Categories
History Human Rights

The marital exception to rape: How to make a crime disappear

SayakDasguptaSir Matthew Hale, one of England’s greatest jurists, was a simple, humble, and fastidiously honest man. In fact, so unimpeachable was his character that, despite being a royalist who defended the opponents of the Commonwealth of England during the English Civil War, he was still appointed a justice of the common pleas by Oliver Cromwell when the Commonwealth came to power. When the Restoration happened, the King appointed him Chief Baron of the Exchequer, even though he had held office in the government of his mortal enemies. Hale, it is said, had no desire to receive the knighthood, so he literally had to be tricked into it (Lord Clarendon invited Hale to his house where the King was waiting to knight him on the spot).

For all his virtues, though, Hale was as much of a fusty old antiquarian when it came to women, as you would expect from a privileged, white, devoutly Puritan Englishman from the 1600s. In a letter to his granddaughters, he wrote longingly of a time when “the education and employment of young gentlewomen was religious, sober, and serious, their carriage modest and creditable was their habit and dress” and “when they came to be disposed of in marriage, they were themselves a portion whether they had little or much, and could provide for and govern a family with prudence and discretion, and were great helps to their husbands, and knew how to build up a family, and accordingly were instruments in it”. He bemoaned how times had changed and “young gentlewomen learn to be bold, talk loud and more than comes to their share, think it disparagement for them to know what belongs to good housewifery, or to practise it, make it their business to paint or patch their faces, to curl their locks, and to find out the newest and costliest of fashions.” He wrote that he would never allow his granddaughters to be like this, that he would train them to be “good wives and better portions to your husbands than the money you bring, if it were double to what I intend you, for you will be builders up of a house and family, not destroyers of it”. Above all, he wanted them to be “good examples to others, and be thereby a means to take off the reproach that justly enough lies upon the generality of English gentlewomen, that they are the ruin of families”.

Like most men of the time, Hale saw women as some sort of loveable hybrid between a trainable pet and an obedient servant, who should be strictly controlled lest they go out of hand. It is perhaps somewhat revealing that after his wife died, Hale married his housekeeper, Anne Bishop, whom he described in his will as “most dutiful, faithful and loving”, words that can also be used to describe an adoring butler or a loyal dog.

No longer enough to create further exceptions”

Four centuries of faith in wedding vows forming permanent consent for sex. Mathew Hale (left), when he was Chief Justice of the King's Bench and Union Minister for Women and Child Development, Maneka Gandhi. Maneka Gandhi's image is from the Press Information Bureau.

Four centuries of faith in wedding vows forming permanent consent for sex. Mathew Hale (left), when he was Chief Justice of the King’s Bench and Union Minister for Women and Child Development, Maneka Gandhi. Maneka Gandhi’s image is from the Press Information Bureau.

Perhaps Hale’s most famous work as a legal scholar is the Historia Placitorum Coronæ or The History of the Pleas of the Crown, which was published in 1736 (60 years after his death, despite an instruction in his will clearly stating that none of his manuscripts were to be published posthumously) and is considered a seminal work in the development and evolution of common law. It was in this book that he wrote the now (in)famous line that had been used until relatively recently in most common law countries to defend marital rape:

“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

The husband, then, by virtue of marriage, gained complete right over his wife’s body. Wedding vows were meant to be a form of permanent consent for sex. It would not be a stretch to say that for most women at the time, the bond of marriage was akin to bonded servitude mixed with sexual slavery.

This would be the norm in England for the next two centuries, but changes in social attitudes towards marriage began to make the marital exemption to rape seem increasingly more ridiculous with every passing year. In 1990, the Law Commission in England released the Working Paper No. 116 on Rape within Marriage in which it recommended unequivocally that the exemption should be abolished. But the final death knell for the spousal exemption came in 1991 with the House of Lords’ landmark decision in R. v R, in which the court held that “Hale’s proposition is based on a fiction and moreover a fiction which is inconsistent with the proper relationship between husband and wife today.” The judges observed that “courts have been paying lip service to the Hale proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply. This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes,” but then added the powerful line: “There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour.”

On the question of whether the court should step aside to leave the matter to the Parliamentary process, the House of Lords stated: “This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”

RvR_HouseofLords_ChiefJusticeLordLane

With these words, England removed the marital exception to the crime of rape. In the United States, states had begun to remove this exception since the 1970s, and by 1993, all 50 states had done so. By the dawn of the 21st century, marital rape was a crime in most European nations. Our neighbour Bhutan had declared it a crime as far back as 1996, and Nepal followed suit 10 years later. Today, marital rape is a crime in the majority of the countries in the world. India, however, chooses to remain on the list of countries where it isn’t; a list that includes Afghanistan, China, Eritrea, Iran, Iraq, Libya, Pakistan and Saudi Arabia.

In the wake of the horrific events of December 16, 2012, the Justice J.S. Verma Committee reflected long and hard on how our criminal law system deals with various kinds of sexual violence perpetrated on women and children. Nearly six pages of its Report concentrated on the problem of marital rape. It recommended that the exception for marital rape be removed (Exception 2 to Section 375 of the Indian Penal Code, 1860 states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”), and that the law ought to specify that a marital relationship between the perpetrator and the victim cannot be used as a defence against rape and that it should not even be regarded as a mitigating factor justifying lower sentencing for rape.

MaritalExceptionToRapeIPC

The ordinance that was drafted on the basis of the Report included many of its recommendations but left out some of the most important ones, perhaps chief among them the recommendation on marital rape. Defending the ordinance, Union Finance Minister P. Chidambaram said that issues like marital rape were difficult and that the government needed more consultations. This was, to put it mildly, perplexing. In modern times, the criminalisation of marital rape seems to be a very simple, logical, rational conclusion. In fact, one needs to perform several extraordinary feats of mental gymnastics to justify and legitimise the opposite. How is it that those who maintain that rape should attract the harshest punishment for the perpetrator suddenly find the act acceptable when a husband does it to a wife, as if a wedding is a Harry Potter-esque invisibility cloak that makes the crime disappear?

As a response to the government’s hedging on the issue, we posted the following comic on Facebook on February 9, 2013:

WSDP - Marital Rape

Now, I confess there are problems with this comic – it’s a little simplistic, and also Einstein might not have been the best choice to deliver this lesson as he was hardly the greatest husband in the world – but, the point was that it does not, or should not, take a genius to understand why the marital exception to rape should be removed.

A family that disrespects individual autonomy together…

And now, it seems the marital exception is one of those things the UPA and NDA governments agree upon. Well actually, while the former claimed that they were at least considering it, the latter seem to have ended the conversation altogether. Maneka Gandhi, the Minister for Women and Child Development has said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.” This is a stunning departure from her position on the marital exception to rape just last year and the most puzzling argument I have ever heard about a legal issue. What does illiteracy or poverty have to do with amending a law that demonstrably causes physical and mental trauma to individuals? Did social customs and religious beliefs of some people stop the legislature from making laws against sati, child marriage, dowry and caste-based discrimination?

MaritalRape_CriminalLawAmenedment2012

The “mindset of the society to treat the marriage as a sacrament” point is an old one. The claim is that marriage is a sacred bond between a man and a woman (only between a man and a woman), and that the state has no business interfering in the domestic affairs of a married couple. This argument is woefully flimsy. Laws on domestic violence and divorce would not exist if the state did not think legal intervention was necessary even in a marriage.

A similar argument was used in a report on the recommendations of the Justice Verma Committee prepared by the Department-Related Parliamentary Standing Committee on Home Affairs and presented in both houses in March, 2013. It stated that while some members had suggested that Section 375 of the Indian Penal Code should allow “some room for wife [sic] to take up the issue of marital rape”, that “no woman takes marriage so simple [sic] that she will just go and complain blindly” and that “consent in marriage cannot be consent forever”, several members “felt that the marital rape [sic] has the potential of destroying the institution of marriage.” The report went on to say that “In India, for ages, the family system has evolved and it is moving forward. Family is able to resolve the problems and there is also a provision under the law for cruelty against women. It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice.”

What this suggests is mind-bogglingly terrifying. It seems to assert that the foundation of an Indian family is not based on trust, love, equality, understanding, cooperation, mutual respect and interdependence. It is based on a skewed power structure where one partner gets to inflict violence on the body and mind of the other, where the success of the relationship depends on how much the partner with less power can endure. Imagine being punched in the stomach by your brother and then being told that you should just suck it up because the law says when your sibling hits you, it’s not assault. Now imagine that he beats you up whenever he pleases and you are told that this is not a crime being committed repeatedly on your body because surely, as a family, you can work things out. If you report him to the police, the family system in India will crumble. Surely, the preservation of the “Indian family” is more important than the physical and mental trauma being caused to you.

The Standing Committee consisted of 29 members at the time, none of whom had any specific experience or expertise in women’s issues. Only 3 of the members were women. One of them was Dr. Kakoli Ghosh Dastidar, a Trinamool leader who in December, 2012 had said that the gang rape of Suzette Jordan in Park Street, Kolkata “was not at all a rape case. It was a misunderstanding between the two parties involved between a lady and her client,” thus insinuating that Jordan was a sex worker. When the report was published, a dissenting note was appended to it, and among other things, it condemned the Standing Committee’s position on marital rape as unconstitutional and contrary to the Justice Verma Committee’s recommendations. The note was given by only two members of the Standing Committee: D. Raja and Prasanta Chatterjee, of the Communist Party of India and Communist Party of India (Marxist), respectively. No other member recorded dissent.

India’s relationship with its colonial era laws is simultaneously confounding and tragicomic. On the one hand we puff up our chests with pride when we think of our freedom struggle and victory over our colonial oppressors, and on the other hand we cling stubbornly and blindly to their archaic laws, which have no place in modern times – laws that even they have done away with. But what is truly depressing is that we undervalue women so much that we would rather grasp at half-baked fictions and outdated notions of family than address the real harm being done to real individuals in real time. We are only too happy to declare that our society is too primitive to accept modern ideas and then sacrifice the safety of women on the altar of our own apathy. Yes, laws are often only amended after there has been a change in social attitude towards the issue in question, but in India, we have also had a long history of enacting laws as instruments to bring about such social change. We can either embrace that history and move with the times or throw in our lot with a man who died four centuries ago and a belief that should have died with him.

(Sayak Dasgupta wanders around myLaw.net looking for things to do.)

Categories
Human Rights Litigation

The High Court as trial court in death penalty confirmation proceedings

DeathPenaltyProcedure_Lubhyathi_Nishant_Amrutanshu_DPLC

Is a death sentence rendered by a sessions court final? Are there any checks on the powers of a sessions court over such an important decision? Can the High Court call new evidence in a death penalty proceeding? This note is an attempt for more clarity on these questions. The Code of Criminal Procedure, 1973 (“Code”) under Section 28(2), directs that a death sentence can be passed only by a sessions judge or an additional sessions judge. Further, the Code ensures that a sentence of death passed by a court of sessions (comprising either the Sessions or the Additional Sessions Judge) shall be subject to confirmation proceedings before the High Court exercising jurisdiction over it. Therefore, it is safe to conclude that the death sentence rendered by a sessions court is not final and is subject to the automatic supervision of the relevant High Court.

Sections 366 to 371 of the Code outline the confirmation proceedings before the High Court. In Bachan Singh (1980), the Apex Court noted that these provisions ensure that “the entire evidential material bearing on the innocence as[or] guilt of the accused and the question of sentence must be scrutinised with utmost caution and care by a superior court” considering that the outcome of the case would determine the life of an individual. It is interesting to note that similar confirmation provisions were also found in the old criminal procedure code of 1898 from Sections 374 to 380.

The confirmation process

Once the Sessions Court passes the death sentence, it is bound to refer the proceedings of the case to the High Court under Section 366(1) of the Code. Under Section 366(2) of the Code, a sentence of death cannot be executed unless it is confirmed by the High Court. As opposed to the 1898 Criminal Code, the 1973 Code includes a provision that authorises the Sessions Court to commit the convicted person to judicial custody (that is, jail). The Supreme Court has clarified in Sunil Batra (1979) that this custody cannot be considered equivalent to an imprisonment. The logic behind the provision is probably that the incentive to evade the legal process for a convicted person (sentenced to death by a sessions court) is very high and therefore the provisions seeks to address scenarios wherein the convict is not available for execution of the sentence.

It has been held in a catena of cases, including in State of Maharsahtra v. Sindhi and Jumman v. State of Punjab, that the confirmation proceedings are a continuation of the trial at the Sessions Court. Support for such an understanding can be derived from the fact that Section 366(1) states that the “proceedings” shall be submitted to the High Court unlike the appellate provisions where the factum of appeal lies in the conviction or acquittal or the enhancement of the sentence (Section 374 read with Section 386). There is however, a fundamental distinction between the confirmation proceedings at the High Court and a trial at the Sessions Court. While the Code, under Section 273, creates a general rule that all evidences taken in the course of the trial shall be taken in the presence of the accused, Section 367 states that the general rule in case of confirmation proceedings is that, unless the High Court feels otherwise, the presence of the convicted person is not required even when new evidence is taken. The Supreme Court has suggested that the presence or the absence of the accused does not make a difference at the confirmation stage since the High Court are duty bound to give the matters its utmost and undivided attention. Here, it is pertinent to mention that under the appellate jurisdiction, the Code in Section 391(3), grants the right to an accused (or his pleader) to be present when additional evidence is taken.

The Code also specifies that the confirmation proceedings should be conducted at least in front of a division bench of the High Court. Should there be any difference of opinion, the matter will be referred to a third judge whose decision will determine the final outcome of the case.

In death penalty cases, the normal practice is that the Sessions Court refers the matter for confirmation to the High Court and additionally, the convict files an appeal on his conviction under Section 374(2) of the Code. According to Section 368, the order of confirmation is not given until the appeal is disposed off by the high court. It is also clarified that there is no obligation on the convict that he must appeal his conviction to the High Court. Even if he does not, the constitutional court is duty bound to re-assess the death case.

Powers of the High Court

As discussed above, the power of a high court in confirmation proceedings is considered to be a continuation of trial. It is well settled that in a reference under the confirmation provision, the High Court has to consider the evidence afresh and arrive at its own independent findings with regard to the guilt of the accused, independent of the views of the Sessions Judge. At the same time, the Supreme Court has also cautioned that the conclusion arrived at by a sessions court cannot be completely overlooked.

Section 368 delineates the powers of a high court during a confirmation proceeding. The High Court can do the following: confirm the death sentence, pass any other sentence, annul the conviction but convict the accused of any other offence, order a new trial on the same or amended charge, and finally may also acquit the person. These powers look similar to the powers of the appellate court under Section 386. However, there are some essential differences between the confirmation and appellate proceedings.

Confirmation proceedings versus appellate proceedings

There are three major differences between the power of the High Court when it is seized of a confirmation proceeding and an appellate proceeding under the Code.

First, the reference to confirmation is automatic whereas appeal proceedings are only brought before the court if the distressed party files an appeal (and has a right to file one). A corollary of this situation is that in a criminal appeal, the court can dismiss the appeal if it decides that there is no ground for interference without examining the entire record. On the contrary, the High Court is duty bound to consider the entire evidence on record while confirming a death sentence.

Second, the confirmation court has a power to order further inquiry or take evidence (itself or by a lower court) without indicating any reason for doing so (under Section367(1)) whereas under Section 391(1), an appellate court has to provide written reasons to justify its act of taking new evidence (itself or by a lower court). Further, Section 391 does not empower the High Court sitting in the criminal appellate side to order further inquiry.

Finally, the appellate court has a certain leeway in not providing elaborate reasons should it agree with the findings of the trial court which is absent in confirmation cases. In confirmation proceedings, as written earlier, the High Court needs to come to an independent finding regarding the guilt of the accused and the sentence.

Special legislations and confirmation proceedings

Section 4(2) of the Code empowers the legislature to create separate trial proceedings for offences that are not part of the Indian Penal Code, 1860. There is therefore, a possibility that automatic confirmation proceedings available under the Code could be excluded. The (now repealed) Terrorist and Disruptive Activities (Prevention) Act, 1987 explicitly negated the role of the High Court and provided a direct right to appeal on both facts and law (not confirmation) to the Supreme Court under Section 19. Yakub Memon was hanged under this law and therefore, did not get the benefit of the confirmation proceedings at the High Court. Under the Prevention of Terrorism Act, 2002 (also repealed), the Parliament provided a right to appeal to the High Court both “on facts and on law” which was similar to the confirmation proceedings (but not the same). The same model was followed in the Unlawful Activities Prevention Act, 1967 through the National Investigation Agency Act, 2008 under Section 21. In POTA and UAPA, the cases are not automatically referred to the High Court, rather they must be appealed. The major difference lies in the fact that in the special laws, the appellate court only looks at the points raised by the appellant and does not examine the entire record, unlike a confirmation proceedings which operates independently of an appeal. At first glance, this situation is counter intuitive. One expects increased safeguards when special laws provide for prolonged period of police custody and the reversal of the burden of proof but the opposite situation prevails.

(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi. Amrutanshu Dash is a student in his fifth year at the same law school. The Clinic was an intervenor in Yakub Memon’s case. The views expressed in this article are those of the authors alone.)

Categories
History Human Rights

A brief history of buggery

SayakDasguptaThe year is 1533 and it is a really strange time to be an English citizen. Henry VIII, the larger-than-life king of England, has begun to develop a holier-than-thou attitude. He believes he knows what god wants, despite unabashedly doing the very thing that the Catholic Church insists goes against divine will. He has already annulled his marriage with his long-suffering first wife, Catherine; romanced and possibly fathered children with her lady-in-waiting, Mary Boleyn; and then almost instantly grown tired of her and married her sister, Anne Boleyn. The Catholic Church has not taken kindly to this nearly blasphemous violation of canon law and has excommunicated him. Although Henry will sever all ties with the Roman Catholic Church and establish the Church of England, pompously declaring himself its Supreme Head, he will remain at heart a devout Catholic, adhering fervently to the core tenets of Catholicism. He believes god has bestowed upon him the “divine right of kings”, completely absolving him from being answerable to any temporal, earthly authority. He swiftly introduces this concept to the non-codified constitution of England. He truly believes he knows god’s will.

John Atherton, Bishop of Waterford and Lismore, was hanged for sodomy. The anonymous pamphlet (above) is from 1641. Public domain.

John Atherton, Bishop of Waterford and Lismore, was hanged for sodomy. The anonymous pamphlet (above) is from 1641. Public domain.

Which is perhaps the reason he has, with the help of his wily chief minister Thomas Cromwell, got the Buggery Act passed by the Parliament. It defines buggery as an unnatural sexual act against the will of god and man. And since Henry is in the best position to know the will of both god and man, he decides that the punishment should be death. Moreover, the convicted offender’s property and possessions should go not to his kin, but to the government. The real novel piece of legislation here is that even members of the clergy are not exempted from this law – a stunning declaration, given that in these times, priests and monks are not executed even for murder. Henry now goes about executing monks and nuns with a divine zeal and gaining monastery lands in the bargain. Of course he didn’t draft this law for the land – that’s just the spoils of a righteous war. Where there’s a divine will, there’s a bloody way.

Twenty years in the future, Queen Mary will repeal the Buggery Act, but then ten years after that, Queen Elizabeth I will bring it back. And so it will remain till 1828 when it will be finally repealed for good by the Offences against the Person Act. But not much will change. Buggery will remain a capital offence under the new act.

Fast forward to 1835. In England James Pratt and John Smith become the last British men to be hanged to death for the offence of buggery. In India, the First Law Commission is constituted and Lord Thomas Babington Macaulay is appointed its chairman. Lord Macaulay is the paragon of respectability, sophistication, and brilliance in British society. He has an eidetic memory and is considered a superb statesman, great orator, gifted poet, accomplished historian and expert in Greek, Roman, English, French, Spanish and German literature. But he is not without fault. By his own confession, he is completely ignorant about art and music. He is completely inept at games, sports, and physical skills, having trouble even with simple everyday tasks like shaving and tying a cravat. And he is also a product of his time. Which means he is a racist, colonialist, white supremacist, British chauvinist whose world-view is dipped in a thick, greasy, unpleasant coating of orientalism and Eurocentrism. This leads him to write things like this: “I am quite ready to take the oriental learning at the valuation of the orientalists themselves. I have never found one among them who could deny that a single shelf of a good European library was worth the whole native literature of India and Arabia. […] But when we pass from works of imagination to works in which facts are recorded and general principles investigated, the superiority of the Europeans becomes absolutely immeasurable. It is, I believe, no exaggeration to say that all the historical information which has been collected from all the books written in the Sanscrit language is less valuable than what may be found in the most paltry abridgments used at preparatory schools in England.

(From left to right) Henry VIII was King of England from 1509 until his death in 1547. Public domain. Thomas Babington Macaulay (1800-1859), as the leading member of the Law Commission, wrote the Indian Penal Code, 1860, which inspired counterparts in most other British colonies. Public domain. Congress MP Shashi Tharoor tried to introduce a private member’s bill to decriminalise gay sex by substituting some of the language in Section 377 of the Indian Penal Code. It was rejected in the Lok Sabha on December 18, 2015. Wikimedia Commons. CC BY 2.0.

(Clockwise, from left to right) Henry VIII was King of England from 1509 until his death in 1547. Public domain. Thomas Babington Macaulay (1800-1859), as the leading member of the Law Commission, wrote the Indian Penal Code, 1860, which inspired counterparts in most other British colonies. Public domain. Congress MP Shashi Tharoor tried to introduce a private member’s bill to decriminalise gay sex by substituting some of the language in Section 377 of the Indian Penal Code. It was rejected in the Lok Sabha on December 18, 2015. Wikimedia Commons. CC BY 2.0.

At around the time Lord Macaulay sits down to draft the Indian Penal Code (“IPC”), the British have just recently discovered that slavery is a bad thing, and are still debating whether the same can be said about child labour. British women are still 83 years away from getting the right to vote and contest parliamentary elections. And homosexuals are considered so disgusting that they are still being hung to death. He submits the draft of the IPC to the Governor-General in 1837, the year Queen Victoria ascends to the throne and the Victorian era truly begins. But it will take another 23 years and several further drafts for the IPC to be finalised – 23 years that the IPC will spend baking and blistering in the searing, claustrophobic oven of Victorian era prudery, conservatism, ignorance and hypocrisy. This is a time when women are the new slaves, becoming the property of their husbands, treated like mildly intelligent breeding animals with no rights to speak of. Their husbands have total ownership and control over their bodies. The concept of consent with respect to sex does not even exist. Our legal provisions on adultery and sexual offences come from this period.

The final draft of the IPC is passed into law on October 6, 1860, but it comes into operation only in January 1862. Between the passing of the law and its coming into effect, something significant happens in England. The death penalty for buggery is abolished. Unfortunately, Lord Macaulay never gets to see any of this. He dies of a heart attack in 1859 at the age of 59.

Fast forward to 2015. Britain has come a long way. Way back in 1967, it legalised homosexual acts in private between two men who were 21 years of age or older. Then in 2001, it lowered the age of consent. In 2002, it granted same-sex couples equal rights to adopt. In 2004, it made it legal for same-sex couples to enter into civil unions. And then finally, in 2014, it made same-sex marriage legal. In India, things are a little different. Shashi Tharoor seeks to introduce a private member’s bill with amendments to the section at the Lok Sabha. It is met with loud nays, jeers, mocking and bigotry. Nishikant Dubey says he is not opposing it because of any “religion, Vedas or Puranas” but because of the Supreme Court judgment. The judgment in which the Supreme Court had said it would leave it to the Parliament to change the law. The bill isn’t even allowed to be introduced. We continue to hold on to a toxic and destructive colonial legacy.

Even the ghosts of Henry VIII and Lord Macaulay are bewildered.

 (Sayak Dasgupta wanders around myLaw.net looking for things to do.)

Categories
Human Rights Supreme Court of India

In light of persistent executive failure, judicial review is an effective check on exercise of mercy powers

DeathPenaltyProcedure_LubhyatiRangarajan_NishantGokhaleThe President of India exercises mercy powers under Article 72 of the Constitution of India and the governors do it under Article 161. Historically seen as private acts of grace, clemency powers are now constitutionally guaranteed rights and consequently, must be exercised with a great degree of responsibility.

Does any relief remain after the President or a governor exercises these powers? Or are all remedies exhausted? The Supreme Court of India has in several decisions analysed these questions and answered that the courts have the power to judicially review the exercise of mercy powers but that this power is extremely limited. In exercise of their powers of judicial review, the courts do not sit in appeal over the decisions of the President or governors but can only examine the manner and materials relied upon to reach the conclusion.

In Shatrughan Chauhan v. Union of India and Others, the Supreme Court considered and consolidated much of the jurisprudence on the judicial review of mercy powers in India in relation to prisoners on death row. The Court held that the exercise of powers under Articles 72 and 161 are essentially executive actions and therefore amendable to judicial review. It held that while the decision of the President or a governor is per se beyond judicial scrutiny, what can be reviewed is the material that was relied on to arrive at the conclusion. The scope of the judicial review of decisions taken by high constitutional functionaries has to be balanced with the right of prisoners to seek executive clemency.

The Law Commission of India in its 262nd Report has listed, after an analysis of various judgments of the Supreme Court, the various circumstances in which the judicial review of the exercise of mercy powers is permissible. This includes (1) where the power is exercised without being advised by the government, (2) where there has been a transgression of jurisdiction by a governor or by the President, (3) where there is non-application of mind or mala fides, (4) where power has been exercised on political considerations, (5) where there is arbitrariness, and (6) where irrelevant considerations have been considered or where relevant material has been left out.

The file’s journey

To find out about what has been considered and what has been left out, it is necessary to track the movement of the mercy petition file. While procedures in individual cases may vary according to the law under which a person is convicted, The prisoner’s petition usually finds its way to the Home department of the concerned state. The state government then gives its advice to the Governor, who then decides the petition based on this recommendation. Thereafter, the file is sent to the Union Home Ministry which in turn sends its recommendations to the President of India and then the President herself takes a decision. Often, this involves a long chain of correspondence between various government agencies including prisons. Usually, with a change in government, the files are sent back by the President for consideration by the new government. While the Supreme Court has recommended that this entire process should be concluded within three months, in many cases, it has taken over a decade.

The objective is to present a full picture to the Governor and the President so that they may decide on the plea beyond the strictly judicial plane. But often, there are lapses in procedure or important materials are either accidentally or deliberately left out and irrelevant factors are considered.

Errors in exercise of mercy jurisdiction

For instance, in Epuru Sudhakar’s Case, the Supreme Court set aside a pardon granted by the Governor because extraneous circumstances, such as the convict “belonging to an upper caste” and “being a good Congress worker”, had been considered.

In Shankar Kisanrao Khade’s Case, the Supreme Court admitted that Dhananjoy Chatterjee’s case had been wrongly decided. He was hanged in 2004 after the President rejected his mercy petition. The court had not considered the mitigating circumstances properly. Much emphasis was laid on the circumstances of the crime rather than the circumstances of the criminal. In its 262nd Report, the Law Commission also said that the Governor rejected Dhananjoy Chatterjee’s petition without taking into consideration the mitigating circumstances.

The Law Commission report also discussed Bandu Baburao Tidke’s case, where the President commuted the death sentence to life imprisonment in 2012 when the prisoner had actually died in jail in 2007. This incident demonstrated the complete non-application of mind and the failure to consider or even call for records from the prison where the prisoner was lodged in, as they would have shown that the prisoner was already dead.

Is there a right to judicial review of a decision made in a second mercy petition?

Most recently, Yakub Memon’s case seemed to change the jurisprudence to some extent. It may even be seen as having curtailed the judicial review of mercy petitions. Initially, Yakub Memon’s brother had filed a mercy petition and it was rejected in 2014. After a review petition was dismissed in 2015, a warrant was issued fixing a date for execution. After that, a mercy petition was filed before the Governor and thereafter before the President. The President rejected the mercy petition around 10 pm on the night before the date on which the execution had been scheduled for 7 a.m. While a stay was sought on the execution so that he could seek the judicial review of the rejection of his mercy petition, the Supreme Court refused to stay it. It held that since the rejection of the first mercy petition in April 2014 had not been challenged, the prisoner could not avail of the period of 14 days after the rejection of his second mercy petition. In effect, this deprived him of the opportunity for the judicial review of the rejection of his mercy petition. The decision seems to be at odds with the decision in Shatrughan Chauhan’s Case, which was decided by a bench of the same strength. Therefore, the question of the maintainability of a second mercy petition and the right to the judicial review of a decision made in a second mercy petition needs to be adjudicated by a larger bench.

The problem of secrecy

There have also been cases where the President of India has conditionally commuted death sentences. Sometimes, these conditions may be excessively harsh and would amount to a punishment greater than what the courts have the power to prescribe. Previously, several Presidents would record specific reasons on file for taking the decision to accept or reject the mercy petition. Of late however, the Presidents only signs off on the government’s recommendation and no reasoning is provided. While it is not open to question the final decision, it is important to ensure that the decisions taken by the highest of constitutional authorities are not whimsical, are based on relevant material, and are reasoned decisions. In the constitutional set-up, it should be noted at this point that governors and the President act only on the advice of the government and cannot act independently.

Effective checks on executive failures

In view of executive failures, some of which have been illustrated above, we can see the need for stringent judicial review in cases where the death penalty has been imposed. While the judiciary cannot provide a foolproof solution, it acts as another check where the consequences of the punishment are final and irreversible. It is also necessary that the judiciary, in reviewing the executive action, fix responsibility on erring officials in the executive so that there is accountability for deliberate or negligent omissions in placing materials before a governor or the President. The executive should also lay down norms for decisions in mercy petitions and not only in capital punishment cases. Currently, guidelines only exist on mercy petitions in death sentence cases. These guidelines however, do not take into account recent judicial decisions. After all, under the law laid down by the Supreme Court in Kehar Singh’s case, it is not for the judiciary to law down guidelines for the exercise of mercy powers. The judiciary can only step in to ensure that the powers are “exercised in the aid of justice and not in defiance of it.”

(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi. The Clinic represented was an intervenor in Yakub Memon’s case. The views expressed in this article are those of the authors alone.)

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Human Rights Supreme Court of India

What is the meaning of “life”? – With no clear meaning, life imprisonment, the death penalty alternative, is just as unfair

DeathPenaltyProcedure_LubhyatiRangarajan_NishantGokhaleThe death penalty was the norm and life imprisonment, the exception, under the Code of Criminal Procedure, 1898. Its replacement, the Code of Criminal Procedure, 1973(“CrPC”), reversed that position. Life imprisonment became the norm. The death penalty could only be awarded in exceptional cases, for which the court would have to record “special reasons”. In 1980, the Supreme Court took the law further down this path. After Bachan Singh v. State of Punjab, the death penalty could only be applied in the “rarest of the rare” cases and that too only “when the alternative option is unquestionably foreclosed”. What are these alternative options?

For nearly all punishments where the death sentence is prescribed, the Indian Penal Code, 1860 prescribes life imprisonment as an alternative. The meaning of ‘life imprisonment’ however, is not really clear. A brief survey of the Supreme Court’s jurisprudence on how the term has been understood raises a number of problems.

What is “life”?

It was settled in the case of Gopal Godse v. State of Maharashtra (1961) that life imprisonment meant imprisonment for one’s whole life. The power to remit this sentence was entirely within the executive domain. Then in 1978, Parliament enacted Section 433-A into the CrPC to mandate that a term of life imprisonment would be for a minimum of 14 years.

The constitutionality of this provision was assailed in Maru Ram’s Case (1980) by several petitioners including many convicts who were hopeful of release through remissions earned in prison or by the commutation of their sentence by state governments. The Supreme Court upheld its constitutionality. The Court noticed some startling instances of prisoners sentenced to life imprisonment being released for whimsical reasons such as a politician’s birthday or a minister visiting the jail and observed that while it could not find any particular logic why a period of 14 years was specified, it agreed, in deference to the legislature, that without Section 433-A, there was nothing to prevent persons convicted of serious offences from walking out of prison the very next day on account of their sentence being commuted by the state government.

The question of an appropriate alternative sentence arose again in Swamy Shraddananda’s Case (2008). In an appeal from a death sentence to the Supreme Court, Justice S.B. Sinha favoured life imprisonment whereas Justice Katju favoured the death penalty. The case was referred to a larger bench. A three-judge bench of the Court observed that in some cases, a sentence of 14 years was too mild and would amount to no punishment at all whereas the death penalty would seem too harsh. The Court was of the view that judges would be nudged to award the death sentence if there was nothing available to them between these two punishments. The Court therefore held that it had the power, in the case of a prisoner sentenced to life imprisonment, to direct that the prisoner would not be released from prison, either for the rest of his life, or for a duration specified by the court. Following this decision, the Supreme Court has awarded life imprisonment without parole for periods between 25 and 30 years in lieu of the sentence of death. The correctness of the decision of the court in Swamy Shraddananda’s Case is being considered by a constitution bench of the Supreme Court in Union of India v. V. Sriharan. It will question whether courts can place sentencing in some cases beyond the executive’s reach. Judgment has been reserved and is awaited.

The Court’s penological experimentation does not seem to have stopped there. In Subhash Chander’s Case (2001), a convict was spared the death sentence by the Supreme Court on his counsel making a submission that the prisoner would spend the rest of his life in prison without applying for pre-mature release or commutation. In Shankar KisanraoKhade’s Case (2013), the Court, while questioning the application of the death penalty and asking the Law Commission to examine the question, directed that the prisoner should serve two life sentences consecutively, rather than concurrently, as is the norm, and overturned the High Court’s recommendation for the award of the death penalty.

No consistent understanding of what is meant by “life imprisonment”

Prison_Cell

After the Criminal Law (Amendment) Act 2013, for the first time the Indian Penal Code prescribed sentences for one’s “whole life” for some types of aggravated sexual assault. It is important to note however, that there was no amendment to the general meaning of “life imprisonment” in the Indian Penal Code. Nor was there any clarification as to whether these whole life sentences would be beyond executive remission.

There is thus no coherent or consistent understanding about the meaning of the term “life imprisonment”. Alternatives to the death penalty should be explored, especially in light of the 262nd Law Commission Report, which found that the “rarest of the rare” principle has been arbitrarily applied. The alternative punishment to the death sentence, in its present form, seems to suffer similarly from arbitrariness and capriciousness.

It is important that there is consistency in handing out sentences of life imprisonment. Courts are, after all, dealing with human lives and these decisions cannot be taken lightly. There are no parameters at present to judge when a person should be awarded life imprisonment without parole for 30 years or life imprisonment simpliciter, or when life sentences awarded are to run consecutively instead of concurrently. The entire process is judge-centric and is subjective to such a high degree that it is not sustainable for a fair criminal justice system. The legislature and the judiciary should take note of these problems with the alternatives available to awarding the death penalty and work towards making them more viable.

(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi.)