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Litigation Lounge

Equality Commission may not be sufficiently independent because of problems in appointments process

Alok Prasanna Kumar(With an anti-discrimination legislation back on the political agenda, Tarun Khaitan, an Associate Professor in the Faculty of Law at the University of Oxford and the Hackney Fellow in Law at Wadham College has responded with a draft Equality Bill, 2016. myLaw.net has invited some scholars and advocates to comment on this draft and over the coming weeks, will publish their responses here. We are quite excited to publish the first contribution to this debate from Alok Prasanna Kumar of the Vidhi Centre for Legal Policy, who has critiqued the appointment process for the proposed Equality Commission.)

In a nation riven by caste, class, religion, gender, tribal, and linguistic boundaries, (among many, many other lines of division) the idea of equality seems like a distant mirage. The Constitution of India, by stating a commitment to not just formal equality before law but also substantive equality in society, seems like a radical statement of intent, one whose realisation seems impossible on the face of it. Yet, attempts have been made, bit by bit, to remedy the worst of the iniquities and prejudices that mar Indian society but in the larger picture, seem too few and too far between.

In this scenario, Tarun Khaitan’s proposed Equality Bill (“the Bill”) must be seen as a bold attempt at working equality not just into our laws, but into the functioning of the State and its institutions and society as well. It is an effort to not just provide for remedies against violations of equal treatment under the law, but a comprehensive attempt to address discrimination and prejudice that runs deep in society. It is not just a comprehensive anti-discrimination bill, but also one that seeks to foster and further the goal of equality in society.

As others have focused on the intent and mechanism of the main parts of the Bill, I will focus here on the enforcement aspects of the Bill, specifically the Equality Commission (“the EC”). As clear as the norms are in any legislation, the success of the law as a whole will depend on the institutions that are tasked with its implementation. A law must be drafted with an understanding of the structural strengths and weaknesses of the institutions tasked with enforcement and to this end, there is room for improvement in the Bill.

The Bill’s enforcement mechanism has both proactive and reactive elements. This is not so easily split into the functions of the EC and the State Equality Commissions (“the SEC”) on the one hand, and the functions of the Equality Courts. This, I think is a problem with the Bill. For the purposes of this comment, whatever has been said about the Commission also applies to the State Equality Commission unless otherwise indicated.

Constitution of the Equality Commission

The EC has been created along the same lines as the National Human Rights Commission, the National Commission for Scheduled Castes, et al. It consists of a Chairperson and members who are either ex-officio members (or their representatives) or those selected for their commitment and expertise in fulfilling the Bill’s mandate. While there is some diversity mandated in the composition of the Commission, the appointment process leaves much to be desired.

The Bill replicates the appointments process in most other central legislation of having a high-powered committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha (“LOP”), the Chief Justice of India (“CJI”), and the Chairman of the University Grants Commission (“UGC”). While this committee is required to consult a group of authorities while making appointments, this process has two flaws, one minor and one major.

The minor flaw is that as a body of four persons, there is all likelihood of a deadlock. There being no “tie-breaker”, this could lead to a serious hold-up in appointments, especially if the “Government members” (the PM and the Chairperson, UGC) concur and the “non-Government members” (CJI and LOP) don’t. No procedure for decision has been prescribed and one has to assume (in light of the judgment in Centre for Public Interest Litigation v. Union of India) that this means a decision by majority has to be taken. While differences of opinion exist in such committees, there is potential for it to become a deadlock. This can be resolved either by increasing the number of members to five or by giving one person the casting vote in case of a tie.

Appointments process is too centralised

The major flaw is that this replicates the appointment process that has led to the massive centralisation of the appointment process and a consequent delay in appointments. By my rough estimate, no fewer than seven other laws have more or less the same composition of appointment committee. To overburden the same authorities with more and more appointments (between six to ten in this case), involving a detailed consultation procedure, may not make for a swift and efficient appointment process. The fate of the Lokpal and the vacancies in the Central Information Commission are a reflection of this.

The consultation process too has its problems. Of the eleven persons who must be consulted, at least eight are appointed by the government itself and may not present a sufficient diversity of views on the matter. Moreover, these eight persons represent eight bodies that are also represented on the Commission. It is difficult to see what purpose this consultation will serve in getting a healthy diversity of views in appointment. It is also not clear why the President of the Supreme Court Bar Association (a purely private body representing one sub-set of lawyers) should be consulted when the Chairperson of the Bar Council of India is also being consulted. Likewise, the requirement to consult any two Vice-Chancellors may likely result in the government consulting only those Vice-Chancellors it has appointed.

Since the EC is a body empowered to take action against the government and its officers for failing to do their duty, one that is so controlled by the government in the manner in which it is constituted may not result in a sufficiently independent body that that carries out its functions in a robust manner. While there has to be some involvement of the government, it may make more sense to involve greater civil society participation and transparency in the process. A five-member body featuring a representative of the executive, legislature, judiciary and members of civil society unaffiliated with government would in my view make an adequate replacement to the present scheme. The process could also be made more transparent by requiring that members apply to be considered, interviews be conducted in an open manner, and decisions be made on clear criteria laid down by the appointing committee.

(Alok Prasanna Kumar is Senior Resident Fellow at Vidhi Centre for Legal Policy.)

Categories
Litigation

Death and the special legislation – Why the CrPC’s death penalty safeguards should also be available when death is awarded under other laws

ProceduralLawOfTheDeathPenalty_RahulRamanApart from the Indian Penal Code, 1860, there are 23 statutes that prescribe the death penalty as a form of punishment in India. The Anti-Hijacking Act, 2016 is the most recent addition to this list.

The movement towards making the death penalty an exceptional punishment began in 1955, after the repeal of Section 367(5) of the Code of Criminal Procedure, 1898, which required courts to record reasons when deciding not to impose the death penalty. Several important substantive and procedural safeguards were then introduced by the legislature and the judiciary to ensure the fair administration of the death penalty.

When safeguards in the CrPC are not available

The Code of Criminal Procedure, 1973 (“CrPC) requires the court in Section 354(3) to record “special reasons” while awarding the death penalty. It also requires the obligatory confirmation of the death sentence by the High Court. There are however, quasi-judicial bodies with the power to award the death penalty, which are bound only by the procedures prescribed in their parent statutes and not the CrPC. Some of these statutes include the Air Force Act, 1950 (“Air Force Act”), the Assam Rifles Act, 2006, the Defence of India Act, 1971, and the Karnataka Control of Organised Crime Act, 1999. These statutes remain bound by the principles of natural justice (S.N. Mukherjee v. Union of India, 1990 AIR 1984).

An example of a quasi-judicial proceeding that does not follow the procedures contained in the CrPC is that of “court martial”, provided for in the Army Act, 1950, the Air Force Act, and the Navy Act, 1957. The rules of procedure to be followed during a court martial proceeding are prescribed in the respective statutes itself. These procedures do not provide for safeguards similar to those in the CrPC. For example, there is no statutory onus on the court to provide “special reasons” in a court martial proceeding.

In S.N. Mukherjee v. Union of India, among the other issues before a constitution bench of the Supreme Court, inter-alia, were whether reasons are required to be recorded at the stage of (i) recording of finding and sentence by the court-martial; (ii) confirmation of the findings and sentence of the court-martial; and (iii) consideration of post-confirmation petition.

With respect to the first issue, the Court noted that the court martial is not required to record reasons at the stage of recording of findings and sentence. Similar conclusions were reached regarding the second and third issues as well. While these observations were made in relation to the provisions of the Army Act, these observations would hold true for the other two statutes as well since the procedures for court martial are similar.

Relying on the SK Mukherjeee dicta, the Delhi High Court in Balwinder Singh v. Union of India, 64(1996) DLT 385, decided not to interfere with the findings of court martial on the ground of absence of any ‘special reasons’ but commuted the death sentence to imprisonment for life on other grounds.

The petitioner was charged under Section 69 of the Army Act for committing murder. The general court martial found the petitioner guilty and sentenced him to death. This was further confirmed by the Central Government. The petitioner had also exhausted the recourse available to him under Section 164(2) of the Act. Section 164(1) and (2) provide for a remedy against, inter alia, the sentence of a court martial. The aggrieved party can present a petition before the confirming authority, and after that, to the Central Government or the Chief of Army Staff.

The petitioner, therefore, filed a writ petition under Article 226 of the Constitution challenging the above orders, questioning among other things, the absence of “special reasons” in the order of the general court martial, as stipulated under Section 354(3) of the CrPC. The petitioner also raised an argument in the alternative that the requirement under Section 354(3) should be read as a part of natural justice requirements of Article 21 of the Constitution.

The court reiterated the position laid down in SN Mukherjee, and said that the general court martial did not commit any error by not recording any ‘special reasons’ in the case. Similarly, the Court interpreted Section 162 of the Army Act to excuse even the confirming authority from providing reasons while confirming the sentence of death. Regardless, the court observed that if there are any shortcomings in the findings of general court martial or the confirming authority, they could be challenged under Article 32 or Article 226 of the Constitution. The Court failed to make any observation on the argument regarding Article 21 of the Constitution; that giving “special reasons” is essential in a case where death sentence is to be awarded irrespective of the nature of the court or tribunal.

Similarly, Section 64 of the Border Security Force Act, 1968 provides for the establishment of special courts. The General Security Force Court is empowered to pass a sentence of death under Section 72. Chapter VII (Sections 82 to 106), which lays down the procedure for the courts under this Act, does not contain any special procedure (as contained in CrPC) with respect to death sentence. The only additional requirement for passing a death sentence is that it should be passed with a concurrence of at least two-third members of the court. Other decisions of the Court can be passed by an absolute majority. This kind of voting requirement is present in other statutes that stipulate for trial by court martial as well.

Most of the other non-IPC legislations that stipulate death penalty among its punishments follow the special procedures mentioned in the CrPC with respect to the death penalty. For example, under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, there is a provision in Section 14 for establishing a special court for trying of offences committed under the Act. However, this court is also bound by the procedures prescribed in the CrPC.

The incorporation of special provisions with respect to the death penalty in the CrPC signifies the legislature’s intent to include additional safeguards that aim at ensuring maximum protection to a person sentenced to death. Considering the general legislative and judicial caution against the death penalty, it is important that a larger bench of the Supreme Court revisit the findings in S.N. Mukherjee. The requirements of giving ‘special reasons’ and obligatory confirmation by the High Court should be made imperative, regardless of the statute under which a person has been sentenced to death.

(Rahul Raman is a Project Associate at the Centre on the Death Penalty, National Law University, Delhi.)

Categories
Litigation

Open court hearings in review petitions after Mohd. Arif (2014)

SohamGoswami_DeathPenaltyProcedureThe Supreme Court of India has qualified the scope and extent of the right to life enshrined in Article 21, through a series of judgments from A.K. Gopalan v. State of Madras, AIR 1950 SC 27 to Maneka Gandhi v. Union of India, AIR 1978 SC 597, ensuring that infringements upon life and personal liberty may only be made through “fair, just and reasonable procedure”.

So what of the procedure extinguishing life from a person who has been found guilty of capital offences? There is a comprehensive procedure under Indian law to ensure that a person sentenced to death may be afforded the maximum opportunities to present his side of the case so that he can hopefully be acquitted or his sentence commuted. A Court of Sessions, which is the competent court to record evidence and convict the accused, must cite its reasons in writing (Section 367 of the Code of Criminal Procedure, 1973) for awarding the death sentence and must then submit that decision to the state’s High Court for confirmation (Section 366). The sentence is considered valid only after confirmation and the convict may (if the High Court certifies the case under Article 134 of the Constitution) move the Supreme Court. The convict has a right of appeal if the High Court has either (a) overturned an acquittal or lesser conviction by the Court of Sessions and awarded the death sentence or (b) withdrawn proceedings before the Court of Sessions and conducted the same in the High Court.

The Supreme Court’s review jurisdiction

Under Article 137 of the Constitution, the Court may review cases decided by them. Order XL of the Supreme Court Rules, 1966 further require review to be done in chambers (that is, by judges, conferring amongst themselves without the assistance of counsel) and based on written pleadings made by counsel.

The Supreme Court in P.N. Eswara Iyer v. Registrar, Supreme Court of India, AIR 1980 SC 808, upheld the constitutional validity of Order XL, Rule 2 (requiring review in chambers), citing the heavy burden upon the Supreme Court to hear oral arguments in all cases within its jurisdiction.

The Supreme Court however, in Mohd. Arif v. Registrar, Supreme Court of India and Others, (2014) 9 SCC 737, dealt with the question of whether death sentence cases would form a class by themselves, meriting separate treatment.

The disagreement in Mohd. Arif

Writing for the majority, Justice Rohinton F. Nariman held that due to the nature of the death penalty, where:

1. the punishment is irreversible, and

2. due to lack of sentencing guidelines, it is left to various judges as to the quantum of sentence to be awarded (for instance, one judge might award the death sentence in a certain case, while another judge might sentence someone to life imprisonment for the same offence and same circumstances), sentencing was often arbitrary;

the highest standard of scrutiny was required in such cases.

Justice Rohinton F. Nariman interpreted Justice V.R. Krishna Iyer’s (the author in P.N. Eswara Iyer) ruling as allowing for such cases to be heard orally in open court. He quotes paragraph 29A of P.N. Eswara Iyer “…indeed, there is no judicial cry for extinguishment of oral argument altogether.”

However, Justice Chelameswar dissented, holding that the question of arbitrary sentencing did not arise as the same judges of the Supreme Court who passed the original judgment were required to sit on the review bench.

However, Mohd. Arif (the lead petitioner) was denied the opportunity to file a review petition himself. This was because he had already submitted a curative petition (the last option in the Supreme Court) and the Court held that to grant him a review petition now would infinitely delay the process. The review petition is filed and admittedor dismissed prior to the curative petition.

Eventually, a Constitution Bench of the Supreme Court on January 19, 2016 allowed Arif to re-open his review petition on the ground that he would be the only person not receiving the benefit of a review petition, which would be unfair to him; further, the dismissal of the curative petition should not preclude the petitioner from receiving the benefit of a review petition in open court, no matter how slim the chance of success may be.

As one can see upon perusal of the judgment in Mohd. Arif, the purpose was to ensure that, no matter how slim, people receiving the death sentence should be given as many opportunities as permissible under the law for evidence to be re-appreciated. However, the problem that is apparent from the dissent of Justice Chelameswar is that ordinarily, the same Bench hearing the original case on merits deals with the review petition (unless any of the judges retire). It is unlikely therefore, that they would change their opinion on whether the convict should receive the death penalty; thus, the purpose of the review petition is not realised.

The purpose of the review bench, as is evident from Order XL of the Supreme Court Rules, is to merely check whether there is an error apparent on the face of the record. The composition of the bench should therefore, not matter, as the matter for appraisal should not lead to different conclusions. At the same time, the same judges having already looked into the matter once, would ordinarily not be willing to sit and review the whole case again.
Mohd. Arif is however, a pathbreaking judgment given its implications for prisoners on death row—that at the penultimate stage of proceedings at the Supreme Court, they are entitled to an open court hearing and reappreciation of evidence in their case argued by their lawyer. It remains to be seen, however, the manner in which Supreme Court deals with these petitions.

 

(Soham Goswami, currently in the third year at ILS Law College, Pune, is an intern at the Centre on the Death Penalty. The views expressed in this article are his alone.)

Categories
Litigation Skills

[Video] How can a junior advocate assist better during arguments?

For up to a few years after they enter the profession, advocates can find themselves assisting their more senior colleagues in court. What is the role of an assisting counsel and how can a junior advocate excel in that role? These are questions that naturally occur to a junior advocate but unfortunately, only experience and corridor conversations seem to present any answers.

We felt that there was much to learn from the experiences of others and so we put these questions to a number of young Delhi-based litigators.

Watch what they had to say, in the video below.

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Litigation Skills

[Video] Judicial pendency: What’s the big problem?

Why did the Chief Justice of India have a “breakdown” about the impossible burden facing the judiciary? Is the judiciary doing nothing about the massive backlog of pending cases at the courts? Are the courts really that slow in India? What is the problem, anyway? Will appointing new judges fix the problem? There are no simple, straightforward answers (or questions) when it comes to judicial pendency in India, but here is a video in which we have tried to make the issue much clearer.