital. The Delhi High Court relying on constitutional scheme and Article 239AA of the Indian constitution had held that the governor has supremacy. This was challenged in the Apex court wherein the arguments went on for 12 days and as of now the judgment is reserved.

Further Reading:
  1. Dr Yogesh Pratap Singh & Dr. Afroz Alam, Constitutional Dilemma of Delhi, Live Law (October 25, 2016)
  2. Legal Correspondent, SC reserves Verdict on Delhi-Centre Power Spat, The Hindu (December 06, 2017) 
  3. Vasudevan Devadasan, Guest Post: Government of Delhi vs Union of India- III: The Executive Relationship, Indian Constitutional Law and Philosophy (November 15, 2017)
  4. PTI, Tussle over Delhi governance escalates despite High Court verdict holding L-G as head, The Indian Express (June 12, 2018)
  • Kerela HC refuses to interfere in Habeas Corpus petition by mother of transgender and recognizes gender identity
The Kerela high court declined to issue a Habeas Corpus writ as prayed by the mother of a transgender person and allowed the individual to be identified as a female as per her choice. The decision taken by the bench comprising of Justice V. Chitambaresh and Justice K.P. Jyothindranath observed that all trans people have “the right to wander about or associate with likeminded people”. The judgement also stated that freedom of speech and expression guaranteed under Article 19(1) (a) also includes the right of a person to identify and live as a transgender person while referring to the landmark NALSA judgement. However, the order of the court to conduct medical/psychological evaluation of the detenu after it was alleged by the petitioner that the detenu was a psychiatric patient was highly criticised as it was considered as an invasive evaluation.

Further Reading:
  1. Special Correspondent, State should protect rights of transgenders: HC, The Hindu (June 12, 2018).
  2. Shreya Ila Anasuya, Kerala HC Rejects Petition to Allow Adult Trans Woman Into Mother’s Custody, The Wire (June 8, 2018).
  3. Deya Bhattacharya, Kerala HC Verdict On Transgender Identity Begs Question: Why Has State Failed To Formulate NALSA Judgment Into Law?, Firstpost.com (June 15, 2018).
  4. Sruthisagar Yamunan, Has the Kerala High Court crossed the line by ordering psychological test on a trans woman?, Scroll.in  (June 6, 2018).
  5. TA Ameerudheen, ‘I felt humiliated’: Kerala trans woman hopes court will stop ordering medical tests to check gender, Scroll.in (June 10, 2018).
  6. Danish Sheikh, National Legal Services Authority versus Union of India- Preliminary Reactions, Law And Other Things (April 15, 2014).
  • European Court of Justice backs residency rights for same-sex couples

The European Court of Justice in a landmark ruling has held that same-sex married couples have the same rights under EU freedom of residence legislation as heterosexual married couples, even if same-sex marriage is not recognized in the concerned country. EU laws on freedom of movement extend to the non-European spouses of EU citizens and the ECJ judgement means that the term ‘spouse’ also includes spouses of the same sex. The court recognised that EU member states have the freedom to decide whether or not to allow same-sex marriages but that freedom needs to be consistent with EU law, in particular the right to free movement and residence.
The court was deciding the Coman case which concerned the refusal of Romanian authorities to grant residency rights to a male U.S. national, Robert Hamilton, who was married to Relu Coman, a Romanian national. Romania does not recognize same-sex marriages. This decision came a day after the United States Supreme Court ruled in favour of a Colorado baker who refused to bake a cake to celebrate the marriage of a same-sex couple because of a religious objection.

Further Reading:
  1. Kit Gillet, Same-Sex Marriages Are Backed in E.U. Immigration Ruling, The New York Times (June 5, 2018).
  2. Dr. Alina Tryfonidou, Rights for same-sex married couples to move around the EU confirmed in landmark ruling, The Conversation, (June 6, 2018).
  3. Steve Peers, Love wins in the CJEU: Same Sex Marriages and EU free movement law, EU Law Analysis, (June 5, 2018).
  4. Dr. Alina Tryfonidou, Awaiting the ECJ Judgment in Coman: Towards the Cross-Border Legal Recognition of Same-Sex Marriages in the EU?, EU Law Analysis, (March 5, 2017).
  5. Adam Liptak, In Narrow Decision, Supreme Court Sides With Baker Who Turned Away Gay Couple, The New York Times (June 4, 2018).

ICYMI

The Inter-Linking Of Rivers Project: Eroding The Constitution One River At A Time
By Rudresh Mandal
The author discusses the inter-linking of rivers, focuses on various constitutional issues surrounding the same and talks about the  National Waterways Project.
Read More
ICON’s special issue on Asia (freely downloadable)
By Tarunabh Khaitan
The International Journal of Constitutional Law has just published its special issue on Asian law on its website. The entire issue is freely available for a limited time, and much of the content relates to India, including Tarunabh Khaitan's article on directive principles as an accommodation tool.
Read More
2017 in review: How did the Supreme Court fare on the question of Fundamental Rights
By Lovish Garg
2017 was a rather eventful year of the Supreme Court of India which delivered some important and unexpected judgments. The Rights in Review report by the Centre for Law and Policy Research critically analyses the key Supreme Court cases of 2017 relating to Fundamental Rights to assess if they have advanced the constitutional mandate for a robust protection of cardinal civil, political and socio-economic life.
Read More
‘I decide who I am’ : The Self-Identification Question in The Transgender Persons (Protection of Rights) Bill, 2016
By Mihika Poddar
The Transgender Persons (Protection of Rights) Bill, 2016 (‘the Bill’), has failed the transgender community, and severely waters down the guarantees of the NALSA judgement. The author takes a comparative law approach and analyses the Bill.
Read More
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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