Former Congress Law Ministers Warn Against CJI Impeachment Motion
The main Opposition party Congress seems to be divided on the matter of initiating a motion to remove Chief Justice of India Dipak Misra from office.
While many leaders are in support of the proposal, which may be introduced in the Parliament by the Communist Party of India (Marxist), former law ministers of Congress have opposed such move.
Former Law Ministers Point Out Lack of Evidence
Veerapa Moily, former law minister in the UPA government, has stated that the issue of removing the CJI is not a political issue and any such motion must be supported by concrete evidence.
According to a news report, Moily said that unless there are “proper grounds” and “evidence is available”, it is not “proper to go for impeachment of the CJI” as it will not “serve the purpose.”
Ashwini Kumar also expressed a similar opinion stating that questions that were raised by the four judges of the apex court in the historic press conference do not merit for such motion.
He further noted that such a move will pit the executive against the judiciary.
Kumar pointed out that given the circumstances, the current case was not suitable for the “extreme remedy of impeachment” which he said can be resorted to only when “facts constituting moral turpitude are established beyond doubt.”
Executive Intervention Needed
CPM General Secretary Sitaram Yechuri had earlier stated that the party was conferring with other parties on the need for such a move.
He said that as the judiciary crisis was not yet resolved there was a “need to intervene” adding that the party was discussing with others “on the possibility of an impeachment motion against CJI in Budget session.”
Bombay High Court Quashes CBI Trial Court Media Gag Order in Sohrabuddin Shaikh Case
The Bombay High Court has set aside the trial court’s gag order banning journalists from both reporting and publishing the court proceedings related to the case of Sohrabuddin Shaikh fake encounter.
Justice Revati Mohite-Dere made it clear in her order that the special CBI court had overreached its powers in issuing the order.
She agreed with the petitioners who are a group of court reporters as well as the Union of Journalists that the Criminal Procedure Code had provided the right to issue such ban orders only to the high courts and the apex court.
According to Justice Mohite-Dere such an order could be issued only in rare cases and only for limited period of time. She further added that just a mere apprehension of sensationalism by the accused did not constitute sufficient ground for issuing such gag orders.
Gag Order Flouts Constitutional Right Of Freedom Of Expression
On November 29 last year, the special CBI court prohibited journalists from reporting or publishing the proceedings of the ongoing trial in the fake encounter case.
The CBI court order allowed journalists to attend the proceedings, but stated that they must not make public what had transpired in the courtroom.
Justice Mohite-Dere ruled that such a ban was unjustified and had breached a journalist’s constitutional right of freedom of expression.
In her ruling, she said that the rights of the press “are intrinsic with the constitutional right” guaranteeing freedom of expression. She added that while reporting an open trial, the press is not only availing of “its own right”, but is also serving “the larger purpose” of making available such information to the general public.
The judge also dismissed the objections to such reportage made by the accused in the case, stating that they had failed to prove to the court the existence of any legal provision for a trial court prohibiting the press from reporting.
Washington State Lawmakers Push For Changing Law Against Preparing For Nuclear War
Against the backdrop of rising nuclear tensions, Washington lawmakers are looking to overturn a 34-year-old law that bars the state from putting into place preparation plans for a nuclear attack.
The law was passed in 1984 as a symbolic measure for putting Cold War-era animosity to rest, but some state legislators now note that there’s little sense in pledging to be unprepared.
Sen. Mark Schoesler stated that such “sort of symbolism just isn’t necessary”, noting that the country must be ready for any disaster, calling it “common sense” .
Ninth Legislative District Rep. Mary Dye highlighted the measure had been appropriate for early ’80s, adding that now the country was facing “another despot and tyrant” who is determined to “build a long range successful nuclear weapon”, referring to North Korean leader Kim Jong Un.
Necessary To Have A Safety System In Case of Emergencies
According to Schoesler having the necessary infrastructure could save lives and prevent a breakdown in communications. He stated while false alarms are rare, establishing a procedure will minimize the chances of it occurring, in a reference to the recent misplaced mass emergency alert sent in Hawaii.
Bill Tensfeld, director of Whitman County Emergency Management, has said that Whitman County currently has a countywide emergency alert system but residents need sign up online to receive messages.
He added that even those who don’t sign up still receive messages for national and regional emergencies, such as Amber Alerts, since these are sent directly through cell towers by a separate agency. Tensfeld noted that the county still doesn’t have facility for sending automatic messages to residents who don’t sign up, but such a system is being planned.
Alert Messages Sent After Verification
In Tensfield’s opinion, catastrophes that could affect Whitman County could be a chemical spill or a large earthquake, noting that the region has typically been spared of real disasters.
He highlighted that the current software itself double checks with the person drafting the message before sending out the message. In case of a disaster, alerts are likely to be sent minutes after his department verifies the authenticity of the event. However Tensfeld noted there are no procedures currently available at the county level for handling a false alarm.
He added that while Whitman County is a relatively safe place, its better be prepared and sign up for the alerts.
A 15-Year-Old Law Could Be An Obstacle For PM Modi's Dream To Go All-Electric By 2030
The Narendra Modi government announced an ambitious target last year of allowing only electric cars in India by 2030.
The decision has been seen as a valiant effort to race ahead of even developed countries in giving prominence to renewable forms of energy. Transport Minister Nitin Gadkari has in fact warned the auto industry that the government will bulldoze its way through to reach the target .
Government Vehicles Being Replaced
As a measure to start the electric-vehicle (EV) revolution in India, state-owned Energy Efficiency Services (EESL) is replacing government vehicles that run on conventional fuels with EVs.
Last year Tata Motors won the tender of 10,000 electric cars floated by EESL. Although Mahindra initially lost the tender it later matched Tata Motors’ price to sell 150 e-Verito EVs to EESL.
The first phase of the roll out involving 500 cars has already started in Delhi. The second phase will see 9,500 electric cars being leased to government authorities on a pan-India basis.
However a major issue hampering the growth of EVs in the country is a law that bans charging stations from being installed in public spaces, unlike the case of petrol pumps.
The initial contract from the government to provide 250 electric charging stations in the first phase was won by Exicom Tele-systems. But it has so far installed around 80 and 90 AC (alternating current) facilities only in government buildings like the Shram Shakti Bhawan, which contains the power ministry, according to a local news report.
Current Legislation A Hindrance
The Electricity Act only allows only power distribution companies to sell electricity, Kanv Garg, director for electric mobility at advisory firm, EY pointed out.
Garg stated that under current regulations neither private parties nor government entities can set up charging infrastructure. The entities need to have possess either a deemed license or be set up as “a public-private partnership with the state utilities.”
According to Garg, the clause in the Electricity Act should be amended if the government is looking to roll out an effective national electric vehicles policy.
He has opined that the government must “exempt electric vehicle charging from the Electricity Act,” and consider EV charging as a “sale of service instead of resale of electricity”, which is banned under the Electricity Act.
To meet the all-electric-car target, India would need ramp up infrastructure in a major way. As the operating range of electric vehicles is currently low, India would require a massive charging infrastructure, creation of which can occur only with a clear-cut policy.
UP Government’s Withdrawal of Criminal Cases Against Politicians Fails Legal Precedent
The Yogi Adityanath government in Uttar Pradesh recently passed a legislation that permits the withdrawal of nearly 20,000 cases filed against politicians in the state on the grounds that they are politically motivated.
One of the beneficiaries of this controversial move would be Yogi himself indicating a conflict of interest .
The Constitution expressly lays down a fundamental right “that one cannot be a witness against himself”, which indicates that the converse — one cannot be a judge in one’s own case – is also applicable, but this is being wantonly violated.
Politicians Cannot Be Penalized For Free Speech
The Yogi government’s measure reportedly targets cases related to public protests organized or attended by politicians violating orders pronounced by executive magistrates.
Several politicians in India face criminal cases that relate to unlawful assembly, wantonly giving provocation, rioting, obstructing public servant in discharge of public functions, promoting enmity between different groups on grounds, disobedience to order duly promulgated by public servant and destruction of public property.
Barring the promoting enmity and destruction of public property charges, all other offences are complicated to deal with as the right to protest is implicit in the right to free speech and assemble.
Political activity would become impossible in case politicians are convicted and jailed for protesting and thereby disqualified from public office. But not penalizing them is also an invitation for disorder, chaos and lawlessness. So far the Indian state has chosen to deal with such cases by keeping them in cold storage.
It is yet not clear how the recent order given by the Supreme Court as well as the central government diktat to set up special courts for dealing with cases involving politicians will affect the situation.
Withdrawal Of Cases Cannot Be Arbitrary
Under Section 321 of the Criminal Procedure Code the Public Prosecutor has been granted the leeway to withdraw from prosecution of offences with the consent of the court.
Governments have often withdrawn criminal cases on the grounds of public policy or in public interest. For instance the Gujarat government withdrew the cases filed against Patidar agitators .
However the rationale of Yogi government’s far-reaching Uttar Pradesh Criminal Law (Composition of Offences and Abatement of Trials) (Amendment) Bill, 2017, fails to satisfy the parameters used by earlier government orders like that of Gujarat.
Allahabad HC Ruling On Case Withdrawals
A case precedent exists for this situation. Last year the Allahabad High Court took up three key questions in a case:
Can a state government use the power of withdrawal under Section 321 in a whimsical or arbitrary manner or should it be exercised for the considerations “just, valid and judicially tenable”?
Are the decisions taken by the state government for the withdrawal of cases, communicated to the public prosecutor, open to judicial review or not
Should state government scrutiny various pending criminal cases to find out if they deserve withdrawal in exercise of powers under Section 321 CrPC regardless of the fact that neither the accused nor anyone else has approached the government for this purpose.
The bench answered these questions stating:
The state government cannot exercise its authority under Section 321 CrPC in a whimsical or arbitrary manner or for extraneous considerations, apart from just and valid reasons.
The decision taken by the state government for the withdrawal of the case, communicated to the public prosecutor, is open to judicial review.
The state government is free to make scrutiny of such cases and arrive at parameters to decide which cases can be withdrawn.
This judgement makes it clear that governments can’t proceed whimsically or arbitrarily and must make a case by case scrutiny of each case. Additionally, such decisions can be challenged for constitutionality.
In this case the UP government is free to conduct scrutiny of cases for withdrawal but its parameters for withdrawal must be able to withstand judicial scrutiny and not be arbitrary.
Cases Must Be Scrutinized Against Established Parameters
Several of the 20,000 cases have been pending for decades. Yogi should have taken the initiative to call for a wide ranging consultation on how to deal with political cases, and arrive at robust parameters like presence of hate speech, instigation of violence or nature of charges to decide if the cases can be disposed off or proceed ahead.
In the end, the discretion regarding the fate of the cases must lie entirely with prosecutors and judges. To ensure autonomy of the prosecution, a separate cadre could be created comprising prosecutors who are not political appointees.
Uttar Pradesh currently tops the country in number of under-trial prisoners with 55,000 prisoners or nearly one-fourth of all under-trial prisoners. Also around 13% of cases in UP have been pending for over 10 years while 24% has been for between 5 and 10 years according to the National Judicial Data Grid. Such problems of the common citizen must be the focus of Yogi Adityanath.
Fixing Canada’s ‘Ghost Immigrant’ Fraud Issue With Tax Measures
The recent ruling by Madame Justice Griffin of the B.C. Supreme Court in the Fu v. Zhu case highlighted the various schemes of immigration fraud and tax misrepresentations undertaken by both litigants.
These include falsifying rental and employment agreements to support a fraudulent claim of physical presence for immigration purposes as well as a multimillionaire declaring an income of less than $100 on his Canadian tax return.
Ghost Immigrants Flouting Tax Laws
Canada has witnessed an influx of wealthy “Ghost Immigrants,” as shown by a slew of recent cases.
These immigrants secure permanent residence and purchase properties in Canada, but then return to their home countries. Most of them don’t pay their legal worldwide tax obligation to Canada, while fraudulently claiming to meet the physical presence requirement to maintain permanent residence and qualify for citizenship along with accessing other benefits of Canadian life.
According to David S. Lesperance, an international tax and immigration expert, the following lessons can be learnt by Canadians and their government from the Fu v. Zhu case:
A common problem
Evading taxes is common but in this case the individuals are choosing to expose themselves rather than having been uncovered by an investigation.
A long lasting issue
The scam of fraudulently claiming to be physically present in Canada has been used for decades. According to Lesperance a document prepared by him in 1991 had detailed the same methods regarding circumvention of the permanent residence requirement.
Having Tighter border controls may not help
Canada Border Service investigations take up enormous resources and currently their investigations mostly uncover only “the most unsophisticated and lazy offenders” according to Lesperance.
To uncover the smarter physical presence frauds, there would be a need for massive investigation resources. However in that case the fraudsters will migrate “to the more sophisticated hard-to-detect techniques.” So CBS investigations may not be the answer, in Lesperance’s opinion.
Tax Audits Can Be An Effective Tool
The CRA has so far not strictly enforced worldwide taxation rules which is being exploited by the immigrant community. In a 1996 report, the CRA stated that it was “simply too difficult” to audit such cases and collect the taxes owed, Lesperance said.
However a range of recent changes have the potential to alter this situation:
Data-mining techniques that enable the cross-referencing of employment/business and asset information supplied by the immigrant to Canadian immigration officials
Canada’s a tax treaty (with an exchange of information clause) with Hong Kong in 2012
Canada’s tax treaty with China gaining more “potential” in the aftermath of the recent anti-corruption movement within China
CRA’s Whistleblower program covering whistleblowers on tax evasion collections
Easier lifestyle audits thanks to social media and on-line information
Significant increase in value of Canadian assets, giving CRA access to more seizable assets.
Increasing tax audits “would send shock waves through the hearts of those engaging in fraudulent behaviour” Lesperance said, adding that this measure would need not any legislative change and only a refocusing of CRA’s resources.
Replace Physical Presence Requirement With Tax Requirement
According to Lesperance , the second equally important action would be to replace the current unenforceable physical presence requirement in Canadian immigration and citizenship law with “tax residence”.
Under this if immigrants wish to maintain their permanent residence status or qualify for citizenship, they would have to declare themselves Canadian tax residents and pay the entire Canadian tax on their worldwide income.
Any under-reporting would result in a CRA audit. If found guilty of tax evasion, the immigrants will not only face the consequences of tax evasion but also lose their immigration status or be denied citizenship.
As a result of these measures, several of those currently gaming the system will soon realize that they may have to face the full force of Canadian taxation, Lesperance said, forcing them to voluntarily relinquish their Canadian immigration status as it would no longer be worth it.
False Idea of “Canadianized.”
As per Lesperance , such measures have not been taken in Canada so far due to “a lovely but unrealistic sentiment” that the new citizens must become “Canadianized,” for which they must be physically present in Canada.
However becoming genuinely “Canadianized” is a choice and has nothing to do with being physically present, he said.
Benefits of Tax Residence Regime
These measures will make it unnecessary for “expensive and intrusive efforts to enforce physical presence rules, with little actual benefit,” avoiding “mean massive disruption for all Canadians”.
Replacing physical presence with a tax residency regime can made attractive to international entrepreneurs may never meet the current physical presence requirements due to their business travel but would be willing to trade their current tax situation for the favourable one that Canada offers. Canada’s lack of estate, gift or wealth taxes can be an attractive option for American and European businesspeople who face such taxes in their country.
To ensure proper citizenship, it must however be ensured that the individual:
Pays their fair share of taxes
Is aware history, culture, social norms and legal obligations of Canadians tested via a citizenship test
Aadhaar Case: Supreme Court Calls For Balance Between Need For Privacy And National Interest
A balance needs to be struck between the right to privacy of citizens and the state interest the Supreme Court stated while hearing a plea involving Aadhaar’s constitutional validity.
The apex court stated that the biggest issue with respect to Aadhaar is ensuring that the data collected by the Unique Identification Authority of India is not misused or leaked. It also stated the data cannot be used to track people’s activities that are considered private but can be used to serve national interest.
Opponents of the scheme have contended that Aadhaar linkage can result in Indians facing a ‘Nazi regime and police raj’ with the government tracking the movements of people. They have demanded that the rights of citizens be protected against pervasive surveillance and violation of “informational privacy”.
Data Cannot Be Used For Surveillance
A Constitution bench comprising Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan called for a balance between the two interests given the need for protecting the country against issues like terrorism and money laundering and the need for government to spend crores on social welfare measures.
The bench also confirmed that like private companies government authorities also cannot use Aadhaar data for surveillance or tracking the movements of citizens since the Centre is bound by the Constitution.
Appearing for social activists, senior advocate Shyam Divan, called the Adhaar Act “ illegal and unconstitutional” adding that the project provided “an architecture for surveillance” and would lead to “an Orwellian state” where the government will be able to track citizens constantly.
Aadhaar Violating Citizens’ Privacy
The lawyer stated that the Aadhaar Act fails to offer any added protection while violating the right to privacy by asking individuals to “part with demographic as well as biometric information to private enrolling agencies”.
He said that allowing private entities to use the Aadhaar authentication platform was the breach of the citizen’s right to informational privacy. This violation was also occurring in the case of the mandatory authorization for availing of a subsidy.
The bench however inquired of the advocate why people would not want to share information under the Adhaar Act when they share information freely with private companies like Google which tracks preferences and choices.
Divan responded stating that it is the government’s duty to protect citizens and enact legislation against private firms for violating fundamental rights.
The Viewpoint: Asymmetric Dispute Resolution Clause
By Azadeh Meskarian, Solicitor at Zaiwalla & Co. LLP
The Viewpoint: Asymmetric Dispute Resolution Clause
By Azadeh Meskarian, Solicitor at Zaiwalla & Co. LLP (UK)
Following on from the recent decision of the Singapore Court of Appeal confirming the validity of asymmetric arbitration clauses in Dyna-Jet Pte Ltd v Wilson Taylor Asia Pacific Pte Ltd [2017] SGCA 32, this article considers the general enforceability of such clauses agreed between commercially sophisticated parties in England, Singapore and India.
One of the most attractive attributes of arbitration is that parties at the outset promise to refer any future disputes to arbitration prior to engaging themselves with the Courts of the relevant jurisdiction.
Equal rights of referral of disputes to arbitration where parties share the same rights is referred to as symmetrical. In contrast, unilateral arbitration agreements contain an element of optionality, to the benefit of one party.
In other words, one party has the option to choose the method of resolving disputes between the parties, with arbitration being one of them where as the other party will no benefit of such flexibility.
This is often the case where one party benefits of a higher bargaining power. In such cases parties are not obliged to initiate arbitration in cases of dispute, these are generally common in financial transactions.
Enforcement of clauses of such kind have proved tricky to enforce and uphold throughout years in some jurisdictions. Prior to the parties electing to include asymmetric arbitration clauses in their agreements, it is essential for them to seek local advice and examine any difficulties they may later face in enforcing such clauses.
Throughout the years Courts in certain jurisdictions such as Australia, Singapore and England have recognised such clauses, whereas enforcement has proved difficult in India, France and Russia.
England and Wales
In general the English Courts have through the years upheld the parties’ chosen dispute resolution method, be it in a form of a mutual or a unilateral arbitration clause. The general principle is for sophisticated parties to be free to choose their preferred route to dispute resolution.
In 2015 in the case of Barclays Bank Plc v Ente Nazionale di Previdenza Ed Assistenza dei Medici e Degli Odontoiatri [2015] EWHC 2857 (Comm) the Commercial Court upheld an asymmetric clause where with good practical reasons the Defendant was given an option to only bring an action in the English Courts, whereas Barclays Bank had a freedom of choice in this respect.
More recently in February 2017 the High Court upheld an asymmetric jurisdiction clause in the case of Commerzbank AG v Pauline Shipping and Liquimar Tankers Management Inc. In this case the clause was part of a shipping loan agreement and related guarantee, permitting the bank to bring enforcement proceedings in England against the borrowers, in spite of the fact that the borrowers had already started proceedings against the bank in Greece.
This recent ruling confirms that asymmetric jurisdiction clauses are categorised as exclusive jurisdiction clauses for the purposes of Article 31(2) the Brussels 1 Recast Regulations requiring an EU Member State Court to stay proceedings brought before it, until the Court within the jurisdiction of the parties’ agreement declares that it has no jurisdiction over the dispute.
This welcome decision further reflects that abusive litigations tactics will not be tolerated in the English Courts and the intention of parties will be highly valued by the Courts in the event of a dispute arising between the parties.
Singapore
The High Court and Court of Appeal have adopted a similar approach to that earlier taken in the English Courts.
In the case of Dyna-Jet Pte Ltd v Wilson Taylor Asia Pacific Pte Ltd [2017] SGCA 32, not only was the clause asymmetric by only providing Dyna-Jet Pte Ltd the power unilaterally to elect to refer a dispute to arbitration, it was also optional providing that any disputes “may” be referred to, and settled by arbitration.
The contract between the parties provided that any dispute should be settled by mutual consultation, failing which the Claimant may refer the dispute to be resolved by way of arbitration.
Failing to reach a settlement through consultation Dyna-Jet Pte Ltd had initiated proceedings against the Defendant in the Singapore High Court. In the course of this dispute, the Defendant sought unsuccessfully to stay the High Court proceedings, arguing that the dispute should be referred to and settled by arbitration.
In upholding the High Court’s decision, the Court of Appeal affirmed the enforceability in Singapore of unilateral arbitration clauses. The Court of Appeal held that the fact that the option to arbitrate was exerciseable by one of the parties only was irrelevant as this was an arrangement that suited both parties.
The Court further held that in cases of asymmetric arbitration agreements, the arbitration agreement becomes inoperative when the relevant party decides to initiate a Court claim instead of arbitration.
The Court will therefore refuse to stay any proceedings on grounds of the prior option to arbitrate any disputes once the relevant party with such option has commenced legal proceedings. Upon making the decision to commence legal action, it no longer has the option to go back on its election and to choose to initiate arbitration.
India
In contrast with the decision of the Singaporean and English Courts, the status of such clauses in India remains less certain following inconsistent decisions of the Indian Courts. Although some recent judgments have upheld asymmetric clauses, commercial parties should approach clauses of this nature with caution and seek local advice before adopting them in contracts.
In recent decisions in May and July 2017, the Bombay High Court and the Supreme Court of India respectively confirmed the validity of asymmetric clauses providing an option only to one party to appoint an arbitrator. However, Courts in Delhi have historically refused to uphold asymmetric arbitration agreements. Whilst upholding clauses of this kind would be consistent with trends in other common law jurisdictions which seek to give effect to the parties’ intention at the time of the formation of the contract, further clarity is needed from the Indian Courts.
The issue is of great importance, given the prevalence of such clauses in finance documents in such jurisdictions, which might lead to a nation court refusing to enforce an arbitration award on the basis that the arbitration agreement was invalid. It is therefore crucial for any party to consider the relevant jurisdictions where an award may have to be enforced prior to entering into an agreement. Although the inclusion of asymmetric clauses may be attractive to a party with greater bargaining power seeking flexibility in cases of disputes, a lack of careful consideration at the drafting stage may result in the agreement being unenforceable.
Prince Manvendra Singh Gohil Comes Openly Out About Being Gay And Vows To Fight To Reform India’s Anti-LGBT law
Indian prince Manvendra Singh Gohil, the only openly gay royal in the world, has made it his personal mission to campaign for reform of India’s anti-LGBT laws.
Hailing from the state of Gujarat, Mr Gohil, who came out in 2006 recently announced plans to open his palace as a community centre for LGBT people.
Currently Indian law criminalises sexual acts between members of the same sex, but the Supreme Court of India has ordered the relevant legislation to be reviewed in 2018.
According to Gohil although social change in India had been slow, things have been improving for young gay, lesbian and transgender people in India, noting that there had been “a huge change” in the 11 years since he came out.
He added that parents were more accepting and media was also reporting positive stories, which said was” a very good thing”. According to Gohil, such support for the community from society, will help them “win our rights.”
Public Outcry On His Admission
Eleven years ago, Gohil’s admission of homosexuality drew violent public retaliation and media backlash.
Recalling the reactions, he said that the public had “revolted”, with his effigies being burned and demands made for him to be socially boycotted and stripped of his title. His parents , the king and queen, released public notices stating that they would like to disown him and publicly disinherit him from the ancestral property.
Gohil said that the negative response was not entirely unexpected, and attributed it to ignorance in the country. He has said that he doesn’t blame Indians for “their lack of understanding” and considers his duty as “an activist” to “educate these people about what is the facts.”
Palace To Be A Community Centre For LGBT
Gohil’s proposed palace community centre intends to offer clinical services along with financial support and skills training for LGBT youth to become financially independent from their families. It also aims to offer free safe-sex seminars to young gay and lesbian Indians around the country.
Gohil hopes that it will become a key part of a campaign to fight for what he calls are “rights” enshrined in the Indian constitution.
In Gohil’s opinion, the anti-LGBT law in India will change primarily because the law was not entirely Indian to begin with. He pointed out that homosexuality existed in the Indian society “since bygone eras.”
According to him institutional anti-LGBT attitudes are the relic of British colonial rule and the influence of other religions like Islam and Christianity.
Mended Relationship With Parents
After over a decade of coming out, Gohil said he had since mended his relationship with his father, the king. His father has expressed support for his son’s plans and was present at the launch of the LGBT community centre to lay a foundation stone.
Gohil noted that his parents had realised their mistake acknowledging that they had threatened disowning him only “under societal pressure.”
New Pennsylvania Law Grants Adoptees Access To Birth Records
Adoptees born in the state of Pennsylvania have for the first time gained access to their birth certificates after a law passed over a year ago came into effect a few months ago.
Nearly 2,028 adoptees born in Pennsylvania have in the past two months received a summary of their original birth certificate as a result of a bill which Gov. Wolf signed into law in November 2016 that allows them to obtain it after paying a nominal fee, something that they could not do previously.
So far everyone else but the adoptees could access these birth records.
Result Of A Legal Battle Of Over Eight Years
The battle to change the law started with State Rep. Kerry Benninghoff ‘s efforts.
Benninghoff who is an adoptee himself had been forced to write “N/A” — not applicable — on medical history forms for years since he had no information regarding his birth parents.
Over years he grew frustrated with the failure to get information regarding his medical history, even as his kids struggled with epileptic episodes.
The state banned adoptees born in the state after 1984 from obtaining a copy of their original birth certificate without a court order. But in recent years many adoptees like Benninghoff have wanted to obtain their own birth records.
From 2010 onwards, Benninghoff has been working with advocacy groups to draft legislation that would reverse that 1984 policy.
His efforts gathered momentum particularly after he gained the support of State Rep. Katharine M. Watson from Bucks County, the chair of the House Children and Youth Committee, who is not only another adoptee but also an adoptive mother.
Watson called the information regarding birth parents as the “missing piece” of the puzzle for adoptees.
Bill Amended To Protect Birth Parents
To enable the passage of the bill, Benninghoff said, drafters of the legislation tacked on an amendment allowing birth parents to request the Department of Health to redact their name and other identifying information.
Since then, the department has received and granted 13 such requests.
According to Gregory Luce, an attorney and the founder of the Minneapolis-based Adoptee Rights Law Center, nationwide states have varying rules regarding access to records for adoptees.
Nine states have put in place “unrestricted” laws under which adoptees can get copies of their original birth certificates
Around 16 states have “compromise” laws like Pennsylvania’s
Remaining 26 states are “restricted,” in which adoptees can’t obtain their original birth certificate without a court order.
In December 2016, New Jersey legislators passed a bill similar that of Pennsylvania allowing adoptees to request their birth records and similarly grants redaction requests from birth parents. So far, 4,165 adoptees have requested their certificates in the state, while 558 birth parents requested redactions.
In December 2017, New York Gov. Andrew Cuomo, vetoed a bill that would have opened access to birth records for adoptees.
Privacy And Abortion Worries
Some interest groups, such as the American Civil Liberties Union of Pennsylvania and the Pennsylvania Catholic Conference, have opposed the Pennsylvania legislation.
The Catholic Conference has expressed concern that abortion rates would increase if birth parents’ anonymity wasn’t protected. Andy Hoover, the communications director for the ACLU of Pennsylvania, stated the group’s opposition was related to privacy for birth parents.
Luce, who is also an adoptee has noted that there’s no current law that protects the anonymity of birth parents, and further pointed out that finding a birth parent has become easier with at-home DNA testing becoming more common.
Adoptees Using All Avenues To Search For Their Parents
Adoption search angels like Priscilla Sharp help individuals to find a family member every day on an average.
Search angels help others to search for and contact biological family members.
Sharp placed her daughter for adoption at age 19 under pressure from the baby’s father and the hospital nuns but never quite got over it. She later successfully found her daughter and now helps other adoptees to discover more details about their birth parents.
With Pennsylvania’s new procedures for birth certificate she has now put Pennsylvania adoptees who have received the summary of their birth certificate as her first priority.
Another adoptee Lorna Pray, has created a Facebook group for adoptees from Pennsylvania who want to discuss and work together to search for biological family members, or simply to exchange notes on how to learn more about themselves.
Law Applicable To All Including Foreigners Supreme Court Ruling States
The Supreme Court has set aside the bail granted to a British national in an alleged murder case based on an order by the Punjab and Haryana High Court, stating that there was no reason for special consideration just because he was a foreigner.
The top court has also set aside the high court order which approved bail to two other co-accused in the 2015 murder case on the ground of parity. Law Clear On Need For Equality
A bench of Justices N V Ramana and S A Nazeer noted that as per the prosecution, British national Resham Chand Kaler along with the co-accused had allegedly indulged in criminal activity.
The bench pointed out that Section 439 of CrPC (relating to grant of bail) was very clear that “every accused is the same irrespective of their nationality,” adding that no special consideration can be given because he is a foreigner.
Kaler had approached the trial court for bail but after his plea was rejected he approached the high court which allowed him the relief in 2016. The complainant subsequently challenged the high court’s order by filing an appeal in the Supreme Court .
The state supported the complainant’s plea arguing that bail granted to the accused was against the “established tenets” under the bail jurisprudence.
High Court Failed To Appreciate Legal Aspects
The bench stated that despite Kaler not being a citizen of the country, “the fact remains” that he along with others had indulged in the criminal activity.
It also observed that it was unfortunate that the high court had failed to appreciate the facts of the case with “prudent legal perception”.
Setting aside the high court order, the bench ordered the “concerned police authorities” to take the first respondent into custody immediately.
Osho Trust Fraud Probe Transferred To EOW , Bombay High Court Informed
The Pune Police has told the Bombay High Court that the case related to the fraud and misappropriation of funds alleged in Osho Rajneesh Trust has been moved to its Economic Offences Wing (EOW).
The division bench led by Justice B R Gavai was told this while hearing a plea filed by Yogesh Thakker of Pune.
According to the petitioner the spiritual guru’s signature had been forged in his will by the trustees of the Osho International Foundation.
In his petition, Thakker has alleged that the police has failed to make any progress in the FIR filed with the Pune police on the matter, and was therefore seeking a direction from the court for the CBI to take over the case.
EOW TO Submit Report In Four Weeks
The court had enquired last week if the case could be transferred to the EOW for a specialised investigation. Following this, Pune’s deputy commissioner of police, informed the court via a letter, that the investigation has been transferred to the EOW.
The court has directed the EOW to file an interim probe report in the case “within four weeks.”
The FIR against the trustees was filed in 2013 after Thakker wrote a letter to the Pune Police commissioner in 2012.
According to Thakker the trustees have allegedly transferred money from the Osho trust to private companies owned by them.
The spiritual guru passed away in 1990 and his will was created in 1989. Thakker has alleged that the will was in fact forged and has supported his claim with a private handwriting expert’s report.
France Overhauls Labor Laws Giving More Flexibility To Companies But Little Security For Workers
Just weeks after new labor laws in France came into effect several companies have taken advantage of it and announced downsizing of varying levels:
Around 1,300 job cuts announced at France’s biggest automaker
At least 2,500 proposed at France’s largest supermarket chain
Nearly 200 proposed at a major clothing retailer
However complementary measures for cushioning the blow like retraining programs are yet to be put in place, leaving workers vulnerable to further waves of downsizing.
New Rules Part of Efforts To Revive French Economy
The changes are part of a broad push by President Emmanuel Macron to revive growth and shift France towards a Scandinavian-style economic model known as “flexible security.”
But in the initial days, the imbalance between employers’ rights and workers’ protections could mean that the country’s economy may get worse before getting better.
Unemployment, which has been at around 9 percent for nearly a decade, could rise in the coming months, and unions, already resisting the overhaul, may become impatient if the government fails to follow through on its promises to workers.
Jean-Paul Fitoussi, an economics professor at the Institut d’Etudes Politiques de Paris pointed out that currently it was “flexibility and no security.”
New Laws Reigniting Investor Interest In France
Growth in France has recently picked up after being stagnant for nearly five years, and with the recent policy changes there has been a revival of investor interest :
Amazon has announced plans to open a new distribution center near Paris, creating over 1,000 jobs.
Facebook and Google are planning on investing in artificial intelligence development in France.
Toyota has announced plans to invest 300 million euros, or $367 million, to hike the capacity of its plant in northern France, creating up to 700 jobs through 2020.
Olivier Marchal, the chairman of Bain & Company France, a business consulting firm noted that “complex labor laws” have been “historically the No. 1 obstacle” to the attractiveness of France.
The changes made to labour law , as well as other business-friendly measures such as a gradual reduction in the corporate tax, have “drastically changed investor perceptions,” Marchal said.
Funding For Proposed Worker Programs Stalled
Macron is looking to invest more than €15 million in programs to improve public and private retraining but lawmakers are not willing vote on the measures until the spring.
Additionally, any improvements from the retraining programs will take months, if not years, to bear fruit.
For unions, the worry is that the changes are a ploy to strip away worker protections as well as their own power. In past few weeks, several of the country’s trade organizations have been vigorously opposing the changes, but with limited results.
Companies Gain More Power
With the new rules the balance of power has moved from workers to employers. Businesses were so far reluctant to hire as it was difficult to remove workers so they preferred precarious short-term contracts to fill the gaps.
Now, companies can negotiate job cuts and restructurings through voluntary departures directly with labor representatives inside the business, rather than under strict industrywide collective bargaining agreements.
Philippe Martinez, the secretary general of the General Confederation of Labor, opined that the changes are a method for companies “to get rid of low-cost employees with seniority”, who are “considered too highly paid”, and for “recruiting precarious and disposable workers” in their place.
These new rules may also pit labor groups against one another. The more moderate French Democratic Confederation of Labor is pushing for a more flexible approach given that the forces of globalization are changing the competitive landscape.
More Pressure Likely In Coming Days
Last week’s announcements of job cuts are likely to be followed by several more which could be a test for Macron. He had campaigned during the presidential election to make France more dynamic, but without unravelling its social welfare model.
Opponents like Marine Le Pen, the leader of the far-right National Front, , who unsuccessfully challenged Macron last year in the presidential runoff, has warned that under the new rules companies may be able to hire and fire more easily, but “human dramas will multiply.”
UK’s Law Firms Found To Be At Significant Risk From Corporate Credentials Availability on Dark Web
UK’s top law firms are said to be at serious risk of unauthorized network intrusions after it has been revealed that one million breached credentials are available on the dark web.
According to RepKnight which has studied 620 domains belonging to 500 of the UK’s law firms, nearly 1.16 million corporate email addresses are available on various sites most of which are previously stolen or leaked credentials.
Over half of these have been posted in the past six months, with 80% having an associated password. These passwords are in many cases available in clear text or easily-broken hashed values, the research firm has claimed.
Most of these credentials were gathered from third-party breaches such as the one at LinkedIn, wherein law firm employees had signed up with their work credentials.
Vulnerable To Cyber Attacks
RepKnight’s report states that this exposure puts the law firms’ network and staff “at significant risk “ from ‘credential stuffing’ attacks”. In these attacks bots are utilized in order to repeatedly attempt the use of the same username and password on multiple sites.
Also possible are the more serious kinds of attacks such as ‘spear phishing’ or even identity fraud, where those credentials are used as part of a targeted cyber-attack on that individual, the report said.
Moreover, the availability of the law firm credentials on dark web sites exposes the firms to a potentially alarming situation. They can be used to access the corporate network, and send spear-phishing emails loaded with malware, or even attempt CEO fraud.
For the law firms, any leaks of highly sensitive client or employee data can result in heavy fines under the GDPR.
Law Firms Becoming Preferred Targets
In recent times, the legal sector is coming to the attention of cyber-criminals who looking to tap the wealth of lucrative information such firms possess.
Around 24% of SME-sized firms in the legal sector suffered a cyber-attack last year, with the figure rising to 36% for London-based companies, according to NatWest.
In 2016, two large US law firms were hacked for information which was then used in a $4m insider trading scam. Additionally, both the Panama Papers and Paradise Papers leaks have come after offshore law firms were hacked into.
A recent move to amend the 49-year-old Enemy Property (Amendment and Validation) Act which would allow the Narendra Modi government to auction over 9,400 properties of those who took citizenship of China has made China jittery.
India and China were engaged in a stand off for months last year over construction by Chinese troops in the Doklam region. Although the conflict was subsequently resolved, tension continues in India-China relations.
In recent years, there has been a sharp jump in Chinese investment in India. China fears that India can take over assets of Chinese companies such as Xiaomi and Lenovo, in case of conflict between the two countries.
Investor Confidence Can Be Hit
An article in the state- operated Chinese news outlet Global Times stated that the Indian government could choose to confiscate the assets of Chinese companies in case of “military conflict.”
The report noted that the economic reforms introduced by PM Modi had made India attractive as an investment destination but the amendment of the law can scare away Chinese investors.
It further pointed out that confiscating of assets left behind by people who have taken citizenship of China can be viewed “as a hostile act against China” and can “damage China’s outbound investment”.
The report noted that China’s direct investment in India in 2016 was said to be several times that of the previous year and helped generate employment in India. It has warned that unless India reassures Chinese investors with steps to “ensure the safety of their assets or personnel”, the proposed amendment of the Enemy Property Act will “hit investor confidence”
Properties Held By Pakistanis And Chinese Nationals
Data provided in a report of the parliament select committee on the bill has given details of properties owned by foreign nationals in India, a majority of which belongs to Pakistanis:
There are 9,280 immovable properties belonging to Pakistani nationals encompassing 11,882 acres, with its total value being Rs 1.04 lakh crore. Other assets include:
Movable properties comprising shares in 266 listed companies valued at Rs 2,610 crore
Shares in 318 unlisted companies valued at Rs 24 crore
gold and jewellery worth Rs 0.4 crore
Bank balances of Rs 177 crore
Investment in government securities of Rs 150 crore and
Investment in fixed deposits of Rs 160 crore.
Around 149 immovable enemy properties of Chinese nationals are with the custodian in several states like West Bengal, Assam, Meghalaya, Tamil Nadu, Madhya Pradesh, Rajasthan, Karnataka and Delhi.
According to a 2008 ET Intelligence Group investigation, the shares that have been vested to the custodian are in listed companies such as Cipla, Wipro, ACC, DCM group companies, Tata, Hindustan Unilever, India Cement, and Aditya Birla Nuvo.
US Immigration Authorities Arrest a Polish Green-Card Holder In Michigan
US immigration authorities arrested this week a Polish doctor and green-card holder Lukasz Niec despite him having lived in the US for over 40 years.
Niec, who works as a physician at Bronson Healthcare Group in Kalamazoo, in the state of Michigan, has been detained in a county jail ever since his arrest. He is awaiting a bond hearing and possible deportation.
Niec arrived in the US at age 5 along with his parents and his sister in 1979 escaping social turmoil in Poland. He grew up in Michigan, and received a temporary green card and then in 1989 became a lawful permanent resident.
His sister Iwona Niec Villaire, a corporate lawyer, called the arrest “shocking” adding that no one could “understand what happened here.” For Niec, his Polish nationality was an afterthought and he “doesn’t even speak Polish”, his sister told the media.
Villaire has also expressed worry on how her brother will cope with being deported to “a country and culture completely foreign” to him. He has no existing relationships with family or friends in Poland she said, adding that her brother is “as American as anyone gets.”
Previous Convictions Reason For Detention
As per the “notice to appear” issued to him by the Department of Homeland Security, Niec’s detention has been attributed to two misdemeanor convictions that date 26 years ago.
In January 1992, Niec was found guilty of malicious destruction of property under $100. In April of the same year, he was found guilty of “receiving and concealing stolen property over $100” along with a financial transaction device.
Since Niec has been convicted of two crimes involving “moral turpitude” as a result of the two incidents, he is subject to removal, as per immigration authorities in the ‘notice to appear’, citing the Immigration and Nationality Act.
Both these offenses occurred when he was a teenager, and when he associated himself “with some bad people” according to his sister.
The first involved an altercation with a driver in the aftermath of a car crash, Niec’s sister said, while the second one was later expunged from his criminal record, as part of a guilty plea through Michigan’s Holmes Youthful Trainee Act, a program aimed at helping young offenders avoid the stigma of a criminal conviction.
Even though the crime has been eliminated from his public record, it can still be used against him for removal from the country, his sister said.
ICE has not yet commented on the matter. The ICE Detroit Field Office spokesman has said he is looking into the case.
Not A Risk To Public, Wife Asserts
Kalamazoo County court records reveal that Niec pleaded guilty in 2008 to operating impaired by liquor. On completion of his probation, the conviction was set aside, the plea withdrawn and the case dismissed. In 2013, he was also charged with domestic violence in 2013 and a jury found him not guilty after a trial.
Despite these issues, his wife has stressed that that he is not a risk to the public.
Low Level Offenders No Longer Let Off
Under previous administrations, immigration authorities typically let low-level offenders off the hook, preferring to focus on deporting violent criminals.
But under Trump administration, new guidelines have come into effect which have expanded the range of immigrants that are seen as high priority for deportation, which includes low-level offenders, and those with no criminal record .
According to Villaire, initially she had felt that green-card holders were “like anybody else, ” but that is not the case anymore she said. She had been a green-card holder until she successfully gained citizenship after applying while studying at law school, she said.
His wife Rachelle Burkart-Niec an American citizen said that Niec had been considering applying for citizenship, particularly after their marriage in 2016, but had failed to do so as a result of their demanding schedules. His wife works as a charge nurse at a Bronson hospital .
Colleagues Express Support
Although Lucasz Niec has spent a week in jail, he is yet to see a judge. He has also received no information from immigration authorities since the day of his arrest according to his family members.
Several of his hospital colleagues have written letters to an immigration judge, rallying support for Niec and attesting to his good character, according to local media.
Villaire has said that she is hiring a lawyer for her brother, and is also hoping that Michigan’s governor considers pardoning his misdemeanor offenses.
She is also exploring other options. She stated that her mother had become a naturalized citizen and if that had occurred before Lucasz Niec turned 18, he may already be a citizen by default. There are some important documents missing from the family archives which she is looking to retrieve as both the parents are deceased.
Retired Judges Appointed To Conduct Tamil Nadu bar Council Election
The Bar Council of India has finally announced the elections for the Bar Council of Tamil Nadu and Puducherry (BCTN&P). The date for the election has been fixed for March 28.
The BCI will be nominating three former Chief Justices and retired judges to hold the election .
A resolution was adopted to this effect at the general body meeting of the BCI on January 21, according to a statement released by it this week .
The statement referred to a letter sent by the Madras High Court Advocate-General, Vijay Narayan, who is also the ex-officio chairman of the special committee, on January 15 as well as a letter dated January 16 from two other committee members — senior advocate R Singaravelan and former CBI Public Prosecutor Chandrasekaran – seeking the appointment of a retired judge/judges of the Madras High Court to conduct the election.
The committee had been set up a while back to examine the day-to-day functions of the BCTN&P and to conduct the election.
Appointment Of Judges Made As Per Requests
BCI’s communication stated that as several of the special committee members had requested the appointment of retired judges of Madras High Court to conduct the “free and fair elections” the council had resolved to appoint three retired Chief Justices and retired judges of the High Courts to hold the elections while Justice GM Akbar Ali, another retired judge of the Madras High Court, will act as the Returning Officer for the elections.
The election schedule will be published in the official gazette and also in two daily newspapers on January 25.
The dates for filing of nominations will be from February 1 to 15, and the last date for withdrawal of nominations is February 22.
The final candidates list will be released on March 1 and the poll will be conducted on March 28.
Lawyer Appeals To Madras High Court For Rollback Of Tamil Nadu Bus Fare Hike
A lawyer has moved the Madras high court seeking the rollback of the recent hike of bus fare in Tamil Nadu .
Advocate George William made an urgent mention about the fare hike before a division bench of Justices R Subbiah and T Ravindran as soon as they started court proceedings at around 10.30am and sought the court to hear the plea urgently.
William claimed that the hike was “unjustified and arbitrary”, and requested the court to interfere and direct the government to withdraw the hike, stating that the hike was adversely affecting the people and student community.
The bench however refused the urgent hearing, and asked the lawyer to file a proper petition that would be taken up for hearing in due course.
The Tamil Nadu government increased the bus fare on January 19 after six years.
The minimum fare of Metropolitan Transport Corporation (MTC) buses in Chennai has been hiked from Rs 3 to Rs 5, while the maximum had gone from Rs 14 to Rs 23. For non-metros, the increase has been in the range of Rs 3 to Rs 19.
Bombay High Court Ruling Allows LLM Students To Give Exams Next Semester
Students studying Master of Laws (LLM) have been given the option of either appearing for their exams starting today or give the tests along with the next semester examinations.
In its ruling in a petition filed by a student, the Bombay high court has asked University of Mumbai (MU) to not consider such students as absent or failed in the current semester.
The petition sought for the exams to be rescheduled due to a short semester.
An affected student said it was “a huge relief” as most of the students had not managed to attend classes for four weeks.
Exam Unfair After Short Semester
An LLM student filed a petition last week in the court against MU after it failed to postpone their examinations.
Students have complained about the very short semester that remained after the previous semester’s results caused a delay in admissions to LLM courses leading it to end only in the last week of December and in some areas in the first week of January.
Another affected student pointed out that according to university rules, a semester must have at least 90 working days. But in this case, the student noted the MU has not completed even half of the specified period, adding that as a result “holding exams now is unfair”.
Several of the LLM students have decided to take up eight papers in the next semester examinations, four from each semester.
Sachin Pawar, president, Student Law Council expressed hope that the university would allow enough time between the “the ATKT papers and the next semester exams” so as to give the students “breathing space” between the exams.
Survey Shows Americans Support Legal Immigration To Be Cut By Over 50%
A recent poll has shown that Americans strongly support several changes that President Donald Trump is looking to push through for tightening immigration in the country including building a border wall, eliminating the visa lottery system and curtailing the chain of family migration, although they continue to favour giving the ‘Dreamers’ a pathway to citizenship.
Survey Results Goes Against Democrat Deal
The Harvard-Harris Poll, conducted prior to the government shutdown, has found that there is widespread support for slashing the level of legal immigration, currently at over 1 million a year, to less than half that.
These findings challenge the Gang of Six immigration deal that Democrats along with support of some Republicans had tried to get through the Senate last week, which was however derailed by Trump.
Authored by Sens. Lindsey Graham, a Republican, and Richard Durbin, a Democrat, the plan sought to offer a generous legalization for Dreamers, as well as a small downpayment on Mr. Trump’s border wall but no significant changes to chain migration.
This plan would have removed the visa lottery, but pushed the visas back into the legal immigration system for use in a new amnesty scheme for people from countries that have suffered natural disasters.
Graham had commented that senators would have not be interested in accepting a deal that cuts down overall immigration levels, but the new poll shows that that’s what Americans desire.
Americans Support Lower Immigration Levels
The key survey results are
Nearly 35 percent said legal immigration should be 250,000 a year or less
Around 19 percent said it should be between 250,000 and 500,000
Another 18 percent said they want to see between 500,000 and 1 million
Only 19 percent said they want to see an increase over 1 million.
President Trump has not yet indicated the legal immigration level he supports, but has been vocal on changing the way the U.S. chooses immigrants.
He has said that skills and ability to assimilate in the U.S. must be given more weightage over extended family ties. The new poll reveals support for this view with voters favouring it by a 79-21 margin.
This margin is even greater than the 77-23 margin support for the legalization of Dreamers.
Over 60 percent of voters have said current border security is “inadequate,” while 54 percent have said that they support “building a combination of physical and electronic barriers across the U.S.-Mexico border.”
The poll was held between Jan. 17-19, and covered 980 adult Americans.
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