scholarly journals Maratha Reservation in Maharashtra: A Challenge to the Principles of Equality

2020 ◽  
Vol 9 (2) ◽  
pp. 59-76
Author(s):  
Kartik Agarwal
Keyword(s):  
The State ◽  
High Court ◽  
Separate Class

The Maharashtra Government has passed a Special Educational and Backward class Act, 2018 to provide additional reservation for Marathas. Article 15(4) and 16(4) authorizes the State to provide reservation for backward classes. However, the same has to be exercised in a very cautious manner. The judicial approach towards reservation has resulted in the evolution of numerous requirements that are mandated to be fulfilled, while providing reservation. This includes, inter alia, a ceiling limit of 50%, inadequacy of representation and quantifiable data. Maratha reservation took the total reservation count in the state to 68%, which is way ahead of the ceiling limit. The step was considered to be more towards appeasing politically influential Marathas than to do justice to them. Upon being challenged in Bombay High Court, the court upheld the reservation and gave a justification for the existence of extraordinary circumstances in favour of reservation for Marathas. This paper aims to constitutionally analyze the said Act, to understand whether the Marathas fulfil all the abovementioned yardsticks of ‘backwardness’. The paper also aims to determine whether creating a separate class for Marathas is justifiable or not.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

scholarly journals AT v Dulghieru: Accounting for the Profits of Sex Trafficking

2009 ◽  
Vol 40 (4) ◽  
pp. 695
Author(s):  
Anne O'Driscoll
Keyword(s):  
Criminal Law ◽  
Sex Trafficking ◽  
International Crime ◽  
Sexual Exploitation ◽  
The State ◽  
Trafficking In Persons ◽  
High Court ◽  
Unjust Enrichment ◽  
Civil Remedies

This article explores the remedies available to victims of the international crime of trafficking in persons for sexual exploitation. In the 2009 case of AT v Dulghieru (Dulghieru), the English High Court awarded the victims of an unlawful conspiracy to traffic general, aggravated and exemplary damages. Treacy J based the exemplary award on the rationale of preventing unjust enrichment. The appropriateness of the finding of unlawful means conspiracy is considered, as are each of the damages awards. This article concludes that the prevention of unjust enrichment is an inappropriate basis for an award of exemplary damages, and argues that the better approach would be to strip a defendant's gains by the equitable remedy of account of profit. The overlap of civil remedies and the criminal law is also addressed. It is proposed that an account of profit should take priority over any criminal confiscation order as the victims have a greater entitlement to the profits than the State does.

scholarly journals Plant-Based Mediation Contribution to the Settlement of Cases at the Court

2020 ◽  
Vol 8 (2) ◽  
pp. 300-312
Author(s):  
Abdul Mustopa
Keyword(s):  
The State ◽  
High Court ◽  
Legal Principles ◽  
Low Level ◽  
Trial Process ◽  
Family Psychology ◽  
Constitutional State ◽  
Civil Cases ◽  
Knowledge Communication ◽  
Online Mediation

Mediation is one of the stages in the trial process. Mediation must be carried out by the parties, who are disputing civil cases in all areas of the judiciary. Mediation is a law, as the State of Indonesia is a state based on law. Article 1 of the 1945 Constitution is a constitution that regulates the form of the state of Indonesia as a constitutional state. The contribution of offline and online-based mediation to the settlement of cases in the regional courts of the Mataram Religious High Court when combined, the two seem to be insignificant in resolving cases, both offline and online mediation. The low level of success is due to the mediator factor and the factor of justice seekers. The mediator factor is assessed due to the lack of ability (skills) of the mediator, the mediator only carries out mediation according to formal legal principles, the mediator does not master role knowledge, communication science, family psychology which results in rigidity in carrying out mediation, if the mediator has multiple disciplines, of course it will spawn. better results of the implementation of mediation. The justice seeker factor is judged due to the lack of seriousness in participating in a mediation forum led by a mediator and each of them has adhered to its principles.

scholarly journals Causal Factors of Judicial Decisions Disparity on Cases of Violence Against Children

2018 ◽  
Vol 5 (5) ◽  
pp. 130
Author(s):  
Sebastianus Mantolas ◽  
Supanto Supanto ◽  
Widodo Tresno Novianto
Keyword(s):  
The State ◽  
State Court ◽  
Analytic Thinking ◽  
Causal Factors ◽  
High Court ◽  
Violence Against Children ◽  
Judicial Decisions ◽  
Court Judge ◽  
Approach Method ◽  
The Difference

Disparity Judge's verdict on crime cases of recent violent against children often happens everywhere, one of them is in Kupang High Court of East Nusa Tenggara. Justice nowadays, generally aimed at the justice holders, in this case, are more specifically aimed at the profession of judges. Then, the approach method used was Normative with analytic thinking which means departing from an event. The research showed that: the factors that are very influential on the judge's decision were the difference of law application between the judge of the state court and the high court judge, so that always appear the case of disparity. Disparity done by the judge turned out to be caused a very big problem, this is due to the judge decided freely based on their self-desire the things that will be done or not done in a verdict.

Tanzanian media will become a political battleground

2017 ◽  
Keyword(s):  
Social Media ◽  
New Media ◽  
Freedom Of Expression ◽  
The State ◽  
Content Type ◽  
High Court ◽  
The Government ◽  
Public Criticism

Significance In early March, the Tanzanian High Court ruled in favour of the 2015 Cybercrimes Act, rejecting arguments that it breaks freedom of expression laws. Social media represents a potent forum for challenging the dominance of the state, as many African governments are realising, but in their efforts to control public narratives, they are failing to address the threat of cybercrime. Impacts The government is likely to increase the use of the Cybercrimes Act to target critical voices on social media. As the opposition strengthens, government efforts to quell public criticism in both old and new media will intensify. The government still maintains the support of donors, but attacks on individuals and opposition critics could undermine relationships. Far from limiting public criticism, excessive use of the Cybercrimes Act could intensify autocratic perceptions of Magufuli.

Response: Recent Development regarding Judicial Review of Legislative Process in Israel

2020 ◽  
Author(s):  
Gonen Ilan
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
The State ◽  
Legislative Process ◽  
High Court ◽  
Court Of Justice ◽  
State Economy ◽  
Recent Developments ◽  
First Time

Abstract In an article published recently in the Statue Law Review,1 Prof. Shucheng Wang has examined the deferential approach to judicial review of the legislative process as adopted by the CFA,2 due to the Leung3 case. In this short response, I focus on two issues that are not mentioned in Prof. Wang’s article but that are crucial for understanding recent developments concerning judicial review of the legislative process in Israel by Israel’s High Court of Justice (HCJ). First, this response will present the most recent, and more crucial, ruling of the HCJ from late 2017 in the Quantinsky v. The Israeli Knesset (2017)4 which established a new precedent and in which, for the first time in Israel’s history, a new law was invalidated due to flaws in the legislative process. Second, I wish to emphasize the specific type of law that was invalidated and that is more prone to flaws in the legislative process: The Omnibus Law of Arrangement in the State Economy, which includes hundreds of budget statutes, and is characterized by a very unique and hasty legislative process. Therefore, this response wishes to complement Prof. Wang’s thesis and provide an update regarding the Israeli HCJ judicial approach of due process of legislation.

State Jurisdictional Residue: What Remains to a State Court When Its Chapter III Functions are Exhausted?

2014 ◽  
Vol 42 (1) ◽  
pp. 1-22
Author(s):  
Helen Irving
Keyword(s):  
Human Rights ◽  
State Power ◽  
Federal Court ◽  
The State ◽  
Judicial Power ◽  
State Court ◽  
High Court ◽  
Federal Jurisdiction ◽  
High Court Of Australia ◽  
Court Of Appeal

Momcilovic v The Queen (2011) 245 CLR 1 provided the first opportunity for the High Court of Australia to consider the constitutional validity of a ‘declaration of inconsistent interpretation’ made under s 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Court's ruling on this point attracted attention going well beyond the rest of the case. The constitutional status of the Charter's ‘declaration’ function had long been uncertain; in addition, although the case concerned a conviction under State law, the judgment of the Victorian Court of Appeal, from which Ms Momcilovic's appeal had come to the High Court, had been exercised in federal jurisdiction. This, then, raised questions about the extent to which the State Court was jurisdictionally limited, under the Kable doctrine, by its ‘identity’ as a Ch III court: whether the declaration power could be exercised by both, either, or neither, a State or federal court. Notably, French CJ found the power valid for a State court, but invalid for a federal court. In explaining his conclusion, the Chief Justice identified what this paper calls ‘State jurisdictional residue.’ In his Honour's words, ‘there is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction … could not proceed to exercise the distinct non-judicial power conferred upon it by’ the Charter. Further questions were then raised about the extent to which a State court, albeit exercising federal jurisdiction, remains free to exercise a ‘residual’ State power relevant to the same proceedings. This paper considers such questions. It also asks what the case might be for reconsidering Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, particularly in light of the more recent judgment in Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

What’s Plainly Wrong in Australian Law? An Empirical Analysis of the Rule in Farah

2020 ◽  
Vol 43 (3) ◽  
Author(s):  
Antonia Glover
Keyword(s):  
20Th Century ◽  
Empirical Analysis ◽  
Internal Consistency ◽  
The State ◽  
Judicial System ◽  
Appellate Courts ◽  
High Court ◽  
Gold Mines ◽  
Modern Context ◽  
The Law

In Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, and again in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, the High Court pronounced that Australian courts must follow the decisions of appellate courts across Australia unless convinced that those decisions are ‘plainly wrong’. This article seeks to track the development and application of this rule in both a historical and modern context. It first examines the state of the law prior to Marlborough and then engages in an empirical analysis of the use of the rule since Marlborough in 1993, tracking how often the rule has been used and where divergence between jurisdictions has emerged. The results confirm the existence of a judicial system with an increased focus on, and practice of, internal consistency. This replaces the 20th century paradigm in which loyalty to Britain was prioritised over intra-Australian uniformity.

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