एक बार फ़िर देश शर्मशार (अब तो आदत सी हो गई हैं)

जब से हमने लिखने पढ़ने की आदत डाली है या यू कहे जब से हमनें होश

सम्भाला है, तब से ले कर आज तक ! दिल्ली में हुई इस दिल दहला देने वाली
घटना जैसी ना जाने कितनी ही घटनाएँ पढ़ने सुनाने को मिलती रहीं है। पिछले
करीब डेढ दशकों में कई दफ़ा मोमबत्तियों कि रोशनियों में ऐसी खबरों को
रैलियों के रुप में निकलते देखा और पढा है। लेकिन बेचारी मोमबत्तियॉ
कितनी देर तक उस समाज को रौशन करती रहेंगी जो इसका आदि सा हो गया है।
आखिर 2-4 दिन बाद वो भी शांत पड जातीं है और हमारा चीर- परिचित समाज फ़िर
हमारे सामने अपना मुखौटा बदल खडा होता है और हम सभी अपने-अपने कामों को
लौट जाते है।
इस बार थोडा अलग देखने को ये मिल रहा है की हमारे तथाकथित जनप्रतिनिधि भी
दो-चार दिन हो हल्ला में शामिल दिख रहे है। कुछ ऐसी घटनाओं के लिए कडे
कानून की माँग तो कुछ फ़ांसी की माँग को दोहरा रहे हैं
निश्चित ही दिल्ली में ऐसी घटनाक्रम से हम पहली बार रुबरु नहीं हुए
हैं,अभि ज्यादा दिन नहीं हुआ, जब मुनिरका वाली सामूहिक दुष्कर्म (गैंग
रेप) की घटना इसी राजधानी की सड़कों पर देखी गई। जब भी ऐसी घटनाएँ होती
है तो खुब चर्चायें चलती है टीवी,रेडियों ,मीडिया ,समाज, करिब हरेक तबके
मे ऐसी चर्चायें आम रहती है।तरह तरह के सुझाव सामने आते हैं, लेकिन ऐसी
मानसिकता वालें लोग हमारे ईद-गिर्द ही रहते है या कहीं ना कहीं इसी समाज
मे मौजूद है। इन्हे इसी समाज में खाद,पानी,हासिल होता है।ऐसी घिनौनी
अपराध की मानसिकता आसमान से नहीं टपकती, बल्कि हर समय उन छोटे-छोटे
लम्हों में हमारे ईद-गिर्द पलती बढ़ती हैं जिन्हें हम या तो समझना नहीं
चाहते या फ़िर समझकर भी उसकी अनदेखी करते है। दरअसल, जब हम पडोसी की लडकी
की आजाद ख्याली को उसके चरित्र से जोड़ते है। या कोई जोड़ रहा हो तो
मुस्करा भर देते है। तब हम सिर्फ़ औरतों के विरुद्ध नहीं, उन तमाम कमजोर
लोगों के विरुद्ध दरिंदगी की नीव रख रहे होते है। मगर ये विषय कभी नहीं
बन पाता है। ऐसी मानसिकता बदलने के लिए क्या कदम उठाए जाने चाहिए, इस पर
विचार होना दूर की बात है।बात उठेंगी तो ये की बालात्कारीयों को सरेआम
फ़ासी,या म्रृत्युदण्ड मिले, एक और नया बिल, नया कानून बने।
सवाल यह है कि गुस्से से उबल रहा देश इसकी
पुनरावृती के लिए क्यों मजबूर हो रह है? आखिर दरिन्दे इतने बेखौफ़ क्यों
है? उन्हें कोई डर, अपराध बोध या चिन्ता क्यों नहीं होती ?क्यों किसी घर
जाती हुई महिला कर्मचारी, छात्रा, के साथ बर्बर दरिन्दगी की घटना के कुछ
महिनों बाद ही उससे भी बडी दरिंदगी की घटना घट जाती है? इन सवालों पर
सोचना ही होगा, क्योंकि ये सवाल बार-बार हमारे गुस्से को आइना दिखाते है।
क्योंकि ये सवाल बार-बार हमारे गुस्से को नपुंसक ठहराते है। आखिर गुस्से
में कोइ शर्मसार देश क्या करे कि अगली बार फ़िर उसे शर्मसार न होना पडे।
अगर हम इस उबल रहे गुस्से और नफ़रत के बीच थोड़ी शांति से इस सवाल पर
विचार करे तो हम जिस नतीजे पर पहुँचते है, वे हमें आश्वस्त नहीं करते कि
फ़िर हमे किसी झकझोर देने वाली शर्मनाक घटना से दो-चार नही होना पडेगा।
दरअसल अपराध हिम्मत का नहीं होता है। मनोवैज्ञानिक हमेशा से ये बताते
रहे है की अपराधी सबसे कम हिम्मती होते है। अपराध महज कानून से नही
रुकते, क्योंकि अगर सख्त कानून और कठोर सजा इतने ही प्रभावी हथियार होते
तो अमेरिका में पिछले 30 सालों मे 400 गुना अपराधियों मे इजाफ़ा नही होता?
मध्य-पूर्व के देशों मे अपराध का नामोनिशान न होता, क्योंकि वहां आज भी
सख्ती के नाम पर तमाम बर्बर सजाए मौजूद है।
दरअसल अपराध के लिये हिम्मत या दुस्साहस तभी पस्त होता है, जब उसके लिये
सामाजिक माहौल हो। मै इस बात का कभी समर्थन नही करता की सख्त कानून ना
हो, और न ही इस बात को कभी आधार बनाना चाहूँगा कि
लड़कियों या महिलाओं को अपने विरुद्ध होने वालें अपराधों के लिए सदा सजग
रहना चाहिएं। सजगता ऐसी कोई विकल्प नहीं है। मगर सजकता सहजता से जितनी
निभाई जा सके उतनी तो ठीक है लेकिन इसको डर बना लेना उचित नहीं है। डर कर
रहना मतलब अपनी तमाम मासूमियतों का गला घोट देना है। फ़िर क्या किया जाये
की ऐसी घटनाओं से पुनः शर्मसार ना होना पडे। ऐसा नही है कि दिल्ली या देश
का गुस्सा झूठा है, गुस्सा, एकजुटता, उबाल सब कुछ सही है ! असली है ! पर
दिक्कत यह है कि यह सिर्फ़ एक छोके की तरह आता है ओर वैसे ही चला जाता है,
हम वैसे लोग हो गये है जो किसी बडे धमाके के बाद कुछ देर के लिये सजक
रहते है, चौकन्ने रहते है, फ़िर वही मदहोशी में लौट जाते है। यह हमारे
लिये सबसे निर्णायक वक्त है कि बार-बार शर्मसार होते है और ये कितना दिन
चलेगा ? वक्त आ गया है कि हम अपने समाज के कमजोर हिस्से पर चोट करे जिसके
बिना इसमें कोई ठोस परिवर्तन होना सम्भव नहीं है।

आज 'अदम गोंडवी' के कुछ लाइने यहां याद आ रहीं है ;

"  टीवी से अखबार तक गर सेक्स की बौछार हो।
फ़िर बताओ कैसे अपनी सोच का विस्तार हो"  ॥

जिस्म क्या है रुह तक सब कुछ खुलासा देखिए।
आप भी इस भीड़ में घुसकर तमाशा देखिए ॥

इस व्यवस्था ने नयी पीढी को आखिर क्या दिया।
सेक्स की रंगीनियां या गोलियां सल्फ़ास की ॥

जिस्म की भूख कहें या हवस का ज्वार कहें ।
सतही जज्बे को मुनासिब नहीं है प्यार कहें ॥

चार अण्डे उबालकर रखना।
एक बोतल निकालक्र रखना।
घर तुम्हारे भी आयेंगे साहब।
बीबी-बच्चे संभालकर रखना।

                                                                - अभिषेक आनन्द

INDIAN CONSUMER COURT FORUM

       http://www.consumer-court.in/

Bihar Public Service Commission (BPSC) has declared the result of 27th Bihar Judicial Service Main Examination.

BPSC, PATNA, BIHAR

Todays (11-09-2012) Bihar Public Service Commission (BPSC} has declared the result of 27th Bihar Judicial Service Main (Written) Examination.

27th Bihar Judicial Service Main (Written) Examination were held from 16.01.2012 to 20.01.2012.

For more details and the list of qualified candidates in 27th Bihar Judicial Service Main (Written) Examination, visit the link below-

http://www.bpsc.bih.nic.in/Advt/Result-27th-BJSE%28Main%29.pdf

Uttarakhand Public Service Commission UKPSC has announced the Exam Date/ Schedule of Uttarakhand Judicial Service Civil Judge (Junior Division) Preliminary Exam 2012

www.legalfreedom.in

The Uttarakhand Public Service Commission UKPSC has announced the Exam Date/ Schedule of Uttarakhand Judicial Service Civil Judge (Junior Division) Preliminary Exam 2012.  The Preliminary Examination of Uttarakhand Judicial Service Civil Judge (Junior Division) 2012 will be held on September 30, 2012 from 9:00 AM to 12:00 PM at Haldwani, Dehradun and Haridwar.

Interview with Justice A.K. Ganguly, former Supreme Court judge and Chairman of the West Bengal Human Rights Commission.

Interview with Justice A.K. Ganguly, former Supreme Court judge and Chairman of the West Bengal Human Rights Commission.

‘Criminal justice system needs overhaul’

SUHRID SANKAR CHATTOPADHYAY

www.legalfreedom.in

A.K. Ganguly: "If one mitigating circumstance is enough to indicate that the convict cannot be subjected to the death penalty, then that must weigh in the conscience of the judge."

Justice A.K. Ganguly was a judge of the Supreme Court from 2008 to 2012 and before that Chief Justice of the Orissa and Madras High Courts. As a Supreme Court judge, he passed landmark judgments in various important cases, including the 2G spectrum case, in which he was a part of the Bench along with Justice G.S. Singhvi. He is now Chairman of the West Bengal Human Rights Commission. In this interview with Frontline, Justice Ganguly, known for his outspoken views and comments, talked about various aspects of the death penalty in the country. “The criminal justice system in our country needs a substantial overhaul,” he said and pointed out that courts must scrupulously observe the ratio (underlying principles) in the Bachan Singh case and “must eschew the principles of retributive justice”. Excerpts from the interview:

The “rarest of rare” doctrine laid down in the Bachan Singh judgment to limit application of the death penalty has, according to observers, resulted in the imposition of the death penalty in cases that did not warrant it. Would you agree with this view?

I would agree, and this is also the judicially accepted position. If you look at the background of the Bachan Singh case, there are several aspects that have to be considered. The question of death penalty in respect of certain crimes was introduced to our jurisprudence by the Indian Penal Code, which was introduced in British India by our colonial masters. There was a Code of Criminal Procedure [CrPC], 1898. Its Section 367(5) mandated that in a case where the death penalty was prescribed, the court while granting any penalty other than the death penalty had to record reasons. Therefore, prior to the coming of the Constitution, the position was that the death penalty was the rule and life imprisonment was an exception. This provision continued in our Constitution in 1950 and was deleted in 1956.

But the Code of 1898 continued till it was replaced by the present Code of 1973. Under the 1973 Code, some remarkable changes took place in view of the recommendations of the 41st Law Commission, which held that our sentencing procedure was not properly framed. As a result, in the 1973 Code two provisions were introduced – Section 235 (2), which provides for hearing the accused on the question of sentence; and Section 354, where Sub-section 3 provides that where death penalty is to be given the court has to record special reasons. These two provisions were very important as they led to the “rarest of rare” doctrine. Prior to Bachan Singh, in 1973, in the Jagmohan case, the constitutionality of the death sentence provision was questioned, and it was affirmed. But at that time it did not have the benefit of the aforesaid two provisions.

Therefore the Bachan Singh ratio is largely built around these two provisions, and the Supreme Court held that the death penalty should be an exception and life sentence the rule. The previous jurisprudence was reversed. Our constitutional jurisprudence had also undergone substantial change – in view of the decision in Maneka Gandhi, the American doctrine of “due process” was introduced, and in Sunil Batra the Supreme Court held that the “prohibition against cruel and unusual punishment”, which is there in the Eighth Amendment of the United States Constitution, is also virtually present in our jurisprudence. The combined effect of all this was the evolution of the “rarest of rare” doctrine.

These changes in our laws reflect the evolving standards of fairness which mark the progress of a maturing democracy compatible with the dignity of the individual – the core constitutional value. The “rarest of rare” doctrine is now internationally appreciated by David Pannick in his book Judicial Review of Death Penalty and in Treatise on The Death Penalty by Roger Hood and Carolyn Hoyle.

But I agree with your question that this principle of Bachan Singh has not been uniformly followed by the smaller Benches of the Supreme Court, and in cases which do not warrant the death penalty, the death penalty has been imposed, as noted in Santosh Kumar Bariyar. The Supreme Court noted that the decision of the Supreme Court in Ravji in 1996 was given without following the ratio in Bachan Singh. The Supreme Court held that the decision in Ravji was rendered per incuriam [out of error or ignorance], and noticed that the decision in Ravji was followed by the Supreme Court in at least six other cases. The Supreme Court has also found in Swamy Shraddananda that a lot of subjectivity has crept into the process of sentencing in death sentence cases.

The requirement in the Bachan Singh case that the death penalty should be considered only if the alternative sentence (life imprisonment) is unquestionably foreclosed has, according to observers, been given short shrift by many judges of the Supreme Court. Should the prosecution give evidence in every case why the alternative sentence is not possible and whether the convict cannot be reformed?

Yes. The ratio in Bachan Singh requires that the prosecution must prove that the convict is a threat to society and is beyond repair. These two mitigating circumstances, apart from various others, which have been enclosed in Bachan Singh must be proved by the prosecution to be absent, and obviously the accused will have a chance to participate and rebut the evidence produced by the prosecution. The Supreme Court in Bachan Singh endorsed in paragraph 206 the mitigating circumstances suggested by the learned counsel appearing before it. So when the prosecution demands the death sentence, it must satisfy these tests. That is how application of the death sentence is restricted. But, unfortunately, this Bachan Singh ratio has not been followed by the Supreme Court in many cases – a fact noted by the Supreme Court itself in Bariyar.

Mitigating circumstances

The Bachan Singh case lists the mitigating factors to be taken into account by a judge while considering the death penalty. Should the death penalty be ruled out even if one mitigating factor is present in a given case? According to observers, even Ajmal Kasab qualifies for two of these factors – age and ideology-driven crime.

About Kasab, I will not make any comment since the matter is sub judice before the Supreme Court. My interpretation of the Bachan Singh ratio is that while weighing the aggravating and the mitigating circumstances, the judge must give due weight to the presence of mitigating circumstances. If one mitigating circumstance is enough to indicate that the convict cannot be subjected to the death penalty, then that must weigh in the conscience of the judge.

You see, in our country the mitigating and aggravating circumstances are not statutorily indicated; they are judicially evolved principles on the basis of various decisions. While evaluating these circumstances, even one mitigating circumstance may be enough in a given situation for not giving the death penalty, since the death penalty is irreversible in nature.

Former President Pratibha Patil commuted death sentences for 35 convicts during her term, and left undecided mercy petitions filed by 16 convicts for the consideration of her successor. Can inordinate delay in deciding a mercy petition alone be a consideration for commuting a death sentence?

Yes it can. If you keep a person on death row for a very long time, that by itself is a sufficient penalty. The Supreme Court has held that delay in considering commutation is a ground for granting commutation.

The government seems to be following a policy of rejecting mercy petitions filed by those convicted in terrorist crimes. Some observers have warned that this may be counterproductive as in most cases the masterminds of terrorist attacks are either killed during encounters or elusive and untraceable; those sentenced to death are either not aware of the terrorist designs of their masters or are brainwashed into committing terrorist acts.

In formulating policies for commutation there cannot be a straitjacket. Mere participation in a terrorist crime cannot [be the grounds to] deny a person equal rights along with other persons applying for commutation. Every case has to be judged on its individual facts. Straitjacketing or labelling such cases is certainly unreasonable. I do not know whether there is such a policy.

But legally there cannot be any predetermined policy of dealing with a case of commutation. The conduct of the person praying for commutation, the circumstances under which the crime was committed, his background, his past history as a criminal, all these things have to be considered. If there is a predetermined policy, that policy is unreasonable.

Many convicts also seem to suffer from varying degrees of mental retardation when they commit murder. Is it fair to subject such convicts who have subnormal behaviour symptoms to the death penalty? Should Indian standards of insanity be reviewed?

The standards of insanity fixed in our statutes under Section 84 of the Indian Penal Code and Section 328 of the CrPC require to be reconsidered in the light of the development of the law, especially in the United States – in Penry vs Lynaugh (492 U.S. 302) and Atkins vs Virginia (536 U.S. 304). These are very valid questions of human rights and can be a facet in the mitigating factors. The mitigating factors are never closed. This emerging concept of the mental state of the convict – he may not be insane but may be suffering from other kinds of mental derailment – is certainly a matter for consideration.

Those who are mentally retarded or a person with a deficient IQ – before imposing the death penalty, their cases require a more human consideration in view of the emerging jurisprudential development in the cases I have already indicated.

Abolition debate

Are you in favour of retaining the death penalty in the statute books? Or do you think the time has come to abolish it in India?

This is a very complicated issue. The death penalty is not only a legal issue, but also a complex social and ethical issue since you are dealing with human life. In Bariyar, the Supreme Court has already indicated that. All over the world opinion is gaining ground against the death penalty, and about 138 countries have opined in favour of abolishing it in different forms or limiting it to very few cases. In our country, when the death penalty was constitutionally upheld in Jagmohan, the court looked into the 35th Law Commission report submitted in 1967. The Law Commission, after considering various social aspects, considering the size of the country and various standards of morals prevailing among various communities, opined in favour of retaining the death penalty. The Supreme Court judgment [in Jagmohan] relied on this. In Bachan Singh also the same 35th Law Commission report was referred to. We have come a long way since 1967.

I think the time has come for the Law Commission to re-examine the issues once again, in their proper perspective and in the context of the emerging global trend where the number of countries abolishing the death penalty has gone up substantially from what it was in 1967. In view of the Bachan Singh judgment I cannot say today that the death penalty is unconstitutional, but freakish and random imposition of the death penalty is certainly unconstitutional.

Full-life sentence

Do you think the death penalty accomplishes any sentencing aim better than any other penalty, including the full-life sentence?

I have some reservation about the full-life sentence. The court cannot reconstruct a sentencing procedure which is not contemplated in the statute. The court can certainly exercise its discretion in deciding which of the alternative sentences prescribed in the statute should be imposed. A full-life sentence forecloses the convict’s constitutional right of seeking remission or pardon from the President under Article 72 or from the Governor under Article 161. These rights of the convict flow from his fundamental right under Article 21.

Therefore the court in my view cannot, by devising a third method of sentencing procedure, create an obstacle in the operation of constitutional principles.

Does our criminal justice system, with its deep problems in the police, prosecution and system of criminal defence, inspire enough confidence in you so as to administer an extreme penalty such as the death penalty?

The criminal justice system in our country needs a substantial overhaul. Dissatisfaction with the system is well known. But that by itself cannot be a reason to outlaw the capital punishment provision. As I have said, at the time of imposing capital punishment the courts must be very circumspect and very careful in exercising their discretion. The courts must scrupulously observe the ratio in Bachan Singh and must eschew the principles of retributive justice. A system is as good or as bad as the persons who are manning it. The present system, if properly handled, can be quite effective. The difficulty is not with the system, but with those who are running it.

So would that make it difficult for a judge to impose an extreme penalty ?

Whether the death penalty will be given or not is a matter which in our country is largely given to the discretion of judges on certain guided principles. The ratio of these “guided principles” must be followed. A judge is not a free agent while imposing the death penalty. His personal choice and opinion, the effect which the crime has on his passion, must be set aside and the entire matter should be very objectively considered on the lines of the principles which have already been established.

Do you feel there is a possibility of miscarriage of justice in capital punishment cases in spite of safeguards such as mandatory High Court appeal and provision of separate sentencing hearing?

Miscarriage of justice has taken place, which has been noted in Bariyar and it’s a case of grave miscarriage. It has only taken place because of improper perception, I am sorry to say, even of the learned judges of the Hon’ble Supreme Court.

What safeguards would you recommend in the short term to make the administration of the death penalty more secure in India?

Normally a case of death penalty ends its journey at the Supreme Court. I would recommend the Supreme Court to consider death penalty cases by a Bench of at least three judges, and if there is a split verdict among these three judges, then the death penalty should not be imposed. It can only be imposed on the basis of a unanimous verdict by a Supreme Court Bench of at least three judges.

How will you place the death penalty as a punishment in a democracy like India, which has its political ethos shaped by such enlightened souls as Gandhi, Tagore, Ambedkar and Nehru?

These are very great names, but today mostly they are remembered by garlanding their portraits. Their principles are hardly followed. Just names will not make any difference. If we are to take our democracy to a more mature level, we must heed the principles which were laid down by these great souls of India. Especially when we call Gandhi the Father of the Nation, the death penalty is not compatible with his principles.

The Supreme Court in the Bachan Singh case opted for reform in the administration of capital punishment rather than abolition. Has the dictum in the case satisfactorily served the cause of equal justice and error-free and constitutionally secure administration of capital punishment in the last three decades?

Bachan Singh has been followed in the majority of the cases, but there have been some departures, which have been noted by the Supreme Court itself. Those departures are unfortunate. But, by and large, Bachan Singh has been followed.

Recently, the Supreme Court in a series of decisions, including your decisions, has admitted there is arbitrariness in the selection of penalty in capital cases. How do you see this increasingly visible evidence of subjectivity?

It is an unfortunate development in some cases. But, fortunately, the Supreme Court has now taken a different view of the development and pointed that out in Swamy Shraddananda and in Bariyar.

I feel that the law relating to capital punishment should be more structurally defined rather than keeping it at the stage of judicially evolved principles; that is, the mitigating and the aggravating circumstances can be structurally indicated and defined; and it would be the court’s duty to consider them before awarding the death penalty.


 FROM-



BLOG POST BY- ABHISHEK ANAND

A case against the death penalty

A case against the death penalty

The Supreme Court’s admission of error in the sentencing to death of 13 convicts revives the debate over abolishing the death penalty. By- V. VENKATESAN in New Delhi

Within a few weeks of Pranab Mukherjee assuming office as the 13th President of India on July 25, 14 former judges of eminence signed an unusual appeal addressed to the President. The appeal, in the form of separate letters, sought his intervention to commute the death sentences of 13 convicts, currently lodged in various jails across the country, using his powers under Article 72 of the Constitution.
The President would refer the appeal to the Ministry of Home Affairs for its due consideration and advice, but what is so special about these 13 convicts that made the former judges come together and make an impassioned appeal for commutation?
The unusual appeal does not stem from their principled opposition to the death penalty, though some of them may believe in its abolition personally. They have appealed to the President because these 13 convicts were erroneously sentenced to death according to the Supreme Court’s own admission and are currently facing the threat of imminent execution. The Supreme Court, while deciding three recent cases, held that seven of its judgments awarding the death sentence were rendered per incuriam (meaning out of error or ignorance) and contrary to the binding dictum of “rarest of rare” category propounded in the Constitution Bench judgment in Bachan Singh vs State of Punjab (1980) (2 SCC 684). The three recent cases were Santosh Kumar Bariyar vs State of Maharashtra (2009) (6 SCC 498), Dilip Tiwari vs State of Maharashtra (2010) (1 SCC 775), and Rajesh Kumar vs State (2011) (13 SCC 706).
The former judges also informed the President in the appeal that two prisoners who had been wrongly sentenced to death, Ravji Rao and Surja Ram (both from Rajasthan), had been executed on May 4, 1996, and April 7, 1997, respectively, pursuant to the flawed judgments. These, they said, constituted the gravest known miscarriages of justice in the history of crime and punishment in independent India. The Supreme Court’s admission of error had come too late for them, they wrote.

The Gallows at the central jail in Kannur,  Kerala. A file photograph.

They told the President that the concerns expressed in the appeal had nothing to do with the larger debate over the desirability of retaining the death penalty. “Rather, they pertain to the administration of the death penalty in a conscientious, fair and just manner. Executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system and the authority of the state to carry out such punishments in future,” the appeal explained.
The judges also annexed an explanatory note to their appeal so as to convince the President that the sentences of these 13 convicts indeed deserved to be commuted. In this, they cited the landmark Bachan Singh vs State of Punjab, which laid down the “rarest of rare” doctrine, and said it emphasised giving sufficient weight to the mitigating circumstances pertaining to the criminal along with the aggravating circumstances relating to the crime.
They then explained how this Bachan Singh dictum laid down by a Constitution Bench had been reversed in a later case.
In Ravji @ Ram Chandra vs State of Rajasthan (1996) (2 SCC 175), a case which was decided by a Bench of two judges, the Supreme Court held that “it is the nature and gravity of the crime but not the criminal which are germane for consideration of appropriate punishment in a criminal trial” (paragraph 24). This aspect of the decision in the Ravji case directly conflicts with the Bachan Singh ruling. Thereafter, the Supreme Court repeatedly invoked the Ravji precedent in death penalty cases so as to limit the focus only to the circumstances pertaining to the crime and exclude the circumstances pertaining to the criminal until another two-Bench judge of the Supreme Court discovered this folly in Bariyar, in 2009.
In Bariyar, the Bench held that in all cases, including the most brutal and heinous crimes, circumstances pertaining to the criminal should be given full weight. In this case, the appellant had killed his victim, a young boy, whom he had kidnapped for ransom. Yet, the Bench commuted his death sentence, imposed by the Bombay High Court, to rigorous imprisonment for life as, in its view, the mitigating factors in the case were sufficient to take it out of the “rarest of rare” category. The Bench believed that though the socio-economic backwardness of the convict might not dilute guilt it was a mitigating circumstance and held there was a potential for reform. Relying on Bachan Singh, the court in Bariyar held that the prosecution must prove, as a precondition for awarding the death penalty, that reform and rehabilitation of the criminal would not be possible.
The key issue here is Section 354(3) of the Code of Criminal Procedure (CrPC). This provision states that when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of the sentence of death, the special reasons for such sentence.

Dayanidhi Bisoi, one of the 13 whom the  court admitted was wrongly convicted.  The Odisha Governor commuted his  sentence to life imprisonment.

‘Special reasons’In Bachan Singh, the Supreme Court explained what the phrase “special reasons” meant in this provision. It said: “The expression ‘special reasons’ in the context of this provision obviously means ‘exceptional reasons’ founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal” (paragraphs 161 at page 738 of the judgment). In paragraph 163, Bachan Singh further noted: “....in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of [the] Penal Code, the court should not confine its consideration ‘principally’ or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal”. The circumstances of the criminal would include, as the Supreme Court held in one case, the mindset of the criminal and whether he was under the grip of social factors such as caste.
In Bariyar, the Supreme Court got an opportunity to explain this further: “The rarest of rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death penalty as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.”

Having understood the Bachan Singh judgment clearly, the Bariyar Bench had no compunction in exposing the flaws in the Ravji judgment. The Bench said in paragraph 63: “We are not oblivious that Ravji case has been followed in at least six decisions of this court in which death punishment has been awarded in last nine years, but, in our opinion, it was rendered per incuriam.”
The Bariyar Bench went further in identifying six cases where the Supreme Court had erroneously applied the precedent laid down in the Ravji case, and held that the court had wrongly decided them. They were





Shivajji vs State of Maharashtra,
Mohan Anna Chavan vs State of Maharashtra,

Bantu vs State of Uttar Pradesh (President Pratibha Patil commuted the sentence of this convict),
Surja Ram vs State of Rajasthan (Surja Ram was executed),
Dayanidhi Bisoi vs State of Orissa, and
State of U.P. vs Sattan (this case also includes another convict, Upendra).
The Bariyar Bench held: “It is apparent that (in these cases) Ravji has not only been considered but also relied upon as an authority on the point that in heinous crimes, circumstances relating to the criminal are not pertinent” (paragraph 63).
The Bench observed that the Supreme Court had not brought on record and considered any of the circumstances relating to the seven convicts in these six cases during the sentencing deliberations. Despite the binding precedent of Bachan Singh, Ravji’s decision and the decisions in the aforementioned six cases have narrowed the sentencing considerations to circumstances relating to the crime alone, as noted in Bariyar.

The Bariyar Bench, therefore, declared the judgments in the above six cases per incuriam for having followed Ravji. Another case, Ankush Maruti Shinde and Ors vs State of Maharashtra (2009) (6 SCC 667), which explicitly followed Ravji’s reasoning, was decided just a few days before Bariyar and was, therefore, not noticed in that decision. In this case, the Supreme Court confirmed the conviction and death sentence of six convicts, one of whom was declared a juvenile recently and, therefore, should not have been sentenced to death (see box). The former judges have appealed to the President to commute the death sentence of these convicts also.
Commutation justified 
In addition to the six cases which Bariyar faulted for having followed Ravji’s wrong precedent, it identified another case where the commutation of the death sentence is justified. The case is Saibanna vs State of Karnataka (2005). Saibanna was a life convict. While on parole, he killed his wife and daughter. The Supreme Court sentenced him to death on a reasoning which effectively made death punishment mandatory for the category of offenders serving life sentence.
However, the Supreme Court had in Mithu vs State of Punjab (1983) already struck down Section 303 of the Indian Penal Code, which provided for mandatory death punishment for offenders serving life sentence. The reason is that if the death sentence is mandatory, then it is meaningless to hear the convict on the question of sentence, and it becomes superfluous to state the reasons for imposing the sentence of death. The ratio decidendi (the legal principle which forms the basis of the judgment) of Bachan Singh is that the death sentence is constitutional if it is prescribed as an alternative for the offence of murder and if the normal sentence prescribed by law for murder is imprisonment for life. In Bachan Singh, the court also insisted that a court could impose the death penalty only in the rarest of rare cases when the alternative option is unquestionably foreclosed. (The ratio decidendi of a five-judge Bench would be binding on other Benches of the Supreme Court, unless overruled by a Bench comprising more than five judges. Bachan Singh was delivered by a five-judge Constitution Bench.)
In Saibanna, the court was doubtful whether a person already undergoing imprisonment for life could be visited with another term of imprisonment for life to run consecutively with the previous one. Rather than resolve this doubt through constitutional means, the Supreme Court opted for the easy way out by imposing the death penalty on Saibanna. In Bariyar, therefore, the Supreme Court declared its own ruling in Saibanna as being inconsistent with both the Mithu and Bachan Singh judgments and, as a result, per incuriam. Of the 13 convicts who have been identified in the judges’ appeal, Bantu’s death sentence was commuted by President Pratibha Patil in June this year. Another convict, Ankush Maruti Shinde, has been declared a juvenile and has been removed from death row. Dayanidhi Bisoi’s death sentence was commuted to life imprisonment by the Governor of Odisha in 2003. President Pratibha Patil commuted the death sentences of Sattan and Upendra in July 2011.
Thus, there are now only eight convicts whose death sentences ought to be commuted in line with the Supreme Court’s judgment in Bariyar. Of these, only Saibanna’s mercy petition was pending in the President’s Secretariat when Pratibha Patil completed her term. It is inexplicable why the Ministry of Home Affairs did not recommend the commutation of Saibanna’s death sentence even though his case was brought to the notice of the President more than a year ago. Going by Pratibha Patil’s illustrious record in commuting the death sentence of 35 convicts in just two and a half years of her five-year tenure, she might have commuted Saibanna’s sentence, too, had the government recommended it.
The mercy petitions of the remaining seven convicts have not yet reached the President. Most of them have got their mercy petitions rejected by the Governors of the States where they are lodged in jails awaiting execution. When Pratibha Patil completed her term on July 24, she left a fascinating record and a legacy that none of her successors can ignore easily. She began with a backlog of 23 undecided mercy petitions from her immediate predecessors and received nine fresh petitions, involving 40 convicts.
Of these, she accepted 18 petitions (involving 35 convicts), rejected three (involving five convicts), and passed on 11 undecided petitions (involving 16 convicts) to her successor, Pranab Mukherjee. One of the 35 convicts whose sentences she commuted on June 2 this year, Bandu Baburao Tidake had died on October 18, 2007, while waiting for her decision, but the report about his death apparently did not reach the Home Ministry when it recommended his commutation. It is a moot question whether Tidake would have lived longer had the President commuted his sentence before his death.
But Pratibha Patil’s legacy should not be just seen in quantitative terms. It also has a qualitative dimension. The Home Ministry had often changed its recommendations with regard to the rejection of mercy petitions whenever there was a change of Minister with a new government or with a Cabinet reshuffle, and agreed to a review of the pending recommendations with the President. If one Home Minister recommends the rejection of the mercy petition of a convict, it does not follow that his successor would recommend rejection, if reconsidered. Thus, it appears that in many cases of commutation recommended by Home Minister P. Chidambaram, his predecessors Shivraj Patil or L.K. Advani had recommended rejection.
Rightly, Pratibha Patil decided to wait during the first part of her term in office and used the opportunity provided by the formation of the new government after the 2009 general elections to get the pending mercy petitions reviewed afresh by the new Home Minister. Legally, the President is bound by the advice of the current government and not the one preceding it. Therefore, it can be inferred that she thought it fit to delay decisions on those mercy petitions which the government wanted her to reject. She perhaps thought that if successive Home Ministers had recommended rejection of the same mercy petition, then probably her options were closed.
Her aide told Frontline: “She saw to it that the government has applied its mind, and due deliberations have taken place on every pending petition.”
It clearly suggests that she was dissatisfied with the quality of advice tendered by Chidambaram’s predecessors on the pending mercy petitions. As her aide explained: “She took note of the extenuating circumstances in every case, as advised by the government.”
More clarity is expected on the merits of her and the Home Ministry’s handling of mercy petitions when the Supreme Court, which is currently hearing the pleas of the five convicts against the rejection of mercy petitions by her, gives its verdict. Meanwhile, there is enough reason to believe that the legal safeguards aimed at avoiding the miscarriage of capital punishment have failed to deliver, and public opinion in India can no longer ignore the global movement in favour of the abolition of the death penalty.




INDIA'S NATIONAL MAGAZINE
From the publishers of THE HINDU

BLOG POST BY- ABHISHEK ANAD

Memorandum of legal freedom

Legal freedom

“a firm for legal solution & social organisation”

1. संस्था का नाम :- लीगल फ़्रीडम

2. प्रधान कार्यालय :-wz-468/G,MS Block Hari nagar New,Delhi,110064

3. कार्यक्षेत्र :- इस संस्था का कार्यक्षेत्र संपूर्ण भारतवर्ष होगा ।

4. उद्देश्य :- इस संस्था के निम्नलिखित मुख्य उद्देश्य होंगे :-

1. समान्य विधिक शिक्षा के प्रचार-प्रसार के लिये विभिन्न कार्यक्रमों का संचालन शहरों तथा गांवों में।

2. महिलाओं को उनके विधिक अधिकारों के जानकारी के लिये जागरुकता कार्यक्रम ।

3. अनाथ बच्चों, वृद्धों, विधवाओं, विकलांगों, बाल-श्रमिकों के कल्याण के लिये विधिक कार्यक्रमों क आयोजन।

4. समाज में व्याप्त बुराईयों जैसे बाल विवाह, दहेज प्रथा, व्यभिचार, आदि को समाप्त करने के लिये विशेष विधिक जागरुकता कार्यक्रमों का संचालन।

5. घरेलू हिंषा के विरुद्ध विशेष विधिक जागरुकता कार्यक्रमों का संचालन।

6. सामाजिक न्याय प्राप्त करने के लिए विशेष प्रयास।

7. सूचना का अधिकार कार्यक्रम के तहत लोगों के बीच विशेष विधिक जागरुकता कार्यक्रमों का संचालन ।

8.आम जनों के मौलिक अधिकारों की सुरक्षा के लिए विशेष विधिक जागरुकता कार्यक्रमों का संचालन।

9. पर्यावरण संबंधी मुद्दों पर विशेष विधिक जागरुकता कार्यक्रमों का संचालन।

10. लोकहीत वाद संबन्धी विशेष कार्य ।

11.मानवाधिकार सम्बन्धी मुद्दों पर विधिक जागरुकता कार्यक्रमों का संचालन।

12. विधिक मामलों में विशेष शोध कार्य.

13. दहेज़ सम्बन्धी मामलों में विशेष विधिक जागरुकता कार्यक्रमों का संचालन।

14 भ्रष्टाचार के खिलाफ़ कानूनी लडाई ।

........................      

5 निम्नलिखित व्यक्ति जिनका नाम, पिता/पति का नाम, पता, जीविका का साधन एवं पद नीचे दिया गया है। वर्तमान के कार्यकारणी समिति के सदस्य हैं, जिन पर संस्था के नियमानुसार प्रबंध का भार सौपा गया है ।

क्रम	नाम, पिता/पति का नाम	पता	जीविका के साधन	पद
1	अभिषेक आनन्द पिता-श्री सच्चिदानन्द सिंह	ग्राम- बरेज, पोस्ट-बेलौडी जिला-कैमूर (बिहार)-821109	अधिवक्ता	अध्यक्ष
2	मोहित सहाय पिता-श्री रविन्द्र कुमार सिन्हा	रिषि नगर, कोटला मुबारकपुर, (नईदिल्ली) -110003	अधिवक्ता	उपाध्यक्ष
3	संतोष सिंह पिता-श्री वशिष्ठ सिंह	ग्राम- अकोल्ही पोस्ट- नुआंव जिला- कैमूर(बिहार)	अधिवक्ता	महासचिव
4	साबिया खातून पिता- नुरमोहम्द	A635G sec-11 विजय नगर गाजियाबाद  (उत्तर प्रदेश) 201009	अधिवक्ता	उपसचिव
5	दिनेश कुमार पिता- एच एल गुप्ता	Wz-468/G, M.S ब्लाक, हरी नगर,    (नई दिल्ली) 110064	अधिवक्ता	कोषाध्यक्ष
6	पुष्पराज पिता- उमा शंकर	47/6 म.न.44-129 जबलपुर, जिला-जबलपुर (मध्यप्रदेश) 482001	इंजीनियर	सदस्य
7	रिषी कुमार पिता-	छत्तीसगढ़		सदस्य
8	पंकज कुमार सिन्हा पिता- स्व- सुशील कुमार सिन्हा	72 बारा, छ्तरपुर, पो-छतरपुर, जिला- पलामू (झारखंड) 822113		सदस्य
9	प्रियंका कुमारी	ओलफ़ सेकेंडरी स्कूल सेक्टर-14 गुडगांव (हरियाणा)		सदस्य
10	अशुतोष कुमार पिता- श्री हरि प्रसाद	म.न.-233, क्रास बैगंलोर (कर्नाटक)		सदस्य
11	सौरभ त्रिपाठी	फ़ाफ़ामऊ, इलहाबाद (उत्तर प्रदेश)	अधिवक्ता	सदस्य

12	पूजा केशरी	मुगलसराय (उत्तर प्रदेश)	अधिवक्ता	सदस्य
13	राजेंदर कुमार	सोराव, इलाहाबाद (उत्तर प्रदेश)	अधिवक्ता	सदस्य
14	पूजा शर्मा	भागलपुर (बिहार)	अधिवक्ता	सदस्य
15	टुनटुन अकेला	गोपालपुर (बिहार)	अधिवक्ता	सदस्य
16	प्रदीप	सहजन कला राबर्टग़ंज, सोनभद्र (उ.प्र)	अधिवक्ता	सदस्य
17	महेन्द्र	राबर्टग़ंज,सोनभद्र (उ.प्र)	अधिवक्ता	सदस्य
18	अलका सिंह	बहराइच, (उ.प्र)	अधिवक्ता	सदस्य
19	आशीष त्रिपाठी	बहराइच, (उ.प्र)	अधिवक्ता	सदस्य
20	आशीष रमण मिश्रा	लखनऊ, (उ.प्र)	अधिवक्ता	सदस्य
21	निरज सिंह	बहराइच, (उ.प्र)	अधिवक्ता	सदस्य
22	नितेश कुमार	रोहतास, (बिहार)	अधिवक्ता	सदस्य
23	शैली शारण	डालटेनग़ंज, (झारखंड)	अधिवक्ता	सदस्य
24	प्रीतेश आनन्द	पटना, (बिहार)	प्रबंधक	सदस्य
25	हर्ष रंजन दास	मधुबनी,(बिहार)	वेबडिजाइनर	सदस्य
26	लक्षमण सुखराम प्रसाद, पिता-सुखराम प्रसाद,	महात्मा गांधी अंतराष्ट्रीय हिन्दी विश्वविद्दालय, वर्धा (महाराष्ट्रा)442001	शोध छात्र	सदस्य
27	विजय कुमार महतो	बोकारों, (झारखंड)	वेब डिजाइनर	सदस्य
28	कमलेश कुमार गुप्ता	कैमूर, (बिहार)	वित्त प्रबंधक	सदस्य
29	राजेश कुमार गुप्ता	बक्सर, (बिहार)	वित्त प्रबंधक	सदस्य
30	धनन्जय कुमार सिंह	हाउस न 9-बी-7 सेक्ट-9 ओबरा, (उ.प्र)		सदस्य
31	शशिकला	जौनपुर, (उ.प्र)		सदस्य
32	अर्चना कुमारी	नई दिल्ली		सदस्य
33	बाबू सिंह	दिल्ली	समाज सेवा	सदस्य