Pub Date : 2021-01-02DOI: 10.1080/14729342.2021.1928856
Joshua Yeung, Kevin S. M. Bae
ABSTRACT The United Kingdom Supreme Court in Various Claimants v Wm Morrison Supermarkets plc [2020] UKSC 12 held that a tortfeasor’s motive was ‘highly material’ in considering the second stage ‘close connection’ test for vicarious liability. However, the authors submit that this reintroduction of motive is highly problematic. It runs contrary to previous jurisprudence and backslides into the rigid artificiality which the ‘close connection’ test was supposed to solve. A revised approach to the ‘close connection’ test is suggested, involving an objective consideration of the connection between the tortfeasor’s employment and the circumstances surrounding the tort. This approach remedies the above-mentioned problems and existing academic criticism of the ‘close connection test’, and further accurately reflects how the courts actually determine the second stage test for vicarious liability.
{"title":"Bad apple spoils the barrel: motive and the close connection test for vicarious liability after Various Claimants v Wm Morrison Supermarkets plc","authors":"Joshua Yeung, Kevin S. M. Bae","doi":"10.1080/14729342.2021.1928856","DOIUrl":"https://doi.org/10.1080/14729342.2021.1928856","url":null,"abstract":"ABSTRACT The United Kingdom Supreme Court in Various Claimants v Wm Morrison Supermarkets plc [2020] UKSC 12 held that a tortfeasor’s motive was ‘highly material’ in considering the second stage ‘close connection’ test for vicarious liability. However, the authors submit that this reintroduction of motive is highly problematic. It runs contrary to previous jurisprudence and backslides into the rigid artificiality which the ‘close connection’ test was supposed to solve. A revised approach to the ‘close connection’ test is suggested, involving an objective consideration of the connection between the tortfeasor’s employment and the circumstances surrounding the tort. This approach remedies the above-mentioned problems and existing academic criticism of the ‘close connection test’, and further accurately reflects how the courts actually determine the second stage test for vicarious liability.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"21 1","pages":"169 - 180"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2021.1928856","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43014927","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/14729342.2021.1877505
Dorcas Quek Anderson
ABSTRACT This note analyses the Singapore Court of Appeal's decision in BWG v BWF which allowed the adoption of inconsistent positions across related court proceedings against different parties. The decision raises crucial questions on the limits to be imposed on a party's freedom to pursue opposing rights in litigation, and how the doctrines of abuse of process, election by waiver, and approbation and reprobation should be applied. It is argued that the court's application of the abuse of process doctrine obscured the central exercise of assessing all the relevant interests and circumstances. The differing rationales underlying the common law doctrine of election and the equitable doctrine of approbation were also inadequately articulated, resulting in ambivalence concerning why they were deemed inapplicable. Finally, there was a missed opportunity to clarify how the doctrines overlap and yet differ.
{"title":"Blowing hot and cold in litigation: abuse of process, election or approbation and reprobation? BWG v BWF [2020] SGCA 36","authors":"Dorcas Quek Anderson","doi":"10.1080/14729342.2021.1877505","DOIUrl":"https://doi.org/10.1080/14729342.2021.1877505","url":null,"abstract":"ABSTRACT This note analyses the Singapore Court of Appeal's decision in BWG v BWF which allowed the adoption of inconsistent positions across related court proceedings against different parties. The decision raises crucial questions on the limits to be imposed on a party's freedom to pursue opposing rights in litigation, and how the doctrines of abuse of process, election by waiver, and approbation and reprobation should be applied. It is argued that the court's application of the abuse of process doctrine obscured the central exercise of assessing all the relevant interests and circumstances. The differing rationales underlying the common law doctrine of election and the equitable doctrine of approbation were also inadequately articulated, resulting in ambivalence concerning why they were deemed inapplicable. Finally, there was a missed opportunity to clarify how the doctrines overlap and yet differ.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"21 1","pages":"134 - 146"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2021.1877505","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44583798","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/14729342.2021.1876349
J. Corrin
ABSTRACT One of the many uses of comparative law is to examine the legal system of a foreign country in order to identify rules, procedures or institutions that work well, with a view to incorporating them into the domestic system. However, failure to appreciate the different context in which the law is to operate gives rise to unforeseen problems. This article employs examples from the law of contract in force in Pacific Island countries to illustrate the dangers of transplanting laws without giving due regard to existing laws. It commences with a brief explanation of the role of customary laws in state legal systems in the region. It examines a selection of cases where customary laws and transplanted contract laws have come face to face. It is argued that a pluralist approach offers the potential to move from state focussed law reform and to avoid the introduction of incompatible laws.
{"title":"Crossing the border from custom to contract: legal pluralism and Pacific Islands’ contract laws","authors":"J. Corrin","doi":"10.1080/14729342.2021.1876349","DOIUrl":"https://doi.org/10.1080/14729342.2021.1876349","url":null,"abstract":"ABSTRACT One of the many uses of comparative law is to examine the legal system of a foreign country in order to identify rules, procedures or institutions that work well, with a view to incorporating them into the domestic system. However, failure to appreciate the different context in which the law is to operate gives rise to unforeseen problems. This article employs examples from the law of contract in force in Pacific Island countries to illustrate the dangers of transplanting laws without giving due regard to existing laws. It commences with a brief explanation of the role of customary laws in state legal systems in the region. It examines a selection of cases where customary laws and transplanted contract laws have come face to face. It is argued that a pluralist approach offers the potential to move from state focussed law reform and to avoid the introduction of incompatible laws.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"21 1","pages":"73 - 94"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2021.1876349","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46973746","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/14729342.2021.1901191
Rudresh Mandal, S. Sunil
ABSTRACT Under the framework of the Indian Companies Act 2013, we seek to explore the possibilities of AI systems replacing directors in the board-room. We begin by examining the intractable debate in moral philosophy on the legal personhood of AI. Then, we go on to examine the current judicial and statutory understanding of the fiduciary duties of directors in s 166 of the Companies Act. We find that with the introduction of augmented AI into boardrooms, the existing construct of fiduciary duties is relatively sufficient, but needs some adaptation. Thereafter, we seek to build a case for dilution of the ‘natural person’ requirement for company directors in s 149 of the Companies Act and use Professors Bainbridge and Henderson’s concept of Board Service Providers towards this end. Drawing from Indian law provisions, the paper concludes by arguing that the proposed dilution is not as radical as it initially appears.
{"title":"The road not taken: manoeuvring through the Indian Companies Act to enable AI directors","authors":"Rudresh Mandal, S. Sunil","doi":"10.1080/14729342.2021.1901191","DOIUrl":"https://doi.org/10.1080/14729342.2021.1901191","url":null,"abstract":"ABSTRACT Under the framework of the Indian Companies Act 2013, we seek to explore the possibilities of AI systems replacing directors in the board-room. We begin by examining the intractable debate in moral philosophy on the legal personhood of AI. Then, we go on to examine the current judicial and statutory understanding of the fiduciary duties of directors in s 166 of the Companies Act. We find that with the introduction of augmented AI into boardrooms, the existing construct of fiduciary duties is relatively sufficient, but needs some adaptation. Thereafter, we seek to build a case for dilution of the ‘natural person’ requirement for company directors in s 149 of the Companies Act and use Professors Bainbridge and Henderson’s concept of Board Service Providers towards this end. Drawing from Indian law provisions, the paper concludes by arguing that the proposed dilution is not as radical as it initially appears.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"21 1","pages":"95 - 133"},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2021.1901191","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43692604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-02DOI: 10.1080/14729342.2020.1812025
A. Trakic
ABSTRACT A closer look at the recent Malaysian judicial decisions in Islamic finance cases shows that the power of the courts to adjudicate Islamic finance disputes has been diminished. The main cause of this seems to be the enactment of sections 56 and 57 of the Central Bank of Malaysia Act 2009, which mandated the courts to not only delegate the ascertainment of Shari’ah issues pertaining to Islamic finance to the designated Shari’ah Advisory Council (SAC), but also to accept and apply its rulings. This article examines the constitutionality of both sections with special reference to the recent decision in JRI Resources Sdn Bhd v Kuwait Finance House (Malaysia) Bhd [2019] 5 CLJ 569, in which the Federal Court upheld their validity by a slim majority of 5 to 4. The article offers alternatives that are both constitutional and receptive to the SAC’s role in the resolution of Islamic finance disputes.
摘要:仔细研究马来西亚最近在伊斯兰金融案件中的司法判决表明，法院裁决伊斯兰金融纠纷的权力已经减弱。造成这种情况的主要原因似乎是2009年马来西亚中央银行法第56条和第57条的颁布，该法案授权法院不仅将与伊斯兰金融有关的伊斯兰教法问题委托给指定的伊斯兰教法咨询委员会(SAC)，而且还要接受和适用其裁决。本文特别参考了最近JRI Resources Sdn Bhd诉科威特金融公司(马来西亚)Bhd [2019] 5 CLJ 569的判决，审查了这两个条款的合宪性，其中联邦法院以5比4的微弱多数维持了它们的有效性。这篇文章提供了一些既符合宪法，又能接受SAC在解决伊斯兰金融纠纷中的作用的替代方案。
{"title":"Shari’ah compliance in Islamic finance contracts: the Malaysian constitutional dilemma","authors":"A. Trakic","doi":"10.1080/14729342.2020.1812025","DOIUrl":"https://doi.org/10.1080/14729342.2020.1812025","url":null,"abstract":"ABSTRACT A closer look at the recent Malaysian judicial decisions in Islamic finance cases shows that the power of the courts to adjudicate Islamic finance disputes has been diminished. The main cause of this seems to be the enactment of sections 56 and 57 of the Central Bank of Malaysia Act 2009, which mandated the courts to not only delegate the ascertainment of Shari’ah issues pertaining to Islamic finance to the designated Shari’ah Advisory Council (SAC), but also to accept and apply its rulings. This article examines the constitutionality of both sections with special reference to the recent decision in JRI Resources Sdn Bhd v Kuwait Finance House (Malaysia) Bhd [2019] 5 CLJ 569, in which the Federal Court upheld their validity by a slim majority of 5 to 4. The article offers alternatives that are both constitutional and receptive to the SAC’s role in the resolution of Islamic finance disputes.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"289 - 309"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1812025","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43244292","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-02DOI: 10.1080/14729342.2020.1795462
D. Sheehan
ABSTRACT This paper argues that, accepting the division of unjust enrichment claims into enrichment by rights and by value, attribution mechanisms in proprietary restitutionary (eg rescission) and personal restitutionary claims are based on failure to realise exchange potential either of the value of a thing or rights to the thing. It suggests both can therefore be based on corrective justice, as corrective justice is concerned with intentional transactions in which the defendant receives value or rights the exchange potential of which are not properly realised or realisable for the claimant’s benefit. It further argues that recent case law in the United Kingdom Supreme Court supports this view by requiring intentional transactional links between claimant and defendant and that case law in both proprietary (tracing) and personal cases is coalescing around this understanding. The view that a ‘but-for’ link between claimant and defendant suffices in unjust enrichment claims is therefore wrong.
{"title":"‘At the expense of’: linking claimant and defendant in the law of unjust enrichment","authors":"D. Sheehan","doi":"10.1080/14729342.2020.1795462","DOIUrl":"https://doi.org/10.1080/14729342.2020.1795462","url":null,"abstract":"ABSTRACT This paper argues that, accepting the division of unjust enrichment claims into enrichment by rights and by value, attribution mechanisms in proprietary restitutionary (eg rescission) and personal restitutionary claims are based on failure to realise exchange potential either of the value of a thing or rights to the thing. It suggests both can therefore be based on corrective justice, as corrective justice is concerned with intentional transactions in which the defendant receives value or rights the exchange potential of which are not properly realised or realisable for the claimant’s benefit. It further argues that recent case law in the United Kingdom Supreme Court supports this view by requiring intentional transactional links between claimant and defendant and that case law in both proprietary (tracing) and personal cases is coalescing around this understanding. The view that a ‘but-for’ link between claimant and defendant suffices in unjust enrichment claims is therefore wrong.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"235 - 260"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1795462","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41445296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-02DOI: 10.1080/14729342.2020.1802692
Santanu Sabhapandit
ABSTRACT The public-private distinction is a common feature of judicial review in commonwealth countries. This article compares the operation of this distinction in the determination of the amenability of entities or decisions to judicial review in India and England. It identifies certain differences in the two jurisdictions that otherwise share some broad similarities in their systems for judicial review and how the issue of amenability to judicial review is determined. These differences are then explained by reference to certain underlying concerns of judicial review in the two jurisdictions. The article demonstrates that differences in the underlying concerns of judicial review may result in differences in how the public-private distinction is applied, which, in turn, may result in different outcomes for the amenability of an entity or a decision to judicial review. A recognition of the differences is helpful in expounding and predicting the operation of the public-private distinction in the two jurisdictions.
{"title":"The public-private distinction in judicial review: a comparative analysis of India and England","authors":"Santanu Sabhapandit","doi":"10.1080/14729342.2020.1802692","DOIUrl":"https://doi.org/10.1080/14729342.2020.1802692","url":null,"abstract":"ABSTRACT The public-private distinction is a common feature of judicial review in commonwealth countries. This article compares the operation of this distinction in the determination of the amenability of entities or decisions to judicial review in India and England. It identifies certain differences in the two jurisdictions that otherwise share some broad similarities in their systems for judicial review and how the issue of amenability to judicial review is determined. These differences are then explained by reference to certain underlying concerns of judicial review in the two jurisdictions. The article demonstrates that differences in the underlying concerns of judicial review may result in differences in how the public-private distinction is applied, which, in turn, may result in different outcomes for the amenability of an entity or a decision to judicial review. A recognition of the differences is helpful in expounding and predicting the operation of the public-private distinction in the two jurisdictions.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"261 - 288"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1802692","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46964504","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-02DOI: 10.1080/14729342.2020.1816685
R. Batty
ABSTRACT New Zealand trade mark law contemplates the exclusive ownership of symbols for the purpose of indicating the origin of goods and services. Historically, United Kingdom trade mark law (upon which New Zealand trade mark law is based) has been concerned to ensure traders had access to certain symbols. Legislation thereby excluded some symbols, like shapes, from registration. Judges also applied a ‘need to keep free’ policy and denied registration to descriptive, laudatory or geographical words. In this article, I trace how and why New Zealand trade mark law has moved away from imposing any ontological restrictions on what symbols can be registered, and has also limited the ability of judicial concerns about access to dictate registrability decisions. I then make the case for why some restrictions on registration would be desirable and explain how the existing Trade Marks Act 2002 could be amended to subtract certain symbols from the sphere of ownership entirely.
{"title":"Restrictions on ownership under New Zealand registered trade mark law","authors":"R. Batty","doi":"10.1080/14729342.2020.1816685","DOIUrl":"https://doi.org/10.1080/14729342.2020.1816685","url":null,"abstract":"ABSTRACT New Zealand trade mark law contemplates the exclusive ownership of symbols for the purpose of indicating the origin of goods and services. Historically, United Kingdom trade mark law (upon which New Zealand trade mark law is based) has been concerned to ensure traders had access to certain symbols. Legislation thereby excluded some symbols, like shapes, from registration. Judges also applied a ‘need to keep free’ policy and denied registration to descriptive, laudatory or geographical words. In this article, I trace how and why New Zealand trade mark law has moved away from imposing any ontological restrictions on what symbols can be registered, and has also limited the ability of judicial concerns about access to dictate registrability decisions. I then make the case for why some restrictions on registration would be desirable and explain how the existing Trade Marks Act 2002 could be amended to subtract certain symbols from the sphere of ownership entirely.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"310 - 341"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1816685","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45547465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-02DOI: 10.1080/14729342.2020.1833604
Jack Maxwell, Joe Tomlinson
ABSTRACT Public bodies in the United Kingdom are increasingly using algorithms and big data to make decisions. While there is growing awareness of the risks of algorithmic discrimination, it can be very difficult to establish that a specific algorithm is in fact discriminatory. This raises the question of how courts should allocate the burden of testing and proving whether a government algorithm is discriminatory, as between the government and the person affected. In R (Bridges) v South Wales Police [2020] EWCA Civ 1058, the England and Wales Court of Appeal found that public bodies must take positive steps to identify and address risks of algorithmic discrimination. This note explores the decision in Bridges and its implications for algorithmic decision-making in government. It suggests that Bridges, alongside recent decisions in Canada and the Netherlands, forms part of a broader trend: the courts are placing the burden of testing and reviewing potentially discriminatory algorithms on government, rather than the general public.
{"title":"Proving algorithmic discrimination in government decision-making","authors":"Jack Maxwell, Joe Tomlinson","doi":"10.1080/14729342.2020.1833604","DOIUrl":"https://doi.org/10.1080/14729342.2020.1833604","url":null,"abstract":"ABSTRACT Public bodies in the United Kingdom are increasingly using algorithms and big data to make decisions. While there is growing awareness of the risks of algorithmic discrimination, it can be very difficult to establish that a specific algorithm is in fact discriminatory. This raises the question of how courts should allocate the burden of testing and proving whether a government algorithm is discriminatory, as between the government and the person affected. In R (Bridges) v South Wales Police [2020] EWCA Civ 1058, the England and Wales Court of Appeal found that public bodies must take positive steps to identify and address risks of algorithmic discrimination. This note explores the decision in Bridges and its implications for algorithmic decision-making in government. It suggests that Bridges, alongside recent decisions in Canada and the Netherlands, forms part of a broader trend: the courts are placing the burden of testing and reviewing potentially discriminatory algorithms on government, rather than the general public.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"352 - 360"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1833604","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42466714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-02DOI: 10.1080/14729342.2020.1824886
S. Chaudhary
ABSTRACT The decision of a three-judge bench of the Supreme Court of India in Ritesh Sinha v State of Uttar Pradesh (2019) 8 SCC 1 judicially created the power of a magistrate to compel an accused person to submit voice samples for verification during a criminal investigation. The judgment is internally inconsistent in the sense that it abides by precedent where convenient, and disregards it where not. The Court's reliance on Article 142 of the Constitution of India (the power of the Supreme Court to do complete justice) to judicially legislate a compulsive power is also inappropriate and unconstitutional. In its haste to arm the State with another tool of investigation, the Court elevates the ordinary needs of criminal investigation to the standard of ‘compelling public interest’, without providing any apparent justification, and more importantly, without considering that such an exercise is appropriately the domain of the legislature.
摘要印度最高法院在Ritesh Sinha v State of Uttar Pradesh（2019）8 SCC 1一案中由三名法官组成的审判庭的裁决，在司法上赋予了地方法官强制被告在刑事调查期间提交语音样本以供核实的权力。该判决在内部是不一致的，因为它在方便的地方遵守先例，在不方便的地方无视先例。最高法院依据《印度宪法》第142条（最高法院行使完全正义的权力）对强制权力进行司法立法也是不恰当和违宪的。在匆忙用另一种调查工具武装国家的过程中，法院将刑事调查的普通需求提升到了“令人信服的公共利益”的标准，没有提供任何明显的理由，更重要的是，没有考虑到这种做法属于立法机构的职权范围。
{"title":"The compelling public interest in testimonial compulsion: a critique of the Supreme Court of India's decision in Ritesh Sinha v State of Uttar Pradesh","authors":"S. Chaudhary","doi":"10.1080/14729342.2020.1824886","DOIUrl":"https://doi.org/10.1080/14729342.2020.1824886","url":null,"abstract":"ABSTRACT The decision of a three-judge bench of the Supreme Court of India in Ritesh Sinha v State of Uttar Pradesh (2019) 8 SCC 1 judicially created the power of a magistrate to compel an accused person to submit voice samples for verification during a criminal investigation. The judgment is internally inconsistent in the sense that it abides by precedent where convenient, and disregards it where not. The Court's reliance on Article 142 of the Constitution of India (the power of the Supreme Court to do complete justice) to judicially legislate a compulsive power is also inappropriate and unconstitutional. In its haste to arm the State with another tool of investigation, the Court elevates the ordinary needs of criminal investigation to the standard of ‘compelling public interest’, without providing any apparent justification, and more importantly, without considering that such an exercise is appropriately the domain of the legislature.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"20 1","pages":"342 - 351"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2020.1824886","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42645190","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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