scholarly journals The Emperor of All Actualities: S.377 Jurisprudence in Comparative Context

2019 ◽  
Author(s):  
Nihal Sahu
Keyword(s):  
Separation Of Powers ◽  
Court Decision ◽  
Colonial History ◽  
Global Theory ◽  
High Court ◽  
Academic Scholarship ◽  
Long Line ◽  
Foreign Law ◽  
Changing Attitudes ◽  
Rule Making

Navtej Singh Johar v. Union of India revolutionized, contemporized, and revitalized our Equality jurisprudence. In this essay, I argue that Supreme Court’s jurisprudence culminating in Navtej is best understood as one in a long line of cases leading us to an expanded notion of equality (Articles 14 and 15) in the context of a gradual and ongoing judicial acceptance of academic scholarship on a global theory of sexual sovereignty. I address the history behind S. 377 including colonial history, early jurisprudence, attempts at repeal, the High Court decision in Naz Foundation, the reversal in Koushal, and the intermediary steps of NALSA and Puttaswamy leading to redemption in Navtej. I also examine the Indian Supreme Court’s changing attitudes towards comparative constitutionalism with a special emphasis on foreign law, examining the global theory and comparing Navtej with its parallel in Lawrence v. Texas with a focus on Spatial Privacy, Deliberative Autonomy, and Expressive Liberty. I further examine the constitutionality of S. 377 in a neutral manner while considering parallels with Lawrence, noticing how a utopian reading of Lawrence maps perfectly onto the singular approach in Naz and the various approaches in Navtej. I also note the most distinct contributions to our jurisprudence made by the bench in Navtej. In doing so, I examine the changes in our Article 14 and Article 15 jurisprudences, our Right to Privacy jurisprudence emanating from Article 21, and the varying judicial attitudes that lead to such changes. I conclude with a note on the importance of clear rule- making, clarity, consistency, and respect for the separation of powers in judicial analysis.

I. THE ‘CAUTIOUS LEX FORI’ APPROACH TO FOREIGN JUDGMENTS AND PRECLUSION

2012 ◽  
Vol 61 (2) ◽  
pp. 519-530 ◽  
Author(s):  
Jacob van de Velden
Keyword(s):  
Court Decision ◽  
English Court ◽  
High Court ◽  
Foreign Law ◽  
Foreign Judgment

If from the imperfect evidence of foreign law produced before it, or its misapprehension of the effect of that evidence, a mistake is made by an English court, it is much to be lamented, but the tribunal is free from blame.1 The mistake to be lamented presently is the High Court decision in Yukos Capital Sarl v OJSC Rosneft Oil Co2 that a Dutch judgment3 gave rise to an issue estoppel in English proceedings, precluding a party from disputing as a fact the partiality and dependence of the Russian judiciary.4 The decision was a mistake because on a proper construction of Dutch law the significance of the Dutch judgment was—if anything—evidential, not preclusive.5 The outcome is lamentable, because a party was unduly shut out from litigation by the application of English preclusion law to a foreign judgment that was not preclusive in the jurisdiction where it was originally given.6

Discriminatory Taxation in Light of Fortescue: Its Implications for the Development of Northern Australia

2014 ◽  
Vol 42 (1) ◽  
pp. 1-23
Author(s):  
Anthony Gray
Keyword(s):  
Federal Government ◽  
Court Decision ◽  
Northern Australia ◽  
High Court ◽  
The North ◽  
Northern Regions ◽  
Word Discrimination ◽  
Taxation System

In the recent Fortescue decision, the High Court made some interesting observations regarding interpretation of the word ‘discrimination’ in the context of the Federal Government's power with respect to taxation in s 51(2) of the Australian Constitution. Coincidentally, the Federal Government has commenced consideration of options for the development of northern regions of Australia. Of course, one option would be to introduce a variable taxation system to encourage businesses and individuals to be based, and/or invest, in northern Australia. This article considers possible constitutional issues associated with variable taxation schemes overtly favouring businesses and individuals based in the ‘north’, given the recent High Court decision.

Finally, Our Own Brown! (?)

2012 ◽  
Vol 45 (2) ◽  
pp. 267-289 ◽  
Author(s):  
Yifat Bitton
Keyword(s):  
African American ◽  
Theoretical Analysis ◽  
Supreme Court Decision ◽  
The Other ◽  
Court Decision ◽  
High Court ◽  
Court Of Justice ◽  
Us Supreme Court ◽  
Distinctive Group ◽  
Contextual Reality

The decision in Noar Kahalacha, an anti-segregation in education case that was recently delivered by the Israeli High Court of Justice, has been ‘naturally’ celebrated as the ‘Israeli Brown’. But is it? This article points to the differences between the monumental US Supreme Court decision of Brown and the Israeli Brown-equivalent – Noar Kahalacha. It contends that the two cases bear differences that stem from the divergent patterns of discrimination they represent, and that they reflect these differences squarely. The discrimination patterns reflected by the cases differ by virtue of traits that are traditionally overlooked in antidiscrimination theoretical analysis. Comparing the two cases, therefore, allows us an opportunity to revisit the notion of discrimination and its antidote, antidiscrimination. Drawing on the dichotomous concepts of de jure/de facto discrimination and difference/sameness discrimination, the article shows how these dual theoretical notions are determinative in shaping the distinctiveness of each of these cases. While the African American victims in Brown were easily recognised as a distinctive group suffering from de jure discrimination, the Mizrahi victims in Noar Kahalacha – who suffer from de facto discrimination within a Jewish hegemonic society – lacked such clear recognition. Accordingly, the discrimination narrative that Noar Kahalacha provides is very incomplete and carries only limited potential for effective application in future struggles to eliminate discriminatory practices against Mizrahis in Israel. Brown, on the other hand, carries a converse trait. Though criticised, Brown, nevertheless, strongly signifies the recognition by White America of its overarching discriminatory practices, and implies a genuine dedication to break from it. This understanding further illuminates the limitations embedded in the possibility of ‘importing’ highly contextual antidiscrimination jurisprudence from abroad into our system's highly contextual reality of discrimination.

Gender, Internal Armed Conflict, and High Court Decision-Making in Transitioning Societies

2021 ◽  
Author(s):  
Lee Demetrius Walker ◽  
Melissa Martinez ◽  
Christopher Pace
Keyword(s):  
Decision Making ◽  
Court Decision ◽  
Internal Conflict ◽  
Political Rights ◽  
Habeas Corpus ◽  
High Court ◽  
Men 2 ◽  
Civil And Political Rights ◽  
And Gender ◽  
Conflict Intensity

Abstract Building on research that applies the policy deference model to high court decision-making during external war, we propose that conflict intensity, political government's preference on liberalization, and the gender of appellant impact the manner in which courts follow policy deference during internal war in transitioning countries. Contextually, we argue that shifts in women's roles and gender relations during internal conflict in transitioning societies condition the manner in which civilian courts make decisions on civil and political rights cases. During external war in advanced democracies, policy deference infers that courts will rule more conservatively on civil and political rights cases. Using habeas corpus cases as a representation of civil and political rights’ protection from El Salvador's civil war period (1980–1992) and two measures of conflict intensity, our findings indicate that the court's decision-making process deviates from conventional expectations derived from the policy deference model in three ways: (1) conflict intensity solely affects the court's decision-making on habeas corpus cases involving men; (2) the political government's choice for political liberalization affects the court's decision-making on both women and men cases; and (3) gender conditions the manner in which policy deference applies in a society that is experiencing societal change.

scholarly journals The stakeholder-communication continuum: An alternate approach to internal and external communications

2020 ◽  
Vol 6 (1) ◽  
pp. 7-33
Author(s):  
Rita Chen
Keyword(s):  
Public Relations ◽  
Professional Communication ◽  
Professional Literature ◽  
The Public ◽  
Stakeholder Identification ◽  
Academic Scholarship ◽  
Changing Attitudes ◽  
External Communications ◽  
Stakeholder Communication ◽  
Depth Interviews

Academic scholarship and professional literature have defined communications as existing in two groups: internal and external/public relations. However, globalism, technology, evolving communication practices, and the maturation of the public relations field have evoked changing attitudes and perceptions regarding stakeholder identification, publics, and communications. This researcher sent a broad, representative survey to university alumni, conducted in-depth interviews with university staff, and performed a content analysis of alumni-facing communications, resulting in an alternate method of viewing internal and external communications. Dubbed the stakeholder-communication continuum, the theory places internal and external communications on either end of a spectrum, with stakeholder groups plotted along the continuum based on their relationship to the organization and each other. ©Journal of Professional Communication, all rights reserved.

scholarly journals Disclosure in Centre for Child Law v the Governing Body of Hoërskool Fochville

2017 ◽  
Vol 20 ◽  
pp. 1-20
Author(s):  
Michael Tsele
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
High Court ◽  
Governing Body ◽  
Foreign Law ◽  
The Supreme Court ◽  
Children's Interests ◽  
Court Of Appeal ◽  
Do So

When a party refers to evidentiary material in the course of litigation, ordinarily this party is under an obligation to make this evidence available to his opponent, particularly when called upon to do so. However, over the years various principles have developed which make this obligation subject to certain limitations. The Fochville cases dealt with a situation where a party to litigation sought to withhold certain information from its adversary, notwithstanding the fact that the material had been relied upon as a ground for the institution of the litigation. This note critiques the judgments of the High Court and in particular the Supreme Court of Appeal in this dispute. In so doing, it draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity. In this regard, the note concludes that the High Court's overall approach to the issue is to be preferred.       

scholarly journals The Increments of Justice: Exploring the Outer Reach of Akiba’s Edge towards Native Title ‘Ownership’

2019 ◽  
Author(s):  
Simon Young
Keyword(s):  
Court Decision ◽  
Current Regulation ◽  
High Court ◽  
Native Title ◽  
First Peoples ◽  
New Challenges ◽  
Torres Strait ◽  
The Many

The Torres Strait regional sea claim, culminating in the High Court decision of Akiba v Commonwealth, signalled a new respect for the holistic relationships and dominion that underlay First Peoples’ custodianship of land and waters. The ‘Akiba correction’ centred upon a distinction between ‘underlying rights’ and specific exercises of them – and produced in that case a surviving right to take resources for any purpose (subject to current regulation). The correction emerged from extinguishment disputes, but the significance of this edge towards ‘ownership’ was soon evident in ‘content’ cases on the mainland. Yet there are new challenges coming in the wake of Akiba. What of the many native title determinations that have been settled or adjudicated on pre-Akiba thinking? And what does this renaissance in native title law offer to the communities that will fail (or have failed) the rigorous threshold tests of continuity – also crafted with the older mindset?

The Ebb and Flow of the Liberalization of the Jordanian Press: 1985–1997

1998 ◽  
Vol 75 (1) ◽  
pp. 127-142 ◽  
Author(s):  
Orayb Aref Najjar
Keyword(s):  
Court Decision ◽  
Press Freedom ◽  
Peace Agreement ◽  
High Court ◽  
The Past ◽  
The Press ◽  
The Government ◽  
Media Globalization ◽  
Ebb And Flow

This study examines press liberalization in Jordan. It argues that Jordan's evolving relations with Palestinians, its peace agreement with Israel, and media globalization have changed the context within which the Jordanian media operate and have given the government some flexibility to liberalize the press starting in 1989. However, some of the same issues that have led to press restrictions in the past have precipitated the introduction of “The Temporary Law for the Year 1997” while the parliament was not in session. The study concludes that the presence of a a loose coalition of forces working for press freedom coupled with the January 1998 High Court decision declaring the temporary law unconstitutional suggest it is premature to read a eulogy for Jordanian press freedom.

A Reflective Assessment of Selected Problematic Aspects of South Africa’s Appraisal Remedy Regime Against the Backdrop of Cilliers v La Concorde Holdings Ltd

2020 ◽  
Vol 32 (3) ◽  
pp. 389-406
Author(s):  
J Mudzamiri ◽  
PC Osode
Keyword(s):  
Fair Value ◽  
Court Decision ◽  
Practical Application ◽  
Reflective Assessment ◽  
High Court ◽  
Holding Company

Several policy rationales have been offered as justifications for the new appraisal remedy, including its functioning as a credible exit vehicle for disgruntled shareholders upon receipt of payment of a ‘fair value’ for their shares. However, against the backdrop of the High Court decision in Cilliers v LA Concorde Holdings Ltd, this article explores two problematic issues regarding the practical application of the appraisal remedy. The first issue relates to who may access the remedy, while the second relates to the complexity, costs, and rigidity of the procedure that must be followed to access successfully the inherent benefits of the appraisal remedy. The paper argues, in the first instance, that the court’s decision in Cilliers to allow disgruntled shareholders in a holding company to access appraisal rights in relation to a subsidiary is salutary; and, secondly, that the complexity, costs, and rigidity of the appraisal procedure can be alleviated through the revision of some of the underlying statutory provisions.

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