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