ARTICLES

CAPITAL PUNISHMENT

CAPITAL PUNISHMENT

INTRODUCTION

All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing. The capital punishment debate is the most generally relevant debate, keeping in mind the situation that has been brought about by today. Capital punishment is an integral part of the Indian criminal justice system. However this is an odd argument as keeping one person alive at the cost of the lives of numerous members or potential victims in the society is unbelievable and in fact, that is morally wrong.

MEANING

Capital punishment, also called the death penalty, execution of an offender sentenced to death after conviction by a court of law for a criminal offence. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. The term death penalty is sometimes used interchangeably with capital punishment. The term "Capital Punishment" stands for the most severe form of punishment. It is the punishment which is to be awarded for the most heinous, grievous and detestable crimes against humanity. While the definition and extent of such crimes vary from country to country, state to state, the age to age, the implication of capital punishment has always been the death sentence. By common usage in jurisprudence, criminology and penology, the capital sentence means a sentence of death.

EVOLUTION OF CAPITAL PUNISHMENT IN INDIA

During the drafting of the Indian Constitution between 1947 and 1949, several members of the Constituent Assembly expressed the idea of abolishing the death penalty, but no such provision was incorporated in the Constitution. Private members’ bills to abolish the death penalty were introduced in both houses of parliament over the next two decades, but none of them was adopted. 

At independence, India retained several laws put in place by the British colonial government, which included the Code of Criminal Procedure, 1898 and the Indian Penal Code, 1860. The IPC prescribed six punishments that could be imposed under the law, including death. The provisions under which the death penalty is given as punishment under IPC are as follows:

  • Section 115- Abetment for an offence punishable with death or imprisonment for life (if offence not committed);

  • Section 118– Concealing design to commit an offence punishable with death or imprisonment for life.

  • Section 121– When armed rebellion (i.e. waging, abetting to waging of war or attempting to wage war) is made against the constitutionally and legally established government;

  • Section 302– Causing murder of another;

  • Section 303– When a life convict person murders another person;

  • Section 396– Causing dacoity with murder;

  • Section 376A (as per the Criminal Law Amendment Act, 2013)- Rape

The provisions under CrPC are as follows-

  • For offences where the death penalty was an option, Section 367(5) of the CrPC 1898 required courts to record reasons where the court decided not to impose a sentence of death: “If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed.”

  • The Code of Criminal Procedure was re-enacted in 1973 (‘CrPC’), and several changes were made, notably to Section 354(3): “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”

  • These amendments also introduced the possibility of a post-conviction hearing on sentence, including the death sentence, in Section 235(2), which states: “If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

CONSTITUTION POWERS OF THE SUPREME COURT IN MATTERS RELATING TO DEATH SENTENCE

  1. Bachan Singh v. State of Punjab- In this case, the constitutional bench of the Supreme Court discussed at length the question of whether the provision of the death penalty as an alternative punishment for murder in a violation of Article 19 and 21 of the Constitution. In this judgement, Justice P.N Bhagwati gave his minority judgment observing that the death penalty is a violation of Article 19 and 21 of the Constitution. While the four judges in the majority agreed otherwise.

  2. Machhi Singh and Ors. v State of Punjab- It is considered as a landmark judgement on the subject of the death penalty. The Apex Court while discussing the aggravating and mitigating circumstances laid down the principles which would serve as a guideline to the courts while deciding the sentence to be awarded in murder cases. 

  3. Rajendra Prasad v. State of UP- Justice Krishna Iyer had empathetically stressed that the death penalty is violative of articles 14, 19 and 21. With this the Justice Iyer said two conditions under which the death penalty can be given:

 

  • While giving the death penalty the court shall record special reasons.

  • Only in extraordinary cases the death penalty to be imposed.

 

  1. State of Tamil Nadu v. Nalini- This case is popularly known as Rajiv Gandhi’s assassination case. The offenders were accused under Indian Evidence Act, 1872, Indian Wireless Telegraphy Act, 1933, The Foreigners Act, 1946, Passports Act, 1967, Arms Act, 1959, Explosive Substances Act, 1908, Indian Penal Code, 1908 (IPC), TADA Rules, The Terrorist And Disruptive Activities (Prevention) Act, 1987. In the case, there were 26 accused out of which four accused were punished death penalty by the Apex Court. The accused were from the LTTE (Liberation Tigers of Tamil Eelam) group and were seeking revenge for the Indian government’s decision for sending army troops in Srilanka.

CAA Petitions: SC asked Central Government to file its response within 4 weeks

CAA Petitions: SC asked Central Government to file its response within 4 weeks

A three-judge bench comprising of Chief Justice S.A. Bobde and Justice Abdul Nazeer and Justice Sanjiv Khanna while hearing about 143 writ petitions challenging the constitutional validity of the controversial Citizenship Amendment Act 2019 has granted four weeks’ time to the Central Government to respond. The Supreme Court on Wednesday made it clear that it will not grant any stay on the Citizenship Amendment Act (CAA) without hearing the Centre and said it may refer pleas challenging the validity of the Act to a larger Constitution bench. The bench has also issued notices on all petitions.

Key Observations:

  • The Supreme Court has refused to grant an interim stay on CAA or NRC or NPR and the government is free to implement those laws
  • Few petitions urged the bench to postpone the implementation of the act but the bench did not pass any order in regard to that.
  • The bench agreed to consider the petitions from Assam and Tripura separately, having regard to the special grounds urged in those cases.
  • The Supreme Court has restrained the High Courts from dealing with the matter.
  • Chief Justice orally remarked that no ex-parte order can be passed without hearing the Centre.

 

Background:

The Citizenship (Amendment) Act, 2019 was passed by the Parliament of India on 11 December 2019. It amended the Citizenship Act of 1955 by providing a path to Indian citizenship for members of Hindu, Sikh, Buddhist, Jain, Parsi, and Christian religious minorities, who had fled persecution from Pakistan, Bangladesh and Afghanistan before December 2014. Later, the Act was brought into force by notification on January 10.Muslims, impliedly, were excluded from such benefit. A nationwide protest was carried out after the act was passed as few were of the view that the act is discriminatory and some thought that CAA clubbed with NRC will have a disastrous effect.

The act was challenged in the Supreme Court and plead to prevent its implementation. The Petitions contended that the Act, which liberalizes and fast-tracks grant of citizenship to non-Muslim migrants from Pakistan, Bangladesh and Afghanistan, promotes religion-based discrimination. As per the petitions, a purely religious classification, devoid of any determining principle, violates the fundamental constitutional value of secularism and Article 14 of the Constitution. The exclusion of Muslims from the Act amounts to unreasonable classification but also violates secularism, which is a basic structure of the Constitution. The petitioners highlight that similarly situated persecuted groups such as Ahmadiyyas of Pakistan, Rohingyas of Myanmar, Tamils of Sri Lanka etc are not brought under the purview of the Act. This leads to unequal treatment of equals.

The petitioners also argue that the CAA - which makes non-Muslim migrants from Bangladesh who had entered India before December 31, 2014 eligible for Indian citizenship - dilutes the Assam Accord.

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LEGAL NOTES

DEFINITIONS UNDER ARBITRATION ACT

DEFINITIONS UNDER ARBITRATION ACT

Sec 2 (1), in this part unless the context otherwise requires:

 

  1. ‘arbitration’- means any arbitration whether or not administered by a permanent arbitral institution.

Explanation-  the definition is not comprehensive, it does not assign ant particular meaning to the term arbitration, therefore, its commonly understood meaning shall apply. The terms as defined in this clause connote that although arbitration is supposed to be entrusted to individuals appointed by the parties themselves this Act would recognize arbitration entrusted to permanent arbitral institutions also.

 However, individuals of the party’s choice can still be appointed as arbitrators because it is not obligatory to entrust it to an institution.

 

  1. ‘arbitration agreement’- means an agreement referred to in section 7.

Explanation- according to sec 7, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement or may arise where parties by reference import the arbitration clause contained in an earlier document into a subsequent contact so as to incorporate it.

 

  1. ‘arbitral award’-  includes an interim award.

Explanation-  sec 2(1)(c) merely clarifies that an arbitral award would include an interim award. It does not define the term. It must be read with sec 31. of the Act which deals with the form and contents of an arbitral award.

 

  1. ‘arbitral tribunal’-  means a sole arbitrator or a panel of arbitrators.

Explanation-  the expression arbitral tribunal means a sole arbitrator or a panel of arbitrators. In view of the provisions of sec 10 reference can be made to a sole arbitrator or an uneven number of arbitrators termed as an arbitral tribunal.

  1. ‘court’- means the principal Civil Court of original jurisdiction in a district and includes the High Court in exercise of its original jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include ant Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes.

 

  1. ‘international commercial agreement’-  means an arbitration relating to disputes arising out of legal relationships, whether contractual or mot, considered as commercial under the law in force in India and where at least one of the parties is-

  • an individual who is national of, or habitually resident in, any country other than India or

  • a body corporate which is incorporated in any country other than India or

  • the Government of a foreign country.

 

  1. ‘legal representative’- means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting.

Explanation-  the definition of the term ‘legal representative’ can be divided into three parts. According to the definition the following persons are to be regarded as legal representatives;

  • a person who in law represents the estate of the deceased, for example, an executor of a will or administrator of the estate of the deceased or an heir under the personal law; or in the Court of Wards who administers the estate of the ward;

  • a person who intermeddles with the estate of the deceased, that is, a person who retains possession of the properties belonging to the estate of the deceased with the intention of representing it.

  • in the case of claims of a representative character a person on whom the estate devolves on the death of a party to the arbitration.

         The following persons have been held not to be legal representatives:

  •  an assignee from a deceased zamindar to whom the holding reverts on the death of the tenant.

  • A person who claims adversely to the estate of the deceased.

  • A new trustee appointed or elected on the death of the deceased trustee.

 

  1. ‘party’- means a party to an arbitration agreement.

Explanation-  the meaning of the expression ‘party’ is not restricted to a party who signed the agreement to the extent as provided in secs. 40, 41 and 35 since the context requires otherwise. Therefore, to the extent, as provided in secs. 40 and 41 the term party will include the legal representatives of the party upon the death of the party or a receiver or official assignee in the case of insolvency of the party, further, in sec 35 persons claiming under the parties are equated with parties for the purposes of the binding character of an arbitral award.

 

  1. Sec 2(7) defines ‘domestic award’- as an arbitral award made under Part-I shall be considered as a domestic awards

Explanation- in order to constitute a domestic award it is essential that-

  • The arbitral award should be made in arbitration proceedings conducted in India. It is immaterial whether the arbitration is an international commercial arbitration or non-international commercial arbitration.

  • Such proceeding must be in accordance with Part –I of the Act.

Cross-Examination of Approver by the Accused

Cross-Examination of Approver by the Accused

Category; trial procedure 

The term approver is neither defined nor used under Criminal Procedure Code but is usually applied to a person, supposed to be directly or indirectly concerned in or privy to an offense to whom a pardon is granted under section 306 of CrPC with a view to securing his testimony against other persons guilty of the offense. The examination of the approver under section 306(4) of the code is mainly concerned with the examination of the complainant and witness by the Magistrate while processing the complaint under section 200 of the CrPC before setting up the process. The question of ‘Examination of the witness’ arises only after charges are framed under section 228 of CrPC. As there is no express provision u/s 306(4) CrPC which permits the accused to cross-examine an approver before committing the case to the Court of Session the Magistrate is not empowered to appreciate the evidence in session triable case. Further, the term “Examination’ under section 306(4)(a) cannot be interpreted to mean ‘Examination’ as contemplated under section 138 of Evidence Act, so as to give an accused the right to cross-examine the approver, at the pre committal stage. In Suresh Chandra Bahri v. State of Bihar (2000) the Supreme Court Bench has regarded section 306(4) as mandatory provision and observed that the object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused in as much as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing Court itself at the very threshold. 

In no stretch of circumstances the cross-examination which is contemplated under section 306(4) of the Code can be equated with the ‘examination of witness’ under section 138 of Evidence Act. where u/s 305 CrPC when an approver is being examined by a Magistrate, he is merely recording his statement after grant of pardon and as such he merely acts as a post office by recording a statement u/s 306 CrPC and thereafter forwards it to the court of session which is the court competent to try the case and therefore the term ‘examination’ used in section 306(4) cannot be equated with the term ‘examination of witness’ meant u/s 138 of Evidence Act. 

 

 

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