Top 20 Legal Developments of 2020
Legal Developments of 2020: The pandemic and its consequential lockdown may taint the zeitgeist of the belated (finally) year to be one of global halt, idleness and ruin, but the legal fraternity did not succumb to its blow. The needs of the hours were met through the year with the luminaries literally burning the midnight oil as they… Read More »
Legal Developments of 2020: The pandemic and its consequential lockdown may taint the zeitgeist of the belated (finally) year to be one of global halt, idleness and ruin, but the legal fraternity did not succumb to its blow. The needs of the hours were met through the year with the luminaries literally burning the midnight oil as they sat at 3:30 AM to discuss the final plea on clemency by Nirbhaya’s accused Pawan, before his fatal execution at 5:30. This is an attempt to give the gist of the multitude of legal developments churned out by the three branches of our nation this year, in no particular order.
Here are the Top 20 Legal Developments of 2020:
1. The Citizenship Amendment Act (CAA)
Though raised as a bill and elevated as a major socio-political issue at the end of 2019 itself, the controversial amendment on citizenship culminated in early 2020. The Amendment dealt with the regulation of the citizenship of refugees fleeing neighbouring states due to religious persecution. It came into effect on January 10, 2020, and ran into controversy accused of being a threat to secularism, further complicated by the uncertainties surrounding the National Register of Citizens (NRC) and the National Population Register (NPR).
The issue witnessed several protests and their often disproportionate submission by the authorities. The Supreme Court received around 140 petitions on the issues, but no major intervention was received therefrom. The various High Courts took up active command to fill the gap and important orders were passed. While the brutal attack in Jamia Millia institute was refused consideration in the apex court, the Allahabad High Court took up the matter of Aligarh Muslim University’s attack and ensured medical assistance to the injured.
2. Evolution of the Right to Internet
The Jammu and Kashmir Reorganisation Act, 2019 divided the state into two Union Territories, and subsequent orders applied Indian laws on it. These changes were met by inevitable unrest, which saw a virtual emergency situation being created by the Government with the ammunition of Section 144 and other such provisions. The Union Territories existed in complete communication shut down for hundreds of days when finally a development came from the 3 Judge Bench of the Supreme Court on January 10, 2020.
The judgment of Anuradha Bhasin v. Union of India [1] is to become a landmark judgment where the court has said that the right to freedom of speech and expression and the right to carry on trade and commerce include their exercise through the medium of internet. Hence, access to the internet to exercise these rights is protected under Article 19(1) of the Constitution. Further, it said that repeated use of Section 144 is an abuse of power, and indefinite suspension of the internet is disproportionate and impermissible in law.
Another judgment highlighting the right to access internet had come late last year by Kerala High Court in Faheema Shirin v State of Kerala [2] holding that it is a fundamental right under the ambit of both privacy and education under Article 21.
3. National Education Policy
The National Education Policy approved by the Modi-led Government on 29 July 2020 has suggested sweeping changes in India’s school and higher education system. India’s third education policy has taken a different route from its predecessor by outlining a ‘5+3+3+4’ system in place of the old ‘10+2’. Its content is broad enough for a separate article but the highlights include the inclusion of pre-school (3 to 5 years) in formal education, suggestion to teaching children till 5th standard in their regional language, making board exams a little easier and shifting the focus to critical thinking than rote learning. At the higher education level, multidisciplinary education with several exit options is being emphasised on, and the course of M. Phil has been removed.
4. Orders and Judgments wrt COVID 19
The pandemic itself cannot be left out of legal developments of the year. Several issues were raised and addressed by the court. A High Powered Committee to be set up in each state to decide to release prisoners and undertrials on parole or interim bail to decongest prisons. It was suggested that if the offence bears a punishment less than 7 years minimum, and the person has not been granted the maximum punishment, then he may be released. A number of directions were passed in a suo motu case by the Apex court to ensure containment of infection in child care institutions for juveniles under the JJ Act, 2015.
Another important order was against the stigma against Covid patients stating that posters relating to the pandemic were not to be affixed outside patient’s houses unless a specific direction is available. An essential order came to the effect that a certain class of people were entitled to free testing of the disease. The persons include those covered in Ayushman Bharat Scheme, those belonging to any economically weaker section, and some others as provided in the guidelines issued.
5. The Migrant Labourers’ Issue
The year witnessed lakhs of migrant workers walking across the nation in search of the comfort of their homes amid the pandemic. The Supreme Court took suo motu cognizance of the matter and passed a series of orders addressing the issue. It ordered Central and State Governments to immediately provide food, transport and shelter to stranded workers free of cost and issued notice to file their responses urgently on the matter.
6. A New Data Protection Regime?
Amid repeated issues of digital privacy with the mandatory Adhaar, Aarogya Setu and such, the Personal Data Protection Bill has been referred to a joint parliamentary committee for its opinion in consultation with experts. The Bill covers the processing of personal data by the government, Indian companies, and foreign companies dealing with personal data of Indians. It establishes a Data Protection Authority, a seven-member body to ensure compliance of the provisions.
7. Execution of Nirbhaya’s Convicts
A long due appointment was finally met after 8 years of a legal battle when the convicts of Nirbhaya Rape case of 2012 which shook the streets of Delhi were executed early morning of 20th March 2020 at Tihar Jail. A last attempt to challenge the rejection of prayer of clemency by the President was dismissed by a 3 judge bench of the court two hours before the execution.
8. Streaming Platforms and Online News under I&B Ministry
On 9 November, an amendment was made to the Allocation of Business Rules by the government through which online audio and video streaming services and online news and current affairs were placed under the regulation of Ministry of Information and Broadcasting. The OTT (over the top) streaming platforms had seen no laws to regulate their working apart from the modules on self-regulation by the IAMAI, and though they still have not been brought under any law, this step of the government is being considered by many as a first in a series, and to have far-reaching consequences in foreseeable future.
9. Amendment in the IBC, 2016
An Ordinance was passed on June 5 this year in an amendment to the Insolvency and Bankruptcy Code, mostly as an adaptive measure toward the pandemic situation. It was turned into a bill which was subsequently passed in late September to become the IBC Amendment Act, 2020. The major changes brought are the increase of the threshold amount under Section 4 to 1 crore (from 1 lakh) to prevent smaller companies from running the risk of liquidation in the unprecedented situation. Sections 7, 9 and 10 of the Code were suspended for 6 months, and the lockdown period is considered excluded forever from the timeline for insolvency proceedings under the Code.
10. Arbitral Award under the Enrica Lexie Case
An important development in international arbitration came this year when the 2012 case of the Italian vessel Enrica Lexie and the Indian fishermen was decided by the Arbitral Tribunal, Permanent Court of Arbitration at Hague on 2nd July. The Court heard the matter of its jurisdiction, and deciding that it has jurisdiction in the case, moved on to deciding the merits.
It held that India was not in breach of any of the alleged provisions of UNCLOS (87(1), 92(1), 100), whereas Italy was in breach of Articles 87(1) and 90 of UNCLOS such that it violated the freedom of navigation of the fishermen’s boat, St. Antony. It, however, held in Italy’s favour that the marines accused of shooting the fishermen were protected under sovereign immunity in official functions, but Italy is to compensate India for losses of life and property.
11. Developments in the Juvenile Justice Act, 2015
The young legislation of the JJ Act, 2015 saw several judicial interpretations strengthening it this year, especially in relation to bail of a juvenile delinquent. The suo motu judgment of the Supreme Court in the case of Re Exploitation of Children in Orphanages in State of Tamil Nadu, categorically held that a juvenile accused under the special legislation is not to be held in jail or police lockup no matter what the circumstance. It chided the Juvenile Justice Boards asking them to actively protect children from being kept in lock-ups.
In Anamul Haque v. Union of India [3], the Patna High Court has recently held that Section 12 of the JJ Act, 2015 (deals with immediate bail of juvenile) has clear overriding power over Section 37 of the NDPS Act, and hence the conditions given in the latter will not apply to a juvenile. In yet another case, a clarification has been made between definitions of serious and heinous offences under the Act. The court said that any offence where the minimum sentence is not prescribed or is less than 7 years then notwithstanding what the maximum is, it will be a serious offence, and not heinous.
12. Sushila Aggarwal v NCT of Delhi (No Time Limit on Anticipatory Bail)
A prolonged battle of conflicting judicial precedents was finally settled by a Constitution bench of the Supreme Court in January 2020 with respect to time limits on anticipatory bails. The court summarised several past precedents on the matter, and it held that attaching a time limit to an order of anticipatory bail is not permissible unless special and peculiar circumstances require it to be so provided. In normal circumstances, an anticipatory bail should be free of a time limit, and can safely continue till the end of a trial.
13. Farm Bills
In September 2020, three Agriculture Bills received the President’s assent to become the controversial farm acts with farmers’ protests through the new year. The Act stipulates a farming agreement between the farmer and the buyer before production. A three-tier dispute management mechanism is stipulated – the Conciliation Board, a Sub – Divisional Magistrate, and an Appellate Authority. Trade outside the yards and mandis has been allowed, and even electronic trading has been provided for. The market fee has been abolished.
14. Pandurang Ganpati Ghaugule v. Svishwasrao Patil Murgud Sahakari Bank Limited
A Constitution Bench of the Supreme Court has held that the SARFEASI Act shall apply to cooperative banks as well. The Bench interpreted Section 2(1)(c) to include cooperative banks in the definition.
15. Development in Reservations for Backward Classes
Two Constitution Bench judgments of the apex court discussed issues of reservation for backward classes. First, it held in Chebrolu Leela Prasad Rao & Ors. v. State of A.P. & Ors. that a hundred per cent reservation for Scheduled Tribes in teaching positions in schools situated in Scheduled Areas is invalid. Second, it was held in State of Punjab v. Davinder Singh that a state government has the power to make sub-classification within classes of reservation.
16. The Sabrimala Issue
In the Sabrimala Review Petition, some questions of law were referred to a larger bench for consideration. This reference was challenged and a Nine Judge Bench of the apex court held that a reference to a larger bench may be made in a review petition and thus it suffered from no infirmity.
17. Arnab Goswami Bail Proceedings
The Bombay High Court suffered criticism by the Apex Court for its neglect in evaluating Journalist Arnab Goswami’s bail application even prima facie. Reminding the courts their sacred duty to protect the liberty of individuals, the court awarded interim bail in the case holding that a case of abetment of suicide was not made out [4].
18. Permanent Commission to Women Officers in Army
The Division Bench of the Apex Court has held on February 27 that permanent commission in army shall apply to women officers as well irrespective of their years of service. It affirmed the Delhi High Court judgment and said that blanket refusal of consideration of women for criteria or command appointments is not permissible in law.
19. The Medical Termination of Pregnancy (Amendment) Bill, 2020
The Bill on Abortion has been passed by the Lok Sabha on March 17. Major highlights of the bill include an increase of permissible time before which it can be carried out from 20 weeks to 24 weeks on consultation with two doctors. It provides for Medical Boards to decide abnormal cases where abortion after 24 weeks may be granted. It insists on the operation being performed by doctors specializing in gynaecology or obstetrics.
20. Surrogacy (Regulation) Bill Of 2020
The Surrogacy Regulation Bill of 2019 was referred to a Select Committee and is now awaiting presidential assent under the current name. The Bill establishes a National Surrogacy Board at the Centre and state surrogacy boards in the States with a range of advisory and administerial functions. It bans commercial surrogacy and lays down criteria and eligibility for women who may opt for the process. It widens the earlier definition to include an intending woman who is not married to opt for surrogacy as well.
References
[1] WP(C) NO. 1031 OF 2019
[2] WP (C) No. 19716 of 2019-L
[3] Criminal Appeal (SJ) No. 84 of 2020
[4] Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine SC 964