Bombay H.C decision on double sentencing policy

In a recent case, the Bombay High Court has ruled on June 16 that compulsory death sentence provided for under Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 is violative of Article 21 of the Constitution. Section 31A provides for mandatory death penalty for certain offences after previous conviction. 


CONTENTION: The provision was arbitrary, disproportionate and excessive.

 The court held expression “shall be punishable with death”,  must be read as “may be punishable with death” and the judge shall be entitled to exercise discretion in sentencing. Similar case in point is Mithu v. State of Punjab, where the apex court ruled that Section 303, IPC providing for mandatory death sentence for murder committed by a life-convict was unconstitutional as being violative of Article 14 and 21 of the Constitution. 


The Case is available here 

CLARIFICATION OF DOUBTS: On the Post USE AND MISUSE OF PUBLIC VOICE

The comment that has been made on the said article after a careful observation is divided into the following five parts:

I think he has not identified the crisis from all sides

With all due respect, the author humbly submits that the commentator on this point seems to be  partially correct and not completely. There are following four reason which seems to favor my viewpoint on this article.

Firstly, Baba Ramdev, has openly admitted that the Govt. has accepted 99% of his demands, but he doesn’t want to dishearten his people who have come for a hunger strike(Read THE INDIAN EXPRESS, page 5, date 5^th June).What does this statement means, it simply means that it is not because his demands were not fulfilled but because he don’t want to dishearten his people and is willing to perform this politically infected stunt.

Secondly, he started his preparation for hunger strike a month before and then asked the government to accept his proposals. Even if the govt would have accepted all his proposals he would have not wasted all the preparation, he did for this cheap political stunt.(Read THE HINDU, page 1, date 3th June)  

Third, Shakespeare has well written in Julius Caesar, that ROMEN PEOPLE ARE FICKLE   MINDED, same is with the Indians. The author presumes this statement not to be taken as a offence, but logically speaking out of those 121 core people whom baba says to be in his support doesn’t even knows what plans and suggestion the govt. is working on, they even don’t know the recommendation submitted by Prashant Bhusan. Further, Govt has clearly accepted the proposals of Ram dev on Corruption and black money and have said that the work will start within 6 months. The Govt. only has not accepted the proposal for death penalty in the cases of corruption and I think this is right, because corruption is not a case which falls within the ambit  of rarest of the rarest case, the life imprisonment is  sufficient for corruption and further who is he to say what punishment is to be given, it is for the govt. to decide.( The Hindu, page 1 and 3, date 3th June)

Concluding, I feel that Ram dev hunger strike is an action without a cause. Till now no act has been passed so that he may point out the defects neither, the govt. has said it won’t pass a law, the govt. has clearly admitted to pass a law within 6 months and if nothing is done then he can take on with his hunger strike not any and every time when he wishes to gain popularity.

He has pointed the actions of the said baba to be flawed constitutionally but forets the reason for which it is done.

I do understand the enthusiasm of the commentator, but would like to disagree on this point. The author has supported the conduct of Hazare, because at that moment of time it was necessary as the law for accountability was not there and the Parliament was taking a lot of time to pass the law. There were also various defects in the law, which is wanted to be sorted by public participation and thus he had a valid reason.

But in the case of Baba Ram dev, it is not so, as I have tried to point out all the news on this point in my earlier part of this blog(read part 1 of this article), thus I feel not to repeat all those points.   

Freedon of speech and expression and this hunger strike is nothing but a form of expression.

I do understand that Hunger Strike is a form of expression, but I have never said that it cannot be used; the author has only said that this ultimate weapon should be a last resort to keep the integrity of the public voice.

In part 1 of this article, the author has shown how baba Ram dev have considered it as a big joke.

It is a kind of failure of having a weak opposition in the parliament due to the small party politics that the public has to interfere in issues like this.

The commentator has failed to update himself with the day to day news. The opposition party has clearly stated that they will give their recommendation in the Parliament.(Read INDIAN EXPRESS, Page 3, Date 3ed June)

Secondly, merely by the participation of opposition party members in Ramdev baba hunger strike doesn’t seems to suggest that we have a week opposition party.

Yours Sincerely,

Mr Unknown

USE AND MISUSE OF PUBLIC VOICE

India for the last 61 years, after the constitution was made in 1950 has faced various challenges, starting with the Land reform laws, then came the era of absolute pause on the power of the government in Golak Nath case, then the fundamental right case to strike balance between the State and Citizen, lastly the Election case ( Indra Nehru Gandhi v. Raj Naraian), but was this the end or the court by these judgments have recognised the extend of fundamental right. The recent emerging issue of hunger strike started by Hazara, now seems on a way to be misused.

Recently, the great baba Ramdev, has kept a list of proposals which he seeks to be accepted by the Government while making laws dealing with corruption otherwise he will go on a hunger strike. Now I find an ocean difference between Hazara and Ramdev action. Hazara by his action of hunger strike reminded the government that we are acting as a watch dog upon the government, but Baba Ram dev is acting like a clown in a circus doing acts which seems to be appealing but totally impractical in daily life. 

It is humbly submitted that the author feels ashamed that the government which is elected by ‘We the people’ is now pressurized by a baba who is more of a business man than a saint. He charges Rs 50,000 from the front row and Rs 30,000 from the back, such a man is now going on hunger strike to compel the government for fulfillment of his proposals.

The new era of public participation in law making should be used as a shield and not as a weapon. Hazara recognized this but I believe that baba Ramdev is still immature to understand this useful power of the public. To talk on a legal notion the author submits the landmark judgment of the Supreme Court in Kesavananda Bharti case, where the court rejected the argument of Nani Palkiwala that to do a basic amendment in the Indian constitution the people participation is to be made, the court said that this approach is beyond the constitution and hence cannot be recognised as a mechanism.

Concluding my views, it is submitted that participation by the people in law making is good and should be appreciated but shouldn’t be used so frequently and unnecessarily that such a powerful tool becomes a joke in the Indian History.

Yours Sincerely

Mr Unkown

WE THE PEOPLE

Various courts in the world have a different view as to who should be given the burden or privilege of preserving the constitution and the laws. The Indian Supreme Court answer to this question is that the Judiciary is the final interpreter of the Constitution and hence the burden is upon them to defend, protect and preserve the constitution. This seems to be a proper response as they have felt their oath of office a duty upon them to preserve and protect the constitution and laws.

Other court such as the American Supreme Court, has a uncertain approach, few judges response to this question was laid as similar to the Indian Supreme Court in the Malbury v. Maddision case, but in the views of Justice Gilbert who gives a political answer to this question says “The constitution and laws can be best preserved by the people of the country.” This approach of the court also seems to be rational, as we have made the constitution and thus the people we select have the authority to make the laws, but will it end all the disputes, can it ever happen that the candidates selected by the democracy, carve their thoughts in the false name of the people. This has not only happened once, but has happened various times and the lawyers are well aware that every time the Court has tried to interpret the constitution, the Parliament has marked its authority and have given a conclusion contrary to the interpretation adopted by the court.

The another question arises that can the court ask the legislature to make laws, the simple answer is ‘no’; though in various cases the approach is not followed, as in Lily Thomas case and Sarla Mudgal case, the court has asked the Parliament to make laws but still there is no response by the Parliament, but more important to that is whether the People can ask the Parliament to make laws or to implement laws. The answer is yes, but the incidental question arises how, the answer to this question was somehow given by the democracy in   Hazare's chosen means - fast unto death this means cannot be said to be a litigate means but on the same hand cannot be totally discarded as an illegitimate mean. Thus his chose of action for the implementation and passing of the Anti-Corruption seems to be an attempt to justify the real meaning of the words “we the people of India.” These words which lost their essence for so many years have now gained its flavor by Hazare’s action.

Thus, the author will like to conclude that the era has once more begin where the voice of the people will not pass without being heard by the representatives and will always serve as a check on the legislative action. I would also like to contribute my gratitude to the media without whom it wouldn’t have been a success but by the act of Hazara, makes be praise the lines of my learned  Professor Mr. Kumar Kartikaya, that ‘constitution is a representation of the aspiration of the people’ which is now reflected in Hazare’s action.

POLITICAL ANGLE OF THE BUDGET

Overview

After Didi, now Dada!! Our Honorable Finance Minister Pranab Mukherjee, fondly called Dada by his peers in the Parliament, presented his “continue–to–feel–good” budget in Parliament in a year that sees crucial elections in large states like West Bengal and Tamil Nadu. A budget that was more incremental by way of continuity in macro – economic policy, while not giving too much detail on the micro management required to run the economy of the world’s fastest growing democracy. Powered by a Gross Domestic Product (GDP) growth of 8.6% in a year of a normal monsoon in 2010-11, Dada has forecasted a growth of 8.75 to 9.25% for the next year, while invoking Lord Indra and Goddess Lakshmi for their continued blessings.

Some Key announcements and their impact

Amendment to Fiscal Responsibility and Budget Management Act, 2003

The Budget also demonstrates the faith that the Government has in the India story and global recovery. In times of increased spending and bailouts in the West, where green offshoots of recovery are yet to take firm root, the Budget has committed to introducing an amendment to the Fiscal Responsibility and Budget Management Act, 2003, laying a roadmap for the fiscal consolidation process for the next five years. The slowdown in 2007 – 08 had made the Government give up its consolidation process and spend to reduce the sharpening impact of declining global growth.

Establishment of the Debt Management Office and reclassification of government expenditure

As was expected by us, the Budget has laid the path ahead for the establishment of the independently run Debt Management Office in the Finance Ministry to take over the work of the middle office of professionally running the government’s debt raising programme. The commitment to introduce the Public Debt Management Agency of India Bill in the next Financial Year is a positive indication, which will leave the Reserve Bank of India to focus on managing the country’s monetary policy.

The committee set  up under the Chairmanship of Dr. C. Rangarajan to define the classification of the governmental expenditure from plan and non – plan and capital and revenue to meet the expectations of the service sector, reflects the importance of the sector in the national economy.

Fertilizer Subsidy

The rise in the economic cost of the decontrolled fertilizers has caused an increase in the revised estimates of 2010 – 11 by 10%. However, the budgeted figures for 2011 – 12 are approximately the same as the budgeted figure for 2010 – 11. Additionally, of a mid – year decision to bring urea under the aegis of the Nutrient Based Policy (NBS) may also add to the Fertilizer subsidy burden, which is critical to the vote-bank no government can ignore.

Direct cash transfer to poor

The policy decision to change the mode of delivering subsidies to the needy by moving towards a direct cash transfer system is a requirement of the times, given the leakage and misappropriation of funds that has been alleged from various government run schemes. This may be a politically expedient step, considering that the delivery of services to larger number of people will now be monitored.

Financial Laws to be included

The government has committed itself to introducing or amending economic laws, reforms that the Bharatiya Janata Party (BJP) has bitterly opposed and refused to enable the passing of. However, a budgetary announcement of the same implies that the Finance Minster is confident of managing the post – state election environment. The Financial Sector Legislative Reforms Commission under the chairmanship of Justice Srikrishna will help the government rewrite the laws of financial sector to bring them in sync with modern times. The new Companies Act will also be introduced in the current session, reforming the regulatory environment of the companies in India.

Black money and the roadmap thereon

The politically explosive subject of illicit and black money stashed abroad has also been dealt with in detail in the Budget. The Finance Minister has declared a five point programme to tackle the issue, while citing administrative and diplomatic progress on this front as proof of his government’s commitment to bring back the illegally gotten wealth home.

Aam Aadmi and financial inclusion

The AAM AADMI and the philosophy of financial inclusion being the focus of the United Progressive Alliance, The National Food Security Bill has been nearly finalized and will be introduced in the course of this year, in consultation with the states. Hence, the cost of this bill and welfare programme of the government has been factored into the budget. An allocation of 36.4% of the total planned allocation for the year has been set aside to meet the cost of providing free food to the needy, 17% increase over the amount provided for in the previous year. Another flagship programme, Bharat Nirman, administered through six programmes across the infrastructure sector has been given 21% increase in allocation to broad base the spread of infrastructure. The key social scheme of the government, the National Rural Employment Guarantee Scheme, has been given no increase in budgetary support, but a policy statement of providing real wages by indexing them to the Consumer Price Index for Agricultural labour is a step to mitigate the impact of inflation on the poor. Even the doubling of wages for Aanganwadi workers and helpers is a step to create a constituency for the Government among the women. To aid further financial inclusion, 53,000 new bank branches will be set up in areas where population exceeds 2,000. Further, the government will contribute for a period of five years instead of three, to the co – contributory pension scheme for unorganized sector, Swavalamban. The exit period for the same has also been brought down to a minimum tenure of 20 years.

Elections to State Assemblies

The ensuing elections to Kerala and the opposition Congress – led United Democratic Front’s strategy to court the minorities is reason for the Centre of Excellence in Malappuram being granted Rs. 50 crore. Rs. 100 crore has been granted to the Kerala Veterinary and Animal Sciences University at Pookode, Kerala The story is the same for Mamata Banerjee led Trinamool – Congress combine in West Bengal, and the decision to grant Murshidabad Rs. 50 crore as well. The Congress’s strategy to bargain hard with the Dravida Munnetra Kazhagam (DMK) in Tamil Nadu for the elections has caused Rs. 20 crore being awarded to Rajiv Gandhi National Institute of Youth Development, Sriperumbudur, Tamil Nadu, and Rs. 10 crore to the Madras School of Economics. Also, the government has instituted an award in the name of Gurudev Tagore, whose memory has always been sought to be milked politically. This is done on the occasion of the 150^th birth anniversary celebrations of Tagore.

The Uttar Pradesh elections due May 2012, and a desire to pose a strong challenge to Mayawati has made the Congress Party court the Scheduled Castes and Scheduled Tribes. The appointment of P. L. Punia, Mayawati’s former aide, as the Chairman of the National Commission for Scheduled Castes (NCSCs) was seen in this respect. Now, an increase of 25% in allocation for the same and separate allocation and sub – plan accounting of the expenditures incurred on their account will give a boost to the Congress campaign. Additionally, a scheme to award post – matric scholarships to SC and ST students, meeting the aspirations of the youth, is also seen in this light.

Final Thoughts

But some questions do remain. The introduction of GST is contingent on the Empowered Committee of State Finance Ministers making further progress on talks with the Centre. However, given the direction of political winds in West Bengal, it is unlikely that Dr. Asim Dasgupta, the State Finance Minister will continue as Chairperson of the Empowered Committee. So there is a chance the negotiations may have to begin afresh, unless a speedy resolution is reached. Over the past few months, the government has lost a lot of political capital. So a question of how it will manage a resurging BJP and extract compromises on passing the laws he has sought to amend. But, the man in charge of running the nation’s economy is one politician for whom even the Opposition has tremendous respect and regard for. Perhaps, he may need to en-cash his IOU’s to achieve his political and economic aims.

      

 Posted by: Bharat Kant

A Student of MBA, SCMHRD College

JUSTICE COMPROMISED BY SYMPATHIES

The judgment of the Supreme Court in Baldev Singh v. State of Punjab led to discussions as to whether the Court was right in reducing the sentence of the accused charged for gang rape.

S. 376(2)(g) of the Indian Penal Code deals with gang rape. On the issue of sentence, provides a minimum punishment of 10 years imprisonment and a maximum of life. The court has the discretion to impose less than the minimum sentence if it finds “adequate and special reasons” for doing so. The Supreme Court has ruled in State of A.P v. Bodem Sundara Rao  AIR 1996 SC 530, that the term “adequate and special reasons” ought to be strictly interpreted. This expression “adequate and special reason” is now been used very loosely, the court is covering anything and everything under this principle to reduce the sentence.

Two reasons stated by the court in the present case were:

Firstly, that the incident was an old one and had taken place 14 years prior to its judgment; secondly, that the parties had entered into a compromise and thirdly the victim is now married and has two children.

To the first reason given by the court the author coats the statement made by  Mrinal Satish, JSD candidate at the Yale Law School stating that our judicial process is not known for its timeliness. Delay in proceedings are a common occurrence and hence ought not to be considered as a mitigating factor. Second and more importantly, the victim does not have control over the judicial process and delays therein, even though the accused might. As the system presently operates, it is patently unfair to the victim and is an incentive to the accused to delay proceedings.

Further, can a “compromise” between the victim and the accused persons be considered a factor in reduction of sentence? As the Court notes in the judgment, S. 376(2)(g) is not a compoundable offence and parties cannot withdraw or compromise the case, even with the permission of the court. Most crimes (including the present one) are considered as crimes against the entire society, which is why the State prosecutes the crime on behalf of the victim and society. If we let victims compromise their cases, when the law does not permit, we end up undermining the entire system. This reasoning of the court seems to be improper and the court has missed out the principle of Judicial process.( Reasoning by Mrinal Satish, JSD candidate at the Yale Law School)

In the context of the third reasoning given by the court, the author would like to coat the views of S.V. Joga Rao, in one of his articles in NLSIU review, “An attempt to judge a Judgment” writes on a very similar issue, where he critically analysis the Court decision in Kapura v. State (1988) 2 Cr.J.R Raj 426, Justice K.R Chopra observed, “Ordinarily a person like Kapura charged for rape doesn’t deserve any sympathy or indulgence from the court but looking at the fact that Ms Sita has now been married, I deem it proper to reduce the sentence of the accused appellant recorded under Section 376 IPC from 7 years to 4 years” The Court in Sadhu Singh v. State of Punjab AIR (1985) S.C 1130, held that the exercise of discretion by the Court in such situation. The Court observed that, when a discretion is vested in the trial court as to what ought to be proper sentence in a given case, such ‘discretion’ has to be exercised on the sound judicial principles. For instance, good conduct, or familial, social, educational background of the accused may be relevant factor but definitely not the marriage of the victim.

In this regard the author coats the statement made by Justice Cardozo, ‘The Nature of the judicial process’ Benjamin Cardozo, Yale University Press, 1921, he says “The judge is not a knighterrant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw inspiration from consecrated principles.”

Yours Sincerely,

Mr. Unknown

JUDICIAL ACTIVISM v JUDICIAL RESTRAINT

The Indian Supreme Court considered as one of the most powerful court when compared with its counterparts like U.K, Canada, South Africa and U.S.A is now very much fond of increasing its power. In a recent judgment delivered on 3rd March, writ petition no.348 of 2010 in Centre for PIL & Anr. v Union of India & Anr.,  Justice S.H. Kapadia has quashed the appointment of the Commissioner of CVC (Central Vigilance Commission). The judgment begins saying, “Government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions. While deciding this case, we must keep in mind the difference between legality and merit as also between judicial review and merit review.” The validity of the recommendation was in question and to which the we have already seen that the court does not want to go into the policy matters of the government. While checking the legality, what one needs to see is the procedure laid down has been followed or not? Or is there any arbitrary action in the selection or recommendation? These requirements will suffice the legality.

The extent to which the court has gone in while checking the legality is quite courageous but yes! Our supreme Court is famous for its bravery and interference in policy matters and they have shown it time to time with the Vishakha case on top where they have crossed all the boundaries and they have shown that the meaning of Judicial Restraint is jeopardizing from this democratic country.

In the instant case the appointment was done as per the rules laid down for the appointment by an act passed in 2003 which says that it should be approved by the President and shall be nominated by the Prime Minister, Home Minister and one leader of opposition. All these requirements were fulfilled. Then how have they quashed the appointment? They talk of the integrity of the institution and they say, “The HPC must also take into consideration the question of institutional competency into account. If the selection adversely affects institutional competency and functioning then it shall be the duty of the HPC not to recommend such a candidate.” Although the requirement of the Act of 2003 does not include any of these things, then the Supreme Court creates the new requirements. It goes on saying that the candidate in the past shall be a public servant or civil servant is not the sole criteria but this is the only sole criteria given in the law and then the court says that HPC shall also look at the institutional integrity and whether the candidate is capable of performing the same function? The court is again while checking the legality of an action framing guidelines and then quashes the appointment on the grounds which has no justification in law. The writer is also searching for the basis of the reasoning of the said judgment. Anyhow this is again a very good example of how the judiciary while performing judicial activism crosses its boundaries.

Yours Sincerely,
Mr Unknown