India

Derecho Internacional

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Pakistan to take Kashmir case to ICJ

Source: Jurist

August 21, 2019

 Pakistan’s Foreign Minister Shah Mehmood Qureshi told ARY News TV Teusday that, after considering all legal options, Pakistan will take the Kashmir case to the International Court of Justice.

In addition, Special Assistant to the Prime Minister, Firdous Ashiq Awan, “confirmed to reporters that an in-principle approval had been granted by the cabinet to take the issue to the world court. She said that the case will be presented with a focus on the violation of human rights and genocide in occupied Kashmir.”

On August 5, India revoked Article 370 of the Indian constitution, which removed the special status and autonomy of Kashmir. Following this announcement, Indian troops occupied Kashmir, imposing a curfew.

A decision by the ICJ would be advisory, unless the countries had agreed beforehand to be bound by the court’s decision.

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Derecho Civil / Civil Law

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India president approves legislation outlawing ‘instant divorce’            

Source: Jurist

August 05, 2019

India’s President, Ram Nath Kovind, gave assent Thursday to a bill criminalizing the Muslim personal law practice of “instant divorce.”

The Rajya Sabha, the upper house of India’s parliament, approved the Muslim Women (Protection of Rights on Marriage) Act on Tuesday. It was passed by the lower house of parliament (Lok Sabha) on July 25.

The practice is known as “triple talaq,” under which a Muslim man can divorce by uttering the word “talaq,” meaning divorce in Arabic, thrice in his wife’s presence. The statute makes declarations of instant divorce, including in written or electronic form, to be not enforceable in law and a criminal offense. Any person convicted of the offense can face up to three years imprisonment with a fine. Section 7(a) of the legislation makes the offense “cognizable,” which means a person accused may face arrest without a warrant. Section 7(c) states, “no person accused of an offense punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person.”

Section 5 stipulates that the husband will provide an allowance for “a married Muslim woman upon whom talaq is pronounced” and her dependent children. Section 6 gives custody of minor children to the woman.

Derecho Laboral / Labor Law

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India government seeks to introduce ‘business friendly’ labor law reforms      

Source: Jurist

July 26, 2019

India’s federal government on Tuesday introduced two new labor code bills in the lower house of parliament. The Code on Wages and the Code on Occupational Safety, Health and Working Conditions are expected to affect about 500 million workers if passed.

The Code on Wages seeks to regulate wage and bonus payments in all places of employment where any industry, trade, business or manufacturing is carried out. It replaces the Payment of Wages ActMinimum Wages ActPayment of Bonus Act and the Equal Remuneration Act. The bill proposes to empower the federal government to fix the national floor wage for different regions. According to clause 9(2) of the bill, “the minimum rates of wages fixed by the appropriate Government under section 6 shall not be less than the floor wage and if the minimum rates of wages fixed by the appropriate Government earlier is more than the floor wage, then, the appropriate Government shall not reduce such minimum rates of wages fixed by it earlier.” In other words, the minimum wages must be higher than the floor wage. Clause 3(1) of the bill prohibits gender discrimination. “There shall be no discrimination in an establishment or any unit thereof among employees on the ground of gender in matters relating to wages by the same employer, in respect of the same work or work of a similar nature done by any employee,” it reads.

The Code on Occupational Safety, Health and Working Conditions will apply to establishments employing at least 10 workers, and to all mines and docks. It aims to repeal and replace 13 existing labor laws on safety, health and working conditions. These include the Factories Act, the Mines Act and the Contract Labour (Regulation and Abolition) Act. It makes special provisions for certain types of establishments and classes of employees, such as factories, mines, and building and construction workers. If passed, the code will ensure that companies will not require multiple registrations, as they do currently under several distinct labor laws. The government has proposed a “one license, one registration, and one return” system for establishments under the proposed legislation. Once an establishment is registered under the Code on Occupational Safety, Health and Working Conditions, it will not need to register separately to comply with other labor laws.

Labor ministry officials say the reforms will help bolster India’s “ease of doing business” credentials. India’s federal government wants to project the country as an attractive destination for foreign investment. India is ranked seventy-seventh on the World Bank’s Ease of Doing Business Index.

Opposition political parties and labor rights activists have criticized the proposed codes. They argue that the reforms unduly favor India’s corporate elite at the expense of the working class. Critics say the proposed labor law reforms will lead to a weak regulatory environment since the government’s supervisory role will be diluted.

Derecho Constitucional / Constitucional Law

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India parliament amends right to information law, strengthens government control over statutory bodies     

Source: Jurist

July 27, 2019

The upper house of India’s parliament approved a bill on Thursday to amend the Right to Information Act of 2005. The bill has already been passed by the lower house of parliament and will become law once it receives presidential assent.

Amendments to the law proposed in the bill include changes to the fixed term of information commissioners, who are officials appointed under the statute. It renders their pay and service conditions subject to executive rules made by the federal government. Clause 2(a) of the bill proposes to amend section 13(1) of the statute and replace the fixed five-year term of office for the Chief Information Commissioner with “such term as may be prescribed” by the federal government. Information commissioners at the state-level will also be subject to term, pay and service conditions made by the federal government per the amendments proposed by clause 3 of the bill to section 16 of the Right to Information Act (RTI).

Following protests during the voting, the opposition Indian National Congress staged a walkout, saying the government was “undermining democracy.” P Chidambaram, an opposition member of parliament, questioned the bill’s incorporation of provisions that allegedly undermine the powers of state governments. “The state government constitutes Information Commissioners. So, why are you taking the power to prescribe the tenure and terms and conditions of that appointment? Why can’t the state government do that? Can’t you trust the states to prescribe the tenure and terms and conditions of the appointment?” he asked.

Former information commissioner Sridhar Acharyulu has written an open letter to the chief ministers of three states, seeking an explanation for their support to the bill. “Do you know that this kind of the most unjustified and unconstitutional surrender of your sovereignty to powers of Delhi, with specific reference to your powers of appointing an information commissioner will disable you from determining the term and status of your own commissioners?” reads Acharyulu’s letter.

“If they (information commissioners) are beholden to the government for their salary, tenure, and terms of service, they will be under an obligation,” said Wajahat Habibullah, a former information commissioner. “This goes even for those with the most undoubted integrity. … You don’t really have to be corrupt to toe the government line then,” he told reporters, alongside other former colleagues.

Jitendra Singh, the federal minister for personnel, public grievances, and pension, said: “the Information Commission is a statutory body, and it is an anomaly to equate it to a constitutional body like the Election Commission.” The government says the bill was introduced to correct an anomaly that puts the Information Commission at par with the Election Commission. Minister Singh assured parliament that the amendment is an enabling legislation, adding that the government has no ulterior motives. “There is no attempt, motivation or design to curtail the autonomy of RTI,” he said.

General

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Call for Submissions: Indian Journal of International Economic Law      

Source: Int Law Reporter

July 02, 2019

 The Indian Journal of International Economic Law has issued a call for submissions for its volume 12. The call is here.

Derecho Ambiental / Environmental Law

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India court rules in favor of legal person status for all animals

Source: Jurist

June 03, 2019

A single judge bench of India’s Punjab and Haryana High Court held on Friday that the “entire animal kingdom including avian and aquatic” species has a “distinct legal persona with corresponding rights, duties, and liabilities of a living person.”

Judge Rajiv Sharma ruled, “all the citizens throughout the State of Haryana are hereby declared persons in loco parentis as the human face for the welfare/protection of animals,” implying that citizens have legal responsibilities and functions similar to those of a parent vis-à-vis minor children for the welfare and protection of animals.

The court arrived at the decision in a criminal revision petition filed by individuals convicted of unlawfully exporting cows from Haryana under Section 4B of the Punjab Prohibition of Cow Slaughter Act, a statute applicable to both Punjab and Haryana. The judge upheld the conviction of the accused but did not mete out a prison sentence, saying that the accused “are suffering agony and trauma by facing criminal proceedings for about 15 years.” Haryana police arrested the convicts in 2004.

“All animals have honor and dignity. Every species has an inherent right to live and is required to be protected by law. The privacy and the rights of animals are to be respected and protected from unlawful attacks,” the judge said. The judgment relies on jurisprudence from India’s Supreme Court, which had ruled in Animal Welfare Board of India vs. Nagaraja that the right to dignity and fair treatment as enshrined in and arising out of Article 21 of India’s Constitution is “not confined to human beings alone, but animals as well.”

Friday’s decision saw the court issuing several “mandatory directions” for the “welfare of the animal kingdom” in Haryana. It directed the state government to ensure that draft animals do not carry loads exceeding prescribed limits, and to ensure that no animal carries a weight or load in excess of the weights prescribed by regulations such as the Prevention of Cruelty to Animals (Transport of Animals on Foot) Rules.

Furthermore, the state government is to ensure that weight carried by an animal is reduced by 50 percent if the route traversed involves an ascent exceeding the limit prescribed by the court. For this purpose, the court ruled that a gradient over 3 meters per 30 meters triggers the threshold. No more than four people, excluding the driver and children below six years of age, are allowed to ride an animal-drawn vehicle. No person is permitted to keep or cause to be kept in harness any animal used for drawing vehicles where the temperature exceeds 99°F or is below 41°F. The court held that the use of sharp equipment to brutalize animals is banned throughout the state of Haryana “to avoid bruises, swelling, abrasions or severe pain to the animal.”

Many other directions, including ones related to veterinary care, housing, and food for animals, were issued in the 104-page judgment.

Derecho Ambiental / Environmental Law

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India environment court orders measures against airport noise pollution         

Source: Jurist

May 24, 2019

 India’s environment tribunal, the National Green Tribunal (NGT), on Tuesday directed the Airports Authority of India (AAI) and the Delhi International Airport Limited (DIAL) to implement measures authorized by it in a 2017 decision. The order aims to curb noise pollution in India’s capital New Delhi.

NGT Chairperson Adarsh Kumar Goel and two other judicial members, Judge SP Wangdi, and Judge K Ramakrishnan, pronounced the decision in a bid to reduce noise pollution in the vicinity of New Delhi’s Indira Gandhi International (IGI) airport.

The bench ordered the government to “take all mitigating measures for reducing noise pollution…expeditiously.” According to the order, the measures include “construction of sound barriers” around the airport “at the earliest.” The government has also been directed to provide for “a green belt around the boundary wall of the airport while keeping the safety and security both in mind. The plantations shall be of the species that would only grow to the permissible height or would be maintained at the permissible height only.”

Relevant authorities such as the AAI are to issue instructions to airlines “whose aircraft land at the runway of the IGI airport to ensure judgment-based use of reverse thrust keeping in view weather, length of the runway, wind, and other attendant circumstances to reduce the noise level particularly at the time of landing of aircraft.” The measures are not limited to structures around the airport or the aircraft. Public transport used at the airport is also expected to adhere to environmental norms. “All the coaches/buses and other vehicles plying at the airport should be Compressed Natural Gas (CNG) and must comply with the prescribed emission standards. Non-CNG buses/coaches or other vehicles plying at the airport should be converted to CNG,” the order reads.