What witnesses really need

Article in the Indian Express dated February 12, 2019 regarding the Witness Protection Scheme by G. S. Bajpai (Chairperson, Centre for Criminology & Victimology at NLU, Delhi). Link to this article:

http://epaper.indianexpress.com/c/36652401

All is not well in court

Article in the Indian Express dated February 12, 2019 regarding the concerns of challenges, opacity and lack of accountability in senior judges by Ajit Prakash Shah (Former Chief Justice of Delhi High Court). Link to this article:

http://epaper.indianexpress.com/c/36652120

Govt sought legal opinion on changes to sedition law, told necessary, go by SC

Article in the Indian Express dated February 12, 2019 regarding Section 124A of the IPC - Sedition law by Rahul Tripathi. Link to this article:

http://epaper.indianexpress.com/c/36651801

The apex court must not stifle commentary on sub-judice cases

Source: Hindustan Times dated 12.02.2019

GAUTAM BHATIA (Gautam Bhatia is a Supreme Court advocate)

Article 19(2) of the Constitution only allows for speech to be restricted through a law made by the State

OFFICERS OF THE STATE WHO WIELD POWER OF THE KIND THAT JUDGES DO, ARE EXPECTED TO HAVE SHOULDERS BROAD ENOUGH TO SHRUG OFF FIERCE, EVEN VITUPERATIVE, CRITICISM

Earlier in February, the AttorneyGeneral of India, KK Venugopal, filed a contempt of court petition against the lawyer, Prashant Bhushan. The latter had accused the government of “misleading” the Supreme Court in the case involving the appointment of an interim director of the Central Bureau of Investigation (CBI). Venugopal argued that this was a false accusation, and undermined the course of justice.

It is unclear whether Bhushan’s statements amounted to contempt, since they were addressed to the government (and not the court). However, during the hearing on February 6, events took a new and alarming turn. Venugopal changed tack and argued for “guidelines” to regulate commentary (especially by lawyers) on sub-judice (i.e., pending) cases. The Supreme Court (SC) bench agreed to adjudicate the case on those terms, and fixed a date in March to hear it. There are many reasons why the SC should refrain from issuing broad, multi-purpose “guidelines”, of the kind that the AttorneyGeneral has in mind. The first is that it would be a serious attack on the constitutional value of the freedom of speech and expression. One of the core principles of Indian democracy is the principle of open justice: At all times, the work of courts in dispensing justice must be open to public scrutiny. This scrutiny could be outspoken and harsh, at times. It may irritate judges who feel that they are being subjected to unjust and unfair opprobrium. However, officers of State who wield power of the kind that judges do, are expected to have shoulders broad enough to shrug off fierce, even vituperative, criticism.

This is especially true of the Indian Supreme Court that, over the years, has transformed itself from a judicial tribunal that deals only with questions of law, to a forum that intervenes on a wide range of issues involving administration and governance. The SC is often called “the most powerful Court in the world”. It is in the nature of things that the power that a body wields will be directly proportionate to the force of the criticism that it receives.

There is, of course, a narrow exception to this rule. Judges, by virtue of their office, can only speak through their judgments, and are not in a position to publicly respond to personal attacks or allegations. Consequently, attributing extraneous motivations to a judge, or insinuating that a judge has been bought out or is corrupt, are forms of expression that can be regulated and curtailed. This is exactly what the existing contempt of court law does: it requires individuals to refrain from interfering with the administration of justice, a requirement that has been interpreted to mean that while judgments and judges can be criticised (including in harsh and intemperate terms), extraneous motives cannot be attributed to them.

It is clear, therefore, that existing contempt of court law deals with the possible abuse of the right to free speech and to criticise the courts. Any “guidelines” that step beyond this area will amount to an immediate violation of the freedom of speech and expression.

There is a further, more basic reason, why the court should refrain from stepping into this arena. And that is that the Indian Constitution does not authorise the judiciary to directly censor speech. Article 19(2) of the Constitution only allows for speech to be restricted through a “law” made by the “State.” It has long been settled in Indian constitutionalism that the word “law” under this Article does not include judgemade law or judicial orders. The reason for this is clear: The framers of the Constitution wanted a double layer of safeguards when it came to free speech — parliamentary scrutiny (first) and judicial review (second). They did not see fit to vest direct censorial powers in the hands of judges.

For these reasons, whatever the temptations, the SC should desist from acceding to the Attorney-General’s request, and passing “guidelines” curtailing commentary on sub-judice cases.

Divergence on death penalty: The legislative expansion and judicial restriction of capital punishment in India

Source: Times of India dated 12.02.2019

Maitreyi Misra and Ruchi Chaudhury (The writers are Associates at Project 39A, National Law University, Delhi

The recently published statistics on the state of death penalty in 2018 is an indication of the confusion that besets use of death penalty in India. Drastically different treatment by the legislature, trial courts and the appellate judiciary further intensifies competing tensions in administration of the death penalty.

Calls for death penalty began early on in the year in the backdrop of incidents in Kathua and Unnao. 2018 also saw the prime minister encouraging the death penalty in his Independence Day speech and amendments to IPC and Pocso introducing the death penalty for rape of children.

As far as its judicial treatment is concerned, trial courts in 2018 imposed a record number of 162 death sentences – the highest in nearly two decades. The Supreme Court, on the other extreme, commuted 11 out of the 12 death sentence cases it decided and continued to signal concerns with administration of the death penalty by courts below.

The legislative expansion of death penalty is not new. In the last five years, Parliament passed two other laws introducing death penalty. The Delhi gang rape prompted amendments to IPC in 2013 introducing death penalty for certain sexual offences. In 2016, the Anti-Hijacking Act was passed prescribing death penalty as well.

The legislature guided by political and public reactions has immense faith in death penalty as a response to heinous crimes. But, irrespective of public notions, the law requires courts to consider aspects beyond just the crime when imposing death sentence.

Socioeconomic circumstances of the individual, age, past history, time spent in prison, and the probability of reformation are some factors, which the Supreme Court itself has declared as integral to the sentencing process. However, in reality all levels of the judiciary have for long struggled with using their own terms of reference in administering the death penalty uniformly.

Given this context, expanding the use of death penalty in an already constitutionally suspect framework threatens to weaken the criminal justice system even further. Lack of cohesion within the judiciary is evident from multiple instances when the appellate judiciary has pushed back against the eagerness of trial courts in imposing death penalty.

The Supreme Court has time and again indicated that death sentence is being used by the lower courts more liberally than is intended. The ‘Death Penalty India Report, 2016’ found that over a 15-year period from 2000 to 2015, less than 5% of death sentences were eventually upheld by the Supreme Court.

This trend seems to be continuing. In 2018 itself, various high courts commuted death sentences in 55 cases, of which 24 involved sexual offences. Interestingly, out of the nine death sentences imposed by trial courts under the 2018 law, six were commuted by the respective high courts.

On its part the Supreme Court commuted 11 death sentences in 2018, including a dissenting opinion by Justice Kurian Joseph calling for the abolition of the penalty itself. Six of these commutations by the Supreme Court involved charges pertaining to sexual offences. Be that as it may, the Supreme Court’s performance on death penalty sentencing is also rife with inconsistencies as traced by ‘Lethal Lottery: The Death Penalty in India’, a report analysing over 50 years of the Supreme Court’s jurisprudence on this issue.

It is evident that death penalty encounters different responses at various levels of the judiciary. While the trial courts demonstrate an exaggerated affection for death penalty, appellate courts seem to be increasingly sceptical.

This incoherence has been particularly glaring in the past year. The legislature’s faith in death penalty, then, is in sharp contrast to this reality and its reliance betrays an honest evaluation of the criminal justice system.