Introduction
This report brings out current trends in state practice and domestic implementation of international law in India. The report mainly focuses on the interpretation and application of international law by the domestic courts, primarily the Supreme Court of India. The report also reflects some of the major developments and engagements of India in the context of international law, most importantly, treaties that India entered into during the relevant period. While international law has been referred to in a large number of judgments by the Supreme Court of India, this report includes only those judgments in which the court has engaged with or applied the relevant international law norms and rules that are reflective of India’s state practice.
Making & Concluding Treaties
Treaties
Select Treaties Signed by India during the Year 2021
During the year 2021, some of the important international agreements signed by India are the following:
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Agreement between the Government of the Republic of India and the Government of the Republic of the Gambia on Exemption from Visa Requirement for Holders of Diplomatic and Official Passports, 1 November 2021
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General Framework Agreement for Cooperation between Government of the Republic of India and the Government of the Republic of the Gambia, 1 November 2021
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Agreement between the Government of the Republic of India and the Government of the Republic of Serbia for Authorizing the Dependents of Members of a Diplomatic Mission or Consular Post to Engage in Gainful Employment, 19 September 2021
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Treaty on Mutual Legal Assistance in Criminal Matters between the Republic of India and the Kingdom of Belgium, 16 September 2021
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Agreement between the Portuguese Republic and the Republic of India on the Recruitment of Indian Citizens to Work in the Portuguese Republic, 13 September 2021
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Convention on the International Organization for Marine Aids to Navigation, 1 September 2021
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Agreement between the Government of the Republic of India and the Government of Georgia for Gifting of a Relic of St. Queen Ketevan by the People of India to the People of Georgia, 8 July 2021
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Agreement between the Government of the Republic of India and the Government of the United Kingdom of Great Britain and Northern Ireland on Customs Cooperation and Mutual Administrative Assistance in Customs Matter, 30 May 2021
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Agreement between the Government of the Republic of India and the Government of the Commonwealth of Dominica on the Exemption of Visa Requirements for Holders of Diplomatic and Official Passports, 7 May 2021
In addition, India has entered into Memorandums of Understanding (MoU) with several countries on various subjects which are available online (Treaty/Agreement, MEA, https://www.mea.gov.in/TreatyList.htm?1).
Terminated Bilateral Investment Treaties
India made fundamental changes to its investment policy framework post in the White Industries Australia Limited v. The Republic of India (2011) case. India adopted a new Model Bilateral Investment Treaty (BIT) in 2015. India sent termination notices to 57 partner countries with which it had BITs, some of which have already expired or will expire. In 2021, the following BITs stood terminated:
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Agreement between the Government of the Republic of India and the Government of the Kingdom of Bahrain for the Promotion and Protection of Investments, 13 January 2004, terminated on 24 March 2021
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Agreement between the Government of the Republic of India and the Government of the Republic of Sudan for the Promotion and Protection of Investment, 22 October 2003, terminated on 19 October 2021
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Agreement between the Government of the Republic of India and the Government of the Republic of Latvia for the Promotion and Protection of Investments, 8 February 2010, terminated on 26 November 2021
Settlement of Disputes
International and Regional Dispute Resolution Mechanisms
India – Measures Concerning Sugar and Sugarcane, Complaint by Brazil Australia and Guatemala (DS579, DS580, DS581), Report of the Panel dated 14 December 2021
Brazil, Australia and Guatemala requested consultations with India concerning domestic support measures allegedly maintained by India in favour of producers of sugarcane and sugar (domestic support measures), as well as all export subsidies that India allegedly provides for sugarcane and sugar (export subsidy measures). Specifically, the challenges were against:
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India’s mandatory minimum prices for sugarcane (the Fair and Remunerative Price (FRP) and State-Advised Prices (SAPs)), as market price support within the meaning of the Agreement on Agriculture, as well as other payments and policies in favour of sugarcane producers, as non-exempt direct payments or other non-exempt policies within the meaning of the Agreement on Agriculture, and three assistance schemes, as WTO-inconsistent export subsidies, that operate in conjunction with India’s Minimum Indicative Export Quotas (MIEQs) or Maximum Admissible Export Quantity (MAEQ).
It was claimed that India’s schemes constitute subsidies within the meaning of the Agreement on Agriculture, as well as subsidies contingent upon export performance within the meaning of the SCM Agreement. Accordingly, they claimed that the domestic support measures appear to be inconsistent with Articles 3.2, 3.3, 6.3, 7.2(b) 8, 9.1 and 10.1 of the Agreement on Agriculture and Article 3 of the Agreement on Subsidies and Countervailing Measures.
The Panel was established on 28 October 2019 and the Panel report was circulated on 14 December 2021. Concerning domestic support, the Panel found that India is acting inconsistently with its obligations under Article 7.2(b) of the Agreement on Agriculture. Concerning export subsidies for sugar and the various schemes, the Panel found that the challenged schemes are export subsidies within the meaning of Article 9.1(a) of the Agreement on Agriculture; inconsistent with India’s obligations under Articles 3.3 and 8 of the Agreement on Agriculture and Articles 3.1(a) and 3.2 of the Agreement on Subsidies and Countervailing Measures.
On 24 December 2021, India notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations in the panel report.
Enforcement of International & Foreign Awards
KLA Const Technologies v. The Embassy of the Organization and Matrix Global v. Ministry of Education, Ethiopia, (COMM) 82/2019; (COMM) 11/2016 and OMP (ENF) COMM 82/2019 and IA No. 7023/2019, Delhi High Court OMP(ENF)(COMM)82/2019 & OMP(EFA)(COMM)11/2016 Date of Decision: 18 June 2021
The key question in these cases was whether prior consent of the Central Government is necessary under Section 86(3) of the Code of Civil Procedure (CPC) to enforce an arbitral award against a Foreign State. The Delhi High Court answered in the negative stating that no such prior consent is required from the Central Government before enforcing an arbitral award against a foreign State. The High Court also stated that a “Foreign State cannot claim a Sovereign Immunity against enforcement of an arbitral award arising out of a commercial transaction.”
Facts
The petitioner sought enforcement of the arbitral award dated 25 October 2015 and the notice of this petition was issued to the respondent on 24 October 2016, but the respondent did not appear despite service. However, on request, the petitioner furnished a copy of the arbitral award to the respondent on 18 May 2019, which was acknowledged by the respondent on 30 May 2019. Vide order dated 19 November 2019, the Court directed the Union of India to examine whether the prior consent of the Central Government is necessary under Section 86(3) of the CPC to enforce the arbitral award.
On 15 March 2021, the Central Government placed on record via the Ministry of External Affairs (MEA), that prior consent of the Central Government is not necessary for enforcement of an arbitral award under Section 86(3) of the CPC “for execution of the arbitral award/decree against the Ethiopian Government.” It also noted that “the execution proceedings in respect of an arbitral award cannot be regarded as a suit for the purpose of Section 86 of the CPC. Thus, we understand that, for execution of an arbitral award, MEA’s concurrence under Section 86 (3) CPC may not be required.”
Judgment
According to the Court, Section 36 of the Arbitration and Conciliation Act treats an arbitral award as a “decree” of a Court for the limited purpose of enforcement of an award under the CPC. This cannot be read in a manner that would defeat the very underlying rationale of the Arbitration and Conciliation Act namely, speedy, binding and legally enforceable resolution of disputes between the parties. Thus, Section 86 of the CPC is of “limited applicability and the protection thereunder would not apply to cases of implied waiver. An arbitration agreement in a commercial contract between a party and a Foreign State is an implied waiver by the Foreign State so as to preclude it from raising a defence against an enforcement action premised upon the principle of Sovereign Immunity.”
The court noted that in a contract arising out of a commercial transaction,
a Foreign State cannot seek Sovereign Immunity for the purpose of stalling execution of an arbitral award rendered against it. Once a Foreign State opts to wear the hat of a commercial entity, it would be bound by the rules of the commercial legal ecosystem and cannot be permitted to seek any immunity, which is otherwise available to it only when it is acting in its sovereign capacity. It is the purpose and nature of the transaction of the Foreign State which would determine whether the transaction, and the contract governing the same, represents a purely commercial activity or whether the same is a manifestation of an exercise of sovereign authority.
Since arbitration is a consensual and binding mechanism of dispute settlements, the foreign State cannot contest that its consent must be sought again at the stage of enforcement of an arbitral award that is against it, while ignoring the fact that the arbitral award is the culmination of the very process of arbitration which the foreign State has admittedly consented to. This proposition is in consonance with the growing international law principle of restrictive immunity, juxtaposed with the emergence of arbitration as the favored mechanism of international dispute resolution in the past few decades.
if Foreign States are permitted to stymie the enforcement of arbitral awards, which are the ultimate fruits of the above consensual process, on the specious ground that they are entitled to special treatment purely on account of being Foreign States, then the very edifice of International Commercial Arbitration would collapse. Foreign States cannot be permitted to act with impunity in this regard to the grave detriment of the counter-party in the arbitration proceedings.
Applying the abovementioned well settled principles of law, this Court holds that prior consent of the Central Government under Section 86(3) of the Code of Civil Procedure is not required for enforcement of the two arbitral awards in question against the respondents.
Amazon.com NV Investment Holdings LLC v. Future Retail Limited & Ors. Supreme Court of India, Civil Appeal Nos. 4492–4493, Judgment dated 6 August 2021
The Supreme Court of India, in this case, was seized of two important questions:
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First, whether an “award” delivered by an Emergency Arbitrator under the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) can be said to be an order under Section 17(1) of the Arbitration and Conciliation Act, 1996 (Arbitration Act); and
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Second, whether an order passed under Section 17(2) of the Arbitration Act in the enforcement of the award of an Emergency Arbitrator by a learned Single Judge of the High Court is appealable
Facts
Proceedings were initiated by Amazon.com NV Investment Holdings LLC (Amazon) before the High Court of Delhi under Section 17(2) of the Arbitration Act to enforce the award/order dated 25 October 2020 of an Emergency Arbitrator. This emergency award/order was passed in arbitration proceedings (SIAC Arbitration No. 960 of 2020) initiated by Amazon against the Respondents collectively referred to as “Biyani Group” which includes Future Retail Limited & Ors (FRL). As agreed by the parties, the seat of the arbitral proceedings is New Delhi, and SIAC Rules apply.
The bone of contention between the parties was that in breach of the agreement with Amazon, Biyani Group entered into an agreement with the Mukesh Dhirubhai Ambani Group, envisaging the amalgamation of FRL, the consequential cessation of FRL as an entity, and the complete disposal of its retail assets in favour of the said group. Amazon filed for interim relief under the SIAC Rules, asking for injunctions against the aforesaid transaction. The Emergency Arbitrator passed an “interim award” providing interim injunction prohibiting Biyani Group from taking any steps to complete the disputed transaction.
The interim award of the Emergency Arbitrator and its implementation under the Indian Arbitration Act was contested in the Delhi High Court and finally brought to the Supreme Court as a Special Leave Petition.
Whether an “award” delivered by an Emergency Arbitrator under the Arbitration Rules of the SIAC Rules can be said to be an order under Section 17(1) of the Arbitration and Conciliation Act, 1996 (Arbitration Act)?
Regarding the first issue, the Supreme Court declared that “full party autonomy is given by the Arbitration Act to have a dispute decided in accordance with institutional rules which can include Emergency Arbitrators delivering interim orders, described as ‘awards.’ Such orders are an important step in aid of decongesting the civil courts and affording expeditious interim relief to the parties. Such orders are referable to and are made under Section 17(1) of the Arbitration Act” (para 41).
The Court noted that the “arbitration” in Section 2(1)(a) means any arbitration, whether or not administered by a permanent arbitral institution, including “interim orders that are passed by Emergency Arbitrators under the rules of a permanent arbitral institution would, on a proper reading of Section 17(1), be included within its ambit.” The Court also noted that the words “arbitral proceedings” are not limited by any definition and thus encompass “proceedings before an Emergency Arbitrator” (para 19).
The Court also reasoned that there is nothing in Section 17(1) to interdict the application of rules of arbitral institutions that the parties may have agreed to. This being the position, at least insofar as Section 17(1) is concerned, the “arbitral tribunal” would, when institutional rules apply, include an Emergency Arbitrator, the context of Section 17 “otherwise requiring” – the context being interim measures that are ordered by arbitrators (para 20). The Court further noted the objective of introducing Sections 9(2) and 9(3) was to prevent courts from being flooded with Section 9 petitions when an arbitral tribunal is constituted for two good reasons – (i) that the clogged court system ought to be decongested, and (ii) that an arbitral tribunal, once constituted, would be able to grant interim relief in a timely and efficacious manner.
The Court accordingly concluded that an Emergency Arbitrator’s “award,” i.e., order, would “undoubtedly be an order which furthers these very objectives, i.e., to decongest the court system and to give the parties urgent interim relief in cases which deserve such relief.” Given the fact that party autonomy is respected by the Act and that there is otherwise no interdict against an Emergency Arbitrator being appointed, it is clear that an Emergency Arbitrator’s order, which is exactly like an order of an arbitral tribunal once properly constituted would fall within the institutional rules to which the parties have agreed, and would consequently be covered by Section 17(1) when read with the other provisions of the Act.
Whether an order passed under Section 17(2) of the Arbitration Act in enforcement of the award of an Emergency Arbitrator by a learned Single Judge of the High Court is appealable?
Regarding the second issue, the Supreme Court declared that “no appeal lies under Section 37 of the Arbitration Act against an order of enforcement of an Emergency Arbitrator’s order made under Section 17(2) of the Act” (para 76).
The Supreme Court noted that Section 17(1) of the 2015 Amendment Act has provided the same powers to an arbitral tribunal as are given to a court. At the same time, there is no doubt that the arbitral tribunal cannot itself enforce its orders, which can only be done by a court with reference to the CPC. But the court, when it acts under Section 17(2), acts in the same manner as it acts to enforce a court order made under Section 9(1). If this is so, then what is clear is that the arbitral tribunal’s order gets enforced under Section 17(2) read together with the CPC.
The Court further held that Section 17(2) creates a legal fiction and there can be no doubt that the legal fiction created under Section 17(2) for enforcement of interim orders is created only for the limited purpose of enforcement as a decree of the court. To extend this fiction to encompass appeals from such orders is to go beyond the clear intention of the legislature. Thus, as far as Section 17 is concerned, the scheme qua interim orders passed by an arbitral tribunal mirrors the scheme qua interim orders passed by civil courts under Section 9. This vital difference between the provisions of Section 17 read with Section 9 and as contrasted with Section 36 puts paid to this argument.
Despite Section 17 being amended by the same Amendment Act, by making Section 17(1) the mirror image of Section 9(1) as to the interim measures that can be made, and by adding Section 17(2) as a consequence thereof, significantly, no change was made in Section 37(2) (b) to bring it in line with Order XLIII, Rule 1(r). The said Section continued to provide appeals only from an order granting or refusing to grant any interim measure under Section 17. There can be no doubt that granting or refusing to grant any interim measure under Section 17 would only refer to the grant or non-grant of interim measures under Section 17(1)(i) and 17(1)(ii). What is clear from this is that enforcement proceedings are not covered by the appeal provision.
International and Regional Trade Treaties and Bodies
International Economic Law
The Legal Status of ‘Joint Statement Initiatives’ and Their Negotiated Outcomes, Communication from India and South Africa dated 18 February 2021 (WT/GC/W/819)
India and South Africa, in their joint communication, considered new forms of plurilateral and open agreements that are inconsistent with WTO because they violate consensus-based decision-making. They noted that any attempt to introduce new rules resulting from the Joint Statement Initiatives negotiations into the WTO without fulfilling the requirements of Articles IX and X of the Marrakesh Agreement would be detrimental to the functioning of the rule-based multilateral trading system.
India’s Non-Participation in the “Joint Statement on Investment Facilitation for Development” dated 10 December 2021 (WT/L/1130)
In December 2021, 112 WTO members co-sponsored a ‘Joint Statement on Investment Facilitation for Development recognizing Easter Text (Revision 5).’ India refused to participate in the joint statement owing to the reservation that (i) negotiation of investment should not be under the WTO framework, and (ii) the plurilateral route of negotiations under which investment facilitation is being discussed has no legitimacy in the WTO.
Intellectual Property Rights
AstraZeneca AB & Anr. v. Intas Pharmaceuticals Ltd. in the High Court of Delhi, FAO(OS) (COMM) 139/2020, CMs No. 28068/2020, Judgement dated 20 July 2021
AstraZeneca holds Patent IN 147 as the genus patent that expired on 2 February 2023 and specie patent, Patent IN 625 (which is valid until 15 May 2023), which cover the pharmaceutical component “Dapagliflozin” (“DAPA”) and was granted by the Indian Patent Office. The species patent (IN 625) relates to the compound Dapagliflozin (DAPA), which forms a part of the Markush structure claimed in the genus patent (IN 147). The Defendant companies (nine generic drugmakers) sought to manufacture and sell drugs containing DAPA. AstraZeneca sought a permanent injunction from manufacturing and selling any drugs containing the compound DAPA claiming that it is still protected under its Patent IN 625. The defendants argued that two patents cannot be granted for a single invention and alleged that the genus patent anticipated the species patent. The defendants also argued that the patent lacked inventive step.
Judgment
The Delhi High Court division bench denied the remedy to AstraZeneca on the following grounds:
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With respect to one invention, there can be only one patent. A single formulation of DAPA is incapable of protection under two separate patents having separate validity period. AstraZeneca however, while claiming one invention only i.e. DAPA, are claiming two patents with respect thereto, with infringement of both, by the respondent companies (para 21).
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From the field of the invention “subject matter of the two patents being verbatim same, at this stage, it also appears that there is no enhancement of the known efficacy, within the meaning of Section 3(d) of the Act, between the product subject matter of IN 147 and the product subject matter of IN 625” (para 46).
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Once AstraZeneca, before the USPTO, is applied for and agreed to the validity period of US patent equivalent of IN 625 ending on the same day as the validity period of the US patent equivalent to IN 147, AstraZeneca, in this country is not entitled to claim different periods of validity of the two patents (para 50).
Environmental Protection Through Law/Regulation
International Environmental Law
Influence on Domestic Environmental Law
Access to Judicial and Administrative Proceedings, Including Remedies
Sridevi Datla v Union of India (2 March 2021 – SC): MANU/SC/0138/2021
India adopted the National Green Tribunal in 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources. It is a specialized body equipped with the legal and scientific expertise to handle environmental disputes which are multifaceted. The Supreme Court of India reiterated the link between the establishment of the National Green Tribunal and India’s commitments at the international level. More specifically, the Supreme Court referred to the United Nations Conference on the Human Environment (known as the Stockholm Conference), in 1972 and the United Nations Conference on Environment and Development at Rio de Janeiro in 1992 wherein specific emphasis was given to compensation to victims of pollution and other environmental degradation.
Protection of Mountain Ecosystem
S. Maheswari v State of Andhra Pradesh, Writ Petition Nos. 20185 and 7988 of 2020, Decided on: 28 October 2021, High Court of Andhra Pradesh
In this case, relating to the protection of the mountain ecosystem, the High Court of Andhra Pradesh relied on a range of binding and non-binding legal instruments to underline the obligation of the State to protect the mountain ecosystem. The court referred to the Fourth Meeting of the Conference of the Parties (COP) to the Convention on Biological Diversity, held in Bratislava in 1998, wherein mountain ecosystems were listed as an item for “in-depth consideration.” It also referred to the United Nations Framework Convention on Climate Change and observed that it “… offers minimal guidance for tackling the unique and possibly devastating consequences of climate change for mountain habitats and their human communities … In addition, the CCC notes the special vulnerability of specific biomes, including ‘fragile mountain ecosystems.’ It also referred to the Kathmandu Declaration on Mountain Activities” adopted by the International Union of Alpinist Associations (UIAA) in its 44th General Assembly held on 16 October 1982 and the Ecological Guidelines for Balanced Land Use, Conservation and Development in High Mountains adopted by the United Nations Environment Programme (UNEP) to foster ecologically sound development of mountain resources. In light of these international instruments, the court rejected the proposal of the government to convert a hillock into residential plots.
Specific Human Rights Incidents or Cases
Human Rights
Women’s Rights
‘Judicial Stereotyping’ and Gender Justice – Aparna Bhat v State of MP, 2021 SCC Online SC 230
The issue of ‘judicial stereotyping’ came up for discussion in this case relating to the imposition of certain bail conditions on a person accused of sexual harassment charges. The lower court allowed bail with the following condition:
The applicant along with his wife shall visit the house of the complainant with Rakhi thread/band on 3 August 2020 at 11:00 AM with a box of sweets and request the complainant – Sarda Bai to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come. He shall also tender Rs. 11,000/ – to the complainant as a customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings. The applicant shall also tender Rs. 5,000/ – to the son of the complainant – Vishal for purchase of clothes and sweets. The applicant shall obtain photographs and receipts of payment made to the complainant and her son, and the same shall be filed through the counsel for placing the same on record of this case before this Registry. The aforesaid deposit of amount shall not influence the pending trial, but is only for enlargement of the applicant on bail.
As per the Supreme Court, the term ‘Judicial stereotyping’ refers to the practice of judges ascribing to an individual specific attributes, characteristics or roles by reason only of her or his membership in a particular social group (e.g. women). It is used, also, to refer to the practice of judges perpetuating harmful stereotypes through their failure to challenge them, for example by lower courts or parties to legal proceedings.
The court relied on international law heavily to explain the normative aspects of judicial stereotyping.
First, it borrowed the following quote from a decision of the CEDAW Committee:
stereotyping affects women’s right to a fair trial and that the judiciary must be careful not to create inflexible standards based on preconceived notions of what constitutes domestic or gender-based violence.
Second, it used the following from the Bangalore Principles of Judicial Conduct, 2002:
A judge shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, colour, sex, religion, national origin, caste, disability, age.
The Court concluded that:
imposing conditions that implicitly tend to condone or diminish the harm caused by the accused and have the effect of potentially exposing the survivor to secondary trauma, such as mandating mediation processes in non-compoundable offences, mandating as part of bail conditions, community service (in a manner of speaking with the so-called reformative approach towards the perpetrator of sexual offence) or requiring tendering of apology once or repeatedly, or in any manner getting or being in touch with the survivor, is especially forbidden. The law does not permit or countenance of such conduct, where the survivor can potentially be traumatized many times over or be led into some kind of non-voluntary acceptance, or be compelled by the circumstances to accept and condone behavior what is a serious offence.
Calculation of Compensation for Homemakers – Kirti v Oriental Insurance Co. Ltd., (2021) 2 SCC 166
While discussing the importance of taking into consideration the household work generally carried out by women, the Supreme Court of India referred to the General Recommendation No. 17 on the Measurement and Quantification of the Unremunerated Domestic Activities of Women and their Recognition in the Gross National Product, 1991 adopted by the United Nations Committee on the Elimination of Discrimination Against Women. The court particularly noted the importance of measuring the unremunerated domestic activities of women to reveal the de facto economic role of women and to send the message to the society that the law and the Courts of the land believe in the value of the labour, services and sacrifices of homemakers. While supporting the inclusion of unremunerated work of homemakers in calculating the compensation, the Supreme Court highlighted it is a ‘reflection of changing attitudes and mindsets and of our international law obligations.’
Right of Married Women to be Considered for Compassionate Appointment – State of M.P. v Jyoti Sharma, 2021 SCC Online MP 744
In a case challenging a policy that deprives married women of the right to be considered for compassionate appointment, the High Court of Madhya Pradesh extensively referred to various provisions of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) to reiterate the obligation of India to adopt appropriate measures including laws and policies to prohibit all discrimination against women. The Court underlined that:
By operation of Article 2(f) and other related articles of CEDAW, the State should by appropriate measures modify law/policy and abolish gender-based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.
Refugees and Principle of Non-refoulement
Mohammad Salimullah v Union of India, 2021 SCC Online SC 296
The court discussed the application of the principle of non-refoulment in India. The Supreme Court reiterated the fact that India is not a signatory to the Refugee Convention. However, it held the right of the asylum seekers not to be deported as enshrined in the principle of non-refoulment as ‘ancillary or concomitant to the right to reside or settle in any part of the territory of India guaranteed under Article 19(1)(e).’
Nandita Haksar v State of Manipur, 2021 SCC OnLine Mani 176
The Manipur High Court took a different position when compared to the decision of the Supreme Court mentioned above. The Court observed that India’s policy on ‘refugees’ remains rather opaque and asylum seekers are straightaway branded as ‘foreigners.’ It was further observed that rights guaranteed under Articles 14 and 21 of the Constitution are available to everyone including foreigners. The High Court of Manipur, in this case, went to the extent of locating the principle of non-refoulment in Article 21 of the Constitution. Thus, the court held that:
The far-reaching and myriad protections afforded by Article 21 of our Constitution, as interpreted and adumbrated by our Supreme Court time and again, would indubitably encompass the right of non-refoulment, albeit subject to the condition that the presence of such asylum seeker or refugee is not prejudicial or averse to the security of this country. Therefore, though India may not be a signatory to the Refugee Convention of 1951, its obligations under other international declarations/covenants, read with Article 21 of our Constitution, enjoins it to respect the right of an asylum seeker to seek protection from persecution and life or liberty-threatening danger elsewhere.
Prisoner’s Rights
Right to Compensation for Unlawful Arrest or Detention – Jagdish v State of M.P., 2021 SCC Online MP 4117
The High Court of Madhya Pradesh made an observation in this case regarding India’s reservation to Article 9(5) of the International Covenant on Civil and Political Rights, 1966 (ICCPR) which recognizes the right of a victim of unlawful arrest or detention to receive compensation from the State. According to the court, although India has made reservations to this particular provision, this reservation has lost its significance because the Supreme Court of India, in a number of cases, awarded compensation for the infringement of the fundamental right to life of a citizen and therefore there is no need for an express provision in the Constitution of India for grant of compensation for violation of a fundamental right to life.
Rights of the Differently Abled
Vikash Kumar v Union Public Service Commission and Ors., Civil Appeal No. 273 of 2021 and Special Leave Petition (C) No. 1882 of 2021, Decided on: 11 February 2021, Supreme Court of India
In this case, involving the right of the differently abled persons to use the facility of a scribe to write examinations, the Supreme Court of India directed the Ministry of Social Justice and Empowerment, Government of India, to formulate the procedure to lay down appropriate norms to ensure that the condition of the candidate is duly certified by such competent medical authority as may be prescribed so as to ensure that only genuine candidates in need of the facility are able to avail of it. The Supreme Court took note of General Comment No. 7, adopted by the Committee on the Rights of Persons with Disabilities which underscores the importance of participative decision-making by involving persons with disabilities and organizations of persons with disabilities. By taking into account this international obligation, the Court directed the Ministry of Social Justice and Empowerment to formulate guidelines to facilitate the use of scribes by persons with disability by involving the public, particularly persons with disabilities and their organizations.
Acknowledgments
Acknowledge with thanks for the research support provided by Jeevan Justin, Deevyam Deepankar Dhal and Vivek Kumar.