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GS Paper: GS2

  • Issues related to CBI

    CBIContext  

    • Despite several observations made by the Supreme Court of India (SC) against the inefficient functioning of the CBI nothing has happened to improve the situation.
    • The Enforcement Directorate (ED) is in the news now and often.

    Central Bureau of Investigation (CBI)

    • The Bureau of Investigation traces its origins to the Delhi Special Police Establishment, a Central Government Police force, which was set up in 1941 by the Government of India.
    • It then aimed to investigate bribery and corruption in transactions with the War and Supply Department of India.
    • It then had its headquarters in Lahore.
    • After the end of the war, there was a continued need for a central governmental agency to investigate bribery and corruption by central-government employees.
    • The DSPE acquired its popular current name, Central Bureau of Investigation (CBI), through a Home Ministry resolution dated in 1963.

    Mandate of the CBI

    • The CBI is the main investigating agency of the GoI.
    • It is not a statutory body; it derives its powers from the Delhi Special Police Establishment Act, 1946.
    • Its important role is to prevent corruption and maintain integrity in administration.
    • It works under the supervision of the CVC (Central Vigilance Commission) in matters pertaining to the Prevention of Corruption Act, 1988.
    • The CBI is also India’s official representative with the INTERPOL.

    CBICases to investigate

    • Cases connected to infringement of economic and fiscal laws
    • Crimes of a serious nature that have national and international ramifications
    • Coordination with the activities of the various state police forces and anti-corruption agencies.
    • It can also take up any case of public importance and investigate it
    • Maintaining crime statistics and disseminating criminal information.

    Notable cases cracked by CBI

    • Bhanwri Devi missing case: Jat leader and former Rajasthan minister Mahipal Maderna, Congress MLA Malkhan Singh and Bhanwari’s husband Amarchand were all part of the conspiracy to abduct and eliminate Bhanwari. Bhanwari had threatened to expose Malkhan’s relationship with her at the Bishnoi mahapanchayat.  Maderna, Malkhan, the three kidnappers and Sahiram along with Amarchand were arrested by the CBI.
    • Noida double murder case: In May 2008, the nation was shocked with the sensational double murders in Noida. The victims were Arushi Talwar and Hemraj Banjade. Initially, there was no clarity about the motive or the perpetrator of this ghastly crime. After a lengthy investigation which spanned close to 6 years, the CBI based on circumstantial evidence established that the parents of Aarushi Talwar, Rajesh Talwar and Nupur Talwar were the perpetrators of this crime.
    • The Satyam Case:  B Ramalinga Raju, the disgraced chairman of Satyam Computers Services Ltd, along with 13 individuals and entities including Chintalapati Srinivasa Raju of iLabs, made Rs 2,000 crore in illegal wealth in the Satyam scam. The CBI constituted a Multi-Disciplinary Investigation Team (MDIT) to investigate the case. The team worked hard, burnt midnight oil and achieved success in a record time of 45 days when it filed its first chargesheet against the accused for offences of criminal conspiracy, cheating, forgery and falsification of accounts.

    Issues with CBI

    • Caged parrot: The Supreme Court has criticized the CBI by calling it a “caged parrot speaking in its master’s voice”.
    • Political interference: It has often been used by the government of the day to cover up wrongdoing, keep coalition allies in line and political opponents at bay.
    • Investigation delay: It has been accused of enormous delays in concluding investigations due to political inertia.
    • Loss of Credibility: CBI has been criticised for its mismanagement of several cases involving prominent politicians and mishandling of several sensitive cases like Bofors scandal, Bhopal gas tragedy.
    • Lack of Accountability: CBI is exempted from the provisions of the Right to Information Act, thus, lacking public accountability.
    • Acute shortage of personnel: A major cause of the shortfall is the government’s sheer mismanagement of CBI’s workforce.
    • Limited Powers: The powers and jurisdiction of members of the CBI for investigation are subject to the consent of the State Govt., thus limiting the extent of investigation by CBI.
    • Restricted Access: Prior approval of Central Government to conduct inquiry or investigation on the employees of the Central Government is a big obstacle in combating corruption at higher levels of bureaucracy.

    Why was it called caged carrot by the Supreme Court?

    • Politicisation of the Central Bureau of Investigation (CBI) has been a work in progress for years.
    • Corruption and Politically biased nature, This was highlighted in Supreme Court criticism for being a caged parrot speaking in its master’s voice.
    • CBI has been accused of becoming ‘handmaiden’ to the party in power; as a result high profile cases are not treated seriously.
    • Since CBI is run by central police officials on deputation hence chances of getting influenced by government was visible in the hope of better future postings.

    Suggestions for the improvement of the functioning of the CBI under the supervision of the CVC

    1. One, the CVC Act should be amended, providing for a five/seven member Central Vigilance Commission, which could broadly assume the role visualised for the Lokpal. The selection process of the CVC members should be more broad based to prevent favouritism or from controversial persons being appointed.
    2. Two, the CVC should constitute an advisory committee of at least 11 members drawn from criminologists and forensic science experts. This will augment the professional input in its functioning. Further, to reduce the burden on the CVC, it should be given the power to go to any expert or professional to assist it in screening complaints.
    3. Three, the jurisdiction of CVC, which presently covers all employees of the central government and the CPSUs, should remain unchanged. There is already an administrative arrangement to delegate the vigilance administration over class II and lower formations to the ministries/departments concerned. However, if the lower formations are involved with the class I officers in a composite case, the CVC exercises a natural jurisdiction over all of them. To make this arrangement more effective, it would be important that the CVC exercises complete control over the selection, appointment and functioning of the CVOs.
    4. Four, the CVC should have an adequately experienced team to technically examine and assess the gravity of a complaint, which can then be assigned to the CBI for investigation or can be investigated by this team. After assessing a complaint by this broad-based CVC, there should be no need to seek prior permission from the government.
    5. Five, in the cases assigned to it by the CVC, the CBI should be made functionally and financially independent of the controls of any government ministry/department. The professional supervision over the investigations of the CBI should rest only with the CVC.
    6. Six, the manner of the appointment of the CBI Director should be broad based as in the case of the CVC members, whereas the other inductions/appointments in the CBI should be brought under the overarching supervision of the CVC.
    7. Seven, to achieve better synergy between anti-corruption laws and grievance handling, the laws relating to the whistle blowers and grievance redressal should be placed within the jurisdiction of the CVC.
    8. Eight, effective administration of anti-corruption laws at the grass roots is the key to responsible governance. The state and their anti-corruption agencies would, therefore, need to be equally insulated from the state government’s interference on similar lines.

    Reforming CBI

    • Need for autonomy:   As long as the government of the day has the power to transfer and post officials of its choice in the CBI, the investigating agency will not enjoy autonomy and will be unable to investigate cases freely.
    • Selection of director/ Officers: To ensure that the CBI is a robust, independent and credible investigation agency, there is an urgent need to work out a much more transparent mechanism for selection and induction of officers on deputation.
    • Lokpal scrutiny: The Lokpal Act already calls for a three-member committee made up of the PM, the leader of the opposition and the CJI to select the director.
    • Bifurcation of Cadre: CBI should be bifurcated into an Anti-Corruption Body and a National Crime Bureau.
    • Develop own cadre: One of the demands that have been before Supreme Court, and in line with international best practices, is for the CBI to develop its own dedicated cadre of officers.
    • Annual social audit should be carried out by ten reputed, knowledgeable persons with background of law, justice, public affairs and administration and the audit report should be placed before the parliament.

    About Enforcement Directorate (ED)

    • It goes back to May 1, 1956, when an ‘Enforcement Unit’ was formed in the Department of Economic Affairs.
    • It then aimed for handling Exchange Control Laws violations under the Foreign Exchange Regulation Act (FERA).
    • The ED today is a multi-dimensional organisation investigating economic offences under the Prevention of Money Laundering Act (PMLA), Fugitive Economic Offenders Act, Foreign Exchange Management Act and FERA.

    CBIFrom where does the ED get its powers?

    • When proceeds of crime (property/money) are generated, the best way to save that money is by parking it somewhere, so one is not answerable to anyone in the country.
    • Therefore, there was a need to control and prevent the laundering of money.
    • The PMLA was brought in for this exact reason in 2002, but was enacted only in 2005.
    • The objective was to prevent parking of the money outside India and to trace out the layering and the trail of money.
    • So as per the Act, the ED got its power to investigate under Sections 48 (authorities under act) and 49 (appointment and powers of authorities and other officers).

    At what stage does the ED step in when a crime is committed?

    • Whenever any offence is registered by a local police station, which has generated proceeds of crime over and above â‚č1 crore, the investigating police officer forwards the details to the ED.
    • Alternately, if the offence comes under the knowledge of the Central agency, they can then call for the First Information Report (FIR) or the chargesheet if it has been filed directly by police officials.
    • This will be done to find out if any laundering has taken place.

    CBIWhat differentiates the probe between the local police and officers of the ED?

    Case study:

    • If a theft has been committed in a nationalised bank, the local police station will first investigate the crime.
    • If it is learnt that the founder of the bank took all the money and kept it in his house, without being spent or used, then the crime is only theft and the ED won’t interfere because the amount has already been seized.
    • But if the amount which has been stolen is used after four years to purchase some properties, then the ill-gotten money is brought back in the market.
    • Or if the money is given to someone else to buy properties in different parts of the country, then there is ‘laundering’ of money.
    • Hence the ED will need to step in and look into the layering and attachment of properties to recover the money.
    • If jewellery costing â‚č1 crore is stolen, police officers will investigate the theft. The ED, however, will attach assets of the accused to recover the amount of â‚č1 crore.

    CBIWhat are the other roles and functions of the ED?

    • The ED carries out search (property) and seizure (money/documents) after it has decided that the money has been laundered, under Section 16 (power of survey) and Section 17 (search and seizure) of the PMLA.
    • On the basis of that, the authorities will decide if arrest is needed as per Section 19 (power of arrest).
    • Under Section 50, the ED can also directly carry out search and seizure without calling the person for questioning.
    • It is not necessary to summon the person first and then start with the search and seizure.
    • If the person is arrested, the ED gets 60 days to file the prosecution complaint (chargesheet) as the punishment under PMLA doesn’t go beyond seven years.
    • If no one is arrested and only the property is attached, then the prosecution complaint along with attachment order is to be submitted before the adjudicating authority within 60 days.

    Can the ED investigate cases of money laundering retrospectively?

    • If an ill-gotten property is acquired before the year 2005 (when the law was brought in) and disposed off, then there is no case under PMLA.
    • But if proceeds of the crime were possessed before 2005, kept in storage, and used after 2005 by buying properties, the colour of the money is still black and the person is liable to be prosecuted under PMLA.
    • Under Section 3 of PMLA, a person shall be guilty of money-laundering, if such person is found to have directly or indirectly attempted to indulge or knowingly assist a party involved in one or more of the following activities:
    • Concealment; possession; acquisition; use; or projecting as untainted property; or claiming as untainted property in any manner etc.

    Allegations against ED

    • Huge discretions: The ED is the only Central agency in the country that does not require permission from the government to summon or prosecute politicians or government functionaries for committing economic offences like money laundering.
    • Used for petty crimes: PMLA is pulled into the investigation of even “ordinary” crimes and assets of genuine victims have been attached.
    • Actual purpose denigrated: PMLA was a comprehensive penal statute to counter the threat of money laundering, specifically stemming from the trade in narcotics.
    • Violations of Rights: PMLA was enacted in response to India’s global commitment to combat the menace of money laundering. Instead, rights have been “cribbed, cabined and confined”.
    • Functional opacity: There is also a lack of clarity about ED’s selection of cases to investigate. We often see ED raiding houses of opposition parties suddenly.
    • Poor rate of conviction: We have hardly read the conclusion of cases by ED. Meantime media-trial tears off the accused person’s credibility which is the most desired intent.
    • Under-trials and slower prosecution: ED has been focusing on keeping the accused in custody rather than actually proving the charges against them.

    Challenges to ED

    • ED being dragged to court: The petitions against the ED had the effect of slowing down the investigations, as officers have to defend themselves in court.
    • Foul crying politicians: There are attempts to cover up unexplained, high-value transactions that fall within the PMLA’s ambit
    • Investigation of foreign transactions: Getting information on accounts and money stashed abroad to establish a trail is the biggest challenge they face.

    Way forward

    • The fight against corruption is intimately linked with the reform of the investigations.
    • Therefore the adjudicating authorities must work in cooperation and ensure the highest standards of transparency and fairness.
    • ED has been walking a tightrope to safeguard its integrity by speeding up investigations and court procedures.
    • The need of the hour could be systemic fixes—and not shrill calls to throw the baby out with the bathwater.
    • It is unlikely that corruption can be substantially reduced without modifying the way government agencies operate.

    Conclusion

    • It is for the nation to demand that the country’s premier investigating agencies like the CBI, income tax authorities and the ED are not used as instruments of blackmail and intimidation by the government of the day. Rather they should work with complete objectivity and in the interest of the nation.

    Mains question

    Q. CBI and ED was called caged carrot by the Supreme Court. Do you agree with this? What issues are being faced by these premier agencies? Suggest some dynamic solutions to overcome these issues.

    Do follow

    [Burning Issue] Enforcement Directorate (ED): Dreaded nightmare of Indian Politicians & Businessmen

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  • Kyrgyzstan-Tajikistan Conflict

    conflict

    Nearly 100 people have been killed and scores injured in violent border clashes between Kyrgyzstan and Tajikistan over the last week.

    What is the Kyrgyzstan-Tajikistan Conflict?

    • The clashes are replaying old pre- and post-Soviet era legacies.
    • The borders of the two republics were demarcated under Joseph Stalin’s leadership.
    • Historically, the Kyrgyz and Tajik populations enjoyed common rights over natural resources.
    • The issue of the delimitation of the border is a relic of the Soviet era.
    • While regular talks have tried to resolve the issue, one of the crucial points of disagreement remains over the map which should be used for demarcation purposes.
    • Almost half of its close to a 1000 km border is disputed.

    Genesis of the dispute

    • The creation of the Soviet Union saw the large-scale redistribution of livestock to collective and state farms, which upset the existing status quo.
    • Unfortunately, there was only so much land to go around.
    • The Tajik territory of Batken saw their livestock increase, and with scarce grazing land, agreements were signed between the two populations over the utilisation of Kyrgyz territory by the Tajiks’ livestock.

    What is happening now at the border?

    • The last few weeks have seen constant shelling, violent confrontations by local communities, and active engagement by security forces on either side.
    • The Batken region of Kyrgyzstan is seeing families being moved out and getting relocated.
    • According to Kyrgyzstan, close to 1,50,000 people out of the 5,50,000 odd population of the Batken region have either fled the area or have been relocated by the state.
    • The situation in Osh, Kyrgyzstan, is no different. The highly militarised borders also add to tensions.

    Significance of Batken

    • The Batken region, bordering Tajikistan and Uzbekistan in the south of the country, is one of the seven regions of Kyrgyzstan with its natural underground and water resources, natural beauty, smooth transit routes and a population of around 500,000.
    • Located 750 kilometers (466.02 miles) from Bishkek, the capital of Kyrgyzstan, and in the southwest of the country, the Batken region is located on the edge of the famous Fergana Valley in Central Asia.
    • Fergana Valley includes Fergana, Namangan, Andijan in Uzbekistan, Hocand in Tajikistan, Osh, Jalalabad and Batken in Kyrgyzstan.
    • The Batken region borders the Republic of Uzbekistan in the northeast and the Republic of Tajikistan in the southwest and north.
    • Covering 8.5% of Kyrgyzstan’s land, the region has agricultural, underground, water and energy resources, as well as oil and natural gas resources, albeit small.

    What led to the current flare-up?

    • The ideological basis of the current set of clashes is reinforced by developmental issues, thus providing a fertile ground for the entire geopolitical space to become a hotbed of multiple minor conflicts and clashes.
    • The groups from either side planted trees in disputed areas and engaged in a physical confrontation using agricultural equipment as weapons.

    Why are the clashes occurring now?

    • The collapse of the Soviet Union and the subsequent dissolution of the then-existing water and land agreements saw the creation of multiple smaller independent farms.
    • This has led to a marked increase in water consumption patterns among the farmers.
    • Both countries share multiple water channels with undulating trajectories and flow, which upset equitable access to water on both sides.
    • As a result, small-scale conflicts occur practically every year during the crucial irrigation period.

    What is the road ahead?

    • The path to resolution of the conflict will require groups to agree upon a common map.
    • Russia often brokers between the two.
    • The international community will have to make efforts to solve the dispute by involving elders in the communities, as historically, elders have been used to resolve conflicts.
    • The informal small-scale governance mechanisms would also have to be further strengthened through a concerted effort by the respective countries to stabilize the geopolitical dynamics.

     

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  • Why the India China Border situation is still risky?

    india china borderContext

    • According to the consensus reached in the 16th round of India China Corps Commander Level Meeting, the Indian and Chinese troops in the area of Gogra-Hotsprings (PP-15) have begun to disengage in a coordinated and planned way. With disengagement at PP 15 India China border, forces of the two countries have disengaged at all friction points in the region which included the North and South banks of the Pangong Tso, PP 14, PP 15 and PP 17A.

    India china borderWhy the India-China Border situation is still risky?

    The tentative conciliatory steps between two nuclear-armed rivals are important; but they also carry risks, especially for India. The risks are as follows:

    • Uneasy peace: Despite the latest round of disengagement, the LAC remains deeply unsettled. Observers have pointed out that the buïŹ€er zones produced by the crisis inhibit India’s ability to patrol its own territory.
    • Un-resolve areas: India and China have tacitly agreed to postpone settlement at two other confrontation sites, particularly tactically valuable area known as Depsangand Charding Nala regions.
    • Persisting threat: The reinforcements that each side deployed since 2020 have not returned to garrison. Even if future rounds of talks continue “disengagement and de-escalation,” and reduce those forces, returning to the status quo ante is now impossible.
    • Border infrastructure: Both sides on India China border are racing towards building permanent military infrastructure near the border, to help them surge forces to the border. Unsurprisingly, China seems to have outpaced India in building these roads, helipads, and communications nodes.
    • Possibility of conflict: The increasing capabilities and mobility on both sides of the border means that a crisis can more quickly escalate to a large military stand-oïŹ€ anywhere on the LAC, and possibly even trigger a conflict

    india china borderWhat are the Strategic implications?

    • Changing priorities: India has reassigned one of three originally Pakistan-facing Strike Corps to the China front. It has deployed its newest artillery, jets, and drones to the China border.
    • Unattended Indian Ocean: India has not yet improved its capabilities or posture in the Indian Ocean region significantly.
    • Diversion from real threat: With the border crisis, China seems to have successfully ïŹxed India’s gaze to the land border, at the expense of that more consequential competition over the Indian Ocean.
    • Loss of grazing: Ladakh’s elected representatives said the disengagement has caused loss of huge grazing land as it would now be converted into no man’s land.

    india china borderSteps taken by India

    • Increasing capability: from cruise missile-equipped ïŹghter jets and U.S.-origin naval helicopters to a brand-new indigenously-built aircraft carrier.
    • Atmanirbhar Bharat: India undertook several structural economic reforms for strengthening domestic capability and reducing the economic parity between two nations. Defence ministry has decided to increase CAB (capital acquisition budget), around 64% of modernization fund around 70000 cr. has been allocated for purchasing from domestic market. Atma Nirbhar Bharat and Make in India mission will also include Defence sector, we can see the local or private companies can also participate in procurement of defence equipment
    • Defence India Start-up Challenge (DISC): Started by the defence ministry and over 1200 MSMEs participated in the fourth edition of the DISC in 2020. The government has prepared a negative list, it include light combat helicopters, artillery guns; these items will not be imported by anyone thus encouraging self-reliant India.
    • The SRIJAN portal: Launched to facilitate the two initiatives, Atmanirbhar Bharat and make in India
    • Sagarmala project: The sagarmala project has been started to revamp port Infrastructure which is a welcome step in modernization.

    Conclusion

    • For china Deception is diplomacy. Time and again China tries a deception strategy from its Confucius doctrine to defeat its enemy. From 1962 to 2022 India has made a lot of progress in military and economic sphere but China is way ahead than us. Strategic competition between two Asian giants will continue foreseeable future. So as long as India doesn’t gain domestic capabilities it would be prudent step to undertake strategic balancing.

    Mains Question

    Q. India has decided to maintain a strategic balance with china rather than being subsidiary to china. Discuss.

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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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  • Rules for Identifying Criminals now notified

    On September 19, the Ministry of Home Affairs (MHA) notified the rules governing The Criminal Procedure (Identification) Act, 2022. The Act was passed in March by the Parliament.

    Why in news?

    Rules for Identifying Criminals now notified - Civilsdaily

    • Until rules are notified, an Act cannot be implemented or come into force.
    • The legislation would enable police and central investigating agencies to collect, store and analyse physical and biological samples including retina and iris scan of arrested persons.

    What is the Criminal Procedure (Identification) Act, 2022?

    Ans. It is about critical measurements of Criminals.

    • This act provides legal sanction to law enforcement agencies for taking measurements of convicts and other persons for the purposes of identification and investigation of criminal matters.
    • The Minister of Home Affairs has observed that with advancements in forensics, there was a need to recognise more kinds of “measurements” that can be used by law enforcement agencies for investigation.

    What is the use of identification details in criminal trials?

    • Measurements and photographs for identification have three main purposes:
    1. To establish the identity of the culprit against the person being arrested
    2. To identify suspected repetition of similar offences by the same person and third
    3. To establish a previous conviction

    What was the previous Identification of Prisoners Act, 1920 about?

    • Even though the police has powers of arrest, mere arrest does not give Police the right to search a person.
    • The police requires legal sanction to search the person and collect evidence.
    • These legal sanctions are designed so as to maintain a balance between the rights of an individual and the interests of society in prosecution and prevention of offences.
    • The Identification of Prisoners Act, 1920 became a necessity when the recording of newer forms of evidence such as fingerprints, footprints and measurements started becoming more accurate and reliable.

    What was the need to replace this Act?

    Ans. Changing nature of Crime

    • Over the years, the need to amend/update the Identification of Prisoners Act, 1920 has been voiced several times.
    • In 1980, the 87th Report of the Law Commission of India undertook a review of this legislation and recommended several amendments.
    • This was done in the backdrop of the State of UP vs. Ram Babu Misra case, where the Supreme Court had highlighted the need for amending this law.
    • The first set of recommendations laid out the need to amend the Act to expand the scope of measurements to include “palm impressions”, “specimen of signature or writing” and “specimen of voice”.
    • The second set of recommendations raised the need of allowing measurements to be taken for proceedings other than those under the Code of Criminal Procedure (CrPC).

    What are the main highlights and differences in both the legislations?

    • Both provide legal sanction: Like the 1920 Law, the new Criminal Procedure (Identification) Act, 2022 provides for legal sanction to law enforcement agencies for the collection of measurements.
    • Creating usable database of evidences: The purpose is to create a useable database of these measurements.
    • Notifying designated state agencies: At the State level, each State is required to notify an appropriate agency to collect and preserve this database of measurements.
    • NCRB at centre stage: At the national level, the National Crime Records Bureau (NCRB) is the designated agency to manage, process, share and disseminate the records collected at the State level.

    What are some of the concerns with the present legislation?

    • Striking a balance: The new legislation has raised some concerns related to the protection of fundamental rights.
    • Unresolved right to Privacy debate: The legislation comes in the backdrop of the right to privacy being recognised as a fundamental right.
    • Notion of physical privacy: A fundamental facet of the right to privacy is protection from the invasion of one’s physical privacy.
    • Justifying necessity: As per the Puttaswamy judgment, there is a need for the measure to be taken in pursuance of a legitimate aim of the state, be backed by the law and be “necessary and proportionate” to the aim being sought to be achieved.

    (1) Various tests behind

    • In this case, while the first two tests are satisfied, as:
    1. “prevention and investigation of crime” is a legitimate aim of the state
    2. “measurements” are being taken under a valid legislation,
    • Satisfaction of the third test of “necessity and proportionality” has been challenged on multiple counts.

    (2) A probable police state in making

    • Analysis and measurement of behavioural attributes have raised concerns that data processing may go beyond recording of core “measurements”.
    • That is some of these measurements could be processed for predictive policing.

    (3) Includes petty offences

    • The current law allows for “measurements” to be taken if a person has been convicted/arrested for any offence, including petty offences.
    • The necessity of taking measurements of such persons for investigation of offences is unclear, and such discretion is likely to result in abuse of the law at lower levels.
    • This would definitely overburden the systems used for collection and storage of these measurements.

    (4) Period of storage of data

    • Given that these records will be stored for 75 years from the time of collection, the law has been criticised as being disproportionate.

    (5) Surveillance state

    • Such collection can also result in mass surveillance, with the database under this law being combined with other databases such as those of the Crime and Criminal Tracking Network and Systems (CCTNS).

    (6) Promotes self-incrimination

    • Concerns are being raised that the present law violates the right against self-incrimination enshrined in Article 20(3) of the Constitution of India.
    • However, this argument is nebulous since the Supreme Court has already settled this point.
    • In the State of Bombay vs Kathi Kalu Oghad, the Supreme Court had conclusively held that “non-communicative” evidence i.e. evidence which does not convey information within the personal knowledge of the accused cannot be understood to be leading to self-incrimination.
    • Therefore, no challenge lies to the law on this ground.

    Way forward

    • Extensive pre-legislative consultation is must for any sensitive law as such.
    • Privacy and data protection-related concerns must be addressed in the Rules formulated under the legislation and through model Prison Manuals that States can refer to.

     

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  • Ratan Tata, KT Thomas appointed trustees of PM CARES

    The Union government has appointed veteran industrialist Ratan Tata, former Supreme Court judge K.T. Thomas, and former Lok Sabha Deputy Speaker Kariya Munda as trustees of the PM CARES Fund.

    PM CARES Fund

    • The PM CARES Fund was created on 28 March 2020 following the COVID-19 pandemic in India.
    • The fund will be used for combat, containment and relief efforts against the coronavirus outbreak and similar pandemic like situations in the future.
    • The PM is the chairman of the trust. Members will include the defence, home and finance ministers.
    • The fund will also enable micro-donations. The minimum donation accepted is â‚č10 (14Âą US).

    Some intriguing facts about PM-CARES fund

    • PM CARES has been created not by law, not by notification, but by the mere creation of a webpage, and set up last year in March to raise funds for those affected by the COVID-19 pandemic.
    • The page lists its structure, functions and duties in an arbitrary manner.
    • The official appeals for funds are made under the national emblem.
    • The most significant lie of this sworn statement is that the Government has no control over the Fund.

    The other funds

    (1) National Disaster Response Fund (NDRF)

    • The statutorily constituted NDRF was established under the Disaster Management (DM) Act of 2005.
    • The NDRF is mandated to be accountable, and answerable under the RTI Act, being a public authority, and auditable by the Comptroller and Auditor General of India.

    (2) Disaster Response Fund

    • The DM Act also provided for a Disaster Response Fund — state and district level funds (besides the national level).
    • It also collects and uses the donations at the local level, with mandatory transparency and audit provisions.

    (3) Prime Minister’s National Relief Fund

    • There is the PMNRF operative since the days of Jawaharlal Nehru. It was established with public contributions to assist displaced persons from Pakistan.
    • The resources are now utilised primarily to render immediate relief to families of those killed in natural calamities and to the victims of the major accidents and riots.
    • However, it has the President of India and the Leader of Opposition also as trustees.

    Issues over PM-CARES Fund

    • No defined purpose: It is deliberately ignored while a new, controversial, unanswerable, and ‘non-accountable vehicle is created; its character is not spelt out till today.
    • Non-accountable: The government seems to consider statutory provisions for enquiry and information seeking to be embarrassing obstacles.
    • Centralization of donations: It centralises the collection of donations and its utility, which is not only against the federal character but also practically inconvenient. The issue is seeming, the trusteeship of the fund.

    Questions and gaps

    • Law/statute: The PM CARES Fund was neither created by the Constitution of India nor by any statute.
    • Authority: If that is the case, under what authority does it use the designation of the Prime Minister, designated symbols of the nation, the tricolour and the official (gov.in) website of the PMO, and grant tax concessions through an ordinance.
    • Collection and dispensation: The amount received by the Fund does not go to the Consolidated Fund of India. If it goes to the CFI, it could have been audited by the CAG.
    • Uncontrolled: The This Trust is neither intended to be or is in fact owned, controlled or substantially financed by any instrumentality of the any govt even being chaired by the PM.

    Issue over tax benefits

    • Income tax: An ordinance was promulgated to amend Income Tax Act, 1961 and declare that the donations to the PM CARES Fund “would qualify for 80G benefits for 100% exemption”.
    • CSR Funds: It will also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the Companies Act, 2013.
    • Foreign donations: It has also got exemption under the FCRA [Foreign Contribution Regulation Act] and a separate account for receiving foreign donations has been opened.

    What can be inferred from all these?

    • The Centre now considers it as another obstacle and has created a new trust with the Prime Minister and his Ministers only.
    • The manner in which the PM CARES Fund was set up — with its acronym created to publicise the point that the PM cares for people — shows a bypassing of the statutory obligations of a public authority.

    Query and response: Again ironical

    • After initial denials, the Government has conceded it to be a public charitable trust, but still maintains that it is not a ‘public authority’.
    • The point is that the PMO operates the Fund, but says it cannot supply any information about the PM CARES Fund because it is not a public authority.

    Severe interpretations: Is it an Office of Profit?

    • If the PM CARES Fund is unconnected with the Government, then the Fund could become an office of profit.

    Conclusion

    • In order to uphold transparency, the PM CARES Fund should be declared as a Public Authority under the RTI Act, and all RTI queries answered truthfully.
    • The fund should be designated as a “public authority” under Section 2(h) of the RTI Act.

     

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  • Donations to recognised Political Parties come under EC lens

    The Election Commission’s ongoing drive to clean up the electoral space has now gone beyond RUPPs (registered unrecognised political parties) to cover recognised national and State parties.

    What is Political Funding?

    • Political Funding implies the methods that political parties use to raise funds to finance their campaign and routine activities.
    • A political party needs money to pitch itself, its objectives, and its intended actions to get votes for itself. (Reference)

    Why need political funding?

    • Across the world, political parties need access to money in order to reach out to the electorate, explain their policies and receive inputs from people.
    • And in order to do the same, parties resort to political party funding.

    Generally who makes these funding?

    • Individuals: One of the primary sources of this funding is voluntary contributions made by individuals.
    • Corporates: Besides this, corporates pay hefty donations to parties in different forms.
    • Foreign aid: This is yet another source but highly controversial.

    Statutory Provisions

    • Section 29B of the Representation of the People Act (RPA) entitles parties to accept voluntary contributions by any person or company, except a Government Company.
    • Section 29C of the RPA mandates political parties to declare donations that exceed 20,000 rupees. Such a declaration is made by making a report and submitting the same to the EC. Failure to do so on time disentitles a party from tax relief under the Income Tax Act, 1961.

    Methods used by Indian Political Parties

    1. Individual Persons: Section 29B of RPA allows political parties to receive donations from individual persons.

     

    1. State/Public Funding: Here, the government provides funds to parties for election related purposes. State Funding is of two types:
    • Direct Funding: The government provides funds directly to the political parties. Direct funding by tax is prohibited in India.
    • Indirect Funding: It includes other methods except direct funding, like free access to media, free access to public places for rallies, free or subsidized transport facilities. It is allowed in India in a regulated manner.

     

    1. Corporate Funding: In India, donations by corporate bodies are governed under the Companies Act, 2013. Section 182 of the Act provides that:
    • A company needs to be at least three years old to be able to donate to a political party.
    • Companies can donate up to 7.5% of average net profits made during three simultaneous preceding financial years. (Now removed after Finance Act, 2017)
    • Such contributions must be disclosed in the company’s profit and loss account. (Removed)

     

    1. Electoral Trusts: A non-profit company created in India for orderly receipt of voluntary contributions from any person like an individual or a domestic company.
    • According to the Election Commission Guidelines, all electoral trusts formed after January 2013 are required to declare details of the money received and disbursed.
    • The Central Government rules mandate these firms to donate 95% of their total income to registered political parties in a financial year.

    Issues with Political Funding

    • Money laundering: One of the biggest disadvantages of the corporate funding is the use of fake companies to route black money.
    • Influence of contributor: Influence of people and companies over political parties to which they provide funds.
    • Election malpractices: There are various gaps in Indian rules, the benefit of which political parties take to avoid any kind of reporting.
    • Money politics: Hidden sources of funding lead to more spending of funds in election campaigns, thus impacting the economy of the country.

    Recent steps taken

    • FCRA Reforms: In March, 2018, the government passed a key amendment to the Foreign Contribution Regulation Act, 2010 allowing foreign companies to fund political parties in India.
    • Electoral Bonds Schemes: The government notified the Electoral Bond Scheme on 2nd January, 2018 to establish and cleanse the system of political funding in the country.

    What is Electoral Bond Scheme?

    • An electoral bond is a bearer instrument like a Promissory Note.
    • It can be purchased by any citizen of India or a body incorporated in India to donate to the political party of their choice.
    • Donor’s name is not there on the bond.
    • These bonds can be used for making donations to the political parties registered under Section 29A of the RP Act, 1951.
    • The party should have secured not less than one per cent of the votes polled in the last general election to the Lok Sabha or a Legislative Assembly.

    Issues with the scheme

    • Opaque funding: While the identity of the donor is captured, it is not revealed to the party or public. So transparency is not enhanced for the voter.
    • No IT break: Also income tax breaks may not be available for donations through electoral bonds. This pushes the donor to choose between remaining anonymous and saving on taxes.
    • No anonymity for donors: The privacy of the donor is compromised as the bank will know their identity.
    • Differential benefits: These bonds will help any party that is in power because the government can know who donated what money and to whom.

    Way forward

    Former Chief Election Commissioner SY Quraishi has suggested an alternative worth exploring:

    • A National Electoral Fund to which all donors can contribute.
    • The funds would be allocated to political parties in proportion to the votes they get.
    • Not only would this protect the identity of donors, it would also weed out black money from political funding.
    • There can be a tax benefit for those who donate to the fund.

     

    Try this question from our AWE Initiative

    Q.2) Examine the issues with political funding in India. How far has the introduction of electoral bonds succeeded in dealing with the issues with political funding? (10 marks)

     

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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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  • Global digital governance

    digital governanceContext

    • In an interview earlier this month, Telecom Minister Ashwini Vaishnaw spoke about a comprehensive policy roadmap for India’s digital economy and digital governance.

    What is digital governance ?

    • Electronic governance or e-governance can be defined as the usage of Information and Communication Technology (ICT) by the government to provide and facilitate government services, exchange of information, communication transactions and integration of various standalone systems and services.

    What is “global digital governance”?

    • Global digital governance encompasses the norms, institutions, and standards that shape the regulation around the development and use of these technologies. Digital governance has long-term commercial and political implications.

    Why is it important?

    • The main objective of e-governance is to provide a friendly, affordable, and efficient interface between a government and its people. It is about ensuring greater transparency, accountability and objectivity, resulting in cost-effective and high-quality public service.

    What are the three domains of e-governance?

    • E-administration: improving government processes
    • E-services: connecting individual citizens with their government
    • E-society: building interactions with and within civil society.

    digital governanceIs there a historical parallel to governing key economic sectors globally?

    • Digital economy is not unprecedented: Sectors critical to the global economy are subject to international cooperation frameworks and pacts. Therefore, the idea of setting up a single multilateral organization with a mandate to govern the digital economy is not unprecedented.
    • The International Commission for Air Navigation (ICAN): Global aviation has been regulated since 1903 when the International Commission for Air Navigation (ICAN) first met, subsequently replaced by the International Civil Aviation Organization (ICAO) in 1947.
    • Bank for International Settlements (BIS): Similarly, the modern international banking system is governed by the Bank for International Settlements (BIS), an institution initially set up in the interwar period in 1930 to oversee Germany’s reparations to the Allies under the Treaty of Versailles. The BIS acquired a more global mandate beginning in the 1950s and is now partially responsible for global financial stability.

    Who are the key players in the global contest for digital governance?

    • China seeks to champion the concept of cyber sovereignty: An authoritarian vision drives the first model. Most notably, China is emerging as the standard-bearer for this model with its desire to “reinvent the internet.” China seeks to champion the concept of “cyber sovereignty,” allowing countries to control access to the internet, censor content, and institute data localization requirements, as a pretext to protecting individual national interests.
    • European Union’s General Data Protection Regulation (GDPR): Which provides a more democratic concept for digital governance. This model primarily seeks to protect the privacy and rights of internet users and online content consumers. Adopted with the overwhelming support of the European Parliament in 2014, the GDPR came into effect in May 2018, giving firms that rely on digital technologies the opportunity to modify their data usage and privacy policies. The adoption of the GDPR has been a turning point for global internet governance as consumers gained unprecedented control over their data in a manner that preserved freedom and openness online.

    digital governanceWhy global digital governance is important?

    • Minimum rights and protections for platform workers: Under the G20, the International Labour Organisation has already placed a proposal in the employment working group for digital labour platforms to develop an international governance system determining minimum rights and protections for platform workers.
    • Implementation of central bank digital currency projects: Similarly, on digital money, a reincarnated Bretton Woods is being advocated to address the distrust in private currencies and to coordinate the implementation of central bank digital currency projects.
    • Digital taxation: Finally, in the deeply contested area of digital taxation, the OECD facilitated Base Erosion and Profit Shifting (BEPS) negotiations and helped arrive at a global solution.
    • Digital sovereignty: The internet is splintering and digital sovereignty is now commonplace; yet, there is no better time for countries to come together and build a framework for global digital governance.

    digital governanceWhat are the big 5 tech companies called?

    • The Big Five tech giants—Apple, Amazon, Google (Alphabet), Meta, and Microsoft.

    Conclusion

    • The rapid digitalisation of the world along with a new focus on trust in the global supply chains for digital products and services presents tremendous opportunities for India and its youth.  It is now up to all of us to engage in a collective “sabka prayas” to realise New India’s economic potential.

    Mains question

    Q. The rapid digitalisation of the world along with a new focus on trust in the global supply chains for digital products and services presents tremendous opportunities for India. Comment.

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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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