Significance of the term State in the context of the fundamental right

 Fundamental rights are a group of rights which are guaranteed to all the citizens of the nation by the Constitution of India under Part III. These rights apply universally to all citizens residing in the nation, irrespective of their race, place of birth, religion, caste or gender. They are recognized by law as rights requiring a high degree of protection from the government and they cannot be violated by the Government. Fundamental rights cannot be enforceable against individuals and private entities.  The obligation of protecting these rights lies on the government or the state or its authorities.

Most of the Fundamental rights provided to the citizens are claimed against the State and its instrumentalities and not against the private bodies. Article 12 gives an extended significance to the term ‘state’. It is very important to determine what bodies fall under the definition of a state so as to determine on whom the responsibility has to be placed.

The framers of the Constitution used the words ‘the State’ in a wider sense than what is understood in the ordinary or narrower sense. It does not merely mean the states in the Union. The word ‘includes’ in the article shows that the definition is not exhaustive and through judicial interpretations, the court has widened the scope of the Article way beyond what even the framers of Article 12 may have had in mind during the framing of the constitution.

Meaning of State under Article 12

Article 12 of the Indian Constitution states that,

“Definition in this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

In other words, for the purposes of Part III of the constitution, the state comprises of the following:

1. Government and Parliament of India i.e the Executive and Legislature of the Union
2. Government and Legislature of each State i.e the Executive and Legislature of the various States of India
3. All local or other authorities within the territory of India
4. All local and other authorities who are under the control of the Government of India

Key terms discussed under the article

1. Government (Union and state)
2. Parliament and state legislature
3. Local authorities
4. Other authorities
5. Territory of India
6. Control of the government of India

The above-mentioned terms are better explained in the following section along with relevant cases.

Government (Union and state), Parliament and State Legislature

• Parliament: The parliament comprises of the President of India, the lower house of the parliament that is the Lok Sabha as well as the upper house of the Parliament, that is the Rajya Sabha.
• Executive: It is that organ which implements the laws passed by the legislature and the policies of the government. The rise of the welfare state has tremendously increased the functions of the state, and in reality, of the executive. In common usage, people tend to identify the executive with the government. In contemporary times, there has taken place

A big increase in the power and role of the executive in every state. The executive includes the President, Governor, Cabinet Ministers, Police, bureaucrats, etc.

• Legislature: The legislature is that organ of the government which enacts the laws of the government. It is the agency which has the responsibility to formulate the will of the state and vest it with legal authority and force. In simple words, the legislature is that organ of the government which formulates laws. Legislature enjoys a very special and important in every democratic state. It is the assembly of the elected representatives of the people and represents national public opinion and power of the people.

• Government: The law-making or legislative branch and administrative or executive branch and law enforcement or judicial branch and organizations of society. Lok Sabha (the lower house) and Rajya Sabha (the upper house) form the legislative branch. Indian President is the head of the state and exercises his or her power directly or through officers subordinate to him. The Supreme Court, High Courts, and many civil, criminal and family courts at the district level form the Judiciary.

• State Legislature: The legislative body at the state level is the State Legislature. It comprises of the state legislative assembly and the state legislative council.

Local Authorities

Before understanding what a local authority is, it is important to define Authorities. According to Webster’s Dictionary; “Authority” means a person or body exercising power to command. When read under Article 12, the word authority means the power to make laws (or orders, regulations, bye-laws, notification etc.) which have the force of law. It also includes the power to enforce those laws

Local Authority: As per Section 3(31) of the General Clauses Act, 1897,

“Local Authority shall mean a municipal committee, district board, body of commissioner or other authority legally entitled to or entrusted by the Government within the control or management of a municipal or local fund.”

The term Local authority includes the following:

1. Local government: According to Entry 5 of the List II of VII Schedule ‘local government’ includes a municipal corporation, improvement trust, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.
2. Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was held that within the meaning of the term local authority, village panchayat is also included.

Test to determine Local Authorities

In Mohammad Yasin v. Town Area Committee, the Supreme Court held that to be characterized as a ‘local authority’ the authority concerned must;

1. Have a separate legal existence as a corporate body
2. Not be a mere government agency but must be legally an independent entity
3. Function in a defined area
4. Be wholly or partly, directly or indirectly, elected by the inhabitants of the area
5. Enjoy a certain degree of autonomy (complete or partial)
6. Be entrusted by statute with such governmental functions and duties as are usually entrusted to locally (like health, education, water, town planning, markets, transportation, etc.)
7. Have the power to raise funds for the furtherance of its activities and fulfilment of its objectives by levying taxes, rates, charges or fees

Other Authorities

The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in the Constitution nor in the general clauses Act, 1897 nor in any other statute of India. Therefore, its interpretation has caused a good deal of difficulty, and judicial opinion has undergone changes over time.

The functions of a government can be performed either the governmental departments and officials or through autonomous bodies which exist outside the departmental structure. Such autonomous bodies may include companies, corporations etc.

So, for the purpose of determining what ‘other authorities’ fall under the scope of State, the judiciary has given several judgements as per the facts and circumstances of different cases.

In the University of Madras v. Shanta Bai, the Madras High Court evolved the principle of ‘ejusdem generis’ i.e. of the like nature. It means that only those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions. Further, it cannot include persons, natural or juristic, for example, Unaided universities.

In the case of Ujjammabai v. the State of U.P., the court rejected the above restrictive scope and held that the ‘ejusdem generis’ rule could not be resorted to the in interpreting ‘other authorities’. The bodies named under Article 12 have no common genus running through them and they cannot be placed in one single category on any rational basis.

Lastly, in Rajasthan Electricity Board v. Mohan Lal, the Supreme Court held that ‘other authorities’ would include all authorities created by the constitution or statute on whom powers are conferred by law. Such statutory authority need not be engaged in performing government or sovereign functions. The court emphasized that it is immaterial that the power conferred on the body is of a commercial nature or not.

Territory of India

Article 1(3) of the Constitution of India states that;

“The territory of India shall comprise- (a) the territories of the States;(b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired.”

In the case of Masthan Sahib v. Chief Commissioner, the court held that the territory of India for the purposes of Article 12  means the territory of India as defined in Article 1(3).

Control of the government of India

Under Article 12, the control of the Government does not necessarily mean that the body must be under the absolute direction of the government. It merely means that the government must have some form of control over the functioning of the body. Just because a body is a statutory body, does not mean that it is ‘State’. Both statutory, as well as non-statutory bodies, can be considered as a ‘State’ if they get financial resources from the government and the government exercises a  deep pervasive control over it.

For example- State includes Delhi Transport Corporation, ONGC and Electricity Boards, but does not include NCERT as neither is it substantially financed by the government nor is the government’s control pervasive.

The test laid down in the case of Ajay Hasia is not rigid and therefore if a body falls within them, then it must be considered to be a State within the meaning of Article 12. It was discussed in the case that– “whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of Government. Such control must be particular to the body in question and must be pervasive.

Whether State includes Judiciary?

Article 12 of the Constitution does not specifically define ‘judiciary’. This gives the judicial authorities the power to pronounce decisions which may be contravening to the Fundamental Rights of an individual. If it was taken into the head of ‘State’, then as per the article, it would be  by the obligation that the fundamental rights of the citizens should not be violated. Accordingly, the judgements pronounced by the courts cannot be challenged on the ground that they violate fundamental rights of a person. On the other hand, it has been observed that orders passed by the courts in their administrative capacity (including by the Supreme Court) have regularly been challenged as being violative of fundamental rights.

The answer to this question lies in the distinction between the judicial and non-judicial functions of the courts. When the courts perform their non-judicial functions, they fall within the definition of the ‘State’. When the courts perform their judicial functions, they would not fall within the scope of the ‘State’.

So, it can be noted that the judicial decision of a court cannot be challenged as being violative of fundamental rights. But, an administrative decision or a rule made by the judiciary can be challenged as being violative of fundamental rights, if that be supported by facts. This is because of the distinction between the judicial and non-judicial functions of the courts.

In the case of Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, a 9-judge bench of the Supreme Court held that a judicial decision pronounced by a judge of competent jurisdiction in or in relation to a matter brought before him for adjudication cannot affect the fundamental rights of the citizens since what the judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more. Therefore, such a judicial decision cannot be challenged under Article 13.

Conclusion

The Constitution of India not only gives fundamental right to the citizens but also imposes the duty on the state to ensure that the fundamental rights are protected. The court through its interpretations has widened the scope of the term State to include a variety of statutory and non-statutory bodies under its umbrella.

The need to determine what falls within the meaning of state is, to assign the party on whom the duty to implement such right is placed upon. Not only that, the definition of state under Article 12 has several words which may not have definite meanings, words such as local authorities, control of government, other authorities, etc. and as seen in the above sections, the courts have, through the course of their judgements,  described the extent of the article by laying down a test and discussing the meaning of the terms.

The Problem of Excessive Government Litigation

A litigant is person who is involved in a lawsuit ie. someone who is suing another person or is being sued by another person. Government litigation reportedly constitutes nearly half of all litigation in the Indian judiciary. In this post let us examine the problem of excessive government litigation and the need for reviewing the National Litigation Policy, 2010.

Government litigation constitutes nearly half of all litigation in the Indian judiciary

• There are more than 3 crore cases pending in different courts of India.
• Government litigation reportedly constitutes nearly half of all litigation in the Indian judiciary.
• However, there are no government sources to confirm the actual quantum of its litigation.
• The absence of this statistic itself is an indicator of how ‘interested’ various governments have been in attempting to understand this problem or tackling it meaningfully.
• Besides being a constraint on the public exchequer, government litigation has contributed to judicial backlog, thus affecting justice delivery in India.
• The Supreme Court, since the 1970s, has berated successive governments for being callous and mechanical in pursuing litigation.
• The Law Commission of India also studied this problem in its 126th Report in 1988, and made appropriate observations on this front.
• In 2016, the Prime Minister of India, Narendra Modi broached the problem of excessive government litigation.

In more than 90% cases, the Government side fails to prove the point!

Many of the government litigations are actually cases of one department of the government suing another, leaving decision-making to the courts. Also, it most of the other cases, when government files a case, it is seen that the government side fails to prove the point.

National Litigation Policy (NLP), 2010

The concept of a national litigation policy has been explored by many countries. The Australian Taxation Office, for example, conducts its litigation in accordance with the PS LA 2009/9 Conduct of Tax Office Litigation, which is an elaborate set of guidelines obligating the government to be a model litigant.

The Law Minister in the United Progressive Alliance government had launched a “National Litigation Policy” (NLP) in 2010 to transform the government into a “responsible and efficient” litigant.

The policy idealistically states that there should be greater accountability regarding governmental litigation, and mandates “suitable action” against officials violating this policy.

The NLP 2010 also creates “Empowered Committees” at the national and regional levels, to regulate the implementation of the policy

Why did NLP 2010 fail?

• The NLP has failed as an initiative due to ambiguity.
• The NLP 2010 has no scope for implementation.
• It is replete with rhetoric and generic phraseology.
• Instead of being an analytical policy document attempting to address the causes of excessive government litigation, it appears to have been drafted on anecdotal notions of the problem, with no measurable outcomes or implementation mechanism.
• The NLP 2010 fails to provide a yardstick for determining responsibility and efficiency.
• The text does not define “suitable action”, or prescribe any method to conduct any disciplinary proceedings.
• There is ambiguity about their role and powers of Empowered Committees, resulting in lack of transparency in their functioning. While these committees are intended to be integral to the accountability mechanisms under the policy, the ambiguity in their roles and functions make them susceptible to a constitutional challenge.
• The NLP 2010 also lacks any form of impact assessment to evaluate actual impact on reducing government litigation. This absence of a monitoring mechanism is evident from the fact that there is no data available even today to accurately verify the extent of government litigation in India. Without such evaluation, this litigation policy remains a theoretical, ambiguous and fairly inadequate document on the pretext of policy reform.

The way forward

In 2015, after the National Democratic Alliance came to power, there was a discussion to review the NLP. This is yet to culminate in a revised NLP.

The bureaucracy needs to be sufficiently motivated to tackle the issue.

Finally, the ongoing revision of the NLP needs to ensure certain critical features are not missed out:

1. It must have clear objectives that can be assessed;
2. The role of different functionaries must be enumerated;
3. The minimum standards for pursuing litigation must be listed out;
4. Fair accountability mechanisms must be established;
5. The consequences for violation of the policy must be provided;
6. A periodic impact assessment programme must be factored in.

REFERENCE:

1. The Hindu
2. Wikipedia

The Problem of Pending Cases in Indian Courts: How to tackle?

 

There are more than 3 crore cases pending in different courts of India. Many of these cases are pending for more than 10 years. Below are the approximate number of cases pending in Supreme Court, High Courts and District and Subordinate courts in India.

• Around 60,000 cases are pending in Supreme Court.
• Around 42 lakh cases are pending in different High Courts.
• Around 2.7 crore cases pending in District and Sub-ordinate Courts.

Why are too many cases pending in Indian courts?

At least five crore cases are filed every year and judges dispose of only two crore. The reasons being –

1. Increase in the awareness of rights by common man

The recent socio-economic advances and the resultant awareness of legal rights, has given courage to common people to approach courts of law for justice.

2. New mechanisms (Eg: PIL) and new rights (Eg: RTI)

As government explicit made legislation for new rights like ‘Right to Information’ and ‘Right to Education’, aggrieved parties started to increasingly knock the doors of justice.  Also, active judiciary has invented new devices like Public Interest Litigation which gave again resulted in more cases.

3. There are not enough judges

There are not enough judges (only around 21,000). Current Judge to Population ratio is 10 to 1 million. The Law Commission report in 1987 recommends atleast 50 to 1 million. Population has increased by over 25 crore since 1987.

The Centre says the States should take the lead in increasing the number of judges and the States say Centre should take the lead. As this tug-of-war goes on, judges’ strength remains the same and litigants remain in jail.

More than half the posts are vacant. There is a conflict between Judiciary and Executive regarding the appointment of Judges to Supreme Court and various High Courts.

Colonial legacies like paid long vacations – at a time when the number of judges is low, the appointed judges are taking long vacations, especially in High Courts.

4. There are not enough courts

• Indian judiciary has insufficient resources. Both Center and States are not interested in increasing spending with respect to the judiciary.
• Budgetary allocations for the whole judiciary are a pathetic 0.1% to 0.4% of the whole budget.
• India needs more courts and more benches.
• Modernization and computerization have not reached all courts.

5. There is too much litigation from the Government Side

The government is the largest litigant in India, responsible for nearly half the pending cases. Many of them are actually cases of one department of the government suing another, leaving decision-making to the courts. Also, it most of the cases, when government files a case, it is seen that the government side fails to prove the point.

6. Low judicial quality in lower courts

The Indian Judicial system has miserably failed to attract the best brains and the talented students.

As the quality of judges in lower courts is not always up to the mark, appeals are filed against the decisions in higher courts, which again increases the number of cases.

Judges lack specialization and they have turned less efficient and lazy.

7. Archaic Laws or Vague Drafting of Laws

The archaic laws that fill up the statute books, faulty or vague drafting of laws and their multiple interpretations by various courts are also reasons for prolonged litigation. Some of these laws date back to 1880s. Somebody wants to do something, he is shown a law drafted in the last century and told to stop doing it.

Why can’t the number of Judges be increased?

SC Chief Justice Thakur lamented “inaction” by the Executive in increasing the number of judges to 40,000 from the current 21,000.  He blamed the Centre for doing nothing to increase the number of courts and judges in the country. He accused Centre of stalling appointment of judges to the High Court.

More productive days?

In 2014, former Chief Justice of India, Justice R.M. Lodha, proposed to make Indian judiciary work throughout the year (instead of the present system of having long vacations, especially in the higher courts) in order to reduce pendency of cases in Indian courts.

However, as per this proposal, there is not going to be any increase in the number of working days or working hours of any of the judges and it only meant that different judges would be going on vacation during different periods of the year as per their choice.

But, the Bar Council of India rejected this proposal mainly because it would have inconvenienced the advocates who would have to work throughout the year.

Consequences of Pending Cases in Indian Courts

• The common man’s faith in the justice system is at an all-time low.
• Denies the poor man and under trial prisoners their due of justice.
• Economic reforms remain only on paper without speedier justice system.
• Foreign investors are increasingly doubtful about the timely delivery of justice, which affects the success of programs like ‘Make in India’.
• Judiciary is unable to handle the “avalanche” of litigation. Judiciary becomes overworked and lose its efficiency. Justice delayed is justice denied and Justice hurried is justice buried.

Solutions to the Problem of Pending Cases in Indian Courts

• The government needs to double the number of judges and create all India Judicial Service. The number of judges (vacancies) should be immediately raised to at least 50,000 from the current 21,000.
• Fix the NJAC controversy at the earliest and start appointing judges in Supreme Court and High Courts.
• More courts – Fast Track Courts, Lok Adalats, and Gram Nyayalayas.

REFERENCE:

1. PIB
2. Legal Service India
3. The Hindu

Contempt of Court: Time for a Amendment?

Contempt of court is the offence of being disobedient to or disrespectful towards a court of law. Being disrespectful to legal authorities in the courtroom, or wilfully failing to obey a court order may attract Contempt of Court proceedings. A judge may impose sanctions such as a fine or jail for someone found guilty of contempt of court.

Why is Contempt of Court in news recently?

The recent confrontation between Justice Markandeya Katju and the Supreme Court has raised some issues on contempt jurisdiction in India. There is also an ongoing issue between Calcutta High Court judge CS Karnan and Supreme Court on contempt of court.

In another instance, Justice Kurian Joseph of the Supreme Court of India has said that the trial by the media on pending cases is tantamount to contempt of court.

The Supreme Court in Kuldeep Kapoor & Ors vs. Court on its Motion has observed that a litigant refusing to answer a question put to him by the Court does not constitute criminal contempt of Court.

Besides all these, there are various allegations that judges in the superior courts routinely misuse the power to punish for contempt of court more to cover up their own misdeeds than to uphold the majesty of the law.

Article 129 of Indian Consitution: Supreme Court to be a court of record

“The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.”

Contempt of Courts Act of 1971

In India, contempt of court is of two types: Civil Contempt and Criminal Contempt.

Civil Contempt

• Under Section 2(b) of the Contempt of Courts Act of 1971.
• civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other processes of a court or wilful breach of an undertaking given to a court.

Criminal Contempt

• Under Section 2(c) of the Contempt of Courts Act of 1971.
• criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

(i) Scandalises or tends to scandalize, or lowers or tends to lower the authority of, any court, or

(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or

(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

The amendment to the Contempt of Courts Act, 1971 in 2006

Neither truth nor good faith was defences against the law of contempt in India. This was rectified only in 2006 by an amendment to the Contempt of Courts Act.

The 2006 amendment to the Contempt of Courts Act, 1971 clarifies that the Court may impose punishment for contempt only when it is satisfied that substantially interferes, or tends to substantially interfere with the due course of justice.

But this was not followed in the Mid-Day case, where the Delhi high court sentenced employees of the publication for contempt of court for publishing content that portrayed a retired Chief Justice of India unfavourably. Mid-Day raised the defence of truth and good faith but was not entertained.

Court Cases connected with Contempt of Court in India

• In Duda P.N. v. Shivshankar, P., the Supreme Court observed that the contempt jurisdiction should not be used by Judges to uphold their own dignity. In the free market places of ideas, criticism about the judicial system or the Judges should be welcomed, so long as criticisms do not impair or hamper the “administration of justice”.
• In Auto Shankar’s Case, Jeevan Reddy J, invoked the famous “Sullivan doctrine” that public persons must be open to stringent comments and accusations as long as made with bonafide diligence, even if untrue.
• In Arundhati Roy, In re, the Supreme Court observed that a fair criticism of the conduct of a Judge, the institution of the judiciary and its functioning may not amount to contempt if made in good faith and in public interest.
• In Indirect Tax practitioners’ Association v. R.K. Jain, S.C. observed that the Court may now permit truth as a defence if two things are satisfied, viz., (i) it is in public interest and (ii) the request for invoking said the defence is bona fide. (S.13, Contempt of Courts Act,1971).

Freedom of Speech and Expression vs Contempt of Court

Article 19(1)(a) of the Constitution gives the right of freedom of speech and expression to all citizens.

Articles 129 and 215 give the power of contempt of court to the higher judiciary, and this power limits the freedom granted by Article 19(1)(a).

As Justice Krishna Iyer said, the law of contempt has a vague and wandering jurisdiction with uncertain boundaries. Such a law, regardless of public good, may unwittingly trample upon civil liberties.

Further, the assumption that respect for the judiciary can be won by shielding judges from criticism misjudges public opinion. Surely an enforced silence, in the name of preserving the dignity of the judiciary, would cause resentment, suspicion and contempt, more than it would enhance respect.

In a democracy, the people should have the right to criticize judges. The purpose of the contempt power should not be to uphold the majesty and dignity of the court but only to enable it to function.

The right of the citizens to free speech and expression under Article 19(1)(a) should be treated as primary, and the power of contempt should be subordinate.

What is the relevance of contempt law in a free society?

The power to punish for contempt was draconian in nature without commensurate safeguards in favour of the persons charged with the accusation of having committed contempt of court.

Such a power is not in consonance with the constitutional scheme of India. The basic principle in a democracy is that the people are supreme. Once this concept of popular sovereignty is kept firmly in mind, it becomes obvious that the people of India are the masters and all authorities (including the courts) are their servants.

In many countries, contempt jurisdiction is regarded as archaic and exercised sparingly. In the US, courts no longer use contempt to silence comments on judges or legal matters. The First Amendment to the US Constitution forbids imposition of contempt sanctions on a newspaper.

The concept of criminal contempt in India owing its origin to mid-British times was a corollary of the adage that the king could do no wrong. But this drastic power is often used by the judges in an arbitrary manner. (Note: You may read about Judicial Overreach).

In a free society criticism of the judiciary is inevitable.

Judges have vast powers and people will not remain silent about the exercise of such powers. Just as decisions of other branches of government attract criticism, judicial decisions would also invite the same.

The test to determine whether an act amounts to contempt of court or not is this: does it make the functioning of the judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court even if it is harsh criticism.

The law of contempt should be employed only to enable the court to function, not to prevent criticism.

It’s time for the legislature to take steps to amend the Contempt of Court Act and eschew definition of criminal contempt.

Judiciary should balance two conflicting principles, ie freedom of expression, and fair and fearless justice.

A mature and “broad-shouldered” approach to criticism can only inspire public confidence, not denigrate the judiciary, for justice, as Lord Atkin said, is “no cloistered virtue”.

Judicial Review vs Judicial Activism vs Judicial Overreach

Judicial Review, Judicial Activism and Judicial Overreach are terms which come often in news. In this post, we shall compare Judicial Review vs Judicial Activism vs Judicial Overreach.

Judicial Review

Though legislature has the power to make laws, this power is not absolute. Judicial Review is the process by which the Judiciary review the validity of laws passed by the legislature.

• From where does the power of Judicial Review come from: From the Constitution of India itself (Article 13).
• The power of judicial review is evoked to protect and enforce the fundamental rights guaranteed in Part III of the Constitution.
• Article 13 of the Constitution prohibits the Parliament and the state legislatures from making laws that “may take away or abridge the fundamental rights” guaranteed to the citizens of the country.
• The provisions of Article 13 ensure the protection of the fundamental rights and consider any law “inconsistent with or in derogation of the fundamental rights” as void.
• Under Article 13, the term ‘law’ includes any “Ordinance, order, bye-law, rule, regulation, notification, custom or usage” having the force of law in India.
• Examples of Judicial Review: The striking down of the Section 66A of the IT Act as it was against the Fundamental Rights guaranteed by the constitution.

Judicial Activism

Judicial activism denotes a more active role taken by Judiciary to dispense social justice. When we speak of Judicial Activism, we point fingers to the invented mechanisms which have no constitutional backing (Eg: Suo moto (on its own) cases, Public Interest Litigations (PIL), new doctrines etc).

• From where does the power of Judicial Activism come from: Judicial Activism has no constitutional articles to support its origin. Indian Judiciary invented it. There is a similar concept in the United States of America.
• Suo Motto cases and the innovation of the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi,  have allowed the Judiciary to intervene in many public issues, even when there is no complaint from the concerned party.
• Although the earlier instances of Judicial Activism was connected with enforcing Fundamental Rights, nowadays, Judiciary has started interfering in the governance issues as well.
• Examples of Judicial Activism: Invention of the ‘basic structure doctrine’ in the ‘Keshavanad Bharati case’ (1973) by which Supreme Court further extended the scope of Judicial Review, incorporation of due process of law instead of procedure established by law, collegium system, institutionalization of PIL, banning smoking in public places based on PIL, the order by Supreme Court in 2001 to provide mid-day meals to schoolchildren, the order passed by the National Green Tribunal (NGT) banning diesel trucks older than 10 years in Delhi etc.

 Judicial Overreach

The line between Judicial activism and Judicial Overreach is very narrow. In simple terms, when Judicial activism crosses its limits and becomes Judicial adventurism it is known as Judicial Overreach. When the judiciary oversteps the powers given to it, it may interfere with the proper functioning of the legislative or executive organs of government.

• From where does the power of Judicial Overreach come from: Nowhere. This is undesirable in any democracy.
• Judicial Overreach destroys the spirit of separation of powers.
• Examples of Judicial Overreach: What makes any action activism or overreach is based upon the perspective of individuals. But in general, striking down of NJAC bill and the 99th constitutional amendment, the order passed by the Allahabad High Court making it compulsory for all Bureaucrats to send their children to government school, misuse the power to punish for contempt of court etc. are considered as Judicial Overreach.

Capital Punishment, Mercy Pleas and the Supreme Court

Capital punishment remains and will remain a hot topic across the world. It is not easy to reach a consensus on the question ” Should the death penalty be abolished?”.

There are countries which abolished Capital Punishment. There are countries which did not. India is one among the countries where the death penalty exists, but now only for the “rarest of rare cases”.

Let’s see in this article, the major issues and news related to capital punishment and judiciary. Don’t forget to come back to visit this post again as we normally update our articles when SC pass any new observations or guidelines.

Capital Punishment in India Overview

India retains capital punishment for a number of serious offences. But the imposition of capital punishment is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment. The number of people executed in India since independence in 1947 is a matter of dispute; official government statistics claim that only about 60 people had been executed since independence.

However, the People’s Union for Civil Liberties cited information from Appendix 34 of the 1967 Law Commission of India report showing that 1,422 executions took place in 16 Indian states from 1953 to 1963, and has suggested that the total number of executions since independence may be as high as 3,000 to 4,300.

In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty. In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to ban the death penalty.

Rarest of the rare case doctrine

There are various sections under IPC (302, 376A etc) and other statutes which award capital punishment for the convict. But the Supreme Court of India ruled in 1983 that the death penalty should be imposed only in “the rarest of rare cases.”

While stating that honour killings fall within the “rarest of the rare” category, Supreme Court has recommended the death penalty be extended to those found guilty of committing “honour killings”, which deserve to be a capital crime.

The Supreme Court also recommended death sentences to be imposed on police officials who commit police brutality in the form of encounter killings

IPC 376A – Rape/Sexual Assault

An amendment in the year 2013 provided for the death penalty in case he inflicts an injury upon woman during rape which causes her death or to be in a persistent vegetative state. The death penalty can also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act, 2013.

Laws other than IPC for Capital Punishment

In addition to the Indian Penal Code, a series of legislation enacted by the Parliament of India have provisions for the death penalty.

1. Commission of Sati (Prevention) Act, 1987: Part. II, Section 4(1).
2. Scheduled Tribes (Prevention of Atrocities) Act, 1989: Section 3(2)(i).
3. Narcotic Drugs and Psychotropic Substances (NDPS) Act.

Clemency and Mercy Petition in the Indian Constitution

After the award of the death sentence by a sessions (trial) court, the sentence must be confirmed by a High Court to make it final. Once confirmed, the condemned convict has the option of appealing to the Supreme Court.

Where the condemned prisoner is unable to appeal to the Supreme Court; or where the court either refuses to hear the appeal or upholds the death sentence, the prisoner also has the option of submitting a ‘mercy petition’ to the President of India and the Governor of the State.  

Who grants pardon? The President?

Article 72(1) of the Constitution of India states:

The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death.

Despite the language of the constitutional provisions, clemency is exercised not by the President but by the government.

For all practical purposes, the decision on a mercy petition is arrived at within the MHA as the subject has been allocated to the Department of Home, MHA vide the second schedule of the Government of India (Allocation of Business) Rules 1961. Once a convict submits a mercy petition to the President, the Rashtrapathi Bhavan forwards the petition to the Ministry of Home Affairs, for seeking the Cabinet’s advice on the matter.

The MHA then forwards the same to the concerned State Government for eliciting its views.

It is only then the MHA formulates its advice and tenders it to the President, on behalf of the Council of Ministers).

A memorandum on the case is prepared by a junior official in the Ministry and on the basis of the same, a Joint Secretary or an Additional Secretary ‘recommends’ a decision to commute the death sentence or reject the mercy petition. This ‘recommendation’ is considered by the Minister of Home Affairs who makes the final ‘recommendation’, on behalf of the Cabinet of Ministers, to the President.

Article 74(1) provides the President with only one opportunity to return the ‘recommendation’ for the decision to be reviewed. If no change is made, the President has to sign his assent.

PS: The Constitution doesn’t have any maximum time-limit within which a mercy petition has to be decided. There have been instances of mercy petitions lying with the President for over a decade without any decision being taken. The MHA can’t ask the President to speed up the process. Similarly, a mercy petition may get delayed at MHA or state level too.

Is everything over, once the President rejects the mercy petition and signs his assent?

No.

Things are not over here.

There is still hope for the convict.

President’s pardon/rejection/delay is also subjected to judicial review. Delay in deciding mercy plea is a relevant ground for commuting the death sentence to life imprisonment. This is what happened in the recent Shatrughan Chauhan vs Union of India case.

The Supreme Court has also directed all prison authorities to give a gap of 14 days between intimation of the rejection of mercy petition to the condemned prisoner and his actual execution. In this time period, the convict can seek judicial redress of grievances against the rejection of mercy plea. Also note that if the President grants an unfair pardon, SC can overrule it.

So the long route of capital punishment can be summarized as follows :

1. Trail court awards death sentence.
2. High court confirms it.
3. Supreme court confirms it on appeal.
4. Mercy petition filed to President of India.
5. President of India forwards it to Ministry of Home Affairs.
6. Ministry of Home Affairs routes it to the state concerned.
7. State lets MHA know its advice.
8. MHA forwards its recommendation to the President of India.
9. The President of India rejects that advice and asks MHA to reconsider it.
10. MHA submits its recommendation again.
11. The President of India signs it. Mercy is denied.
12. The convict can ask for Judicial review.
13. The Judicial review verdict is final.

Highlights of recent SC judgement on Mercy Plea (Shatrughan Chauhan vs Union of India)

The following are the 12 guidelines issued by the Supreme Court bench comprising Chief Justice P. Sathasivam, Justice Ranjan Gogoi and Justice Shiva Kirti Singh on various procedures before executing a death convict.

1. Solitary Confinement: (only in last 14 days)
2. Legal Aid:
3. Procedure in placing the mercy petition before the President:
4. Communication of Rejection of Mercy Petition by the Governor:
5. Communication of Rejection of the Mercy Petition by the President:
6. Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the President and the Governor.
7. Minimum 14 days notice for execution:
8. Mental Health Evaluation:
9. Physical and Mental Health Reports:
10. Furnishing documents to the convict:
11. Final Meeting between the Prisoner and his Family:
12. Post Mortem Reports:

Extra articles related to capital punishment worth reading

1. The journey of a mercy plea – Indian Express.
2. How does the President decide mercy petitions?
3. Mercy plea is in the dock – India Today.
4. Capital Punishment – Wikipedia.