Tag: article 19(1)(a) of the Constitution of India

Critical Analysis on Execution of Capital Punishment in India

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INTRODUCTION

Various dynasties have risen and fallen over the years, but the only thing they all had in common was the employment of the death sentence as a means of enforcing justice. In terms of international law, “King Hammurabi of Babylon was the first to codify death penalty regulations. Other types of death sentences were used over the world, such as guillotining in France, beheading in the Middle East, and electrocution in Russia, among others. Is the death penalty really the best alternative of punishment in today’s world with codified rules and awakened conscience? Despite the protests of many organizations calling for the death penalty to be abolished, it is still carried out in several countries.”[1]

WHAT IS A CAPITAL PUNISHMENT/ DEATH SENTENCE?

“A death sentence is a legal process in which the state executes a person as a penalty for committing a crime. A death sentence is a legal decision that someone should be punished in this way, while execution is the actual procedure of killing the individual.” Death sentence in India is “given in only rarest of rare cases” and in criminal offences.

CAPITAL PUNISHMENT IN INDIA

In India, the death penalty is carried out by hanging from the neck. This system has been in use since the time of the British Empire and has yet to be abandoned. “A death sentence is provided for in Section 53 of the Indian Penal Code 1860,” and High Courts have the jurisdiction to confirm death sentences under “Section 368 of the Code of Criminal Procedure.” The death sentence is applied in the “rarest of the rare” situations, which are “those in which the community’s collective conscience is so outraged that it expects the judiciary to impose the death penalty on the accused.” According to the Indian Supreme Court, incidents in which a murder is committed in its most heinous form to fall under the category of rarest of rare cases.

INTERNATIONAL STANCE ON CAPITAL PUNISHMENTS

Many international treaties advocated for the “abolition of the death penalty.”  “No one shall be subjected to torture or cruel, brutal, or degrading treatment or punishment, according to Article 5 of the Universal Declaration of Human Rights, 1948, and Article 7 of the International Covenant on Civil and Political Rights, 1966. The United Nations Economic and Social Council has pushed its member countries to abolish the death penalty, but has also stressed that those that desire to keep the death penalty must ensure that defendants are given a speedy trial.” The death penalty has been abolished in the majority of European Union countries.[2]

CASE LAWS RELATED TO DEATH PENALTY IN INDIA

“In the case of Bachan Singh vs State of Punjab (1980),[3] “Justice Bhagwati in his dissenting opinion stated that the death penalty is necessarily arbitrary, discriminatory and capricious. He further stated that it was indeed the poor who are subjected to the gallows and the rich and the affluent usually escape from their clutches. This is indeed a gross violation of Articles 14 and 16 of the Constitution.”

“In Shashi Nayar vs Union of India (1991),[4] the death penalty was again challenged for the reliance placed in Bachan Singh case in the 35th Law Commission Report but the court turned it down stating that the time was not right for hearing such a plea. Also, the plea to consider hanging till death as barbaric and dehumanizing was rejected.”

“The Supreme Court of India recently issued a decision in Shatrughan Chauhan Vs. Union of India (2014)[5] that lays out certain rules for converting a death sentence to a life term.” “The same was done in the case of Union of India vs. Sriharan (2015),[6] also known as the Rajiv Gandhi assassination” case, “where the Supreme Court of India lowered the death sentence of Rajiv Gandhi’s killers to a life sentence.”

LAW COMMISION ON CAPITAL PUNISHMENTS

In its 262nd Report, “the Law Commission calls for the death sentence to be abolished in all cases save those involving terrorism.” “In addition, certain standards regarding the execution of death warrants within a specified time limit must be established.” “If there is an unconditional delay (save in circumstances of terror), procedures must be made so that the convict’s death sentence can be commuted to life imprisonment based on his mental condition.” Above all, “only the supreme creator, not the state or any other organ of the state, has the authority” to take the lives of humans on Earth.

ARTICLE 21 OF THE CONSTITUTION AND CAPITAL PUNISHMENT ANALYSIS

ARTICLE 21 OF THE CONSTITUTION OF INDIA: “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.”[7]

The next major breakthrough in capital penalty law was “Maneka Gandhi vs Union of India,[8] which established two important safeguards: first, that all fundamental rights are not mutually exclusive. A statute has to pass the test of Articles 14, 19, and 21 taken together in order to be pronounced constitutional.” Furthermore, “any procedure established under Article 21” must be “fair, just, and reasonable, and cannot be whimsical, oppressive, or arbitrary,” according to this ruling.

In India, there have been a variety of viewpoints on the death penalty, with some advocating for its continued use and others advocating for its abolition.

CONCLUSION

The death penalty is a crime against humanity in and of itself. “Life is a gift from God, and no government has the authority to take it away. As a result, the death penalty process should be considered unconstitutional and a violation of human rights.” The “government must analyze the negative aspects of death penalty” sentencing and take steps to remove such sections from the law. Because the death penalty process is lengthy, guilty inmates are subjected to both physical and emotional torture. “They essentially beg for death as a result of this. Any human being, whether convicted or not, should never have to confront such a position. Although the number of actual executions of inmates facing the capital sentence is decreasing, much remains to be done to expedite the process for those on death row while still adhering to India’s international obligations.”

ENDNOTES

  1. Critical Analysis on Death Penalty in India, https://blog.ipleaders.in/death-penalty/
  2. Retrospective Analysis on Death penalty, https://www.legalserviceindia.com/legal/article-5312-a-retrospective-analysis-of-capital-punishment.html
  3. Bachan Singh vs state of Punjab, AIR 1980 SC 898
  4. Shashi Nayar vs UOI, 1992 AIR 395
  5. Shatrughan Chauhan Vs. Union of India
  6. Union of India vs Sriharan
  7. Article 21, Constitution of India
  8. Maneka Gandhi vs Union Of India, 1978 AIR 597

This article is written by Dalima Pushkarna student at Dr. Ram Manohar Lohiya National Law University, Lucknow

The Journey of Freedom of Press in India over the Years

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This article is written by Ishika Gupta pursuing BBA L.LB from Gitarattan International Business School. This article aims to highlight the fate of freedom of Press in India and the restrictions imposed on it.

“Our liberty depends on the freedom of the Press, and that cannot be limited without being lost.” ~ Thomas Jefferson

Freedom of Press or media means the right to express and communicate thoughts through the means of various media including electronic and print media. This right excludes the interference from any overreaching state.  

INTRODUCTION

Lord Mansfield described liberty of Press as the liberty to print and publish whatever one wants to and there is no requirement of prior permission.  Not only newspapers and periodicals but also pamphlets, circulars and every sort of publication which involves information and opinion are included in freedom of Press as said in “Sakal Papers Ltd. vs. Union of India”.

It is the duty of the government to distinguish between materials whether it is to be publicised or protected from disclosure to the public.  The materials which are to be protected may be sensitive, classified or secret or may be of national importance or the same should not be made public due to national security reasons.  

As per Universal Declaration of Human Rights, 1948, Freedom of opinion and expression is a fundamental right given to everybody and it also includes freedom to hold opinion without any interference and to receive and deliver information and opinions through any form of media. Equal treatment is given to spoken and published expression as the freedom of speech is often covered under the same laws as the freedom of Press.  Sweden was the first country to introduce Freedom of Press Act, 1766 and adopted freedom of Press under its constitution.  

However, in India, the Fundamental right of freedom of Press is implicit in the right of freedom of speech and expression under Article 19 (1)(A) of the Constitution and it is necessary for political liberty and proper functioning of democracy.  

When men cannot freely convey their thoughts to one another, no freedom is secured, where freedom of expression exists the beginning of a free society and means for every retention of liberty are already present.  As Dr. Ambedkar in his speech said that the Press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity.  The Editor of a Press or Manager is merely exercising the right of expression and therefore no special mention is necessary of the freedom of the Press.  

HISTORY

Indian Press has a long history right from the time of British rule in the country.  The British Government enacted a number of legislations like the Indian Press Act, 1910, Indian Press Emergency Act in 1931-32 to control the Press.  However, after the enactment of the Constitution of India, there was a change in the situation.  The Preamble of the Indian Constitution guaranteed the freedom of expression to all its citizen and the freedom of Press has been included as a part of freedom of speech and expression under Article 19.  

In Indian Express Newspaper vs. Union of India, the Court observed that the expression “freedom of Press” has impliedly covered under Article 19(1)(A) of the Constitution of India.  It means freedom from the interference of any authority which would have an effect upon content and circulation of the newspaper.  Nobody could intervene in the freedom of Press in the name of public interest. 

In “Romesh Thapar vs. State of Madras”, a law banning entry and circulation of the journal in a State was held to be invalid.  The Court held that there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by circulation.  Freedom of circulation is as essential as freedom of publication.  

Freedom of Press has three essential elements namely:

a)  Freedom of access to all sources of information.

b)  Freedom of publication and 

c)  Freedom of circulation.  

In “Prabha Dutt vs. Union of India”, the Supreme Court allowed the representatives of a few newspapers to interview Billa and Ranga, the death sentence convicts, as they wanted to be interviewed. 

However, in India, Press has not been able to practice its freedom to express the view completely as there are various instances when the freedom of Press has been suppressed by the legislature.  In case of “Brij Bhushan vs. State of Delhi” and “Virender vs. State of Punjab” prohibition of newspapers from publishing its own views or view of correspondents about a topic has been held to be a serious encroachment on the freedom of speech and expression.  

In “Sakal Papers Ltd. vs. Union of India”, the Daily Newspapers Order, 1960, which fixed the number of pages and size of newspapers was held to be violative of freedom of Press and not a reasonable restriction under Article 19(2).  

RESTRICTIONS

The Indian Constitution does not mention the word “Press” expressly under the right to freedom of speech and expression.  Hence, it is included under general fundamental rights given under Article 19 and therefore, is subject to restrictions under Article 19(2).  

Clause (2) of Article 19 of Indian Constitution, enables the legislature to impose certain restrictions on free speech under following heads:

1)  Sovereignty and integrity of India: This ground was added to Clause (2) of Article 19 by the 16th Amendment.  Under this Clause freedom of speech and expression can be restricted so as not to permit to anyone to challenge the integrity and sovereignty of India or to preach cession of any part of India from the Union.  

 Sedition: Sedition embraces all those practices whether by word, or writing which is calculated to disturb the tranquillity of the state and lead ignorant persons to subvert the Govt. Sedition is not mentioned anywhere under Article 19 (2) as a ground of restriction on freedom of speech and expression.  But it has been held in “Devi Saren vs. State” that sections 124A and 153A of Indian Penal Code impose reasonable restrictions in the interest of public order and is saved by Article 19 (2).

2)  Security of the State: In the interest of security of the State, reasonable restrictions can be imposed on freedom of speech and expression. In “Romesh Thapar vs. State of Madras”, the Supreme Court said that there are different types of offences against public order but not every public disorder amounts to a threat to the security of the state.  The term security of the State applies only to higher grades of public disorder like rebellion, waging war etc.

3) Friendly relations with Foreign States:  By the first amendment, this provision was added with the objective to prohibit unrestrained malicious propaganda against a foreign-friendly State which may jeopardise the maintenance of good relations between India and that State.

4) Public Order:  The Supreme Court said that public order denotes that state of tranquillity which prevails among the members of political society as a result of internal regulations enforced by the government.  The public order also includes public safety and public safety means the safety of the community from external and internal dangers.  In “Central Prison vs. Ram Manohar Lohia”, the Court rejected the arguments that the instigation of a single individual not to pay tax would itself destroy public order.   

5)  Decency or morality: A publication is indecent or immoral, if it tends to produce negative thoughts and corrupt minds of those who are opened to such immoral influences and into whose hands, a publication of this sort is likely to fall.  Section 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression on the ground of decency or morality.  

6)  Contempt of Court:  If the freedom exceeds the reasonable and fair limit and amounts to contempt of Court, the restrictions can be imposed.  The contempt of Court can be either of two types, civil contempt and criminal contempt.

7) Defamation:  A statement which injures a person’s reputation amounts to defamation.  Section 499 of Indian Penal Code lays down the punishment related to defamation.  In Auto Shankar Case i.e. “R. Rajagopal vs. State of Tamil Nadu”, the Supreme Court held that no authority can impose a prior restriction upon the publication of defamatory material against its officials.

8) Incitement to an offence:  This ground was added by the first amendment.  Offence shall mean any act or omission made punishable by law and freedom of speech and expression cannot confer a licence to incite people to commit offence.  

Despite all this suppression, difficulties, restrictions the press has managed to achieve a lot of success and fame. It has been a long journey but the press has proved itself useful every time.

As in the case of Jessica Lal i.e. “Manu Sharma v State of Delhi”, Jessica was killed by Manu Sharma the son of Haryana minister Venod Sharma as she refused to serve him liquor in the restaurant. The case could not get success at that time due to lack of evidence but it got reopened due to media and public outcry. Organisations like Tehlka and NDTV have been particularly influential and made Venod Sharma resign.

Similarly, in Priyadarshini Mattoo’s Case, the victim was a law student and got raped and murdered by Santosh Kumar her colleague as she refused his proposal. Santosh Kumar was the son of an IPS officer and the case finally got judgement after a long trial due to the significant role played by the media.

CONCLUSION

Freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India. It has been sixty years since India became Republic & commencement of the Constitution there is been a lot of ups & downs in our democracy & the press also has come across age.

Thus, we can conclude that the time has come for the press of the largest democracy of the world to work with hand-in-hand with the judiciary for the welfare of its subjects. The day is not far away when there will be no eclipse of injustice & the sun of justice will shine brightly forever.

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