Subject: Polity

Central Idea: The government informed the Supreme Court that it is considering the formation of a committee to examine the need for a painless and more dignified alternative to death by hanging.

Background Information

• Death by hanging is a mode of execution in India.
• In March, the Supreme Court had asked the government to provide data on a more acceptable method of executing prisoners other than death by hanging.
• A petition was filed challenging the constitutionality of death by hanging as a mode of execution.

Death Sentences imposed so far

• 539 prisoners were on death row in India at the end of 2021, the highest since at least 2016.
• In 2022, trial courts imposed 165 death sentences, the highest in over two decades.
• Gujarat courts imposed 51 death sentences in 2022, the highest among all the States.
• Uttar Pradesh and Jharkhand also recorded significant increases in death sentences imposed by trial courts in 2022.
• From the 67 decided cases by the High Court’s involving 101 prisoners in 2022, three prisoners had their death sentences confirmed, 48 prisoners saw their death sentences commuted to life imprisonment, 43 were acquitted of all charges and six had their cases remitted to the trial court.
• In the 11 cases decided by the Supreme Court involving 15 prisoners in 2022, 5 prisoners were acquitted of all charges; the death sentences for eight were commuted to life imprisonment; and the death penalty was confirmed for two.

Death Penalty by Hanging: Present Status

• Section 354 (5) of the Code of Criminal Procedure mandates that a person sentenced to death shall “be hanged by the neck till he is dead”.
• In India, the Air Force Act, 1950, the Army Act 1950, and the Navy Act 1957 say that execution has to be carried out either by hanging by the neck until death or by being shot to death.

• In 2018, the Centre had filed an affidavit supporting death by hanging as a mode of execution.
• The Centre had not found the method of execution “barbaric, inhuman and cruel” compared to firing squads and lethal injections.

Various initiatives to alter death by hanging

• Ensuring dignified death: The government is considering the formation of a committee to examine the need for a painless and more dignified alternative to death by hanging.
• Panel formation: The Chief Justice of India had suggested the formation of a committee with experts from national law universities, professors of law, doctors, and scientific persons.
• Humane and painless method: The court indicated that it may even direct an alternative method of executing capital punishments if it was proved that there was a more “humane” method of execution.
• Voices for psychological tests: The SC has asked for psychological evaluation of condemned prisoners by expert doctors, and access for them by mitigating investigators.

Concerns raised by Judiciary

• The Chief Justice had observed that better data was needed to relook at death by hanging.
• The court wanted to know the-

1. Impact of the sentence of death by hanging
2. Pain caused
3. Period of actual death, and
4. Availability of resources for hanging a person

Judiciary at loggerheads

• The court clarified that it was not questioning the constitutionality of the death penalty, which was well-settled in Deena versus Union of India Case judgment and the Bachan Singh case reported in 1980.
• The government argued that the mode of execution is a “matter of legislative policy” and the death penalty is awarded only in the rarest of rare cases, with only three executions between 2012 and 2015.

Debate over Death Penalty

Arguments in favor of death penalty	Arguments against death penalty
– 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.	– 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.
– 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.	– 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.
– Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.	– Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
– 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.	– 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.
– Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.	– 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.
– 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.	– 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.
– Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.	– 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.

 

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 262^nd 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.

 

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Central idea: The Centre has informed Supreme Court that it has initiated the “process of re-examination” of Section 124A (sedition) of the Indian Penal Code and consultations are in its “final stage”.

What is the Sedition Law?

• Section 124A of the Indian Penal Code lays down the punishment for sedition. The IPC was enacted in 1860, under the British Raj.
• The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
• Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
• Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.

Do you know?

Queen-Empress v. Bal Gangadhar Tilak (1897) was the first case in which Section 124A was defined and applied. Again in 1908, when Tilak was tried under same section, then young barrister and a staunch protagonist Mohammed Ali Jinnah defended Tilak.

What is Sedition?

• The Section 124A defines sedition as:

An offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.

• Disaffection includes disloyalty and all feelings of enmity.
• However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
• Sedition is a non-bailable offense.
• Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.

Sedition as a cognizable offense

• Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
• In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.

Is it constitutionally valid?

• Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
• Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
• Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
• Limited use: At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
• Strong criticism doesn’t amount to sedition: Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.

Why the controversy now?

• Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
• Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
• Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
• Irrelevance: Many of them have also been detained under the National Security Act and UAPA.

What is being debated about it?

• Demand for its scrapping: Liberals and rights activists have been demanding the scrapping of Section 124A.
• Provision is outdated: It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
• Various calls for its reconsideration: The Law Commission has also called for a reconsideration of the section.
• Tyranny of the law: It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
• Doctrine of severability: Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.

Need for such law

• There are some tendencies exist even today who wish to overthrow the state apparatus and constitutional scheme of India.
• It falls on the judiciary to protect Articles 19 and Article 21 of the Constitution.
• Undue exercise of free speech has led to overture of ordinary dissent into an anti-national insurrection or uprising.
• There are areas in the country that face hostile activities and insurgencies created by rebel groups, like the Maoists.
• There must be restrictions on expressing unnecessary contempt or ridiculing of the Government beyond certain limits.

Way forward

• India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy.
• The sedition law should not be abolished as some measures are needed to check communal violence & insurgency activities like Naxals.
• The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
• Section 124A should not be misused as a tool to curb free speech.

 

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Fifty years ago, on April 24, 1973, the Supreme Court delivered its judgment in Kesavananda Bharati Sripadagalvaru and Ors vs. State of Kerala and Anr, the landmark case that redefined the relationship between Parliament and the Constitution.

Kesavananda Bharati Case (1973)

• The Kesavananda Bharati judgement, was a landmark decision of the Supreme Court that outlined the basic structure doctrine of the Indian Constitution.
• The case is also known as the Fundamental Rights Case.
• The SC in a 7-6 decision asserted its right to strike down amendments to the constitution that were in violation of the fundamental architecture of the constitution.
• The Court asserted through the Basic Structure doctrine that the constitution possesses a basic structure of constitutional principles and values.
• Key outcomes were:

1. Basic Structure Doctrine: It is a principle that limits Parliament’s power to amend the Indian Constitution. It holds that certain fundamental features of the Constitution, such as the principle of separation of powers, cannot be amended by Parliament.
2. Judicial Review: The Court partially cemented the prior precedent Golaknath v. State of Punjab, which held that constitutional amendments through Article 368 were subject to fundamental rights review, but only if they could affect the ‘basic structure of the Constitution’.
3. Exceptions to Judicial Review: At the same time, the Court also upheld the constitutionality of the first provision of Article 31-C, which implied that amendments seeking to implement the Directive Principles, which do not affect the ‘Basic Structure,’ shall not be subjected to judicial review.

Criticism of the doctrine

• Dilution of powers: The basic structure doctrine has been criticized for diluting the principle of separation of powers and undermining the sovereignty of Parliament.
• Ambiguous nature: It has also been criticized as a vague and subjective form of judicial review.

Landmark cases of the doctrine

• Indira Gandhi v Raj Narain (1975): The Supreme Court applied the principle laid down in the Kesavananda ruling for the first time in this case. It struck down The Constitution (39^th Amendment) Act, 1975, which barred the Supreme Court from hearing a challenge to the election of President, Prime Minister, Vice-President, and Speaker of Lok Sabha.
• Minerva Mills Ltd vs. Union of India (1980): The Supreme Court struck down a clause inserted in Article 368, which said “there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution.”
• P Sambamurthy v State of Andhra Pradesh (1986): The Supreme Court struck down a portion of the 32nd Amendment (1973), which constituted an Administrative Tribunal for Andhra Pradesh for service matters, taking away the P jurisdiction of the High Court.
• L Chandra Kumar v Union of India (1997): The Supreme Court struck down a portion of the 42nd Amendment, which set up administrative tribunals excluding judicial review by High Courts.

Significance of the Judgment and the doctrine

• Strengthen judicial review: The doctrine forms the basis of the power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Parliament.
• Clarification about Article 368: Article 368 postulates only a ‘procedure’ for amendment of the Constitution. The same could not be treated as a ‘power’ vested in the Parliament to amend the Constitution to alter the ‘core’ of the Constitution, which has also been described as the ‘basic structure’ of the Constitution.
• Not antithetical to legislative authority: Justice Shastri said Judicial Review was undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in the discharge of a duty laid down upon them by the Constitution”.
• A system of checks and balances: The Kesavananda Bharati verdict (1973) made it clear that judicial review is not a means to usurp parliamentary sovereignty. It is a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.

 

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Central idea

• The Indian judiciary is currently hearing arguments about the legal recognition of same-sex unions under the Special Marriage Act.
• The Centre has contested the maintainability of the petitions, and the judiciary’s right to confer legal recognition on the “socio-legal institution” of marriage.
• However, the CJI has clarified that the scope of the hearing would be limited to developing a notion of a Civil Union that finds legal recognition under the Act.
• This article explains what civil unions are, how they differ from marriage, and which countries allow them.

What is a Civil Union?

• A civil union is a legal status that allows same-sex couples specific rights and responsibilities normally conferred upon married couples.
• Civil unions resemble marriages and bring with them employment, inheritance, property, and parental rights, among other things.

How is a civil union different from marriage?

• In the US, prior to the Supreme Court’s landmark ruling in “Obergefell v. Hodges” in 2015, a majority of the states had civil union laws that allowed same-sex couples to marry without providing them formal recognition of the same.
• Civil unions were recognised solely by issuing states and not by federal law, which meant that such couples could not enjoy the benefits of being in a civil union uniformly across all states.
• After the legalisation of same-sex marriages, several civil unions were converted into marriages.

What other countries allow civil unions?

• Several countries allow civil unions.
• Before Sweden legalised same-sex marriages in 2009, LGBTQ couples there could apply for civil unions and enjoy benefits such as the right to adopt.
• In Norway, couples could enter into civil unions from 1993, which gave way to a new law 15 years later allowing such couples to marry, adopt, and undergo state-sponsored artificial insemination.
• In Austria, same-sex couples could form civil partnerships between 2010-2017 until a court ruling deemed civil unions discriminatory, and such marriages were legalised.
• Similarly, countries like Brazil, Uruguay, Andorra, and Chile recognised the right of same-sex couples to enter into civil unions even before they formally recognised their legal right to marriage.

 

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