Group 2: Article 21, Rule of law and more on Death Penalty

MINUTES OF THE CLASS

Article 21: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

·      Article 21 did not play a major role till 1950-75

·      It was in 1980s when people began using article 21.

·      One reason for this sudden increase could be linked to emergency declared in 1975.

·      Now, what does procedure established by law mean?

Article 21: A journey from “Procedure established by law” to “Due process of law”.

Does It (Art 21) promise a mere formality which we might be able to call a rule by law?

Even an authoritarian dictatorial state like China has a rule by law system in the sense that the law is clear, law is the command of the sovereign and law instructs how agencies function.

If there is a law which gives you a right to appeal but tells you that you have one hour to appeal which is essentially no time it will still be a rule by law system.

What is different once we start thinking about substance and the rule of law?

Natural justice, fairness, Due process, not arbitrary - many ways of defining rule of law

That would mean within rule of law there is an idea of equality- Maneka Gandhi case

A Substantive understanding of rule of law depicts the reality of procedure, a sense of justice and higher principles promised by the constitution

Early phases of Art 21 in the constituent assembly, the question was whether to include the term due process in the clause. Original idea from US was that a person cannot be deprived of liberty and property without due process of law. Our Constituent Assembly was looking at the American constitution, discussing if they should have the due process clause.

First thing they did was to kick out property. They stuck to “life and liberty”

One of the historical factors which directly influenced constituent assembly to explicitly omit a due process clause in the section on FR, was the influence of US Supreme Court Justice Felix Frankfurter on Constitutional adviser, B.N. Rau who travelled to Britain, Ireland, US and Canada in 1947 to meet with the judges regarding the drafting and framing of the Indian Constitution. (See more at https://pdfs.semanticscholar.org/035c/d60f6d44cf6c35576d007b61ea4bce057842.pdf) Justice Frankfurter believed that democratic institution like the parliament is the most important and the role of a judge is not to be creative and invent new rights. He advised Rau to never include the word due process in the Indian constitution as then, the judges would pour a lot of policy making and that must be avoided. This was also the time when Japanese constitution was being drafted by US army, In Japan, they used the term “procedure established by law “which was used in our constitution as well just to distinguish it from due process. This shows that there was no substantive dimension behind Art. 21. However, there was a switch from formal to substantial rule of law, in Maneka Gandhi case, which is an important case of judicial activism

There was a reluctance to use the words due process.

Powerful constitutional courts don’t exist except perhaps in US. One can look towards France, Soviet Union, wherever one looks all we see is a judicial restraint.

There was, infact, a constitutional crisis in the US when Roosevelt and other Presidents tried to introduce social welfare legislations (example legislation against child labour) but the same, was struck down by the Supreme Court.

In India, at that point of time, the constituent assembly, wanted to have land reforms, affirmative action, etc. and wanted the same to be away from judicial scrutiny, thus they stayed away from the due process clause

Selvi v state of Karnataka

Narco analysis, brain mapping and polygraph tests declared illegal without the accused’s consent

Procedure established by law- what does the procedure mean?

Entick v Carrington

King’s messengers enter the house without a warrant.

Formalistic understanding-no substance to minimum procedural requirement of fairness that this warrant has to comply with.

Debate about substantive dimension- how much fairness do we want to pour?

What dimension do people who have a right to legal representation but not have the money, fall under? PIL and Legal Aid. What good is having a formal right if you don’t have the means, knowledge, the education to exercise these rights

Critique against the rule of law- law is nothing but the tool of the bourgeois to protect capitalism, property rights and political ideas- Marxist critique.

Maneka Gandhi v UOI (1978)

Procedure established by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. The question whether the procedure prescribed by law which curtails or takes away the personal liberty guaranteed by Art. 21 is reasonable or not has to be considered.

Principle of natural justice are inherently enforced in Art -21 and succeeded in reality the due process of law in Art -21.

This decision heralded an era of judicial activism in India.

Years after Art 21 was put in place, it had a long journey beginning with a very formal understanding of the rule of law towards a really extreme revolutionary understanding of substantive dimensions

(See more at http://shodhganga.inflibnet.ac.in/bitstream/10603/129456/12/12_chapter5.pdf )

MINUTES OF THE PRESENTATION

Death Penalty

Procedure established by law:

•             Trial Court, High Court and Supreme Court can award death penalty.

•             Sentencing judges must record special reasons during imposition of death penalty.

•              Trial Court sentences must be confirmed by High Court.

•             Exception when central legislations have excluded application of CrPC.

Appeal through the court:

·      Right to appeal sentence and conviction.

·      After appeal to SC – two choices – Review Petition and Curative petition.

·      Review petition used to appeal to the decision of the SC.

·      Curative petition used to appeal review petition. Accused must prove violation of principle of Natural Justice.

Mercy Petition:

·      Purpose to reverse or commute sentence.

·      Submitted to either the President or the State governor.

·      Decision can be based on extra – judicial factors such as age of the prisoner, socio economic conditions and mental health.

·      Judicial review limited to checking if the decision-making process was procedurally sound.

    Death Penalty no longer a norm:

·      Section 367(5), CrPC 1898: If the accused has committed a crime punishable to death and if the court sentences him to a punishment other than death, then the court must state the reason why the sentence to death was not given

·      Section 354(3), CrPC 1973: When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.

India on death penalty:

·      Bachan Singh V State of Punjab:

Ø  Should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”

Ø  Rarest of rare dictum

Ø  Don’t confine its consideration merely to the circumstances connected with the particular crime

Ø  But must also give due consideration to the circumstances of the criminal

·      PN Bhagwati’s dissenting opinion: came 2 years after the judgement was delivered

Ø  Whether the state can take the life of an individual under the cover of judicial process and whether such act of killing by the state is in accordance within constitutional norms and values?

Ø  The purpose of constitution is to follow doctrine of ‘Rule of law’ which does not mean laws passed by authorities by it means to exclude arbitrariness.

Ø  Fundamental rights erect a protective armour for the individual against arbitrary or unreasonable executive or legislative action.

Ø  Article 14 enacts primarily a guarantee against arbitrariness and unreasonableness. Death penalty has to be thus measured with such lens.

Ø  Death penalty is barbaric, traumatic.

Ø  Plus, there can also be a miscarriage of justice as there is always a chance of judicial error

Ø  There is no rationale for such punishment as it is not serving any public purpose and is against the constitutional value of the country.

Theories of Punishment

Utilitarian

Ø  Moral theory that focuses on the results, or consequences, of our actions, and treats intentions as irrelevant.

Ø  We should act always as to produce the greatest good for the greatest number.

Ø  Where morality is concerned, utilitarians argue that you are no more special than anyone else

Ø  Bentham and Mill proposed

Ø   Act Utilitarianism: In a given situation you should choose the action that produces the greatest good for the greatest number.

Ø  Rule Utilitarianism: We ought to live by rules that in general are likely to lead to the greatest good for the greatest number.

Retaining Death Penalty: Macchi Singh V State of Punjab

·      Death penalty can be given on three conditions

1.    Motive which evinces total depravity and meanness

2.    Brutal, Grotesque, Barbaric, Inhumane act

3.    Enormous in proportion

·      SC ruled on many cases just based on the nature of the crime ignoring the one relating to the criminal.

·      It was in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, that the SC corrected itself. It observed that the threshold of rarest of rare has been wrongly applied.

·      Courts’ decision to give death penalty raise several questions:

Ø  Is it the nature of crime or the nature of incident ?

Ø  What may appear to special reason to one judge may appear absolutely normal to another.

Ø  One judge may term it crime of passion while the other may term it against society at large.

Ø  Society pressure?

Discussions/ Q and A:

Q1. Based on the fact that India voted against the resolution for death penalty, and Madhya Pradesh passed a bill awarding Death Penalty to persons raping girls of the age of 12 and below, what do you think is the justification towards India being in favour of awarding death penalty and not abolishing it?

A. Many times, there are political motives and other factors involved in granting of a death penalty. Taking into consideration the general opinion of the public, we have seen in cases of Dhananjay Chatterjee v State of West Bengal (1994), how media plays a huge role. Many times, death penalty is given, to appease the general public. There are a number of issues which contribute to it. As a whole, it is sad, that this is the path we are choosing, owing to the fact that the world moving away from it and while we are moving towards it but we are not providing a justification as to why we are doing so.

Q2. Did the Government come up with any guidelines regarding an alternative mode of execution?

A. Reference made to the recent judgement regarding the Right to die with dignity which allows for passive euthanasia. That can bring up interesting questions regarding the mode of execution. Reference made to the illustration that hanging is not the most dignified way to die. This should be addressed by the SC and notice has been issued to the government to come up with a different mode of execution.

Q3. Why is the rage for Death Penalty sort of spreading?

A. In a Democracy there is an interrelationship between what majority wants and rights discourse. Will of majority can also change. For example, when the European council decides to abolish death penalty for all 54 states which were a part of European convention for Human Rights after World War II.  The countries would also not send prisoners to India where death penalty is a possible outcome, so, every Indian terrorist sitting in Denmark or in Spain would not be sent to India.

If you had done a public opinion survey in 1905 – 80-90% would have said that we are fine with death penalty. After 60 years of living without death penalty-if we now ask people- 70% say that they are against it

So, an important question is whether one follows the majority opinion or what value one accords to majority opinion.

PN Bhagwati, J- stood up and went against the strong public support of death penalty.

Once you are on the path of more and more death penalty or if one expands the realm of death penalty, it shall be self-reinforcing. Example- In China there is death penalty for corruption.

Q4. Should idea of justice be based on revenge? What should idea of justice be based on?

A. Reformation is what that one should seek. If one is punished but is not realizing his mistake then the purpose of punishment fails. Realization is important. A sensitivity towards crime can result in decreasing crime rate. Justice system should incorporate sense of right and wrong in the criminal.

Certain rules and regulations should be followed and death penalty should be given to that person whose reformation cannot be done. Not particularly against death penalty but against the arbitrariness of awarding it by unreasonableness. Legislative create laws declaring in which instances death penalty be given.

Q5. Justice Bhagwati says that there is arbitrariness and discretion of the courts in awarding punishments so does that mean we should abolish punishments completely?

A. J Bhagwati-theory of punishment- certain amount of power in the hands of the judiciary when they are giving punishments. Argument- talking about the punishment of death penalty in particular- in every instance judge has power and discretion in deciding death penalty- talking of life and death so we cannot have even the slightest bit of ignorance on part of the judges- miscarriage of justice.

Q6. A death sentence doesn’t happen in all situations even when all facts are the same so there is definitely arbitrariness. What sort of policy or administrative measure can be taken to ensure there is uniformity? Because most of the cases where death penalty is awarded are largely dependent upon external factors and not the facts of the case itself

A. There should be scrutiny of punishments- doctrine of stare decisis a- common law- basic principle- ensures uniformity in certain amount- when we see certain law- not determining particular punishments for certain crimes – discretion upon the judges- example of the Sanjeev Nanda case (1999 Delhi hit-and-run case) where the accused was acquitted for an accident and given very less punishment as he was from an influential, high society well off family. Such loopholes of the law are always there.

Q7. We learnt how delay is not the absolute law in commuting a sentence. What are the other indicators that could lead to commutation of a death sentence?

A. Factors such as- age, socio-economic background plays a role.

Problem is that the- court not set any guidelines- Example- Sushil Sharma case (Tandoor case) – where the accused shot his wife and put in tandoor(barbeque) to burn the body- Trial court  awarded death penalty and HC upheld it but here again we saw it was a case of trial by media rather than the judicial process being followed- there was such public outrage- court took all that into consideration- In 1995- death penalty awarded- In 2013 SC commuted his sentence- spent 18 years in solitary confinement- ultimately sentence commuted- The fact that there areno set guidelines for commutation is an argument formed against death penalty and for its abolishment.

Q8. Is there any reduction in crime rates with harsher punishments like death penalty?

A. Not really according to the statistics.

Attention drawn to PN Bhagwati judgement- let’s for example say a person committed theft and is given a very harsh punishment for it that may create deterrence- in those instances harsh punishment may reduce petty crime rates but then it is against the proportionality of law- cannot give punishment more than the crime you’ve committed

Death Penalty is a costly affair- even if it may lead to deterrence- A balance has to be struck between cost and deterrence- (costs here mean financial costs- legal procedures)

Q9. Would you say that India’s retention of death penalty is grounded in utilitarianism?

A. Yes definitely, as pointed out before- it’s to appease the majority- opinion of majority might actually change with time. It is definitely based on utilitarianism- everything has politics involved, our country is not even looking at aspects of reformation and rehabilitation.

Q10. Would it be correct to say that PN Bhagwati would not have a problem with Death Penalty per se but only with the arbitrariness associated with it?

A. He says death penalty- cannot be looked in vacuum but has to be looked through the basic socio-economic condition of the country.

He is against death penalty in itself- In the initial part of his judgement he does a philosophical analysis of death penalty- criticizes it- he does not want it- Also finds constitutional reasons such as arbitrariness, unreasonableness, deprivation of life and personal liberty under Art 21 for its abolition. He has problem with death penalty and calls it- inhuman, barbaric, brutal. Relates it to Art 21, saying that procedure established by law is being violated.