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.

Special leave Petition vs Review Petition vs Curative Petition vs Mercy Petition

 

 

Special Leave Petition vs Review Petition vs Curative Petition vs Mercy Petition: What are the differences?

Supreme Court of India has recently passed many important judgments that transformed India.

Connected with judgments, four terms are often seen in the news – (1) Special Leave Petition (2) Review Petition (3) Curative Petition and (4) Mercy Petition. Do you know the difference between these terms? Let’s first start with the Special Leave Petition (SLP).

What is a Special Leave Petition (SLP)?

SLP is a petition seeking special permission (leave) from Supreme Court to appeal against a judgment passed in any of the lower courts or tribunals in India. SLP is not an appeal but a petition filed for an appeal.

The Supreme Court may accept or reject the same.

Constitutional Provisions behind Special Leave Petition

Special leave to appeal is filed before the Supreme Court under Article 136 of the Constitution.

Can High Court review its order if SLP is rejected by the Supreme Court?

The dismissal of an SLP against an order or judgment of a lower forum is not an affirmation of the same.

High Courts can still review its own judgment even if the SLP is rejected by the Supreme Court.

Supreme Court has also clarified that it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of a special leave petition.

What is a Review Petition?

The review petition is a petition in which it is prayed before the Court of law to review its order or judgement which it has already pronounced.

The Court may accept a review petition when a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.

When a review takes place, the Court will not take fresh stock of the case but just correct grave errors that have resulted in the miscarriage of justice. Also, judicial review can only correct a “patent error” and not “minor mistakes of inconsequential import”.

The provision of review is an exception to the principle of stare decisis. Principle of stare decisis binds courts to follow legal precedents set by previous decisions.

Constitutional Provisions behind Review Petition

Under Article 137 of the Constitution of India and the rules made under Article 145, the Supreme Court of India has the power to review its judgment pronounced by it.

As per Supreme Court rules, a review petition is to be filed within 30 days of the pronouncement of judgment or order and that petition should be circulated without oral arguments to the same bench that delivered the judgment.

Who can file a review petition?

It is not necessary that only parties to a case can seek a review of the judgment on it. As per the Civil Procedure Code and the Supreme Court Rules, any person aggrieved by judgment can seek a review.

No oral arguments by lawyers except in death penalty cases

Review petitions would ordinarily be entertained without oral arguments by lawyers. It is heard “through circulation” by the judges in their chambers.

In exceptional cases, the court allows an oral hearing. In a 2014 case, the Supreme Court held that review petitions in all death penalty cases will be heard in open court by a Bench of three judges.

Who hears the review petitions?

Review petitions are heard, as far as practicable, by the same combination of judges who delivered the order or judgment that is sought to be reviewed. If a judge has retired or is unavailable, a replacement is made keeping in mind the seniority of judges.

Should the Court allow every review petition?

The court does not entertain every review petition filed. It exercises its discretion to allow a review petition.

Usually, the court allows a review petition only when it shows the grounds for seeking the review.

Grounds for seeking a review of a judgment

Supreme Court laid down three grounds for seeking a review of a verdict –

• the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him;
• mistake or error apparent on the face of the record;
• any sufficient reason that is analogous to the other two grounds.

Note: In the Union of India v. Sandur Manganese & Iron Ores Ltd case (2013), the court laid down nine principles on when a review is maintainable. The court held that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

Examples of review petitions recently in the news

Supreme Court agreed to review its Sabarimala verdict but refused to do so in the Rafale case.

What if a review petition fails?

The Supreme Court’s is the court of last resort. Its verdict should never result in a miscarriage of justice. To prevent the abuse of its process, the court itself evolved the concept of a curative petition, which can be heard after a review is dismissed.

What is a Curative Petition?

A curative petition is a judicial innovation and a new concept in the Indian legal system.

It is the last and final resort to the judicial remedy of any grievances which is not normally given an open-court hearing.

The origin of curative petitions

The concept originated from the 2002 case of Rupa Ashok Hurra Vs. Ashok Hurra and Anr. over the question whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court after the dismissal of a review petition.

The court used the Latin maxim “actus curiae neminem gravabit”, which means that an act of the court shall prejudice no one. Thus, it applies when the court is bound to undo a wrong done to a party by the act of court itself.

The Supreme Court held that it may reconsider its judgements in order to prevent abuse of its process and to cure gross miscarriage of justice.

Constitutional Provisions behind Curative Petition

Curative Petition is also supported by Article 137 of the Indian Constitution.

A curative petition is needed to provide a final recourse of correcting any errors in judgement where technical difficulties or other apprehensions over reopening a case prevents from reviewing judgements.

Who hears the curative petitions?

Curative petitions are heard by the top three judges including the Chief Justice of India plus the judges who dismissed the review petition.

Conditions for Curative Petition

Supreme Court has laid down some specific conditions to entertain curative petitions:

• The petitioner has to establish that the principles of natural justice were violated and fear of the bias of the judge and judgement that adversely affected him.
• The petition shall state specifically that the grounds mentioned had been taken in the review petition and that it was dismissed by circulation.
• A curative petition must be first circulated to a Bench of the three senior-most judges, and the judges who passed the concerned judgment, if available.
• If a majority of the judges conclude that the matter needs hearing should it be listed before the same Bench.
• The Bench at any stage of consideration of the curative petition can ask a senior counsel to assist it as amicus curiae (Friend of the court).
• A curative petition is usually decided by judges in the chamber unless a specific request for an open-court hearing is allowed.
• The court could impose “exemplary costs” to the petitioner if his plea lacks merit.

What is a Mercy Petition?

Mercy Petition is the last resort of a person when all the remedies available to him/her under the prevailing laws and the Constitution are exhausted.

A mercy petition may be filed before the President of India under Article 72 or the Governor of the state under Article 161.

Even though the mercy petition is filed before the President or the Governor of the state, practically, the decision on the petition is taken by the Council of Ministers (CoM).

The petition will be treated on mercy and not on the legality of the case.

However, any arbitrary decision on mercy pleas, including rejection, by the President of India or Governor can be questioned in the Court.

Mercy petition in death sentence cases

A mercy petition is the last resort available to a convict having death sentence after all legal and judicial remedies like review and curative petitions are exhausted.

For seeking mercy petition, the death sentence by a trial court must be confirmed by the High Court. Then the convict has an option to appeal to the Supreme Court.

If the Supreme Court either refuses to hear the appeal or upholds the death sentence, then the convict or his relative can submit a mercy petition to the President of India (Articles 72) or the Governor of the State (161).

Grounds upon pardon can be sought

In a mercy petition, the person concerned is required to state the grounds upon pardon is sought.

These grounds may not be worth considering from a legal point of view.

But the grounds such as being the only bread earner of the family, the physical condition of the convict, age or the court committing a mistake or error inadvertently have value while consideration by the President.

Supreme Court in the Kehar Singh v Union of India 1988 case held that the grant of pardon by the President is an act of grace and cannot be claimed as a matter of right.

Constitutional Provisions

• Article 72 of the Constitution provides that the President shall have the power to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence
  • in all cases where the punishment or sentence is by a Court Martial;
  • in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
  • in all cases where the sentence is a sentence of death.
• Similarly, under Article 161 the Governor has 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 against any law relating to a matter to which the executive power of the State extends

Procedure for handling Mercy Petitions

There is no written procedure for dealing with mercy petitions.

A convict under the sentence of death is allowed to make the petition within a period of seven days after the date on which the Superintendent of jail informs him about the dismissal of the appeal by the Supreme Court.

The petitions are received by the President’s secretariat on behalf of the President, which is then forwarded to the Ministry of Home Affairs for seeking the advice of the Cabinet.

The Home Ministry in consultation with the concerned State Government discusses the merits of the petition and tenders its advice to the President, on behalf of the Council of Ministers.

The President can return the recommendation only once for reconsideration. If no change is made, the President has to sign his assent.

The Constitution doesn’t specify any time-limit within which a mercy petition has to be decided.

Need for a Standard Procedure while handling Mercy Petition

There is no guideline or written procedure that the government or the President is bound by while processing mercy petitions.

There is no opportunity of a personal hearing before the authorities and as a result, all relevant information may not be made available.

Under the present scheme, there exists a possibility of two persons being treated differently despite having the same grounds, i.e. one person getting relief and another being denied for cases of similar nature.

No prescribed procedure indicates the possibility of arbitrary exercise of power and consequent discrimination. This is in contravention to Articles 21 and 14 of the Constitution.

In the absence of any standard procedure, there is no specific time-limit to decide mercy petitions.

There are instances of mercy petitions lying undecided with the President for over a decade.

In some cases, the convicts were able to take advantage of the delay and get their death sentences remitted on this ground.

International Standards

International Convention on Civil and Political Rights (ICCPR), of which India is a party to, has provisions against torturous, cruel, inhuman and degrading treatment or punishment.

Inordinate and unreasonable delay in execution of death sentence amounts to torture as expounded by the Supreme Court in the Shatrughan Chauhan vs Union of India case.

The ICCPR also establishes the right to life as an inherent, inalienable right that cannot be taken away arbitrarily.

Universal Declaration of Human Rights preserves equality of all persons before the law and equal protection of the law.

Any discriminatory treatment due to lack of procedure or otherwise stands in violation of these international standards.

Mercy Plea vs Capital Punishment

Every civilized country recognizes the need for providing a pardoning power as an act of grace while many countries have started the debate on the utility of the death penalty itself. The Indian Constitution also recognizes the need for providing a final avenue of justice in the form of mercy petition.

While each case is unique, there is a need for a prescribed procedure on handling mercy petitions to remove arbitrariness and to specify definitive grounds for considering relief. Specifying a time limit for disposing of mercy petitions is also needed to allay the apprehensions of both convicts and victims.

Examples of Mercy Petitions recently in the news

Recently the President rejected the mercy petition of one of the convicts of Nirbhaya case. This comes after a Delhi court stayed the death sentence of four convicts for the third time observing that they cannot be executed while a mercy petition is pending before the President.

As per law, if a convict is awarded death sentence, he has three options — review petition and curative petition before the Supreme Court and finally mercy petition before the President. In this case, a review of the rejection of the mercy petition was also filed before the Supreme Court.

Review Petition vs Curative Petition vs Mercy Petition: Conclusion

Various legal remedies available in order of filing: review petition → curative petition → mercy petition.

As per law, if a convict is awarded death sentence, he has three options – review petition and curative petition before the Supreme Court and finally mercy petition before the President.

While the decisions of the lower courts can be reviewed under various articles of the Constitution, a provision for the apex court to review an order passed by them is much needed as a final measure of correcting judicial errors. However, various legal remedies available, including a review of the rejection of mercy petition, are now being used to effectively delay the implementation of the verdict.

In this context, it is essential to arrive at a balance between speedy justice and following just and reasonable procedures. Certain aspects like specifying the time within which review and curative petitions are to be filed, prescribing procedures that avoid duplication of processes in case of multiple convicts facing death penalty must be addressed. Both rights – the rights of the accused and the rights of a victim to seek justice are sacrosanct.

Procedure Established by Law vs Due Process of Law

In this post, we shall see the meaning of two important terms often cited in Supreme Court Judgments ie. Procedure Established by Law and Due Process of Law.

The former is Indian constitutional doctrine and the latter is American, but now the boundaries are very narrow.

Let’s start our discussion with Article 21 of the Indian Constitution. What does it say?

Article 21 in The Constitution Of India

Protection of life and personal liberty:  No person shall be deprived of his life or personal liberty except according to the procedure established by law.

Procedure Established by Law vs Due Process of Law

As we have seen, the term “procedure established by law” is used directly in the Indian constitution. Due Process of Law has much wider significance, but it is not explicitly mentioned in the Indian Constitution. The due process doctrine is followed in the United States of America, and Indian constitutional framers purposefully left that out. But in most of the recent judgments of the supreme court, the due process aspect is coming into the picture again. Let’s see the difference in detail.

Case 1: Procedure Established by Law

It means that a law that is duly enacted by the legislature or the concerned body is valid if it has followed the correct procedure. Following this doctrine means that, a person can be deprived of his life or personal liberty according to the procedure established by law.

So, if Parliament passes a law, then the life or personal liberty of a person can be taken off according to the provisions and procedures of that law.

This doctrine has a major flaw. What is it?

It does not seek whether the laws made by Parliament is fair, just and not arbitrary.

“Procedure established by law” means a law duly enacted is valid even if it’s contrary to principles of justice and equity. The strict following of the procedure established by law may raise the risk of compromise to life and personal liberty of individuals due to unjust laws made by the law-making authorities. It is to avoid this situation, SC stressed the importance of the due process of law.

Case 2: Due Process of Law

Due process of law doctrine not only checks if there is a law to deprive the life and personal liberty of a person but also see if the law made is fair, just and not arbitrary.

If SC finds that any law as not fair, it will declare it as null and void. This doctrine provides for more fair treatment of individual rights.

Under due process, it is the legal requirement that the state must respect all of the legal rights that are owed to a person and laws that states enact must conform to the laws of the land like – fairness, fundamental rights, liberty etc. It also gives the judiciary to access fundamental fairness, justice, and liberty of any legislation.

The difference in layman’s terms is as below: Due Process of Law = Procedure Established by Law + The procedure should be fair and just and not arbitrary.

Extra Articles worth reading

1. Of constitutional ‘due process’: The Hindu – Are we shifting from original constitutional norms?
2. On MCOCA: Tehelka – A Law Inconsistent With The Idea Of India.
3. Due Process of law: Manupatra.

History of Due Process of law

The due process developed from clause 39 of the Magna Carta in England. When English and American law gradually diverged, due process was not upheld in England but did become incorporated in the Constitution of the United States.

Change of situation in India: Maneka Gandhi vs Union of India case (1978)

In India, a liberal interpretation is made by the judiciary after 1978 and it has tried to make the term ‘Procedure established by law’ as synonymous with ‘Due process’ when it comes to protecting individual rights.

In Maneka Gandhi vs Union of India case (1978) SC held that – ‘procedure established by law’ within the meaning of Article 21 must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.

Basic Structure Doctrine

 

The basic structure doctrine is one of the fundamental judicial principles connected with the Indian Constitution.

The doctrine of the basic structure holds that there is a basic structure to the Indian Constitution, and the Parliament of India cannot amend the basic features.

It was in the Kesanvnda Bharati vs State of Kerala case, the Constitutional Bench of the Supreme Court ruled by a 7-6 verdict that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution.

What is the Basic Structure Doctrine?

Indian Constitution is a dynamic document that can be amended according to the needs of society whenever required. Constitution under Article 368 grants power to the Parliament to amend whenever there is a necessity. The Article also lays down the procedure for amendment in detail.

The doctrine of basic structure is nothing but a judicial innovation to ensure that the power of amendment is not misused by Parliament. The idea is that the basic features of the Constitution of India should not be altered to an extent that the identity of the Constitution is lost in the process.

Indian Constitution upholds certain principles which are the governing rules for the Parliament, any amendment cannot change these principles and this is what the doctrine of basic structure upholds. The doctrine as we have today was not present always but over the years it has been propounded and upheld by the judicial officers of this country.

In this article, we would dwell in detail on the evolution of the doctrine of basic structure and what are the features of the Constitution of India that have been regarded as part of the basic structure by the hon’ble courts.

Timeline for Evolution of Basic Structure

Pre – Golak Nath Era

The Constitution of India was amended as early as 1951, which introduced the much-debated Article(s) 31A and 31B to it. Article 31B created the 9th Schedule which stated that any law provided under it could not be challenged for the violation of Fundamental Rights as per Article 13(2) of the Constitution. Article 13(2) states that the Parliament shall not draft any law which abridges the rights conferred under Part III and to that extent it shall be void.

A petition was filed in the Supreme Court of India challenging Article(s) 31A and 31B on the ground that they abridge or take away rights guaranteed under Part III of the Constitution which is against the spirit of Article 13(2) and hence should be declared void. In this case, Shankari Prasad Singh Deo v. Union of India, the Hon’ble Supreme Court held that the power to amend the Constitution including the Fundamental Rights is conferred under Article 368, and the word ‘Law’ as mentioned under Article 13(2) does not include an amendment of the Constitution. There is a distinction between Parliament’s law-making power, that is, the legislative power and Parliament’s power to amend or constituent powers.

After this, several amendments were brought to the Constitution and once again the scope of amendments was challenged in the Sajjan Singh v. State of Rajasthan. The five-judge bench in Sajjan Singh dealt with the validity of the 17th Constitutional Amendment which had added around 44 statutes to the 9th Schedule. Though all of the judges agreed with the decision of Shankari Prasad but for the first time in the concurring opinion by Hidyatullah and Mudholkar JJ doubts were raised on the unfettered power of Parliament to amend the Constitution and curtail the fundamental rights of the citizens.

Golak Nath v. the State of Punjab

In this case, three writ petitions were clubbed together. The first one was by children of Golak Nath, against the inclusion of the Punjab Security of Land Tenures Act, 1953 in the Ninth Schedule. The other two petitions had challenged the inclusion of the Mysore Land Reforms Act in the Ninth Schedule. It is an 11 judge bench decision, wherein the Hon’ble Supreme Court by a majority of 6:5 held that the fundamental rights were outside the purview of the amendment of the Constitution, based on the following reasoning:

• The power of Parliament to amend the Constitution does not subside in Article 368 but it is derived from Article 245, read with Entry 97 of List I of the Constitution. It was very clearly stated that Article 368 only provided for the Procedure of Amendment and nothing more.
• The Court also clarified that the word ‘law’ under Article 13(2) includes within its meaning an amendment to the Constitution. Therefore any amendment against the Fundamental Rights was void.
• The argument that the power to amend the Constitution is a sovereign power, which is over and above the legislative power and hence outside the scope of judicial review was rejected.

However, the 1st, 4th, and 17th Amendments were not declared invalid by the Court as the ruling was given a prospective effect. This meant that no further amendments could be brought into the Constitution violating the fundamental rights. But the cases of Shankari Prasad and Sajjan Singh were declared bad in law by the Court to the extent that Article 13(2) does not include a Constitutional amendment under Article 368.

Constitution 24th Amendment

The Golak Nath case left the Parliament devoid of its powers to amend the Constitution freely, therefore to restore the earlier position; the 24th Constitutional Amendment was brought forth. The Amendment Act not only restored the earlier position but extended the powers of Parliament. The following changes were made through the amendment:

• A new clause (4) was added to Article 13 which stated that ‘nothing in this Article shall apply to any amendment of this Constitution made under Article 368’.
• The marginal heading of Article 368 was changed to ‘Power of Parliament to amend the Constitution and Procedure, therefore’ from ‘Procedure for amendment of the Constitution.
• Article 368 was provided with a new sub-clause (1) which read ‘notwithstanding anything in this Constitution, Parliament may, in the exercise of its Constituent Power amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the procedure laid down in this Article.
• President was put under an obligation to give assent to any Bill amending the Constitution by changing words from ‘it shall be presented to the President who shall give his assent to the Bill and thereupon’ to ‘it shall be presented to the President for his assent and upon such assent being given to the Bill’.
• A reassuring clause (3) was also added to Article 368, which again clarified that ‘nothing in Article 13 shall apply to any amendment made under this Article.

Kesvananda Bharati v. the State of Kerala

This case was initially filed to challenge the validity of the Kerala Land Reforms Act, 1963. But the 29th Amendment of the Constitution placed it under the Ninth Schedule. The petitioner was permitted to not only challenge the 29th Amendment but also the validity of the 24th and 25th Amendments.

The historic judgment was delivered by a 13 judge bench and with the majority of 7:6; they overruled the Golak Nath case. It was held that the power of Parliament to amend the Constitution is far and wide and extends to all the Articles but it is not unlimited to an extent that it destroys certain basic features or framework of the Constitution.

The Hon’ble Supreme Court, however, held that the 24th Amendment was valid as it only states what was present before implicitly. It does not enlarge the powers of Parliament; Article 368 always included the power and procedure to amend the Constitution.

The judges did not provide what constitutes the basic structure but provided an illustrative list of what may constitute the basic structure. As per Sikri, C.J., the basic structure constitutes the following elements:

• The supremacy of the Constitution
• Republican and Democratic forms of Government
• Secular character of the Constitution
• Separation of Powers between the legislature, the Executive, and the Judiciary
• Federal Character of the Constitution

Shelat and Grover, JJ., added the following to the above list:

• The mandate to build a welfare state contained in the Directive Principles of State Policy
• Maintenance of the unity and integrity of India
• The sovereignty of the country

Hegde and Mukherjee, JJ., had their list of the elements of the basic structure, which included:

• The sovereignty of India
• The democratic character of the polity
• The unity of the country
• Essential features of individual freedom
• The mandate to build a welfare state

Whereas Jaganmohan Redd, J., believed that it was the Preamble that laid down the basic features of the Constitution, which are:

• A sovereign democratic republic
• The provision of social, economic, and political justice
• Liberty of thought, expression, belief, faith, and worship
• Equality of status and opportunity

After this judgment, the general opinion was that the judiciary is trying to create an overhaul over the Parliament, but soon an opportunity was laid down before the Court to examine the doctrine.

Evolution of Basic Structure Doctrine

Indra Nehru Gandhi v. Raj Narain was the case in which the faith in the doctrine was affirmed and established. In this case, the appellant had filed an appeal against the decision of Allahabad High Court invalidating her election as the Prime Minister. While the appeal was still pending at the Supreme Court, the 39th Amendment was enacted and enforced which stated that no court has jurisdiction over the election disputes of the Prime Minister.

The Hon’ble Supreme Court relying on the decision of Kesavananda Bharati stated that democracy was an essential feature of the Constitution and forms part of the basic structure. The bench added certain other features to the list of the basic structure, which was: Rule of Law and the power of Judicial Review.

The basic structure then came up in the case of Minerva Mills Ltd. v. Union of India, wherein the Supreme Court provided clarity to the doctrine and laid down that the power of amendment under Article 368 is limited and exercise of such power cannot be absolute. A limited amending power was very well part of the basic structure doctrine of the Constitution. Further, the harmony and balance between fundamental rights and directive principles are also part of the basic structure, and anything that destroys the balance is an ipso facto violation of the doctrine.

The case of L. Chandra Kumar v. Union of India again stated that the power of judicial review under Article 32 of the Supreme Court and Article 226 of the High Court is part of the basic structure doctrine and these powers cannot be diluted by transferring them to administrative tribunals.

Conclusion

Today there is no dispute regarding the existence of the doctrine, the only problem that arises time and again is the contents of the same.

Certain contents have been reaffirmed again and again by the Courts whereas some of them are still in the process of deliberations.

The basic structure doctrine grants the fine balance between flexibility and rigidity that should be present in the amending powers of any Constitution.

Bibliography

• ‘Important Judgments that transformed India’ by Alex Andrews George
• M.P. Jain, Indian Constitutional Law
• V.N. Shukla, Constitution of India
• Krishan Keshav, Singhal’s Constitutional Law – II
• A critique – Legal Service India
• Doctrine – Wikipedia
• Minera Mils Case – Law Octopus
• Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 455
• Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
• Golak Nath v. State of Punjab, AIR 1967 SC 1643
• Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
• Indra Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
• Minerva Mills Ltd. V. Union of India, AIR 1980 SC 1789
• Chandra Kumar v. Union of India, AIR 1997 SC 1125