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Category: Human Rights (page 2 of 24)

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.)

Written by myLaw

The High Court as trial court in death penalty confirmation proceedings

ProceduralLawOfTheDeathPenalty_AmrutanshuDashIs 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.

(Amrutanshu Dash is a student in his fifth year at the National Law University, Delhi. The views expressed in this article are his alone.)

Written by myLaw

My land is lying unused. Can I have it back? How to initiate repatriation under the 2013 land acquisition law

CommunitiesAndLegalAction_KanchiKohliEven as presentations were underway at a meeting on land rights somewhere in the capital, a lady seated next to me craved some specifics. “What is the latest with the land acquisition process in the country? Someone told me that I could actually get my land back? It had been taken away a decade ago.” Pushpa behan was among several people who had come for the meeting from the eastern part of the country and had lost her land to the expansion of a government-owned iron ore mine.

I pulled out the latest version of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“The RFCLARR Act). I knew that some of its clauses would apply to the question that she had raised.

We were temporarily distracted by a voice from the dais that informed the audience that the RFCLARR Act had replaced an 1894 land acquisition law under which the government had the power to acquire land for public purposes. A notice and a short time frame to move out of your home is all that people had. The RFCLARR Act had faced criticism but it had come a long way from the 1894 law and had linked the process of land acquisition with corresponding resettlement and rehabilitation obligations.

During a short tea break, we decided to step out to the canteen to talk at length. Our discussion soon revealed that about 20 families had lost about 100 hectares of agricultural land when the state government had issued them notices for evacuation. While their homes remained with them, the loss of their land had an impact on their source of livelihood. While she did not have many details, she also knew of others who had faced similar issues in neighbouring areas.

When we sat down to look at the Hindi version of the law together, I read out the two relevant clauses. Since the legalese was difficult to fathom, we broke it down. Just as we were talking, a few others from her village joined us. It was turning out to be an impromptu study session.

Section 101 is clear and simple. It says that “when any land acquired under this Act remains unutilised for a period of five years from the date of taking over the possession, the same shall be returned to the original owner or owners or their legal heirs, as the case may be, or to the Land Bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government.” This however, applies only to land acquired under the 2013 law. That was not the case with Pushpa behan’s land.

Image from Vinoth Chandar's photostream on Flickr. CC BY 2.0

Image from Vinoth Chandar’s photostream on Flickr. CC BY 2.0

I asked Pushpa and the others if they had received any “award” or been paid compensation following the notice that their land was being acquired. Under the 1894 law, an award had to be issued by a District Collector or District Magistrate (depending on the state). Such an award would include details such as the true area of the land, the amount of compensation due, and the list of people among whom the compensation would be apportioned. Three scenarios could have emerged:

(1) no award was issued;

(2) an award was issued; and

(3) an award was issued but the physical possession of land was not taken and no compensation was paid.

Is repatriation possible?

Clauses (1) and (2) of Section 24 of the RFCLARR Act deal with these three scenarios. When no actual award was issued pursuant to a land acquisition notice under the 1894 law, then all the provisions related to compensation in the 2013 law would apply under Section 24(1)(a). The compensation available under the 2013 law is much higher and has to be determined using a range of criteria including market value of the land and damages incurred by standing crops or trees.

But this was not the case with Pushpa behan and the others from her village. They fell into the third category. Even though an award had been made in relation to the land that had been acquired, no compensation had been paid and physical possession of the land had not taken place for over eight years. Under Section 24(2), in such a situation, the proceedings of land acquisition undertaken so far would be deemed as lapsed and a fresh process would now need to be initiated under the 2013 law. This includes a detailed process of social impact assessment and the seeking of the consent of 70 per cent of the landholders in case the project is a public sector project or 80 per cent if there is private sector involvement.

(Left) The former Union Minister for Rural Development, Shri Jairam Ramesh addressing a press conference on Land Acquisition Bill, in Jaipur on September 15, 2013. (Right) The Union Minister for Road Transport & Highways and Shipping, Shri Nitin Gadkari addressing a Press Conference, during an Interaction with Farmer's Association on land acquisition, in Hyderabad on June 01, 2015. Both images from PIB.

(Left) The former Union Minister for Rural Development, Shri Jairam Ramesh addressing a press conference on Land Acquisition Bill, in Jaipur on September 15, 2013. (Right) The Union Minister for Road Transport & Highways and Shipping, Shri Nitin Gadkari addressing a Press Conference, during an Interaction with Farmer’s Association on land acquisition, in Hyderabad on June 01, 2015. Both images from PIB.

Does this mean that we have a chance to say no to this acquisition and possibly get back our land?” one person in the group enquired. In principle, yes, I said, but we still had to test it out. The 1894 law had no provision for social impact assessment or any provision about seeking consent and that is why many project authorities feel that the 2013 law would make it impossible for land to be acquired.

He asked, “if the compensation had been paid and physical possession taken in the last 5 years, then this possibility would not arise, right?” That’s what the law says as of now, I replied.

What next?

Several groups across the country have taken steps with the help of lawyers to get better compensation or to restart land acquisition processes under the 2013 law. In fact there is recent news that Reliance Industries has challenged this legal provision in the Gujarat High Court in response to a case filed by farmers.

But the 2013 law does not say that these processes need to be initiated through the courts alone. It is perhaps even possible to do so by approaching the departments that had first initiated land acquisition proceedings and where the records lie.

It would have been useful to have a set of executive rules to enable these provisions but the two and half years of the existence of this law has seen such resistance from the government that little attention has been paid to issue enabling rules. The clauses we had discussed were at the heart of a series of ordinances promulgated to amend the 2013 law and which were allowed to lapse last year.

For now, we know that these provisions are in place and are open for all to use. Pushpa smiled, took the copy of the Hindi text of the law from me and said, “Well, we have the clause in our favour for now and we have to try and use it. Get our paperwork in order and get going.” The half and hour we spent discussing what was and what could be had opened many doors.

Kanchi Kohli is a researcher working on law, environment justice, and community empowerment.

Written by myLaw

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.)

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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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A railway line through a forest belt – environmental impact assessments and forest rights

CommunitiesAndLegalAction_KanchiKohliSarita tai was worried about the construction of a railway line between the iron ore mine and the railhead located 30 kilometres from the village she worked at. At least 15 kilometres of this railway line would cut through an important part of the central forest belt. She called me with many questions: What was the process for taking permissions for using forestland for railway lines? Had this process been completed? What was the role of the gram sabha? What if the forest rights of people had not been fully recognised yet?

Some of these answers came easy but the others required the study of some recent circulars and directions of the environment ministry, the tribal affairs ministry, and the National Green Tribunal (“NGT”).

EIAs for railway lines

Surprising as it may seem, the railway line and its related infrastructure are not in the list of projects that need to go through the procedure laid out in the EIA Notification, 2006 issued under the Environment Protection Act, 1986. We have long tried to find the logic behind it, but without success. Railway projects simply do not require an environment impact assessment and a public consultation for an environmental clearance.

If the railway line is separated from the other components of the project like it was in the case of the mine that Sarita tai was worried about, it could easily avoid the environment impact assessment process. The mine had been up and running for the last year and the proposal for the railway line was only mooted much after the environment clearance was procured for the mine.

Forest diversion and the felling of trees

All non-forest use requires the user agency to seek prior approval under the Forest Conservation Act, 1980. There is a detailed procedure under Section 2, which remains away from public eye and only within negotiations between forest department officials; the Ministry of Environment, Forests and Climate Change (“MoEFCC”); and the user agency.

Until recently, no activity related to a project could be carried out for any non-forest use until the entire procedure, which includes a two-stage approval by the MoEFCC and an order by the government of the state where the forest is located, was completed. Felling trees would be illegal without it.

But during the last year, the MoEFCC has allowed the felling of trees to be carried out after a project receives “Stage 1 approval”, that is, the approval of the MoEFCC. This approval often contains conditions including additional studies related to hydrology, impact on wildlife, identification of compensatory afforestation land and others that have a bearing on whether the forest diversion should be approved or not. But in the case of linear projects such as railways, highways or transmission lines, the MoEFCC has attempted to be create a “simplified procedure.”

In a set of guidelines issued on May 7, 2015 and subsequently updated on August 28, 2015, the ministry said that to allow for the speedy execution of these projects, the in-principle approval will be enough to allow for both tree cutting and commencement of work if all “compensatory levies” and a wildlife conservation plan are ready.

Sarita tai was livid. The last time she had seen an in-principle approval, it listed 27 important conditions including that of redoing some important assessments. What is the point going through the remaining procedure for this project if the work can commence and trees can be cut, she asked. It defeats the entire purpose of any safeguards or conditions levied.

train_jungleI agreed and told her that these guidelines had been challenged before the NGT. In January 2015, the NGT first restrained the felling of trees after Stage 1 approval, but subsequently reviewed the order in the light of an affidavit submitted by the MoEFCC. In its direction, the NGT concluded that the while tree felling and commencement of work might be allowed for linear projects it would be treated as an order under Section 2 of the FCA and therefore can be challenged before the NGT. This is important to understand because the NGT had previously ordered that only those orders issued finally by state governments activating forest diversions could be brought before it. Till then no commencement of work or tree felling could be allowed.

The MoEF’s May 7 and August 28, 2015 guidelines lay down that while the “simplified” procedure for the speedy execution of linear projects remains in place an “aggrieved person” now has the option to approach the NGT with an appeal against this order.

Forest rights and linear projects

I knew that Sarita tai would also ask about the recognition of the rights of forest dwelling communities who have historically either lived or used the forest that is sought to be diverted. The Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006 mandates the recognition of individual and community forest rights of tribal and other forest dwelling communities.

On August 3, 2009, the MoEFCC issued an important circular, which, among other things, clarified that no diversion of forest land for non-forest use would take effect unless the process of recognition of rights had been completed. It also said that the consent of the gram sabhas would be required before the diversion process can be given effect. This has also been re-iterated and confirmed by the Ministry of Tribal Affairs (“MoTA”), which oversees the implementation of the FRA.

In the villages that Savita tai was working in, several of the community forest rights claims were still pending final approval and the grant of individual rights had been contentious as people had only received rights over a part of the forest land that had been claimed. In their view, their rights over the forests were yet to be recognised. So the first question that came to our mind was whether the forest diversion and tree cutting could have come into affect if the recognition of rights was pending. The gram sabha (village assembly) had confirmed that their consent had not been sought.

This issue had been a bone of contention between the MoTA and the MoEFCC since 2013. While the MoEFCC had claimed through their February 5, 2013 circular that the requirement of the gram sabha consent could be dispensed for linear projects, the MoTA, the nodal ministry, said that the MoEFCC had no authority to make such an interpretation. All projects, linear or non-linear, had to be treated equally regarding forest diversions and consent provisions.

These different interpretations continue to operate and the MoEFCC has been approving proposals for forest diversion and allowing for tree felling for linear projects, interpreting that a gram sabha nod was not required, especially in cases where there has been an assurance from the state government that either the rights under FRA have been recognised or are in the process of being so.

A worrying scenario

Thus, with no requirement of EIAs once a railway line is segregated from other aspects of a project; tree felling permitted after in-principle approvals; and tentative interpretations for gram sabha consent; the situation did not seem very encouraging to Sarita tai and the affected people that she was working with. They could however, still petition the concerned ministries. No doubt, the fate of the project and the forest dependent people could still lie in bureaucratic interpretations and the application of mind by expert committees.

With no court action on the anvil immediately and the affected communities clearly aligned to question both the FCA guidelines and the dilution of the consent provisions; its anyone’s guess whether the railway line will be built or not. But it once again raises questions about why any project, which has a far-reaching impact on forests, wildlife, and people, should be granted exemptions from basic environmental scrutiny and  stringent safeguards. Meanwhile, people like Sarita tai have to grapple with many interpretations of the law on a case-by-case basis.

Kanchi Kohli is a researcher working on law, environment justice, and community empowerment.

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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.)

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How we used the law to reclaim the inter-tidal area at Bavdi Bander

VimalKalavadiya_CPRNamatiThe Kutch district in Gujarat, one of the largest in India, has a coastline of 405 kilometers and inter-tidal area of about 200 kilometers. For generations, communities in the district have engaged in agriculture, pottery, animal husbandry, weaving, fishing, and salt production. The last two occupations directly depend on the sea and the shoreline and have always co-existed in designated parts of the inter-tidal belt.

In recent years however, commercial expansion, especially of salt production, has contested for the space otherwise occupied by small and artisanal fisherfolk. The “bunding” and “drawl” of water for large saltpans has also had an impact on the livelihoods of fisherfolk who seasonally cultivate prawns.

Conflict at the fishing harbour

One such instance came to light in the case of Bavdi bander, a fishing harbour in the Mundra block of the district. Neelkanth, a large salt production company, procured a lease for salt production on the bander. It then started to bund, by reclaiming the sea using stones and soil, more than one kilometer of the inter-tidal area to create saltpans to divert and collect seawater for the production of salt.

Exactly where Neelkanth had carried this out, a fishing community would spend 7 to 8 months every year, fishing with small boats or on foot (known as pagadiya fishing). They used the tidal area for parking their boats but once the bund was built, they had to keep their boats far in to the sea and further away from the coast line and so faced difficulties in the transfer of the fish catch from the boats on to the harbour where it would be sorted and dried before being sold. This was not all. The construction of the bunds also destroyed approximately 20 hectares of mangroves.

Fishing boats parked in the inter-tidal area at Bavdi Bander. Photograph courtesy Kanchi Kohli.

Fishing boats parked in the inter-tidal area at Bavdi Bander. Photograph courtesy Kanchi Kohli.

The biggest revelation of all unfortunately, came to light only after the impact of bunding had already played out. Neelkanth did not have the clearance required under the Coastal Regulation Zone (CRZ) Notification, 2011.

It came to light by accident. On January 22, 2013, a committee constituted by the Ministry of Environment and Forest was visiting the area. Set up on September 14, 2012 to review the violations of the Adani Port and the Special Economic Zone located 45 kilometres away from the Bavdi bander, its members also decided to visit the bander to investigate claims about compensatory mangrove plantations in the area. Representatives of the Gujarat Coastal Zone Management Authority (GCZMA), local fish traders, and representatives of the Machimar Adhikar Sangharsh Samiti (a fishing union of the area) also accompanied the committee members.

They saw the large bunds that had been built into the sea. The people living at Bavdi bander complained that the bunding created obstacles to the natural flow of the sea water during periods of high and low tide. They also aired their difficulties related to the parking of their boats and how all this was severely affecting their livelihood. On the committee’s recommendations, the Principal Secretary of the Department of Environment of Forests in the Government of Gujarat issued a show cause notice on February 27, 2013. But the action ended there and the bunding continued unabated.

A different kind of salt satyagraha

On the left, a view of the bund built on the inter-tidal area. Photograph courtesy Kanchi Kohli. On the right, a view from the bund showing mangroves and the temporary settlements of fisherfolk. Photograph courtesy Bharat Patel.

On the left, a view of the bund built on the inter-tidal area. Photograph courtesy Kanchi Kohli. On the right, a view from the bund showing mangroves and the temporary settlements of fisherfolk. Photograph courtesy Bharat Patel.

In need of a remedy, some fisherfolk from the area approached the High Court of Gujarat. It took several hearings and over 18 months for a final judgment to emerge from the Court only on August 27, 2015. The District Collector had told the Court on April 10 that the lease for the salt pan had not been renewed. If any bunding activity did happen therefore, the District Collector could take action.

While the case was pending in court, there were some developments at the harbour and Neelkanth had continued its activities unabated. Some time in late 2014, the people of Bavdi, not clear about how the case would proceed, approached the Centre for Policy Research-Namati Environment Justice Program, which had been working in Kutch to understand the impact on livelihood caused by problems related to non-compliance with the law in coastal areas.

Bharat Patel and I work with the programme and we realised that the people of Bavdi knew that even though an illegality had occurred, which was affecting their livelihood, they had not received a remedy. While recording the nature of the problem, we also came to know that the owner of the Neelkanth salt company was trying to secure another permission on the same land, this time in the name of one of his relatives.

With some help from us, they came to know from the website of the Gujarat Costal Zone Management Authority (“GCZMA”) that this was indeed the case. The minutes of a GCZMA meeting held on April 10 this year record that Neelkanth had applied for CRZ clearance in the name of Vasta Govind Chavda. This was for the same area where the bunding had been done, for which the show cause had been issued and a court case was pending.

From the minutes, the fisherfolk realised that the GCZMA had asked the proponents to submit a revised application so that their CRZ clearance can proceed. We saw this as an opportunity and decided to petition the GCZMA to not grant this approval because an illegality had already occurred and because the matter was pending before the Gujarat High Court.

Before they submitted the application to the authority, they discussed the importance of backing their claim with evidence. They had to prove that the place for which CRZ clearance was being sought already had an illegal salt pan and that the matter was sub judice. They relied on Google Maps to plot the area, backed it up with photographs, and also copies of notices that had already been issued to Neelkanth. Only when they had this in hand did the representatives of the affected community draft a letter to the GCZMA demanding that approval be denied. It also explained the relation between Neelkanth and Vatsa Govind. This letter was sent to the Chairman and members of the GCZMA on April 8.

At its very next meeting, on May 15, the GCZMA took a decision that favoured the fishing community. Vatsa Govind’s proposal was rejected because the area in question was rich in biodiversity with dense mangrove patches and sand dunes. The company therefore, had to submit a fresh application for a CRZ clearance for a different area.

Meanwhile, the sea has reclaimed the bund that was created illegally. With the saltpan lying vacant, the tidal water has gradually brought back the boats, the fish catch, and the spirit of the people.

Vimal Kalavadiya works with the CPR-Namati Environment Justice Program. This article has been written with inputs from Bharat Patel who is also associated with the programme.

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Remove secrecy surrounding exercise of mercy powers. Make the reasoning public.

 DeathPenaltyProcedure_LubhyatiRangarajan_NishantGokhaleClemency powers operate in relation to both the conviction for an offence and the sentence. A person can be pardoned or granted a reprieve or remission. The sentence can be suspended, remitted, or commuted.

The President of India and the Governors of the states enjoy similar powers. Those of the President are wider as they also apply to offences under the armed forces laws.

There is no exhaustive list of circumstances in which the President and the Governors exercise their powers and the Supreme Court has refused to interfere with or lay down guidelines relating to the exercise of this power.

A “mercy petition” is the document sent by or on behalf of a prisoner listing the reasons why the conviction or sentence should be commuted or suspended or why there should be a remission of the sentence. The grounds that may be raised include errors in evidence, factors indicating reformation, and poor mental or physical health.

Mercy petition procedure

YakubMemon_mercypetitionUsually, prisoners send mercy petitions through the jail to the home department of the relevant state government, which then forwards it to the governor of that state along with its recommendation. The governor then sends it back to the home department, which then forwards it to the Union Ministry of Home Affairs. The Ministry then gives its advice and sends it to the President of India. The President and the Governors are both bound by the advice of their council of ministers under Articles 74 and 163 respectively.

This process usually involves a large amount of correspondence between various government authorities to get the complete case records from courts and the police as well as records of the prisoner from the jail. While the Supreme Court has recommended that this process should be completed within three months, it has been known to take several years.

Yakub Memon’s case raised a question about whether a mercy petition sent by a prisoner’s brother could displace the prisoner’s own petition. Questions of how many mercy petitions can be filed and whether a fresh petition could be filed if there is a “change in circumstances” remain open.

CrPC provisions do not confine constitutional mercy jurisdiction

The Code of Criminal Procedure, 1973 (“CrPC”) speaks of remissions, suspension, and commutation in Sections 432 to 435. These procedures operate at the level of the state or Union governments. Prison manuals guide the exercise of these powers. The powers under Articles 161 and 72 of the Constitution though, are at a higher plane and are not bound by the provisions of the CrPC or the state jail manuals.

Maru Ram’s case dealt with constitutional challenges to Section 433-A of the CrPC, which stipulates that persons sentenced to life imprisonment cannot avail of the benefit of remissions under the CrPC until they have served 14 years of imprisonment. The Supreme Court acceded to the legislative wisdom of fixing the minimum period to be served at 14 years. While rejecting the argument that Section 433-A confined the exercise of powers under Article 72 and 161 however, the Court observed that these provisions could at best be guideposts for the executive but could not operate as a bar to the exercise of mercy jurisdiction.

This means that despite a provision such as Section 433-A (“Restrictions on powers of remission or commutation in certain cases” or provisions in the Criminal Law (Amendment) Act, 2013 that prescribe the sentence of “imprisonment for the remainder of that person’s natural life”, the powers of applying to a governor and the President would remain available to a prisoner. Even in cases where the courts have awarded life without remission, it would be open to the prisoner to apply to the President and a governor for clemency.

The Supreme Court in Kehar Singh’s case has held that the President can go into the evidence of the case and even decide contrary to what the courts have held. A person convicted of assassinating Indira Gandhi had requested the President for an oral hearing of his mercy petition. The Supreme Court held that while no right to an oral hearing could exist in such a case, it refused to lay down guidelines for the exercise of powers under Article 72. It held that it would be open to the President to adopt whatever procedure was deemed appropriate. The Court however, did recognise that limited judicial review was available of the reasons for the President’s decision.

Separation of powers and secrecy

There are debates about the potential for the misuse of the mercy jurisdiction, but the powers are firmly rooted in our constitutional structure. While previously, mercy powers were seen as a private act of grace by the King, it is now a constitutional prerogative which must be exercised with a great deal of responsibility. The expectation is that high constitutional functionaries such as the Governors and President would exercise their powers appropriately.

So far, the judiciary has also maintained a position of non-interference except for recognising limited judicial review and hinting that Section 433-A may be used as a guidepost for when it is appropriate to exercise these powers in cases of life convicts. While the Constitution Bench in V. Sriharan’s case is likely to make some findings that may have a profound impact on mercy jurisprudence, it is unlikely that it could go so far as to curb the clemency powers of the President and the Governors.

Following the doctrine of separation of powers, the courts cannot direct these authorities to state the reasons for their decisions. A court cannot inquire into this ministerial advice and it is also protected from disclosure under the Right to Information Act.

Usually, only the mere fact of the rejection of a petition is communicated to a prisoner. They are not given access to any of the material or the reasons using which their petitions were accepted or rejected. While several Presidents in India’s history have indicated detailed reasons for allowing or rejecting mercy petitions, of late, the practice has been to not assign reasons in the file notings. The real reasons for the acceptance or rejection of a mercy petition are never known and there are serious concerns about the exercise of the clemency powers and the degree of influence wielded by the mood of the government of the time.

The need of the hour is to ensure that these decisions and the reasons behind them in all cases (whether involving the death sentence or otherwise) are made public rather than treated as closely guarded state secrets. Since the powers of the President and the Governor are vested in them by the Constitution, this may require a constitutional amendment.

(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi. The clinic represented Shabnam and Saleem before the Supreme Court in Shabnam v. Union of India and was an intervenor in Yakub Memon’s case.)

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The Shabnam guidelines and why the convict’s lawyer should be given notice of death warrant proceedings

DeathPenaltyProcedure_LubhyatiRangarajan_NishantGokhaleWhen Yakub Memon was executed recently, there was some confusion about “death warrant” or “black warrant” proceedings. They were also controversial in previous cases such as that of Mohammed Afzal Guru where the spectre of a secret execution haunted the government and that of Surinder Koli where three warrants, containing a range of dates within a week, were under challenge.

Upon a conviction at the end of a criminal proceeding, the sentencing court or the trial court has to issue a conviction warrant to the relevant jail. This warrant specifies the period of imprisonment to which the convict has been sentenced.

In cases where the death sentence is awarded, it is formally called a “warrant for execution of a sentence of death”. Form No. 42 in the Second Schedule of the Code of Criminal Procedure, 1973 contains the form of the “death warrant” or “black warrant”. It is addressed to the superintendent of the relevant prison who is supposed to return the warrant to the court after certifying that the death sentence has been carried out.

When can a death warrant be issued?

The court which imposed the sentence of death at the first instance (that is, the trial court) has the power to issue the death warrant under the CrPC. Sections 413 and 414 of the CrPC state that upon the high court confirming a death sentence, the sessions court shall cause that order to be carried into effect by issuing a warrant. In practice however, since an appeal lies to the Supreme Court against a death sentence, a sessions court would normally refrain from issuing a death warrant.

Even if the Supreme Court confirms the death sentence, there are several other remedies available to a prisoner to challenge the death sentence such as review and curative petitions, and mercy petitions under Articles 161 and 72.

And today, if a sessions court issues a death warrant before the end of the judicial and administrative process, it would amount to a serious violation of the law as laid down by the Supreme Court in Shabnam v. Union of India (2015) which affirmed the guidelines laid down by the Allahabad High Court in PUDR v. Union of India (in which the death sentence meted out to Surinder Koli was commuted to life imprisonment).

The guidelines in Shabnam arose out of a case in which death warrants were issued against two prisoners currently on death row – Shabnam and Saleem. The Supreme Court had confirmed their death sentences on May 15, 2015. A mere six days later, a sessions court in Uttar Pradesh issued death warrants against them stating that the execution should be held “as soon as possible”. No date, time, or place was specified on the warrants. This omission was already in violation of PUDR, a judgment that this Sessions Court was bound by. Further, Shabnam and Saleem were yet to exhaust several other remedies available to them.

In Shabnam, the Supreme Court held that the principles of natural justice have to be read into death warrant proceedings. A convict has to be given prior notice of the death warrant proceeding. The warrant has to specify the exact date and time of execution and not a range of dates. There should be a reasonable period of time between the date of the order on the warrant and the date set for execution to enable the convicts to meet their families and pursue legal remedies. Copies of the execution warrant should be made available to the convicts and they should be given legal aid at these proceedings if they do not already have a lawyer. These guidelines now need to be mandatorily followed in all cases where death warrants are issued.

When a death warrant was issued against Yakub Memon on April 30, the Shabnam guidelines were not yet in force. However, once Shabnam was decided, the Maharashtra government ought to have recalled the death warrant and initiated fresh proceedings to ensure that the rule laid down in Shabnam was satisfied. Most importantly, Yakub (lodged in a jail in Nagpur) and his lawyer should have been present at the proceedings that were held before a Mumbai court.

The guideline that a death warrant cannot be issued unless all available remedies are exhausted also needs to be seen in light of the contemporary jurisprudence on the death penalty. So after Shatrughan Chauhan v. Union of India (2013), a convict’s challenge to the rejection of his mercy petition is one of the available remedies.

Why are death warrants and their proceedings significant?

Shabnam has now held that holding a death warrant proceeding in open court with prior notice is vital to ensure that there is no secrecy or arbitrariness around executions. It enables the lawyer and the prisoner to ensure that the sentencing court is aware of pending proceedings challenging the conviction and sentence, if any.

For instance, the constitutional bench decision in Md. Arif@ Ashfaqv. The Registrar, Supreme Court of India allowed for an open court hearing of a review petition in all death sentence cases. In the Shabnam case, the sessions judge was unaware that neither Shabnam nor Saleem had had the opportunity to exercise their right to pursue this particular legal remedy, and instead, issued death warrants in haste. Such a situation could have been avoided if their lawyers had been informed of these proceedings.

Similarly, Shatrughan Chauhan now gives prisoners on death row the right to challenge the rejection of their mercy petitions by governors or the President through the writ jurisdiction under Articles 226 and 32. The Court also prescribed a minimum 14-day period between the receipt of the communication of the mercy petition being rejected, and the scheduled date of execution for two main reasons: (a) to allow the convict to make his peace with God and settle his earthly affairs and (b) to meet his family and avail of judicial remedies.

A court vested with the power to issue a death warrant must examine the case before it through a judicial lens and not view it as a mere formality and it may, if it finds that a prisoner has not yet exercised these judicial and administrative remedies available to them, postpone the setting of a date of execution. This purpose may not be served merely by having a lawyer who would not necessarily know if the convict has availed of his legal remedies. Considering that the majority of Indian death row convicts are illiterate or have had minimal or no access to education, they may not be in a position to inform the lawyer appointed for them, of proceedings initiated on their behalf. The convict’s lawyer therefore, should be given notice of the death warrant proceedings.

(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi. The clinic represented Shabnam and Saleem before the Supreme Court in Shabnam v. Union of India and was an intervenor in Yakub Memon’s case.)

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