THE LAWFILE

Archive for the ‘High Courts’ Category

The age factor

leave a comment »

PUBLISHED IN THE FRONTLINE

The appointment of three new judges to the Supreme Court reopens the debate on the need to appoint judges when they are younger.

The newly appointed judges of the Supreme Court (from left) Justices S.J. Mukhopadhaya, J.S. Khehar and Ranjana Desai.

A FEW weeks ago, the Supreme Court of India’s collegium, consisting of the Chief Justice and four most senior judges, cleared the names of three High Court judges for appointment to the Supreme Court. Once the collegium’s binding recommendation was accepted by the President, the new judges, Justices S.J. Mukhopadhaya, Ranjana Desai and J.S. Khehar, were sworn in to the court on September 13. This new slate of appointments will be worth noting for several reasons. Not insignificantly, this is the first set of Supreme Court appointments made by the present Chief Justice of India, Justice S.H. Kapadia, since he took over the office from Justice K.G. Balakrishnan in May 2010. One of the new judges is a woman – only the fifth woman among 196 judges appointed to the Supreme Court in its history spanning over six decades, and this is the first time two women judges will serve on the Supreme Court at the same time. The new appointments offer a telling glimpse into the trend of Supreme Court appointments during the last decade.

A total of 10 judges retire from the Supreme Court during Justice Kapadia’s term, including seven this year. (Justices B. Sudershan Reddy, V.S. Sirpurkar and H.S. Bedi have already retired, and the others to retire, in the order of retirement, are Justices Mukundakam Sharma, Markandey Katju, J.M. Panchal and R.V. Raveendran. Justices Cyriac Joseph, A.K. Ganguly, and Deepak Verma, in that order, will retire next year during Justice Kapadia’s term). This is the first time seven judges retire from the court in one year. In 2000, during Chief Justice A.S. Anand’s term, six judges retired and, one, Justice M. Srinivasan, passed away, creating seven vacancies that year. The vacancies this year also occur against the backdrop of a larger debate concerning many vacancies in High Courts.

But what does the appointment of the three new judges to the Supreme Court say about the candidates typically selected to the highest constitutional court of India? For one, the three judges are, on average, quite old. Two of them, S.J. Mukhopadhaya and Ranjana Desai, are over 61 years old. The retirement age of High Court judges is 62, and both these judges had less than a year left to retire from their respective High Courts. Since Supreme Court judges retire at the age of 65, both will serve terms of less than four years in the Supreme Court. Is this adequate? Forget for a moment that judges on the Supreme Court of the United States serve in office for life, and forget that judges of the South African constitutional court serve fixed non-renewable 15-year terms, but consider that in India most judges of High Courts serve at least 10-15 years in office, if not more.

For a constitutional court of the stature of the Indian Supreme Court to retain its coherence as an institution, to maintain consistency and predictability in the articulation and application of constitutional norms, it is essential that its judges be given more satisfactory tenures. That is not to say that judges of repute and learning such as Justices Mukhopadhaya and Ranjana Desai should not be appointed to the court: the only contention is that they should have been appointed earlier, or once appointed they should be given fixed but longer terms.

 

At present, the average age of the three new judges to be appointed is over 60.7 years. In fact, of the 38 Chief Justices of India, only three – Justices Harilal Kania, B.K. Mukherjea, and M.N. Venkatachaliah – made appointments of judges who had an average age higher than this (Table 1 illustrates that the average age of appointment to the court during the tenure of these three Chief Justices of India was over 61 years of age).

Interestingly, this is in keeping with the trend of appointment of older judges, on average, to the Supreme Court.

Youngest judges

The data tell us that the youngest Supreme Court judges in the country’s history were appointed in the 1970s. One of the finest judges the Supreme Court has ever seen, Justice P.N. Bhagwati, was only 51 years old when he was appointed to it. The fact that he served close to 14 years in office, a term longer than his tenure as a High Court judge in Gujarat, perhaps had something to do with the stature he attained in the court and the status he achieved as a judge. But even before him, many judges in the 1950s were appointed to the court at age 55 or younger (B.P. Sinha, Syed Jaffer Imam, P.B. Gajendragadkar, A.K. Sarkar, K. Subba Rao, K.N. Wanchoo, M. Hidayatullah, and J.C. Shah). Some of these names are amongst the most well known in India’s legal circles.

As the court’s most prolific dissenter, Justice K. Subba Rao went on to herald the demise of the “Gopalan era” in the court. According to one estimate, he wrote as many as 53 dissenting opinions, that is, opinions in which he disagreed with the majority view. In A.K. Gopalan vs Madras, AIR 1950 SC 27, the Supreme Court had held that the constitutionality of a law would have to be tested on the basis of the object of the law itself and not by the incidental effect the law would have on other fundamental freedoms. In a series of cases decided in the 1960s ( Kochuni vs Madras, AIR 1960 SC 1080; Kharak Singh vs U.P., AIR 1963 SC 1295; and Maharashtra vs Prabhakar, AIR 1966 SC 424), Justice Subba Rao expressed considerable doubt over the court’s “object” approach to constitutional analysis, an approach which was soon replaced by the “effects” test in R.C. Cooper vs Union, (1970) 1 SCC 248. Of a similar stature, opinions written by Justices Gajendragadkar and Hidayatullah still elicit adulation in classrooms and admiration in courtrooms. It is not implausible to posit that their age and lengthy terms in office gave them an edge – an occasion to define themselves on the court, and then to define the jurisprudence and docket of the court itself.

In the 1960s, Justice S.M. Sikri was the only judge appointed to the court at age 55, but as the Chief Justice of India he went on to preside over the most significant case in India’s constitutional history, where, as part of the majority, he and six other judges held that our Constitution had a “basic structure”, one which could not be altered or destroyed by constitutional amendment. In the 1970s, too, several judges were appointed to the court at age 55 or younger (Y.V. Chandrachud, P.N. Bhagwati, M. Fazl Ali, R.S. Pathak, O. Chinnappa Reddy, A.P. Sen and E.S. Venkataramiah). Many of these judges left a lasting mark on the jurisprudence of the court.

However, starting with the 1980s, in 30 years, only four judges have been appointed to the Supreme Court at age 55 or younger: Sabyasachi Mukherjee, A.S. Anand, S.P. Bharucha and K.G. Balakrishnan, each of whom went on to become Chief Justice of India. In fact, the data tell us that the oldest judges were appointed to the Supreme Court in the last two decades, that is, between 1990 and 2009. The average age of appointment during 2000-2009 was 59.7 years and during 1990-1999 it was 59.8 years – higher than the average of any previous decade. Justice Kapadia’s three appointments tend to fit this paradigm. In fact, one wonders if appointees to the Supreme Court today would not have been even older had the retirement age in High Courts been 65. If this were so the court’s collegium would have had even older High Court judges to choose from, judges who would potentially go on to serve only a few months in the Supreme Court.

That is not to say older judges cannot mould the jurisprudence of the court in a comparatively shorter but influential cameo innings. Chief Justice M. Patanjali Sastri, one of the first members of the court, was 61 years old when the Supreme Court of India came into being. Similarly, appointed at the relatively late age of 59, Justices Vivian Bose and H.R. Khanna each indelibly altered the trajectory of the court’s jurisprudence. In the famous Anwar Ali Sarkar case, Justice Bose was perhaps the first judge to use the phrase “reasonable, just and fair”, prescient words which would resonate in the court’s opinions decades later in the Maneka Gandhi case (1978) and beyond. Justice Khanna’s dissent in the habeas corpus case served as a moral compass for a court that tried desperately to atone for the wrongs it committed during the Emergency. Imagine a court where the Sastris, the Boses and the Khannas, or for that matter the Mukhopadhayas and the Desais serve not three to six years in office but 10 to 15 years – how much more beneficial that would be for the court and for our system.

Next, of the three new judges being appointed to the Supreme Court, two (Mukhopadhaya and Khehar) were High Court Chief Justices. There is nothing surprising about this either. In the early years, at least half the judges of the Supreme Court were typically amongst those who were not High Court Chief Justices. This began to show signs of change starting with the end of Justice A.M. Ahmadi’s tenure as Chief Justice of India (1994-1997) when an unprecedented 17 sitting Supreme Court judges (or 73 per cent of the court) were former High Court Chief Justices. This trend reached its zenith by the end of Justice R.C. Lahoti’s term as Chief Justice (2004-05), when an overwhelming 20 sitting Supreme Court judges (or 95 per cent of the court) were former High Court Chief Justices.

CHIEF JUSTICE OF India, Justice S.H. Kapadia. The number of judges retiring during his term will be 10. Of them, three have already retired and four more will retire this year.

For this reason, the fact that two of Chief Justice Kapadia’s new appointees are High Court Chief Justices is not surprising. (In fact, Justice Khehar served as Chief Justice of not one but two High Courts in succession (Uttarakhand and then Karnataka), a trend which has increasingly been seen in the court starting with the 1990s. The overwhelming dominance of High Court Chief Justices in the Supreme Court adds a few years to the average age of the court – after all, only the oldest judges in the country, those who have served the longest terms in the High Courts and risen to positions of seniority, are transferred to other High Courts as Chief Justices.

Neither, perhaps, is it surprising that the only Kapadia appointment to the court not to have been a High Court Chief Justice, Justice Ranjana Desai, is a woman. Only two (Sujata Manohar and Gyan Sudha Misra) of the four women who were appointed to the court before this, previously served as the Chief Justice of a High Court. Justices M. Fathima Beevi and Ruma Pal were not, and neither is Justice Ranjana Desai, although, to be fair, she was the most senior associate justice in the Bombay High Court.

P.N. BHAGAWATI, former Chief Justice of India. He was only 51 years old when he was appointed to the Supreme Court. He served close to 14 years in office and this perhaps had something to do with the stature he attained in the court and the status he achieved as a judge.

What do Chief Justice Kapadia’s appointments tell us about the Supreme Court itself? The appointment of the fifth woman justice of the court must be welcomed. Now there is only one other constituency that has a smaller claim to the court than women – “bar judges”. Since 1950, only four judges have been appointed to the Supreme Court directly from the bar, that is, without having served as a judge in a High Court. Starting with the 1960s, one such judge was appointed in every decade – S.M. Sikri in the 1960s, S. Chandra Roy in the 1970s, Kuldip Singh in the 1980s, and Santosh Hegde in the 1990s.

The 2000-09 decade was the only one since the 1950s when a judge was not appointed to the Supreme Court directly from the bar. The appointment of Justice Ranjana Desai to the court now means that women finally have a stronger claim to the court than the court’s own bar. However, the fact remains that where S.M. Sikri, a bar judge, served as the Chief Justice of India (during the historic Basic Structure hearings, no less), not a single woman has become the Chief Justice of India.

S.M. SIKRI. In the 1960s he was the only judge to be appointed at age 55, and the only one in that decade to be appointed directly from the bar. He went on to serve as Chief Justice of India and presided over the historic case on the “basic structure” of the Constitution.

Despite these statistical inferences, the three new selections for appointment to the Supreme Court must be welcomed, even as we look to see how the Chief Justice of India populates the remaining six vacancies during his tenure.

Abhinav Chandrachud is the author of Due Process of Law (EBC 2011), and, starting this Fall, a research fellow at Stanford Law School.

ORIGIN: http://www.frontline.in/stories/20111021282104900.htm

Advertisements

Renting and service tax

leave a comment »

PUBLISHED IN THE HINDU BUSINESS LINE

The plenary power of Parliament to legislate in determining relevance of service tax is subject to the Constitution.

 In Budget 2010, the Government used its Brahmastra and amended the Finance Act, 1994, levying service tax on renting of property. To ensure that the weapon was truly effective, the levy was made retrospective, with effect from June 1, 2007.

This measure was to counter the opinion — given twice — of the Delhi High Court, in Home Solution Retail, that the pure act of renting wouldn’t amount to a taxable service, since there is no value-addition involved.

It also sent signals to the Supreme Court, before whom a petition on that issue was pending, that the power of the Government to levy a tax under the Constitution is extremely wide. A bevy of petitions before the Mumbai High Court were disposed off recently, disagreeing with the opinion of the Delhi High Court.

MUMBAI HIGH COURT DECISION

In Retailers Association of India Vs Union of India and Ors, the Mumbai High Court reconsidered the constitutional validity of a service tax on rentals.

It noticed that the Supreme Court had an occasion to consider similar petitions in four landmark cases against the Union of India — Tamil Nadu Kalyana Mandapam, Gujarat Ambuja Cement, All India Federation of Tax Practitioners and Association of Leasing and Financial Services Companies. Considering a plethora of other Apex Court decisions, the Mumbai High Court held that the legislative basis that has been adopted by the Parliament in subjecting taxable services involved in the renting of property to the charge of service tax cannot be questioned.

The assumption by a legislative body, that an element of service is involved in the renting of immovable property is certainly not an assumption which can be regarded by the Court as being so manifestly perverse as to lead to an inference that the Parliament had treated as a service, an item which in no rational sense could be regarded as involving service.

But more significantly, even if the Court were to proceed on the basis, suggested by the petitioners, that no element of service is involved, that would not make the legislation beyond the legislative competence of Parliament.

As long as the legislation doesn’t trench upon a field which has been reserved to the State legislatures, the only conclusion that can be drawn is that the law must be treated as valid and within the purview of the field set apart for Parliament.

The petitioners were also irked by the retrospective application of the law. The Mumbai High Court was of the opinion that Parliament has the plenary power to enact legislation on the fields, which are set out in List I and List III of the Seventh Schedule.

RETROSPECTIVE APPLICATION

The plenary power of Parliament to legislate can extend to enacting legislation both with prospective and with retrospective effect. That, however, is subject to the mandate of Article 14 of the Constitution, which states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

The Mumbai High Court agreed with the decision of the Supreme Court held in Bakhtawar Trust Vs M. D. Narayan, wherein it was held that it is open to the legislature to alter the law retrospectively, provided the alteration is made in such a manner that it would be no more possible for the Court to arrive at the same verdict.

BEFORE THE SUPREME COURT

The decision of the Mumbai High Court follows the pattern of a host of High Courts, agreeing to disagree with the logic of the Delhi High Court in Home Solution Retail — the Punjab and Haryana High Court in Shubh Timb Steels, Orissa High Court in Utkal Builders and the Ahmedabad High Court in Cinemax India.

These decisions, along with the fact that renting of immovable property is not in the initial list of negative services, would be food for thought for the Supreme Court.

While all the developments post-Home India point to validating the levy, the Supreme Court could think of constitutional precedents and judicial cases to rule that the tax is applicable only from 2010 onwards, and not 2007.

 

(The author is a Bangalore-based chartered accountant.)

ORIGIN: http://www.thehindubusinessline.com/features/mentor/article2506762.ece?homepage=true

HC notice to UT: Evolve fool-proof security system

leave a comment »

PUBLISHED IN THE INDIAN EXPRESS

In wake of September 7 bomb blast in Delhi, PIL exposes lax security measures for entry into High Court

The Punjab and Haryana High Court on Friday issued notices to Chandigarh Administration on a Public Interest Litigation (PIL) seeking directions to Chandigarh Administration to evolve and install a fool-proof security system.

Suggestions were made to install a system with modern electronic gadgets, equipments and Closed-circuit television (CCTV) Cameras on the pattern of security systems installed in the Supreme Court of India.

The petition has been filed by Advocate H C Arora.

Referring to the security system in the High Court, the petitioner contended that “…The security system in the High Court is quite lax. Anybody can enter from gate number 1 after assuring that he needs to get an affidavit attested from an Oath Commissioner. Anybody pretending to be a government officer can get unrestricted entry through the gates.”

“Entry is at will after lunch for all visitors. Any mischievous element can enter the High Court premises after posing as an advocate by wearing a black coat and a white collar band.”It read, “Laxity in the security system can pose a serious threat to the life and liberty of innocent citizens, including lawyers and the staff of the High Court.”

The petitioner has sought that the security system shall be set up in due consultation with the High Court on administrative side and the High Court Bar Association, in wake of the bomb blast which took place in Delhi High Court.

SC security measures

* Permanent passes with photographs to permanent members of the Supreme Court Bar Association or to outside advocates, issued at the instance of the Bar Association.

* Temporary passes issued at the spot to outsider advocates, after establishing their identity based on voter identity card, or the Enrollment Card issued by concerned Bar Counsel.

* Temporary separate passes issued in a similar manner to litigants, on the basis of strict proof of their identity.

* Entry being allowed to petitioners in person, only for the particular Court Room where they have to appear or watch the proceedings of their own cases, where after they have to leave the premises of the Supreme Court

* Frisking of all visitors, except those with permanent passes, and staff of the Supreme Court of India

* CCTV Cameras keeping account of activities of all visitors to Supreme Court of India

* No entry of persons other than lawyers to the bar rooms.

Indian courts can try offences committed by Indian in foreign country, rules Bench

with one comment

High Court at Hyderabad, the main judicial bod...

Image via Wikipedia

PUBLISHED IN THE HINDU

But prior consent of Central government (under Section 188 Cr.P.C.) is required

A dowry or any other offence committed by an Indian husband against his wife in a foreign country can be tried by a court in India, the Supreme Court has held.

A three-judge Bench of Justice Altamas Kabir, Justice Cyriac Joseph and Justice S.S. Nijjar said “the provisions of Indian Penal Code have been extended to offences committed by any citizen of India in any place within and beyond India by virtue of Section 4 thereof.”

The Bench, however said that offences committed by an Indian citizen in a foreign country would be amenable to provisions of IPC subject to the limitation imposed under Section 188 Cr.PC, viz seeking the prior consent of the Central government.

In the present case, the appellant Thota Venkateswarlu was married to Parvatha Reddy Suneetha in November 2005 as per Hindu traditions and customs in Ongole in Andhra Pradesh. At the time of marriage Rs. 12 lakh in cash, 45 sovereigns of gold and Rs. 50,000 as ‘Adapaduchu katnam’ was alleged to have been given to the husband, mother-in-law, and other relatives of the husband.

According to Suneetha, her husband left for Botswana in January 2006 and she later joined him. While in Botswana, she was allegedly severely ill-treated and various demands were made including a demand for additional dowry of Rs. 5 lakh. Unable to withstand the torture she sent a complaint to the Superintendent of Police, Ongole for dowry offences under IPC as well offences under the Dowry Prohibition Act.

The magistrate, to whom the complaint was forwarded took cognisance and issued summons to the husband and others, who were questioned on their arrival to India. While the Andhra Pradesh High Court quashed proceedings against the appellant’s mother and two others, it dismissed his plea. The present appeal by Venkateswaralu is directed against this order.

The appellant’s wife argued that part of the offence relating to dowry was committed in Indian soil and part of the offence was committed abroad. Hence the offence could be tried in Indian courts. However, the appellant argued that he could not be tried without the previous sanction from the Central government.

Writing the judgment Justice Kabir pointed out that it was clear that the case relating to the alleged dowry offences were committed outside India. But since part of the offence was committed in India, the court here could try the appellant and the High Court was correct in rejecting his plea to quash the proceedings. The Bench while asking the trial court to take up the case said, the trial would not proceed without the sanction of the Central government as envisaged in Section 188 Cr.P.C.

Sen courted trouble as Receiver

leave a comment »

FORMER CALCUTTA HIGH COURT JUSTICE SOUMITRA SEN

For the beleaguered Justice Soumitra Sen of the Calcutta High Court, trouble started in 1983, when the Steel Authority of India Ltd. filed a money suit in the court against the Shipping Corporation of India for sale of Periclase Spinal Bricks lying at the Bokaro Steel Plant.

On April 30, 1984, the court appointed Justice Sen, who was a lawyer at that time, as a Receiver to make an inventory, sell these goods, and keep the proceeds until the case was decided. Between April 1, 1993 and June 1, 1995, he received the sale amount of Rs. 33.23 lakh.

In 1996, though he was entitled to keep only five per cent, Rs 1.66 lakh, towards remuneration, he kept the entire money in a fixed deposit with ANZ Grindlays (which later merged into Standard Chartered) and later transferred it to Lynx India Ltd, a company authorised by the RBI.

On January 20, 1997, another High Court Bench directed Mr. Sen to be the Receiver in another case and to keep Rs. 70 lakh for distribution among workers of Calcutta Fans. But he deposited this amount also in Grindlays Bank. Between May 14, 1997 and August 6, 1997, he issued several cheques to the workers.

On February 26, 1997, he deposited Rs. 25 lakh (from out of Rs. 70 lakh) with Lynx India, which sank. The shortfall was made up by taking Rs. 25 lakh from the SAIL money and depositing it in the Calcutta Fans account

On February 27, 2003, the SAIL filed an application in the High Court asking the Receiver to return the entire sales proceeds and render true and faithful accounts. He failed to do so until he was appointed judge on December 3, 2003.

On August 3, 2004, the High Court appointed a new Receiver, without asking Justice Sen to refund money lying with him till then.

Subsequently on February 15, 2005 when the matter was posted before another judge, he issued notice to Justice Sen for return of the money. On June 30, 2005 after the High Court ordered an enquiry, it came to light that Justice Sen, as Receiver, never filed any accounts, though he was required to do so every six months.

On November 1, 2005 he deposited Rs. 5 lakh. On April 10, 2006, the court directed him to repay Rs. 57.65 lakh, which included an interest of Rs. 26.26 lakh. Justice Sen went on leave and on his return, he was not allotted judicial work. Between June 27, 2006 and September 5, 2006, he repaid Rs. 40 lakh and on November 21, 2006, he repaid the balance amount.

On September 25, 2007, a Division Bench quashed single judge’s order and expunged remarks. The Bench held that there was no material to hold that Justice Sen had misappropriated any amount or made any personal gain.

But on a report from the then Chief Justice of the High court, the then Chief Justice of India K.G. Balakrishnan formed a three-member committee to probe the charge

In February 2008, the in-house committee, found Justice Sen guilty of breach of trust and misappropriation. It said he did not have any honest intention since he mixed the money received as Receiver with his personal money. There was misappropriation, at least temporary, of the sales proceeds.

Acting on the report, he was asked to resign or to seek voluntary retirement, but he declined.

In August 2008, the then CJI, K.G. Balakrishnan, asked Prime Minister Manmohan Singh to initiate removal proceedings against Justice Sen for his misconduct.

On February 27, 2009, 58 MPs of the Rajya Sabha moved a motion seeking Justice Sen’s removal.

On March 4, 2009, the Chairman of the Rajya Sabha appointed a probe panel headed by the then Supreme Court judge, B. Sudershan Reddy.

On September 10, 2010, the committee held him guilty on two counts — misappropriation of money and misrepresentation of facts to the High Court — and recommended his removal.

On August 18, 2011 the Rajya Sabha voted the resolution to remove Justice Sen.

COURTESY: THE HINDU

Is the death penalty about to die?

with 4 comments

https://i1.wp.com/www.hindustantimes.com/images/HTPopups/040911/04_09_pg16b.jpg

The Madras High Court‘s order last week staying the execution of former prime minister Rajiv Gandhi‘s three killers has triggered a fresh debate on the desirability of the death penalty in India. The court also asked the government to explain why it took 11 years for the president to reject the trio’s mercy pleas.

President Pratibha Patil rejected them in early August. The Tamil Nadu assembly then passed a unanimous resolution requesting the president to reconsider her decision. Politicians in Punjab are making a similar demand for Devender Pal Singh Bhullar, convicted of a 1993 terror attack in Delhi that claimed several lives. Jammu and Kashmir chief minister Omar Abdullah reflected the sentiment in his state when he tweeted that had his state assembly passed a similar resolution about Parliament attack convict Afzal Guru reactions would not have been so muted.

The BJP favours the death penalty for such criminals, but Congress leaders have been airing their personal views for or against it. The Indian intelligentsia – the media, academics and the judiciary is also divided about the issue.

A look at the debate:

Punishment is a natural response to crime
This principle is almost universally accepted and that letting off criminals can result in vigilante justice. Also, the punishment has to be proportionate to the degree of wrongdoing and mitigating circumstances have to be considered while deciding the quantum of punishment. It goes without saying that the accused will be given a fair chance to defend himself/herself.

But various societies in different parts of the world react to crime in different ways. While some, such as a few Arab countries, choose retributive punishment of “an eye for an eye”, others have deterrent punishment. Of late, there has been a shift towards restorative and reformist approaches to punishment, including in India.

Death Penalty in India
Capital crimes are murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the government and abetting mutiny by a member of the armed forces. In recent years, the death penalty has also been imposed under a new anti-terrorism legislation for people convicted of terrorist activities.

Is the judiciary becoming averse to the death penalty?
Section 354(3) of the Criminal Procedure Code (CrPC), which was added to the Code in 1973, requires a judge to give “special reasons” for awarding death sentences. In 1980, in the Bachan Singh case, the Supreme Court propounded the “rarest of rare” doctrine and since then, the life sentence is the rule and the death sentence the exception.

But recently, the Supreme Court refused to impose the capital punishment in the Graham Staines, Jessica Lall and Priyadarshini Mattoo murder cases on the ground that these did not fall within the category of “rarest of rare.” Is the judiciary becoming averse to capital punishment?

According to senior advocate KTS Tulsi, the vice chairman of the Law Commision of India, “India has found a perfect balance by retaining the death penalty as a deterrent, yet invoking it only in exceptional cases. While the deterrent effect is maintained, the possibility of an erroneous execution is minimised. Compared with China, Japan, Arab countries and the US, the use of capital punishment in India has been minimal.”

Moratorium on the death penalty
In December 2007, India voted against a UN resolution calling for a moratorium on the death penalty. But in effect, there has been a moratorium on the death penalty in India. Since 1995 there has been only one execution, that of Dhananjoy Chatterjee, in August 2004.

The judiciary appears to be hesitant in awarding the death penalty. The executive has disposed of several mercy petitions in the past few months, but around 20 such pleas, including that of Afzal Guru, are still pending before the president.

According to Amnesty International, in India, at least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced, but not executed, to death.

Rajiv Gandhi Killers’ case is a test case
The Rajiv Gandhi Killers’ case is going to be a test case for death penalty in India. Whatever be the Madras HC decision, the matter is bound to go to the Supreme Court, which could lay down guidelines for timely disposal of mercy petitions. If the court rules that inordinate delay is a ground for converting a death penalty to life imprisonment, then it would have bearing on all pending mercy petitions, including that of Afzal Guru.

World moving towards abolition of death penalty
According to Amnesty International, more than two-thirds of countries in the world have now abolished the death penalty in law or practice. Ninety-six countries have abolished capital punishment for all crimes while nine have done away with it for ordinary crimes. Further, 34 countries have abolished it either in law or in practice. Only 58 countries retain this extreme form of punishment.

Should India abolish the death penalty?
“No”, says former additional solicitor general of India Vikas Singh. “Generally, a punishment should be aimed at reforming the criminal. But in some cases, such as in the Rajiv Gandhi assassination case or Parliament attack case, you have to give a deterrent punishment, for the simple reason that you can not reform these criminals. Can you reform Kasab (26/11 convict)?”

But Suhas Chakma, the director of the Asian Centre for Human Rights, disagrees. “The death penalty has failed to act as a deterrent against any crime. It’s nothing but retribution. Such medieval justice does not reflect the ethos of Mahatma Gandhi. India should abolish the death penalty and join the league of civilised countries.”

COURTESY: HINDUSTAN TIMES

Calcutta High Court Justice Soumitra Sen resigns

leave a comment »

JUSTICE SOUMITRA SEN & JUSTICE RAMASWAMY

Justice Soumitra Sen of the Calcutta high court resigned on Thursday, five days before his impeachment motion was to taken up in the Lok Sabha.

“I have put in my papers today,” Justice Sen, against whom the Rajya Sabha has approved an impeachment motion, said.

“I have decided not to go to the Lok Sabha and instead put in my papers,” Sen, who was to have appeared before the Lok Sabha on September 5, said.

In his letter to the President, Justice Sen has said that since Rajya Sabha has decided in its wisdom that he should not continue as a judge, he is resigning and wants to live as a common citizen, his lawyer Subhash Bhattacharya said.

The Rajya Sabha had on August 18 overwhelmingly approved the impeachment motion against Justice Sen. The Upper House made history when it initiated the process against the controversial judge  and when it passed by a majority of 172 votes a motion to impeach Justice Soumitra Sen of the Calcutta High Court for misconduct.

After the motion was passed by a voice vote, Rajya Sabha Chairman Hamid Ansari called for a division.

The electronic voting system showed 189 members in favour or the motion and 17 against it. Of the 207 membes present in the house at the time, one abstained. The law required for the motion to be passed by a two-thirds majority of those present and voting.

He has been held guilty on corruption charges by a specially constituted committee.

Justice Sen was held guilty of misappropriating Rs. 33.23 lakh in a 1983 case. 53-year old Sen is now the second judge against whom impeachment proceedings has been initiated when Rajya Sabha takes up the motion.

The first such case involved the impeachment motion in Lok Sabha of justice V Ramaswami of the Supreme Court in May 1993 which fell due to lack of numbers after Congress members abstained.

The first of the two grounds of misconduct against Sen being cited in the motion is misappropriation of large sums of money, which he received in his capacity as receiver appointed by the high court.

The second ground is that he misrepresented facts with regard to the misappropriation of money before the high court.