Session 4: The Current Economic Crisis

This week's Forum will look at the current economic crisis. We will focus on the need for, and structure of, legal regulation in dealing with the economic situation, and will evaluate the response of both the government as well as the courts in this respect. We will also use this context to examine the impact of the Great Depression, and the New Deal that followed, on Amercian and Indian constitutional law and theory. In light of these discussions, we will debate the approach of the Indian Supreme Court to the regulation of economic activity and will evaluate the jurisprudence of the Court in areas like environmental and labour regulation. Unlike the previous sessions, there is no single legal text that captures these issues. Hence, we will be reading the following pieces for the Forum meeting:

1. Philip Wood, Can the law prevent another financial crisis?

2. David P. Currie, Constitution in the Supreme Court: The New Deal, 1931-1940, 54 U. Chi. L. Rev. 504 (available on Westlaw)

3. Sunita Narain, Our Quality of Mercy

Issues for discussion will be up by Wednesday.

R. K. Anand Contd: Guest Post by Kalyani Ramnath (NLS'09)

On the issue of lawyers as contemnors

Case law has dealt with situations where the contemnor as a lawyer has demanded ‘an answer to [her] question’ and considered to have obstructed the functioning of the Court.[1] In the case of Court on its own motion v. State and Others,[2] the Delhi High Court held the lawyers in contempt for colluding with each other to determine the result of the case. A lawyer who wrote out a curse for each of the judges who refused to rule in his favour,[3] suggestions that ‘money rules the roost’ even when it comes to the judiciary,[4] slapping the presiding judge in open court,[5] saying that the public has lost trust in law and justice[6] and declaring that he would never bow before the court again[7] have been considered contempt of court. Omitting the name of the judge or the proceeding would not absolve the contemnor of guilt.[8] The defence used in such cases is sometimes is that they were performing their duties as a ‘fearless member of the Bar’.[9] Whether it be in the newspaper or at a press conference, several cases of contempt have been sustained against lawyers.[10] The reasoning employed here has been that even here, it must be a fair and unbiased criticism, made in a ‘detached’ manner. Scholars have suggested that in such cases, lawyer speech outside the courtroom should be given higher constitutional protection as strictly speaking, it is not a court but a public place where all citizens are entitled to free speech and expression. The test that could be used in this regard is that used by Justice Frankfurter in Re Snyder.[11] Where the words are spoken must be so closely enough related to the business of resolving disputes that it should not be deemed an open forum for expressive activities, higher constitutional protections will not apply. Hence, in the Indian context, in such cases, it may be argued that the more general restrictions on free speech as contained in Article 19(2) of the Constitution should apply. In such cases, lawyers ought to be considered citizens more than as officers of the court; this should not be considered a betrayal of the system. This will however, involve the removal of ‘contempt of court’ as a standalone restriction on free speech in Article 19(2).



[1] In Re Smt. Sadhna Upadhyaya, Advocate MANU/UP/0722/2008.

[2] (2008) 151 DLT 695.

[3] Court on its own motion v. Gulshan Bajwa (2007) 141 DLT 111.

[4] Raghuveer Singh v. Shiv Kumar Swami (unreported)

[5] Pritam Pal v. High Court of Madhya Pradesh AIR 1992 SC 902.

[6] Ajay Kumar Pandey v. State (1999) 1 UJ 151.

[7] L.D. Jaikwal v. State of U.P. MANU/SC/0077/1984.

[8] Harish v. Bal Thackeray (1997) 99 Bom L.R. 455.

[9] Re Vinay Chandra Mishra MANU/SC/0471/1995.

[10] In Re: Lalit Kalita (2008) 1 GLT 800; Perspective Publications (P) Ltd. v. State of Maharashtra MANU/SC/0302/1968; Bathina Ramakrishna Reddy v. State of Madras MANU/SC/0074/1952.

[11] 472 U. S. 634 (1985).

The RK Anand Judgment- A Critical Analysis

The following is a summary of the class presentations, discussions and opinions by the students who led the Forum meeting on the R.K.Anand case:

1. On the Issue of Contempt of Court

a) The Standard of Proof in Contempt of Court Proceedings:- One of the striking issues in the recent judgment by the Supreme Court in R.K. Anand v.Registrar, Delhi High Court[1] is the manner in which the Court decided whether the charge of criminal contempt had been established or not. The standard applied was not different from the precedent case law. The approach of the Court was in consonance with the law laid down in a range of cases from In Re Vinay Mishra[2] to Daroga Singh and Ors. v. B.K. Pandey[3]. The Court spelt it out clearly that there is a difference between the manner of proof in a contempt proceeding and that in a criminal trial. While the standard of proof in both was said to be the same, namely, that of proving a fact “beyond reasonable doubt”, the manner of proof in both was contended to be different. The settled position of law was noted to be that proceeding of contempt of court was sui generis. The provisions of the Criminal Procedure Code and the Indian Evidence Act were not applicable in such a proceeding. Instead, the principles of natural justice was said to apply. Now, the established position of law is that the standards that need to be met in a contempt of court proceeding are those of fairness and objectivity, absence of prejudice to the person facing the charge of contempt and provision of the opportunity to the person to defend herself.

Adherence to the abovementioned standard raises a number of issues, especially with particular reference to the RK Anand judgment. The absence of a fixed procedure to be followed in these type of trials has led to the following shortcomings in the manner in which the contempt of court proceedings are conducted. In this regard, the lacunae which can be identified from a reading of the Supreme Court judgment are:

Firstly, the opportunity to cross-examine the witnesses is very rarely given to the person charged with criminal contempt. In the case of Daroga Singh and Ors., it was noted that one of the reasons for denying the opportunity to cross-examine is the need to decide the case expeditiously. R.K. Anand’s request to cross-examine Poonam Agarwal was turned down by the High Court. But the point to be noted is to what extent should interests of expediency be given priority to interests of fairness and uncovering the truth. Further, the reasoning behind denial of the opportunity to cross examine was that what had transpired between the parties were already there on the micro-chips and the CDs. It was stated that no statement by Poonam Agarwal would change this state of affairs. But the point to be noted is that it was the reliability of these CDs that was being questioned by RK Anand in the first place.

Secondly, IU Khan was let off the hook on the ground that the tape, containing his recording, submitted to the Court was incomplete and hence its veracity was not adequately established. However, it doesn’t seem that the veracity of RK Anand’s sting tape was proved either. Attempts to do so were struck down by the Court. For instance, the request by RK Anand to send the CDs to the Central Forensic Science Laboratory to determine whether it had been tampered was turned down. So it seems that different standards were applied to judge IU Khan and RK Anand.

Thirdly, the judgment states that RK Anand did not deny the recording, which was broadcasted by the news channel, in the first instance. This fact seems to have weighed against him, especially since, as is mentioned in the judgment, that IU Khan had, right at the beginning, claimed that the recording had been doctored. However, the fact of the matter is that the judges should not have referred to statements made by the persons, in interviews to television channels, in the first place. Such observations do not have any place in the judgment.

These faux pas which have been pointed out would not have taken place at all if the Criminal Procedure Code and the Indian Evidence Act procedural standards had been followed. There is no overarching reason as to why a contempt of court charge should be made subject to a different manner of proof as opposed to a criminal trial. This is especially since it is in the same genre as a criminal proceeding. The defence that, nevertheless, a “beyond reasonable” standard is being applied doesn’t hold good either. The problem is that by adopting a different manner of proving contempt of court charges, the courts seem to be ready to come to a conclusion that the “beyond reasonable doubt” standard has been satisfied more readily than in the case of criminal trials. Then the standard of proof in criminal contempt of court charges doesn’t continue to be the rigorous “beyond reasonable doubt” standard as the courts are claiming it to be. Thus, the judiciary is effectively bringing in a new manner of proving contempt of court charges according to what it thinks fit.

The lowering of standards for the prosecution to fulfil before a contempt charge is established is of great concern, especially in the light of a perception among some that the judicial institution is becoming heavily insulated from the public. Making it easier to charge a person for contempt would amount to giving a free rein to the judiciary to reprimand anyone who criticises it. This power is greater in light of the wide scope of the definition of “criminal contempt” in the Contempt of Courts Act, 1971. The justification of giving a sui generis label to contempt proceedings needs to questioned here. If it had been on par with a criminal trial, then the same manner of proving the charge would have had to be followed. Such an approach will only retrench the principles of natural justice standard which is being followed by the courts. Another option that seems viable, which surfaced during the course of the discussions, was to do away with the Contempt of Courts Act itself. Instead, provisions of Chapter X of the Indian Penal Code relating to the contempt of lawful authority of public servants may be used to charge a person for criminal contempt of court. This will ensure that the standard of “beyond reasonable doubt” is adhered to in substance since the manner of proof applicable will be that of criminal trials.

Another issue of concern, if the judges are not made to adhere to strict standards while charging a person for criminal contempt, is the fact that he will be a “judge in his own cause”. The Daroga Singh case offers a counter argument by stating that the prosecution of the person is not to protect the judges personally but to protect the administration of judges. However, in the light of instances like that of Arundhati Roy being charged of criminal contempt, the validity of such an argument needs to be questioned.

The notions that are a spill over from the colonial times linger on to portray the judges as high and mighty. The fact that truth was added as a defence to a contempt of court charge (accompanied with public interest) only recently shows how long these notions have been allowed to stay behind. There is no need to grant this protective shield to the judiciary. On the contrary, steps need to be taken to make its functioning more accountable and transparent. This is the need of the hour and not giving it blanket powers to convict any passer-by for criminal contempt. This is why there is a need to do away with the difference between standards of proof and manner of proof. High standards need to be applied for both and this can be done by laying down that the procedure for charging someone with criminal contempt should be the same as that of a criminal trial.

2. Why did the SC acquit IU Khan of criminal contempt of court while the HC had convicted him on the same evidence?

At the HC level, IU Khan was held in criminal contempt of court and was stripped of his designation as Senior Advocate. The court was convinced, “beyond a shadow of doubt”, that there was complicity between IU Khan, R.K.Anand and Kulkarni.

The court took into account various factors while convicting IU Khan. The court felt it was wrong on part of Khan to be so familiar with the star witness i.e. Kulkarni. When Kulkarni brought up the fact that he had not taken the summons, Khan instead of asking him to receive summons, asked Kulakrni to come to his house, even inducing him with whisky. The court found this behaviour of the Public Prosecutor to be completely inappropriate and unethical.

Another factor the mention of “Bade Sahab” by Kulkarni while talking to Khan. The HC was convinced that this was Anand, though there was no direct reference to him throughout the conversation. The Court did not accept Khan’s submission that the reference was to the Police Commissioner.

The Court felt that Khan also deliberately omitted to bring all these facts to the prosecution’s notice and thus, seriously impacted the BMW trial. Therefore, they held him in criminal contempt of court.

The SC on a careful consideration of evidence came to the conclusion that the HC had erred in its final decision though it concurred on the point that Khan’s conduct was inappropriate for a lawyer in general and a prosecutor in particular. But it said that there was a wide gap between professional misconduct and criminal contempt of court. The SC felt that Khan’s behaviour only amounted to criminal contempt of court. A major factor that influenced the court was that the transcript of the conversation between Khan and Kulkarni was incomplete and it was difficult to ascertain with certainty that “Bade Sahab” was a reference to Anand. The Court stated that what needs to be given weightage was what IU Khan understood by the reference and not what Kulkarni meant by it. Since it was difficult to determine this, SC acquitted Khan but gave the final discretion to The Full Court of the Delhi High Court on the question of whether or not to continue the honour of Senior Advocate conferred on him in light of the findings recorded in the SC judgment.

3. Professional misconduct vis-à-vis Criminal Contempt of Court

Khan’s behaviour was held to be professional misconduct whereas Anand was charged with criminal contempt of court. While Anand was given a period of eight weeks from the date of service of notice for filing his show-cause as to why punishment awarded to him should not be enhanced, Khan’s case was directed back to the Delhi High Court for consideration and he had no prior notice as to the action of the SC.

In the case In re Vinay Mishra, the SC held that under Article 142 of the Constitution the jurisdiction and powers of the Supreme Court which are supplementary in nature and are provided to do complete justice in any manner, are independent of the jurisdiction and powers of the Supreme Court under Article 129 which cannot be trammelled in any manner by any statutory provision including any provisions of the Advocates Act, 1961 or the Contempt of Courts Act, 1971. The implication of this case was that the SC was vesting in itself the power to try cases of professional misconduct by advocates which was actually vested in the Bar Council as per s.35 of the Advocates Act, 1961. Fortunately, this decision was overruled in Supreme Court Bar Association v. Union of India where it was held that the SC must not exceed its jurisdiction and it must act with restraint while exercising its powers under A.142. Thus, it was unacceptable for the Court to "take over" the role of the statutory bodies or other organs of the State and "perform" their functions.

While the Bar Council is considering cases relating to professional misconduct, it follows a fixed procedure where a Disciplinary Committee is set up, the advocate is allowed to defend himself and most importantly an appeal to the decision of the Committee lies with the SC. This procedure as contrasted with the contempt proceedings seems much fairer as the advocate is allowed one appeal. It is surprising that Criminal Contempt of Court which is a graver offence does not have either a fixed procedure or a process of appeal. With reference to the case, if IU Khan is dissatisfied with the decision of the Del HC, then it is highly unlikely that his appeal will be successful since the Supreme Court has already pre-judged the matter. Wouldn’t this amount to unfairness?

Another question that arises from this case is whether the court expects a higher standard of behaviour from the Public Prosecutors as opposed to other lawyers? If yes, is the court correct in its approach?

An interesting thing to note is that it seemed to have influenced the Court that in the interview immediately after the sting operation was aired, Khan said that the footage had been doctored while Anand had not questioned the credibility of the footage itself and gone on to defend himself. This brings in the issue of trial by media and how judges may be affected by it.

4. Role of the Media

Several issues emerge from the RK Anand which need to be scrutinized. It is important to conduct such scrutiny in light of recent incidents and practical considerations.

The question posed by Singhvi J. to the lawyers concerned was whether it was appropriate for the media to air the tapes during court proceedings of the BMW case? Does it adversely affect or prejudice the parties involved? At a broader level does this vitiate fair trial?

The present judgment explains that trial by media takes place where the impact of television or newspaper coverage on a person’s reputation creates a widespread perception of guilt regardless of any verdict in a court of law. In such cases the media has tried and found the person guilty and thus adjudicated upon the very issue pending before the court and this makes a fair trial virtually impossible regardless of the its result.

In this case, an important issue which came up before the Court was whether NDTV was guilty of criminal contempt under the Contempt of Courts Act? The Court held that this case fell squarely under the defence under the new S. 13(b) of the Act which provides that justification by truth and public interest put together form a defence. The Court also accepted Shri Salve’s compelling argument that NDTV was in fact trying to prevent the advocates’ an attempt to interfere in the course of justice. It exposed erring lawyers. Further, the stings had nothing to do with the accused, Sanjeev Nanda. It did not conjecture about the culpability of the accused which is what the Court thought the standard is. However, it is interesting to note at this point that there were television interventions even in December 2007 when the Anand contempt case was before the Delhi High Court.

Keeping in mind the possible repercussions of sting operations and the consequence of their being aired sub judice, Singhvi J. had raised the question on the implications of trial by media. In this context, counsel for Mr. I. U. Khan, Mr. P.P. Rao had raised this argument before the High Court by submitting that NDTV should have carried out the sting only after obtaining permission from the trial court or the Chief Justice of the Delhi High Court. In the alternative, he contended that they should have submitted the incriminating material to the court before its telecast. This argument was immediately rejected by Alam J. who noted that “it would be a sad day for the court to employ the media for setting its own house in order; and media too would certainly not relish the role of being the snoopers for the court.” His reasoning was that seeking prior permission would amount to pre censorship, which is a clear infraction of the right to freedom of speech and expression of the media.

However, in the very next paragraph, Alam J. seems to restrict this right by warning the media that it was not free to publish any report concerning a sub judice matter and a sting operation being more incisive and risky, would necessitate greater procedure being followed. He stated that “the legal parameter within which a report or comment on a sub-judice matter can be made is well defined and any action in breach of the legal bounds would invite consequences.” However, considering the potential implications the question of trial by media raised in this case, it is surprising that he did not explain what these ‘well defined’ parameters were; nor did he elucidate on the consequences of non compliance.

This issue thus assumes importance in light of the live telecast of the sting operation by NDTV. On 30th May, when the trial was in proceeding, NDTV had set up mobile units at R.K. Anand’s and I.U. Khan’s house, wherein they proceeded to show them the footage and ask them their opinions about the same. Simultaneously, they had a panel of eminent lawyers who were also being asked about their first opinion regarding the footage. R.K. Anand had twice refused to give his comments along with Sanjeev Nanda, although later he relented. However, this could also be done under the fear of unwavering media scrutiny, since his denial to give an interview could subsequently, easily be highlighted to impute guilt and fear. Furthermore, taking prima facie reactions from fellow colleagues raises questions about the impact on judicial proceedings, since they would comment based on the assumption that the sting operation was genuine. The potential consequences of such actions can only be ascertained if one juxtaposes the idea of a two hour long telecast (and the two day long viewing of the unedited version in the Supreme Court) with the eight minute clip presented by the defense to point out the inconsistencies in NDTV’s footage.

The second major question which needs to be considered is whether such publication on Television influence the judges who are hearing the same case? Is this evident in this judgment given Alam J.’s comments in parantheses splintered throughout the judgement? [Eg: Paragraphs 24 and 78, 125].

When a matter is sub-judice it is rather obvious that judges would naturally be influenced by what they read in the newspapers, watch on television and hear people talking about all around them. Further, there is some level of pressure on judges to give a particular verdict regardless of whether the application of legal reasoning results in the same conclusion.

Such pressure and influence is what is commonly referred to as “trial by media”. While it may bear positive fruits in some case, excessive action of this kind might cause, in some way or the other, censorship of judges in high profile cases. For instance, in the Jessica Lal case, there was tremendous pressure on the judiciary to reopen the matter and consider it again. To that extent, perhaps trial by media is not necessarily undesirable. However, if the media starts examining evidence, making confidential information such as the results of a narco-analysis case public and then announcing verdicts or pre-judgments on its own accord, then it should be strongly castigated. There are sound legal bases for why certain kinds of evidence are not even admissible in a court of law. Regardless of the normative question of whether such evidence should or should not affect the reasoning of a judge, it positively does affect.
One of the issues raised in the court was the role of lawyers. Alam J., bemoaned the erosion of professional values amongst lawyers which resulted in the erstwhile noble profession turning into a trading business. This decline in standards is especially marked in cases of professional ethics which has seen senior advocates taking part in TV debates and interviews discussing cases pending before the court. This might seem contradictory in respect of Alam J.’s earlier stance wherein he saw no fault in R.K. Anand being made to answer questions in a live telecast through out the world. Another interesting point brought out by the judges was the role played by the various State and National Bar Councils who provided unstinted support to any cause brought up by the lawyers. However, it had been lax in maintaining professional standards and ensuring statutory compliance. One of the reasons for this castigation could be the surrounding circumstances in which the case was being heard. It was the time when news was rife about protests by lawyers about the recent amendment in the CrPC relating to bail and about the strikes and clashes by the Madras lawyers. It is possible that these facts played in the minds of the judges when they were deciding the case.
The next issue which needs to be studied is the constitutional foundation of sting operations and whether they are justified keeping in mind the recent faux pas in the Uma Khurana case. The right to freedom of press has its roots in the right to freedom of speech and expression enshrined in Art. 19(1)(a) of the constitution. In Romesh Thapar v. State of Madras, the Court said that “The public interest of freedom of discussion (of which the freedom of press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves. ….In some the fundamental principle involved here is the peoples’ right to know.” Again, in Bennett Coleman and Co. v. Union of India, it was held that the concept of peoples’ right to know is located in Art. 19(1)(a). However, several contentious questions emerge from this background. First, what is the purpose of the media? Whether the media should have the discretion to decide what it airs? Who decides what “public interest” is? Further, over what information does the public have a “right to know”? In most of these cases, the Court talks about Government accountability and about the freedom of press regarding matters therein. What about private persons committing crimes and the presumption of innocence until proven guilty? These are some of the themes which need to be looked into.
This leads us to the critical question of ‘to what extent can the media go and to what extent should a person be informed?’ This issue is relevant in light of the cheap publicity sought by many media channels by engaging in sting operations. Women like Uma Khurana become victims of publicity stunts and entrapment cases (which are strictly prohibited in the United States for their inducement to commit wrongs) and this can be evidenced by the fact that there is a proliferation of video graphic stings as opposed to audio/print sting operations. Playing on public interest and viewership in a framework bereft of uniform standards is dangerous and even Alam J. seems to recognize this when he comments on the possibility of media houses editing footage to give it a certain prejudicial slant. This was evident in this case, when although I.U. Khan was interviewed properly, the full telecast was shown only once and later the anchors were picking out and repeating certain statements made by him. The burden during sting operations has to be much higher since one has to show both genuiness and bona fide.
The next question is the pertinent issue of whether India needs laws on ting operation keeping in mind the above issues. The Uma Khurana case occurred while the media was vehemently opposing the Broadcasting Bill. Several editorials were written in defence of the media, arguing that this was a one off case of irresponsibility on part of Live India and that the entire media should not be put to disrepute because of it. However, it is interesting to note that there are no laws or regulations or even judgments which lay down guidelines for sting operations. It is ironical that while India has stringent laws on wiretapping under the Telegraph Act, 1885, there is nothing to regulate videographing of a person using deceptive means.
In the United Kingdom, the British Press drafted a Code of Conduct to be enforced by the Press Complaints Commission set up by the Press itself. One of its provisions clearly provides that subterfuge can be justified only in the public interest and only when material cannot be obtained by other means. The second test of inaccessibility to material except by deceptive means is an important test which we should consider. Further, the Code of Conduct has clearly enumerated guidelines as regards what constitutes “public interest” which leaves nothing to ones imagination. Further, the Code requires that the editor must present a full explanation to the Commission demonstrating how the public interest was served. This is an additional check on the unbridled powers of the media and also keeps its freedom in tact.
Similar to the provisions in United Kingdom, CNN in the US too has strict policy guidelines limiting the usage of hidden cameras. They have come out with a four point program which includes:
Firstly, the information or evidence to be gathered by a hidden camera should significantly contribute to a story that is of substantial value to society or of vital public interest.
Fishing expeditions are not permissible insofar as there should be some expectation of illegal behaviour or wrongdoing.
Before using a hidden camera a journalist must first try and exhaust alternatives for obtaining the interview or information and thus he should resort to them only in cases of last resort.
The prior approval of the senior editors and management is a perquisite and sometimes the permission of the federal agencies is also required.
Thus, the message sent out there is loud and clear: good television is not enough reason to use a hidden camera. However, in India we have no law governing sting operations, no uniform internal regulation, no broadcasting code of conduct and an ambivalent law on privacy. At the same time, India has traditionally been an opaque society with a prevalence of corruption. Thus, a prohibition of sting operations is not the solution.
This gives rise to the question of who decides what is ‘public interest’: it is the government (who would do so by attempting to pass the draconian Broadcasting Bill, 2006); the viewers, the courts (as the custodians of morality) or the management in the media companies (whose sole consideration would be the rise in TRP’s)? This question posed a challenge to the court, since Sunil Kulkarni, the man behind the sting operation, wanted to delay the publication of the sting by three weeks because he feared for his safety. Does the witness’s safety constitute public interest?
The problem with self regulation is that it is only part of the answer. After the Uma Khurana case, Barkha Datt and other media doyens vociferously argued for a self regulatory code which would govern their operations. However, public memory being short, this was soon forgotten. This issue came up again during the present case, within similar arguments being voiced. Nevertheless, this issue will again die down and resurface only in time for the next controversy. This raises the all important question of what, if any, should be the role of the government in regulating this highly competitive, TRP driven media industry?


5. On the Issue of Recusal

One of the issues the RK Anand judgment discusses is of a disturbing new trend in the judiciary. This issue comes up because of RK Anand’s application asking J. Sarin to recuse himself on a number of frivolous grounds. Recently Ram Jethmalani got J. BN Agarwal to recuse himself from the Uphaar tragedy case wherein the Ansal brothers sought bail. The reason for recusal was that Ram Jethmalani had previously criticized J. Agarwal and was therefore embarrassed to present arguments before him. Of course, J. Sinha who was next on the roster granted bail promptly. Another recent instance is of J. Pasayat who recused himself from the Nandi Corridor case on mere oral submission of the alleged apprehension of bias and without dealing with the recusal application when Shanti bhushan alleged that Since HD Gowda had been rapped by Judge Pasayat during an earlier hearing Gowda had "reasonable apprehension regarding likelihood of bias and want of impartiality on the basis of relevant material in his possession and having regard to the antecedent events". All these have been cited often as instances of “bench fixing” which has been seen as the new method of a litigant choosing his/her bench.

Clearly in this case, J. Aftab Alam takes a stand on this matter of Bench fixing. He follows up on Mr. Salve’s argument that the allegations made by RK Anand, though not entertained by the Bench, did in fact have an impact on his sentence. Mr. Salve contention was that RK Anand’s petition is a brazen attempt to browbeat the High Court and that the recusal petition is the reason why he was given only a token punishment. The Supreme Court agrees with this stand and while condemning the action deeply, it asks RK Anand to show-cause why his punishment must not be increased. The Supreme Court emphasizes that RK Anand has not shown any regret for his gross misdemeanor and the petition is an indication of him defying the High court’s authority. One can connect this stand of the Supreme Court with their statements earlier as to how a motivated application for recusal is bound to cause “hurt” to the judges. Agreed that such senior members of the judiciary must be shown respect, but does this attitude show us that these judges, who have been placed on such a high pedestal, can never be accused of bias? Both J. Sarin’s response to the application as well as J. Alam’s comments on the recusal petition are an indication of how aghast they are by this allegation. And while RK Anand’s attempt at Bench fixing must be condemned, an allegation of bias is taken to be akin to doubting the integrity of the judges and questioning the neutrality and freedom of the judiciary.

In the State of West Bengal & Ors. v. Shivananda Pathak & Ors((1998) 5 SCC 513), the Supreme court notes that “Much harm is done by the myth that, merely by taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.” This statement is quoted by J. Sarin in his lengthy response to the recusal application. In this context it is interesting to note both J. Alam’s as well as J. Sarin’s shock and outrage at an allegation of bias.

So what should the standard be for allegation of bias? When do we see it as a genuine concern and when is it an attempt at thwarting the court? I’d like to agree with the principles laid down in Ranjit Thakur v. Union of India (AIR1987 SC 2386), particularly the following statement. “As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, “Am I biased”; but to look at the mind of the party before him.”

The Supreme Court criticizes the time and effort taken by J. Sarin to respond to the allegations. It is felt that the grounds on which recusal was asked for should have been rejected at a glance. Do judges have to spend their time in refuting the allegations and defending themselves? J. Sarin’s response to the petition can be said to be caustic and on the defensive. He repeatedly makes reference to the statement of RK Anand “It seems stars of both do not match” and derides the same. Do such sort of allegations lead to bad blood between the advocates and the judges. It must be mentioned that the lawyers know that most judges, hurt by the allegations will recuse themselves as seen in the case of both J. Pasayat and J. Agarwal. So it is an easy way out for the lawyer to get a favourable bench.

Soli Sorabjee believes that in a case of conflict of interest is the proper course is for the lawyer to recuse himself. Should this be the norm? In any case, in a case of clear “bench fixing” hopefully the bar will take a firm approach and judges will refute the allegation rather than recuse themselves.

-Aathira Menon
Megha Kaladharan
Reeba Muthalaly
Sneha Mohanty
Vrinda Bhandari





[1] Criminal Appeal No. 1393 of 2008.
[2] AIR 1995 SC 2348.
[3] (2004) 5 SCC 26.

The R.K. Anand Case: Issues for Discussion

The group of students presenting the R.K.Anand case have identified the following issues for discussion:

ISSUES IN THE R.K. ANAND JUDGMENT

I. Trial by Media and Sting Operations:
In this case, the media has essentially caused 3 things to occur:
First, the initiation of proceedings against RK Anand, IU Khan and others.
Second, possibly influenced the judges while hearing the same case
Third, made these tapes available to the Court in these proceedings.

Key questions which need to be discussed in this context are as follows:

1. Whether it was appropriate for the media to air the tapes during court proceedings of the BMW case? Does this adversely affect or prejudice the parties involved? At a broader level, does this vitiate fair trial?
2. Who decides what is “public interest” and at what stage? Would it have not served “public interest” if NDTV had turned in the tapes to the judges (since any way, the High Court can take suo moto notice of contempt cases) instead of airing them?
3. Was NDTV under an obligation to delay or not air at all the tapes in view of Sunil Kulkarni’s reluctance to get them aired?
4. Does such publication on Television influence the judges who are hearing the same case? Is this evident in this judgment given Alam J.’s comments in parantheses splintered throughout the judgement? [Eg: Paragraphs 24 and 78].
5. At a broader level, do sting operations invade the right to privacy of people and is this justified, keeping in mind the recent faux pas like the one in the Uma Khurana case?
6. The larger question is whether India needs laws on sting operations keeping in mind the issues aforementioned and existing provisions in other countries? What should the sanction be, if any, for non-compliance?

II. On Contempt of Court

Is it justified to have a lower standard of proof in a contempt of court proceeding vis-à-vis a criminal trial? For instance, R.K. Anand was not allowed to cross examine the NDTV reporter, Poonam Aggarwal, who was in charge of the sting operation. The issue which arises here is whether concerns of expediency should be given a priority over those of fairness.

IU Khan was let off by the SC while the HC had previously convicted on the same evidence. Was the SC correct in doing this? In this context, how does one determine the nature and degree of punishment in contempt of court cases?

Is there a difference in the punishment meted out to lawyers vis-à-vis other parties in contempt of court cases?

What weightage should be accorded to electronic evidence in convicting a person?

III. On Recusal
1. What constitutes “conflict of interest”?
2. What should the standard be in light of the increasing trend of advocates’ attempts to “fix” benches?
3. Was the Supreme Court justified in criticising Sarin J.’s lengthy defence for not recusing himself? Is such a “defence” necessary?

IV. Miscellaneous
In the judgment it is mentioned that Sanjeev Nanda refused to take part in the Test Identification Parade. Does the right against self incrimination extend to the right to refuse to take part in a TIP?

Session 3: The R. K. Anand Judgment

At this week's Forum session we will discuss the R. K. Anand judgment (R.K. Anand v. Registrar, Delhi High Court) delivered by the Supreme Court on 29.07.2009. It is available on JudisPlease read the judgment for the session. Issues for discussion will be up on this blog by 8:00 p.m. on August 12, 2009.

The Naz Foundation Case

The students leading the discussions on the Naz Foundation case have the following opinions to offer on the issues discussed at the Forum:

INTRODUCTION

The Naz foundation judgement is a path breaking judgment in many ways. Since the social and criminal issues have been debated to death in the public discourse, we believe it is germane to look at the vital constitutional implications. These were discussed under the following heads:
1. Importation of Sexual Orientation into sex through analogy.
2. The horizontal application of fundamental rights.
3. The usage of the doctrine of strict scrutiny.
4. Privacy, dignity and constitutional morality.

ISSUE 1: SEX BEING ANALOGOUS TO SEXUAL ORIENTATION:

Article 15(1) of the Indian Constitution prohibits discrimination on various grounds including sex. In the Naz foundation case the Delhi High Court cited various case law to say that you can import terms into Article 15(1) by analogy. The court interpreted sexual orientation as being analogous to sex and thus held that discrimination on these grounds is prohibited.
In order to analyse whether this can be done and is constitutionally valid it is fruitful to look at the various theories of constitutional and statutory interpretation. Every theory starts from the premise that the primary source of interpretation must be the words. If there is any ambiguity we look at external and internal aids to construction.
The first theory that can be used in the analysis is the original intent theory.
In this you look at the Original intent in other words what framers intended. There are two strands of this, semantic Originalism based on what the framers intended to say, and what they intended to do. This can be understood using the example of school segregation. When the laws of school segregation were overturned in Brown v Board of education, a lot of people opposed this saying that the framers did not intend this. The argument being that as the body reflecting popular sovereignty only the legislature has the authority to do this. Seen from this perspective, Naz foundation judgment is clearly wrong as when framers spoke of article 15 they did not mean sexual orientation, for if the framers had intended that sexual orientation should be read in to sex then article 377 would have been unconstitutional or read down at 26th January 1950 itself.
It can be argued that maybe the framers specifically intended that law should not reflect changes in the original values that the framers thought desirable and that it requires the long and hard consideration needed for a constitutional amendment.
3. According to Justice Antonin Scalia constitution is to be considered in the court as the paramount law. The constitution has an effect superior to other laws, is the sort of law that is the business of the courts, an enactment with a meaning that is fixed and ascertainable though derived known to those learned in law. If constitution was not this but something that would apply to current societal values then should not the legislature rather than the courts determine its content?
4. Lack of an Alternative: If there is to be consistency and predictability then there must be a consensus that judges will adopt something to replace originalism. Question is what can this be? Locke? Mills? Rawls ideas? Though originalists also have differences they have a common point of departure.
5. Once the original import of the constitution is cast aside to be replaced by fundamental values of the current society why are we invited only to “expand on” freedoms and not contract them? Consider the Coy v iowa case. Two young girls were permitted to testify against the defendant by using a screen. It was argued that this violated the right of the sixth amendment allowing the criminal defendant to be confronted with the witnesses against him. This a contraction of the rights of the accused. Similarly the US Supreme Court has narrowed the contract clause of the constitution well short of its meaning. How can we not see this as a contraction of our rights?
Thus the idea is even if one is to assume that the constitution was intended to be this evolving document. Is it the courts prerogative to do this?
According to this theory such a reading of sexual orientation being analogous to sex is wrong.
General criticisms against the originalist interpretation.
1. It is very difficult to ascertain the original understanding of an ancient text. It involves looking at the constitution, amendments, and Constituent assembly debates, understanding the social and political atmosphere of the time. More suited to the historian than the lawyer.
2. There are many instances of confusion regarding the interpretation. For example in the Myers case, Justice Taft held that the president had the owner of both appointment and removal of executive officers as the British crown has these powers and son when the framers of the American constitution used the word executive power they were including both. This case cited Fleming v Page to say that the association of removal with appointment is not incompatible with the republican form of government. However the Fleming v page case also held that with respect to the distribution of political power there was a major difference between the united states and Britain and that there was no resemblance regarding the powers of the executive forms of the government. As can be seen there are multiple and every differing interpretations.
3. Lawrence tribe Harvard law professor feels that for provisions like the ninth amendment, the originally understood content of these provisions has nothing to do with how they are applied today. Constitution invited the judges to expand freely on freedoms.
4. Stanford dean Paul Brest “practise of constitutional decision making should only look at the practises which are fundamental to our society. Text, original understanding precedent is important, but they are defeat able in the eyes of changing public values.”
5. Yale professor Owen Fiss says whatever the constitution originally meant the constitution makers should give concrete meaning and application to those values that give society its identity.
6. Whole idea being that the judge might allow his own predilections to intervene. Difficult to distinguish between political values important to him personally and those values which are considered important by the society.
The Second theory of interpretation:
Dworkin says you must distinguish between what the framers intended to say and what they intended their words to achieve. Consider the segregation case again. By virtue of the fact that a term like equality used ( broad term) and did not use narrow definition like non segregation shows intent to lay down a principle that cud be interpreted according to changes in social conditions. Like Hart makes a difference between concept and conception. For example you have the concept of democracy and various conceptions like Plato’s rule of elected aristocracy, parliamentary and presidential democracy. When framers use democracy they lay down a concept not conception so you can interpret democracy as parliamentary and presidential democracy both are fine. Dworkin says moral reading of the constitution. On this ground you can defend Naz. Framers said non discrimination on basis of sex so allowed for importation by analogy.
Newest theory by Bruce Ackerman
In “we the people” he argues you have certain things called constitutional moments when because of widespread political exigencies you need a break in the position of law. May not be supported by precedent but is justified by the exigencies. He believed that each judgment writes a story. You must stay within the framework is what Dworkin says. Ackerman says at times due to the situations prevailing due to the exigencies can break with precedent and move in new direction. For example Keshavananda Bharati is a constitutional moment. Naz is one too can say it is demanded by exigency though case law does not. Constitution has to be seen as a dynamic instrument. This is something courts should do.

ISSUE 2 HORIZONTAL APPLICATION OF LAW
The Naz Foundation judgement in Paragraph 104 states as an obiter that Article 15(2) is meant to be read horizontally, that is, that Article 15(2) is available against individuals. The issue of whether the fundamental rights are to be read as enforceable against citizens or against the state only is a contentious topic in constitutional law today. While Classical Liberal theory and early cases such as Samadasani v. Central Bank of India and Vidya Verma v. Shiv Narain Verma seem to lean towards an understanding of these rights being “vertical”. A recent reaffirmation of this is seen in the Zoroastrian housing case. However, do such ideas need to be reassessed in today’s context? We find that today, the State has given up control over the commanding heights of the economy to private actors. Authors such as Upendra Baxi also suggest that with globalization marks the birth of new forms of territorialisation/de-territorialization of diverse state forms within which the duties of allegiance and powers of governance stand routinely recast, performed and exercised. Further, we find incidents where celebrities such as Emran Hashmi have been denied access to housing, allegedly on the basis of their religion, indicative perhaps of an existing trend in society, where the need for enforcement of fundamental rights against other citizens is necessary. A more horizontal application of Fundamental Rights can be seen in ruling of the Supreme Court. For one, we find that the definition of State under Article 12 has been ever expanding, settling today to mean any “agency or instrumentality” of the State (ruling in the Ajay Hasia case). Further we see instances of DPSPs being read into the Fundamental rights, increasing the responsibility of private actors by enhancing the responsibility of the state (MC Mehta v. Kamal Nath). Moreover, we find that private actors are being included as respondents in Writ Petitions resulting unfavourable remedy to those whose right have been violated by bodies that are not the state (Vishaka Judgement).
The horizontal/vertical divide raises many important questions. One such question is whether the current test for the meaning of the word “state” is sufficient, given changing circumstances. The Zee Telefilms standard of “functionality” was rejected. But do circumstances today require a relook at the definition of the State? Flowing from this is the debate over what the responsibility of private parties are? While the constitutional scheme subscribes to equality, are private individuals expected to adhere to these standards and can the state force private bodies to comply with such values? On the one hand, private bodies are separate from the government for this very reason, that they can make autonomous decisions, or on the other hand, should such autonomy be waived depending on the degree of the discrimination? Can private parties be excused if their intent is associative discrimination for the promotion of the interests of a specific group? Can their discrimination be excused if there are other viable alternatives? Or is it that such changes cannot be determined by the courts at all, and such application can only be at the initiative of the legislature? There is the additional matter of the consequence of horizontality as well. Will the courts be able to bear the burden of multiplied litigation? If this were to be controlled, what standard could be applied?

ISSUE 3: PRIVACY, DIGNITY AND CONSTITUTIONAL MORALITY
The Naz foundation judgement touched on many issues dealing with the right
to life. The court held that the right to privacy is violated by this and that interference into this personal sphere of life was considered to be arbitrary and illegal, as privacy was not just about occupying free private space, but to develop and express your personality. The
homosexuals right to dignity is violated through their constant harassment and their inability to live a fulfilling life. Further, the court held that constitutional morality is not the morality of the public. But the values espoused by the constitution, such as equality and
non-discrimination.

However, the moot point in this regard is whether the ruling of court ensures the homosexual couple a meaningful livelihood. While sexuality is in some cases not crucial to one’s functioning in public life, most noticeably in the sphere of healthcare, with regard to employment, housing, etc. sexuality may not be relevant. The most impact that the acceptance of alternate sexualities would have is on personal laws, though currently, LGBT rights in regard to adoption, marriage, IVF, etc. are not on par with heterosexuals.

The second matter of discussion was on international jurisdictions and what the Naz foundation borrowed from other countries. There was extensive usage of case law from countries like USA, where homosexuality has been decriminalized, through cases such as Bowers v. Hardwick and Lawrence v. Texas. Reference is made to the Wolfenden Report and to cases from Australia.

The issue of going beyond mere decriminalization of homosexuality is relevant here, as recently performance and registration of civil unions has been permitted by the government here. While several rights have been accorded to LGBT groups even in international jurisdictions, such as adoption, IVF, surrogacy, etc. there is still apprehension with regard to
granting equality in terms of marriage. Is there a time right to grant homosexuals the right of marriage or perhaps civil union even? Do these issues warrant a new analysis of equality, which goes beyond the conventional rational nexus and intelligible differentia test, which can account for the manner in which different people experience inequality and how this is such an experience can be caused by inaction as well? Can such inequality be remedied by the government at all and is this process of acceptance hindered by the hetero-normativity of advertisements and movies?

ISSUE 4 STRICT SCRUTINY:

Strict Scrutiny is one of the three standards for judicial review of legislative. These standards of legislative and administrative action are a rational basis, Intermediate scrutiny, Strict scrutiny. In this process Governmental action is subjected to careful judicial inquiry and scrutiny so as to ensure that the personal right of equal protection of the laws has not been infringed. The relevant case laws are Regents of the University of California v. Bakke 438 US 265 and (1978) Parents Involved in Community Schools v. Seattle School District, (2007). Indian cases are Saurabh Chaudri and Others v. Union of India and others, (2003), Ashok Kumar Thakur v. Union of India, (2008), Anuj Sharma’s case (2008).
The important issues discussed in this regard as seen in the forum were: The various tests that can be used to check the constitutionality of any statute namely the rational basis test, heightened scrutiny test and then strict scrutiny. There is a gradation here in that strict scrutiny that requires a state interest. In this the presumption of constitutionality is taken away.

The theory good but the big criticism is that the Strict Scrutiny is strict in theory and fatal in fact. No government action can survive all 3 prongs of the test. It is used even in the US only to strike down affirmative action measures. The US also has softer affirmative action like diversity quotient not reservations. Government can prefer higher diversity quotient than others. Such measures are however routinely struck down by Strict Scrutiny.

An important matter for discussion is the validity of the usage of strict scrutiny in the Indian scenario. While the Anuj Garg case was reported in 2007 and upheld the usage of strict scrutiny, while the Ashoka Kumar Thakore judgement looked upon the strict scrutiny test as a threat to the laws in place. However, the Anuj Garg case was reported only in December 2007 and hence could not be used by the judges in the Supreme Court case while deciding the Ashoka Kumar matter. There is a recent Madras High Court judgement Lifestyle Influence Spa v. Government of Tamil Nadu, also upholds the usage of strict scrutiny.

The Naz foundation case read the two cases harmoniously, however, the larger matter of debate is whether the doctrine of strict scrutiny needed to be applied at all. Would the rational basis standard have been sufficient?

These questions are relevant because while harmoniously reading the cases the Delhi High Court ruled that strict scrutiny would apply in all cases except those of affirmative action. But how is it to be ascertained, what exactly constitutes affirmative action?

CONCLUSION

The matters discussed in the forum were chosen due to their contemporary importance and due to their potential for altering the existing positions of law on many constitutional matters. We find that many of the interpretations are contentious. Currently, it is important also to ask: are these interpretations likely to be accepted by the Supreme Court? Are such interpretations wise strategy, if the interests of many affected by s. 377 are at stake?

Session 2 - The Naz Foundation Case

The discussion in the current legal issues forum tomorrow, the 6th of August will be based on the recent Naz foundation judgement. Since the criminal and social issues surrounding this judgement have been discussed extensively, we chose to focus our presentation largely on the constitutional aspects of this judgement. The issues that will be dealt with by us include:

1. What is the constitutional basis for the premise that sexual orientation is analogous to sex? We will address the debate surroundingthis question using the principles of constitutional interpretation.

2. What are the implications of the horizontal application of Article15(2)? Is such a reading of the article constitutionally sound?

3. What is the Doctrine of Strict Scrutiny? What are the Constitutional implications of its applicability?

4. Does the position of Naz foundation on Article 21 allow for the protection of the rights to Privacy and Dignity?

5. How have other jurisdictions interpreted provisions similar to s. 377?

6. What are the implications of the Naz foundation judgement on the Age of Consent?

These issues are not exhaustive and we hope that more avenues of discussion develop from the ones mentioned. In order to facilitate discussion, we recommend reading the Naz Foundation case and also urge you to bring a copy of the Constitution along!

Death Penalty Continued: Comments by Mrinal Satish, Visiting Professor, NLSIU

I’d like to highlight some other interesting issues in the Bariyar judgment. The Supreme Court seeks to make a distinction between “principled sentencing” and “judge-centric sentencing” and then again between “principled sentencing” and “consistency”. This raises the question of what “principled sentencing” actually means. The judgment (in my reading) does not offer an explanation to this term. However, reading this judgment with an earlier judgment of the Supreme Court in State of Punjab v. Prem Sagar [JT 2008 (7) SC 66], where the Court (speaking through Justice S.B.Sinha) had stated that sentencing ought to be reasoned and rational, the conclusion one can draw is that the Supreme Court is calling for a more rational approach to sentencing (which also comes out from the decision of the Court in Aloke Nath Dutta, [2006 (13) SCALE 467]. What is “rational” is again debatable.

The second issue that I’d like to highlight is the factors that the court says ought to be considered in a sentencing hearing (Paragraph 49 of the JT Judgment). The Court says that motive, nature of the offence, impact of the crime, culpability of convict, quality of evidence are relevant factors. In the next paragraph, the Court states that socio-economic status of the offender can also play an important role in sentencing. An objective analysis of whether the convict can be reformed or not is considered the most important factor. In this context, in my view, the first set of factors that the Court deems fit to consider while sentencing are all factors that are also considered relevant for convicting/acquitting the accused person. If these factors are re-considered while sentencing, the distinction between the trial phase and the sentencing phase that the Legislature sought to make by introducing S. 235(2) into the Cr.P.C. is obliterated. Further, in my understanding, the purpose of S. 235(2) and analogous provisions of the Cr.P.C. dealing with pre-sentence hearings, appears to be designed to give an opportunity to the court to determine which theory of sentencing is most appropriate for the crime and the criminal, and to make a determination of the appropriate sentence in that context. As regards whether the accused can be reformed or not, most, if not all courts in India, do not have the assistance of a trained probationary officer or a psychologist to make such an assessment. Judges determine the same based on “objective” factors. This in itself leads to arbitrariness, since the “judge-centric” approach kicks in into such an assessment.

The third troubling factor in the jurisprudence of the Supreme Court on the death sentence issues is the power of the High Court (in death reference cases) and the Supreme Court (when these death references are appealed). The Supreme Court in Bariyar cites State of Maharashtra v. Sindhi, [(1975) 1 SCC 647)], where the Court had held that the High Court must reappraise, reassess and reconsider the entire facts and law and come to its own conclusions, independent of the view expressed by the trial judge. While, at one level, this acts as a safeguard and ensures that the evidence is objectively determined, the fact that at each level of the Courts, re-appreciation of evidence is permitted is problematic, since “judge-centric” interpretations might impact such re-appreciation. It is interesting to note that the Supreme Court has in other circumstances stated that re-appreciation of evidence should be an exception and not the norm.

The other very interesting issue that comes out of the Bariyar judgment is the application of Art. 14 of the Constitution of India to sentencing. In the Royappa case [(1974) 4 S.C.C. 3], the Supreme Court had held that that if an act is arbitrary, it is violative of the right to equality guaranteed by the Constitution of India. Discussing the meaning of the term “arbitrary,” the Court ruled that decision making ought to be based on equivalent relevant principles, applicable to all individuals who are similarly situated. Further, the Court also ruled that equality is the very basis of the doctrine of “rule of law,” which is the core value in a democratic Constitution. Commenting on this decision, H.M. Seervai remarked that if the existing system of sentencing in India is tested against the principle laid down by the court, the system will be unconstitutional, since there are no rational rules for sentencing. The Bariyar judgment brings back this debate to the fore. Does “arbitrary” sentencing or disparate sentencing violate Article 14? Bariyar seems to suggest it does. In my opinion, it definitely does. Sentencing also ought to be based on constitutional values, and there cannot be a different set of rules (or no rules at all) for sentencing. Hence, if there are no rational reasons given, the system becomes unconstitutional.

Hence, in my view, it is time to re-visit the Bachan Singh judgment and test the constitutionality of the death penalty in light of the various factors that have emerged post- Bachan Singh. Examined in light of these factors, the only answer that is possible is that the “rarest of rare” case doctrine is not really taking away arbitrariness in sentencing, which then makes imposition of the death sentence fall foul of the Constitution of India.

Session 2: Naz Foundation

Thanks for making the CLIF on Death Penalty a great success. We unfortunately ran out of time even with the additional half hour that we debated the issue. I hope you will continue the discussions on the blog. A group of students has decided to take up Justice Sinha's challenge, and will be undertaking an exhaustive study of the application of death penalty in India.

This week's CLIF is on the Naz Foundation judgment. Please read it for the next session. Since there have been various discussions on campus on the judgment, the Forum will focus on the implications of Naz Foundation for constitutional adjudication, looking at issues like the horizontal application of equality rights, the open-endedness of the Art. 15(1) categories, the issue of strict scrutiny, etc. This is only an illustrative list. A detailed list of issues for discussion will be posted on the blog by Wednesday.

The Death Penalty Debate

The group leading the discussions on Death Penalty have the following opinions to offer on the issues discussed at the Forum:

ARBITRARINESS IN DEATH PENALTY : CAN BARIYAR PROVIDE A QUICK SOLUTION?
Reading of the Bariyar judgment will make one realize that the Court is not stating anything substantially new, rather Justice Sinha is reiterating the principles laid down in Bacchan Singh. The Court elaborates on the element of pre sentence hearing mentioned in Section 235(2) of the Cr.P.C and also states that the recording of special reasons under Section 354(3) of the Cr.P.C provides a safeguard to prevent arbitrary imposition of death sentence. The “special reasons” mentioned in Section 354(3) is based on the evidence adduced at the stage of sentencing. This evidence is based substantially on the background of the criminal and the prosecution needs to show that the accused is beyond any form of reform and rehabilitation. According to Justice Sinha, the irrevocability of death sentence makes it imperative on the Court to resort to this punishment only when alternative option of punishment, i.e. life imprisonment will not serve any purpose. Highlighting the objectives of punishment like detention, retribution and reformation, the Court states that death sentence provides no scope for any of these objectives and hence should be used only in situations where “alternative option is foreclosed”. Justice Sinha also urges the judiciary to not be influenced by public outrage while imposing death sentence. He emphasises the importance of individual rights over majoritarian aspirations and states that social necessity can’t be a justification for the imposition of death sentence.

The factor that makes this judgment significant in the arena of death penalty is that, through this case the judiciary wants to prove that the decisions post Bacchan Singh have not been consistent in applying the principles laid down in Bacchan Singh. Moreover the Court has provided an elaborate study of its previous decisions to show the arbitrariness that is prevalent in the system in the area of death sentence. The judgment not only evokes a sense of disapproval in the mind of the reader to the prevalent system of death sentencing policy, the data given by the Judge about the number of countries that has abolished death sentence makes the readers wonder whether the Court through its decisions is promoting for an abolition of death penalty in toto. However Justice Sinha treading the safe path does not comment on the existence of death penalty as a punishment, but only criticizes the method of its implementation.
Judicial subjectivity is an element that is inevitable in every sentencing procedure. There is a responsibility on the judiciary and its mechanisms to ensure that individual biases and prejudices are kept to its minimum, while awarding death sentence, the gravest of all punishments. At the expense of being cynical, I feel that arbitrariness is a menace that can’t be wiped out from the death sentencing policy, irrespective of any safeguards. The judgment of Bariyar, citing Bacchan Singh, states that the prosecution needs to prove that the accused is not capable of any reform. At this juncture I want to highlight the folly of this procedure. Firstly, it is extremely difficult to prove that an accused is beyond any possible rehabilitation and secondly the evaluation of this rests once again on the judiciary who do not have the expertise to gauge such an important issue on the basis of which the sentence will be given. The assistance of expertise is not going to wipe out the arbitrariness, because there are other judgments in which the Court to suit its whims and fancies have disregarded expertise opinion.[1] Therefore it once again boils down to the personal predilection of the judges. Suppose the accused comes before a judge whose opinion on death sentence is similar to Justice. Prasayat, then the burden of proof on the prosecution will reduce tremendously. Considering the irrevocability and graveness of the punishment, I am of the opinion that this judge centric approach should not be allowed to continue. Moreover the judiciary itself has admitted that judicial discretion can’t be curtailed in case of sentencing. Therefore I feel that death sentence as a punishment should not continue, when the judiciary has dismally failed to prevent the arbitrary nature of its sentencing policy.
-Meera Sreekumar
[1] Dr.Nikhil Dattar v. Union of India.

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The endless debate on whether death penalty should be abolished or not, in the light of the gamut of case laws, remained endless even at the first meeting of the CLIF. Though each and every person has certain, and mostly staunch, notions about the issue consensus is a far fetched dream. Though for us sitting in a classroom it was quite easy to air our opinions by a show of hands such is not possible for the judges of the Supreme Court and thus the confusion about what Supreme Court opines about it persists. This write up is my take on the issue and my opinions on the where India is or should be headed with matters pertaining to death penalty. This short write up seeks to address three issues which had been brought up in the CLIF discussion. It commences with a discussion on why death sentence should be abolished followed by a critique of the judgement of Santosh Kumar Bariyar v. State of Maharastra. Finally I would like to express my opinions on the issue of how to conceptualize a “principled sentencing” policy for matters regarding capital punishment should be decided by the Supreme Court.

An unswerving abolitionist, I am of the view that capital punishment should be done away with. I base my sentiment on two arguments. The first of the two is that one can never be sure of the truth. From a realist perspective every Indian is aware of the amount of corruption plaguing the criminal justice system and if such is the case a person can never be cent percent sure of whether the accused deserves death or not. Though people who want to retain the concept feel that given the heinousness of crime the guilty deserves to be dead, but none would take the responsibility for the ambiguity that the guilty might not be the guilty in reality. If the Indian justice system is against euthanasia on the argument that probably the person might just be revived then I think it should also give a second thought to this aspect of argument against death penalty.

The second issue which I have with death penalty is the lack of policy behind the same. For a while the scholars attributed death penalty to have deterrence value but the same has been proven wrong by studies time and again. After the death of a person the reformative theory gets swept out of the picture and thus remains the retributive theory. But judges are usually not keen to state the same as it is analogous to the “eye for an eye” theory. The argument is usually camouflaged under the veil of ‘protection of society’ but the argument doesn’t hold good after the Sharaddhanand Swamy case which made life imprisonment for the life of a person and ensured that such criminals never interact with the society. This according to me is a fairer option because it serves to protect the society from these anti social elements and also leaves scope for correction in mistakes in administering justice. It ensures that to get to the end, whatever it may be, that the justice system plans to achieve, injustice isn’t caused to an innocent in the process of getting to the end.

The case of Bariyar is an important step towards the concept of abolition of death penalty, or atleast the minimal use of the same. Many abolitionists have welcomed the judgement but there are a couple of aspects of the judgement which according to me can be assigned the term lapses in justice. Though the case does well by not attributing death sentence the reason for the same given is that they were not criminals but were friends. According to the philosopher John Gardner in his essay in the “Gist of Excuses” he says that a person cannot be excused because he committed a crime once because it might not be out of character but the beginning of his evil character and by condoning the same we will be causing great injustice to the society.

Further the case lays down the new test for determining the rarest of the rare which is that if the judge is convinced that the person is beyond reform then only death penalty should be imposed. In the case of Niketa Mehta which deals with rights of abortion six different doctors gave different views, all based on scientific analyses, about whether it was safe for her to undergo an abortion. If such is the case of scientific study how is the judge (not a science student) supposed to decide whether a person is or isn’t beyond reform especially when he is dealing with the field of psychology which is not yet greatly advanced in India. This might lead to arbitrary decisions regarding whether a person deserves a death penalty or not.

Since Bachhan Singh v. State of UP, the phrase “rarest of rare cases” has been manipulated by various judges in various cases. Each interpretation adds a new facet to the phrase leaving it as ambiguous as possible. In the CLIF discussion it was noted that whether or not a person gets convicted and to what extent are the aggravating and mitigating circumstances incorporated in a decision is based on the personal biases of each judge. If such is the circumstance then even though the case is referred to the largest bench on the Supreme Court, the decision will be based on the notions of the majority which might again be biased and the same will still not ensure justice to the one person who gets hanged even though he is innocent. I base my notion on Hart’s proposition that there cannot be a shared sense of morality and the argument that the majority decision is not always the right decision.

Thus I am of the opinion that death sentence should be abolished and in circumstances where the need to use the same arises the person should be punished with life imprisonment for life because it is better to be a little lax to the guilty than being unjust to the innocent who get trapped.
- Rachita Nadig

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In this brief opinion, I seek to address two aspects of death penalty jurisprudence in general and with respect to India, in particular. Firstly, I seek to make an argument in favour of abolishing the death penalty on the basis of the reformative theory of punishment. Further, I argue that it is virtually impossible to remove the element of arbitrariness from death penalty sentencing and while the Bariyar judgment takes an significant step in this direction, it comes riddled with its own problems in the realm of death penalty jurisprudence.

Death penalty is the harshest form of punishment which can be imposed upon an individual by the State and therefore, raises many pertinent questions regarding its legitimacy. According to me, the principal aim of punishment must be the reformation of the criminal. However, the punishment of death sentence completely forecloses the possibility of reformation. The only ends which it can even aspire to achieve are the objectives of deterrence and retribution. However, the nexus between the death sentence and deterrence is not very credible and empirical studies have often indicated that deterrence has more relation with the certainty of getting punished rather than the degree of punishment inflicted. Therefore, the only end which death sentence seems to achieve is that of retribution, which begs the question if we want to create the kind of society which is based upon a bloodthirsty ‘an eye for an eye’ penal policy. I believe that death penalty is a barbaric mode of punishment which doesn’t deserve a place in a civilized legal system. Whatever be the offence committed by a particular individual, the State can’t be given the right to take away life. Another strong argument in favour of abolishing the death sentence is based on its irrevocability. There’s no way to reverse a sentence of death if it is later discovered that the person executed was actually innocent. The abolitionist movement against death penalty is gaining strength worldwide, with ninety-four countries having abolished the death sentence and another thirty-four not having used it for at least the past ten years.

Another problem with the sentence of death in India is the arbitrary manner in which it is imposed. The landmark decision in the case of Bachchan Singh established that death sentence should only be imposed in the ‘rarest of the rare’ cases. However, what essentially constitutes ‘rarest of the rare’ has been the subject of varied judicial interpretation. Machhi Singh identified five factors which the court must consider to determine whether a case falls within the category of ‘rarest of the rare’. However, the relative weightage of each of these factors remained largely a matter of judicial discretion. The latest Supreme Court judgment on this issue in the Bariyar case points to this problem of uneven application of the law in death penalty cases. This essentially means that the lives of convicts are virtually dependent on judicial whim.

I believe that this problem of arbitrary infliction of death penalty due to excessive judicial discretion is an incident of the very nature of the demands of a sentencing policy for such a severe punishment as death and though this element can possibly be minimized, its influence can never be completely done away with. This is because while on the one hand, arbitrary infliction of death due to excessive judicial discretion is considered to be a problem, on the other hand, a certain degree of judicial discretion in sentencing a person to death is definitely required as there is not even a single crime for which a blanket death punishment can be imposed and the circumstances in which the crime was committed and the circumstances of the criminal deserve attention, a fact also recognized by the Supreme Court by declaring mandatory capital punishment sentences as unconstitutional. Therefore, this dilemma of the adequate amount of judicial discretion which must be conferred in such cases remains quite hard to resolve.

The Bariyar case has added another dimension to the debate by interpreting the judgment of Bachchan Singh in a radical manner. The judgment makes it mandatory that a proper pre-sentence hearing be conducted and holds that a death sentence can only be imposed if the prosecution is able to adduce sufficient evidence to show that a convict can’t be reformed and hence death sentence is the only viable option. The judgment raises a number of questions about the feasibility of such a pre-sentence hearing and by laying down the requirement of such a high standard of proof, the judgment places a virtual moratorium on the death penalty.

However, the judgment falls short of achieving all that is desirable since the judiciary has still remained shy of addressing the problem directly by tackling the bull by the horns. After enumerating several instances of arbitrary infliction of the death penalty, the judgment, instead of referring the matter of constitutionality of the death sentence to a larger bench, takes a roundabout way to put an end to the penalty of death by erecting a high standard of proof for its infliction.

Also, I believe that we need to give some thought to the alternative to death penalty, which according to the Swami Shradhananda case is imprisonment for life, without any scope for remission. Such a penalty again fails to achieve the goal of the reformative theory of punishment which is oriented towards rehabilitation of the convict in the society.
-Sanjam Arora

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The Death Penalty and Bariyar: The Road Ahead

The death penalty jurisprudence in India has been witness to extreme changes within a wide ranging bandwidth. The transition from the ‘death penalty as the rule and life sentence as the exception’ to ‘life sentence as the rule and death penalty as an exception’ has altered the entire conception of capital punishment. This has in part been facilitated by the concept of ‘rarest of rare’ cases, wherein the death penalty can be imposed only when the act committed is such in nature so as to shock the collective conscience of the society, as a brutal and savage act beyond the contemplation of a reasonable man. The adoption of this doctrine had the fundamental effect of restricting the imposition of the death penalty drastically. However, an offshoot of it culminated in the introduction of a greater element of uncertainty and subjectivity in its award at the hands of the judge/s concerned. For a long time there were no clear guidelines of determining if a case fell within the ‘rarest of rare cases’ category or not. In effect, it relied totally on how the judge/s perceived the ‘rarest of rare’ classification and the subsequent irregularities in decisions on various occasions has reaffirmed the above claim of subjectivity.
However, the recent landmark case of Santosh Kumar Bariyar v. State of Maharshtra[1] has had some impact in clearing the air over this subjectivity by making the imposition of the death penalty almost impossible. This has been done by the Supreme Court by ruling towards a higher and more comprehensive standard that focuses on working with and not against the accused. The determination of the nature of the accused and the probabilities of his/ her reform will be extremely difficult for any court of law. Thereby, more often than not it would rather lead to a sentence of life imprisonment than to one of life imprisonment, if such be the nature of the offence.
In view of the above developments, I believe that the course chartered by capital punishment in Independent India has been one that has constantly tended towards an increasingly restrictive interpretation. Although I support the death penalty as a punishment, I also believe that the Bariyar judgement has been a welcome step towards promoting much needed clarity over a topic as important as that of the death penalty.
- Sartaj K. Singh
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I shall endeavour to make a case in favour of abolishing the death penalty through the conclusions I have drawn from my reading on the matter, as well as the opinions I can safely express therein.

The new standard laid down in the Bariyar case is excellent in the sense that it counters one of the many ugly heads of arbitrariness that cloud the realm of death penalty sentencing. The fact that evidence has to be provided to assert that the accused is beyond redemption is an excellent step to ensuring that the sentence of death in India is no longer being used to worship the false god of deterrence, or to support the bloodthirsty jaws of retribution.
Of course, there are some flaws when we come to the question of reformation. If the person is capable of reformation, and thence sentenced to life imprisonment, the recent definition of life imprisonment as the whole life, without the chance of remission, makes reformation and rehabilitation kind of redundant. And of course, there is the question as to what constitutes reformation, given that our judiciary in their infinite wisdom, have considered yoga and meditation to be sufficient proof of reformation, while true remorse even the handing over of oneself to the authorities, has failed to meet this standard.
While the Bariyar judgment takes note of the arbitrariness associated with death sentences, it fails to take note of numerous other forms of randomness that infest the process. From institutional negligence that has seen a mercy petition lie forgotten in a governor’s desk for nine years (the Dhananjoy Chatterjee case), to the lack of documentation of death penalty cases that has resulted in the details of Bachan Singh’s execution to be never recorded (for all we know the man may yet be languishing in a godforsaken cell somewhere, at least as far as the records tell us), our system needs a great deal of overhauling to ensure that the right to life is not snuffed out without the due process of law being followed.
A certain degree of care must be paid to our international obligations with regard to the issues like the death penalty, as well as our own judicial positions. While we currently violate Article 6(1) and 6(2) of the International Covenant on Civil and Political Rights by keeping mandatory death sentences for crimes such as that under Section 31A of the Narcotic Drugs and Psychotropic Substances Act of 1985, the same also violates the 1983 Bitto Singh judgment that declared Section 303 of the Indian Penal Code unconstitutional.
An automatic right of appeal to the Supreme Court should lie with all those sentenced by a High Court to death. This was a key feature of the Constituent Assembly debates, especially out of concern for the poor who are sentenced to the same. However, today, only those whose acquittals have been reversed by a High Court to become death sentences are entitled to the same, while those whose sentences are enhanced from life imprisonment to death are not. Perhaps this is one of the answers to former President APJ Abdul Kalam’s wonderment as to why all the people on death row were of the “poorest of poor”.
This last factor is also important, given the fact that many among the poor cannot afford good legal representation, and are instead forced to do with government appointed lawyers who are either rookies or couldn’t care less, or both. On the other hand, the rich get away with impunity.
The current legal stand on commuting sentences is a horrible jumble when it comes to factors like delays and mental incapacity. The court has refused to commute the sentences of those who have been part of the judiciary’s regular process of prolonging proceedings till the accused has gained white hairs, even if some of them have served the old standard of a life sentence in jail. Even if some of them may go mad after this treatment, we still execute them, even though the point of punishing them is lost on them (as is the point of us punishing them as a result).
Lastly, I would like to state clearly that while I am firmly in favour of abolishing the death penalty when it comes to normal so to speak crimes, I am a staunch supporter of it when the crime in question is on a larger scale, that is, it can fit within the framework of a crime against humanity, a war crime, or genocide. But till then, especially given the innumerable lacunae in our judicial system, it is far wiser and far more just, to try and reform the person.

As the famous author Robert Jordan puts it, “Nobody can have fallen so far in the Dark that they cannot walk again in the Light”

-Vakasha Sachdev
[1] Santosh Kumar Bariyar v State of Maharashtra 2009 (7) SCALE 341.