Transcript of Episode 1 of (il)Legality by Journal and Seminar Committee, Department of Law, University of Calcutta

Transcribed and annotated by the Journal and Seminar Committee of the Department of Law, University of Calcutta. No content mentioned in this transcript shall be reproduced (in verbatim) wholly or in part without the prior approval of the Journal and Seminar Committee of the Department of law, University of Calcutta.

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TRANSCRIPT OF THE FIRST EPISODE OF (IL)LEGALITY—A PODCAST ON LAW IN INDIA _________ I. INTRODUCTION

Samriddha Sen: Hello everyone, welcome to (il)legality, the weekly podcast of the Journal and Seminar Committee of the Department of Law, University of Calcutta co-hosted by Atreya Chakraborty and I, Samriddha Sen where we delve into the merits of conflicting arguments in legal discourse. In today’s episode, we discuss socialism’s incompatibility with liberal constitutionalism and the rule of law, the binding nature of the International Court of Justice’s recommendations/directions upon the Supreme Court of India and the reignition of the debate surrounding death penalty on account of the Nirbhaya case. It is reminded to all listeners, that any and all opinion given over the course of this episode are solely our own. II.

WHETHER SOCIALISM HAS OVERWHELMINGLY ALTERED THE CONSTITUTIONAL MECHANISM AND HAS DILUTED RULE OF LAW SAFEGUARDS

The first topic of discussion in the very first episode of our podcast is one which is essentially, an unconventional food for thought, one that offers discussion on whether the imposition and inclusion of socialism within the constitutionalism scheme of things has denuded away constitutional check and balance limitations on government and the possibility of state action adhering to rule of law principles. Frederic Bastiat in his book “The Law” makes a few observations about the nature of law and government which would be pertinent to mention in this case. He says: “It is not true that the mission of the law is to regulate our consciences, our ideas, our will, our education, our sentiments, our exchanges, our gifts, our enjoyments. Its mission is to prevent the rights of one from interfering with those of another, in any one of these things. Law, because it has force for its necessary sanction, can only have the domain of force, which is justice.”1 On the limits of legal coercion for the achievement of justice, he says: “The Socialists say, since the law organizes justice, why should it not organize labor, instruction, and religion? Why? Because it could not organize labor, instruction, and religion, without disorganizing justice. For

FREDERIC BASTIET, THE LAW 49 (Ludwig Von Mises Institute 2007).

(IL)LEGALITY PODCAST—EPISODE 1—TRANSCRIPT

remember, that law is force, and that consequently the domain of the law cannot properly extend beyond the domain of force. When law and force keep a man within the bounds of justice, they impose nothing upon him but a mere negation. They only oblige him to abstain from doing harm. They violate neither his personality, his liberty, nor his property. They only guard the personality, the liberty, the property of others. They hold themselves on the defensive; they defend the equal right of all. They fulfill a mission whose harmlessness is evident, whose utility is palpable, and whose legitimacy is not to be disputed … It ought to be said, the aim of the law is to prevent injustice from reigning. In fact, it is not justice that has an existence of its own, it is injustice. The one results from the absence of the other. But when the law, through the medium of its necessary agent— force—imposes a form of labor, a method or a subject of instruction, a creed, or a worship, it is no longer negative; it acts positively upon men. It substitutes the will of the legislator for their own will, the initiative of the legislator for their own initiative. They have no need to consult, to compare, or to foresee; the law does all that for them. The intellect is for them a useless encumbrance; they cease to be men; they lose their personality, their liberty, their property."2 As all of you may know, the word “socialism” was inserted vide the 42nd Amendment to the Indian Constitution, in 1976 by a Parliament under Emergency.3 Notwithstanding the concerns of such an amendment lacking qualified legislative competency on account of usurpation of state legislative powers and dilution of principles of federalism and constitutional limitations, we will argue a more fundamental question as to whether the addition and goal of socialist principles had any negative effects on the Indian example of constitutional democracy. We will law out several aspects of such a conflict and/or incompatibility, such as: dilution of fundamental rights; right to property; executive/legislative supremacy over constitutionalism; its ensuing judicial conflicts; and the oxymoronic nature of constitutional amendments furthering socialist agenda which not subject to a textualist interpretation of the original constitution. Concerning the legislative dilution of fundamental rights for advancing principles of socialism, N. A. Palkhiwala described the amendment process as the systematic defiling and defacing of the Indian Constitution.4 Over the course of 30 years since the original Constitution came into effect, fundamental rights were progressively chipped away in favour of seemingly unquestionably righteous socialistic goals.5 While some credit such a fall of constitutionalism to the failures of the Indian judiciary to check overzealous executive and legislative branches bent on disrupting appropriate separation of power check-and-balances by vetoing unconstitutional measures arising out of executive-legislative collusion to subvert constitutional authority through the test of judicial review;6 in this podcast we will try to balance between judicial and legislative/executive developments to the best of our abilities.

Id at 18, 19. The Objects and Reasons of the 42nd Constitutional Amendment Act, 1976 were: 1. Living Constitutionalism and the removal of constitutional limitations on the amending power of parliamentsin public welfare interest; Address stress and strain of constitutional institutions: 3. Precedence of socialism and DPSPs over FRs, creation of FDs; Strengthening presumption of parliamentary legislation since Parliament represents will of people, divestment of authority from High Courts to this regard; 4. Speedy disposal of pending arrears in Supreme and High Courts, modification of High Court writ jurisdiction under 226; etc. Accessible at <http://legislative.gov.in/constitution-forty-second-amendment-act-1976> 4 N. A. PALKHIVALA, OUR CONSTITUTION DEFACED AND DEFILED (New Delhi: Macmillan 1974) 5 Jalvir Singh, Separation of powers and the erosion of the ‘‘right to property’’ in India, 17(4) CONSTITUTIONAL POLITICAL ECONOMY 336, 336—359 (2006); See also citation 7 infra. 6 Id; See also Feler Bose, Parliament vs. Supreme court: a veto player framework of the Indian constitutional experiment in the area of economic and civil rights, 21(4) CONSTITUTIONAL POLITICAL ECONOMY 303, 303—324 (2006). 2 3

______________________________________________________________________________________________________________________________ © 2020 | Property of the Journal and Seminar Committee of the Department of Law, University of Calcutta

(IL)LEGALITY PODCAST—EPISODE 1—TRANSCRIPT

The threat of negation of Fundamental rights in the impending wave of majoritarian socialism was first experienced with Nehru’s creation of the Planning Commission of India. While the Planning Commission was not in and itself, a threat to Fundamental Rights, the legislations passed subsequent to the creation of the Planning Commission, to facilitate its goal to plan the entire country’s economic destiny gradually denuded away constitutional liberties. The following table highlights the gradual dilution of the original constitution’s fundamental right and/or principles, for attainment of socialist goals (1950-1980).7 Implemented Socialist Policy

Fundamental Rights or Constitutional principles

Constitutional Amendment introducing socialist policy

Land Redistribution

Right to Equality Right to Private Property

First Amendment

Price Control

Federalism Right to any occupation, trade or business

Third Amendment

Compensation for acquisition of property

Right to equality Right to private property

Fourth Amendment

Centralization of industry

Federalism

Seventh Amendment

Rent control

Right to equality

Seventeenth Amendment

Tenancy regulation

Right to private property

Seventeenth Amendment

Parliamentary Supremacy

Power to amend the constitution

Twenty-fourth Amendment

Right to private property Bank nationalization

Right to carry on any occupation, trade or business

Twenty-fifth Amendment

Supremacy of fundamental rights Abolition of privy purses

Transfer of power

Twenty-sixth Amendment

Land ceiling

Right to private property

Twenty-ninth Amendment

Land redistribution

Right to property Right to equality

Thirty-fourth Amendment

Quantity controls

Federalism

Thirty-ninth Amendment

Emergency Economic reorganisation Political reorganisation

Separation of powers Judicial review Democratic elections Federalism Fundamental rights

Forty-second Amendment

Nationalization of means of production

Deleted right to private property

Forty-fourth Amendment

In essence, socialism advocates state or public ownership of the “means of production”. Although it may prima facie appear noble on account of its apparent public welfare objective, there are some technical economic aspects that we need to pay heed to. While theoretically, Austrian economist Ludwig von Mises has argued that without private property, there can be no exchange of the means of production, be it consenting or forceful, and in the absence of market prices, rational allocation of resources would be impossible;8 Austrian-British economist Friederich Hayek See Shruti Rajagopalan, Incompatible institutions: socialism versus constitutionalism in India, 26 CONSTITUTIONAL POLITICAL ECONOMY 328, 328—355 (2015) at 337 8 MISES, L., SOCIALISM: AN ECONOMIC AND SOCIOLOGICAL ANALYSIS (J. Kahane, Trans., Indianapolis: Liberty Fund, 2nd ed. 1922). 7

(IL)LEGALITY PODCAST—EPISODE 1—TRANSCRIPT

argues a more technical aspect of state control of the means of production invariably leading to centralised planning, which is that central planners would always need the most accurate information needed to plan rationally at the central/federal level, and since the economy is unable to provide accurate information, central planners at the risk of planning irrationally leading to severe economic consequences, perpetually face an information crisis which is known as the Hayekian information problem.9 Owing to the impossibility of rational economic decisions because of the information problem, Hayek demonstrates that the institutions that will emerge from a centralized planning structure would fail to achieve the desired economic result.10 Hayek’s information problem also demonstrates how centralised economic planning is fundamentally opposed to the Rule of Law. The principal tenets of constitutionally espoused Rule of Law, is that a statute/regulation/directive is precise and detailed in terms of regulatory ambit and provenance, is compatible with existing constitutional limitations, is in conformity with constitutional principles of equality i.e., equality before the law and equal status of the law without any apparent arbitrariness, and is disclosed beforehand to the public before being in effect. Hayek’s information problem indicates that due to such impossibility of rational economic decision, central planners are endowed with unlimited discretion to execute their economic plan.11 Such discretion is completely antithetical to the foundation of Rule of Law, thereby making centralised economic planning incompatible also.12 The first direct substantive threat faced by Fundamental Rights, was under the Indira Gandhi regime. At the altar of populist politics which eventually led to the breakup of the traditional political umbrella known as the Congress, Indira Gandhi separated herself from an economically moderate Syndicalists,13 to branch off as the far-left Congress Requisitionists.14 A move to make her politically palatable, her decision rested on a then socialist populism wave among the electorate.15 While the Syndicate subsequently broke off to form the Congress Originalists or C (O), Indira Gandhi, by projecting herself as the “real” socialist launched the Ten Point Programme in 1967 detailing policies what she called “commanding heights of the economy”, such as rural housing, land reforms, urban land ceiling, exacting government control over scheduled resources in designated economic zones, nationalisation of banks and insurance (essentially all policies laid out in the Fourth and Fifth Five Year Plans) in addition to abolition of privy purses. Before the Government could lauch the Programme, the eminent domain authority of state (see discussion on right to property infra) and the amending authority of Parliament was

Hayek, F. A., The Use of Knowledge in Society, 35(4) THE AMERICAN ECONOMIC REVIEW 519, 519530 (1945) 10 HAYEK, F. A., THE ROAD TO SERFDOM, (Chicago: University of Chicago Press. 1944). 11 Id at 144; See also Boettke, P. J., Hayek’s road to serfdom revisited: Government failure in the argument against socialism, 21(1) EASTERN ECONOMIC JOURNAL 7, 7–26 at 12 (1995). 12 HAYEK, F. A., THE ROAD TO SERFDOM, (Chicago: University of Chicago Press. 1944); See also A. V. DICEY., INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, (McMillan & Co., 1982); The rule of the Rule of Law is not (just) to eliminate discretion, but to ensure that it is properly framed and authorized, and that the application of rules and judicial procedures is preserved for those cases where liberty and well-being are most seriously at stake. See Waldron, Jeremy, “The Rule of Law”, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Spring 2020 Edition), Edward N. Zalta (ed.), accessible at <https://plato.stanford.edu/archives/spr2020/entries/rule-of-law/>. 13 The Syndicalists or C(O) generally ‘favored dilution of planning, a reduced role for the public sector, and greater reliance on private enterprise and foreign capital. 14 A. Panagariya, Growth and reforms during 1980s and 1990s, 39(25) ECONOMIC AND POLITICAL WEEKLY, 2581–2594 (2004). 15 GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: THE INDIAN EXPERIENCE 290 (New Delhi: Oxford University Press 1999); See also R. GUHA, INDIA AFTER GANDHI 518 (London: Macmillan 2007). 9

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challenged in the Supreme Court in Golak Nath v. State of Punjab16 wherein the constitutional validity of the Punjab Land Tenures Act, 1953 was questioned on the ground of it depriving the individual’s right to property. In deciding the extent of parliament’s competency to amend the constitution, the eleven-judge bench of the Supreme Court, by majority opinion held that parliament cannot amend the Constitution so as to abrige fundamental rights, while refusing to retrospectively apply its dictum. To put it otherwise, constitutional amendments cannot give effect to unconstitutional laws. To circumvent this problem, the Indira Gandhi regime introduced the Twenty Fourth and Twenty Fifth Amendments to the Constitution. Particularly, the Twenty Forth Constitutional Amendment Act of 1971 argued in its Objects and Reasons17 that since the Golak Nath case, by a narrow majority, overturned the pre-Golak Nath jurisprudence which supported Parliament’s competency to amend all parts of the Constitution, including Part III thereof, a law was needed which conclusively settles the finality of Parliament’s absolute authority to amend the Constitution. The Twenty Fourth Amendment read together with the Twenty Fifth Amendment gave Parliament unchecked amendment authority through Article 368 to eliminate restrictions posed by fundamental rights and judicial review. This gaping constitutional hole was seemingly filled with the Keshavanda Bharati18 judgement; however, the said judgement did not explicitly and specifically bar parliamentary amendment of fundamental rights as long as they conformed to the basic structure doctrine. Perhaps with the same level of scrutiny, concern is apparent considering the prime test of conformity with the basic structure doctrine is left to non-objective and unempirical standards of judicial review. Moving onto the right to property, Adam Smith’s prescient explanation on the origin and intent of the constitutional separation of power scheme comes to mind. In his book “The Wealth of Nations”, he says: “The separation of the judicial from the executive power seems originally to have arisen from the increasing business of the society, in consequence of its increasing improvement. The administration of justice became so laborious and so complicated a duty as to require the undivided attention of the persons to whom it was entrusted.... When the judicial is united to the executive power, it is scarce possible that justice should not frequently be sacrificed to, what is vulgarly called politics. The persons entrusted with the great interests of the state may, even without any corrupt views, sometimes imagine it necessary to sacrifice to those interests the rights of a private man.”19 Two explanations emerge from this quote, one being that the ongoing performance of administration and adjudication lead to the specialization of these tasks, and the other being concentration of power in one branch of government results in violation of rights. There is now established academic literature to support the separation of power framework’s social welfare utility.20 AIR 1967 SC 1643. Twenty Fourth (Amendment to the Constitution) Act, 1971 Objects and Reasons Clause, accessible at <http://legislative.gov.in/constitution-twenty-fourth-amendment-act-1971> 18 AIR 1973 SC 1461 19 2 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 172, (Peter B. Gleason & Co. Printers 1811). 20 B Perrson, Torsten, Gerard Roland and Guido Tabellini (1997), Separation of Powers and Political Accountability, 112(4) THE QUARTERLY JOURNAL OF ECONOMICS 1163, 1163-1202 (1997); See also Padovano, Fabio, GraziaSgarra and Nadia Fiorino, ‘Judicial Branch, Checks and Balances and Political Accountability’, 14 CONSTITUTIONAL POLITICAL ECONOMY 47, 47-70 (2003). 112 (Issue 4) 1163–1202 16 17

(IL)LEGALITY PODCAST—EPISODE 1—TRANSCRIPT

The nature of property rights to be enshrined in the Constitution was a contentious issue in the Constituent Assembly Debates.21 While framing such property rights, the Assembly found a clear reference model in the Fifth Amendment to the U.S. Constitution, the operative part being: “ ... nor shall any person ... be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” Strikingly similar to the debates on the proposed inclusion of the phrase “due process” in a few drafts of Article 21, the debates surrounding property rights were also mired with concerns of Constituent Assembly Members surrounding the textual existence of a “due process” safeguard for property rights. Now what exactly does due process signify? As regards to both Article 21 and property rights, due process is the requirement of procedural fairness by placing restrictions on the operation of state authority having the possibility to deprive an individual of rights legally owed,22 in contrast to substantive due process which goes to the root, object, nature and statutory language of a law.23 Most of the concerns regarding due process in the Constituent Assembly was regarding the possibility of excessive judicial encroachment on administrative and public policy actions of government, because many constituent assembly members deriving their experience from British Courts, were skeptics of creating an independent judiciary with vast authority which could easily oppose the “will of the people”. While some voices talked of judicial overburden because most litigations in the US are concerning due process, most oppositions were concerning due process’s inherent obstruction of legislative effectuation of land reforms. Ultimately bowing down to such voices, the draft article on property rights was removed of any connection between due process and right to property, further bolstered by the removal of “just” from the clause which guaranteed just compensation for acquisition of property for public purposes.24 Although this resulted in creating a right to property under Article 19(1)(f) of the Constitution, the same can be deprived under Article 31. As existed at origin, this article said that no one could be deprived of their property except by law; the law must set a compensation or principles on which such compensation is paid; property acquisition laws must get assent of the President; police powers were provided in relation to property; and property legislation which was not subject to any subsequent judicial questioning on compensation was to be legislated in a stipulated time frame.25 However, over the next thirty years, the right to property was gradually chipped away which eventually led to the Fourth Forth Constitutional Amendment Act, 1978 deleting Articles 19(1)(f) and 31 from the Constitution. In this part of our discussion, I try to draw a concise timeline as to how it happened. Through the First Five Year Plan which called for land reforms and industrial development,26 the ruling Congress administration reflected the growing political impulse which favoured to eliminate, preferably without compensation, Zamindars— rural intermediaries, who under colonial rule had gained rights over vast tracts of land in many parts of the country, and put into effect a “socialist” Industrial Policy GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION (Oxford University Press New Delhi 1966). 22 Edward J. Eberle, Procedural Due Process: The Original Understanding 23 Christopher R. Green, Twelve Problems With Substantive Due Process, 16 GEORGETOWN JOURNAL OF LAW AND PUBLIC POLICY, 397, 397-420 (2018) 24 Jalvir Singh, Working Paper Series on (Un)Constituting Property: The Deconstruction of the ‘Right to Property’ in India, JAWAHARLAL NEHRU UNIVERSITY CENTRE FOR LAW AND GOVERNANCE, (2012) at 8. 25 GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION (Oxford University Press New Delhi 1996). 26 India’s First FYP expressly stated as its objective, to ‘‘reduce disparities in wealth and income, eliminate exploitation, provide security for tenants and workers, and, finally, promise equality of status and opportunity to different sections of the rural population’’ See Planning Commission of India, First five year plan, (New Delhi 1951) at 88. 21

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that gave the State a major role in controlling both private (both, through the planning process and a mandate to take over concerns in the public interest) and public industry. Such moves were challenged in courts under the original takings clause in Article 31 of the Constitution which read: “No person shall be deprived of property without due process of law’’ and ‘‘no property... shall be taken possession of or acquired for public purposes under any law authorizing the taking of such possession or such acquisition, unless the law provides for compensation.” One of the many state land reform laws which were challenged in this period was the Bihar Management of Estates and Tenures Act, 1949, which assessed the compensation payable to the owner of property acquired at 20 times the assessment for a poor owner and at 3 times the assessment for a rich owner. In Kameshwar Singh v. Province of Bihar,27 one of the first and indeed a landmark case on property rights, the Allahabad High Court, then having jurisdiction over the Province of Bihar which included the region where modern day Uttar Pradesh exists, held that the Bihar Management of Estates and Tenures Act, 1949 was ultra vires the Constitution, holding that in addition to violations of Articles 19(1)(f) and 31, it also violated Article 14 by discriminating richer zamindars from equal compensation and thereby struck it down. Similarly, the Bombay High Court received a case wherein mill owners had been deprived from the right to property as their establishments were taken over by the Government without any compensation.28 Considering the pervasive scale of land reforms that the Government envisaged, it was impossible for it to pay fair compensation in every case of land redistribution. Nehru defended the Government’s motives in the debating chambers of Parliament by calling their socialistic policies as “which represent dynamic movement towards a certain objective’’ and demeaning Fundamental Rights as something which ‘‘represent something static, to preserve certain rights’’.29 To bypass the judicial onslaught posed by the then property rights jurisprudence, the Provisional Parliament of 1951 passed the First Constitutional Amendment Act of 1951,30 by which Articles 31A, 31B and the Ninth Schedule were added to the Constitution. Article 31 A permitted the legislation of laws to acquire estates— a term used cover the properties of Zamindars and other categories of revenue farmers, the taking over of property by the State for a limited period either in the ‘public interest’ or to ‘secure the proper management of the property’, amalgamate properties, and extinguish or modify the rights of managers, managing agents, directors, stockholders etc. and those who have licenses or agreements to search or own minerals and oil. Such laws, as per this Article cannot be declared void on grounds that they are inconsistent with Articles 19, 31 and 14. Article 31B protected the various land reform laws enacted by both the Center and the States, by stating that none of these laws, which were to be listed in the Ninth Schedule, can become void on the ground that they violated any Fundamental Right. The First Amendment Act effectively diluted the eminent domain clause and the right to property so as to enable First Five Year Plan policies. In essence, it divested courts of any jurisdiction to challenge any preferred land reform legislation which is part of the Ninth Schedule, thereby effectively depriving any aggrieved individual of any locus standi to approach any court of law.

AIR 1950 Patna 392 Dwarkadas Srinivas v. The Sholapur Spinning and Weaving Company Ltd., AIR 1951 Bombay 86. 29 16 JAWAHARLAL NEHRU, PARLIAMENTARY DEBATE ON FIRST AMENDMENT BILL IN L. S. SECRETARIAT 8820 (New Delhi: Lok Sabha Secratariat 1951). 30 The Statement of Objects and Reasons of the First Amendment Act explicitly stated, ‘‘The validity of agrarian reforms ... formed the subject-matter of dilatory litigation, as a result of which the implementation of these important measures [land reform], affecting large numbers of people, has been held up. ... The opportunity has been taken to propose a few minor amendments to other articles in order to remove difficulties that arise.’’ Accessible at <http://legislative.gov.in/constitution-first-amendment-act-1951> 27 28

(IL)LEGALITY PODCAST—EPISODE 1—TRANSCRIPT

However, it would appear that High Courts across the country were unwilling to properly enforce land acquisitions without compensation resulting from acts operational within the Ninth Schedule. In State of West Bengal vs. Bela Banerjee,31 the validity of the West Bengal Land Development and Planning Act, 1948, was challenged on the ground that it provided for acquisition of land after payment of compensation which did not exceed the market value of the land as computed on December 31st, 1946. The State argued that Article 31(2) read with Entry 42 of List III (which is basically an argument that the legislature has the right to make laws on property) of the Constitution gave full discretion to the legislature in determining the measure of compensation. The Supreme Court reasoned that while the legislature has the discretion to lay down principles on the basis of which the government paid compensation for appropriated property, such principles must ensure that the compensation is ‘‘a just equivalent to what the owner has been deprived of’’ and that the content of such principles be adjudicated by the court. Once again, to eliminate any judicial obstacles, Parliament passed the Constitution (Fourth Amendment) Act of 1955.32 In this amendment, the major changes in the Constitution were centered on Article 31—in particular Clause 2 of the Article and a new Clause 2A were added to the Article. Article 31(2) as it stood originally read— “No property, movable or immovable including any interest in, or in any company owning any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorizing the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.” After the Fourth Amendment it read— “No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given and no such law shall be called in question in any court on the ground that the compensation by that law is not adequate.” While the original Constitution prevented arbitrary takeover or control of management of private firms, the Fourth Amendment to the Indian Constitution created a pathway for such rapid acquisition by eliminating scope of judicial scrutiny. Article 31(2A) of the Fourth Amendment Act stated: “No such law [which transfers ownership or possession of property to the State or a Corporation] shall be called in question in any court on the ground that the compensation provided by the law is not adequate.’’ Following a Supreme Court judgment in Dwarkadas Srinivas v. The Sholapur Spinning and Weaving Company Ltd.33 which held that stock holders of a company AIR 1954 SC 170. The Statement of Objects and Reasons of the Fourth Amendment Act explicitly stated, ‘‘It is considered necessary, therefore, to re-state more precisely the State’s power of compulsory acquisition and requisitioning of private property and distinguish it from cases where the operation of regulatory or prohibitory laws of the State results in deprivation of property.’’ Accessible at <http://legislative.gov.in/constitution-fourth-amendment-act-1955> 33 AIR 1951 Bombay 86 31 32

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which had been taken over for mismanagement under police powers stipulated in Article 31 A, had to be paid compensation; a clarification was issued for Article 31(2A) which said that if property were not transferred to the State under a law then it should not be deemed to have been a compulsory acquisition even though there may have been deprivation of property.34 Adopting a strategy all too familiar with the First and Fourth Amendments, Parliament passed the Seventh Amendment after the Supreme Court in Karimbil Kunhikoman v. The State of Kerala,35 held that taking of lands under the Kerala Agrarian Relations Act 1961 was unconstitutional as per Article 14 because a smaller compensation was paid for large tracts than for smaller holdings. The Seventh Amendment was enacted subsequent to this judgment just to remove certain land reform legislations, including impugned Kerala Agrarian Relations Act of 1961, from judicial review by adding them to the Ninth Schedule. Two more amendments are crucial to discuss, when dealing with socialist policies’ effects on property rights. These are the Twenty Fifth and Forty Forth Amendments. Contrary to what you all might have expected, I will not be discussing the Forty Second Amendment as well as other effects of socialism on Indian constitutionalism because of shortage of time. The Twenty Fifth Amendment was essentially introduced as a hasty move against judicial interference in socialist policies. In addition to the Golak Nath case, as discussed, the case of Vajravelu Mudliar v. Special Deputy Collector,36 had profound impacts on a government riding on a socialist tide. In this case, the Acquisition (Madras Amendment) Act, 1961 for the purpose of building houses and this move was challenged under Articles 31 and 14. The stance of the Supreme Court in interpreting Article 31(2) in this case was in consonance with its decision in the Bela Banerjee case as discussed earlier. In this case, the majority order accepted Justice Subba Rao’s view that that both before and after the amendment to Article 31(2) there is a right to compensation and by giving illusory compensation the constitutional guarantee to provide compensation for an acquisition was not complied with. It was also stated that the legislature is not the final authority on compensation. To get a flavor of the judgment the following quotation is illustrative— “The Constitution guarantees a right to compensation—an equivalent in money of the property compulsorily acquired. That is the basic guarantee. The law must therefore provide compensation, and for determining compensation relevant principles must be specified; if the principles are not relevant the ultimate value determined is not compensation.” This judgement along with Golak Nath came at a time when the government was all invested in nationalization and other ‘socialist’ endeavours. On the basis of record available, it was apparent the supposed “political and intellectual currents” at the time were inclined overcoming Fundamental Rights, to give DPSPs precedence over FRs, keeping courts out of acquisition and compensation matters and to take “property” out of Fundamental Rights. The Twenty Fourth Amendment authorised Parliament to amend any part of the Constitution and mandated that the President ‘shall’ give his assent to any constitutional amendment presented before him. The Twenty Fifth Amendment suppressed the legacy of all judgments that had raised issues of paying just Jalvir Singh, Working Paper Series on (Un)Constituting Property: The Deconstruction of the ‘Right to Property’ in India, JAWAHARLAL NEHRU UNIVERSITY CENTRE FOR LAW AND GOVERNANCE, (2012) at 12. 35 1962 (1) SCR 829ff. 36 AIR 1965 SC 1017 34

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compensation by replacing the term “compensation” in Article 31(2) with “amount” and barred courts from questioning this ‘amount’ on grounds that it was inadequate or paid in terms other than cash. This Amendment also inserted a new Article—Article 31C, which said that no law declaring its purpose to be fulfilling the Directive Principles could be challenged in a court of law that it did not do so. Coming to the Forty Fourth Amendment,37 while it reversed several emergency legal loopholes which gave excess authority to the Indira Gandhi regime and retained Article 31C and Fundamental Rights, which expressly protected the individual from the excesses of the State, it also deleted the right to private property and removed all restrictions on the power of eminent domain. As an empty gesture, the Amendment kept the now diluted right to property as Article 300-A which read: ‘No person shall be deprived of his property save by authority of law’. The law minister at the time, Shanti Bhusan, justified the removal of property as a Fundamental Right by saying in Parliament ‘vast majority’ of Indians did not own extensive property ‘to equate the right to property to the more important rights ... [had resulted in curbing] ... the other fundamental rights.’38 The present stance of the Supreme Court in regard to property rights, which is the post-Forty Forth Amendment jurisprudence, can be found in Jilubhai Nanbhai Khachar v. State of Gujarat,39 in which the Apex Court held that the State had the right to take land of revenue farmers for the purposes of mining under Article 300A, without entertaining any discussion on adequacy of compensation, while unequivocally holding that the right to property is not a basic structure feature of the present Constitution. The irony behind all this was that despite the neo-socialistic cries of a Nehruvian politics, within the first 30 years of Independence, there was no attention to instituting social provisionings akin to European social democracies, thereby propagating many neo-socialistic perspectives that it was flawed nationalism, rather than egalitarianism or redistributionism, which dominated the then-contemporary economic policy.40 That is all I am able to discuss for today’s episode. There is much more to this aspect of Indian legal history that I am unable to touch upon because of time constraints. In addition to all the references provided in our transcript, please feel free to reach out to the Committee for queries, scholarship readings and suggestions. ________________________________ III.

WHETHER THE SUPREME COURT OF INDIA IS BOUND BY THE RECOMMENDATIONS/DIRECTIONS ISSUED BY THE INTERNATIONAL COURT OF JUSTICE

Now before we proceed onto the main debate surrounding the use of death penalty for heinous offences as in the case of Nirbhaya which will be addressed by my cohost Atreya, upon request from one of our classmates, we would first address a Objects and Reasons of The Constitution (Forty-Fourth Amendment) Act, 1978 read: ‘‘the right to property, which has been the occasion for more than one amendment of the Constitution, would cease to be a fundamental right”. Available at <https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-forty-fourth-amendment-act-1978> 38 GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 425 (Oxford University Press New Delhi 1999). 39 1995 Supp (1) SCC 596, AIR 1995 SC 142. 40 Baldev Raj Nayar, “State Entrepreneurship in the Nehru Era: Ideology vs Necessity” in RAM JOSHI & R.K. HEBSUR, CONGRESS IN INDIAN POLITICS: A CENTENARY PERSPECTIVE 204 (London: Sangam, 1987), at 204. 37

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more primitive question concerning the coercive force of international law, one that has significant ramifications for real and jurisprudential sovereignty, and that question is: Whether the Indian Supreme Court is bound by the recommendations/directions issued by the International Court of Justice at the Hague. This is a question that essentially concerns a jurisdictional issue at best, and a legal sovereignty issue at most. Perhaps the fallacy of international law is best presented by noted English legal theorist John Austin in his book “Province of Jurisprudence Determined”. In Volume I of his book, he says: “The so-called law of nations consists of opinions or sentiments current among nations generally. It therefore is not law properly so called. But one supreme government may doubtless command another to forbear from a kind of conduct which the law of nations condemns. And, though it is fashioned upon law which is law improperly so called, this' command is a law in the proper signification of the term. Speaking precisely, the command is a rule of positive morality set by a determinate author. For, as no supreme government is in a state of subjection to another, the government commanding does not command in its character of political superior. If the government receiving the command were in a state of subjection to the other, the command, though fashioned on the law of nations would amount to a positive law.”41 Austin, therefore, considers international law as a misnomer, regarding it as more ethical than legal in nature, for lack of sovereign sanction.42 There are two notable elements of Austin’s critique of international law: the first and foremost is legal positivism and the second is international law’s frustration of Austin’s theory of legal command. As regards to legal positivism, Austin holds that the existence of the law depends on social factors, and not simply on its merits.43 Austin formulates legal positivism as: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”44 “Society,” says Mr. Austin, “formed by the intercourse of independent political societies, is the province of international law, or of the law obtaining between nations. For (adopting a current expression) international law, or the law obtaining between nations, is conversant about the conduct of independent political societies considered as entire communities: circa negotia et causas gentium integrarum. Speaking with greater precision, international law, or the law obtaining between nations, regards the conduct of sovereigns considered as related to one another. And hence it inevitably follows, that the law obtaining between nations is not positive law: for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author. As I have already intimated, the law obtaining between nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or on the 1 JOHN AUSTIN, PROVIDENCE OF JURISPRUDENCE DETERMINED 188-189. 2 ROBERT CAMPBELL, LECTURES ON JURISPRUDENCE 593 (4th ed., 1873); See also James B, Scott, The Legal Nature of International Law, 5(2) COLUMBIA L. REV. 124, 124-152 (1905). 43 Reen, Leslie and Adams, Thomas, “Legal Positivism”, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Winter 2019), Edward N. Zalta (ed.), accessible at <https://plato.stanford.edu/archives/win2019/entries/legal-positivism/>. 44 1 JOHN AUSTIN, PROVIDENCE OF JURISPRUDENCE DETERMINED 157. 41 42

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part of sovereigns, of provoking general hostility, and incurring its general evils, in case they shall violate maxims generally received and respected.”45 This brings us to Austin’s theory of legal command. There are several elements to Austin’s argument against the legality of international law, which will I discuss now: International Law is considered equal among equal sovereign nations, meaning it does not have the coercive sanction of a supreme sovereign which command obedience through a monopolised and unilateral usage of force.46 Now what does Austin mean by “sanction” which stems from the command of the sovereign. Austin considers the sanction of the sovereign as an instrument by which the Rule of Law is universally applied, which in the most strict sense demands and compels obedience to the subject matter of the sanction.47 For sanction is not an end in itself, it is at most a means to an end, namely obedience to the command of the sovereign and the Rule of Law.48 Therein exists the fundamental difference between municipal law and international law. While the former is considered binding on a domestic community or society, international law, primarily comprising of usages and customs, regulate foreign relations between States.49 For example, W.E. Hall calls international law to be binding upon States only to the extent of their foreign relations. Conversely, international law can be considered as law in the strict sense of the term, if a nation binds itself by a treaty, positive agreement or a violation of rights under the treaty would attract the “command” of the injured state to the state committing the infraction before an International Tribunal. While the argument is not sound considering the lack of any mechanism to command obedience to international agreements or laws, other than merely persuasive economic sanctions, it reflects that should states at an international level accept and enforce the customs and usages which are considered as tenets of international law, it would add an element of legal positivism to the effect of the said law. Coming to whether the Indian Supreme Court is bound by the recommendation or directions of the International Court of Justice; on March 16th, it was reported that the Nirbhaya convicts, then slated for execution on 20th March at 5:30 am, wrote a letter seeing urgent hearing before the ICJ to stay their “unlawful execution” on

Supra at 231-232. 1 JOHN AUSTIN, PROVIDENCE OF JURISPRUDENCE DETERMINED 91, 92 reads: “The evil which will probably be incurred in case a command be dis- obeyed or (to use an equivalent expression) in case a duty be broken, is frequently called a sanction, or an enforcement of obedience. Or (varying the phrase) the command or the duty is said to be sanctioned or enforced by the chance of incurring the evil. Considered as thus abstracted from the command and the duty which it enforces, the evil to be incurred by disobedience is frequently styled a punishment.” 47 1 ROBERT CAMPBELL, LECTURES ON JURISPRUDENCE 457, 458 (4th ed., 1873) reads: “A party lying under a duty, or upon whom a duty is incumbent, is liable to evil or inconvenience (to be inflicted by sovereign authority) in case he violate the duty, or disobey the command which imposes it. The evil to be incurred by the party in case he disobey the command, enforces compliance with the command, or secures the fulfilment of the duty. In other words, it inclines the party to obey the command, or to fulfil the duty or obligation which the command imposes upon him. By reason of his liability or obnoxiousness to the eventual or conditional evil, there is a chance that he will not disobey: A chance which is greater or less (foreign considerations apart), as the evil itself, and the chance of incurring it by disobedience, are greater or less. The eventual or conditional evil to which the party is obnoxious, is styled a ' Sanction'; or the Law or other Command is said to be sanctioned by the evil.” 48 James B, Scott, The Legal Nature of International Law, 5(2) COLUMBIA L. REV. 124, 124-152 (1905). 49 Id. 45 46

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grounds of “seriously doubtful” improprieties occurring in procedural and investigative processes.50 The International Court of Justice’s jurisdiction is essentially two-fold: it decides disputes of a legal nature submitted to it by states, in accordance with international law (jurisdiction in contentious cases); and renders advisory opinions sought by UN organs, specialised agencies or organisations authorised to make such a request (advisory jurisdiction).51 Article 36 ¶2 of the ICJ statute states that the States parties to the Statute of the Court may “at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court”.52 Each State which has recognized the compulsory jurisdiction of the Court has in principle the right to bring any one or more other States, which have accepted the same obligation, before the Court, by filing an application instituting proceedings with the Court. Conversely, it undertakes to appear before the Court should proceedings be instituted against it by one or more other such States.53 As regards to India’s Declaration dated 27th Decemeber 2019, recognising the jurisdiction of the ICJ as compulsory, the said jurisdiction is barred in cases falling essentially under the domestic jurisdiction of India.54 Therefore, not only does the ICJ’s jurisdiction exists at the request of a State’s filing against one or more States, the entire aspect of criminal justice for crimes committed by Indian citizens on Indian soil, falling exclusively within the jurisdictional competence of the Indian Courts, divests the convicts of any locus standi to approach the ICJ. As regards to enforcement of ICJ decisions, Art. 94 (1) of the UN Charter reads as “Each member of the United Nations undertakes to comply with the decision of the international Court of Justice in any case to which it is a party” while Art. 94 (2) lays down that “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” While vesting the authority to enforce the decisions of the ICJ with the UN Security Council, the presence of the word “may” indicates that either the Security Council can choose to not enforce an ICJ decision or a resolution to enforce an ICJ decision is subject to the veto power of any UNSC Permanent Member State. Moreover, since it is also evident that the UNSC may not be the only body with the vested authority to enforce ICJ decisions, a party alleging the non-compliance of an ICJ order or decision may file a complaint before the UN General Assembly under Articles 10, 11, 14, 22 and 35 vis-à-vis Resolution 377, also known as the Uniting for Peace Resolution.55 Thus the Indian Supreme Court is not bound to adhere to an ICJ recommendation/direction as criminal justice is an establish aspect of jurisdictional sovereignty and unless the Indian Government was a party to an ICJ matter which dealt with the a question of law which was identical to a matter pending before the Supreme Court, no question regarding the same arises. ________________________________ Aditi Singh, Nirbhaya convicts write to International Court of Justice to stay execution of death warrant, BAR AND BENCH (March 20, 2020, 7:57 PM) <https://www.barandbench.com/news/litigation/nirbhaya-convicts-write-to-international-court-of-justice-to-stay-execution-of-death-warrant> 51 Jurisdiction of the International Court of Justice, accessible at https://www.icj-cij.org/en/jurisdiction 52 Declarations recognizing the jurisdiction of the Court as compulsory, accessible at https://www.icjcij.org/en/declarations 53 Id. 54 Declarations of India recognizing the jurisdiction of the Court as compulsory, accessible at https://www.icj-cij.org/en/declarations/in 55 United Nations Charter, Article 94(2). 50

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IV.

THE DISCUSSION ON DEATH PENALTY

Atreya Chakraborty: The subject-matter of death penalty has been at the center of sustained legal discourse and deliberation all over the world. Even though the nature of arguments, both advancing and assailing the retention of such form of punishment has not undergone a substantial amount of change, a fresh consideration of these arguments in the first episode of (il)legality seems warranted, particularly in the Indian perspective, in light of the re-ignition of the debate concerning death penalty subsequent to the execution of Nirbhaya case convicts on the 20th of March, 2020. In pre-independent India, death penalty was nothing more than a convenient tool for the British administration to be used to permanently eliminate anyone who revolted against the rule of the British Crown, in the interests of the sustenance of the colonial empire. The slightest satisfaction of the elements of a crime deserving death penalty was considered more than enough for the judge to pronounce a verdict of guilty followed by a sentence of capital punishment.56 Quite expectedly, such trend saw a drastic decline and the Courts in independent India have consistently stressed on the importance of exercising utmost caution and restraint in awarding capital punishment. Death penalty undoubtedly leads to the deprivation of life and personal liberty of an individual albeit, according to procedure established by law. Therefore, it may be prudent to analyse briefly, the judicial interpretation of the phrase “procedure established by law”57 in light of two landmark decisions of the Supreme Court of India. In the initial stages of post-independence era, the judgment delivered by the Supreme Court in the matter of A.K. Gopalan v. State of Madras58 gave recognition to the precept that the sole issue that could be subjected to judicial review was whether the law authorizing the deprivation of life or liberty has been duly enacted by the legislature. In A.K. Gopalan (supra), the Apex Court had deliberated upon the meaning of the expression “procedure established by law” at great length while determining the constitutionality of the provisions of the Preventive Detention Act, 1950. The reason behind Apex Court’s reluctance to strike down arbitrary restraints imposed by the provisions of the said Act, could arguably be narrowed down to paragraph 23 of the judgment; the relevant portions of which may be read out as follows: “The phrase "procedure established by law" seems to be borrowed from article 31 of the Japanese Constitution….” Moreover, “…The word "due" in the expression "due process of law" in the American Constitution is interpreted to mean "just," according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what is "due" from otherwise, according to law…. The deliberate omission of the word "due" from Article 21 lends strength to the contention that the justiciable aspect of "law", i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution…”59 In the judgment so delivered, “procedure established by law” was interpreted literally, i.e. judging the reasonability of procedure was kept out of the scope of judicial review.

A. LAKSHMINATH, JUDICIAL PROCESS AND PRECDENT 476 (4th ed., 2019). Art. 21, Constitution of India, 1950. 58 AIR 1950 SC 27. 59 Id at ¶ 23. 56 57

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Subsequently, in the aftermath of the Emergency in 1975, a new trend of recognition of human rights set foot in the Indian jurisprudence. It was during such time that India was internationally committing herself to treaties and agreements that required the member States to respect basic human rights.60 Around the same time, the Supreme Court in the matter of Maneka Gandhi v. Union of India,61 had inserted the concept of “just and reasonable” procedure in the interpretation of Article 2162. Such scenario inevitably raised questions of the constitutionality of death penalty. DEATH PENALTY – ISSUE OF CONFERMENT OF UNGUIDED AND WIDE DISCRETIONARY POWER UPON JUDGES AND VIOLATION OF ARTICLE 14: -

The first challenge to the constitutionality of death penalty in India came in the year 1973 in the case of Jagmohan Singh v. State of U. P.63 Even though other grounds of challenge were also raised by the petitioners, presently, it shall be prudent to deliberate on the contention that the discretion vested in judges in deciding in the imposition of death sentence was uncontrolled and unguided and thus, violated Article 14. Dealing with the question of discretion and violation of Article 14, the Supreme Court had observed the following at paragraphs 26 and 27 respectively: Para 26: “The impossibility of laying down standards is at the very core of the criminal law as administered in India, which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter of sentences as already pointed out, is liable to be corrected by superior courts… The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused.”64 Such observation of the Supreme Court was based on the premise that in England, a Royal Commission appointed with the mandate of recommending straightforward principles for determining the circumstances warranting death penalty, had ultimately failed to lay down such standards citing that no amount of experience would be enough to aid in fixing an exhaustive set of rules in respect of the award of death sentence.65 Para 27: “If the law has given to the judge a wide discretion in the matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime, it will be impossible to say that there would be at all any discrimination, since facts and circumstances of one case can hardly be the same as the facts and circumstances of another.”66 Undoubtedly, it is not possible to recommend a uniform set of principles governing the judicial discretion in matters such as imposition of punishment. Discretion with respect to the procedure of sentencing is presently allayed with the virtue of greater restraint and a more liberal consideration of the mitigating circumstances of the crime due to the introduction of the requirement of sentencing hearing post 197367. This, in effect, serves as a positive impediment against arbitrary imposition of death penalty. By a perusal of the afore-quoted excerpts of the judgment, one can most certainly infer that the Supreme Court had, in effect, accepted that the Judges were vested with a wide discretion in deciding the degree of punishment. While the vesting of Supra note 56. (1978) 1 SCC 248. 62 Art. 21, Constitution of India, 1950. 63 (1973) 1 SCC 248. 64 Id. at ¶ 26. 65 Supra note 56, at p. 478. 66 Supra note 63, at ¶ 27. 67 § 354(3), Code of Criminal Procedure, 1973. 60 61

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such discretion may be justified in accordance with the reasoning provided by the Apex Court; such reasoning does not, in its entirety, quell the fear of irregular exercise of such discretion and dissimilarity in sentencing in similar circumstances. Reflecting on the perils of absence of any uniform legislative policy guiding the exercise of discretion by the Courts in awarding death penalty, the Supreme Court in the matter of Ediga Anamma v. State of Andhra Pradesh68, at paragraph 26, had made the following observation: “a legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.”69 Furthermore, in the matter of Bachan Singh v. State of Punjab70, Bhagwati J. in his dissenting judgment had observed that in the context of the award of death penalty, the Indian courts have demonstrated ample amount of uncertainty and arbitrariness, as there are innumerable cases bearing similar fact situations but the award of sentence as to life imprisonment or death penalty varies in each of these cases71. Moreover, he had held that since there are no guidelines prescribed in respect of imposition of death sentence and the judges have unusually wide discretion in respect of the same, such vesting of discretion can be viewed as unconstitutional on ground of violation of Article 1472. Upon a bare reading of the afore-stated paragraphs, it may be stated that since there are no fixed guidelines in respect of imposition of death penalty and the inability to lay down such guidelines is well-settled, a retreat from imposition of death penalty could be the only possible solution to the arbitrary exercise of discretion in the imposition of death penalty. INCONSISTENCY IN THE PROCEDURE OF SENTENCING:

In Bachan Singh (supra)73, the majority of the bench upheld the constitutionality of death penalty and at the same time prescribed that death penalty should be imposed only in “rarest of the rare” instances. The Court had held that in order to prevent the arbitrary imposition of death penalty, determination of the aggravating and mitigating circumstances of the crime must be based on well reasoned principles crystallised by judicial decisions for the purpose of acquiring guidance as to what may be considered as aggravating and mitigating circumstances, respectively74. The Court had further held that only if an analysis of the aggravating and mitigating circumstances brings to light exceptional reasons that warrant death, shall capital punishment be imposed75. Thus, it cannot be doubted that the discretion exercised by the Court in making a choice between capital punishment and life imprisonment should always be tempered with humane concern and compassion. The extreme infrequency of imposition of death penalty bears testament to the caution and compassion with which the Courts have proceeded in imposing the ultimate penalty upon a convict. At the same time, however, the experience of working the “rarest of the rare” doctrine based on the consideration of the mitigating and aggravating circumstances, has often been fraught with concerns of arbitrariness and judicial inconsistency. (1974) 4 SCC 443. Id at ¶ 26. 70 (1980) 2 SCC 684. 71 A. LAKSHMINATH, JUDICIAL PROCESS AND PRECDENT 482 (4th ed. 2019). 72 Ibid. 73 Supra note 70. 74 Id at ¶ 165. 75Id at ¶ 209. 68 69

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In substantiation of the afore-stated contention, it shall be prudent to place reliance upon the 262nd Report of the Law Commission of India:76 “Despite the Court’s optimism in Bachan Singh (supra) that its guidelines will minimise the risk of arbitrary imposition of the death penalty, concerns that capital punishment is “arbitrarily or freakishly imposed” continue to haunt death penalty jurisprudence in India. In the last decade itself, in cases like Aloke Nath Dutta v. State of West Bengal,77 Swamy Shraddhananda v. State of Karnataka,78 Santosh Bariyar v. State of Maharashtra,79 Mohd. Farooq Abdul Gafur v. State of Maharashtra80…the Supreme Court has acknowledged that the application of the death penalty is subjective and arbitrary”. At this juncture, it shall be necessary to point out that the Supreme Court in paragraphs 34 to 41, of the judgment delivered in the matter of Sangeet & Anr. v. State of Haryana81 had noted three judgments delivered by itself wherein the Court’s earlier dictum of considering the aggravating and mitigating circumstances in Bachan Singh (supra)82, was not followed. Furthermore, for obtaining a better understanding of the ambivalence present in the appreciation of aggravating and mitigating circumstances of a crime, reliance may be place on another excerpt from the 262nd Report of the Law Commission of India. The said paragraph runs as follows: “….. in Dhananjoy Chatterjee v. State of West Bengal83, the Supreme Court had imposed the death sentence on the offender for committing the rape and murder of an 18 year old woman who lived in a building where he was a security guard. This case was noticed in Rameshbhai Chandubhai Rathod (2) v. State of Gujarat84, which according to the Court’s own assessment involved similar facts except that the rape and murder in this case was that of a child. On reference to a larger Bench because the two judge Bench could not agree on the sentence, the three-judge Bench of the Court noted the similarity of the facts to Dhananjoy Chatterjee’s case, but held that offender’s age was only 28 years which left open the possibility of reform, and hence imposed the life sentence. Therefore in an admittedly similar fact situation Rameshbhai Rathod was given the life imprisonment because he was 28 years old. Dhananjoy Chatterjee was given the death sentence and was executed in 2004. He was 27 years old.”85 From the afore-mentioned excerpt, it may so appear that even though the factual matrix and the crime committed in both cases appear to be considerably similar, punishment was imposed differently. However, irrespective of such prima facie similarity, it would be imprudent to assume that all factors which might have been capable of swaying the judicial mind of a human being in favour of or against choosing a particular mode of punishment, were exactly the same in both cases since “There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. We cannot Law Commission of India, 262nd Report, 2015, at ¶ 5.2.1. (2007) 12 SCC 230. 78 (2008) 13 SCC 767. 79 (2009) 6 SCC 498. 80 (2010) 14 SCC 641. 81 (2013) 2 SCC 452. 82 Supra note 70. 83 (1994) 2 SCC 220. 84 (2011) 2 SCC 764. 85 Law Commission of India, 262nd Report, 2015, at ¶ 5.2.33. 76 77

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obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.”86 JUSTIFICATION OF DEATH PENALTY BASED ON ITS DETERRENT VALUE:

Deterrence aims to prevent individuals from offending by using the fear or threat of punishment. The assumption behind deterrence theory is that all persons are rational individuals, and will commit a crime only if they perceive that the gain they will derive from the criminal act will be greater than the pain they will suffer from its penal consequences87 The belief is that the operation of deterrence is strengthened when the punishment is made as severe as death itself; no person in his/her right mind would commit an act which may result in the loss of one’s life88. In Trop v. Dulles89, Brennan J., in emphasising the deterrent value of punishment in general, had stated the following: “Rehabilitation is but, one of the purposes of the penal law. Among other purposes are deterrents of the wrongful act by the threat of punishment and insulation of society from dangerous individuals either by imprisonment or execution”90 Subsequently, in Furman v. Georgia91, Stewart J. took the view that in certain cases, the nature of the crime committed is so atrocious that society’s interest in deterrence far outweighs the considerations of reform and rehabilitation92. Such observations are similar to the 35th Report of the Law Commission of India93 wherein the Commission had stated that the deterrent object of capital punishment is its most important object and constitutes its strongest justification94. In support thereof, the Commission had cited the following reasons favouring the retention of death penalty: 1. Every human being dreads death.95 2. The death penalty stands on a different footing from imprisonment. The difference is one of quality, and not merely of degree. 3. Experts consulted by the Commission, including state governments, judges, Members of Parliament, Members of State Legislatures, police officers, and advocates were of the view that “the deterrent object of capital punishment is achieved in a fair measure in India.”96 4. Whether other forms of punishment possess the advantages of capital punishment is a matter of doubt.97

Supra note 70, at ¶ 209. ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 71 (4th ed. 2005). 88 Ernest Haag, The Ultimate Punishment- a Defense, 99 Harvard Law Review 1662, 1666 (1986). 89 356 US 86 (1958). 90 Supra note 70, at ¶ 85. 91 408 U.S. 238, 311. 92 Supra note 70, at ¶ 86. 93 Law Commission of India, 35th Report, 1967. 94 Id at ¶ 293. 95 Hood & Hoyle argue that although it is possible that some people refrained from committing murder because of fear of execution, this is an insufficient basis to conclude that existence of the death penalty deters people from committing murders. 96 Supra note 93, at ¶ 370. 97 Ibid. 86 87

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5. Statistics of other countries are inconclusive on the subject. If they are not regarded as proving the deterrent effect, neither can they be regarded as conclusively disproving it.98 Reflecting on the deterrent value of capital punishment, the Supreme Court of India, speaking through V.R. Krishna Iyer had held that “When the disease is social, deterrence through court sentence must, perforce, operate through the individual culprit coming up before court. Social justice has many facets and Judges have a sensitive, secular and civilising role in suppressing grievous injustice to humanist values by inflicting condign punishment on dangerous deviants.”99 Furthermore, in the matter of Ediga Anamma (supra),100 it was held that deterrence through the threat of death may still be an effective measure in preventing future occurrences of murderous crimes. Apart from these, the Supreme Court has often used deterrence as a justification for imposing the death penalty. For instance, while imposing the death sentence in Mahesh v. State of Madhya Pradesh101, the Court noted that “[the common man] understands and appreciates the language of deterrence more than the reformative jargon.” In Jashuba Bharatsinh Gohil v. State of Gujarat102, the Court held that “protection of society and deterring the criminal is the avowed object of law.” In light of the afore-mentioned observations and decisions, it may be safe to state that for long, deterrence has been viewed as an essential element and objective of death penalty. Such view however, is not free from criticism as there is no concrete evidence suggesting that death penalty has an assured deterrent value which in turn leads to the mitigation of heinous crimes. After many years of research and statistical analysis, a worldwide consensus has been reached that there is no evidence to suggest that death penalty has deterrent value. Isaac Ehrlich in his study published in 1975103, suggested that there is a unique deterrent effect of executions on murders. Also, according to his research, statistically, one execution saved up to eight lives104. The Supreme Court had relied upon such study in Bachan Singh (supra)105 and had placed great value on such study. Subsequently, however, many flaws were discovered in Ehrlich’s methodology and assumptions. A panel set up by the National Academy of Sciences in the United States of America, chaired by Nobel Laureate Lawrence Klien, for the purpose of reviewing Ehrlich’s study had reached a conclusion that “the available studies provide no useful evidence on the deterrent effect of capital punishment.”106 In another independent study, Donohue and Wolfers had stated that “the existing evidence for deterrence is surprisingly fragile, and even small changes in specifications yield dramatically different results…Our estimates suggest not just “reasonable doubt” about whether there is any deterrent effect of the death penalty, but

For this proposition, the Commission cites replies received to its questionnaire, as well as a statement made by Sir Patrick Spens in the House of Commons, based on his experience in India. 99 Supra note 70, at ¶ 80. 100 Supra note 68. 101 (1987) 3 SCC 80. 102 (1994) 4 SCC 353. 103 Isaac Ehlrich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 AM. ECON. REV. 397 (1975). 104 Ibid. 105 Supra note 70. 106 Lawrence R. Klein, Brian Forst & Victor Filatov, The Deterrent Effect of Capital Punishment: An Assessment of the Estimates, in Alfred Blumstein, Jacqueline Cohen and Daniel Nagin (eds.), DETERRENCE AND INCAPACITATION: ESTIMATING THE EFFECTS OF CRIMINAL SANCTIONS ON CRIME RATES (National Academy of the Sciences, Washington D.C. 1978) 98

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profound uncertainty…[W]e are pessimistic that existing data can resolve this uncertainty.”107 The afore-mentioned criticisms with respect to the deterrent value of death penalty have also been supported by the United Nations which has consistently held that there is no empirical data to suggest that death penalty has a deterrent value in Resolutions on the Moratorium on Use of the Death Penalty of 2008, 2010, 2013 and 2015. Here, it is important to note that India is not a signatory to these resolutions.108 DEATH PENALTY AND FEAR OF MISCARRIAGE OF JUSTICE:

One might argue the presence of the system of appeals and legal provisioning for a separate hearing on deciding the extent of sentencing109 are reasonable safeguards against the possibility of miscarriage of justice. Moreover, the formulation and application of the “rarest of the rare cases” principle, having restricted the imposition of death penalty only in a very few cases, the issue of miscarriage of justice is a myth. Such argument however, falls flat upon a perusal of the following excerpt from the 262nd Report of the Law Commission of India: “In just three cases: Bariyar, Sangeet, and Khade, the Court acknowledged error in 16 cases, involving death sentence to 20 persons. 16 of these persons were sentenced to death in the period between 2000-2013, which implies that the Supreme Court has admitted error in imposing the death penalty on 16 persons out of the total of 69 who were given the death penalty by the Court in this time period. This is an error rate of 23.2%. The Supreme Court therefore has acknowledged that in close to a quarter of the cases in which it has given the death penalty in the recent past, the death penalty was imposed erroneously.”110 Such acknowledgment of error in the imposition of death penalty reverberates with the oft preferred argument of the abolitionists that since the criminal justice system comprises of human beings, the chances of miscarriage of justice will always be present. CONCLUSION: In book In Punishment and Culture, Philip Smith, in his inimitable style had said ‘‘Punishment is a deeply meaningful activity that still needs to be interpreted if it is to be understood.’’111 Similarly, the extent of legal discourse with respect to the subject of death penalty being very vast and expansive, a foolproof interpretation and by consequence thereof an immaculate understanding of the need, viability and effect of using death penalty as a mode of punishment cannot be derived only from the discussion held under the preceding sub-headings. It is true that the afore-stated discussion brings to light certain exigent criticisms against the use of death penalty. At the same time, however, one cannot simply turn a blind eye to the fact that death penalty as a mode of punishment has time and again passed the test of constitutionality. Therefore, it would be foolhardy to assume that in each of the instances wherein the constitutionality of such form of punishment has been

John Donohue and Justin Wolfers, USES AND ABUSES OF EMPIRICAL EVIDENCE IN THE DEATH PENALTY DEBATE, 58 STAN. L. REV. 791, 794. 108 Law Commission of India, 262nd Report, 2015, at ¶ 4.3.12. 109 § 354(3), Code of Criminal Procedure, 1973. 110 Law Commission of India, 262nd Report, 2015, at ¶ 5.4.11. 111 PHILIP SMITH, PUNISHMENT AND CULTURE 187 (2nd ed., 2008). 107

(IL)LEGALITY PODCAST—EPISODE 1—TRANSCRIPT

upheld, the criticisms brought to light as a result of the afore-stated discussion or otherwise, have been outright ignored by the respective Courts. The absence of a straightjacket policy requiring the imposition of the ultimate penalty upon all convicts of murder or other crimes punishable by death is ample proof of the reluctance of the Courts to impose capital punishment, borne out of the paramount importance of preserving the lives of such convicts, thereby giving them a chance at reformation. Such contention is well reflected in the following excerpt of the judgment delivered by the Supreme Court in Jagmohan(supra): “….. for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” Moreover, each and every decree of death penalty issued, bears a painful testimony to the growing cruelty in the minds of people and under all circumstances is a very grave event. To conclude, I would like to put forward two questions: First: Is it prudent to continue with a mode of punishment, which is fraught with criticisms of arbitrariness and ineffectiveness? And Second: In the absence of death penalty, what would be the appropriate form of punishment for those convicted of diabolical and unimaginable crimes that shake the collective conscience of the society such as in the case of Nibhaya and thereafter show no semblance of remorse? ________________________________