To Hang or Not to Hang?

(By Shri M.R. Hariharan Nair, Former Judge, High Court of Kerala)

Hectic debates on the above question preceded the execution of Dhananjoy Chatterjee a few weeks back. Even after the President rejected his mercy petition, the Supreme Court had to look into the question once again and it confirmed the punishment. Dhananjoy had been convicted for committing the offence of rape and murder of a school girl. A heinous offence indeed! But then two questions would still emerge. Is capital sentence found justifiable by the society of the 21st century? Assuming it does, should it be by the primitive, if not brutal, method of hanging by the neck?

No doubt the victim, his relatives and the society at large should get justice. Capital sentence takes in an element of retribution. Perhaps it is intended more to ensure that the convict will no more be able to do harm to the society. But then, are there not other ways of ensuring it? Why not he suffer imprisonment for life in the literal sense? The recommendation of Justice Malimath Commission that "in respect of offences for which death is a punishment, the sentence of imprisonment for life without commutation or remission be prescribed as an alternative sentence" and that "suitable amendments shall be made to make it clear that when such punishment is imposed, the Government will be precluded from commuting or remitting the sentence" are relevant in this context. Articles 72 and 161 of the Constitution which provide for remission of sentences can perhaps be left as they are because even capital sentence already comes within the scope of the said provisions which enable the President and Governors respectively to commute and remit sentences. If that is not sufficient, even further amendments to the said Articles to take away imprisonment for life without commutation or remission out of their purview can be thought of.

My memory goes back to one of my routine monthly jail visits, made in the Ninentees to one of the Central Prisons of the State in my then capacity as Sessions Judge of the District. An indelible memory which still haunts me and perhaps will continue to disturb me for the rest of my life. It was this way. After meeting the prisoners housed in all the blocks of the prison, I was returning to the office room of the Superintendent to record my observations and to verify the statutory Prison Registers. A loud call then stopped me. Somebody was calling out: "Sir, please do not leave without meeting me too". That was from one of the 2 or 3 rooms in a small building where prisoners under solitary confinement and condemned prisoners were to be housed. ('Condemned", here, means condemned to face execution shortly). The Prison Authorities who were accompanying me informed me that the cry was from the solitary inmate there; one nick named by the Press as 'Ripper'. I approached him. He fell at my feet and with tears rolling down his cheeks and still wheeping like a child, he implored repeatedly "Sir, I have been convicted. I am prepared to continue here until my last breath; I assure you that; but for heaven's sake, ask them not to kill me. Please leave my life to myself. The Officers beside me told me that his Mercy Petition to the President had already been dismissed by then and that he was awaiting the decision on yet another similar petition already presented by his mother. He implored me to take some step on my part to get the capital sentence commuted to imprisonment for life, what, perhaps Justice Malimath later on called imprisonment for life without commutation or remission. But what could a Sessions Judge do in the matter except to passify him and to advise him to apply for commutation once again? Later Press Reports revealed that he was certified as having been hanged until death within a month or so after the said incident.

The Ripper taught me one thing; that life is the dearest possession an ordinary person aspires to maintain and that he would surrender anything in exchange therefore. A psycho killer who anticipated his death in a few days was no exception. A question certainly arises. If man cannot create life, why not he atleast ensure that he does not take away the life of another? Should any one be killed by the State as an act of retribution?

Now the second aspect. India appears to be one of the very few countries which resorts to the primitive method of hanging a convict to death. If he is bound to suffer death, why not he be allowed to take it without pain and too much of agony? The electric chair has given way to the syringe in many countries. What is injected is not the poison at the first instance. He is first put to sleep and then anaesthetised through injections. Only when he is out of all his senses the lethal shot is given. Perhaps a procedure for ensuring death in the most peaceful manner that even the propounders of Euthanesia would ask for it. This way the convict can be allowed to leave the world without the slightest feeling of pain. According to me such a reform which can be brought in without any financial commitment and with just a humane approach and appropriate amendments to the Constitution, Penal Code, Criminal Procedure '"'ode and the Prison Rules should have been adopted in India long back. Should we wait for International Covenants and Treaties to bring this up? Certainly not. The earlier the changes are brought, the better it is for all concerned.

Justice Malimaih Commission has not touched upon the above aspect, though as item 105 of Recommendation No:14 it suggested prescribing new forms of punishments wherever appropriate, It should be possible for the Government to give sufficient consideration to this aspect of L-aw Reforms as well along with the prospective criminal law reforms. The Resolutions passed by legal bodies and legal fora (Bar Associations and Bar Councils included) will certainly go a long way in accelerating the consideration of the required changes.

Is it Time to Appoint Judicial Clerks in the High Courts?

By M.R. Hariharan Nair, Former Judge, High Court of Kerala)

According to me, the answer to the above poser is an emphatic yes. Why so? The system of certifying particular judgments for reporting leads to a possibility of some judgments appearing only in particular journals and even uncertified judgments appearing in some others. There does not appear to be any system in vogue of keeping all judgments pronounced by different benches of the High Court duly indexed and circulated and as such Judges are not enabled to make a error-proof search for precedents. The problem gets aggravated because one and the same cause of action can lead to different proceedings in different benches for the same Court though for the same relief. Examples are aplenty. The subject matter of a CRP can very well take the shape of a Writ Petition under Art. 227 and can fetch a relief which perhaps the Revisional Court might have refused. An injunction which should normally be granted by the Civil Court are sometimes issued by the Writ Court acting under Art. 226. Under the Criminal Law also the position is no different.

The fact that our High Court is still not able to place all its judgments, reportable and not reportable in its Web Site disables proper searches being made for precedents by Judges and lawyers. What is the result? Per in curium decisions emerge. An illustration can be shown by making reference to two recent decisions of the Apex Court, taking diagonally opposite views and the later decision having been rendered per in curium.

The decisions under reference are Mohanan v. Prabha G. Nair & Anr. (1 (2004) CPJ 21 (SC)) decided on 4-2-2004 and Dr. Suresh Gupta's case (Appeal (Crl.) 778/2004) 2004 (3) KLT 14 (SC) decided by the Supreme Court on 4-8-2004.

The latter decision was rendered without any reference to the earlier decision given by the same Court in Mohanan v. Prabha. In that case a woman in the seventh month of pregnancy underwent medical intervention and delivered a dead child on the next day and she passed away three days later. The husband alleged in his police complaint that though he repeatedly asked for permission to remove his wife to a Medical College Hospital, the doctor had advised against the shift and that the death was the result of negligence coming under S.304A of the IPC.

The High Court which dealt with the Doctor's petition under S. 482 Cr. P.C. held that the mere fact that a patient dies in a hospital does not lead to the presumption that the death occurred due to the doctor's negligence and that to hold a doctor criminally responsible for a patient's death, it must be established that there was negligence or incompetence on the doctor's part which went beyond civil liability. Criminal liability, according to the learned Single Judge, would arise only if the doctor did something in disregard of the patient's life and safety. Stating so, the High Court quashed the charges.

The Supreme Court, however, set aside the said HC decision. It held that the doctor's negligence could be ascertained only by scanning all material and expert evidence that might be adduced during trial and that the High Court was not justified in quashing the complaint at the threshold invoking the special power under S.482 of the Criminal Procedure Code as that would do away with a full-fledged criminal trial necessary for fixing criminal liability.

Let us now see the facts of the later case. Dr. Suresh Gupta, a plastic surgeon, operated on his patient for removing a nasal deformity. Allegedly, he made an incorrect incision as a result of which blood seeped into the patient's respiratory passage leading to his immediate collapse and death. A case was filed against the doctor under S.304A of the Indian Penal Code.

Rejecting Dr. Gupta's plea for discharge without trial, the magistrate concerned found that the cause of death was "blockage of respiratory passage by aspirated blood consequent upon surgically incised margin of nasal septum"; that blockage and aspiration of blood from the wound were not likely to arise if a cuffed endo tracheal tube of proper size had been introduced before the operation and kept intact, and that the negligence in not taking this precaution justified further trial proceedings for the offence under S.304A of the I.P.C.

The Supreme Court did not agree to this. It held that in order to fix criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high that it can be described as gross negligence or recklessness and not merely lack of necessary care, attention and skill; and that a careless act of a medical person can be termed 'criminal' only if it exhibits gross lack of competence or inaction and wanton indifference to his or her patient's safety, resulting from gross ignorance or gross negligence. Mere inadvertence, error of judgment or some degree of want of adequate care and caution might create civil liability; but not criminal liability.

Holding so the doctor was acquitted by the Apex Court without trial and in limine.

The conclusions and observations in the two cases appear to be mutually irreconcilable. If the quashing of the charge by the High Court with the observation that to hold a doctor criminally responsible for a patient's death, it must be established that there was negligence or incompetence on the doctor's part which went beyond civil liability and that Criminal liability would arise only if the doctor did something in disregard of the patient's life and safety and the consequent quashing of charge by the High Court was not in order in Mohanan's case, how could the reasons given for quashing charges in Dr. Suresh Gupta's case be correct? Obviously the two findings and conclusions cannot sail together. If the decision in Mohanan's case were cited before the later bench which decided Dr Suresh Gupta's case, the ultimate decision, in all likelihood, would have been different. Obviously, there was no such reference during arguments and that led to a conflicting decision by a bench of equal strength. (According to Press Reports the matter has subsequently been placed before a larger bench and it is pending).

Perhaps the degree of danger is more in cases where in addition to suppression of binding precedents there arises citation of over ruled decisions which have no force of law and they are relied on for giving the verdict. One such instance was deprecated by the Supreme Court in strong terms on 12th August 2004 in Criminal Appeal Nos. 870-872 of 2004 (State of Orissa v. Nalinikanta Muduli (2004 (3) KLT (SC) (SN) 30 = 2004 SCCL.Com.704). In para 6 of the said decision it was emphatically stated by the S.C. as follows.

"It is strange that a decision which has been overruled by this Court nearly quarter of a century back was cited by the Bar and the court did not take note of this position and disposed of the matter placing reliance on the said overruled decision...........It is a veryunfortunate situation that learned counsel for the accused who is supposed to know the decision did not bring this aspect to the notice of the learned Single Judge. Members of the Bar are officers of the Court. They have a bounden duty to assist the Court and not mislead it. Citing judgment of a Court which has been overruled by a larger Bench of the same High Court or this Court without disclosing the fact that it has been overruled is a matter ofserious concern............... We can only express our anguish at the falling standards ofprofessional conducts. Impugned judgment of the High Court is set aside...".

Well, what have these observations and apprehensions to do with Judl. Clerks? And what role can they play in such matters? The first and foremost thing is that maladies as above can be avoided through the services of the Judl. Clerks who act as attorney-assistants. In the United States and Canada they have been in position for quite some time. Judges of the Federal, State and Supreme Courts there utilize their services. They have knowledge in law and are meticulous in their work. Clerkships there are usually offered to graduates of outstanding merit and good writing skills coming from well reputed law schools or to law students undergoing the 3rd year of their study. Their normal tenure would be only two years or less. Often, they might have proved their merit as editors of their law schools' journals and the like and possess an analytical and research focused mind. Their duties include conducting library research, drafting other materials helpful for appreciating oral arguments made in court and in assisting judges in the writing of judgments by presenting up-to-date case law.

What are the advantages here? As far as the clerk is concerned, experience derived through such work adds substantially to their skill and knowledge and thus benefit them in their future career as lawyers. It would expose the clerk to the actual process of judicial thinking on the specific problems arising in the case and provide him with an opportunity to discuss substantial legal issues with the Judge to whom he is attached.

Scope for the development of the judicial clerkship programme in India is substantial Indian Judges of all levels also need quality assistance in the discharge of their duties and responsibilities. All the same it can be introduced in stages starting from the apex level downwards, perhaps right up to the level of Tribunals having state wide jurisdiction. Bright students in Law Colleges would certainly vie with each other for securing clerkships as it would provide them with an excellent opportunity to gain first hand exposure to Court procedure and enable them to catch up with up to date case law. At the High Court level it would also provide them with exposure to working experience in constitutional law, administrative law, service matters and issuance of Writs of different types. Those intending to practice Tax law can likewise take up clerkships at the ITATs. and assist the tribunal members by doing research on questions of law, digesting, and even drafting. At the Supreme Court and High Court levels, such clerks can be of tremendous assistance to judges in preparing summary of facts, conducting general research, looking for and updating relevant authorities, reading briefs and in streamlining the record of facts and arguments. Desirably, judges and members of Tribunals can have interactive sessions with the prospective clerks before selection. It would provide the Judges with a unique opportunity for contributing to improvement of quality of the Bar by enhancing the quality of legal education. The benefit will thus be mutual. Above all, assistance of such clerks will certainly reduce the situations and lapses as mentioned at the beginning of this article and add to the quality of judgments that would emerge from the Courts of the land.

Press Reports would indicate that Justice Kirpal, as the then CJI, had favoured the idea of introducing judicial clerks in India also. So why not give it a try after discussions in the Conferences concerned? The earlier we start judicial clerkships in India, the better it would befor all concerned.

The Following Poem is Composed by Kumari Justice

A. Lekshmikutty (Retd.) on The Retirement of

Hon'ble Mr. Justice R. Rajendra Babu

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The Following Poem is Composed by Kumari Justice

A. Lekshmikutty (Retd.) on The Retirement of

Hon'ble Mr. Justice N. Krishnan Nair

\osbsâ kl]mTn

HmÀ¯nSp¶pthm "IrjvWm' A¶p\mw Hcpan¨p

F¯nbm emtImtfPn \nbaw ]Tn¡phm³

F{Xtbm kwhÕcw Ignªpsh¶mInepw

C¶se Ignªt]m HmÀ¯pt]mIp¶p Rm\pw.

_mÀ«¬ln emtImtfPn F¯n\msamcpZn\w

BbnSmw Hcp]t£ hn[nX³ \ntbmKamw.

Fs´Ãmw IpkrXnIÄ F{Xtbm XamiIÄ

s]m«n¨p IgnªntX B \Ã Zn\§fnÂ.

cIp hÀj§Ä \½Ä ]n¶n«XdnªnÃ

F{Xtbm thK¯nembv Zn\§Ä IS¶pt]mbv.

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k¶[p e`n¨tXm Hcpans¨mcpZn\w.

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hn[nX³ \ntbmK§Ä F{Xtbm hnNn{Xamw.

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Gsd \mÄ Ignªnà \½tfm {it²bcmbv.

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t]mbntX F¶mInepw hoIpw \o Xncns¨¯n.

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F{Xtbm {]KÂ`cmw injysc ktlmZcm!

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hoIpw \o Xncns¨¯n {]mIvSoÊp XpS§sh

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kvt\ln¡pw, shdp¡pIn BbXpw AXpt]mse.

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DcpIpw aªpI«bmbnSpw DS³Xs¶.

\n\¡mbv Hcp¡nb thZnIsfÃmwXs¶

\¶mbn Ifn¨p \o Ac§p XIÀ¯ntÃ!

C¶n\n HgntbWw Øm\asX¶mInepw

Jn¶X tXm¶otSI Imcyta hcp¶nÃ.

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kÂkJn, kÂk´Xn BbXpw alm`mKyw.

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\n¶psS a\kzn\n AhÄX³ Ic§fmw.

\osbsâ "kl]mTn' t\cp¶p \n\¡p Rm³

BbpÊpw, BtcmKyhpw kÀÆku`mKy§fpw.

STRIKE BY JUDGES; A STROKE TO JUDICIARY

(By Kauser Edappagath, Advocate, Kannur)

Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigant or counsel. Judicial process must run its even course unbridled by any boycott call of the bar or tactics of filibuster adopted by member thereof — said Justice K.T. Thomas in a landmark verdict on lawyers right to strike in Mahabir Prasad Sing v. Jacks Aviation Pvt. Ltd. (1999 (1) KLJ 530 (SC). This pondering words has to be rewritten as to include Judges also in view of the recent episode of mass boycott by the Judges of the Punjab & Haryana High Court. The wisdom of the twenty six Judges of the Punjab & Haryana High Court to go on mass leave, in response to the disciplinary action taken against two of their colleagues for having accepted ex-officio membership of a golf club that was itself the subject matter of litigation, has brought the judiciary into ridicule. It has also aggravated the public disenchantment with the judiciary.

The Constitution of India has delineated distribution of sovereign power between the legislature, executive and the judiciary. Under a controlling Constitution like ours, the role of judiciary is vital. To maintain the scheme of separation of functions as delineated by the Constitution it is necessary that the judiciary exercise utmost self-restraint. Members of the judicial service perform exclusively judicial functions and are responsible to the administration of justice in the State. The judicial service is not in the sense of employment. Nor are the judges employees. They are the indispensable servants of the society. As members of the judiciary they exercise sovereign power of the State. They are holders of public office. Their office is an office of public trust. To quote Justice V.R. Krishna Iyer (Legally Speaking, page 259, Justice V.R. Krishna Iyer), "a Judge is a social engineer and people's sentinel and fulfills himself not merely adjudicating on the list he tries but by catalyzing moral material transformation, not as a blinked professional but as dignified surrogate constitutional daring to catalyze public opinion when evil forces hold to ransom progressive values". The Court is for the people and therefore its credentials are based on dispensation of justice. The primary function of the Court is to administer justice to and in between the parties approaching the Court. The Courts would be failing in its duties in not performing such a function on the ground that the Judges chooses to abstain from sitting in Courts. The functions of the Court in the matter of administration of justice should not be allowed to be stalled by such incredulous methods.

Mass leave or boycott virtually paralyzing the administration of justice is no doubt an act come within the ambit of "strike". The Apex Court of India in two recent land mark decisions (Harish Uppal v. Union of India, 2003 (1) KLT 192 (SC) & Rangarajan v. State of Tamilnadu, 2003 (3) KLT 86 (SC) held that the lawyers and Government employees have no legal or statutory right or moral or equitable justification to go on strike. Then what is the moral authority of a striking Judge to judicially condemn unjustified strikes? In the case of K. John Koshy & Ors. v. Dr. Thrakshwar Prasad Shaw (1998 (8) SCC 624) one of the questions before the Supreme Court was whether the Court should refuse to hear and pass an order when counsel for both the sides were absent because of a strike call by Bar Association. The Supreme Court held that the Court could not refuse to hear the matter as otherwise it would tantamount to court becoming a privy to the strike. The Supreme Court reiterated the same view in Mahabir Prasad Sing's case (supra) and held that no court is obliged to adjourn a case because of the strike call given by any association of advocates or a decision to boycott the Courts either in general or any particular one. In Rajinder Singh v. Union of India (1993 (1) KLT 657) the Division Bench of the Punjab & Haryana High Court took the view that even when the lawyers call the strike Judges cannot treat day of strike as a paid holiday. It is quiet unfortunate that Judges themselves now have indulged in strike. No body or authority, statutory or not, vested with the powers can abstain from exercising their powers. Every powers vested in public authority is coupled with the duty to exercise it. Judges, who are responsible to uphold the dignity of the Court and majesty of law, are duty bound to see that administration of justice is effectively done. Since strike interferes with the administration of justice and infringes the fundamental right of litigant for speedy trial of their case, strike by Judges can never be accepted as mode of protest.

Judiciary is the only organ in India in which the public faith still persists. The common man inspite of the delays and hassles of litigation still respect the judiciary. The incident like Punjab & Haryana should not be repeated in order to maintain the public confidence in the judiciary. This type of incident could not have been taken place had there been a legally sanctioned method for disciplining judges. There is urgent need to set up credible machinery to investigate into the charges against Judges. It is high time to enact suitable law for investigating misconduct of Judges and disciplining them,