Supreme Court Judgment Research Articles

Mixing of Brand Cancellation Lawsuits and Brand Infringement Lawsuits

The mixing between trademark infringement lawsuits and annulments has made it an issue in trademark law enforcement, thus making it an excuse for the Supreme Court to overturn the Court's ruling. It raises new cases from the procedural law of brand law enforcement, but the dimensions of brand protection must still be upheld. For this reason, it is necessary to explain the difference between a trademark infringement lawsuit and trademark cancellation, as well as the reasons for the supreme court judge in decision No.525K/Pdt.Sus-HKI/2020 annulling judgment No. 4/Pdt.Sus-HKI/Merek/2019/PN Niaga.Sby regarding the mixing between the trademark infringement lawsuit and the cancellation of the brand. The Panel of Judges of the Surabaya District Court in Decision Number 4/Pdt.Sus-HKI/Merek/2019/PN-Niaga.Sby seems to prioritize its establishment based on the perspective of legal expediency, thus categorizing the defendant's actions as trademark violations. The Panel of Judges of the Supreme Court prioritizes its establishment based on the perspective of order, so the reason for overturning the decision of the Surabaya District Court considering the mixing between the infringement lawsuit and the cancellation of the brand is based on legal certainty. It is necessary to discuss the pattern of application of the law that converges between trademark cancellation lawsuits and trademark infringement and advise the Supreme Court to make guidelines in the form of regulations aimed at the judiciary that contain provisions on the criteria between annulment lawsuits and trademark infringement, so that they can be a reference for judges in the proceedings.

Revisiting Judicial Review of Constitutional Amendments in Bangladesh: Article 7B, the Asaduzzaman Case, and the Fall of the Basic Structure Doctrine

AbstractIn 1989, the Supreme Court of Bangladesh, in the Anwar Hossain Chowdhury case, first embraced implicit unamendability or interpretative unamendability of the Constitution – that is, the basic structure doctrine. Since then, the basic structure or the basic feature doctrine has been recognised as the theoretical premise underpinning judicial review of constitutional amendments in Bangladesh. In 2011, the Parliament adopted Article 7B of the Constitution, which introduced explicit or codified unamendability of a substantial number of provisions of the Constitution. This article argues that with the adoption of Article 7B, the basic structure doctrine has lost its relevance as the most important normative tool for determining the validity of future constitutional amendments, and this was confirmed in the Asaduzzaman case, in which the parliamentary mechanism for the removal of Supreme Court judges was held unconstitutional on the basis of Article 7B of the Constitution. It is also argued that the reasoning provided in the majority opinion of the Asaduzzaman case is not entirely flawless.

Consensus too soon: judges’ and lawyers’ views on genetic information use

Timely effective regulation of genetic advances presents a challenge for justice systems. We used a 51-item battery to examine views on major genetics-related issues of those at the forefront of regulating this area – Supreme Court judges (N = 73). We also compared their views with those of other justice stakeholders (N = 210) from the same country (Romania). Judges showed greater endorsement and less variability in views on the use of genetic data and technologies than the other groups. The agreement among the judges was strikingly strong for some controversial issues, including gene editing; patenting of genetic findings; and the State using genetic information for crime prevention. Judges and other lawyers recognized the need for amending the relevant laws. Without appropriate regulation, genetic science has a risk of propelling inequality rather than fulfilling its promise to improve people’s lives.

American Progressivism and the U.S. Supreme Court Jurisprudence: Chinese Exclusion Cases – the Origins of the Doctrine of Consular Non-Reviewability

At the turn of the 19th and 20th centuries, the American reform movements tried to match American ideals with the challenges of the times. Progressive attitudes highlighted the necessity of reforms. The Chinese issue, often risen in the public dialogue, was the subject of deliberation of the Supreme Court, the Congress, and the federal executive branch of government. Chae Chan Ping v. United States and subsequent cases established the doctrine of consular noneviewability referring to immigration law and delineating the scope of judicial review for decisions concerning the admission of immigrants to the United States. They also strengthened the plenary power doctrine. We may ask if the Supreme Court judgments were in conformity with the ideas of American Progressivism. Unfortunately, the Chinese Exclusion Cases were not compatible with the visions of progressive reformers and reflected anti-Chinese sentiment rather than an aspiration for reforms.

The Religion Clauses in the US Constitution: Some Debates on Liberty, Equality, and Religious Freedom

In this short article, my aim is to introduce readers to some debates about religious freedom and constitutional law in the United States.  I highlight a few of the enduring questions debated by political philosophers and legal scholars.  For example, does the Constitution require special religious exemptions for citizens whose religious convictions put them at odds with otherwise neutral and legitimate state policy?  Should the Constitution be interpreted as supporting a strict secularism or a multicultural egalitarian liberal position?  What are the limits to religious freedom?  To illustrate how these and related questions are debated I consider some recent work on religious freedom jurisprudence in the United States. Some legal theorists argue that the idea of religious freedom in the Constitution is based mostly on an ideal of liberty of conscience or freedom of religious belief and practice.  Others claim that both liberty and equality are central to the religion clauses of the Constitution.  This gives rise to debates on how best to respect the religious liberty of all citizens, including members of the many religious minorities in the US.  Debates on these issues also arise in legal practice, especially when the Supreme Court must decide whether a law unfairly burdens or restricts a religious practice.  By examining some important legal verdicts on the religion clauses to the First Amendment of the Constitution we can see some ways that theoretical debates about law and religious freedom are directly relevant to legal practice.  These verdicts also illustrate how political values such as liberty and equality oftentimes play a significant role in how the religion clauses of the Constitution are interpreted by Supreme Court judges. Keywords: Religious Freedom, Law, Constitution, Religion, Equality

Breaching The Limit: A Critical Evaluation Of The Increase In Reservation Limit In Karnataka

The Government of Karnataka had, in October 2022, promulgated an ordinance to increase the reservation limit of Scheduled Castes and Scheduled Tribes to 17 percent and 7 percent respectively. The ordinance was promulgated in furtherance of the recommendations made by the Justice HN Nagamohandas Commission which is also supported by the Justice Subhash Adi Committee report. Further, in December 2022, the Government of Karnataka had, seemingly as an act of appeasement and prior to the 2023 Assembly elections, tabled a Bill [The Karnataka Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Bill, 2022] in the Legislative Assembly which reiterates the increase in reservations for Scheduled Castes and Scheduled Tribes in the State just as the previously promulgated ordinance. The bill was eventually passed. The relevance of the ordinance and the bill is based on the observation that such an increase in reservation quota for the Scheduled Castes and Scheduled Tribes would bring the overall reservation quota above 50 percent, which is against the desirable limit prescribed by the Supreme Court on reservation. This paper mainly aims to critically analyse the bill and the possible legal hurdles it might encounter. The paper shall, in the first part, deal with the history of reservation in India and the various constitutional provisions regarding the same. Secondly, the various landmark Supreme Court judgements on reservation, especially the decisions on the desirable limit of reservation, would be elucidated. The paper would also delve into the recommendations of the Commission and Committee that have been cited as the main reasons for the introduction of such an ordinance and thereafter the bill. This shall be followed by an analysis of whether this is an exceptional circumstance which demands the breach of the 50 percent rule. The paper shall, in conclusion, pose the various challenges that the Bill raises if the introduction of it is merely a political gimmick rather than a special circumstance requiring the breach of the desirable 50 percent reservation limit.

WOMEN EMPOWERMENT AND THE INDIAN SUPREME COURT

Every significant decision of a woman’s life is controlled by patriarchy. Her birth itself is still uncertain in many families in the twenty-first century. The issue of her oppression needs to be targeted strongly and at a larger level because such laws are very conveniently brushed aside. Inequality prevails in all sections and sectors of life and women suppression is normalised in every household. With each passing year, the Indian legal system is getting stricter and louder with women’s issues. This research paper will study the newer laws that were passed in favour of women in the recent years. It discusses ground-breaking judgements related to honour killing, sex selection and women discrimination, workplace related discrimination and laws and dowry related atrocities in the recent years. Supreme Court judgements on women-centred cases like Shakti Vahini v Union of India (2018), Voluntary Health Association of Panjab v. Union of India (2013), Land Inheritance Law amended in 2022, Khurana and Others v. Union of India and Others (2014) and some more have been studied to understand how women development is being backed up by our legal system.

Community MH Must Include Care for Incarcerated Individuals, Released Prisoners

Community MH Must Include Care for Incarcerated Individuals, Released Prisoners

What is the gender on STF? An analysis of the gender discourse found in the decisions of the Supreme Court Judges

Resumo Do que falam as/os Ministras/os do Supremo Tribunal Federal quando falam de gênero? A proposta deste artigo é analisar como o gênero aparece no discurso da jurisprudência da Corte Constitucional brasileira. A partir de um levantamento dos acórdãos que mencionam a palavra “gênero”, 24 decisões foram encontradas e seus votos foram examinados, à luz da teoria da performatividade, para tentar responder à pergunta. Três empregos principais foram destacados e os trechos foram separados e examinados de acordo com uma categorização desse uso (sexo e gênero; gênero masculino e feminino e identidade de gênero). Ao fim, uma análise sobre a produção normativa do gênero e a produção da relação entre ideal e cópia como produção da matriz heteronormativa de gênero é identificada no discurso examinado.

Examining the living metaphor in the Indian Constitution

One popular understanding of the Indian Constitution is that it is a living document that evolves with time. Even though this metaphor has been used consistently by all three branches of the Indian state, its use in Indian legal texts is underexplored—as of most metaphors generally. In this article, we critically evaluate the application of the living metaphor in Indian constitutional discourse. We first provide an overview of the use of metaphors generally, and especially in the legal field. We then identify the origins and trace the use of the living metaphor by studying select Supreme Court judgments which have likened the Constitution to a living text and analyse the Court’s reasons, if any, for doing so. A comparative analysis of how the Canadian, US, and Australian courts have employed the living metaphor demonstrates how the Indian experience differs in its application of the metaphor. We find that the Supreme Court has used different variants of the living metaphor, primarily to expand the ambit of Part III of the Constitution. However, due to the inconsistent and unreliable use of this metaphor, we find that this has the potential to lead to illiberal results. We thus make a case for the formulation of a doctrine of living constitutionalism which we think will be more resilient to anti-democratic challenges.

Legal Protection Against Destitution in the UK: the Case for a Right to a Subsistence Minimum

In a 2003 Supreme Court judgment, Lord Hoffmann argued that in the absence of a guaranteed minimum standard of living, many other rights are reduced to ‘a mockery’. Given research findings that 2.4 million UK residents experienced destitution in 2019, this article considers whether a social floor exists in law and the implications of its absence or weakness for the standard of human rights protection in the UK. The common law, social rights treaties and the European Convention on Human Rights can each play a role in identifying a minimum standard of living, but with variable precision, generosity and enforceability – and subject to the sovereign legislature setting its own social floor, including one that may render people destitute. With an analysis of the case law revealing clear weaknesses in protection against destitution, the authors argue that a specific statutory duty is required to address this failure of rights protection.

Perlindungan Hukum terhadap Hak Pendesain Industri Atas Gugatan Pembatalan Pendaftaran Desain Industri (Studi Putusan MA No. 407.K/PDT.SUS/HKI)

The purpose of this study is an attempt to analyze the legal protection of industrial design rights over lawsuits for cancellation of industrial design registrations. The research method used is using normative legal research methods with literature study data collection techniques, the analysis of this research is decision analysis. The result of this research is that the legal protection for the rights of industrial designers who have registered for the lawsuit for the cancellation of the registration of industrial designs is that the legal protection against the lawsuit for cancellation can be given through the registration mechanism. Protection can be obtained if an industrial design has been registered. This makes it easier to prove and protect even though the principle is from the emergence of industrial design matters. An industrial design right certificate can be issued at the Director General of Intellectual Property Rights which has an important role as proof of ownership for industrial design rights so that it does not have an element of novelty. The conclusion of this study is the legal considerations of the Supreme Court judges on the lawsuit for the cancellation of industrial design rights which have been registered in the Supreme Court's decision no. 407.K/PDT.SUS/HKI/2019 has fulfilled a sense of justice because it does not have a juridical basis and provides legal protection to registered industrial design rights as well as legal certainty if the plaintiff who files a lawsuit for the cancellation of the registered industrial design right cannot prove that the industrial design rights are in accordance with the applicable laws and regulations.

End-of-life care for patients with prolonged disorders of consciousness following withdrawal of life-sustaining treatment: Experience and lessons from an 8-year cohort

National guidelines provide advice for end-of-life care in patients with prolonged disorders of consciousness (PDOC). Following a Supreme Court judgment in July 2018, updated guidelines set out requirements to ensure that decisions to withdraw clinically assisted nutrition and hydration (CANH) are made responsibly in the absence of a mandatory application to the court.This retrospective 8-year cohort analysis of prospectively collected clinical data examines the experience and lessons learned from implementing the guidelines in the 80 PDOC patients who have died in one tertiary centre since 2014. It also reports performance against the standards for elective withdrawal of CANH outside of court since July 2018.CANH was withdrawn in 39/80 (49%) of the patients, over half of whom were already imminently dying. Even in a centre where patients are referred for this purpose, elective CANH withdrawal is comparatively rare (just 14 patients since 2018). The requirements were met in all cases.

Killing in the Name Of? Capital Punishment in Colonial and Postcolonial India

Unlike whipping, which was quickly abolished following independence, India has continued to hold tightly to the noose’s rope and remains a retentionist country to our present day. Notably, though the number of executions would fall dramatically in the first decades of India’s postcolonial history, the list of crimes made punishable by death has grown ever longer in recent years. Rather than positing the continued presence of the death penalty as an anachronism ill-suited for a modern democracy, this article takes seriously the legal and discursive developments that allowed the most infamous of penal institutions to travel safely across India’s twentieth century. From something that begun as a distilled expression of racialised colonial state power, like many other state institutions during this period, the death penalty would undergo a series of changes to remain relevant amidst new organizing political principles of representative democracy and popular will. Moving from the first formal efforts at abolition in the 1920s, through constitutional assembly debates in the 1940s, and Supreme Court judgements between 1967-83, the article positions capital punishment as a product of both deep colonial inheritances, and a particular process of postcolonial translation. Becoming fully couched in the language of popular sentiment by the culmination of this legal transformation, this violence would become well-positioned to grow within a national political culture increasingly organised around majoritarian expressions of national belonging.

Mitu-Bell Welfare Society redux: A note on the strengths and weaknesses of the Supreme Court judgement

This note reviews the case of Mitu-Bell Welfare Society in view of the concerns raised over the Supreme Court judgment, as well as points raised in its support. It argues that on one hand, the court laid down foundations for future interpretation that will help courts better address violations of socio-economic rights in Kenya. Importantly, the court addressed the rights of persons facing evictions in informal settlements and the ‘bare minimum’ standards that should be applied in such situations. On the other hand, the note agrees with those who have found issue with how the court canvassed the place of international law in Kenya.

Powers and Practices of Courts An Analysis of Granting Bail in Pakistan

The procedure of law in order to decide the bail applications either prearrest or post arrest is well defined during the last decade by many judges of high court and Supreme Court. And one of the settled rules is that the court needs to make tentative assessment of available facts and story of FIR at the bail stage rather than the deeper assessment. In criminal justice system it is the need of time to review the law related to the surety bond because bail does not mean that the court of law will not fulfill the remaining procedure. Bail in the matter of prearrest is the discretion of the court and bail in the matter of post arrest is matter of right rather than discretion. In this context, this paper analyses powers and practices of Courts for granting Bail in Pakistan. It argues that Courts in Pakistan has discretionary powers in some cases for granting Bail. However, such exercise should be done in a prescribed manner and in due course.

The Role of Supreme Court Jurisprudence in Development of Islamic Family Law in Indonesia

The development of Islamic family law is carried out in all countries where the majority of the population is Muslim. New ideas in the field of Islamic family law are generally stated in the form of legislation. In Indonesia, the final court decision in the field of Islamic family law decided with the judges of Indonesian Supreme Court. The decision of Supreme Court judge will be jurisprudence. This study aims to examine the role of Supreme Court's jurisprudence in development of Islamic family law. The research conducted was library research. This study concluded: First, Judges of the Supreme Court in the Islamic civil field have a very important role in the development of Islamic family law in Indonesia. Judges can make breakthroughs or reform the thoughts of Islamic family law as outlined in the decisions they issued. Second, decisions of Supreme Court judges that have permanent legal, fixed and final will be used as jurisprudence or references by judges in the Religious Courts.

Ideological features in Kenya Supreme Court judgments

Legal discourse is characterised by unique grammatical, lexical and stylistic features which are meant to enhance clarity and precision in the legal content. However, from a critical perspective, some of the discursive and stylistic features used alienate the common person and elevate judges and lawyers to an ideological pedestal. This study undertook a Critical Discourse Analysis of Kenya Supreme Court judgements on election petitions and civil cases with a view to investigate the discursive features used to represent legal ideology. The study was guided by Critical Discourse Analysis theory and a qualitative research design was used. The population for this study comprised the judgements made by the Kenya Supreme Court since its inception in 2010. Purposive sampling was used to identify five judgements on election petitions and civil cases. Guided by the CDA theory, features representing legal ideology were explored and discussed. The features include use of lexical stylistic features, performative verbs, legitimation, presuppositions, argumentation, interrogative forms, metaphors, precedence and predication. These features were meant to create precision and authority in the Supreme Court judgements. However, from a critical perspective, it was imminent that the features led to elevation of judges and lawyers as custodians of justice while the ordinary person was excluded from the legal process. The insight from this study is applicable to Forensic Linguistics and legal drafting. Judges and lawyers ought to use language in such a way that the common person is not excluded. Technical terminology should be used when necessary more so in contexts that involve only the legal personnel. In legal contexts that involves the ordinary person, plain language should be used.

ATTITUDE OF DOCTORS TOWARDS EUTHANASIA

Background- Those who are pro euthanasia believe that such act eliminates the patient's pain and suffering. Right to die allows the person to die with dignity. But euthanasia may involve taking a human's life, The present study evaluates the attitude of doctors involved in care of critically ill patients towards euthanasia. Material & methods- A survey on Euthanasia was conducted amongst 100 doctors involved in the treatment of critically ill patients of various ailments at ICARE institute of Medical Sciences & Research Centre & B.C.Roy Hospital, Haldia, West Bengal, India, to nd out their attitude towards euthanasia. Results- In present study, majority i.e., 64 (64%) subjects were between 31-40 years, 24 (24%) subjects were between 41-50 years, 10 (10%) subjects were between 51-60 years while 2 (2%) subjects were more than 60 years. 56(28%) subjects were females while 44 (44%) subjects were males. 4 (4%) were Neurophysician, 5 (5%) were Neurosurgeon, 32 (32%) were Critical care consultant, 19 (19%) were Anesthetist, 34 (34%) were, 6 (6%) were Surgeon. 89 (89%) (81.2-94.4%, 95%CI) subjects were anti-euthanasia. In majority of circumstances, 89 (89%) subjects said they will not give euthanasia while 11 (11%) (5.6-18.8%, 95%CI) subjects said they will give euthanasia. Conclusion- Though the Supreme Court judgement has provided a major boost, it is a long way to go before it becomes a law. Also, its misuse remains a major issue.

The Right Honourable Boris Johnson MP v The Prime Minister: a (fictional) entrenchment problem – and solution (?)

This paper presents a hypothetical Supreme Court judgment issued in response to a similarly hypothetical entrenchment problem arising in the context of the United Kingdom's withdrawal from the European Union. The article imagines a scenario in which a Conservative government facing electoral defeat presses legislation through Parliament which is intended to entrench - to a very high degree - the United Kingdom's withdrawal. The hypothetical litigation suggests that the Supreme Court would upheld such legislation in the face of a subsequent statute passed in the ordinary way which purports to repeal the earlier Act.