Legal Updates

16th May to 31st May
Issue 24
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  • Four new judges appointed to Supreme Court of India
Four new judges took oath as justices of the Supreme Court, taking the number to the full sanctioned strength of 31. These four judges are Justices BR Gavai, Justice Surya Kant, Justice Aniruddha Bose and Justice AS Bopanna. Prior to their appointment at Supreme Court, Justice BR Gavai was a judge at the Bombay High Court, Justice Surya Kant was the Chief Justice of Himachal Pradesh High Court, Justice Aniruddha Bose was the Chief Justice of Jharkhand High Court and Justice AS Bopanna was the Chief Justice of Gauhati High Court. In the order of seniority, Justice Gavai and Justice Kant will also serve as the Chief Justice of India for a little over six months and one year respectively. With the appointment of Justice Gavai, Supreme Court has a judge from the Scheduled Caste community after nine years. Justice Gavai will also be the second Chief Justice of India from the Scheduled Caste community.

Further Reading:
  1. Legal Correspondent, Four new Supreme Court judges sworn in, The Hindu (May 24, 2019).
  2. Press Trust of India, Supreme Court To Have Full Strength Of Judges For First Time Since 2008, NDTV (May 23, 2019).
  3. Utkarsh Anand, CJI Gogoi Attains Rare Feat, Oversees Appointment of 10 Supreme Court Judges In His Eight-Month Tenure, News18 (May 22, 2019).
  4. Live Law News Network, With Justice Gavai's Appointment, SC Gets A Dalit Judge After Nine Years, (May 24, 2019).
  5. Bar & Bench Staff, Another rumour or a Collegium controversy? Justice AK Goel's objection to the appointment of Justice Surya Kant, Bar & Bench (January 21, 2019).
  6. Dushyant Dave, Collegium - Thy name is Reciprocity, Bar & Bench (May 16, 2019).
  7. Nitish Kashyap, BCI Defends Collegium Decisions To Elevate Justices BR Gavai, Surya Kant To SC And Vishal Mishra To MP HC, (May 16, 2019).
  8. Vakasha Sachdev, How are judges of the Supreme Court appointed and removed?, The Quint (February 28, 2019).
  • Taiwan becomes the first Asian country to legalise same-sex marriage
Taiwan’s parliament, the Legislative Yuan of the Republic of China (Taiwan), passed a bill legalising same-sex marriage. With this, Taiwan became the first country in Asia and 29th in the world to do so. The bill offers limited adoption rights to same-sex couples, allowing adoption of the biological children of the partner. It has received a positive response from the members of the LGBTQ community in Taiwan. In 2017, the highest court of the country, the Judicial Yuan, ruled that same-sex marriage must be legalised in the country within two years. But in some referendums in 2018, the Taiwanese electorate voted against same-sex marriage. However, the parliament complied with the court’s judgment and made a law in its accordance. Notably, the bill was passed on the International Day Against Homophobia, Transphobia and Biphobia.

Further Reading:
  1. Thomas DeLorenzo, Taiwan parliament legalizes same-sex marriage, Jurist (May 17, 2019).
  2. Bonnie Chiu, Why Taiwan Became First In Asia To Legalize Same-Sex Marriage, Forbes (May 22, 2019).
  3. Amy Adamczyk, Why are some places gay-friendly and not others?, BBC News (May 29, 2019).
  4. Faisal C.K., Can Apollo Marry Hyacinth In India?, (May 24, 2019).
  5. Josie Green, 29 countries where same sex marriage is officially legal, USA Today (June 13, 2019).
  • High Court of Kenya refuses to decriminalize homosexuality
A three-judge panel comprising Judges Roselyne Aburili, E.C. Mwita and John M. Mativo upheld the constitutional validity of Sections 162 and 165 of the Kenyan Penal Code. Section 162 criminalizes any person from having carnal knowledge of any person against the order of nature and Section 165 forbids acts of “gross indecency” between two male persons. The Court held that the two provisions of the Penal Code were not vague and that the petitioners failed to prove the discriminatory nature of the provisions. The Court noted also that there was no evidence which proved that the petitioners were discriminated against. This judgment of the Kenyan High Court drew widespread criticism from activists who describe it as a regressive step in the development of an inclusive Kenyan human rights jurisprudence. The petitioners later expressed that the judgment would be challenged in the Supreme Court of Kenya.

Further Reading:
  1. John Ndiso, Kenya’s high court unanimously upholds ban on gay sex, Reuters (May 24, 2019).
  2. Tom Batchelor, Kenya refuses to overturn ban on gay sex, Independent (May 24, 2019).
  3. Bahiru Shewaye and Arit Okpo, What Kenya’s continued gay sex ban means for Africa’s LGBT+ movements, Thomas Reuters Foundation (May 30, 2019).
  4. George Wafula, Gay Rights in Kenya: ‘Why our fight isn’t over’, BBC (May 25, 2019).
  5. News report, Kenya: Court Upholds Archaic Anti-Homosexuality Laws, Human Rights Watch (May 24, 2019).
  6. Adriaan van Klinken, Homosexuality remains illegal in Kenya as court rejects LGBT petition, The Conversation (May 25, 2019).
  7. Gautam Bhatia, Notes from a foreign field: A Critique of the Kenyan High Court’s Homosexuality Judgment, Indian Constitutional Law and Philosophy (May 28, 2019).
  • Alabama passes bill bringing near total ban on abortions
Alabama Governor Kay Ivey signed a bill bringing a near total ban on abortion. The bill, known as the Alabama Human Protection Act, criminalises abortion in almost all circumstances, including pregnancies by rape or incest. The only exception to the ban is where the woman’s health is at serious risk. The bill is an attempt to overturn the effect of Roe v. Wade, the case that legalized abortions in the United States of America. The bill is a part of a recent surge in “heartbeat” bills in the United States of America that ban abortions as soon as fetal heartbeat is detected. These bills are being criticized for depriving women of their right to choose what to do with their bodies. Planned Parenthood Federation of America and the American Civil Liberties Union (ACLU) have challenged the bill in the federal court of Alabama. Planned Parenthood provides women’s healthcare and abortion services, while ACLU is a non-profit organization that defends civil rights of people in courts.

Further Reading:
  1. Thomas DeLorenzo, Alabama governor signs near total abortion ban, Jurist (May 16, 2019).
  2. Anna North and Catherine Kim, The “heartbeat” bills that could ban almost all abortions, explained, Vox (May 30, 2019).
  3. Amanda Klasing, Alabama’s Abortion Ban Is A Dark Day for Women, Human Rights Watch (May 15, 2019).
  4. Michelle Oberman and W. David Ball, When We Talk About Abortion, Let’s Talk About Men, The New York Times (June 2, 2019).
  5. Carrie Sheffield, Alabama's abortion law addresses an urgent human rights issue, CNN (May 18, 2019).
  6. Katie O’Malley, Abortion Law: Which Countries Have The Strictest Laws And What Are The Punishments?, Independent (May 30, 2019).
  • Delhi High Court sets aside “Leave India notice” issued to Pakistani woman married to an Indian man
A Division Bench in Delhi High Court quashed the ‘Leave India notice’ issued to a Pakistani woman married to an Indian man and residing in India with her husband and her two children. Mrs. Nausheen had been residing in India since 2005 and holds a Long-Term Visa for staying in India until June 2020. However, in February 2019, she received a ‘Leave India Notice’ from the Ministry of Home Affairs which required her to leave India within 15 days. Her husband challenged the notice before the Delhi High Court by way of a writ petition but the same was dismissed by a Single Judge Bench. An appeal against the order of Single Judge Bench was filed in the Division Bench of the Delhi High Court. The court held that Article 21 of the Constitution of India encompasses the right of children to live with their mother and the right of husband to consortium with his wife, and they cannot be deprived of the same by the state in an authoritarian manner without following due procedure.

Further Reading:
  1. Ashok Kini, Right Of Husband/Children To Live With Wife/Mother Is A Fundamental Right: Delhi HC Quashes 'Leave India Notice' Served On Pakistani Woman [Read Judgment], (May 30, 2019).
  2. Press Trust of India, Delhi HC sets aside 'leave India notice' issued to Pakistan woman, The Tribune (May 28, 2019).
  3. Staff Reporter, No relief to Pak woman issued ‘leave India notice’ by Centre, The Hindu (March 01, 2019).
  4. Dushyant, Rights beyond borders, Bangalore Mirror (May 31, 2019).
  • Supreme Court of India issues directions to the National Register of Citizens (NRC)
A vacation bench of the Supreme Court comprising Chief Justice Ranjan Gogoi and Justice Aniruddha Bose instructed the State Coordinator of National Registration (NRC Assam) Prateek Hajela to ensure that the hearing of claims and objections with respect to the National Register are carried out in accordance with law in a time bound manner to meet the deadline. The Court also directed the State Coordinator to ensure that affected parties get a fair hearing and the opportunity to produce relevant documents. These directions emanated from the Court taking cognizance of news reports disclosing the pronouncement of Retired Honorary Captain Mohammed Sanaullah, a Kargil veteran, as a “foreigner” by a Foreigner’s Tribunal. However, the Court reiterated that the deadline for publication of the citizens list would remain 31st July 2019.

Further Reading:
  1. Legal Correspondent, Give fair hearing to those not included in the NRC, SC tells Assam, The Hindu (May 30, 2019).     
  2. Shaswati Das, What is National Register of Citizens (NRC) of Assam, Livemint (July 30, 2018).
  3. Sangeeta Barooah Pisharoty, The NRC and Citizenship Bill Have Fuelled Old, Divisive Anxieties in Assam, The Wire (July 25, 2018).
  4. Joyeeta Bhattacharjee, NRC issue has the potential to disturb peace in Assam, Observer Research Foundation (August 23, 2018).  
  5. Ipsita Chakravarty, Explainer: What will happen to the 40 lakh people left out of Assam’s draft Register of Citizens, (July 30, 2018).
  6. Hiren Gohain, It’s Important to Know the History of the NRC Before Passing Judgment on It, The Wire (August 08, 2018). 
  7. Pushpita Das, Publication of the National Register of Citizens: a positive step, but what next, Institute for Defence Studies and Analysis (January 04, 2018).
  8. Jaideep Mazumdar, Why Critics of Assam’s NRC Are Terribly Wrong, Swarajya (August 01, 2018).
  • Justice Madan B. Lokur appointed to the Supreme Court of Fiji
Justice (retired) Madan B. Lokur was appointed judge to the non-residential panel of the Supreme Court of Fiji. He will join the panel on 15th August 2019 and will remain in service for three years. Justice Lokur served on the Indian Supreme Court for a period of six and a half years, presiding over a bench renowned for its social justice approach to issues. He enrolled with the Bar Council of India in 1977 and practicing in the Supreme Court and the Delhi High Court. He began his judicial career as additional judge of the Delhi High Court in 1999. Justice Lokur was also part of the  judges’ press conference which came down heavily on the way the Supreme Court was being administered by the then Chief Justice (retired) Dipak Mishra.

Further Reading:
  1. Amarnath K. Menon, Justice Madan Lokur made non-resident judge of Fiji Supreme Court, India Today (May 16, 2019).  Gopal Sankaranarayanan, Justice Madan B. Lokur The Court’s Aristocrat, The Wire (Jan 07, 2019).  
  2. Ashok Bagriya, A year after landmark press conference, little has changed in the Supreme Court’s running, Hindustan Times (Jan 12, 2019).
  3. Kevin James, A Year after Four SC Judges’ Press Conference, Is Democracy Still in Danger, The Wire (Jan 12, 2019).
We thank Kanu Garg and Jonathan Rajan 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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