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Legal Updates

1st September to 15th September
{2018}
Issue 11
Hi, welcome to our legal newsletter, we publish this newsletter fortnightly.
  • The Supreme Court strikes down S. 377; decriminalises homosexuality
A five-judge bench of the Supreme Court led by Chief Justice Dipak Misra and comprising of Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, gave four separate but concurring judgements partially striking down Section 377 of the Indian Penal Code. The Apex Court, in the landmark case of Navtej Singh Johar & Ors. v. Union of India held that Section 377, insofar as it penalizes any consensual sexual relationship between two adults, be it homosexuals, heterosexuals or lesbians- is unconstitutional. The Constitutional bench overturned the decision in the Suresh Kumar Koushal case and held Section 377 to be “irrational, indefensible and manifestly arbitrary” and violative of Articles 14, 15, 19 and 21.

Further Reading:
  1. Krishnadas Rajagopal, Section 377 will not apply to consensual same-sex acts, says Supreme Court, The Hindu, (September 6, 2018).
  2. Express Web Desk, From 1861 to 2018: A timeline of Section 377, The Indian Express (July 10, 2018).
  3. The Wire Staff, A Look Back at Those Who Aided, and Hindered, the Fight Against Section 377, The Wire (September 6, 2018).
  4. Arundhati Katju, Rights over wrong, The Indian Express (September 8, 2018).
  5. Gautam Bhatia, “Civilization has been brutal”: Navtej Johar, Section 377, and the Supreme Court’s Moment of Atonement, Indian Constitutional Law and Philosophy (September 6, 2018).
  6. Symposium: Section 377, Law and Other Things (Editorial note: Symposia on Section 377 and Mob Lynching has recently been started by LAOT. Check out the Symposia for an important new work by Professor Upendra Baxi.)
  • Apex Court Modifies previously issued guidelines to prevent misuse of Section 498A IPC, Dowry Death
In July 2017, a two judge bench of the Supreme Court had issued guidelines to prevent the misuse of the provision relating to dowry death. The decision was viewed as curtailing the rights of victims of dowry death, perpetrating stereotypes and attracted substantial criticism. The Apex Court on14th September, 2018, in the case of Social Action Forum v. Union of India, modified the guidelines and set aside the direction to constitute family welfare committees (FWC), without whose report no arrest could previously be made. The Court observed that the FWC was an extra-judicial authority and cannot perform the functions of the police and court. It held that previous guidelines as mentioned in Arnesh Kumar and Lalita Kumari should be followed, wherein the Court had observed that arrests should only be made once the police officer is satisfied about the necessity of the arrest, as mentioned in Section 41 of CrPC, and a preliminary enquiry may be held in matrimonial/family disputes.

Further Reading:
  1. Jyotika Kalra, Misuse of Dowry Laws and failure of the system, The Hindu (August 07, 2018).
  2. Sanjay Ghose, Supreme Court Order on Domestic Abuse Cases Is a Step Back for Women's Rights Law, The Wire (July 31, 2017).
  3. Shalini Nair, 498A, battered, The Indian Express (June 26, 2018).
  4. Manu Sebastian, Sec.498A IPC : Only HC Can Quash Cases On Settlement; A Third Agency Created By Courts Can’t Exercise Statutory Functions: SC, Live Law (September 14, 2018).
  5. Express news service, Misuse of anti-dowry law: Apex court sets aside direction on welfare panels before arrest, The Indian Express (September 15, 2018).
  • Ramdas Athawale to move SC over directive to refrain from using the word ‘Dalit’
Ramdas Athawale has announced that his party, The Republican Party of India will approach Supreme Court against a Bombay High Court directive to the government to refrain from using the word ‘Dalit’ officially and in the media. Following the court order, the Information and Broadcasting ministry had issued an advisory to private TV channels, asking them to “refrain from using the nomenclature ‘Dalit’ while referring to members of the Scheduled Castes in compliance with the direction of the Bombay High Court”. Dalit groups have opposed the I&B ministry’s orders, asserting that the term holds political significance. Earlier, Ministry of Social Justice and Empowerment had issued a notification directing the government to use the term ‘Scheduled Castes’ for all official communications.

Further Reading:
  1. Special Correspondent, Athawale to go to Supreme Court over bar on ‘Dalit’, The Hindu (September 4, 2018).
  2. Editorial Board, What’s in a name?: on the use of the term ‘Dalit’, The Indian Express (September 6, 2018).
  3. Sukanya Shantha, ‘If Community Recognises Itself As ‘Dalit’, How Can Court, Government Dictate Terms?’, The Wire (September 4, 2018).
  4. Adrija Roychowdhury, Why Dalits want to hold on to Dalit, not Harijan, not SC, The Indian Express (September 5, 2018).
  5. Alok Prasanna Kumar, I&B Ministry’s Fiat on Use of ‘Dalit’: Ignorance or Hidden Agenda, hhhhThe Quint (September 11, 2018).
  • Justice Ranjan Gogoi appointed as new CJI of India
The president has appointed Justice Ranjan Gogoi as the 46th Chief Justice of India (CJI) and  he will begin his term from 3rd October, 2018 after the incumbent CJI, Dipak Mishra retires. He is also one of the four judges who held the historic press conference expressing concerns about the administration of the Supreme Court. The appointment has put to rest the fears of him being superseded. Notably, he will be the 1st CJI hailing from the North East.

Further Reading:
  1. Krishnadas Rajagopal, Justice Rajan Gogoi appointed new Chief Justice of India, The Hindu (September 13, 2018).
  2. Seema Chishti, Colleagues on Justice Gogoi: ‘He is a no-nonsense judge… a big heart who thinks with his mind’, The Indian Express (September 13, 2018).
  3. Vakasha Sachdev, Big SC Moments of Justice Gogoi- ‘Noisy’ Judge and CJI-in-waiting, The Quint (September 14, 2018).
  4. Vaksha Sachdev, How is the Chief Justice of India appointed, The Quint (June 30, 2018).
  • Supreme Court dismisses petition seeking ban on Malayalam novel ‘Meesha’
The Supreme Court dismissed a petition seeking a ban of the Malayalam book ‘Meesha’ for its alleged objectionable portrayal of women and temple priests, hurting sentiments of a particular faith/ community. A bench comprising of CJI Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud, in the case of N. Radhakrishnan v. Union of India & others, said that a book “should not be read in a fragmented manner” and opposed the culture of banning books as it impacted free flow of ideas. The bench also observed that before imposing any restriction on the freedom enjoyed by an author, it was the duty of the court to “see whether there is really something that comes within the ambit and sweep of Article 19(2).”

Further Reading:
  1. PTI, ‘Bans Restrict Free Flow of Ideas’: SC Dismisses Plea Against Malayalam Novel ‘Meesha’, The Wire (September 5, 2018).
  2. Ashok Kini, “We Live Not In A Totalitarian Regime But In A Democratic Nation’; SC Calls Upon Readers of Literature To Be More Mature, Humane and Tolerant”, LiveLaw.in (September 5, 2018).
  3. Amrith Lal, The Sorcerer’s Tale, The Indian Express (September 2, 2018).
  4. Gautam Bhatia, The Meesha Judgement: Book Bans and the Supreme Court’s Dangerous Grandstanding, Indian Constitutional Law and Philosophy (September 5, 2018).
  • Follow NALSA scheme for compensating child abuse survivors: SC
The Supreme Court while hearing the case Nipuna Saxena & Anr v. Union of India & Ors ordered that the National Legal Services Authority’s (NALSA) scheme for compensating sexual assault and acid attacks victims should be used by special courts in awarding compensation to minor victims of sexual abuse. This direction will continue till the Centre finalises rules for awarding compensation under the Protection of Children from Sexual Offences (POCSO) Act. The order stated that the guidelines under the NALSA’s ‘Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes- 2018’ for minors will become operational across the country from October 2, 2018.
 
Further Reading:
  1. Live Law News Network, SC Approves NALSA Suggestion Of Minimum Rs 4 Lakh Compensation For Women Victims Of Sexual Assault; Extends It To Minors, Live Law (September 5, 2018).
  2. Krishnadas Rajagopal, Supreme Court bats for minor rape survivors, The Hindu (September 5, 2018).
  3. IANS, Supreme Court asks states for details of compensation to victims of sexual assault under Nirbhaya fund, FIRSTPOST (January 9,2018).
ICYMI
Examining the Legality and Limitations of Serving Summons via Text Messaging
By Anamika Kundu
In light of the several orders by High courts supporting technically innovative means of judicial proceedings, the author examines the legality and limitations of serving summons via text messaging.
Read More
Of Law and Politics in Delhi: A Recipe for Contempt of Court
By Pranav Verma
The author questions whether differences have arisen because the SC’s ruling leaves a genuine room for confusion regarding the broad contours of power-sharing between the office of the Lieutenant Governor of the National Capital Territory of Delhi. He analyses the actions of the LG after and in light of, the SC’s decision.
Read More
The Global Itineraries of Lynch Justice
By Upendra Baxi
Professor Upendra discusses mob lynching and illustrates how the resolution of a social problem merits adoption of means other than legal which lies in political and social fields.
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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