Litigation Supreme Court of India

Reforming a system that rewards lawyer misconduct – a conversation between Apar Gupta and Sanjay Hegde on #PatialaHouse


(Apar Gupta is a Delhi-based advocate and Sanjay Hegde is a Senior Advocate of the Supreme Court of India.)

From: Apar Gupta

Dear sir,

I am writing to you looking for answers and for hope.

The practice of law is an art but it has never required martial combat. One week ago, lawyers in the Patiala House courts challenged the genteel nature of legal practice by practising criminal assaults in the court premises. This has been done successively over two days within the premises of the court complex and besides the India Gate circle. I repeat this because the location is important. It shows how less than a mile away from the Supreme Court, the rule of law was subverted to a rule by force.

On February 16, 2016, some lawyers acting in groups beat up Kanhaiya Kumar a student, his family, friends, college professors, and journalists. On February 17, 2016, when reports of similar assaults emerged, six senior advocates were rushed to that location under orders of the Supreme Court. Reports indicate that even though they went to the Patiala House Courts with police protection, stones and flowerpots were flung at them. They were called dreadful abuses accusing them of incest and questioning their allegiance to the country. On returning to the Supreme Court, they called the situation, “unprecedented”.

This raises a frightening possibility – a situation in which the writ of the Supreme Court stops at the steps of the Patiala House Court. Where even under its supervision, lawyers not only defy the law but also exhibit such defiance on national television. The practice of law requires courage but it has never required the audacity to undermine the Supreme Court.

It would be myopic to reduce the blame to a few violent lawyers. The Delhi Police bore witness to this affront to the rule of law on both days. It did not prevent the violence. It did not police. The Delhi Police Commissioner in subsequent interviews has said that preventing the violence could have caused “collateral damage”, an apt term owing its seed in popular culture to the Gulf War and drone strikes. It captures the deprivation of basic human rights of an accused and working journalists perfectly. It displays how norms of human decency, which find their way in law, give way to the rule of force and might. Brazen statements by the Commissioner and the police inaction on the second day despite judicial oversight raise further questions on the Court’s authority.


Alexander Hamilton in the federalist papers termed the judiciary, “the least dangerous branch”. He reasoned that the Court relies on the existing branches to ensure compliance and enforce its orders, compliance that comes through the obedience of the political executive and the police acting under it. This is necessary in a society that is governed by a rule of law. When lawyers publicly exhibit defiance to it and the police condone it — how is the Court to act? Does it moderate or limit the wide powers it can exercise for contempt? Does it err on the side of caution? Is it not reasonable to fear that any hesitance to act firmly may encourage further acts of defiance, which seek immunity by false claims of nationalism?

There is some reason for my pessimism. On December 2, 2014 the Supreme Court issued a peculiar circular. It said, “On 24.11.2014 an Advocate, wearing black gown, band and a saffron color long gown entered into the Hon’ble Chief Justice’s Court which was viewed seriously. It has been directed that, in future, Advocates only in proper uniform be allowed entry into the Court Rooms.” On February 18, 2016 in the midst of a hearing in the Supreme Court concerning the Patiala House Court violence a lawyer disrupted proceedings shouting, “Vande Mataram”. Reports indicate that the Court pardoned him after he offered an apology. Reports further indicate that after being pardoned, he came out of the courtroom and stated, “I am not ashamed of what I did”. Viewed individually, the first incident is a minor transgression and the second is an attempt to overawe a court hearing. In both instances, the transgressions have received minor censure from the Court – a determination that rests solely within its discretion. I fear that further judicial compassion will only be mistaken for weakness.

But how far can the Court act under contempt? Can it trust the police to enforce the law? Events over the past few weeks bring me an acute sense of shame. This gives way to the much larger discomfort of threats to judicial independence — a situation when judicial orders reduce to mere words and the words in our statutes no longer have meaning; a society where the rule of law compromises its existence with the rule of force.



From: Sanjay Hegde

Dear Apar,

To my mind, there is no doubt that the actions of the violent lawyers in Patiala house are criminal, destructive of the rule of law, and in contempt of the orders of the Supreme Court. They would in all probability be convicted if prosecuted properly or if proceeded against under the Contempt of Courts Act. I hope that they indeed are so proceeded against.

However, the prosecution and conviction of these individuals will be merely cosmetic if the underlying causes are not addressed. The chief cause to my mind, is that in a legal system that is stagnant and overwhelmed by the burden of arrears, only two kinds of lawyers get noticed, either the very famous or the very notorious. Notoriety is easier to achieve than fame, and a notorious lawyer, in due course gets cleansed into respectable authority, when he begins to invoke fearful compliance from opponents and courts.

A reputation as a troublemaker is not a bad reputation, when confronting judges who want to struggle through their never-ending list of cases to be heard on that day. A troublemaker lawyer, who can call for a strike and violence, who can paralyse the working of courts, will find himself being humored by judges who do not want trouble in the courtroom. Such a lawyer will soon find himself engaged by parties who want to overawe a court or derail proceedings in any matter. He will also be engaged by parties in a righteous cause, who will brief him only to prevent him from going over to the other side.


A troublemaker who can cow down judges is also more likely to be elected as a representative of the Bar than a lawyer whose chief virtue is well-researched articulation in court. These elected leaders of the Bar then get invited to social functions at welcomes and farewells involving judges. Elected offices at Bar associations then translate into upturns in practice. The ability to win a Bar election sometimes translates into a political candidacy as well. It seems to me that the system as it now exists, does not punish bad conduct but actually rewards it.

While Patiala House may have attracted attention because of its proximity to the Supreme Court, similar hooliganism has been seen in Chennai and Karnataka in recent years. In Chennai, the Chief Justice had to resort to Central forces, to ensure the conduct of peaceful proceedings in court. There are also times when Bar associations pass resolutions refusing legal assistance to some accused and then seek to enforce their diktat by violence. A decade ago in Jammu and Kashmir, trials of those accused in a sex scam had to be transferred outside the state because of such a resolution. Bluntly put, the average individual lawyer in India is less likely to be an Atticus Finch and more likely to follow or lead a mob.

The answer has necessarily to come from lawyers themselves. How do we make mob rule unprofitable and unsupported? How do we ensure that the leader of the mob today, is not the leader of the Bar tomorrow? How do we decriminalise our courts as a necessary precursor to the decriminalisation of politics itself? The all powerful Supreme Court in Delhi, if it fails to ensure condign punishment at Patiala House, may well become like that blind Mughal Emperor of whose nationwide jurisdiction, it came to be said, “Dilli te Palam, ast zameen Shah Alam”. From Delhi to Palam is the land of Shah Alam.


Sanjay Hegde

From: Apar Gupta


Two prominent points indicated by you in the previous thread push our conversation beyond the law of contempt. The first is case pendency and the second are usurpers at the helm of our Bar associations and councils. Both problems as you indicate are structural and require systematic engagement with time and patience. This can only be implemented specifically through the state bar councils and not episodic interventions by the Court. But what is the Bar Council today?

In my view, bar councils today act in the interest of lawyers but not in the interest of the legal profession. While they have the ability to structurally engage on issues of professional ethics and development, they rarely perform such a role, reduced over time to a body with allegiances to local groups aligned on lines of caste and religion and worse, political parties. While lawyers have always formed a large contingent of parliamentarians, there was always a conscious attempt to keep electoral politics at a distance from the practice of law. The independence of the judiciary is supported from the neutrality of the bar. This is increasingly under threat.

Recent events in which office bearers use the strength of their position to campaign for a political party, send SMSs soliciting support, and even hold seminars and rallies focused on lawyers give a cause for concern. Such incidents loosely link the social interest necessary in legal practice towards obedience and servitude of a particular political ideology. This is dangerous. For me, many lawyers (including me) who have been silent at such events in the past are to blame for the increasing brazenness that ultimately fructified in the Patiala House courts. I think any lawyer, whether working in a legal aid clinic or structuring a complex commercial agreement, can sense a growing influence of electoral politics in the practice of law. It is for the profession to decide whether they are willing to tolerate it further.


Another instance on which I see complete inaction by state bar councils are strikes organised by lawyers. Coordinated calls for strikes sometimes even arise from bar council members. Despite repeated and clear judgments by the Supreme Court that such strikes are illegal, this affront to the rule of law continues, practised by the very people who are licensed to professionally protect it. Even the courts maintain a studied silence when bar councils and associations announce strikes. Some even condone it by adjourning cases casually and treating it as an unsanctioned school holiday.

In my view, the continuing district court strikes over the past two years in Delhi have given lumpen elements in the Bar the confidence necessary to now open a larger front on professional ethics itself. Members of the legal community, especially seniors, need to actively support juniors whose bread and butter is immediately impacted due to the threats of violence and coercion which are used to prevent them from appearing in courts where such strikes are announced.

Strikes are just one form of a breach of professional ethics contained in the Advocates Act. The absence of action under it by bar councils is a worrying sign. It also points to a larger rot where complaints are dealt with in an opaque process and proximity to members of a bar council rather than the merits of a case may determine a finding of misconduct or the penalty which is imposed. To me the regulations require immediate surgical intervention. The hoary language that extolls the virtues of advocacy needs to be replaced by the commercial professionalism that a modern legal practice demands. The opaque and rusted process needs to be reformed after studying the reasons why the remedies suffer such weak enforcement.

One of my favourite quotes on this branch of law comes from the judgment of the Supreme Court in R.K. Anand v. Registrar, Delhi High Court where observing rampant professional misconduct, it notes that, “Such conduct reminds us of the fictional barrister Rumpole, `the Old Hack of Bailey’, who self deprecatingly described himself as an `old taxi plying for hire’. He at least was not bereft of professional values. When a young and enthusiastic journalist invited him to a drink of Dom Perignon, vastly superior and far more expensive than his usual `plonk’, `Chbteau Fleet Street’, he joined him with alacrity but when in the course of the drink the journalist offered him a large sum of money for giving him a story on the case; `why he was defending the most hated woman in England’, Rumpole ended the meeting simply saying “In the circumstance I think it is best if I pay for the Dom Perignon””. Unsurprisingly this judgment arises from a finding of contempt of court and not professional misconduct as found by a bar council. While this may merely be anecdotal, it is telling that contempt law is only imperfectly filling in a vacuum created by the bar councils.



From: Sanjay Hegde

Dear Apar,

Thank you for recollecting the Rumpole example. I have a confession to make. Rumpole has been a great teacher to me for long, and I did introduce the series to Justice Alam who used it in the R.K. Anand judgment. It does seem to me that if Rumpole was Indianised to Vakil Rampal and a series set in a district court in India, many an appropriate lesson could be taught to the average Indian lawyer.

Rumpole would teach him that the first requirement of an advocate is courage, but that courage is not displayed by participation in or leadership of a mob. A lawyer’s true courage is when he gets up on his hind legs and cross-examines his witness to elicit the truth, regardless of suggestions from even a bully of a judge like Justice Bullingham, or from the icy condescension of a Justice Graves.

Rumpole would also teach a lawyer, that courage is in not meekly submitting to the advice of even your chamber mates and your friends, when such advice is detrimental to the client’s interests. A lawyer would learn also from the threat of disciplinary proceedings that Rumpole was subjected to by being reported to the benchers of his inn and to the professional services board. Lawyers could learn also from Rumpole’s fierce independence, which cost him a shot at being designated a Queen’s Counsel. In short, a Rumpolean philosophy of never pleading guilty, while forever perfecting the craft of persuasion, in a life interspersed with small cigars and Pomeroy’s ordinary wine, is a model with which many an individual lawyer would agree.

While the life of an Old Bailey hack epitomised by Rumpole is fast becoming an anachronism in Britain, it is still achievable for a Vakil Rampal, if only the profession as a whole sees itself as something more than a mere trade union of purveyors of the justice system. The Indian advocate often sees himself not as an officer of the court, but as a champion of his client within it. A lawyer usefully employed within the system, often does not have the time to look beyond his brief. But for large swathes of the profession, it is a mere refuge from the world outside, and a badge of a vocation no matter how tenuous. A lawyer suffering from disguised unemployment is an easy mark for the leader who is in want of a flock. Many a political party is populated with people who are nominally lawyers, but are rarely seen making a legal submission. Practice as a lawyer, is a useful adjunct to many a business like property dealings and the like. In short, the time available to a lawyer waiting to be briefed, is often a resource that is wasted or put to dishonorable pursuits.


With disguised employment being the bane of an overcrowded profession, a number of people reliant on uncertain incomes tend to seek and find supplementary sources. These multitudes are often treated as individuals, only when their vote is solicited for elections to the bar associations of courts or to bar councils at the state and national levels.

Disciplining errant members of the Bar and checking their certifications and qualifications are all left to these elected bodies. Those who seek election to these bodies are loathe to move against potential and existing voters. Expecting elected bar councils to police the profession is an exercise in unwarranted optimism.

Courts too have contributed to the decline in standards by refusing to deny audience to errant members of the bar. R.K. Anand’s Case was unique in its invocation of contempt powers, but it was aided by press exposure, coupled with the vulnerability of Anand, who as a Senior Advocate, risked getting his designation revoked. It was in fact revoked and was a punishment that could not have been visited upon the average lawyer.

To my mind, the situation will not improve unless the lawyer genuinely is made to realise that he is an officer of the court and that the court has powers to curtail his continued tenure in that office. Unless a lawyer becomes a stakeholder in an organised system of justice delivery and ceases to act as a robber baron ruling through violence, the rule of law will not be truly established.


Sanjay Hegde

From: Apar Gupta


Your email gives a chance for introspection. It indicates that the answers many lawyers are searching for are present in their own practice. They are also timely, given the Supreme Court is examining the legality of the All India Bar Examination. Despite the derision directed against it, in principle few would quarrel with its aim to improve the quality of advocates in India — qualities both of the mind and the heart.

The Law Commission of India has been alive to these concerns for decades. In its 75th Report given in October 1978 titled “Disciplinary jurisdiction under the Advocates Act”, it underscores the need for self-regulation. Commending the system of advocates who form part of the disciplinary committees it recommends no change to the Advocates Act. It only takes a decade for it to revise and reverse this view. In 1988, in the 131st Report, the Law Commission noted two important things. First, a fall, or a “devaluation” of the lawyer in the public eye and second, a “hesitance to accept this implantable fact”. It suggests two key changes in the disciplinary system for adjudicating misconduct by advocates. It suggests that high courts should be given suo motu powers to review determinations made by the bar council of a state. There is also a suggestion for a social audit conducted by members of the public and civil society as “consumers of justice”. These are just two measures in a multitude which may be devised. There is an urgent need to devise substantive ethics regulations, periodic competency reviews, and enforce it by a system which is efficient and insulated from political pressure.


I agree with you that the best hope for the legal profession is in the daily practice of each lawyer but systems should create the proper incentives for its existence. Recent events give us a chance to not only individually reflect but also review the existing rules and systems for professional misconduct.

Thank you sir for engaging on this issue playing on the minds of many lawyers over the past two weeks. More personally, this exchange has given me the hope necessary to keep looking for answers.



From: Sanjay Hegde

Dear Apar,

While we agree that long term measures, based on greater professionalisation and lesser politicisation is the way to go, the immediate question is what immediate measures can be put in place towards that end.

Firstly, the Patiala House incidents must be used to totally disincentivise criminal behaviour of the type exemplified by Vikram Chauhan and his group. The Supreme Court must use the opportunity to send a tough message, by ensuring and monitoring prosecutions and disciplinary actions. The Court could also use the opportunity to devise newer measures to ensure that hooliganism is not rewarded and is in fact a disqualification to any elected office, including in bar association elections. Judgments of the Supreme Court in respect of its own bar elections are now setting the agenda for elections to other bar associations. A disqualifying clause, to be administered by presiding judges, upon those accused of violence or intimidation, would be very useful.

The next step, which can’t be delayed now, is requiring that advocates certification be renewed from time to time. Credentials are checked cursorily upon enrollment and thereafter rarely questioned. If the rolls are to be compulsorily revalidated every five years to weed out those who can show no proof of serious practice, then a huge burden of non-professionals can be weeded out.


It may also be a good idea for technological solutions to be put in place, with a national registry of qualified lawyers, whose fingerprint scans can be used for recording court appearances. Data on frequency of appearances in court, as opposed to attendance in bar rooms might be revealing.

All told, the basic issue is of requiring and enforcing professional pride, in ones standing as a lawyer. As the saying goes, “he who will not stand for anything, will fall for everything”.


Sanjay Hegde

Human Rights Supreme Court of India

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

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

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

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

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

The file’s journey

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

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

Errors in exercise of mercy jurisdiction

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

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

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

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

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

The problem of secrecy

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

Effective checks on executive failures

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

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

Human Rights Supreme Court of India

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

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

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

What is “life”?

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

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

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

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

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


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.)

Human Rights Supreme Court of India

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.)

Human Rights Supreme Court of India

Has the Union made contradictory arguments on the right to privacy in the Aadhar and criminal defamation cases?

NoticeAndStayAdityaVerma_SupremeCourtcolumnTwo cases that the Supreme Court has been hearing during the last few weeks do not have anything to do with each other at first glance – the legality of the Aadhaar card scheme (“the Aadhaar case” – including Writ Petition (C) No 494 of 2012) and the constitutionality of the law of criminal defamation (the “criminal defamation case” – including Writ Petition (Crl) No 184 of 2014). Both are complex cases but my focus is on the contradiction about the right to privacy arising from the arguments made on behalf of the Union in both these cases.

The Aadhaar case

In the Aadhaar case, the Union has argued that the right to privacy in India is not a fundamental right. On August 11, 2015, a three-judge bench has directed the registry to place the Aadhaar case before the Chief Justice of India so that a larger bench (of at least five judges) can hear it. The order of the three-judge bench records the submission on behalf of the Union as follows:


…in view of the judgments of this Court in M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300 and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, (decided by Eight and Six Judges respectively) the legal position regarding the existence of the fundamental right to privacy is doubtful. Further… in a catena of decisions of this Court rendered subsequently, this Court referred to “right to privacy”, contrary to the judgments in the abovementioned cases which resulted in a jurisprudentially impermissible divergence of judicial opinions.

While we are not concerned here with whether the right to privacy is a fundamental right in India, it is fair to say that if it were to be held not to be a fundamental right, it would be difficult to justify the existence of a right to privacy in any sense in Indian law, unless Parliament enacted legislation to create such a right by statute. The right to privacy is not a right at common law, which goes also to suggest that there is no common law tort that arises out of a violation of privacy per se.

We will not analyse the various judgments of the Supreme Court on this issue here, but it is safe to assume that even the ‘tortious’ right to privacy in India has found life essentially as a corollary of the argument that the right to privacy is a fundamental right. If it is found not to be a fundamental right, there would be no legal basis for the ‘tortious’ right to privacy to survive.

The criminal defamation case

In the criminal defamation case, it has been argued on behalf of the Union that one of the justifications for the law of criminal defamation (Sections 499 and 500 of the Indian Penal Code, 1860) is that it deters undesirable intrusion into a person’s private life. As this report indicates:

The Supreme Court of India

The Supreme Court of India

The Centre on Thursday told the Supreme Court that live-in relationships should be seen as an “acceptable norm,” and pointed to how reputations of public personalities are often sullied in public because someone pried into their private life… What a public figure does in the evening at his home, I don’t think it would serve any public good even if it is the truth. Public figure is known for discharge of public functions, actions and transaction of business. This [live-in relationship] is matter of private life. There is distinction between conduct in private and public life.

Again, while we are not concerned here with whether the law of criminal defamation is constitutionally valid, it is fair to say that this particular justification for it strongly hints at protecting a person’s privacy. The Supreme Court may decide that there are other justifications for the law of criminal defamation, but it would be difficult to argue that one of those justifications is the protection of a person’s privacy, unless it also accepted that that person has a right to privacy in the first place.

The contradiction

So, is there, or isn’t there a right to privacy in India? In the Aadhaar case, the Union’s argument is that there isn’t. However, in the criminal defamation case, the Union’s argument assumes that there is. It will be interesting to see how the Supreme Court eventually resolves this question, which arises independently in each case.

Bear in mind that it is theoretically possible for it to be decided, without inconsistency, that the right to privacy is not a fundamental right in India – indeed, it is not a right at all – and at the same time, to uphold the constitutional validity of the law of criminal defamation in India, as long as the protection of a person’s privacy is not one of the justifications for that law. Equally, it can be said without inconsistency that the right to privacy is a fundamental right in India, but the law of criminal defamation is constitutionally unsound, despite one of its purposes being the protection of a person’s privacy.

Of course, there is no fear of contradiction in the law as far as the right to privacy is concerned if it is held that:

– the right to privacy is not a fundamental right, and the law of criminal defamation is constitutionally invalid, or

– conversely, the right to privacy is a fundamental right, and the law of criminal defamation is found to be constitutionally valid

Some readers must be thinking, “What about privacy and the restriction on access to internet pornography?” All of this is for the Supreme Court to iron out. Rather ironically, privacy seems to be everywhere these days!

(Aditya Verma is an advocate based in New Delhi.)