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either (a) overturned an acquittal or lesser conviction by the Court of Sessions and awarded the death sentence or (b) withdrawn proceedings before the Court of Sessions and conducted the same in the High Court.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
Human Rights Supreme Court of India

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

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

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

What is “life”?

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

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

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

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

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

Prison_Cell

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

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

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

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

Categories
Human Rights

Should media outrage affect sentencing in criminal trials?

TennilleDuffy_authorI wish to respond to one aspect of Sohini Chatterjee’s recent post on the sentence handed down in Ram Singh and Others – the ‘Delhi gang rape trial’. She said that the judge had recognised the outrage caused by this case as an aggravating factor and seems to argue that the supposed effect of the media attention on the sentence was a good thing.

I should point out that this is, clearly, not Ms. Chatterjee’s opinion alone. Various manifestations of this sentiment have echoed across Facebook, the comments sections on blogs and news websites, and in various reports about the case. Many people feel that justice has been done and that the court, the judge, and the criminal justice system correctly responded to the outrage felt across society.

I do not think that Judge Khanna’s sentencing order reveals that it was affected by the furore across India even though I have no doubt that he was well aware of it. Whether media reports can and should be taken into account in sentencing, however, is another question entirely.

Let me state at the outset that I am passionately opposed to the death penalty. As it stands however, the death penalty is an available punishment in India, and has been confirmed as constitutional by the Supreme Court of India.

The idea that the media can, and should, have an effect on sentencing and other aspects of the operation of the criminal justice system, however, is worth examining more deeply. Firstly, can the media, and what ‘they’ are communicating, be discerned or measured? Secondly, we need to examine the notion that that the media—whoever or whatever they are—are some kind of spokesperson for society, or the conduit through which society expresses itself. And thirdly, should judges and courts —while sentencing—take into account the expression of society’s demands or desires through the media? Even this minimal unpacking of the idea begins to expose its flaws.

Let us take the first contention. Can we (or a judge in any criminal case in India) know what the media is saying about any particular case? What if the message is not unanimous? Even in a case such as this, where one might be able to readily detect an overall sense of outrage, disgust, and fury, there were other, discordant voices present across the country. We know enough of the history of how rape is treated and reported in India, for example, to know that many different attitudes—foolish, conservative, and ignorant among others—prevail. Further, what kind of media should we observe? The mainstream media and its attendant business and political interests? Facebook and Twitter posts? Independent blogs? Civil society publications? These days, anyone can be and is a commentator. How can any one person process and take all of those opinions into account?

Students protest the rising violence against women at Raisina Hill and Rajpath in New Delhi on December 22, 2012. All three images are from Wikimedia Commons and have been published here under a Creative Commons Attribution-Share Alike 3.0 Unported license.
Students protest the rising violence against women at Raisina Hill and Rajpath in New Delhi on December 22, 2012. All three images are from Wikimedia Commons and have been published here under a Creative Commons Attribution-Share Alike 3.0 Unported license.

Secondly, is the media really the conduit through which society expresses itself? I doubt that, especially in a country and a polity as diverse as India, that could ever be the case. The mainstream media certainly can’t be said to speak for all people in this country. As with all other institutions in society, the media speaks for those in power and those with influence much more than those without. And whilst I am certainly not suggesting that this case didn’t deserve the media attention it has received, I am also not the first person to observe that the media treated this case exceptionally. Yes, that may be due in part to the public outrage. But was the public outrage not also fuelled and enabled, in part, by the media attention?

Many of us are equally outraged or upset by every horrific rape and murder. Reports of fresh cases—the five-year-old-girl who was held captive and raped by a neighbour in Delhi, the reports of the rape of girls in front of their mothers during the recent riots in Muzzafarnagar, and the rape of a woman also on a bus, in Punjab, just two weeks after the Delhi incident—are seen every week across the country. Who weighs the severity of these countless cases, and measures up the column inches or television minutes to be awarded to each? What about the countless others we know that we do not even hear about? Is the consequence to be that, the more media attention a case gets, the harsher the sentence? Or, alternatively, that those who commit crimes against the powerless and those deemed somehow less worthy of media attention, receive more lenient sentences? Obviously, these cannot be results that we seek to achieve in any criminal justice system.

As a matter of general principle, judges should not be looking to the media when they are determining sentences, for all of the reasons and difficulties already described. “Trial by media” is seen as a negative phenomenon for a reason. A properly functioning court system can help avoid erroneous findings of guilt, convictions, and sentences handed down without proper recourse to facts proved beyond reasonable doubt and the imposition of unfair or inconsistent punishments. If a judge is looking to the media in some cases, how is consistency to be achieved? Which commentators’ idea of fairness or outrage is to be abided by?

Even looking at the specific comments and findings made by Judge Yogesh Khanna in this case, I do not think that we can conclude that he was looking to the reported public reaction to this case in delivering his sentence. There is a difference, seen widely across the criminal law, between judges talking about concepts such as “collective conscience” and “community feeling” and judges actually saying “I have observed that people are particularly upset about this particular incident, and that is an aggravating factor”.

SupremeCourtofIndia_aggravatingcircumstance_extremeindignation_abhorrenceOne case that Judge Khanna refers to is Gurvail Singh @ Gala and Another v. State of Punjab, a 2013 judgment of the Supreme Court that Ms. Chatterjee has also referred to in her post. In that case, the Court spoke of “whether the society will approve the awarding of death sentence to certain types of crime or not.” “While applying this test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls”.

As we can see, the Supreme Court is referring not to a specific crime or specific public expressions of outrage. They are not speaking about some way in which judges could or should react to particular, one-off instances of outrage. Rather, they are talking about a certain category or type of crime, such as the rape and murder of minor girls.

Judges are members of the community too. For better or for worse, they are given the power to impose sentences within the criminal justice system. Part of that role is that they must gauge the level of seriousness of a crime and the level of general social abhorrence of various types of crime. As much as is humanly possible, they must attempt to do so in a principled and consistent way. To look to the media to inform their sentence, or to react more harshly to highly publicised crimes, goes against all sentencing principles, and should be discouraged.

As a member of the community, Judge Khanna was entitled to take into account not only the barbaric and hideous nature of the acts that were committed by these men, but also the fact that it was the type of crime that society increasingly found abhorrent, despicable, and outrageous. On the face of his judgment, it appears he did just that – no more, no less. Given the change in rape laws following this crime, there is no doubt that this sentiment will be echoed in many cases and sentences to come.

(Tennille Duffy is part of the faculty on myLaw.net.)

Categories
Uncategorized

Death to all – the principles of sentencing in Judge Yogesh Khanna’s award of the death penalty in the Delhi gang rape trial

SohiniChatterjeeAround 2:30 p.m. on September 13, 2013, Additional Sessions Judge Yogesh Khanna awarded the death penalty to the four accused in State v. Ram Singh, marking the end of the (fast-tracked) nine-month-long trial of the accused in the Delhi gang rape case. The judge supported his award of the death penalty using two principles.

Firstly, he relied on the notion that when the collective conscience of the community is shocked, the court should award the death sentence. If the crime has been executed in a grotesque and revolting manner, it would be a failure of justice to not award death sentence. After gang raping the victim, the four accused persons had cut open her intestines using an iron rod and eventually pulled out her internal organs with their hands.

The judge said that this case fell within the Supreme Court’s “rarest of the rare cases test” because of the display of “extreme mental perversion” and “exceptional depravity of mind”. The essential distinction here is between ordinary murders and gruesome and ghastly murders. While the former warrants a life sentence, the latter warrants a death sentence. (Cases in support can be found here, here, here and here).

fournooses_deathpenaltySecondly, the aggravating factors overwhelmed the mitigating factors. The defence had put forward various mitigating factors such as the young ages of the accused, their socio-economic conditions, their clean antecedents, and their being under the influence of alcohol at the time of committing the crime, to argue for a lesser sentence. These reasons, the judge said, were neither special nor adequate. While determining the sentence in rape cases, the relevant factors should be the conduct of the accused, the state and age of the victim, and the gravity of the criminal act. The socio-economic status, religion, race, caste, or creed of the accused or the victims should be irrelevant considerations in sentencing. (Cases in support can be found here, here, and here).

According to the judge, the aggravating factors in this case outdid the mitigating factors. The demonstration of exceptional brutality, the extreme misery inflicted on the victim, and the grave impact of the crime on social order were some of these factors.

One particular aggravating factor deserves special mention – the manner in which the crime aroused “intense and extreme indignation of society”. The imposition of the death penalty by any court is not “judge-centric”. The satisfaction of the “rarest of the rare” test largely depends on the social approval for the death sentence for certain types of crimes. The judge relied heavily on a recent decision, in which the Supreme Court said that while determining whether a particular crime warrants a death sentence or not, the court has to look into factors such as society’s abhorrence and extreme indignation towards particular crimes. In my opinion, the judge’s recognition of social responses as an aggravating factor is commendable and shows the tremendous impact that the numerous civil society led protests, demonstrations, and debates that followed the horrific rape have had. The media was the primary vehicle for the communication of these protests and this case also highlights the media’s potential to affect sentencing.

(Sohini Chatterjee is a third-year student at the WBNUJS, Kolkata. She is a member of the NUJS Law Review.)