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GS Paper: Executive & Judiciary

  • What is Sealed Cover Jurisprudence?

    seal

    The Supreme Court has suggested a way out of routinely filing documents in sealed covers, especially in cases touching on national security.

    What did the apex Court say?

    • The court said the government could redact the sensitive portions and show the rest to the petitioners.
    • This would address both the state’s concerns about “national security” and the “right to know” of petitioners.

    What is Sealed Cover Jurisprudence?

    • It is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges.
    • A specific law does not define the doctrine of sealed cover.
    • The Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.

    Nature of the power: Upholding Secrecy

    • If the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such information.
    • There is an exception to this if the Chief Justice himself orders that the opposite party be allowed to access it.
    • It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public.
    • As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.

    Grounds of such secrecy

    Other instances where information may be sought in secrecy or confidence is when its publication:

    1. Impedes an ongoing investigation of cases related to national security
    2. Details that are part of the police’s case diary or
    3. Breaches the privacy of an individual

    Prominent cases of sealed jurisprudence

    Sealed cover jurisprudence has been frequently employed by courts in the recent past.

    (1) Rafale Deal

    • In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by CJI Ranjan Gogoi in 2018, had asked the Centre to submit details related to deal’s decision making and pricing in a sealed cover.
    • This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

    (2) Bhima Koregaon Case

    • In the Bhima Koregaon case, in which activists were arrested under the Unlawful Activities Prevention Act.
    • The Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

    Issues with such jurisprudence

    • This practice appears to be unfavorable to the principles of transparency and accountability of the Indian justice system.
    • It stands in contrast to the idea of an open court, where decisions can be subjected to public scrutiny.
    • It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down the reasoning for their decisions.
    • Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.

     

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  • Reframing the Guidelines of Capital Punishment

    Capital

    Context

    • CJI, Justice Lalit had displayed unique sensitivity to the plight of the condemned ‘death row prisoners’ in Anokhi Lal vs State of M.P. (2019), Irfan vs State of M.P., Manoj and Ors vs State of M.P. (May 2022) and impart corrections in the form of creative directions/guidelines.

    What is capital punishment?

    • Capital punishment, sometimes called death penalty, is execution of an offender sentenced to death after conviction by a court of law for a criminal offense.
    • It should be distinguished from extrajudicial executions carried out without due process of law.
    • The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution, because of the possibility of commutation to life imprisonment.

    Capital

    Background of capital punishment

    • Bachan Singh case: In Jagmohan Singh vs State of UP’ (1973), then in ‘Rajendra Prasad vs State of UP’ (1979), and finally in ‘Bachan Singh vs State of Punjab’ (1980) the Supreme Court affirmed the constitutional validity of the death penalty.
    • Punishment according to fair procedure: It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict.
    • Rarest of rare case: This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

    What is “rarest of rare” case?

    • The principles of what would constitute the “rarest of rare” were laid down by the top court in the landmark judgment in ‘Bachan Singh’.
    • Two prime questions, the top court held, may be asked and answered:
    • First: is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence?
    • Second: are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according to maximum weightage to the mitigating circumstances which speak in favor of the offenders?

    Why existing guidelines are problematic?

    • Arbitrary sentencing: There has long been a judicial crisis in death penalty sentencing on account of unprincipled sentencing, arbitrariness and worrying levels of subjectivity. The crisis has been acknowledged by the Supreme Court, the Law Commission of India, research scholars and civil society groups.
    • Crime-centric nature: Death penalty sentencing has been, by and large, crime-centric. This approach goes against the requirements imposed on sentencing judges by the Supreme Court in Bachan Singh (1980).
    • Nature of crime a dominant consideration: An important reason for the breakdown is that factors relating to the crime the nature of the crime and its brutality are often dominant considerations, and there is barely any consideration of mitigating factors.
    • Little discussion on mitigating factors: There has been very little discussion on bringing the socioeconomic profile of death row prisoners as a mitigating factor into the courtroom.

    capital

    What are new guidelines through recent judgement?

    • Considering Potential mitigating circumstances: The focus here is on reframing ‘Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences’, a decision authored by the three judge Bench (the current CJI and Justices Ravindra Bhat and Sudhanshu Dhulia, September 19, 2022).
    • Seeking remedies beyond Legislative and judicial limitation: Such a reference to a larger Bench would constitute yet another step in the direction of death penalty sentencing justice reform such as the legislative limitation flowing from Section 354(3) in the Code of Criminal Procedure; judicial limitation flowing from the ‘rarest of rare’ case; and ‘oral hearing’ after all the remedies to the condemned are exhausted.
    • Mitigating factors are important: Justice Ravindra Bhat did not stop at paying lip service to ‘rarest of rare’ case limitation, but also required the sentencing court to take the trouble of balancing the aggravating factors and mitigating factors, as per the full Bench ruling.
    • The following observations of the Court are significant: “It is also a fact that in all cases where imposition of capital sentence is a choice of sentence, aggravating circumstances would always be on record, and would be part of [the] prosecutor’s evidence, leading to conviction, whereas the accused can scarcely be expected to place mitigating circumstances on the record, for the reason that the stage for doing so is after conviction.
    • Granting real and meaningful opportunity: The three judge Bench decision seems to have gone beyond sentencing incongruities when it observes: “This court is of the opinion that it is necessary to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to formal hearing to the accused/convict on the issue of sentence.”

    Conclusion

    • Free, fair and transparent opportunity has been given to accused while awarding the death sentence. Supreme court of India has rightly laid down the guidelines through judgement for sentencing the capital punishment to prevent the arbitrary use and misuse of capital punishment.

    Mains Question

    Q. What are the issues with death penalty guidelines in India? What are the new guidelines by SC regarding capital punishment?

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  • Non-Transparent Collegium, Is there any Alternative?

    Collegium

    Context

    • Once again, the Collegium of the Supreme Court of India is in the news, and once again for the wrong reasons. This time, it is because of the difficulty hat its five judges have in getting together for one meeting. Justice Chandrachud and Justice Nazeer withhold approval.Apparently, they do not object to the names but object to the procedure of circulation.

    What is Collegium system?

    • The Collegium of judges is the Indian Supreme Court’s invention.
    • It does not figure in the Constitution, which says judges of the Supreme Court and High Courts are appointed by the President and speaks of a process of consultation.
    • In effect, it is a system under which judges are appointed by an institution comprising judges.

    • After some judges were superseded in the appointment of the CJI in the 1970s, and attempts made subsequently to affect a mass transfer of High Court judges across the country.

    Collegium

    What was the perception around Independence of judiciary under threat?

    • There was a perception that the independence of the judiciary was under threat. This resulted in a series of cases over the years.
    1. First Judges Case (1981): SC ruled that the “consultation” with the CJI in the matter of appointments must be full and effective. However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
    2. Second Judges Case (1993): Introduced the Collegium system, holding that “consultation” really meant “concurrence”. It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
    3. Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    What are the problems associated with collegium system?

    • Emphasis on Seniority principle: Collegium system emphasizes excessively on seniority.
    • No discussion on merit and objectivity: However, following the seniority convention offers a semblance of certainty and transparency, even though it takes away from selecting judges on other objective criteria such as merit and competence.
    • Collegium changes its own decision: At times, the sanctity of Collegium’s own decisions no longer stands. Its own previous decision to appoint other persons to the Supreme Court was reversed, without any explanation or justification.
    • Lack of procedure: Besides this, no one knows how judges are selected, and the appointments made reek of biases of self-selection and in-breeding.
    • Widely known Nepotism: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles.
    • Lack of checks and balances: With its ad hoc informal consultations with other judges, which do not significantly investigate criteria such as work, standing integrity and so on, the Collegium remains outside the sphere of legitimate checks and balances.
    • Opaque system: The lack of a written manual for functioning, the absence of selection criteria, the arbitrary reversal of decisions already taken, the selective publication of records of meetings.

    Collegium

    Collegium system is blessing in disguise

    • Protect independence of judiciary: The framers of the Constitution were alive to the likely erosion of judicial independence.
    • On May 23, 1949, K T Shah stated that the Judiciary, which is the main bulwark of civil liberties, should be completely separate from and independent of the Executive, whether by direct or by indirect influence.
    • NJAC Declared unconstitutional: In 2016, the Supreme Court struck down a constitutional amendment for creating the National Judicial Appointments Commission (NJAC).
    • Distrust on political executive: The SC strongly disapproved of any role for the political executive in the final selection and appointment of judges. The SC said that “reciprocity and feelings of payback to the political executive” would be disastrous to the independence of the judiciary.

    What is National Judicial Appointment Commission (NJAC)?

    • What is NJAC?
    • guarantee the independence of the system from inappropriate politicisation,
    • Strengthen the quality of appointments,
    • Enhances the fairness of the selection process,
    • Promotes diversity in the composition of the judiciary, and
    • Rebuilds public confidence in the system.
    • NJAC was missed opportunity of reforms: The SC in its majority decision declared the NJAC unconstitutional and missed an opportunity to introduce important reformatory changes in the functioning of the judiciary.
    • Judicial majority could have been discussed: According to the experts, the Supreme Court could have read down the law, and reorganised the NJAC to ensure that the judiciary retained majority control in its decisions. However, it did not amend the NJAC Act to have safeguards that would have made it constitutionally valid.
    • No reforms in the collegium system: It also did not reform the Collegium in any way to address the various concerns voiced by one and all, including the Court itself, Instead, to the disappointment of all those who hoped for a strong, independent and transparent judiciary, it reverted to the old Collegium based appointments mechanism.

    Collegium

    Conclusion

    • Appointments to the top court seem to be the preserve of judges from the High Court with a handful of appointments from the Bar. Surely some nodding acknowledgement should be given to a specific provision made by the founding fathers in the Constitution. Judges appointing the judges is not a sustainable practice for future of judiciary.

    Mains Question

    Q.What is NJAC? Why Collegium system is blessings in disguise? Explain the Collegium system of appointments.

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  • Justice DY Chandrachud nominated as next CJI

    cji

    Chief Justice of India U.U. Lalit nominated Justice D.Y. Chandrachud as his successor. He will be 50th CJI.

    How is CJI selected?

    • Justice U.U. Lalit is the senior-most judge in the Supreme Court now.
    • The ‘Memorandum of Procedure of Appointment of Supreme Court Judges’ says “appointment to the office of the CJI should be of the seniormost Judge of the SC considered fit to hold the office”.
    • The process begins with the Union Law Minister seeking the recommendation of the outgoing CJI about the next appointment.

    What is the time frame?

    • The Minister has to seek the CJI’s recommendation at the “appropriate time”.
    • The Memorandum does NOT elaborate or specify a timeline.

    Making final appointment

    The Memorandum says:

    1. Receipt of the recommendation of the CJI
    2. The Union Minister of Law, Justice and Company Affairs will put up the recommendation to the PM
    3. PM will advise the President in the matter of appointment
    4. The President of India appoints the CJI

    Chief Justice of India: A brief background

    • The CJI is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian federal judiciary.

    Appointment

    • The Constitution of India grants power to the President to nominate, and with the advice and consent of the Parliament, appoint a chief justice, who serves until they reach the age of 65 or until removed by impeachment.
    • Earlier, it was a convention to appoint seniormost judges.
    • However, this has been broken twice. In 1973, Justice A. N. Ray was appointed superseding 3 senior judges.
    • Also, in 1977 Justice Mirza Hameedullah Beg was appointed as the chief justice superseding Justice Hans Raj Khanna.

    Qualifications

    The Indian Constitution says in Article 124 (3) that in order to be appointed as a judge in the Supreme Court of India, the person has to fit in the following criteria:

    • He/She is a citizen of India and
    • has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
    • has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
    • is, in the opinion of the President, a distinguished jurist

    Functions

    • As head of the Supreme Court, the CJI is responsible for the allocation of cases and appointment of constitutional benches which deal with important matters of law.
    • In accordance with Article 145 of the Constitution and the Supreme Court Rules of Procedure of 1966, the chief justice allocates all work to the other judges.

    On the administrative side, the CJI carries out the following functions:

    • maintenance of the roster; appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court

    Removal

    • Article 124(4) of the Constitution lays down the procedure for removal of a judge of the Supreme Court which is applicable to chief justices as well.
    • Once appointed, the chief justice remains in the office until the age of 65 years. He can be removed only through a process of removal by Parliament as follows:
    • He/She can be removed by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present.
    • The voting has been presented to the President in the same session for such removal on the ground of proven misbehavior or incapacity.

     

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  • Back in news: Supreme Court Collegium

    The Supreme Court Collegium has issued an unprecedented statement acknowledging differences between Chief Justice of India and two senior judges over the procedure to select candidates for appointment as apex court judges.

    What is the news?

    • Two senior judges of the apex court objected to the CJI’s never-before act of circulating his written recommendations among the collegium members for their approval.
    • The standard procedure instead is to have adopt across-the-table discussions.

    What is the issue over this?

    • CJI Lalit is slated to retire on 8
    • As per the Supreme Court convention, the outgoing CJI does not hold collegium meetings when the appointment of his successor has already started.

    What exactly is the Collegium System?

    • The collegium system was born out of years of friction between the judiciary and the executive.
    • The hostility was further accentuated by instances of court-packing (the practice of changing the composition of judges in a court), mass transfer of HC judges and two supersessions to the office of the CJI in the 1970s.
    • The Three Judges cases saw the evolution of the collegium system.

    Evolution: The Judges Cases

    • First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
    • However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.
    • Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
    • It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court.
    • Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    How does the collegium system work?

    • The collegium of the CJI and four senior-most judges of the Supreme Court make recommendations for appointments to the apex court and High Courts.
    • The collegium can veto the government if the names are sent back by the latter for reconsideration.
    • The basic tenet behind the collegium system is that the judiciary should have primacy over the government in matters of appointments and transfers in order to remain independent.

    The procedure followed by the Collegium

    Appointment of CJI

    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
    • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

    Other SC Judges

    • For other judges of the top court, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The consultees must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

    For High Courts

    • The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

    Does the Collegium recommend transfers too?

    • Yes, the Collegium also recommends the transfer of Chief Justices and other judges.
    • Article 222 of the Constitution provides for the transfer of a judge from one High Court to another.
    • When a CJ is transferred, a replacement must also be simultaneously found for the High Court concerned. There can be an acting CJ in a High Court for not more than a month.
    • In matters of transfers, the opinion of the CJI “is determinative”, and the consent of the judge concerned is not required.
    • However, the CJI should take into account the views of the CJ of the High Court concerned and the views of one or more SC judges who are in a position to do so.
    • All transfers must be made in the public interest, that is, “for the betterment of the administration of justice”.

    Loopholes in the Collegium system

    • Lack of Transparency: Opaqueness and a lack of transparency, and the scope for nepotism are cited often.
    • Judges appointing Judge: The attempt made to replace it with a ‘National Judicial Appointments Commission’ was struck down by the court in 2015 on the ground that it posed a threat to the independence of the judiciary.
    • Criteria: Some do not believe in full disclosure of reasons for transfers, as it may make lawyers in the destination court chary of the transferred judge. It has even been accused of nepotism.

    Way ahead

    • In respect of appointments, there has been an acknowledgment that the “zone of consideration” must be expanded to avoid criticism that many appointees hail from families of retired judges.
    • The status of a proposed new memorandum of procedure, to infuse greater accountability, is also unclear.
    • Even the majority of opinions admitted the need for transparency, now Collegiums’ resolutions are now posted online, but reasons are not given.

     

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  • Live-streaming of Court: Definitely A Great Move

    CourtContext

    • On September 27, the Supreme Court enabled the live streaming of the hearing of cases.
    • A full court of all Supreme Court judges under the leadership of Chief Justice U U Lalit took the unanimous decision to live-stream constitutional bench proceedings. Justice Chandrachud, the Chairperson of the Supreme Court’s E-committee and the driving force behind the live streaming initiative, began the hearing in his courtroom by announcing,”We are virtual”.

    Background

    • The Court’s original decision by the bench of the then Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud on September 27, 2018, allowing the live telecast of important proceedings paved the way for this outcome. They had held that the live-streaming of court proceedings is in the public interest.
    • Their vision had the full support of Chief Justices M V Ramana and U U Lalit.

    What is live-streaming technology?

    • At its core, streaming content is meant to help people attend events, expos, and experiences they cannot attend in person.
    • Live streaming technology is how videos are streamed over the internet, live, in real-time, as they are being recorded.
    • Live streaming technology is the internet’s response to live television broadcasts, with the most popular being news shows and sports.

    What is Live-streaming of the court?

    • Live streaming of court is that its proceedings that the people can watch on their mobiles and computers.All courtrooms function under camera glare.

    CourtWhy Live-streaming of court is so important?

    • Instilling Faith in the Judiciary: Enabling the ordinary people of the country to view, without any barrier, the workings of the highest court of the land will go a long way in instilling faith in the judiciary.
    • Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.Important step toward developing an informed citizenry.
    • Respect to Rule of Law: The decision will enable people to understand the importance of the rule of law.It will help people appreciate that the judiciary is firm in protecting the rights of the impoverished, historically marginalised and disempowered sections of society. Potential to build a culture of respect for the rule of law.
    • Living up the expectation of Constitution: Live-Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21.
    • More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know. This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
    • Raise the quality and standards of the legal profession: Lawyers will be better prepared to appear before the court and they will be mindful of not making irresponsible remarks. An inclusive approach to public scrutiny could nudge and enable lawyers to take the justice delivery mechanisms more seriously than they may have in the past.
    • Level playing field: It also creates a level playing ground for the younger members of the legal profession as their preparedness and intellectual prowess will be apparent to all.
    • Academic help: Watching courtroom proceedings,actual arguments by lawyers and searching questions by judges  could inspire law students to take up this relatively neglected field.Law faculty members and legal researchers will be motivated to work on new areas of scholarship and research relating to the functioning of the judiciary and legal profession.
    • Easy accessibility reducing the obstacle of distance: With live-streaming, the litigants will no longer have to come to Delhi to witness proceedings of their case which would be just a click away.
    • Strengthening Democracy: Transparency and accessibility of the process of justice delivery will strengthen the country’s democracy

    CourtWhat are the Concerns around live-streaming of court?

    • Contempt of court: Video clips of proceedings from Indian courts are already on YouTube and other social media platforms with sensational titles and little context, such as “HIGH COURT super angry on army officer”.
    • Disinformation and sensationalism: There are fears that irresponsible or motivated use of content could spread disinformation among the public.
    • Unnecessary activism: With the advent of social media, every citizen became a potential journalist. Study shows that justices behave like politicians when given free television time, they act to maximize their individual exposure
    • Internet connectivity: Internet connectivity issues and the need for a well-equipped space where lawyers can conduct their cases are some of the major problems requiring attention.
    • Awareness and training: Judges, court staff and lawyers are not well-versed with digital technology and its benefits. The need of the hour is for them to be made aware of these and receive adequate training.

    CourtWhich countries live-stream their court hearing?

    • Internationally,constitutional court proceedings are recorded in some form or the other.
    • United States: The Supreme Court of the United States streams its hearings in audio format at the end of each week.The US top court publishes hearings on its website and Oyez of all cases. Oyez is a multimedia judicial archive of the Supreme Court of the United States’ proceedings.
    • Brazil: The Supreme Federal Court of Brazil live streams hearings of all cases in video format on television.
    • UK: The UK Supreme Court live streams hearings of all cases in video format on its website.
    • Canada: The Canadian Supreme Court also live streams hearings of all its cases in video format on its website.
    • Australia: The Australian Supreme Court streams hearings of its full-court cases on its website with a delay of about a day. Meanwhile, the High Court of Australia (HCA) does not live-stream its proceedings.
    • China: In China,court proceedings are live-streamed from trial courts up to the Supreme People’s Court of China.

    Conclusion

    • The chief justices (past and present) and the judges of the Supreme Court deserve to be congratulated for enabling a path-breaking and democratic decision that allows the people of India to be able to watch the live proceedings of the Constitutional Bench.The distinguished jurist, Oliver Holmes,famously observed,“The great thing in the world is not so much where we stand, as in what direction we are moving.” The judges of the Supreme Court of India have ensured that we are indeed moving in the right direction.

    Mains Question

    Q.Adoption of technology will radically change the field of law and transform the judiciary. What will be the role of courts, judges, politicians,media and citizens of the country regarding live streaming of court proceedings. Discuss

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  • Supreme Court’s basic structure doctrine in a new context

    basic structureContext

    • The basic structure doctrine constitutes a high watermark in the assertion of the Supreme Court’s judicial power in the teeth of a determined majoritarian regime.

    What is basic structure of Constitution?

    • The basic structure doctrine is one of the fundamental judicial principles connected with the Indian Constitution. The doctrine of the basic structure holds that there is a basic structure to the Indian Constitution, and the Parliament of India cannot amend the basic features.

    What is the significance of the basic structure in the Constitution of India?

    • The doctrine of basic structure is nothing but a judicial innovation to ensure that the power of amendment is not misused by Parliament. The idea is that the basic features of the Constitution of India should not be altered to an extent that the identity of the Constitution is lost in the process.08-Dec-2021

    Background

    • Courts are empowered under our Constitution to invalidate not only executive orders, but also legislative enactments that violate any part of the Fundamental Rights guaranteed in Part III of the Constitution (Bill of Rights).
    • But as to whether they are also empowered to adjudicate on the validity of constitutional amendments passed with the requisite special majority and following the procedure prescribed in Article 368 the Constitution is silent.

    basic structureHistorical developments on evolution of basic structure doctrine

    • Constitution provided a mechanism for parliament to amend the constitution in the form of article 368 but the nature and scope of this amending power was questioned in Supreme Court on multiple occasions. Supreme Court gave a series of judgement which ultimately culminated in probably the most landmark judgement Basic structure doctrine judgement.
    • Shankari Prasad Case
    • Sajjan Singh Case
    • Golakh Nath Case
    • Kesvananda Bharati Case
    • Minerva Mills case
    • I.R. Koelhi

    Constitutional Provisions

    1. 1st amendment and 9th schedule
    2. 24th amendment
    3. 42nd amendment

     

    His holiness, Kesavananda bharati, challenged before the supreme court, the validity of 29th CAA which inserted some laws in 9th schedule and affected property of his Hindu Mutt.

    What else was at stake?

    1. Supreme Court (R. C. Cooper case) had struck down bank nationalization act of 1969 which had nationalized 14 major banks for illusory compensation though it conceded parliament’s right to nationalise banks in national interest.
    2. Supreme Court had struck down abolition of privy purses which was a betrayal of solemn promise to erstwhile kings by Sardar Patel.

    Supreme Court could do all this as it had held in 1967 in Golaknath case that fundamental rights could not be abridged.

    Before returning back to Kesavananda, Let’s take a look at the relevant provisions of the constitution and Supreme Court interpretation of the same.

    • Art 13(2) – Any LAW abridging fundamental rights mentioned in part 3 shall be null and void to the extent of contravention
    • Art 368 -Procedure to amend the constitution.
    • Art 19(f) – freedom to acquire hold on and dispose off property.
    • Art 31 – right to property

    Both the rights were subject to reasonable restriction in public interest and restriction were subject to judicial review.

    Soon after the coming into force of the constitution, states enacted land reform acts #Zamindars challenged them. #Patna high court declared Bihar act as unconstitutional for violating right to property #interim parliament passed 1st CAA.

    1. ART 31B created 9th schedule. Laws inserted under it by constitutional amendment were immune to judicial review.

    Other provisions not imp for this article but imp for exams –

    1. Reasonable restrictions against freedom of expression under art 19.
    2. To nullify judgment in State of Madras v. Champakam Dorairajan and giving effect to art 46 (promoting educational and economic interests of weaker sections) amplified article 15 (3)

    Zamindars didn’t like it, not one bit. And here comes the 1st salvo

    Shankari Prasad v Union of India

    Challenged 1st CAA. What was the court’s judgment?

    1. Difference b/w constituent power and ordinary legislative power i.e. amendment not law for the purpose of article 13
    2. art 13 and 368 in conflict # apply DOCTRINE OF HARMONIOUS CONSTRUCTION # ART 13 not applicable to art 368

    Govt 1-0 Zamindars

    Govt passed 17th amendment and inserted more laws under 9th schedule ‘

    Zamindars fired another salvo-

    Sajjan Singh vs state of rajasthan

    Supreme Court sang Shankari prasad song again

    Govt 2-0 jamindars

    But Justice Mudholkar was of the view that the every Constitution has certain features which are basic in nature and those features cannot be changed.

    2 minority judgements…. utter confusion. And you can see seeds of basic structure were sown here.

    Zamindars fired 3rd salvo

    Golaknath v. State of Punjab

    11 judge bench overturned earlier 2 verdicts by a slender majority of 6-5

    Really? What was the logic given here?

    1. Nothing to suggest constituent power to be separate from legislative power and even if distinct, amending power not same as constituent power which is given only to constituent assembly i.e. amendment is law and subject to article 13
    2. Fundamental rights so sacrosanct and transcendental that they cannot be abridged even if whole parliament unanimously decided to abridge them.

    But it validated all previous land reform acts as nullifying them would create utter confusion

    Govt angry – Zamindars angry

    New landlords happy.

    Loss – loss to defendants as well as petitioner.

    Madam Indira was in power and she did not like this. Not one bit.

    Along came 24th amendment to neutralize GOLAKNATH JUDGEMENT

    1. Art 13 inapplicable to art 368
    2. Art 368 provided powers as well as procedure to amend the constitution
    3. Parliament by way of addition, variation or repeal can amend any provision of constitution
    4. President shall give assent to CA bills ( VERY VERY IMP FOR PRELIMS )

    But madam Indira wouldn’t just stop here as Cooper judgment (Bank nationalization ) also had to be neutralized.

    Smarting from this setback, Madam Indira (the parliament, herself) passed 24th CAA to neutralise GOLAKNATH judgement. But there was also a small matter of reversing Copper judgment in bank nationalisation case so parliament passed 25th CAA.

    1. Art 19f delinked from 31, in effect parliament deciding compensation amount payable instead of courts.
    2. Art 31c  -inserted under which – art 39b and c, most socialist of DPSPs (equitable distribution and prevention of concentration of wealth respectively) precede over 7 freedoms (art 19 ), equality (14), property (31)
    3. Parliament’s power to determine if policy is to give effect to 39b and c not subject to judicial review.

    29th CAA had put Kerala land reform act under 9th schedule and his holiness challenged the provisions and all hell broke loose.

     

    Now the 4th salvo

    basic structureKesvanada Bharati Case

    A 13 judge bench is constituted and what does it do!

    1. Overturned Golaknath i.e. amendment not law, fundamental rights amendable, no implied limit under art 368 i.e. CAA 24 constitutional
    2. Art 25 invalid to the extent it takes away judicial review i.e. 39 b and c above 14, 19 and 31 but subject to judicial review

    Most imp decision of all by slimmest of all 7-6 majority stated Parliament can amend any provision of the Constitution but the basic structure should not be destroyed, damaged or abrogated.

    What’s the logic?

    1. Expression amendment did not encompass defacing the constitution such that it lost its identity.
    2. In the garb of amendment parliament can not rewrite the constitution.

    Court gave relief to govt but reserved for itself power to review all amendment not just those that violate fundamental rights.

    Aftermath

    Indira Gandhi didn’t like the judgement one  bit. She (via the president) superseded 3 judges to appoint justice A.N. Ray as CJI.

    Knives had been drawn and the battle was gonna be very bloody –

    • Navnirman movement of JP (Jayprakash) had gathered steam, Indira was on the back foot and along came the judgement of Allahabad High Court convicting Indira of corrupt electoral practices. Election was declared null and void and  6 years ban to contest election was imposed on her.
    • Supreme Court stayed it and allowed her to remain PM but not to draw salary or speak or vote in parliament.
    • Darkest chapter in democracy’ 21 month emergency was declared on 25th June 1975 without even consulting cabinet (44th amendment made it mandatory for the president to have written advice of cabinet to declare emergency)

    Indira Gandhi wasn’t to sit quiet.

    CAA 39th – election of president, VP, PM and speaker beyond judicial review

    Clownish Rajnarayan challenged the CAA 39.

    Indira Gandhi v/s Raj Narain Case

    For the 1st time Supreme Court applied basic structure doctrine and considered free and fair election and rule of law to be part of basic structure. #amending act invalidated.

    Note here that 4 of the 5 judges on the bench had given dissenting judgment in Bharati case but still applied the same doctrine for Supreme Court judgment becomes law until overruled by bigger bench (art 141).

    Then how did Indira continue to be prime minister and contest election again and not get banned for 6 years?

    Supreme court accepted retrospective amendment to electoral law i.e. electoral malpractice of Indira was no longer a corrupt practice.

    Find out for fun the charges against Mrs. Gandhi for which she was convicted and what a popular British magazine had to say about the judgement.

    Along came the mini constitution i.e 42nd amendment act TO ELIMINATE IMPEDIMENTS TO THE GROWTH OF THE CONSTITUTION –

    1. PART 4a fundamental duties
    2. Socialist,secular and integrity word to preamble
    3. New DPSPs were added

    And for the purpose of this article amendment to article 368 nullifying basic structure doctrine by adding amendments can’t be challenged in courts and parliament possessing unlimited power of amendment

    1. All DPSPs to take precedence over all fundamental rights not just 39b and 39c.

    And Minerva Textile mills of Karnataka fired the 5th and the last salvo

    Minerva Mills v Union of India

    SC unanimously struck down amendment to article 368 holding limited amending power and judicial review to be part of basic structure.

    Court held that constitution is founded on the bedrock of balance b/w FRs and DPSPs. Goals set out by DPSPs have to be achieved without abrogation of means provided by FRs.

    What’s the logic?

    If a donee was vested with limited power, it could not be exercised to control that very power power and convert into unlimited one.

    Or

    If a genie grants u 3 wishes, it is understood u can not, as one of the wish, ask for unlimited number of wishes!

    Janta govt comes to power and 44th CAA deletes art 31 (b) right to property and 19 (f) freedom to acquire, hold and dispose of property as they were not considered part of basic structure

    Right to property now a constitutional right under art 300A.

    9th schedule and judicial review

    I.R.Coelho vs state of TN

    Supreme Court held that acts placed under 9th schedule after basic structure subject would be subject to judicial review to the extent of those acts violating basic structure of constitution.

    Impact of basic structure doctrine.

    It certainly saved Indian democracy from degenerating into authoritarian regime during those testing times but it has also given immense untold unbridled power to Supreme Court and made it the most powerful court in the world.

    As we would later see in the NJAC Verdict (let’s call it 4th judges case), Supreme Court applied this doctrine, many would say for wrong reasons to strike down the act and kept for itself the power to appoint brother judges. In the original constitution only fetters on the power of parliament was art 13.

    Relevance –  It was delivered at the time of single party rule both at the centre and most of the states. In the era of coalition politics no govt is going to wield so much power to destroy the constitution and then there is ever present danger of tyranny of unelected.

    But only legitimate way to overturn the verdict would be a 15 judge bench so don’t hold your breath for that.

    Now is the time for some thought questions

    #1. Consider these 2 statements –

    1. Any LAW that is ordinary law violating provisions of constitution would be declared null and void to the extent of contravention.
    2. Any LAW violating art 13 would be declared null and void

    Both statements are true…..If amendments were not law, what was the purpose of art 13 (2) other laws would anyway be declared unconstitutional!

    #2. Is basic structure doctrine relevant in the present political scenario where no single party is unlikely to enjoy majority in both the houses?

    #3. What should be the limits to amending power of parliament? Do u think for very substantial amendments instead of courts, people by way of referendum should determine whether amendment should go through or not?

    #4. Whatever happens to original intent theory that constitutional courts have to interpret constitution in accordance with the implied intentions of founding fathers and there is enough evidence to suggest founding fathers thoughtfully kept FRs sacrosanct to prevent their abrogation or as we would see in a later article how supreme court by creative interpretation virtually changed procedure established by law in art 21 to due process of law while founding fathers deliberately kept expression as procedure established by law.

     

    Conclusion

    • By restraining the amending powers of legislative organ of State, it provided basic Rights to Citizens which no organ of State can overrule. Being dynamic in nature, it is more progressive and open to changes in time unlike the rigid nature of earlier judgements.

    Mains question

    Q. What do you understand by basic structure of constitution? Trace evolution of basic structure in India.

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  • Live Streaming of SC proceedings: the rationale and the concerns

    From September 27 onward, all proceedings of Supreme Court Constitution Benches will be live-streamed, a full court meeting of the top court has decided.

    Background of the move

    • History was made on August 26 (2022) when the proceedings from the Chief Justice’s Court in the Supreme Court (SC) were live streamed.
    • In the ‘Swapnil Tripathi’ judgment, in September 2018, the SC had cleared the deck for live streaming of cases of national and constitutional importance.

    Immediate triggers for live streaming

    • They had agreed to hear a public interest litigation seeking live streaming of judicial proceedings on matters of constitutional and national importance.
    • Prime considerations cited are:
    1. De-congestion of courts and
    2. Improving physical access to courts for litigants who have to otherwise travel long distances

    Recommended by A-G

    • The Supreme Court approved a set of guidelines suggested by the A-G, which included allowing transcripts and archiving the proceedings.
    • However, the A-G suggested that the court must retain the power to withhold broadcasting, and to also NOT permit it in cases involving:
    1. Matrimonial matters,
    2. Matters involving interests of juveniles or the protection and safety of the private life of the young offenders,
    3. Matters of National security,
    4. To ensure that victims, witnesses or defendants can depose truthfully and without any fear.
    5. To protect confidential or sensitive information, including all matters relating to sexual assault and rape,
    6. Matters where publicity would be antithetical to the administration of justice, and
    7. Cases which may provoke sentiments and arouse passion and provoke enmity among communities.

    Live streaming in HCs

    • Following the SC’s decision, Gujarat High Court began live streaming its proceedings in July 2021.
    • Currently, the Jharkhand, Karnataka, Madhya Pradesh, Orissa, and Patna High Courts live stream their proceedings.
    • Allahabad High Court is learnt to be considering doing the same.

    Global examples of live streaming

    • United States of America: While the US Supreme Court has rejected pleas for broadcast of its proceedings, it has since 1955 allowed audio recording and transcripts of oral arguments.
    • United Kingdom: In 2005, the law was amended to remove contempt of court charges for recording proceedings of the Supreme Court.

    Why need live streaming of court?

    • Improved accountability: Live-streaming of court proceedings would serve as an instrument for greater accountability and formed part of the Code of Criminal Procedure, 1973.
    • Living up the expectation of Constitution: Live Streaming of Court proceedings is manifested in public interest. Public interest has always been preserved through the Constitution article 19 and 21
    • Empowering the masses: It will enable the legal system to deliver on its promise of empowering the masses.
    • More transparency: It will encourage the principle of open court and reduce dependence on second-hand views. It will effectuate the public’s right to know.
    • This would inspire confidence in the functioning of the judiciary as an institution and help maintain the respect that it deserved as a co-equal organ of the state.
    • Academic help: Live streaming may also be a help for academic purposes.

    Concerns around live streaming

    • Contempt of court: Video clips of proceedings from Indian courts are already on YouTube and other social media platforms with sensational titles and little context, such as “HIGH COURT super angry on army officer”.
    • Disinformation and sensationalism: There are fears that irresponsible or motivated use of content could spread disinformation among the public.
    • Unnecessary activism: With the advent of social media, every citizen became a potential journalist. Study shows that justices behave like politicians when given free television time, they act to maximize their individual exposure.

    Issues to judicial functioning

    • Decency of questions: During hearings judges may not ask questions or make comments that could be perceived as unpopular.
    • Triggers for oral observations: There is an increasing trend of oral observations of the court, which are not binding on parties replacing reasoned judgment and orders that are consequential.
    • Dignity of court may be compromised: Similarly, lawyers, aware of their new audience, may choose to grandstand and play to the gallery, especially in a case they expect to lose.

    Way forward

    • Selective broadcast: The solution may lie in carefully determining how the live streaming proceeds.
    • Careful selection of cases: Not uploading archived stream on the SC website until it is legally/technologically possible to ensure that such videos cannot be spliced.
    • Understanding public perception and sentiments: Other similar measures that reflect an understanding of how the public consumes (dis)information will ensure that live streaming enriches constitutionalism across the country.

    Conclusion

    • A hasty and wholesale introduction on the other hand is likely to land the SC right in the middle of the majoritarian and toxic information swamp that prevails in the country.

     

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  • The hijab case and the doctrine of essentiality

    doctrine of essentialityContext

    • A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka which raises question on doctrine of essentiality.

     What is ‘doctrine of essentiality’?

    • A seven-judge Bench of the Supreme Court invented the doctrine of “essentiality” in the Shirur Mutt case in 1954. The court held that the term “religion” will cover all rituals and practices “integral” to a religion.

    Importance doctrine of essentiality

    • In the legal framework, the doctrine of essentiality is a doctrine that has evolved to protect the religious practices that are essential or integral and does not violate any fundamental right. India being a secular country has discrete religious beliefs and to deny any is to violate the freedom of religion.

    Why hijab is not an essential practice?

    • Wearing of hijab (head scarf) by Muslim women does not form a part of essential religious practices in Islamic faith and it is not protected under the right to freedom of religion guaranteed under Article 25 of the Constitution of India, the High Court of Karnataka declared on March 15 2022.

    doctrine of essentialityIs hijab essential part of Islam?

    • The Qur’an instructs Muslim women and men to dress modestly, and for some, the hijab is worn by Muslim girls and women to maintain modesty and privacy from unrelated males. According to the Encyclopedia of Islam and Muslim World, modesty concerns both men’s and women’s “gaze, gait, garments, and genitalia”.

    How do you identify essential religion practice?

    • The Court observed that in order to determine whether or not a particular practice is an essential part of religion, the test must be whether the absence of the practice itself

    Meaning of Article 26

    • Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right.

    doctrine of essentialityExamples of the essential religious practices test

    • While these issues are largely understood to be community-based, there are instances in which the court has applied the test to individual freedoms as well.
    • In a 2004 ruling, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform the Tandava dance in public streets since it did not constitute an essential religious practice of the sect.
    • For example, in 2016, the Supreme Court upheld the discharge of an airman from the Indian Air Force for keeping a beard.
    • It distinguished the case of a Muslim airman from that of Sikhs who are allowed to keep a beard.
    • In 2015, the Supreme Court restored the Jain religious practice of Santhara/Sallekhana (a ritualistic fast unto death) by staying an order of the Rajasthan HC.

    doctrine of essentialityWhat is the Supreme Court’s judgement on Doctrine of Essentiality?

    • The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
    • It is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.
    • The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
    • Referring to the Ayodhya case, the Constitution Bench had ruled in 1994 that A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.

    How has the doctrine been used in subsequent years?

    • The ‘essentiality doctrine’ of the Supreme Court has been criticised by several constitutional experts.
    • Scholars of constitutional law have argued that the essentiality/integrality doctrine has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions.
    • As a result, over the years, courts have been inconsistent on this question — in some cases they have relied on religious texts to determine essentiality.
    • In others it relied on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated.

    Issues over the doctrine

    • In the beginning, the court engaged with the question of whether untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”.
    • After examining selected Hindu texts, it came to the conclusion that untouchability was not an essential Hindu practice.
    • The idea of providing constitutional protection only to those elements of religion which the court considers “essential” is problematic as it assumes that one element or practice of religion is independent of other elements or practices.
    • So, while the essentiality test privileges certain practices over others, it is, in fact, all practices taken together that constitute a religion.

    How does essentiality square up against religious freedom?

    • Freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.
    • The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ (March 18, 1954) acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”.
    • The framers of the Constitution wanted to give this autonomy to each individual. Scholars have argued that the essentiality test impinges on this autonomy.
    • The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (2018) judgments.

    Its effect on society

    • Narrowing of safeguards to religious customs: It has allowed the Court to narrow the extent of safeguards available to religious customs by directly impinging on the autonomy of groups to decide for themselves what they deem valuable, violating, in the process, their right to ethical independence.
    • Negated legislation that might otherwise enhance the cause of social justice: It has also negated legislation that might otherwise enhance the cause of social justice by holding that such laws cannot under any circumstances encroach on matters integral to the practice of a religion. For example, in 1962, the Court struck down a Bombay law that prohibited excommunications made by the Dai of the Dawoodi Bohra community when it held that the power to excommunicate is an essential facet of faith and that any measure aimed at social welfare cannot reform a religion out of its existence.
    • A principle of anti-exclusion: Its application would require the Court to presume that a practice asserted by a religious group is, in fact, essential to the proponents of its faith. But regardless of such grounding, the Constitution will not offer protection to the practice if it excludes people on grounds of caste, gender, or other discriminatory criteria.

    Conclusion

    • For now, any Court hearing a matter touching upon a matter of faith has the unenviable task of acting not merely as an expert on law but also as an expert on religion.

    Mains question

    Q. Every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience. Critically examine in context of doctrine of essentiality.

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  • Death Penalty: SC moots fair hearing

    death

    The Supreme Court has referred to a Constitution Bench the question of how to provide accused in death penalty cases a “meaningful, real and effective” hearing of their mitigating circumstances before a trial judge.

    Death Penalty: A backgrounder

    • Capital punishment, sometimes called death penalty, is execution of an offender sentenced to death after conviction by a court of law for a criminal offense.
    • It should be distinguished from extrajudicial executions carried out without due process of law.
    • The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution, because of the possibility of commutation to life imprisonment.

    When is it awarded?

    • The term “Capital Punishment” stands for most severe form of punishment.
    • It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity.
    • While the definition and extent of such crimes vary, the implication of capital punishment has always been the death sentence.

    Special factors on the death penalty jurisprudence in India

    (a) Increase in Sexual Offences

    • The report on death penalty published by NLU Delhi shows that the rate of awarding capital punishment to the offences of rape with murder is much higher than other offences.
    • There is no doubt that rape is one of the most heinous crimes.

    (b) Sedition and waging War against India

    • India has seen many cases of treason, terrorism and seditious activities.
    • It is in fact the most vulnerable state for such crimes.

    Judicial observations related to Death Penalty

    The Supreme Court has always said that the death sentence should be given rarely.

    Judgments against:

    (a) Mithu vs State of Punjab (1983):

    • The Supreme Court ruled that the mandatory death penalty is unconstitutional.
    • It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case.
    • The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murders.

    (b) State of Punjab vs Dalbir Singh (2012):

    • Similarly, the Supreme Court ruled that mandatory death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was unconstitutional.

    (c) Channulal Verma vs State of Chhattisgarh (2018):

    • In Channulal, the Supreme Court, through Justice Kurian Joseph noted that the time was appropriate to review the constitutionality of the death penalty and take into consideration reformative aspects of punishment

    Judgments in favour:

    • In Jagmohan Singh vs State of UP’ (1973), then in ‘Rajendra Prasad vs State of UP’ (1979), and finally in ‘Bachan Singh vs State of Punjab’ (1980) the Supreme Court affirmed the constitutional validity of the death penalty.
    • It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict.
    • This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

    Avenues available to a Death-Row Convict

    • Confirmation by HC: After a trial court awards the death penalty, the sentence must be confirmed by a High Court. The sentence cannot be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired.
    • Review Petition: If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition.
    • Curative Petition: If the review petition is rejected, the convict can file a curative petition for reconsideration of the judgment.
    • Mercy Petition: Under Article 72 of the Indian Constitution, the President shall have the power to grant pardons, reprieves, respites, or remissions of punishments or to suspend, remit or commute the sentence of any convicted person.

    Debate over Death Penalty

    Arguments in favor:

    • Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life.
    • Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general.
    • Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.
    • Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
    • Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.
    • Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc.
    • Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.

    Arguments against:

    • Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.
    • Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.
    • Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
    • Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing.
    • Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths.
    • Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation.
    • Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority.
    • Penalizing the innocents: The risk of executing the innocent precludes the use of the death penalty. Our colonial history has witnessed many such executions.

    Other issues with such executions

    (a) Socio-Economic Factors

    • The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
    • The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
    • These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.

    (b) Delayed Execution

    • The law provides for a long process before the execution of the convicts actually takes place.
    • The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
    • Their trials are often cruelly forced to endure long periods of uncertainty about their fate.

    Way forward: Law Commission recommendations on death penalty

    The Law Commission of India in its 262nd Report (August 2015) recommended that:

    • Death penalty be abolished for all crimes other than terrorism related offences and waging war.
    • Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
    • It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.

    Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible

     

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