A Most Welcome Revival

 (By K.Ramakumar, Sr. Advocate, High Court of Kerala)
 e-mail : ramakumarassociates@gmail.com    Ph.: 0484 - 2376428
The recent step by the Hon’ble High Court of Kerala in restoring back a minimum period of practice in the bar for judicial appointments at the lower level is most welcome and has to be appreciated and applauded. The practice of law is considered to belong to those learned in law and well versed in procedure. Both these are important equally for judicial officers. Without knowing the nuances of law and legal principles, one cannot be entrusted with the onerous responsibility of sitting in judgement over the rights of others. Law, as is well known is a deep ocean. No amount of swimming in the surface will help unfathom the intricacies of law. A long and deep learning alone will equip a lawyer worth the name to practice law to tender legal service or hold judicial office determining the rights of others. It is good that the Hon’ble High Court has thought fit to bring back the old system of minimum practice in the bar before joining the Judiciary. The swift shifting to judicial chambers on joining the law chambers of one’s father, uncle or father in law has been stopped.

In the past, considering the complexity of a field like law, before becoming a full-fledged lawyer, one had to undergo a period of apprenticeship, take the bar examination and earn a pass in it. This wholesome practice had unfortunately been stopped leading to totally ill-equipped entrants in the bar wholly unfamiliar even with basic subjects like the Code of Criminal Procedure or the Civil Procedure. The ubiquitous presence of the Criminal Manual or the Code of Civil Procedure in the past in all the subordinate courts had become a thing of the past. The internet is an innovation, but mobiles have no entry into law courts. It is not exaggeration but a real story that happened in one of the Magistrate’s Courts when a young lawyer filed an application for exemption from appearance of the accused under Section 151 of the Code of Civil Procedure. If I may be pardoned for making a personal reference, I was a witness to that incident and while I was curiously watching how the court officer or the court dealt with that petition, when the case was called the usual submission “accused absent applies” was made and without a whimper, the Magistrate passed orders even without looking into the petition. These are almost daily occurrences, to the grief of those who have seen better days in our trial courts. Nobody bothers about the provisions of law under which interim applications are made for relief. No questions are asked how the application is maintainable. Not even the opposite lawyer points out the deficiency in the application. So much is the neglect to salient provisions of law, the foundation of the existence of courts, dealing with the lis initially and shaping the fate of the cases before they reach the higher courts.

It may be remembered that learning law is like learning driving. Sitting by the side of an experienced driver for days together is not going to make a person learn driving. He has to drive a vehicle himself. Practice of law is like that. The expression ‘practice’ is defined in reputed dictionaries as follows:

See Black’s Law Dictionary and see under the heading ‘Practice of law’:

“The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interests of another with his consent… It is not limited to appearing in court, or advising and performing of services in the conduct of the various shapes of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, and in larger sense includes legal advice and counsel and preparation of legal instruments by which legal rights and obligations are established.”

Other dictionaries also define the expression ‘practice’ as, “Work of a doctor/lawyer, something done habitually/regularly.”

No one therefore becomes a qualified lawyer unless he “practices” law. If without practice a person is entrusted with the job of judging others, it will be the height of impropriety and injustice. Litigants are entitled to legal services and adjudication from duly qualified hands and not novices.

In this view of the matter, even the system of apprenticing existing in the past has to be restored. This will provide an insight into the profession by watching court proceedings, viewing senior members of the bar conducting cases and even interacting with clients in their offices as part of legal service. Practice and procedure including the Civil Rules of Practice and the Criminal Rules of Practice can be imparted to an apprentice during the one year stint. In addition to that, entry into a prestigious profession by all and sundry who do not wish to stick on can also be regulated. It will be a most welcome idea to restore back the apprenticeship and the bar examination, ignoring the likely criticism that may emanate from certain quarters.

Law remains intriguingly uncertain accompanied by the inordinate delay in all courts. Law’s delay is nothing new. It existed even during the time of Shakespeare receiving derision, flak and ridicule in literary works. The great Charles Dickens also did not spare lawyers or lawyering.

The biggest casualty today in legal profession is quality. Commitment, character and dedication, the hallmarks of a lawyer, are memories of the past. The tall claim that legal profession is noble and honourable does not appear to have takers among the ordinary, credulous and gullible uninitiated litigants. They still look up on the lawyer community with distrust and doubts. The malevolent derides it as a necessary evil in society.

Add that to the murderous assault on the English language, still thrust upon us, occurring every day. Sartorial seniors, watched by greenhorns use expressions like “They says they are in foreign” to the merriment of Judges and amusement of fellow practitioners. Remember there were great literary figures among the lawyer community, like Gandhi, Nehru, K.M.Munshi and C.Rajagopalachari, to name a few. Such tall men are totally absent in the profession now.

The British had given us a fine legal framework. While small Singapore had improved upon it and the South Africans refined it and even Pakistani lawyers did a shade better than us, we by all appearances have impoverished it. Please remember our Pakistani lawyer brothren could persuade their Supreme Court to declare the martial law illegal, while our Supreme Court, caved in.

It is time the members of the legal profession strive hard to bring back the lost glory to their once upon great profession.

Abolition of Cost Indexation — Advantage or Disadvantage?

*(By Mohan Pulickkal, Advocate, High Court of Kerala)
e-mail :mohanpulickkal@gmail.com          Mob.: 9447032937 
The Finance Bill (No.2) 2024 presented by the Finance Minister on 23rd July, 2024 has once again brought into focus the continuing woes and worries of a miniscule section of the populace - the income-tax payers - that has the singular distinction of taking upon themselves the responsibility of contributing to almost one fifth of the Nation’s total revenue. They constitute a bare 2% of the 1.4 billion citizens whereas a sizeable section of their compatriots cutting across caste and creed, some of them totally undeserving, enjoy living on freebies, subsidies and other pecuniary benefits extended by the Government.

Every person who is a consumer of goods or services is a taxpayer with the Central and State tax regimes taking different hues and names to tax every activity touching upon the life of the common man. Taxation laws know no equity or morality either in imposition of tax or its coercive recovery. This brief note, however, intends to deal only with the proposed amendments to the Income Tax Act with regard to the Long Term Capital Gains (LTCG) on real estate transactions.

The Income Tax payers look up to every approaching budget with a fair amount of expectation of at least a little ease of their tax burden, which more often than not is belied by the Finance Minister delivering the budget speech. The latest addition to their disappointment is the proposed abolition of the cost inflation index for calculating the cost of acquisition of capital assets, for the purpose of arriving at long term capital gains on sale of the assets. While doing away with the indexation benefit, purportedly to offset its impact, the rate of LTCG tax is proposed to be reduced from 20% to 12.5%. The proposal to do away with cost indexation and offset the resulting burden on the assessee by reducing the tax rate on long term capital gains has evoked mixed feelings amongst the taxpayers, from confused trepidation to calculated expectation. The Finance Ministry tries hard to explain the proposed amendment as one that will be beneficial to the assessees in the long run, “looking from the point of view of actual market dynamics rather than from mere mathematical calculations”. However, the taxpayers find it difficult to buy that explanation outright.

The effect of withdrawing the indexation benefit while calculating the cost of acquisition for the purpose of computation of long term capital gains tax varies depending on the holding period of the real estate assset as also the appreciation it generates over the period of holding. On a consideration of the tax rate dropping from 20% to 12.5% on sale of real estate to compensate the abolition of indexation benefit, it can be seen that where the property yields higher returns over the holding period, the long term capital gains tax would be lower at the proposed rate of 12.5% whereas lower returns with shorter holding periods would attract higher tax liability. This can be seen if we compare the tax effect in both the cases, i.e., higher returns and lower returns, both with and without the indexation benefit, as illustrated below:

Case No.1 - Higher Profits & Longer period of holding:

(i)   With cost indexation: A property purchased in 2001 for ` 50 lakhs, was sold in 2024 for 5 crore. The indexed cost of acquisition of the property would be
` 1,81,50,000/- (` 50,00,000 x 363/100). The LTCG in this case would be ` 3,18,50,000/- (` 5,00,00,000 -1,81,50,000). The LTCG tax at 20% would be ` 63,70,000/-.

(ii)    Without indexation: The LTCG would be ` 4,50,00,000/- (` 5,00,00,000 - ` 50,00,000) and the tax thereon at 12.5% would be ` 56,25,000/- . The assessee will stand to gain ` 7,45,000/-.

Case No.2 - Shorter Holding & Lower Profits:

(i)   With cost indexation: A property purchased in 2015 for ` 50 lakhs was sold in
2024 for ` 1crore. The indexed cost of acquisition would be ` 71,45,670/-
(` 50,00,000 x 363/254). The LTCG in this case would be ` 28,54,330/- (` 1,00,00,000 - 71,45,670) and the LTCG tax thereon at 20% would be ` 5,70,866/-.

(ii)  Without indexation: The LTCG would be `50,00,000/- (`1,00,00,000 - 50,00,000) and tax thereon at 12.5% would be ` 6,25,000/-. The assessee would stand to lose ` 54,134/-.

The results may vary from case to case depending on the returns and period of holding. However, the proposal to offset the loss that may be caused by the abolition of indexation benefit by lowering the tax rate from 20% to 12.5% would not bring solace to all the assessees alike and would destroy the uniformity of taxation thus far in existence, causing grave prejudice to the taxpayers. In the nature of the amendment proposed, the assessees ought to be given the option to choose between the two methods, which will give some relief to them.

One Step Forward and Two Steps Backward

(By Jacob Abraham, Advocate, High Court of Kerala)
e-mail :jacobabrahamadv@gmail.com             Mob.: 9847044727 

A new direction is issued by the Chief Justice regarding the serving of physical copies on the opposite sides. As per this direction physical copies are to be served on all parties who have already entered appearance or to their counsels. Such a direction is opposite to the very purpose of introducing the e-filing system and typical of our practice in our country of making everything cumbersome by introducing norms contrary to ease of doing business.

The norms in the aforesaid direction result in two different situations in the same case. Parties appearing through counsels and appearing directly are to be served with physical copies and non appearing parties are to be served with online copies of case papers. Besides, this direction is redundant, due to the directions in all the new laws to serve notices and summons through e-mail.

The difficulty of serving notices on the counsels and the party in person and the cost of it on the client are not considered while introducing the aforesaid direction. A person has to be employed for serving physical copies. Physical copies are to be printed out and one party bears the entire cost for employing the person and taking the print out. Just see the number of sheets and the expenses that falls on a single person. If e-mailing is allowed and the recipient is directed to take copies, the costs are spread out.  An absentee lawyer or outstation lawyer or party in person poses another problem. A party in person may be a resident of any part of the world. How to serve physical copies on them?

There are other areas that require modification or changes. When a notice is served or not served on a respondent, as per Rule 52 of the KH Rules the result of it is to be published. The present practice of publication is to enter the results into a book called Ripe Register. To verify it, various seats in different floors are to be approached. The cases in which notices are sent in future, the result of notices sent, whether it is served or not, the reason there of, etc., are shown in the Case Status it will be time saving and will be a move towards ease of doing business.

Now, along with the physical copies, the copy of the receipt showing payment of fees and other amounts is to be furnished separately. If the details of it are printed on the docket, time and lot of papers can be saved.

Some of the FSOs are now insisting on flagging the physical copy. Now the e-filed case files containing petitions, counter, interlocutory applications, etc., are automatically and sequentially numbered, there is no scope for such a practice. Besides, the legal requirement is only to produce a Photostat copy of the case file.

Another important area is regarding the cases in which there are multiple appellants or respondents. Disposal of such cases are delayed due to various reasons. One of it is the death of a party. Then applications for impleading the heirs, to set aside abetment, to condone the delay in setting aside, etc., are to be filed and are to be served on the respondents and proposed respondents. If a threshold limit of number of appellants/peti-tioners/respondents is fixed and immediately after serving of notices, if  such cases are disposed of in a priority manner, the delay in disposal of such cases can be avoided. 

The direction of the Supreme Court to the High Courts to make available Wi-Fi in the court premises to the lawyers and litigants is yet to be implemented.

In the District Judiciary, Links to various courts are not published in the List of Cases. One has to collect the details from such courts by making calls or by sending request to the courts through e-mail. This is not practical always. This is contrary to the spirit of the directions of the Supreme Court reported in Sarvesh Mathur v. Registrar General, High Court of P. & H.) (2023 (5) KLT 792 (SC) = 2023 KLT OnLine 1849 (SC)), wherein, in paragraph 16
it is specifically held that “Placing fetters on highbrid hearings, like mandating an age criteria, requiring prior application, and frequent denial of access to virtual participants has the direct effect of discouraging lawyers and litigants to use technology. Not only does affect the efficiency and access to courts, but it also sends out the misguided message that access to courts can be restricted at whim to those who seeks justice.”  

Rule 129 of the KH Rules is amended and after this amendment, for a third party to obtain the copies of the records from the court an affidavit and a verified petition are to be filed along with the copy application. The necessity of introducing twin conditions is difficult to fathom.

The High Court Act & the Rules made thereunder along with the changes introduced to them by the judgements of individual Judges are not made readily available in the High Court website.

Committees are constituted for advising the High Court on the above aspects. They must be broad based and must include persons having contrarian opinions and are having out of the box thinking capabilities.

If the above suggestions are implemented it will lead to ease of doing business.

Are Teachers Entitled to Beat Students?

(By Ajit Joy, Advocate, High Court of Kerala)
e-mail : ajit.joy@gmail.com       Mob.: 9400048971 

A recent judgment in Jomy v State of Kerala (2024 (4) KLT 297 = 2024 KLT OnLine 1741) approves teachers beating school children. In earlier judgments too, the Kerala High Court has affirmed this right of teachers.The short question I would debate is whether in this day and age, it is right to hold so!

The facts in the Jomy’s case above, involved an English teacher, also the Principal of the school, beating a 13 year old girl. This student of the 8th standard was beaten for scoring poor marks. A case was registered against the teacher under the Sections 82 of the JJ Act and 324 of the I.P.C.

Referring to some earlier judgments of this Court on the same question, the Court held, teachers are entitled to device simple and least onerous corrective measures in the interest of maintaining discipline. Though the term “corporal punishment” was not used, in effect, the judgment was a validation of such punishment.The Court went on to quash the final report of the police.

In K.A.Abdul Wahid v State of Kerala (2005 (2) KLT 72), the Court found nothing criminal in caning the buttocks of a10 year old student by a teacher of a Madrassa. The court held, “the beating is with bona fide intention and there is no mens rea to inflict injury.” The court further ruled that teachers have the implied authority from parents to enforce discipline and correct students. Corporal punishment inflicted for such purposes cannot be considered to be intended to injure the student.

In 2019, in the case of Rajan @ Raju v. The Sub Inspector of Police, Feroke (2019 (1) KLT 119), the court held that a teacher jabbing the shoulder of a class 2 student while teaching mathematics was no offence.The court reasoned that teachers who are loco parentis (place of a parent) are entitled as a disciplinary measure to apply a reasonable degree of force.  However, the Court clarified that this would not extend to “unreasonable or immoderate” punishments.

Justification for this stand in the 2019 judgment also comes from a quote taken from Kenny on Outlines of Criminal Law, 19th Edn. The book says, “…a hurt of a less serious kind is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a schoolmaster to whom the parent has delegated, or is deemed to have delegated, his authority.” The 19th edition of this classic was published in 1966. The very same passage is seen in the 18th edition (1962) of the book at page 15.

UK Bans Corporal Punishment in Schools

Since the 1960’s, the position has totally changed in the U.K. One cannot find such passages in English criminal law books any more. Corporal punishment of any kind is prohibited through the 1996 Education Act of U.K. There was a challenge to Section 548 of this Act by a school, which argued that it was the right of the private Christian school as part of their Christian values, for teachers to inflict corporal punishments. They submitted that the teachers were given full authority to do so by the parents. They also took the contention that S.548, interfered with their freedom of religion under the UK Human Rights Act 1998 and Article 9(1) of the European Convention for the Protection of Human Rights Act. The House of Lords dismissed the appeal in R (on the application of Williamson) v. Secretary of State for Education and Employment [2005] 2 AC 246. Lord Bingham in the Judgment said, “The statutory ban pursues a legitimate aim: children are vulnerable, and the aim of the legislation is to protect them and promote their wellbeing. Corporal punishment involves deliberately inflicting physical violence. The legislation is intended to protect children against the distress, pain and other harmful effects this infliction of physical violence may cause.”

Indian Public Policy Prohibits Beating in School

India’s public policy is categorical on this subject and no different from that of the UK. The Right to Education Act 2009, has prohibited any use of corporal punishment.
Section 17(1) prohibits any child being subjected to physical punishment or mental harassment. Section 17(1) makes a contravention liable to disciplinary action under the Service Rules applicable to such teacher. Prior to this, the National Policy on Education (NPE) 1986 and the National Policy for Children 2013, envisaged corporal punishment to be firmly excluded from the education system.

Our Constitution is foundationed on the “dignity of the individual” which is assured in the Preamble.Dignity of the person further finds categoric affirmation in Article 21 guaranteeing life and personal liberty to everyone. A child is a person and has equal rights and dignity as an adult, if not more.

Article 39(f) states, ‘The State shall ensure that children are given opportunities to develop in a healthy manner and in conditions of freedom and dignity…”. Here the child’s dignity is again emphasized.India has ratified the United Nations Convention on Child Rights (UNCRC). Article 19 of the UNCRC enjoins the protection of children from all forms of physical or mental violence.

Given the above context, beating of a child by a teacher is a violation of the child’s dignity and human rights. A negation of its fundamental rights and statutory protection.When a teacher beats or shouts in class, it pains and traumatizes not only the target student but the entire class. It is infliction of pain and negation of dignity of an entire class of future citizens, whom the National Policy for Children 2013 term, “a unique and supremely important asset of national importance.”

In the Jomy case, the Court found that Section 82 of the Juvenile Justice Act, 2015, prohibiting Corporal Punishment, would not apply to that case, as the Section covers only ‘child care institutions.’ The Court then considered but brushed away the question of the applicability of Section 76, that makes cruelty to a child punishable, accepting the argument that no such intention was there in the teacher. However, it is submitted that, the definition of the Section 76 does not require exploring an intention. A person having charge or control over a child when assaults the child causing unnecessary physical or mental suffering, should be taken as committing the offence. In addition, when considered in the context of the highly progressive general principles listed in Section 3 of the JJ Act like, “best interest of the child,” “child friendly,” and “principle of safety,” there is no room for doubt on the legislative intent or the policy of the nation on children.

The exception of Section 88 of the IPC (Section 28 of the BNS) was used by Courts to absolve teachers who used force. The reliance on Section 88 IPC, in my view, would be incorrect. Section 88 was intended for instances like performance of a surgery on a child even if it was risky and likely to cause harm. Here the parent consents to such procedure. To assume that all parents’ consent or impliedly consent to teachers exercising corporal means to maintain discipline and correct children is an incorrect. Moreover, in the present context of India’s legal framework, no such implied consent can be given by parents.

Spare the Kids from Canes, Rods, Sticks and Slaps

Spare the rod and spoil the child, is a view that many parents and teachers hold. Children, according to them will only obey and respect their teachers if they fear punishment.  However, there is nothing to evidence the salutary effects of corporal punishment. On the contrary, there are studies that point to the negative effects of such actions on children’s mental health, self-esteem and academic performance. In a vast number of schools in India children are not beaten. Their discipline cannot be said to be any better or worse than schools that inflict such punishments.

The question is, will we justify corporal punishments being administered to adults? Can any college teacher dare beat a student? Even in the armed forces and police, during drills or parade some punishments are given, but never any physical beating. Then why retain beatings when it comes to the child, the small, powerless and innocent. How can punishments that cannot be used against an adult be used against children?

Invariably all judgments supporting inflicting of punishments have said, that any excessive use of such means will attract criminal consequences. This then paves the way for a slippery slope. How does a teacher calibrate his beatings. How does an investigation officer, based on such a principle, conclude if the teachers act would come withing the JJ Act or 324 IPC. How does the court determine from case to case if the act in fact was criminal or not.

We should also remember that teachers come in different hues. They could have emotional instabilities, anger issues, frustrations, or a teacher could be a sadist. Such teachers could simply make children their target and terrorise the entire class. Allowing, teachers to use force would be catastrophic in such instances.

The subconscious forces that live with our generation, places teachers upon a pedestal. These “subconscious loyalties,” as Judge Benjamin Cardozo says, are “the forces of which judges avowedly avail to shape the form and content of their judgment”. Nonetheless, when the countries policies and laws have moved on, beatings by teachers cannot be justified or condoned.  

To Hang or Not to Hang —That is the Question

(By Sanjana R. Nair, Advocate, High Court of Kerala)
Email : advsanjananair@gmail.com, Mob : 9605096969 

It is not easy for a person to have to chew his own words. But that’s exactly what Justice Antonin Scalia, one of the nine Justices of the US Supreme Court had to do. In Kansas v. Meyers_¹while considering the constitutional validity of the State’s death penalty statute, Justice Scalia ceremoniously asserted that there is not a single case “in which it is clear that a person was executed for a crime he did not commit.”_² After discussing several individual cases highlighting the horrifying circumstances of the murders, Justice Scalia asserted that the margin for error in executions is “reduced to an insignificant minimum.”_³

Despite all the optimism of Justice Scalia, the truth turned out to be otherwise. Not much later, the world read about the wrongful execution of the ‘wrong’ Carlos in the United States for a crime he did not commit. An extraordinary investigation by Professor James S.Liebman and a team of Columbia Law School students after an extensive and painstakingly detailed study of the criminal prosecution and execution of a person by name Carlos De Luna published a book by name “The Wrong Carlos : Anatomy of a Wrongful Execution” after they came to the conclusion that the State of Texas had in 1989 executed an innocent man. The book also identifies another Carlos, Carlos Hernandez, as the man who committed the crime for which De Luna was executed.

Speaking to an audience at the University of Florida Levin College of Law, Former Justice John Paul Stevens said that Professor James S.Liebman has “demonstrated beyonda shadow of a doubt” that Texas had indeed executed an innocent man._⁴

However, the investigation, finding and the applause that the findings garnered among jurists, judges, legal luminaries and lawyers came a little too late for poor Carlos De Luna.

Drawing a parallel to the Carlos case, in Shankar Kisanrao Khade v. State of
Maharashtra_⁵ the Honourable Supreme Court noted that a proper police investigation was not conducted in the case of Dhananjoy Chatterjee_⁶and that prima facie the “criminal test” was not satisfied in the sentencing of Chatterjee. A study conducted by
Professors Probal Chaudhuri and Debashis Sengupta of the Indian Statistical Institute, Calcutta, titled ‘ A re-analysis of the case of the murder of Hethal Parekh’_⁷  found several anomalies in the police investigation of the case. The finding that the study puts forward is that the murder could have been a case of honour killing, and Chatterjee may have been innocent.

However, this is not the first instance where doubt has been cast on the merit of the case wherein death sentence has been awarded. The Honourable Supreme Court itself acknowledged that its judgments awarding death sentence in some cases was in disregard to settled law and contrary to the law laid down by a Constitution Bench of the Supreme Court. In 2009, the Supreme Court admitted that it had wrongly sentenced 15 people to death in 15 years._⁸  In other words, 15 people were sentenced to death based on per incuriam judgements of the Court. An error rate of 25%! A rate of error so alarmingly high that it is totally unacceptable to any industry. Even a car manufacturer with such a high rate of error would have had to shut down operations immediately.

So, how are these judgements per incuriam? What was the proposition of law that was overlooked? In the 1980 judgment in Bachan Singh v. State of Punjab_⁹, the Supreme Court had along with introducing the concept of ‘rarest of rare’ as a yardstick for awarding death penalty, also emphasised on the importance of giving sufficient weight to mitigating circumstances pertaining to the criminal along with circumstances leading to the crime.

However, in later years it was noticed that in nearly 13 cases, smaller benches of the same court ignored the law laid down in the Bachan Singh case and awarded death penalties without considering the accused person’s circumstances or antecedents.

In 2012, 14 former Judges of the Supreme Court and different High Courts wrote to the President Sri. Pranab Mukherji, pointing out that since 1996, the Supreme Court had erroneously given the death penalty to 15 people and requested the President to commute the death sentences of 13 convicts from among the 15.

The other two - Ravji Rao and Surja Ram were already hanged._¹⁰

What is more alarming is that despite the fact that the judgements in these cases were per incuriam and that the Courts were not bound to follow them, this fact went unnoticed and as many as six other cases placed reliance on the per incuriam decision of Ravji._¹¹These are Shivaji v. State of Maharashtra_¹² Mohan Anna Chavan v. State of Maharashtra,_¹³  Bantu v. State of U.P.,_¹⁴ Surja Ram v. State of Rajasthan,_¹⁵ Dayanidhi Bisoi v. State of Orissa,_¹⁶ and State of U.P. v. Sattan._¹⁷ Finally in Santosh Kumar Bariyar v. State of Maharashtra_¹⁸ the Supreme Court, after pointing out the error in Ravji’s case, also noted the above 6 cases where Ravji’s case was followed and held that these decisions were wrongly decided. The Court also observed that none of the circumstances relating to the 13 convicts in these six cases have been brought on record and considered by the Supreme Court during the sentencing deliberations.

Probably because of the overwhelming shock or guilt at having pronounced per incuriam judgements in matters where death penalty was imposed, the Apex Court in, Dilip Tiwari v. State of Mahrashtra,^₁₉ Rajesh Kumar v. State_²⁰ and Mohinder Singh v. State of Punjab_²¹ emphasized the miscarriage of justice caused in the Ravji Rao case and other cases which followed the Ravji’s precedent.

Shockingly there are also instances wherein death penalty has been imposed based on a provision of law that was already struck down as unconstitutional. InAloke Nath Dutta v. State of West Bengal _²² and Santosh Kumar Bariyar v. State of Maharashtra_²³ the Apex Court has doubted the award of death sentence in Saibanna v. State of Karnataka_²⁴ Saibanna, convicted and sentenced to life imprisonment for murder, committed a second murder while on parole. Despite the fact that Section 303 IPC, which prescribed mandatory death sentence had already been struck down by the Supreme Court in Mithu v. State of Punjab_²⁵ the judgement of the trial court awarding death sentence was confirmed by the High Court and the same was upheld by the Supreme Court holding that a person who was already undergoing a life sentence, could not be sentenced to life imprisonment again, and therefore the death sentence was the only available punishment.

So, what is the objective behind awarding capital punishment? Tracing the jurisprudenceof capital punishment in India, it is clear that judicial emphasis has been on awarding death penalty in cases that shock the ‘collective conscience of the society’. This was expounded in Machhi Singh & Ors. v State of Punjab_²⁶ and ever since this doctrine has been used by the Supreme Court as a ground to impose the death penalty.

The phrase “collective conscience” has its origins in Sociology. According to French Sociologist Emile Durkheim, collective conscience is defined as “the totality of beliefs and sentiments common to average citizens of the same society which forms a determinate system which has its own life.”

According to Durkheim, an action is criminal “when it offends the strong, well-defined states of the collective consciousness”. The result of a crime is a passionate reaction that occurs in the form of punishment and it is done in order to safeguard the collective consciousness. So according to Durkheim, the very purpose of penal law, is to safeguard the collective consciousness of society.

Machhi Singhwas the first case that explicitly gave judicial recognition to the notion of “shock of collective conscience” as a ground for imposition of the death penalty. The bench of 3 Judges while imposing death sentence on three accused - Machhi Singh, Kashmir Singh and Jagir Singh observed:

“Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by ‘killing’ a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”

Despite the elaborate discussion on the sociological aspects of the crime and threadbare analysis on the sociological principles based on which the death penalty was justified in Macchi Singh, the judgement per se appeared to be in conflict with the judgment of a Constitution Bench of the Court in Bachan Singh v. State of Punjab. Bachan Singh was decided by a Constitution Bench and was therefore binding on the bench of three Judges in Macchi Singh.

The Court in Bachan Singh had explicitly refrained from categorizing crimes. It had also pointed out the need to “give due consideration to the circumstances of the criminal.” Perhaps most significantly, it had in paragraph 127 specifically warned against the dangers of Judges taking “upon themselves the responsibility of becoming oracles or spokesmen of public opinion.”

The concept of ‘collective conscience’ and role of ‘public opinion’ into the capital sentencing framework by Machhi Singh paved the way for other similarly amorphous standards into the scheme as well. However, later in Santosh Kumar Bariyar v. State of Maharashtra_²⁷ the Supreme Court observed that public opinion was incompatible with the Bachan Singh framework, since the constitutional role of the judiciary mandates placing individual rights at a higher pedestal than majoritarian aspirations.

Another inherent problem with this approach was the difficulty to precisely define what public opinion on a given matter actually is and to what extent should the public clamour for blood be heeded to and satisfied?

In Rameshbhai Rathod v. State of Gujarat _²⁸ the Supreme Court was of the view that the expression ‘rarest of rare’ was used in Bachan Singh to read down and confine the imposition of capital punishment to extremely limited cases. Hence, the significance of this expression could not be watered down on a perceived notion of a ‘cry for justice’. In Om Prakash v. State of Haryana_²⁹ the Court observed that there was a significant tension between responding to society’s cry for justice and Bachan Singh’s sentencing framework, and held that courts are bound by precedent and not by the incoherent and fluid responses of society.

In 2018, the Supreme Court commuted death sentences in M.A.Antony v. State of Kerala_³⁰ and Chhannu Lal Verma v. State of Chhattisgarh_³¹ noting problems with imposing punishment based on collective conscience. Despite these concerns, however, the Supreme Court, in some cases, continues to impose death sentences invoking public opinion as a justification. Collective conscience found its most recent endorsement in the Supreme Court judgment in the December 2012 gang rape case of Mukesh v. State (NCT of Delhi)_³².

An analysis of the judgments show that cases subsequent to Bachan Singh did not delve into the role of public opinion while sentencing. While Bachan Singh explicitly laid down that Judges should not become oracles of public opinion while considering the question of awarding capital punishment, the increasing public clamour for the death penalty in response to heinous crimes, along with the uncertain role of mitigating factors, has resulted in an ever expanding determinative role of public opinion in capital sentencing. And though Bachan Singh, reflecting the legislative intent behind making the death penalty an exceptional punishment, mandated that death sentence can only be imposed if the alternative of life imprisonment is ‘unquestionably foreclosed’, it did not clarify how such determination was to be made. These lacunas and vagueness paved the way for later decisions deviating from the principles laid down in Bachan Singh. Whether the deviations in these later decisions were made in ‘ignorance’ of the principle already laid down or whether it was made because the Court felt compelled to fill the lacuna made in the earlier judgement or whether it was because later Benches felt that the dictum in Bachan Singh was not reflective of the prevailing societal values are all debatable questions.

For whatever reason, the fact remains that three years after Bachan Singh, Machhi Singh used the vocabulary ‘inadequacy’ in the context of life imprisonment instead of reiterating the ‘unquestionably foreclosed’ standard as laid down in Bachan Singh. This seemingly subtle shift had the very consequential impact of lowering the standard for consideration of life imprisonment from it being ‘unquestionably foreclosed’ to one of ‘inadequacy’.

Machhi Singhalso revived the “balancing” of aggravating and mitigating circumstances through a balance sheet theory. In doing so, it sought to compare aggravating circumstances pertaining to a crime with the mitigating circumstances pertaining to a criminal. Now, are these completely distinct and different elements comparable with one another and can a balance sheet really be drawn up of two distinct and different constituents of an incident are all debatable questions. Nevertheless, the fact remains that the balance sheet theory held the field post Machhi Singh.

In Rameshbhai Chandubhai Rathod v. State of Gujarat and in Santosh Kumar Bariyar v. State of Maharashtra, the Courts have cautioned against “prioritising the sentiment of
outrage of the society” while awarding capital punishment and reiterated that the significanceof the expression ‘rarest of rare’ cannot be watered down on a perceived notion of a ‘cry for justice’.

The analysis therefore leads to the irrefutable conclusion that over the years, vague notions like “society’s cry for justice” and “public abhorrence of the crime” have emerged as grounds for imposition of the death penalty. The clear requirements laid down in Bachan Singh insisting that the Courts look into the circumstances of the criminal and the possibility of reform were conveniently ignored or discarded in later cases rendering them allper incuriam vis-a-vis Bachan Singh.

We therefore find that later decisions like Sudam @ Rahul Kaniram Jadhav v. State of Maharashtra,_³³ Ajitsingh Harnamsingh Gujral v. State of Maharashtra_³⁴ handing down capital punishment to the accused after detailed description of the grotesque manner in which the crime was carried out without discussing a single mitigating circumstance! The wrong done in Sudham’s case however was luckily corrected by way of an order in the review petition filed and the death sentence was commuted to life imprisonment for the remainder of his life without right to remission_³⁵. 

So, why was this confusion? What were the factors that contributed to the Courts not having followed the settled precedence? What led to the per incuriam judgements? An analysis of the various decisions show that the standard of ‘inadequacy’ introduced in Machhi Singh altered the sentencing Court’s duty fundamentally, requiring them to answer the question of life imprisonment in light of the circumstances of the crime rendering the ‘Bachan Singh framework’ redundant, since all crimes punishable with death are likely to involve significant levels of brutality and heinousness. This situation one feels could have been avoided if Bachan Singh had elaborated on the normative and procedural components of the ‘unquestionably foreclosed’ standard. Such a discussion would definitely have gone a long way in avoiding this problem.

Therefore though the sentencing framework developed in Bachan Singh offered a transformative potential for the death penalty jurisprudence in India, the same was not sufficiently utilised by the subsequent judgments probably because of its inherent limitations on the procedural components. Unfortunately, rather than attempting to resolve the inherent limitation in Bachan Singh by developing and elaborating on the normative concerns that afflict the framework, subsequent benches of the Apex Court embarked on a journey of distorting it by offering varied interpretations, some of which go against the very grain of Bachan Singh.

More than four decades since its origin, the fact remains that the ‘Bachan Singh framework’ has been twisted partly because of its own normative and procedural deficiencies and also because the lack of a coherent doctrinal framework has allowed for the side lining of mitigating factors.

Therefore we find that despite Bachan Singh emphasising on the significance of the mitigating factors, various sentencing courts have indulged in serious fair trial rights violation of the accused by imposing death sentence without any, or meaningful, consideration of mitigating factors. The reason could be that without any normative clarity on the scope or the concept of mitigating factors, subsequent benches have not been able to appreciate their role and relevance in determining culpability and, therefore, the punishment. Apart from this, the procedural ambiguity in the different processes involved has also resulted in Bachan Singh not being followed in sum and substance. Sentencing courts have no clarity on identification, presentation, and weighing of individual aggravating and mitigating factors and on meaningful consideration of the option of life imprisonment. We also find that later judgments by the Supreme Court have also not made any attempts towards bridging these normative and procedural gaps. While some decisions have recognised the relevance of individual mitigating factors, the lack of a doctrinal basis to appreciate the collection, presentation, and consideration of mitigating factors continues to adversely affect the capital sentencing framework.

One definite conclusion that can be deduced from all this is that an extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly affects constitutional due process and equality principle. The lack of a meaningful and clear judicial discourse on capital sentencing has contributed to the arbitrary and unpredictable imposition of death sentences. With no clarity and explicit ambiguity on certain aspects of the framework regarding imposition of death sentence, the capital sentencing framework poses a serious threat to the right to fair trial of the accused. And considering the irreversible nature of the death sentence, in all fairness the correction should be done immediately and without delay. The quest should be to establish clear sentencing procedures and identifying the remedies available to the accused when the due process is violated. The question discussed in this article is not about abolition or elimination of death sentence from our judicial system. Death penalty as a form of punishment has existed in India since time immemorial and discussions on whether it should be totally abolished or not is a matter of another realm. Rather, the imminent question at this juncture is should not the guideline laid down in Bachan Singh be followed. Should not Courts take into account the circumstances of the accused, the possibility of reformation, the mitigating circumstances present etc?

In the most recent judgements of the Honourable High Court of Kerala in Narendra Kumar v. State of Kerala_³⁶ and in State of Kerala v. Muhammed Ameer-Ul Islam,_³⁷  the Court has delved in depth about the background of the accused, the circumstances he has undergone in life and the possibility of his reformation. Both these cases have taken diametrically different decisions on the question of death penalty. In Narendra Kumar’s case, the Division Bench upheld the conviction of the accused under Section 302 IPC, but modified the sentence from death penalty to life imprisonment. In Muhammed Ameer-Ul Islam’s case, the Court after serious consideration of the various relevant circumstances relating to accused came to the conclusion that the death penalty is to be confirmed.

Such detailed consideration of the circumstances of the accused as contemplated in Bachan Singh reaffirms faith that all relevant circumstances and conditions relating to the accused have been looked into before death sentence is confirmed by the High Courts.

As rightly pointed out by the Apex Court in Vodafone International Holdings BV v. Union of India,_³⁸ “certainty is integral to the rule of law”. In a case involving the imposition of the death penalty, the courts cannot continue to Judge under uncertainty. The need of the hour therefore is to set down a framework and to clarify on the normative and procedural aspects so that the Courts are clear on the mandates regarding imposition of death sentence without any scope for ambiguity and uncertainty.

Life is undoubtedly, the most precious gift of all. Taking of life through a legal process must in all fairness therefore ought not only to be very tough but must also adhere strictly to the highest standards of fair trial rights and the rule of law.

Statistics point out that at the end of 2023, 561 prisoners were living under a sentence of death, which is the highest population on death row in a single calendar year in nearly two decades as per the records published by the National Crime Records Bureau._³⁹ At one point of time, Dhananjoy Chatterjee, Ravji and Surja Ram were also men who made up the numbers on the records published by the National Crime Records Bureau and other statistical departments. Later, the legal fraternity united in denouncing the judgements based on which these men were executed as per incuriam. Despite all the posthumous recognition of the judgements as ‘wrongful’ and ‘incorrect’, the fact remains that the men were dead.

With the fate of 561 people and their families hanging in balance, the question is, ‘Can we afford to make errors?’ Can we let uncertainties and vagueness in legal principles be responsible for taking the life of men? Do not we as members of the legal system owe much more than this to mankind?