Triple Talaq Bill introduced in Indian Parliament From an article in a leading newspaper: Mr. Shashi Tharoor said he was against triple talaq, already voided by the Supreme Court, but opposed the Bill as it conflated civil and criminal laws. How does it conflate civil and criminal laws?
How does it conflate civil and criminal laws? It doesn't directly, but it criminalises a process that was until recently purely a civil matter. The so-called triple talaq bill - now enacted as the The Muslim Women (Protection of Rights on Marriage) Act, 2019 - makes, at section 4, divorce by talaq a criminal offence: Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine. However, all other modes of divorce, such as The Dissolution of Muslim Marriages Act 1939 for example, fall within the gamut of civil law.
I don't believe it is contradictory. Some kinds of injury are inherently difficult to calculate (e.g. damage to reputation caused by slander) but the judge or jury, as the case may be, will review the evidence and do the best they can. Lord Reed says as much in paragraph 38 of his judgment. ... and as a practical matter, it appears the damages, in this case, were both calculable and supported by evidence. The Court's primary focus was not whether damages could be calculated but rather the measure of damages (i.e. the method of calculation).
This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification.
In Torcaso v. Watkins, 367 U.S. 488 (1961), the US Supreme Court ruled unanimously that a similar provision in Maryland's constitution violated the First Amendment and could not be enforced. So presumably the North Carolina provision is similarly unconstitutional and unenforceable. It's not clear why it wasn't removed in 1971. I found references to a 2009 incident in which an avowed atheist named Cecil Bothwell was elected to the Asheville, NC city council. Opponents apparently threatened to mount a legal challenge to his eligibility under the Article VI provision. It's not clear if they actually tried to do so, but in any event, Bothwell served his full four-year term and was then re-elected for another.
Probably not. As I understand it, the case is being run in Scotland on the belief that Scottish constitutional law is more likely to allow this claim than English law is. That is why the case is not being run in the High Court of England and Wales. The case can't start in the Supreme Court because (apart from specific kinds of disputes) the Supreme Court only hears appeals (see the Constitutional Reform Act 2005). If the Court of Session rejects the case, the plaintiffs might then appeal to the Supreme Court, which would hear the appeal under Scottish law. Scottish law is different to English law, but there's only one Parliament and one Crown. The letter you linked to goes to great lengths to highlight possible differences between Scottish and English law, but they all occur prior to the Treaty of Union which took effect in 1707. The Scottish Parliament's Union with England Act 1707, section 18, says that Scottish law continues in force except insofar as it is inconsistent with the Treaty. A law which provided for Ministers' or the Crown's powers to be curtailed in Scotland but not in England (in respect to a single indivisible subject matter such as the Parliament) would be inconsistent with the core proposition of the Treaty, which is the creating of a joint Crown and a joint Parliament (sections 1 and 2 of the Act). The above difficulties are to say nothing of the low likelihood that any court can: (a) stop Ministers from giving advice, given that the Minister is not exercising any power (only the Queen can actually prorogue Parliament); or (b) stop the Queen from proroguing Parliament (since Her Majesty is the source of the court's authority, and not subject to it). (For completeness it should be noted that the Scottish Parliament that passed the Union with England Act 1707 and the current Scottish Parliament are two entirely different things. The current Scottish Parliament was created by the UK Parliament's Scotland Act 1998, and its powers are set out in that Act. The current Scottish Parliament is prohibited from legislating with respect to the union with England (schedule 5 paragraph 1).) The letter also says that proroguing Parliament would be inconsistent with the European Union (Withdrawal) Act 2018. That Act expressly says that: the European Communities Act 1972 will be repealed on exit day (section 1); and up until two years after exit day, the Government can make regulations with the force of law to deal with deficiencies in UK law caused by Brexit, e.g. the conferral of powers under UK law on an EU body (presumably the regulations could transfer that power to a UK body) (section 8). The Act goes on to say that, if it gets Parliament's approval for a withdrawal agreement, the Government can make regulations with the force of law to implement that withdrawal agreement. If there is no withdrawal agreement, then there's no need for the Government to get Parliament's approval. Not only does the Act not say that Parliament needs to sit in order to consider Brexit, but it expressly sets out a coherent way to deal with the consequences of a no-deal Brexit, namely the regulations made under section 8. The case is pretty weak and would require a very adventurous judge to approve it. EDIT: Well fuck me: https://www.bailii.org/uk/cases/UKSC/2019/41.html
Germany would not extradite to Saudi Arabia. India and Kuwait might, because they and a few other countries have extradition treaties with KSA. To put this squarely in the realm of illegal (it's not clear that accidentally encountering Shiite material online is a crime in KSA), assume that the person deliberately watched porn then fled to India. Generally speaking, this is a severe enough offense to allow extradition under the India-KSA treaty. However, India gets to review the request for exceptions. Under article 3, the central question is whether this is a political crime. There are enumerated acts that are not deemed to be political. Watching porn is not a listed exception. Accordingly, India could determine that this is a political crime, and refuse to extradite. If the crime is advocating atheism, however, then under Article 3 (1)(j), this is presumably not an excludable offense, because atheism is officially terrorism in KSA per Royal Decree 44 (I can't find an official copy). On the third hand, India may still reserve the right to apply their definition of terrorism. Even if there were an extradition treaty between Germany and KSA, German law Act on International Cooperation in Criminal Matters of 23 December 1982 §3(1) would currently preclude extradition because Extradition shall not be granted unless the offence is an unlawful act under German law or unless mutatis mutandis the offence would also constitute an offence under German law. There might be acts that are offenses in both countries, but not e.g. "watching porn" or "advocating atheism". The boundaries of blasphemy under German law are not clear to me. Section 166 of the Strafgesetzbuch imposes a maximum of 3 years in prison for blasphemy, so it could be an extraditable offense. Sect. 6 of the "Cooperation" law also sets forth exclusions for reasons of political and religious persecution. Also, KSA would have to assure Germany that the death penalty would not be imposed.
IMO this is a perfectly reasonable question, amenable to a common law analysis: (1) indicates that A has committed the tort of false imprisonment (Restatement of Torts, 2d, §35). Because of 2-4, we can see that A intends to confine B (though vide infra). The confinement is complete (§36), this being a single aisle plane although the same would be true if this was a 5-aisle plane. A has no authority to confine B (§ 41) and is not otherwise privileged, and is accomplished with a physical barrier (§38). B knows that he has been confined (§42). B is "privileged to use any means of self-defense to protect himself against confinement which he is privileged to use to protect himself against a harmful or offensive contact or other bodily harm" (§68). B uses reasonable and minimal force not likely or intended to cause death or serious bodily harm (§63), force which is privileged and thus protects B from being subject to liability (§10). A commits the tort of battery (and a second round of false imprisonment) by taking B down (§13). A is not privileged to use force in self-defense. There is no reasonable belief that B will spontaneously turn on A and use further, unprivileged force – A is simply punishing B for his minimal use of force in self defense, so A's final act is not privileged. There is a related but distinct scenario that adds a material fact, which could change the analysis: C calls out "Excuse me, my flight flight leaves in 15 minutes, may I pass?" whereby A allows C to step ahead of him in the queue. A has no obligation to let anyone jump the queue, but may consent to inconsequential contact which might constitute battery. It is reasonable to conclude that there is apparent consent (§50) given to anyone (§52) when A makes way ("making way" is a publicly-available fact, but "for C to pass" is a private fact of A's state of mind which B cannot reasonably infer: except, B has heard the "May I pass?" request). So the analysis really hinges on how to interpret 2 and 4. Coupled with 6, we (jurors) have a preponderance of evidence showing that A intended to confine B, and battered him when his confinement failed.
Generally, a local county judge’s decision is not binding on the judgement of another judge unless it is that of an appellate division. The law of the case principle could be referred to as an argument if it would have been decided by another judge in the same case (some courtships work on a rotary basis with different judges sitting over a single case). This would mean that the court would give greater deference to that decision; however, applying the principle is a matter of administrative preference to save resources of the court. Whether or not the other judge would reconsider the matter would be within their discretion absent binding authority to the contrary as a “law of the case” is not binding. In fact, even if it would have been the same judge with the exact same facts deciding the matter in a final judgement, there wouldn’t be much to do. One could argue that deciding differently is a violation of the Fourteenth Amendment which, if the judge fails to explain the different decision on the exact same facts may have a reasonable probability to get overturned provided the unconstitutionality finding was correct in the first place. If the matter was, in fact, unconstitutional, appeals may overturn a contrary judgement if the issue is brought up in the lower court and enters the court record. It may have some weight still to cite the decision of the other judge as the argument may be given more weight than if merely delivered as the argument of counsel.