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

EUTHANASIA: The old doctrine followed with new results

 “Marte hain aarzoo mein marne ki Maut aati hai par nahin aati” -- Mirza Ghalib

The author believes that there is no need to give a introduction to such a widely known topic, thus directly movies towards the facts of the case. The court in the present case [Aruna Ramachandra Shanbaug Petitioner(s) v. Union of India & Ors. Respondent(s)]  has legalized passive euthanasia and has laid the guidelines which will serve as a procedure in exercising euthanasia

FACTS OF THE CASE

The petitioner Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rape her but finding that she was menstruating, he sodomized her. It is alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged.

JUDGEMENT

The Supreme Court in the present case took the reference of  Gian Kaur vs. State of Punjab, 1996(2) SCC 648 (vide paragraphs 22 and 23) where the same court held that the right to life guaranteed by Article 21 of the Constitution does not include the right to die.

 It will be wrong to comment that the court has legalized euthanasia in totally, the court has differentiated: active and passive and has only legalized passive euthanasia.  The court further described abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide (Section 309 of Indian Penal Code) which are criminal offences. The court differentiated from the Constitution Bench of the Indian Supreme Court in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 held that both euthanasia and assisted suicide are not lawful in India.

 The Court held that although Section 309 Indian Penal Code (attempt to commit suicide) has been held to be constitutionally valid in Gian Kaur’s case, the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment. We therefore recommend to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code.

The court also differentiated from a constitutional bench in Gian Kaur’s case, stating “although the Supreme Court has quoted with approval the view of the House of Lords in Airedale’s case, it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS. This vexed question has been arising often in India because there are a large number of cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises as to who should give consent for withdrawal of life support.”

There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision in this connection. The court following the technique used in Vishakha’s case, laid the following guidelines till the law in this connection is laid by the Parliament.

GUIDELINES BY THE COURT

(i)                 Euthanasia is only allowed where the brain death is caused as defined under organ transplantation act. Moreover a passive euthanasia is only allowed

(ii)                A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.

(iii)              Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedale’s case.

(iv)             In the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.

PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN

(i)                 An application is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not.

(ii)               Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit.

(iii)              The committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court Bench.

(iv)             Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor’s committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject.

CRITICISM

1)      The author shall make no comment on the validation of euthanasia as he is the firm believer of this method.

2)      The court in this case has not followed Art. 145 read with Supreme Court rules, where the said provision clearly says that a constitutional bench has to be made to decide a matter of constitutional importance

3)      The Court impliedly has overruled the  Gian Kaur vs. State of Punjab, though not expressed in words but still the non-obedience of law laid in that case, and laying the new law seems to be a colorable exercise of power.

Yours Sincerely,

Mr. Unknown

Article 21: The Life of lives

Introduction

Life has changed its shades and meaning from time to time. The debate on life started in A.K Gopalan case, where the Supreme Court held that if the law is valid and there is a procedure established in the law then the law is not a violation of Art 21.  In Maneka Gandhi vs. Union of India AIR 1978 SC 597, it was further held by a Constitution Bench of the Hon’ble Supreme Court that not only there has to be a procedure established in the law but the procedure for depriving a person of his life or liberty should be fair, reasonable and just. This is the law of the land and has been applied in various cases. In the present case [ MD. Sukur Ali v. State of Assam Cri Appeal No. 546 of 2011] came for an appeal in the Hon’ble Supreme Court challenging the decision of the Gauhati High Court on 01.06.2010 that in the absence of the counsel for the appellant accused and the conviction was upheld. The main question was:

1.      

Whether in a criminal case if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused, or the Court should appoint amicus curiae to defend the accused?

Judgment of the Court

The Hon’ble Supreme Court held that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution.

Apart from the above, the Court agreed with the eminent writer H.M Seervai who has  said in his “Constitutional Law of India’, Third Edition, Vol. I, Pg. 857:-

“The right to be defended by counsel does not appear to have been stressed, and was clearly not considered in any detail in Ajaib Singh’s case (1953) SCR 254. But the right of a person accused of an offence, or against whom any proceedings were taken under the Cr.P.C. is a valuable right which was recognized by Section 340 Cr.P.C. Article 22 (1) on its language makes that right a constitutional right, and unless there are compelling reasons, Article 22 (1) ought not to be cut down by judicial construction........ It is submitted that Article 22 (1) makes the statutory right under Section 340 Cr.P.C. a Constitutional right in respect of criminal or quasi-criminal proceedings.”

Setting aside the order of the High Court, the Supreme Court in a recent decision [Md. Sukar Ali v. State of Assam] has declared that no trial of an accused can take place in the absense of a counsel for the accused. Holding that in such circumstances it was obligatory on the part of the Court to provide an amicus curie in the form of a lawyer practicing in criminal law, the Supreme Court held that such right to have a lawyer was a fundamental one and deeply rooted in the constitutional ethos of the country.

That question is whether in a criminal case if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused, or the Court should appoint an amicus curiae to defend the accused ?

“We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights.”

The Supreme Court took a reference form the US Supreme Court decision in Powell Vs. Alabama, 287 US 45 (1932), in which it was observed :-

“What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense”.

The Court allow the Appeal, setting aside the impugned judgment of the High Court and remand the matter to the High Court for a fresh decision after hearing Mr. Sinha, the new learned counsel for the appellant in the High Court, or any other counsel which has been engaged by the appellant, or in the absence of these, an amicus curiae being a lawyer practising on the criminal side.

Yours Sincerely 

Mr. Unknown

New aspects of Secularism

 I still remember the lectures by our course teacher Mr. Kumar Kartikaya and visiting faculty Mr. Faizan Mustafa on secularism. I don’t think I need to retaliate the whole lecture on this but I will like to basically concentrate on a recent case RAJESH HIMMATLAL SOLANKI v. UNION OF INDIA, where the Gujarat High court has declared that the “offering of the prayer to the earth at the time of foundation laying ceremony cannot be termed as non-secular action if 'manav dharma' is to be understood in its real sense in furtherance to the principles of secularism to be observed by our nation." It would be proper for the present discussing to first to understand secularism to recall everything taught in the class.

HISTORY OF THE NEVER ENDING ISSUE

In S.R. Bommai v. Union of India (1994) 3 SCC 1, the Apex Court observed that secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free Society. Secularism in the Indian context bears positive and affirmative emphasis. Religion is one of belief personal to the individual which binds him to his conscience and the moral and basic principles regulating the life of a man had constituted the religion, as understood in our Constitution. State is neither pro particular religion nor anti particular religion. It stands aloof, in other words maintains neutrality in matters of religion and provides equal protection to all religions subject to regulation and actively acts on secular part.

 In Ramjanmabhumi Babri Masjid issue, for acquisition, in case of Dr. M.Ismail Faruqui Vs. Union of India reported at AIR (1995) SC 605, it was observed after considering the earlier decision of the Apex Court in the case of S.R. Bommai case, that the provisions of section 7(2) of the Acquisition of Certain Area at Ayodhya Act, 1993, in now way curtains the practice of the right of worship of the Muslim community in the disputed area. It was also observed that the constitutional scheme that does guarantee equality in the matter of religion to all individuals and the groups irrespective of their faith emphasising that there is no religion of the State itself.

WEIRD REASONING OF THE H.C COURT

In deciding the question as to whether a given religion practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in operation. Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices, the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religions in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and tenents of its religion. Otherwise, purely secular practices which are not an essential or integral part of the religion are apt to be clothed with a religions form and may make a claim being treated as religious practices within the meaning of fundamental rights of freedom of religionas provided by the Constitution. It is true that the decision of the question as to whether a certain practice is religions practice or not, as well as the question as to whether the affair in question is an affair in the matter of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day to day are  regarded as religions in character. As an illustration, if an obviously secular matter is claimed to be matter of religion, or if an obviously secular practice is alleged to be religious practice, the Court would be justified in rejecting the claim. For example, a disposition towards making a gift for charitable or religious purpose may be a pious act of a person but the same cannot be said to be an integral part of any religion. It is not the case that the religion of Christianity commands gift for charitable or religious purpose compulsory or the same is regarded as such by the community following Christianity. Disposition of property for religious and charitable purpose is recommended in all the religions but the same cannot be said to be an integral part of it. If a person professing Christian religion does not show any inclination of disposition towards charitable or religious purpose, he does not cease to be a Christian. Even certain practices adopted by the person professing a particular religion may not have anything to do with the religion itself.

 The aforesaid shows that the word 'dharma' is not in contradistinction to the secularism if it is understood in its real sense, that is, “Sarve Bhavantu Sukhino”. Merely because in certain religious practices, there is no identification of certain offering to the supreme power or almighty would not result into adharma or anti-dharma. 

 In the same manner, in our opinion, we can say that dharma in real sense of mankind embraces to all religion be it, Hindu, Muslim, Christian, Parsi, etc. If the basic human character for the interest of the mankind irrespective of its caste or community or religion are shown as the practices in any religion, such cannot be termed so as to claim exclusive part of a particular religion, but can be said as a secular activity also identified by the religion on the broad principles of “Vasudeva Kutumbakam” or “Sarve Jana Sukhino Bhavantu” being welfare to everybody, hurt to none. It is in this light and background, we need to examine the incident of Foundation Laying Ceremony and the prayers offered at the said incident of Foundation Laying Ceremony.

At the time of excavation of such earth or at the time when a building is to be constructed by adding physical burden, offering of the prayer to the earth to pardon or to graciously bear the burden or the damage, if any, to make the construction successful, which is to be used for betterment of the institution of the High Court, such an action can be termed as for the betterment of all persons connected thereby directly or indirectly, irrespective of their caste or religion or community. Therefore, such offering of the prayer to the earth at the time of foundation laying ceremony cannot be termed as non-secular action if “manav dharma” is to be understood in its real sense in furtherance to the principles of secularism to be observed by our nation.

As such, offering of prayer at the incident of Foundation Laying Ceremony for the successful construction of the building to be used by the persons irrespective of their caste, community or religion, etc., could be termed as a part of secular activity and it cannot be termed or branded as choosing a particular religion since the prayers offered for such a noble cause cannot be termed as essential and integral part of a particular religion, but can rather be termed as for the benefit of all who are to make use of the new building directly or indirectly in future. Hence, it cannot be said that the High Court or the Chief Justice of the High Court or the Governor while offering prayer for successful completion of the building has taken any action which can be termed as non-secular and consequently, unconstitutional.

We find that when the principles of secularism are considered to test the action, it can be said that the same is by maintaining the spirit of the secularism as envisaged by our Constitution.

CRITICAL ANALYSIS AND CONCLUSION

The main question which is often misunderstood by the judges is not whether one has to be “anti-God” to be secular, but whether one religion in particular can be accorded a higher status, thereby violating the principle that all religions in India be treated equally. The High court is silent on the second question while goes on giving justification on justifications to establish its reasoning and hide its act. ‘Bhumi Pujan’ which is basically not a dharma but a part of Hindu Religion and the slokas in this pujan contain names of various Hindu Gods. I respect the views of the High Court but would prefer the reasoning of  Arun Thiruvengadam in (Law and other things Blog), where the student in few lines has commented on this situation saying, “The ToI report on the case carries the headline: “Secularism is not anti-God”. Students of the Indian judiciary’s body of precedents on religion and the law know that this sentiment is certainly in line with that body of law. However, the question is not whether one has to be “anti-God” to be secular, but whether one religion in particular can be accorded a higher status, thereby violating the principle that all religions in India be treated equally. The High Court’s judgment spectacularly ducks this more important and salient question. It would have been quite a different scenario if the Gujarat High Court had invited religious figures from the major Indian religions to the foundation ceremony to offer common prayers. (This is not to say that that scenario is not without problems, but to emphasise that only one religion was represented).”


Yours Sincerely


Mr. Unknown.