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The complexities of the death penalty

The death sentence remains a highly controversial topic: Its supporters believe they deter crimes while those against it argue that nobody has the right to take away somebody’s life.

Pramod Kumar Dubey

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death penalty
The complexities of the death penalty

“It is better that ten guilty persons escape than that one innocent suffers.” -Blackstone’s formulation The abolishment of execution of capital punishment in practice or merely in law has been conducted in more than 70% of the countries globally and yet, only about 35 countries practice death penalty for individuals who are either sentenced to death or execute as per the punishment awarded by the courts for the plethora of crimes after following the due process of law and imposing damnation in consonance with the prevalent statutes. In India, 18 Central legislations encompass 59 provisions which prescribe capital punishment. According to information on capital punishment, as many as 724 detainees have been executed in India since 1947. Half of these are represented by Uttar Pradesh, trailed by Haryana at 90, and Madhya Pradesh with 73 executions.

The Death Penalty Project further reports that out of all the statutes that provide for the death sentence, only 7 of the said legislations were invoked to sentence the prisoners. The Indian Penal Code, 1860 was invoked most often to sentence individuals to death and it includes convictions under terrorism laws. Broadly, the heads of offences under which the prisoners were sentenced to death included Murder, Sexual Offences (including cases where the charges of murder were coupled with rape or otherwise cases involving a repeat rape offender punishable with death under Section 376E of the Indian Penal Code), Kidnapping or Dacoity with murder.

Surprisingly, there was one death penalty imposed under each, the Border Security Force Act, 1968, and the Army Act, 1950 respectively.  However, capital punishment or death sentence continues to remain a highly controversial topic worldwide. Supporters of capital punishment believe that such punishments deter crimes and, more often believe that certain gruesome or heinous crimes eliminate a person’s right to life. On the other hand, advocates of abolishing capital punishment argue firstly, that nobody has been bestowed with the right to take away somebody’s life. Even the State, which is the ultimate guardian of the right to life, cannot take a life for any reason. Secondly, the threat of capital punishment will not deter a person from committing a crime. For instance, even post the conviction and the execution of offenders in the infamous 2012 Delhi gang-rape, there has not been any significant drop in the cases of crime against women. Perhaps capital punishment is not much of a deterrent. This is the likely reason as to why we continue to hear about incidences such as the 2019 Hyderabad gang-rape or the very recent Bois Locker Room incident even after the execution of offenders in the Delhi gang-rape case. That said, the death penalty per se involves complex moral and legal questions such as the sanctity of the penological justifications for the capital punishment, or the evidentiary, procedural and sentencing related issues in judicial proceedings, or the mental health of accused amongst issues such the socio-economic background of accused persons and their ability to access justice, including the adequate legal representation required to deal with such cases at all levels.

A well-balanced criminal justice system mandates a strong correlation between the justification of punishment, the extent of the substantive law, and the corresponding procedures required to determine guilt. These justifications, which include deterrence, retribution, prevention, rehabilitation, and incapacitation, are paramount to understand the basis of imposing death sentence. The most commonly expressed justification provides that capital punishment acts as a “deterrent” to crime. However, such efficacy has been challenged by numerous comprehensive empirical studies that have categorically denied any correlation between the rate of crime and the death penalty, including the Death Penalty Project. Interestingly, there were about 8 executions for murder between 1990-2000, however, the incidences of murders constantly increased from 35,045 to 37,399. On the contrary, while the incidences of murder decreased from 37,399 in 2000 to 33,335 in 2010, only one person was executed in the entire period. A similar situation persists in relation to sexual offences, i.e., even after introducing capital punishment, there is a sharp escalation by 31% from 2017 to 2018 in crime against women as per the data of the National Crime Records Bureau (NCRB). Similarly, Retribution or the Just Deserts theory, which is often viewed as society’s “revenge” for moral wrongdoing by an individual provides that capital punishment is an acceptable punishment as those individuals who commit such offences should be executed in retribution for their actions and such retribution aptly encapsulates the justice for the victims of such crimes. Simply put, Retributivists justify capital punishment under the principle of Lex talionis, translating to Matthew 5:38-42, “An eye for an eye, a tooth for a tooth.”

However, the primary concern is that whether the state, the guardian of an individual’s right to life and liberty should be allowed to take away a human life at all? Or in other words, whether a motive like revenge befits the justice system? In the 21st century, in light of the ever-evolving jurisprudence and criminology, most states are moving towards restorative justice, rather than justice motivated by retribution. It is also pertinent to mention that in any criminal justice system there is a big vacuum for ‘errors and biases’, i.e., public outrage and media influence, the inability of investigating agencies to collect entire evidence among others. With a high degree of margin of error coupled with a lack of comprehensive measures to ascertain whether execution is appropriate, the justification for “retribution as revenge” stands on thin ice. Apart from the complexities in the penological justifications, there are numerous legal challenges that need consideration, particularly in cases where accused persons are facing capital punishment. The most prominent problem is that the entire process involving capital punishment remains highly discretionary and subjective. Undisputedly, there are innumerable factors that are considered before imposing capital punishment. Factors such as public outrage and media trial (particularly in crimes against women), socio-economic biases can lead to harsher sentences including death penalty. So much so, the decision of the President to commute a death sentence also remains highly subjective.

The subjectivity of the entire process is precisely highlighted by the case of Harbans Singh (1982). In this peculiar case, all three convicts were sentenced to death but eventually were met with different outcomes. In this case, Harbans Singh, Kashmira Singh and Jeeta Singh, whose death sentence was affirmed by the High Court preferred their respective appeals to the Supreme Court independently, at different points of time. While, the petition filed first, i.e., of Jeeta, was dismissed in 1976, the petition filed by co-convict Kashmira was allowed and the punishment was commuted to life imprisonment by another bench comprising stalwarts Justice Bhagwati and Justice Fazal Ali. Soon after the commutation, the third accused, Harbans also approached the Supreme Court for commutation of his death penalty, but unfortunately, his petition was dismissed by a bench comprising of Justice Sarkaria and Justice Singhal. After exhausting all remedies, death warrants were issued for the executions of Jeeta and Harbans Singh. As a last resort, Harbans Singh again preferred a writ before the Supreme Court against the death warrant on the ground that co-accused Kashmira’s sentence was commuted and parity mandates that his sentence is commuted too.

The court stayed his execution. When the writ petition filed was finally considered by the Supreme Court, it commuted his sentence to life imprisonment, but unfortunately, it was too late for Jeeta Singh, who was executed on the scheduled date as per the death warrant as he did not challenge the death warrant. The primary underlying problem is a lack of access to justice and prisoners on death row including competent legal representation at all stages. Firstly, there are numerous restrictions on getting access to prisoners on death row and even then, the meetings are in a monitored/ controlled system causing immense hardship for lawyers and prisoners to prepare their defence from the first instance. Moreover, it is also relevant to note that many counsels, especially those specialising in the appellate jurisdiction often discount the need to visit their clients in prison, which should be mandatory in cases punishable by death. Apart from proper instructions and building a strong legal defence, such visits also enable the counsels to evaluate the physical and mental health of their client, which is of utmost importance in wicked and gruesome crimes.

Another issue that requires consideration is the reliability of forensic evidence. Complexities of the admissibility and veracity of electronic evidence and forensic evidence play a pivotal role in death penalty cases. However, considerations pertaining to the chain of custody, the possibility of tampering or planting evidence, and the inability of expert evidence to explain certain occurrences are often overlooked which bring the sentence awarded under scrutiny. Another crucial element in sentencing the death penalty includes the arbitrariness in mitigating factors. Mitigation involves collecting evidence in respect of the offender’s past antecedents to assess the behaviour of the convict and to inspire compassion with the judge, mitigating factors include physiological and psychological issues, social and economic background of the offender amongst others. It is the duty of the defence counsel as well as the prosecution to present the aggravating or the mitigating circumstances before the court at the stage of sentencing. However, there is vast ambiguity in the guidelines as to what may be considered as mitigating circumstances.

All in all, the death penalty poses complex legal and moral issues that necessitate the urgent need to revisit such a punishment. There exists a strong need for us to understand that unlike the colonial era, justice is fundamentally different from vengeance. The very basis of imposing capital punishment has been comprehensively challenged over the years. Furthermore, the inherent prosecutorial challenges the very sanctity of each sentence of death and it is therefore only in the interest of justice that such punishments are repealed. The author is a practising lawyer in Delhi. Views are personal.

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GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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