When Supreme Court substitutes death sentence imposed by the trial court and confirmed by the High Court by a sentence of imprisonment for life, it deserves appreciation. Each such decision by the Supreme Court helps to correct the distortions which marked the jurisprudence over the years. In today's judgment in Rajesh Kumar v The State through the Government of NCT of Delhi, Justices A.K.Ganguly and D.K.Jain explain how the HC erred in awarding death sentence to the convict.
Wednesday, September 28, 2011
Saturday, September 24, 2011
A Lakhman Rekha for The Judiciary
This has got to be one of the most interesting back-and-forth during a Supreme Court argument. Gone are the days of judges passively listening to senior advocates drone on and on. This bench, at least, seems to be in a combative mood.
Men's Only Bar in Bombay?
Why is it so hard for women to become senior advocates in Bombay? This is a national disgrace. I'm sure the numbers aren't much better at other high courts or in the Supreme Court. No wonder we so few women judges across the country.
Thursday, September 22, 2011
GLC Essay Writing Competition
The Magazine Committee of Government Law College, Mumbai has called for papers for the 11th Vyas – Government Law College National Legal Essay Competition. The winners receive a cash prize and the top two essays are published in méLAWnge, the annual college magazine. The competition is judged by sitting judges of the Bombay High Court. The 10th edition of this competition was judged by Hon’ble Shri Justice J. P. Devadhar, Hon’ble Shri Justice V. M. Kanade, Hon’ble Shri Justice A. S. Oka, Hon’ble Shri Justice S. J. Kathawalla, Hon’ble Shri Justice K. K. Tated, Hon’ble Smt Justice Bhatkar amongst several others.
This year’s topics are:
1) International tax treaties – Examples of globalised corporate governance or infringements of national sovereignty?
2) Is the proposed legislation on Public Interest Disclosure sufficient to protect India's whistleblowers?
3) Jaitapur Nuclear Power Project – Is the promise of the largest nuclear power generating station in the world overshadowing public safety and environmental concerns?
4) Land Acquisition and Resettlement and Rehabilitation Bill, 2011- A boon or a bane?
5) Sedition laws in India and the National Security Act 1980 – A necessity or a deprivation of constitutional and statutory rights?
For further information please visit www.glcmag.com or write to melawnge@glcmumbai.com
The committee also organizes the BELLES-LETTRES J.E. Dastur Memorial Government Law College Short Fiction Essay Writing Competition, which has been judged by authors like Gregory Roberts and Ruskin Bond in the past. Visit the website for more details.
This year’s topics are:
1) International tax treaties – Examples of globalised corporate governance or infringements of national sovereignty?
2) Is the proposed legislation on Public Interest Disclosure sufficient to protect India's whistleblowers?
3) Jaitapur Nuclear Power Project – Is the promise of the largest nuclear power generating station in the world overshadowing public safety and environmental concerns?
4) Land Acquisition and Resettlement and Rehabilitation Bill, 2011- A boon or a bane?
5) Sedition laws in India and the National Security Act 1980 – A necessity or a deprivation of constitutional and statutory rights?
For further information please visit www.glcmag.com or write to melawnge@glcmumbai.com
The committee also organizes the BELLES-LETTRES J.E. Dastur Memorial Government Law College Short Fiction Essay Writing Competition, which has been judged by authors like Gregory Roberts and Ruskin Bond in the past. Visit the website for more details.
Thursday, September 15, 2011
Supreme Court's latest judgment on death penalty: A critique
Supreme Court’s recent judgment in Ajitsingh Harnamsingh Gujral v. State of Maharashtra, (hereafter referred to as Ajitsingh) deserves a close study by all those concerned about the award of death penalty in India. There can be no doubt that one would be horrified by the brutality of the murders found to have been committed by the appellant in this case. It is difficult to disagree with the Bench that circumstantial evidence is overwhelmingly against the appellant.
There are certain flaws in the judgment which are also the flaws of many judgments which the Bench has cited. There are exactly 32 precedents which the Bench cited and all of them are in defence of the Bench’s argument that the most heinous and barbaric murders are also invariably the rarest of rare cases which call for imposition of death penalty.
Rightly and most expectedly, the Bench began with the Supreme Court's judgment in the Bachan Singh case and cited the crucial sentence in Paragraph 58:
"For persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
It is curious that the Bench has emphasised the first part of the last sentence, whereas the second part of that sentence qualifies the first part. Because of this flawed emphasis, the jurisprudence on death penalty suffered for lack of clarity and consistency since 1980, and it continues to suffer so to date. Supreme Court pointed this out in Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009). Unfortunately, Bariyar does not find a mention in Ajitsingh.
Other cases which have been conveniently left out in this selective survey are Mulla v State of U.P. and Swami Shraddhananda which apply the law and precedents correctly.
In Bariyar, the Court noted that the mitigating circumstances listed in and endorsed by Bachan Singh give reform and rehabilitation great importance, even requiring the State to prove that this would not be possible, as a precondition before the Court awarded a death sentence.
In Paragraph 96 of Ajitsingh, the Court did not even refer to this State's responsibility to prove that the appellant could not be reformed or rehabilitated. Instead, the Bench has substituted this requirement with the opinion that a person like the appellant who, instead of doing his duty of protecting his family kills them in such a cruel and barbaric manner, could not be reformed or rehabilitated. Can a Judge's personal opinion replace the need for evidence when the alternative option is unquestionably foreclosed?
In Ajitsingh, the Court has relied on Machhi Singh (1983) and Mohd. Mannan v. State of Bihar (2011) to hold that murders which are gruesome, ghastly or horrendous, and when collective conscience of the community is petrified, death penalty is called for, as they belong to the category of rarest of rare cases. The questions whether the sentence of life imprisonment is inadequate and whether there is no alternative punishment cannot be answered with subjective views. The facts and circumstances of each murder are different, and therefore, by simply repeating the adjectives used to describe the manner of killing in earlier cases, the case before the Court does not ipso facto become rarest of rare. The distinction between ordinary murders and murders which are gruesome etc. which the Court have drawn in Paragraph 98 of Ajitsingh is not at all convincing. Neither Bachan Singh nor Machhi Singh Benches intended to draw such distinction.
The paragraphs which the Bench has cited from Mohd.Mannan in Paragraph 99 clearly suggest that it ought to have further enquired and believed that the accused condemned could not be reformed or rehabilitated and would continue with the criminal acts. There is nothing to suggest in the judgment that the Bench did this exercise. It needs to be asked whether the question was put to the prosecution during the hearing, and what was the response.
In Paragraph 99, the Bench has admitted that the expression 'rarest of the rare cases' cannot, of course, be defined with complete exactitude. I disagree, with due respect. It ought to be defined exactly; otherwise, we will be unjustly taking away the life of a convict. The broad guidelines, explained by various decisions of the Court, are not exhaustive, and sometimes confusing, with conflicting judgments.
As a matter of routine exercise, the Bench has cited the Law Commission's 35th Report in Paragraph 55. What does it say? It has concluded that deterrence object of capital punishment is achieved in a fair measure in India, on the basis of its opinion survey conducted several years ago. Instead of opinions, what we require is hard data. I wish the court has gone into such hard data, to find out, whether the capital punishment has achieved the deterrence objective over the years. The Law Commission, in that report, actually said we needed studies extending over a long period of years to know the conduct of prisoners released from jail. It was also doubtful whether any other punishment could possess all the advantages of capital punishment, and whether statistics of other countries, as to the deterrence aspect, were conclusive. A report which has expressed doubts about its own findings cannot be the basis for capital punishment.
Supreme Court has the power to commission data and studies as well, where no hard data is available. It is inexplicable why successive Benches of the Supreme Court confirming death penalty have not thought it necessary to do so.
Lastly, the Bench claims in Paragraph 101 that it is only the legislature which can abolish the death penalty and not the courts. I wonder how the Supreme Court declared Section 303 IPC unconstitutional in Mithu v State of Punjab. The Court certainly has the power to abolish, but it has chosen not to do so for other reasons.
(I thank Bikram Jeet Batra for making helpful suggestions on an earlier draft of this post. I also thank Vikram, Arun, Tarunabh and Nick for their encouraging response to the previous draft which I had circulated)
There are certain flaws in the judgment which are also the flaws of many judgments which the Bench has cited. There are exactly 32 precedents which the Bench cited and all of them are in defence of the Bench’s argument that the most heinous and barbaric murders are also invariably the rarest of rare cases which call for imposition of death penalty.
Rightly and most expectedly, the Bench began with the Supreme Court's judgment in the Bachan Singh case and cited the crucial sentence in Paragraph 58:
"For persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
It is curious that the Bench has emphasised the first part of the last sentence, whereas the second part of that sentence qualifies the first part. Because of this flawed emphasis, the jurisprudence on death penalty suffered for lack of clarity and consistency since 1980, and it continues to suffer so to date. Supreme Court pointed this out in Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009). Unfortunately, Bariyar does not find a mention in Ajitsingh.
Other cases which have been conveniently left out in this selective survey are Mulla v State of U.P. and Swami Shraddhananda which apply the law and precedents correctly.
In Bariyar, the Court noted that the mitigating circumstances listed in and endorsed by Bachan Singh give reform and rehabilitation great importance, even requiring the State to prove that this would not be possible, as a precondition before the Court awarded a death sentence.
In Paragraph 96 of Ajitsingh, the Court did not even refer to this State's responsibility to prove that the appellant could not be reformed or rehabilitated. Instead, the Bench has substituted this requirement with the opinion that a person like the appellant who, instead of doing his duty of protecting his family kills them in such a cruel and barbaric manner, could not be reformed or rehabilitated. Can a Judge's personal opinion replace the need for evidence when the alternative option is unquestionably foreclosed?
In Ajitsingh, the Court has relied on Machhi Singh (1983) and Mohd. Mannan v. State of Bihar (2011) to hold that murders which are gruesome, ghastly or horrendous, and when collective conscience of the community is petrified, death penalty is called for, as they belong to the category of rarest of rare cases. The questions whether the sentence of life imprisonment is inadequate and whether there is no alternative punishment cannot be answered with subjective views. The facts and circumstances of each murder are different, and therefore, by simply repeating the adjectives used to describe the manner of killing in earlier cases, the case before the Court does not ipso facto become rarest of rare. The distinction between ordinary murders and murders which are gruesome etc. which the Court have drawn in Paragraph 98 of Ajitsingh is not at all convincing. Neither Bachan Singh nor Machhi Singh Benches intended to draw such distinction.
The paragraphs which the Bench has cited from Mohd.Mannan in Paragraph 99 clearly suggest that it ought to have further enquired and believed that the accused condemned could not be reformed or rehabilitated and would continue with the criminal acts. There is nothing to suggest in the judgment that the Bench did this exercise. It needs to be asked whether the question was put to the prosecution during the hearing, and what was the response.
In Paragraph 99, the Bench has admitted that the expression 'rarest of the rare cases' cannot, of course, be defined with complete exactitude. I disagree, with due respect. It ought to be defined exactly; otherwise, we will be unjustly taking away the life of a convict. The broad guidelines, explained by various decisions of the Court, are not exhaustive, and sometimes confusing, with conflicting judgments.
As a matter of routine exercise, the Bench has cited the Law Commission's 35th Report in Paragraph 55. What does it say? It has concluded that deterrence object of capital punishment is achieved in a fair measure in India, on the basis of its opinion survey conducted several years ago. Instead of opinions, what we require is hard data. I wish the court has gone into such hard data, to find out, whether the capital punishment has achieved the deterrence objective over the years. The Law Commission, in that report, actually said we needed studies extending over a long period of years to know the conduct of prisoners released from jail. It was also doubtful whether any other punishment could possess all the advantages of capital punishment, and whether statistics of other countries, as to the deterrence aspect, were conclusive. A report which has expressed doubts about its own findings cannot be the basis for capital punishment.
Supreme Court has the power to commission data and studies as well, where no hard data is available. It is inexplicable why successive Benches of the Supreme Court confirming death penalty have not thought it necessary to do so.
Lastly, the Bench claims in Paragraph 101 that it is only the legislature which can abolish the death penalty and not the courts. I wonder how the Supreme Court declared Section 303 IPC unconstitutional in Mithu v State of Punjab. The Court certainly has the power to abolish, but it has chosen not to do so for other reasons.
(I thank Bikram Jeet Batra for making helpful suggestions on an earlier draft of this post. I also thank Vikram, Arun, Tarunabh and Nick for their encouraging response to the previous draft which I had circulated)
Sunday, September 4, 2011
Call for Papers- National Law School of India Review
The National Law School of India Review is now accepting submissions for its upcoming issue - Volume 24(1).The National Law School of India Review (NLSIR) is the flagship law journal of the National Law School of India University, Bangalore, India. The NLSIR is a bi-annual, student edited, peer-reviewed law journal providing incisive legal scholarship on issues that are at the forefront of contemporary legal discourse. Over the last 20 years, the NLSIR has regularly featured articles authored by judges of the Indian Supreme Court, Senior Counsel practicing at the Indian bar, and several renowned academics.
The most recent issue of the NLSIR, Vol. 23(1), featured contributions by Mr. Justice Altamas Kabir (Judge, Supreme Court of India), Professor Christopher Forsyth (Cambridge University), Professor Julian Roberts(Oxford University), Professor Lea Shaver (Yale Law School), Professor Ariel Ezrachi (Director, University of Oxford Centre for Competition Law and policy) and Mr. K. Swaminathan (Head of the Direct Tax Practice at Lakshmikumaran & Sridharan) among several others. Moreover, in August 2009, NLSIR attained the unique distinction of being the only Indian student-run law journal to be cited by the Supreme Court of India, inAction Committee, Un-Aided Private Schools v. Director of Education. NLSIR has also recently been cited in Justice R. S. Bachawat's Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.
Papers may be submitted as Long Articles (approximately 8000 words), Essays (approximately 5000 words) or Notes (approximately 2500 words). Submissions may be made to mail.nlsir@gmail.com. Queries regarding submission may be sent to the same email address. The last date for submissions is November 1, 2011. Formore information, please visit - www.nlsir.in.
The most recent issue of the NLSIR, Vol. 23(1), featured contributions by Mr. Justice Altamas Kabir (Judge, Supreme Court of India), Professor Christopher Forsyth (Cambridge University), Professor Julian Roberts(Oxford University), Professor Lea Shaver (Yale Law School), Professor Ariel Ezrachi (Director, University of Oxford Centre for Competition Law and policy) and Mr. K. Swaminathan (Head of the Direct Tax Practice at Lakshmikumaran & Sridharan) among several others. Moreover, in August 2009, NLSIR attained the unique distinction of being the only Indian student-run law journal to be cited by the Supreme Court of India, inAction Committee, Un-Aided Private Schools v. Director of Education. NLSIR has also recently been cited in Justice R. S. Bachawat's Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.
Papers may be submitted as Long Articles (approximately 8000 words), Essays (approximately 5000 words) or Notes (approximately 2500 words). Submissions may be made to mail.nlsir@gmail.com. Queries regarding submission may be sent to the same email address. The last date for submissions is November 1, 2011. Formore information, please visit - www.nlsir.in.
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