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Stab in the dark? Need for sentencing guidelines in India

Vishavjeet Chaudhary and Arindam Bharadwaj



Sentencing in the criminal justice system is perhaps the most important exercise in the criminal justice process. It is one where all functionaries (as defined by the Code of Criminal Procedure) as well as the victim and the convict take centre stage. In many ways it is the culmination of a number of processes and the point where law comes down on the criminal with all its strength. In fact, it is also the link between the criminal justice system and the society as justice is ‘seen’ as being done. The common law form of criminal penalty provision confers upon the sentencing judge an enormous range of choices. The scope of what we call discretion, permits imprisonment for anything from a day to one, five, ten, twenty or more years. The statutes granting such powers characteristically says nothing about the factors to be weighed in moving to either end of the spectrum or to some place between.

Sentencing Framework

The Indian Penal Code (IPC) provides for 5 types of punishment which could be awarded by a competent court, namely death penalty, imprisonment for life, imprisonment (rigorous or simple) for a specified term, forfeiture of property and fine. A competent court can impose any of these sentences, except for cases where death sentence is imposed as in such cases the death sentence imposed by the sessions court needs to be confirmed by its jurisdictional High Court. ¬The IPC and other criminal statutes provide for a discretionary system of sentencing where the maximum as well as the minimum term of sentence is provided by the statute, and the judge has the discretion to determine the appropriate sentence.

The Code of Criminal Procedure, 1973 (Cr.P.C) lays down the general procedure for post-conviction hearing on sentences. This did not exist in the Cr.P.C of 1898 but was introduced in the new Code enacted in the year 1973. Section 235 of the Cr.P.C talks about judgment of acquittal or conviction under which it states that if the accused is convicted, the judge shall hear the accused on the question of sentence and then pass sentence on him according to law. Section 325 of the Cr.P.C stipulates for a situation where a magistrate, upon hearing the evidence for the prosecution and the accused, is of the opinion that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, he may record the opinion and submit his proceeding, forward the accused, to the Chief Judicial Magistrate to whom he is subordinate. Now as per Section 235, the sentencing judge is to hear the accused on the issue of sentence and then must pass the sentence accordingly. Here the judge is to adjudicate upon relevant mitigating and aggravating factors however no set guidance for adjudicating the same is provided apart from the submission from counsels and the judge’s own experience and wisdom. Even under Section 325, there is no guidance provided as to how a magistrate may form an opinion with regard to the powers of sentence available to them being insufficient to adequately punish the convicted person.

Sentence Disparity in India

 Sentence disparity has been a one of the most neglected affairs of the criminal justice system in India. The courts in most criminal appeals have often confined itself to statutory interpretation or to issues relating to fact determination, which has led to the criminal law in India becoming static, especially in terms of sentencing. Even the highest courts have failed to provide any guidance to be followed by the subordinate courts in terms of sentencing except for cases where death penalty could be imposed.

The Vidhi Centre for Legal Policy published its report in April, 2018 on the working of the Narcotic Drugs and Psychotropic Substances Act in the State of Punjab. The report specifically pointed out the disparities in sentences that were awarded to accused in pharmaceutical drug cases. For example in a case decided in the Special Court of Amritsar, an accused was sentenced to one year and six months’ imprisonment and a fine of 3,000 rupees for carrying 500 grams of dextropropoxyphene. On the contrary, in a case decided by the Special Court of Patiala, the accused was sentenced to 10 years’ rigorous imprisonment and a fine of 1,00,000 rupees for carrying 500 grams of intoxicant powder containing dextropropoxyphene. The quantity of drugs found on both persons was almost commercial quantity but in one case the judge gave a lenient sentence whereas in the other one the judge was of the view that the nature of recovery, i.e. 500 grams of intoxicating powder containing dextropropoxyphene is on the verge of commercial quantity thus the accused is not entitled to any lenient view. On examining various similar cases, the report concluded that sentencing for pharmaceutical drug offences under the NDPS Act varies dramatically across districts and even within districts. Similar is the trend across all criminal statutes as sentencing for almost all offences varies dramatically across states and even districts. A cardinal principle of criminal law is that the desert for offences similar in nature should also be similar. A system of criminal justice that allows the differential enforcement of its law is not a system that honours the principles of proportionality and equal treatment.

Dr. Mrinal Satish in his book Discretion, Discrimination and the Rule of Law, analysed cases of rape simpliciter, child rape and gang rape punished under Section 376 of the Indian Penal Code, appealed to and decided by several High Courts and the Supreme Court of India between the years 1984 to 2009. The analysis revealed that the appellate courts disagreed with the subordinate court decisions in more than 50 percent of cases. In rape simpliciter, the High Courts overturned the trial court’s finding of guilt in 44 percent of cases and altered sentences in 16 percent cases. In gang rape cases, High Courts overturned convictions in 37 percent of cases and altered sentences in 18 percent cases and in child rape cases, convictions were overturned in 29 percent of cases and sentences were altered in 20 percent cases. Interestingly the Supreme Court was more likely to disagree with High Courts, with convictions being reversed in 53 percent of cases and sentences being altered in 21 percent cases. The same trend was observed in cases of gang rape, where the Supreme Court overturned the High Court’s finding of guilt in 48 percent cases and altered sentences in 11 percent cases. However the important observation made in the study was the factors that are considered by the High Courts and the Supreme Court in deciding whether to convict and especially in deciding how to sentence the offenders. The unwarranted disparity in sentencing was primarily caused by three factors: first, courts considering stereotypes and rape myths in determining sentences; second was the inconsistent use and application of theories of punishment while determining the sentence and lastly the consideration of irrelevant factors, leading to arbitrariness.

Reasons for Discrepancies

According to Prof. Andrew Ashworth, a renowned jurist who also was a Professor of English Law at the University of Oxford, one of the major reasons for sentencing disparity is the different penal philosophies amongst judges and magistrates. Even Judge Marvin Frankel, an United States Federal Judge and a pioneer of sentencing guidelines in the US, argues that the wide and unbridled power that sentencing judges possess is unacceptable in a legal system that follows the rule of law. However this problem could be magnified exponentially in a situation where the sentencing judges had unlimited discretion to impose a sentence according to their subjective intuition, which invariably will differ and can be plagued by bias, ignorance and prejudice.

Another major reason for the existing disparity is the little sense being applied while introducing a new offence which results in an unprincipled and chaotic construction of criminal laws. Criminal statutes are often historical amalgams, with crimes and sentences being adjusted on a need to need basis or is often dictated by political pressure resulting in utter inconsistency and irrationality of penalty structure.

Commission Reports on Need for Sentencing Guidelines

In March 2013, the Committee on Reforms of Criminal Justice system, popularly referred to as the Malimath Committee, which was established by the Ministry of Home Affairs, in its report emphasised the need for having sentencing guidelines. The committee was of the view that even though the Indian Penal Code prescribes the offences and maximum and minimum punishment for the same, the judge yet has wide discretion in awarding the sentence within the statutory limit. There is no guidance for the Judge with regard to selecting the most appropriate sentence given the circumstances of the case and each judge exercises discretion accordingly to his/her own judgement. This unguided discretion has led to there being no uniformity in the judgements delivered.

Even the Law Commission of India in its 47th report, further elaborating on the same, said that a proper sentence is a composite of many factors like the nature of offence, the circumstances extenuating or aggravating the offence, prior criminal record of the offender, the age of the offender, the background of the offender with reference to education, home life, mental education of the offender, prospective rehabilitation of the offender etc. The Committee, to bring about certain regulation and predictability in the matter of sentencing, recommended for a statutory committee to lay guidelines under the Chairmanship of a former Judge of Supreme Court or a former Chief Justice of a High Court experienced in criminal law with other members representing the prosecution, legal profession, police, social scientist and women representative.

The Draft National Policy on Criminal Justice, popularly known as the Madhava Menon Committee, in its report stated that:

“Given the limited options in choice of punishments now available in the statutes and the inadequate deterrence in the sentence often imposed, there needs to be some serious rethinking on the philosophy, justification and impact of sentencing in the criminal justice administration. The quantum of fines were prescribed more than a century ago and the imprisonment in practice is reduced to a much shorter period through a variety of practices even when it is for life. Equality in sentencing is not pursued vigorously and there is no serious attempt yet to standardize the sentencing norms and procedures. The objects of punishment are not served in many cases as a result of such incoherent sentencing practices”.

The Madhava Menon Committee further recognised the need to have a radical change in the law and practise of sentencing and that a set of sentencing guidelines may be statutorily evolved to make the system consistent and purposeful.

 The Supreme Court of India on the Need for Sentencing Guidelines

Justice S.B Sinha in his judgment in the case of State of Punjab vs. Prem Sagar [(2008) 7 SCC 550], pointed out that in our judicial system, we have not been able to develop legal principles as regards sentencing and even the superior courts have just made observations to this regard but have never issued any guidelines for the same whereas other developed countries have done so.

The Hon’ble Supreme Court of India even in the famous case of Bachan Singh vs. State of Punjab [(1980) 2 SCC 684], apart from the constitutionality of death penalty, also addressed the issue of sentencing guidelines. The majority was of the view that standardisation of sentencing discretion is a matter of legislative policy and hence, it is up to the legislature to formulate guidelines if it deems fit and since the legislature had not formulated sentencing guidelines when enacting the Code of Criminal Procedure in 1973, the Court was of the view that Parliament did not want to reduce or cabin judicial discretion. The Court in the Bachan Singh case however went ahead and formulated guidelines for imposing death penalty, specifically interpreting the term ‘special reasons’ in Section 354(3) Cr.P.C., set forth what is known as the ‘rarest of rare case’ doctrine. This doctrine lists circumstances that may be considered by courts in determining whether death penalty could be awarded in a particular case or not. These guidelines were held to be not exhaustive and further were elaborated in subsequent cases. However, Justice Bhagwati, disagreeing with the majority, in his dissent in the Bachan Singh case was of the opinion that unfettered and unchartered discretion conferred on any authority, even if it be the judiciary, throws the door open for arbitrariness, for after all a judge does not cease to be a human being subject to human limitations when he puts on the judicial robe and the nature of the judicial process being what it is, it cannot be entirely free from judicial subjectivism.

 The UK Model

 The UK could perhaps be a model for moulding our sentencing policy. The well-established council of sentencing has given clear guidelines on sentencing- how sentencing is to be done in various capacities. The council also invites public consultations to ensure sentencing meets demands of public justice. The objective of the council reads: ‘The Sentencing Council for England and Wales promotes greater consistency in sentencing, whilst maintaining the independence of the judiciary. The Council produces guidelines on sentencing for the judiciary and criminal justice professionals and aims to increase public understanding of sentencing.’

There is a clear list of mitigating and aggravating circumstances- sentencing can be altered based on these. This has led to great uniformity in sentencing policy as well as practices. The discretion within which the courts can sentence is governed by guidelines applied across the country in a uniform way.

The Coroners and Justice Act, 2009 also imposes a wide range of duties on the new council in addition to the obvious function of producing guidelines. The Council also has to publish a resource assessment of, as well as monitor, the operation and effects of its guidelines. In addition it has to draw conclusions about the factors which influence sentences imposed by the courts, the effect of the guidelines on consistency in sentencing and the effect of the guidelines on public confidence in the criminal justice system.


The question, is sentencing is an art or a science, is an elusive one. The answer to who should be sentenced, to what effect and for how long lies in a rationalised system. Inputs from the society, functionaries of the justice system as well as experts on the most effective sentencing policy is crucial. The purposes of sentencing- why we punish in the first placeshould be served in each sentence- no matter how small or large.

There is a need for developing a consistent policy relating to sentencing in India to curb the evil of disparity in sentencing, as also emphasised by several commission reports and Supreme Court judgments. In this regard, a sentencing commission, like the one in the UK, can be set up to formulate a policy and draft guidelines to ensure consistency in sentencing in India. A Sentencing Commission for India, like the one suggested by the 47th Law Commission Report, comprising of former Judges of both Supreme Court as well as of several High Courts experienced in criminal law with other members representing the prosecution, legal profession, police, social scientists and women representatives can be set up as a statutory committee to lay down sentencing guidelines, which would serve the larger interest of the society while not compromising on the principles of reformation/retribution and also would be in consonance with the spirit of the Indian Constitution and fundamental principles of criminal justice.

(Vishavjeet Chaudhary is a Barrister-at-Law (Inner Temple), Door Tenant at Lamb Building (A London based Barrister Chambers) and Advocate at the Supreme Court of India.. He is LL.B. (Hons.) (University of Kent); and LL.M. (Cambridge University) Arindam Bharadwaj is a Final Year Law Student at the Jindal Global Law School, Sonepat, Haryana.

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Legally Speaking




The Gujarat High Court in its recent order in the case State of Gujarat Versus Balvantsinh Amarsinh Raj observed while upholding the acquittal of a man under Section 135 of the Electricity Act for alleged unlicensed connection has made it clear that possession/ownership of the property in question has to be factored into consideration.

The bench comprising of Justice Ashokkumar Joshi observed and rejected the State’s appeal on several grounds, which includes the fact that the Police did not call for any certificate or documents to show the ownership or possession of accused for the so-called place of occurrence.

The Court held that the order of the trial court has meticulously considered all the depositions of the witnesses and the state has failed to prove the case against the Accused-Respondent and the trial court’s order did not warrant any interference.

It was observed that while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at by any reasonable person would not be arrived at.

The Deputy Engineer of the South Gujarat Vij Company Ltd lodged a complaint accusing the Respondent of theft of electricity. Alleging, the Applicant did not have a regular connection and he had obtained illegal direct connection from low transmission line. The allegations were made that an average bill of Rs. 2 lacs were prepared and issued to the Accused which was not paid by him and thus an instant complaint was filed.

The Trial’s court order is opposed by the APP by relying on the deposition of several witnesses who were said to be ‘reliable and trustworthy’ and other documentary evidence.

It was argued by the respondent that it was not proved by the Prosecution that the ownership of the premises belonged to the Accused. However, there was no need to interfere with the judgement order.

It was noticed by the bench of Justice Joshi that the lineman at the respective time was cross-examined and had admitted that he had no knowledge of the number of persons who were residing at the place. In the market, the captioned wire which was confiscated was easily available and did not contain any piece of marking paper. Further there was no PVC/Wire wiring at the residential place of the Accused person. It was also admitted by the Panch Witness that theft was not possible through the captioned wires. Another Panch Witness had turned hostile.

It was also admitted by the In-Charge PSO at the Police Station that he merely registered the offence and had done ‘nothing’ except for this. Consequently, there was also no evidence for the possession or ownership of the place of occurrence by the Accused.

Accordingly, the bench dismissed the State’s appeal.

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Legally Speaking

Verbal cruelty in marriage

Pinky Anand



Marriage is a union of two people. It is oft repeated and probably one of the most recognized advice about marriage that we receive. It is probably only topped by the statement ‘Marriage is a compromise’. Its strange to me, that what is considered a divine union of two people is also considered a compromise, but facts rarely lie. It is true that I have seen maybe a little bit more than my fair share of divorces and pushed some along the way, and maybe that is why probably I can say that I might be in a slightly better position to extrapolate on marriage and its various facets.

At the base of it, marriage is two individuals and very often their families trying to create a cohesive unit. The problem comes, as it does in almost all other human interactions, when people are not compatible. We bring two individuals, sometimes from various different backgrounds and a different value system into a bond where they are expected to not just like each other, but societally expected to love each other till death do them part. Very often it works, marriages are without doubt the foundation of our society, the basic unit on which our cultures function and they are essentially the same in all cultures, mostly monogamous and come with societal expectation of a family.

But what about when it does not work. It is almost impossible for every couple to get along with each other, especially when very often the couple themselves seem to have little to no say in whom they marry. The individual expectations give way to what your family thinks is the best match, or even if you choose your partners yourself, young couples are sometimes woefully ill informed of what a marriage actually is beyond the honeymoon phase.

Today marriage is under a scanner, much deeper than it has probably ever been. In my humble opinion we are now at a stage where we are trying to box conversations and categorise them into ‘cruelty’ or ‘not cruelty’. The latest judgment isolated reporting of the Kerala High Court stating that ‘comparing wife to other women is mental cruelty’ gives credence to my statement. A bare reading of the judgment will ensure that the reader knows that the question before the court was not simply the fact that the husband was comparing his wife to other women.


Cruelty is an extremely subjective term, which on one hand is clear as day, specially when there is incidence of physical abuse, or mental cruelty in the form of abusive language or coercive control of women, on the other end it is hazy. Cruelty can be anything perceived as being cruel. Essentially it would depend on the dynamics of the couple themselves, over what they are willing to adjust to, or compromise with. I have seen women, who although do not like that their husbands compare them with other woman, do not really consider this as a dealbreaker. It is probably for this reason itself that the legislature in its wisdom has refused to quantify and define what cruelty is. It has left it to the wisdom of the courts to decide on a case to case basis of what might constitute mental cruelty. As has been done by the Kerala High Court, where the lady in question had been married for 13 long years but had stayed in the matrimonial relationship only for 1 month. When we read this judgment we realise that rather than just interpret this one statement of the husband, the Court was looking into an entire relationship that started in 2009, it looked at various allegations including non consumation of the marriage.

The first interpretation for cruelty and what might constitute cruelty was given by the Supreme Court in Sobha Rani vs Madhukar Reddi (1998) 1 SCC 105 where the Supreme Court while dealing with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act opined that although the provision does not define cruelty, cruelty may mean physical or mental cruelty. In Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 it was further extrapolated that cruelty cannot contain within its ambit differences between the couple because those arise in day to day matrimonial life.

As society and its dynamics have changed, so have the Courts’interpretation of cruelty. What initially was considered to only be physical cruelty has now morphed into an interpretation where divorce on the grounds of cruelty may be given on the basis of mental cruelty. In these cases, the Courts will consider the entire background of the marriage and its various facets and try to understand how the action alleged to be cruel has affected one of the spouses. Instances which have been identified as cruelty range from adultery to calling the spouse fat, asking the spouse to live separate from his old aged parents, public embarrassment and humiliation amongst others.

The need for the Courts to enter such private conversations comes from the fact that India believes in the ‘fault’ theory for divorces, which essentially means that to get a divorce one party has to be at fault in the marriage. It is only under these specific ‘faults’ as enumerated under the Acts that divorces can be granted except when petitioning for divorce by mutual consent. The problem with fault theory is that it takes away from the fact that the breakdown of a marriage is not necessarily due to a fault. It refuses to recognize the idea of ‘irretrievable breakdown’. What happens in these matters is that very often the Courts in their equity and justice try to grant the parties divorce, couching specific acts as ‘cruelty’, and while appropriate for those specific and particular cases, they are not suitable as precedent. Since the High Courts and the Supreme Court judgments become binding on lower courts, this creates a difficulty in interpreting the law or an action as ‘cruelty’ when sometimes it is just a disagreement between couples. This is further exacerbated by the media reporting only the ‘juicy’ bits of the judgment as has been done in the case of the Kerala High Court judgment.

As our society advances, and our laws are interpreted dynamically, I believe we as individuals and as a society should admit that sometimes marriage do not work, not due to faults, but simply because the individuals needs and choices are different from their spouses. It is time for us to understand and recognize that marriages are not made in heaven, they are made on earth amongst humans and sometimes they break down.

The author has served as the Additional Solicitor General of India.

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Legally Speaking


The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.



The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

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Legally Speaking




The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

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Legally Speaking




On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

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Legally Speaking




The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

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