Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code

LAW COMMISSION OF INDIA

Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code

1.        Keeping in view the representations received from various quarters and observations made by the Supreme Court and the High Courts, the Home Ministry of the Government of India requested the Law Commission of India to consider whether any amendments to s.498A of Indian Penal Code or other measures are necessary to check the alleged misuse of the said provision especially by way of over-implication.

2.        S.498A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives.  A punishment extending to 3 years and fine has been prescribed.  The expression ‘cruelty’ has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security.    Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of ‘cruelty’.  The offence under s.498A is cognizable, non-compoundable and non-bailable.

3.        In a recent case of Preeti Gupta v. State of Jharkhand, the Supreme Court observed that a serious relook of the provision is warranted by the Legislature.   “It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints.  The tendency of over-implication is also reflected in a very large number of cases”.    The Court took note of the common tendency to implicate husband and all his immediate relations.    In an earlier case also – Sushil Kumar Sharma v. UOI (2005), the Supreme Court lamented that in many instances, complaints under s.498A were being filed with an oblique motive to wreck personal vendetta.   “It may therefore become necessary for the Legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with”, it was observed.    It was also observed that “by misuse of the provision, a new legal terrorism can be unleashed”.

4.        The factum of over-implication is borne out by the statistical data of the cases under s.498A.  Such implication of the relatives of husband was found to be unjustified in a large number of decided cases.  While so, it appears that the women especially from the poor strata of the society living in rural areas rarely take resort to the provision.

5.        The conviction rate in respect of the cases under s.498A is quite low.  It is learnt that on account of subsequent events such as amicable settlement, the complainant women do not evince interest in taking the prosecution to its logical conclusion.

6.        The arguments for relieving the rigour of s.498A by suitable amendments (which find support from the observations in the Court judgments and Justice Malimath Committee’s report on Reforms of Criminal Justice System) are:   Once a complaint (FIR) is lodged with the Police under s.498A/406 IPC, it becomes an easy tool in the hands of the Police to arrest or threaten to arrest the husband and other relatives named in the FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation.   When the members of a family are arrested and sent to jail without even the immediate prospect of bail, the chances of amicable re-conciliation or salvaging the marriage, will be lost once and for all.  The possibility of reconciliation, it is pointed out, cannot be ruled out and it should be fully explored.  The imminent arrest by the Police will thus be counter-productive.    The long and protracted criminal trials lead to acrimony and bitterness in the relationship among the kith and kin of the family.   Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated by over-zealous/callous actions on the part of the Police by taking advantage of the harsh provisions of s.498A of IPC together with its related provisions in CrPC.    It is pointed out that the sting is not in s.498A as such, but in the provisions of CrPC making the offence non-compoundable and non-bailable.

7.        The arguments, on the other hand, in support of maintaining the status quo are briefly:

S.498A and other legislations like Protection of Women from Domestic Violence Act have been specifically enacted to protect a vulnerable section of the society who have been the victims of cruelty and harassment.  The social purpose behind it will be lost if the rigour of the provision is diluted.   The abuse or misuse of law is not peculiar to this provision.   The misuse can however be curtailed within the existing framework of law.   For instance, the Ministry of Home Affairs can issue ‘advisories’ to State Governments to avoid unnecessary arrests and to strictly observe the procedures laid down in the law governing arrests.  The power to arrest should only be exercised after a reasonable satisfaction is reached as to the bona fides of a complaint and the complicity of those against whom accusations are made.  Further, the first recourse should be to effect conciliation and mediation between the warring spouses  and the recourse to filing of a chargesheet under s.498A shall be had only in cases where such efforts fail and there appears to be a prima facie case.  Counselling of parties should be done by professionally qualified counsellors and not by the Police.

7.1      These views have been echoed among others by the Ministry of Women and Child Development.

7.2      Further, it is pointed out that a married woman ventures to go to the Police station to make a complaint against her husband and other close relations only out of despair and being left with no other remedy against cruelty and harassment.  In such a situation, the existing law should be allowed to take its own course rather than over-reacting to the misuse in some cases.

7.3      There is also a view expressed that when once the offending family members get the scent of the complaint, there may be further torture of the complainant and her life and liberty may be endangered if the Police do not act swiftly and sternly. It is contended that in the wake of ever increasing crimes leading to unnatural deaths of women in marital homes, any dilution of Section 498-A is not warranted. Secondly, during  the long–drawn process of  mediation also, she is  vulnerable to  threats and  torture.   Such situations too need to be taken care of.

8.        There is preponderance of opinion in favour of making the said offence compoundable with the permission of the court.   Some States, for e.g., Andhra Pradesh have already made it compoundable.  The Supreme Court, in a recent case of –*—, observed that  it should be made compoundable.  However, there is sharp divergence of views on the point whether it should be made a bailable offence.  It is pleaded by some that the offence under s.498A should be made bailable at least with regard to husband’s relations.*Ramgopal v. State of M. P. in SLP (Crl.) No. 6494 of 2010 (Order dt. July 30, 2010.

8.1      Those against compoundability contend that the women especially from the rural areas will be pressurized to enter into an unfair compromise and further the deterrent effect of the provision will be lost.

9.        The Commission is of the view that the Section together with its allied CrPC provisions shall not act as an instrument of oppression and counter-harassment and become a tool of indiscreet and arbitrary actions on the part of the Police.  The fact that s.498A deals with a family problem and a situation of marital discord unlike the other crimes against society at large, cannot be forgotten.   It does not however mean that the Police should not appreciate the grievance of the complainant woman with empathy and understanding or that the Police should play a passive role.

10.      S.498A has a lofty social purpose and it should remain on the Statute book to intervene whenever the occasion arises.  Its object and purpose cannot be stultified by overemphasizing its potentiality for abuse or misuse.   Misuse by itself cannot be a ground to repeal it or to take away its teeth wholesale.

11.      While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s.498A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase.  A balanced and holistic view has to be taken on weighing the pros and cons.  There is no doubt a need to address the misuse situations and arrive at a rational solution – legislative or otherwise.

12.      There is also a need to create awareness of the provisions especially among the poor and illiterate living in rural areas who face quite often the problems of drunken misbehavior and harassment of women folk.   More than the women, the men should be apprised of the penal provisions of law protecting the women against harassment at home.  The easy access of aggrieved women to the Taluka and District level Legal Service Authorities and/or credible NGOs with professional counsellors should be ensured by appropriate measures.   There should be an extensive and well-planned campaign to spread awareness.   Presently, the endeavour in this direction is quite minimal.   Visits to few villages once in a way by the representatives of LSAs, law students and social workers is the present scenario.

13.      There is an all-round view that the lawyers whom the aggrieved women or their relations approach in the first instance should act with a clear sense of responsibility and objectivity and give suitable advice consistent with the real problem diagnosed.  Exaggerated and tutored versions and unnecessary implication of husband’s relations should be scrupulously avoided.  The correct advice of the legal professionals and the sensitivity of the Police officials dealing with the cases are very important, and if these are in place, undoubtedly, the law will not take a devious course.   Unfortunately, there is a strong feeling that some lawyers and police personnel have failed to act and approach the problem in a manner morally and legally expected of them.

14.      Thus, the triple problems that have cropped up in the course of implementation of the provision are:(a) the police straightaway rushing to arrest the husband and even his other family members (named in the FIR), (b) tendency to implicate, with little or no justification, the in-laws and other relations residing in the marital home and even outside the home, overtaken by feelings of emotion and vengeance or on account of wrong advice, and (c) lack of professional, sensitive and empathetic approach on the part of the police to the problem of woman under distress.

15.      In the context of the issue under consideration, a reference to the provisions of Protection of Women from Domestic Violence Act, 2005 (for short PDV Act) which is an allied and complementary law, is quite apposite.   The said Act was enacted with a view to provide for more effective protection of rights of women who are victims of violence of any kind occurring within the family.   Those rights are essentially of civil nature with a mix of penal provisions.  Section 3 of the Act defines domestic violence in very wide terms. It encompasses the situations set out in the definition of ‘cruelty’  under Section 498A. The Act has devised an elaborate  machinery to safeguard the interests of women subjected to domestic violence.  The Act enjoins the appointment of Protection Officers  who will be under the control and supervision of a Judicial Magistrate of First Class.  The said officer shall send a domestic incident report to the Magistrate, the police station and service providers.   The Protections Officers are required to effectively assist and guide the complainant victim and  provide shelter,  medical facilities, legal aid etc. and also act on her behalf to present an application to the Magistrate for one or more reliefs under the Act.   The Magistrate is required to hear the application ordinarily within 3 days from the date of its receipt. The Magistrate may at any stage of the proceedings direct the respondent and/or the aggrieved person to undergo counseling with a service provider. ‘Service Providers’  are those who conform to the requirements of Section 10 of the Act. The Magistrate can also secure the services of a welfare expert preferably a woman for the purpose of assisting him. Under Section 18, the Magistrate, after giving an opportunity  of hearing to the Respondent and on being prima facie satisfied that domestic violence has taken place or is likely to take place, is empowered to pass a protection order prohibiting the Respondent from committing any act of domestic violence and/or aiding or abetting all acts of domestic violence. There are other powers vested in the Magistrate including granting residence orders and monetary reliefs.     Section 23 further empowers the Magistrate to pass such interim order as he deems just and proper including an ex-parte order.    The breach of protection order by the respondent is regarded as an offence which is cognizable and non-bailable and punishable with imprisonment extending to one year (vide Section 31).  By the same Section, the Magistrate is also empowered to frame charges under Section 498A of IPC and/or Dowry Prohibition Act. A Protection Officer who fails or neglects to discharge his duty  as per the protection order is liable to be punished with imprisonment (vide Section 33). The provisions of the Act are supplemental to the provisions of any other law in force. A right to file a complaint under Section 498A is specifically preserved under Section 5 of the Act.

15.1   An interplay of the provisions of this Act and the proceedings under s.498A assumes some relevance on two aspects: (1) Seeking Magistrate’s expeditious intervention by way of passing a protective interim order to prevent secondary victimization of a complainant who has lodged FIR under s.498A. (2) Paving the way for the process of counselling under the supervision of Magistrate at the earliest opportunity.

16.      With the above analysis and the broad outline of the approach indicated supra, the Commission invites the views of the public/NGOs/institutions/Bar Associations etc. on the following points, before preparing and forwarding to the Government the final report:

Questionnaire

1)    a) What according to you is ideally expected of Police, on receiving the FIR alleging an offence u/s 498A of IPC?  What should be their approach and plan of action?

b) Do you think that justice will be better meted out to the aggrieved woman by the immediate arrest and custodial interrogation of the husband and his relations named in the FIR?  Would the objective of s.498A be better served thereby?

2)    a) The Supreme Court laid down in D.K. Basu (1996) and other cases that the power of arrest without warrant ought not to be resorted to in a routine manner and that the Police officer should be reasonably satisfied about a person’s complicity as well as the need to effect arrest.  Don’t you agree that this rule applies with greater force in a situation of matrimonial discord and the police are expected to act more discreetly and cautiously before taking the drastic step of arrest?

b) What steps should be taken to check indiscriminate and unwarranted arrests?

3)    Do you think that making the offence bailable is the proper solution to the problem?  Will it be counter-productive?

4)    There is a view point supported by certain observations in the courts’ judgments that before effecting arrest in cases of this nature, the proper course would be to try the process of reconciliation by counselling both sides.   In other words, the possibility of exploring reconciliation at the outset should precede punitive measures.  Do you agree that the conciliation should be the first step, having regard to the nature and dimension of the problem? If so, how best the conciliation process could be  completed with  utmost expedition? Should there be a  time-limit  beyond which  the police shall be  free to  act without  waiting for the outcome of conciliation process?

5)    Though the Police may tender appropriate advice initially and facilitate reconciliation process, the preponderance of view is that the Police should not get involved in the actual process and their role should be that of observer at that stage?   Do you have a different view?

6)    a) In the absence of consensus as to mediators, who will be ideally suited to act as mediators/conciliators – the friends or elders known to both the parties or professional counsellors (who may be part of NGOs), lady and men lawyers who volunteer to act in such matters, a Committee of respected/retired persons of the locality or the Legal Services Authority of the District?

b) How to ensure that the officers in charge of police stations can easily identify and contact those who are well suited to conciliate or mediate, especially having regard to the fact that professional and competent counsellors may not be available at all places and any delay in initiating the process will lead to further complications?

7)  a) Do you think that on receipt of complaint under S.498A, immediate steps should be taken by the Police to facilitate an application being filed before the Judicial Magistrate under the PDV Act so that the Magistrate can set in motion the process of counselling/conciliation, apart from according interim protection?

b)  Should the Police in the meanwhile be left free to arrest the accused without the permission of the Magistrate?

c)  Should the investigation be kept in abeyance till the conciliation process initiated by the Magistrate is completed?

8)    Do you think that the offence should be made compoundable (with the permission of court)?

Are there any particular reasons not to make it compoundable?

9)    Do you consider it just and proper to differentiate the husband from the other accused in providing for bail?

10)                       a) Do you envisage a better and more extensive role to be played by Legal Services Authorities (LSAs) at Taluka and District levels in relation to s.498A cases and for facilitating amicable settlement?   Is there a need for better coordination between LSAs and police stations?

b) Do you think that aggrieved women have easy access to LSAs at the grassroot level and get proper guidance and help from them at the pre-complaint and subsequent stages?

c)Are the  Mediation Centres in some States well equipped and  better suited to attend to the cases related to S,498-A?

11)                       What measures do you suggest to spread awareness of the protective penal provisions and civil rights available to women in rural areas especially among the poorer sections of people?

12)                       Do you have any informations about the number of and conditions in shelter homes which are required to be set up under PDV Act to help the aggrieved women who after lodging the complaint do not wish to stay at marital home or there is none to look after them?

13)                       What according to you is the main reason for low conviction rate in the prosecutions u/s 498A?

14)                       (a) Is it desirable to have a Crime Against Women Cell (CWC) in every district to deal exclusively with the crimes such as S.498A?   If so, what should be its composition and the qualifications of women police deployed in such a cell?

(b) As the present experience shows, it is likely that wherever a CWC is set up, there may be substantial number of unfilled vacancies and the personnel may not have undergone the requisite training.   In this situation, whether it would be advisable to entrust the investigation etc. to CWC to the exclusion of the jurisdictional Police Station?

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Meeting of Consultative Committee on Law & Justice Discussions on E-Courts, Justice Delivery System, Law Commission Report

The Parliamentary Consultative Committee meeting of Ministry of Law and Justice was held under the chairmanship of Shri M Veerappa Moily, Minister for Law and Justice on 16 May 2011 in New Delhi.  The meeting was attended by Members of Parliament (MPs) as Members of the Consultative Committee.  The officials from Ministry of Law and Justice and NIC attended the meeting.

The Chairman and Minister for Law and Justice apprised the Members of the Committee on Action Taken Report of the last meeting held on 6 December 2010:

  • A status on setting up of family courts in the States was informed.
  • Regional Consultations were held on Electoral Reforms in Bhopal, Kolkata, Mumbai, Lucknow, Chandigarh and Bangalore jointly with the Election Commission of India.  During these meetings, 13th Finance Commission Recommendations were also discussed with the Chief Justices of High Courts.
  • Implementation of 13th Finance Commission recommendations and utilization of grants was discussed in a State Level Conference on 5th May, 2011 with Law/Home Secretaries, Finance Secretaries and Registrar Generals of the High Courts.  15 States have formulated State Litigation Policy and sent a copy to Department of Justice which is under examination.

The other major issues discussed at he meeting pertained to the E-Court Project, improving justice delivery – steps to reduce pendency, implementation of reports of Law Commission of India and Rajiv Gandhi Advocate’s Training Scheme.

 E-Court Project – The scheme of computerization of district and subordinate courts in the country and for upgradation of ICT infrastructure of the higher courts was approved at a cost of Rs.441.8 crore in February 2007 revised in September 2010 at a cost of Rs. 935 crore due to increase in number of court complexes and courts, expansion of scope and additional items and increase in rates of products and services.  Phase I of the Project is planned to be implemented in 12000 courts till 31st March, 2012 and remaining 2249 courts till 31st March, 2014.  The following points were raised by the  Members during discussion:

 (i)                 States should be given a freedom to modify the software applications for the courts.

(ii)               Software for the e-court project should take care of regional languages for subordinate courts .

(iii)              At district and taluka level for providing power backups for hardware and other installations an option for solar energy may also be considered.

(iv)             Training modules for judges and their staff and familiarizing advocates may be provided for within the scheme.

(v)               Open source software should be used instead of propriety software as it requires lot of investment in future.  In this regard, a specific direction should be issued to the implementing agency.

(vi)             The procurement of software and hardware should be decentralized without compromising the quality.

(vii)           Close coordination with the State Governments be done.

(viii)         Technical manpower provided for the purpose should be of good quality.

 Improving justice delivery – steps to reducing pendency

The members felt that:

(i)   Petty cases should be disposed off through morning/evening courts/shift courts and Lok Adalats.

(ii)   Reform measures should be taken up with regard to Appointment of Judges and Judicial Standards and Accountability.

(iii)  A balance should be maintained while reducing the pendency that there should be no compromise on quality of judgments.  A study would be useful to study this correlation.  Department of Justice will take up this study.

Implementation of Law Commission Reports

 Members were assured that Pending recommendations of Law Commission will be considered in the Department of Law and action will be taken expeditiously.

 Rajiv Gandhi Advocate’s Training Scheme

 Members were informed that Rs. 50 lakh have been allocated to National Law University for imparting the training.  The first batch training will take place in the month of June-July, 2011.

 Members present at the meeting were  Members of Parliament Shri Manish Tiwari, Shri shadilal batra, Shri M B Rajesh, Shri P Rajeeve and Shri Gopal Vyas.

Death or life Term- A difficult choice

Opposing death penalty

Image by Joe Athialy via Flickr

There is confusion over the courts’ differing views on death penalty. Mathematical consistency in sentencing is difficult because no two murders are identical. Allowance has also to be made for the judges’ background, beliefs, social philosophy and value system. Within these limitations, the Supreme Court has been able to achieve a reasonable degree of consistency

Beant Singh Bedi in THE TRIBUNE CHANDIGARH

Capital punishment is a highly controversial area of criminal jurisprudence. It has divided the world into two camps: Abolitionists and Retentionists. Both can claim among them eminent thinkers, criminologists, theologists, jurists, judges and law enforcement officials. The chief arguments of the Abolitionists are:

  1. Death penalty is irreversible. It can be — and has been — inflicted upon innocent people. But there is no convincing evidence that death penalty serves any penalogical purpose.
  2. Its deterrent effect remains unproven.
  3. Retribution in the sense of vengeance is outmoded as acceptable end of punishment.
  4. Imposition of death penalty nullifies the purpose of reformation and rehabilitation of the criminal, which is the primary purpose of punishment.
  5. Execution by whatever means is a cruel inhuman and degrading punishment.

The Retentionists argue that a murderer who takes the life of another forfeits his right to his own life. They emphasise the deterrent and retributive aspect of death sentence by arguing that the civilised society must express its revulsion against heinous crimes like murder. True, there have been instances of those persons who, after conviction and execution of murder, were discovered to be innocent. But this, according to the Retentionists, is not a reason for abolition of death penalty but an argument for reform of judicial system and sentencing procedure.

The deterrent value of death penalty has been judicially recognised in a number of cases. In Paras Ram (1973), where a superstitious father had sacrificed his four-year-old innocent son, the Supreme Court while upholding the death sentence inter alia observed that when the crime is of primitive horror and its manifestation is in the form of inhuman and criminal violence, deterrence through court sentence must perforce operate through culprit coming before the court. This view has been reiterated in a number of cases.

The Law Commission of India, it its 35th Report, has vouched for the deterrent effect of capital punishment. However, whether or not death penalty acts as a deterrent may not be statistically proved either way because statistics as to how many potentially murderers were deterred from committing murder but for existence of capital punishment for murder are difficult, if not altogether impossible, to conclude.

The Indian Penal Code (1860) prescribes death as an alternative punishment for the seven offences, murder (Section 302) being one of them. Section 302 says: “Whoever commits murder shall be punished with death or imprisonment for life and also be liable to fine.” The sentencing procedure is prescribed in Section 354 (3) of the Code of Criminal Procedure (1973) which reads “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 judgement shall state the reason for the sentence awarded and in the case of sentence of death the special reasons for such sentence.”

The constitutional validity of these two provisions of law was challenged before the Supreme Court in Bachan Singh (1980) to be tested on the anvil of Articles 14, 19 and 21 of the Constitution. Avoiding the expression of opinion as to which of two antithetical views held by the Abolitionists and Retentinists is correct, the Supreme Court repelled the challenge by inter alia observing: It is sufficient to say that the very fact that the persons of reason, learning and wisdom are rationally and deeply divided in their opinion on this issue is a ground among the others for rejecting the petitioner’s arguments that retention of death penalty in the impugned provisions is totally devoid of reason and purpose.

A forceful plea was made before the Supreme Court for laying out standards or norms restricting the area of imposition of death penalty to a narrow category of murders. The plea was rejected by the court holding that first, there is little agreement among penologist and jurists on what information about the crime and criminal is relevant and what is not relevant for fixing the dose of punishment. Secondly, the criminal cases do not fall into the same behavioral pattern. Thirdly, standardisation of sentencing procedure which leaves little room for judicial discretion to take account of variation in culpability ceases to be judicial. And fourthly, standardisation of sentencing discretion is a policy matter which belongs to the sphere of legislation.

The court ruled that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction of the court in accordance with the sentencing policy writ large in Section 354 (3). It cautioned that judges should never be blood thirsty — hanging of the murderer has never been too good for them. Significantly, in Bachan Singh (1980), though the court had avoided standardising any categories of murder in which the death sentence should be awarded, in Machhi Singh (1983), the court did formulate certain categories of murder in which the death sentence was to be awarded.

The standardisation of the categories of murder in which death sentence must be awarded again came up for consideration in Swamy Shradananda (2008). The court noted with agony the deficiency of the criminal justice system and the lack of consistency in the sentencing process given by the Supreme Court. It noted that Bachan Singh laid down the principle of “rarest of rare cases”. Machhi Singh crystallised the principles into five definite categories of cases of murder and in doing so considerably enlarged the scope for death penalty. However, the court noted with dismay that the reality is that in later decisions neither the “rarest of the rare cases” principle nor Machhi Singh were followed universally or consistently.

The lack of consistency in sentencing process has even been judicially noticed. In Aloke Nath Dutta (2006), Judge Sinha gives some very good instances from a number of Supreme Court decisions in which on similar facts the court took contrary views on giving death penalty to the convict. This leaves the common man confused and bewildered. But mathematical consistency in sentencing is not possible to achieve because no two murders are identical. Allowance has also to be made for the background, beliefs, social philosophy and value system of the presiding judge. Within these limitations, the Supreme Court has been able to achieve a reasonable degree of consistency.

Mention may also be made of the hiatus between the public expectations and the court verdicts. To cite two recent examples, Jessica Lall, a bartender in New Delhi’s Tamarind hotel, was fired point blank and killed on her refusal to serve liquor to the accused. Even in a more gruesome incident, Priyadarshani Matoo, a young LL.B student was stalked by the accused for about two years and ultimately was raped and murdered by him in cold blood. Naturally, these incidents jolted the conscience of civil society and incited public furore. The people demanded death for both the culprits who happened to be the spoiled brats intoxicated by the heady brew of power and pelf of their parents (to borrow from Priyadarshani Matoo, 2010).

In the Jessica Lall case, the accused was acquitted by the trial court while the Delhi High Court reversed acquittal and convicted the accused for murder and sentenced him to life imprisonment, which was upheld by the Supreme Court. In the Matoo case, a somewhat similar result followed. The trial court acquitted the accused. This judgement was reversed by the Delhi High Court, which convicted him for murder and rape and sentenced him to death. On appeal, the Supreme Court, while maintaining conviction, commuted death sentence to life imprisonment.

In the perception of civil society, these murders were very gruesome which tended to endanger the life and safety of law abiding citizens and so deserved death. These judgments, no doubt, disappointed the public expectations, but on the anvil of the rule of “rarest of rare cases” laid down in Bachan Singh and followed in almost all cases since then, the Supreme Court was justified in awarding life sentence as it did. Perhaps court perception sometimes does not match the expectations of civil society.

A study of case law since Bachan Singh (1980) shows that the court is perceptibly veering away from capital punishment to life imprisonment. In this context, a new development may be noted. It was observed in Jagmohan Singh (1973) that life imprisonment in effect meant only 12 years in prison. However, in Swamy Shradhananda (2008), it was noted by the court by referring to a catena of cases starting from Gopal Vinayak Godse (1961) to C.A. Pious (2007) that the punishment for life imprisonment implies a sentence of imprisonment of the convict for the rest of his life.

Following this line of authority, the Supreme Court in Swamy Shradananda case (2008) where the convict (a tantrik) had committed gruesome murder of his wife, taking into consideration some mitigating circumstances, commuted death sentence of the convict and substituted it with imprisonment for life and directed that he shall not be released from prison till the rest of his life. In the United States, this type of sentence is known as life imprisonment without parole (LWOP). Some penologists argue that LWOP is a far more severe punishment than death.

Interestingly, 311 prisoners serving life sentence in Italy petitioned their government in 2007 for the right to be executed. They cited LWOP as a living death where they die a little every day. It is easy to condemn capital punishment as barbaric, but is spending the rest of one’s life in prison so much less cruel to the prisoner or is it merely a way of salving society’s conscience and removing the unpleasantness for the staff and officials? Thus, the debate between the Abolitionists and Retentionists the world over continues.

The writer, a former Additional and Sessions Judge, Punjab, is currently Member, Governing Council, Indian Law Institute, New Delhi

Expedite mercy petitions

The Union Government’s process of taking action on the petitions of those on death row for Presidential clemency has been very slow. The President’s power of pardon under Article 72 of the Constitution is not individualistic but institutional. The President can take a decision on a mercy petition only on the advice of the Union Home Ministry on behalf of the Union Council of Ministers.

A Supreme Court Bench consisting of Justice Harjit Singh Bedi and Justice J.M. Panchal has ruled that if the executive authorities, as a “rigorous self-imposed rule”, are not inclined to take action on a mercy petition within three months from the date of its submission to the President, the condemned convict would be free to apply for commutation of his death sentence to life imprisonment. Otherwise, it will be violative of his right to life and personal liberty guaranteed under Article 21 of the Constitution.

In February 2010, there was some forward movement when Union Home Minister P. Chidambaram met President Pratibha Patil. It was decided that beginning with the oldest mercy petition, the Union Home Ministry would send a formal letter to Rashtrapati Bhavan asking for recall of the file. Once the mercy petition was re-examined in the Home Ministry, the case would be sent back to the Rashtrapati Bhavan either with a request for the death penalty to be commuted to life imprisonment or with a reiteration that the case was fit for death penalty.

Though Home Ministry officials say that the file movement has commenced, it is very slow and needs a gentle push. Apparently, the President is not inclined to reject mercy petitions in a hurry notwithstanding the Union Home Ministry’s pro-active role on the issue. The debate about the continuance of capital punishment continues. Research shows that the relationship between deterrence and severity of punishment is complicated. It is not obvious how deterrence relates to severity and certainty. Criminal policy must be evidence-led rather than based on intuition which is often found to be wrong. In the absence of any significant empirical attention to this question by Indian criminologists, one cannot assume that severity of punishment correlates to deterrence to an extent which justifies the restriction of the most fundamental human right through the imposition of death penalty.

Those who escaped gallows

  1. Jagtar Singh Hawara, assassin of former Punjab Chief Minister Beant Singh (Punjab and Haryana High Court, Oct 13, 2010). The court upheld the death penalty of Balwant Singh, another co-accused, who confessed his hand in the crime.
  2. Cab driver Shiv Kumar for rape and murder of BPO employee Pratibha Srikantamurthy (Bangalore Fast Track Court, Oct 8, 2010).
  3. Santosh Kumar Singh for rape and murder of Priyadarshini Mattoo in New Delhi (Supreme Court, Oct 6, 2010)
  4. Six convicts of the 2006 Dalit family murder case. They get life imprisonment for 25 years (Nagpur Bench of Bombay High Court, July 14, 2010).
  5. Contract killer Mani Gopal for murder of the witness, a eunuch, inside the Tis Hazari court premises in 2003 (Delhi High Court, Aug 31, 2009)

Source: http://www.tribuneindia.com/2010/20101211/edit.htm#6

New law against ‘uncle judges’ coming soon

NAGENDER SHARMA IN THE HINDUSTAN TIMES

With the Supreme Court coming down heavily on the Allahabad High Court, saying the kith and kin of some judges were practising as lawyers in the same court, the government proposes to check the widespread trend in the country by making a fresh law.The issue of ‘uncle judges’ was first raised by the Law Commission of India, which advises the law ministry on complex legal issues, in its report submitted to law minister M Veerappa Moily in August last year.

Based on the feedback provided by the commission, the law ministry is now ready with the judges standards and accountability bill to be introduced in the Parliament, which seeks to make it mandatory for judges to follow judicial standards.

Moily was cautious in his response to the unprecedented remarks by the country’s top court about the largest high court.

“It is a serious matter,” was all he was willing to say.

Ministry officials admitted the issue was not confined to the Allahabad High Court alone. “We have information about Himachal, Punjab & Haryana and Rajasthan high courts,” said an official.

“Often we hear complaints about uncle judges. As a matter of practice, a person who has worked as a district judge or has practiced as a lawyer in a high court for many years is appointed as a judge, he is bound to have colleagues and kith-kin there,” the law commission had stated.

“Even in government services, particularly, Class II and upwards, officers are not given postings in their home districts. In the same way, judges whose kith and kin are practicing in a high court should not be posted there. This will eliminate uncle judges,” the report stated.

Following the strong observations by the commission, the ministry, in its new bill, has made a specific reference to address the issue of ‘uncle judges’.

“No judge shall permit any member of his immediate family (including spouse, son, daughter, son-in-law or daughter-in-law or any other close relative) who is a member of the bar to appear before him or be associated in any manner with any case to be dealt by the judge,” states section 3 of the bill.

Further the definition of close relative includes brother or sister of the judge, brother or sister of the spouse of the judge and brother or sister of either of the parents of the judge, according to the proposed law.

It also debars any practicing lawyer who falls in the family and relative category of the judge to use his residence “for their professional work.

http://www.hindustantimes.com/New-law-against-uncle-judges-coming-soon/H1-Article1-631830.aspx

Can a broken marriage be stitched together?

ANIL MALHOTRA IN THE HINDU

On June 10, 2010 the Union Cabinet approved the introduction of a Bill, i.e., The Marriage Laws (Amendment) Bill, 2010, to be tabled in the ongoing monsoon session of Parliament. It seeks to amend the Hindu Marriage Act, 1955 (HMA) and the Special Marriage Act, 1954 (SMA) to provide for irretrievable breakdown of marriage as a ground for divorce.

The long-awaited move comes more than a year after the Law Commission of India suo motu took up the study of the subject and in its 217th report in March 2009 strongly made the above recommendation.

The Commission examined the existing legislation as well as a number of judgments of the Supreme Court and the High Courts on the subject and was of the view that “irretrievable breakdown of marriage” should be incorporated as another ground for granting divorce under the provisions of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The Commission also recommended that before granting a decree for divorce on the ground that the marriage has irretrievably broken down, the court should examine whether adequate financial arrangements had been made for the parties and children.

Although such a ground for divorce is currently not mentioned in HMA, the Supreme Court has, in appropriate cases, granted a decree of divorce on grounds of “irretrievable breakdown of marriage” by virtue of the powers vested in it under Article 142 of the Constitution. However, different Benches of the Supreme Court have taken separate stands over this issue.

In March, 2006, a three-judge Bench of the Supreme Court granted divorce in Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558. But in February, 2009, a two-judge Bench of the court in Vishnu Dutt Sharma vs. Manju Dutt Sharma (2009) 6 SCC 379, refused to grant divorce on the ground of irretrievable breakdown of marriage. The court observed that it could not add such a ground to Section 13 of HMA as it would amount to amending the Act which is a function of the Legislature.

In the most recent view in May, 2010, in Neeti Malviya vs. Rakesh Malviya (2010) 6 SCC 413, the Supreme Court, while examining the question of waiving the six-month waiting period for divorce by mutual consent by invoking its extraordinary powers under Article 142 of the Constitution, has referred the question for consideration to a Bench of three judges.

Clearly, the underlining note of invoking irretrievable breakdown of marriage as a ground for divorce did not find favour with the Bench. Thus, from the views in the Judgment of the Supreme Court in V. Bhagat vs. D. Bhagat (1994) 1 SCC 337 allowing divorce on the ground of irretrievable breakdown of marriage to the pronouncement of the Supreme Court in Anil Kumar Jain Vs. Maya Jain (2009) 10 SCC 415, not allowing so, there has been a variant view on this controversial subject for 15 years. The Supreme Court, however, has been consistent in its view that neither the High Courts nor the subordinate courts can exercise such power vested only in it.

Realistically speaking, a broken marriage limps to dissolution. Law cannot reunite parties if the matrimonial bond has severed. Consequently, a peaceful parting is necessary if the parties cannot reconcile despite best efforts. Thus, the adding of irretrievable breakdown of marriage as a ground for divorce by Parliament by amending the marriage laws may be the best possible solution for the future of limping marriages.

However, the power of the court to grant divorce on the ground of irretrievable breakdown should be exercised with extreme caution only in circumstances warranting so and when it is in the interest of both the parties. Due regard for maintenance of the dependent spouse, besides welfare of children, must be safeguarded by enabling legislation. Hence, simultaneous amendments to other provisions of marriage laws in this regard must follow forthwith whenever such a law is made.

A balance needs to be maintained wherein the sanctity of the institution of marriage should be protected as well as the individual interests of aggrieved spouses addressed. Moral and cultural values are embedded in Indian ethos and emulation of western principles in matrimonial matters is not appreciable and should not be adopted with ease. Hence, the ground of irretrievable breakdown of marriage should be introduced cautiously and hedged with safeguards so that the provision is not misused.

Nevertheless, there is also an urgent need to set up a family court in every district of the country for adjudicating all kinds of matrimonial disputes. It is really unfortunate that even after more than 25 years of enactment of the Family Courts Act, 1984, only a miniscule number of such courts have been set up only in metropolitan cities.

Also, there must be marriage and divorce laws not just for Hindus but also for Muslims, Christians, Parsis and other religious denominations in line with contemporary practices of young generations who receive higher education and have more cosmopolitan thinking of the brave new world. Times have changed and the people of India must move ahead without living in the past. Harmony at home and peace at work is the most important component and quality of successful Indians in the 21st century. A stable family is an epitome of Indian society.

(Author of “India, NRIs and the Law,” the writer is a Chandigarh-based practising lawyer and can be reached at anilmalhotra1960@gmail.com)