“Questions need to be asked why the Indian government executed Afzal Guru now. No one argues that those who engage in serious crimes shouldn’tbe punished, but the death penalty is brutal and irreversible, and there is no convincing evidence to suggest it serves as a deterrent.” ~~Meenakshi Ganguly, South Asia director
(New York) –The hanging in New Delhi of Mohammad Afzal Guru makes it more urgent for India to reinstate its previous informal moratorium on executions as a step towards abolishing the death penalty, Human Rights Watch said today. Azfal Guru, executed on February 9, 2013, was convicted for his role in the attack on the Indian parliament in 2001.
In November 2012, India ended its eight-year unofficial moratorium on executions when it hanged Ajmal Kasab, convicted for his role in the 2008 Mumbai attacks.
“Questions need to be asked why the Indian government executed Afzal Guru now,” said Meenakshi Ganguly, South Asia director. “No one argues that those who engage in serious crimes shouldn’t be punished, but the death penalty is brutal and irreversible, and there is no convincing evidence to suggest it serves as a deterrent.”
Under Indian law, the death penalty is supposed to be carried out only in the “rarest of rare” cases.
Afzal Guru was convicted for providing logistical support to those involved in the attack on the Parliament building in New Delhi on December 13, 2001, in which five heavily-armed gunmen entered the complex and opened fire indiscriminately, killing nine, including six security personnel, two parliament guards, and a gardener. All five attackers, later identified as Pakistani nationals, were killed. No member of parliament was hurt.
Four people, including Afzal Guru, were charged with conspiring in the attack and waging war. In December 2002, three people,Syed Abdul Rahman Geelani, Shaukat Hussain Guru, and Afzal Guru, were sentenced to death. The fourth, Afsan Guru, was acquitted. Geelani was acquitted on appeal. In August 2005 the Supreme Court commuted Shaukat Hussain’s sentence to 10 years in prison but confirmed the death sentence of Afzal Guru. An appeal for clemency was filed for Afzal Guru but was rejected by President Pranab Mukherjee on February 3.
Many Indian activists and lawyers have claimed that Azfal Guru did not receive proper legal representation. He did not have a lawyer from the time of his arrest until he confessed in police custody. Azfal Guru claimed that he had been tortured into making his confession, which he later retracted. Several Indian activists and senior lawyers have said that he did not have effective assistance of counsel.
The Indian government has defended the conviction, saying that Azfal Guru was able to appeal his conviction and that his claims were rejected by higher courts.Human Rights Watch opposes the death penalty in all circumstances as an inherently irreversible, inhumane punishment. In July 2012, 14 retired Supreme Court and High Court judges asked the president to commute the death sentences of 13 inmates they said had been erroneously upheld by the Supreme Court over the past nine years. This followed the court’s admission that some of these death sentences were rendered per incuriam (out of error or ignorance). In November 2012 the Supreme Court ruled that the “rarest of rare” standard for capital punishment had not been applied uniformly over the years and the norms on the death penalty needed “a fresh look.”
“India should end this distressing use of executions as a way to satisfy some public opinion,” said Ganguly. “It should instead join the nations that have chosen to abolish capital punishment.”
~~V. Venkatesan There is a need to identify cases in which the courts might have erred in applying the Bachan Singh principle that limits the imposition of the death penalty
The Supreme Court’s five-judge Constitution Bench judgment in Bachan Singh (1980) is the source of contemporary death penalty jurisprudence in India. Its major contribution was to limit the imposition of death penalty to the rarest of rare crimes, and for laying down the principle that the courts must impose the death sentence on a convict only if the alternative sentence of life imprisonment is unquestionably foreclosed. For achieving these twin objectives, the court held that judges must consider the aggravating features of the crime, as well as the mitigating factors of the criminal.
However, the application of its principles by the courts to various cases before them has been very uneven, and inconsistent. This has naturally led to the criticism that the jurisprudence suffers from a judge-centric approach, rather than a principles-centric approach.
Matter of concern:
It is a matter of concern when this criticism emanates from the judiciary itself, as it smacks of its helplessness. The frequency of such criticism from the judiciary may appear to be exercises in genuine introspection but to the litigants, the very credibility of the court’s death penalty decisions is at stake.
The execution of death row prisoners in India might have come to a near standstill, with only one in the last decade, and another recently. Yet, the frequency of confirmation of death sentences by the Supreme Court has created a large pool of death row prisoners in the country, who may be living between life and death constantly for many years, till the executive decides on their mercy petitions. When the Supreme Court time and again admits that many of these prisoners might have been sentenced on the basis of erroneous legal precedents set by itself, the executive cannot pretend to be unconcerned.
The latest admission of such error is to be found in the judgment delivered by Justice Madan B. Lokur for himself and on behalf of Justice K.S. Radhakrishnan, in Sangeet & ANR vs. State of Haryana, on November 20.
The genesis of Sangeet can be traced to another Supreme Court judgment delivered in 2009. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, a two-judge Bench admitted to error in the sentencing to death of seven convicts by the previous benches of the court. Similar error was immediately noticed in the sentencing to death of six more convicts, after the delivery of judgment in Bariyar, taking their total to 13.
The error was the reliance by the court on a legal precedent, which Bariyar declared as per incuriam. The term, per incuriam, refers to a decision which a subsequent court finds to be a mistake, occurring through ignorance of a relevant authority, and therefore not a binding precedent.
Erroneous precedent:
The erroneous legal precedent was Ravji v. State of Rajasthan, decided in 1996 by a two-judge Bench. In Ravji, the court had found only characteristics relating to the crime, to the exclusion of the criminal, as relevant to sentencing. Bariyar noted with disapproval that the court had relied on Ravji as an authority on the point that in heinous crimes, circumstances relating to the criminal are not pertinent, in six cases. This was inconsistent with the Bachan Singh ruling by the five-Judge Constitution Bench in 1980, which had shifted the focus of sentencing from the “crime” to the “crime and the criminal”.
In Sangeet, the Radhakrishnan-Lokur Bench has continued the judicial scrutiny started by Bariyar of post-Bachan Singh death penalty cases, to see if they have complied with the requirements of the law. Thanks to this scrutiny, five other cases which resulted in the wrongful sentencing to death of six more convicts have come to light. They are Shivu, Jadeswamy, B.A. Umesh, Rajendra Pralhadrao Wasnik, Mohd. Mannan, and Sushil Murmu. The former President, Pratibha Patil, has already commuted Murmu’s death sentence to life imprisonment.
Back to 13:
Five of the 13 convicts identified in and after Bariyar have already got their sentences commuted to life imprisonment by competent authorities. With Sangeet pointing to five more such convicts, the total number of prisoners to be taken off the death row is back to 13 again.
Unlike Bariyar, however, Sangeet has not declared the five erroneous judgments per incuriam. But the result of the scrutiny in both the cases is the same: no future Bench can cite these cases on a point of law, without inviting the Ravji taint. The recent appeal by 14 former judges to the President to spare the lives of the eight convicts, who have been wrongly sentenced to death by the Supreme Court must, therefore, apply equally to these five convicts identified in Sangeet.
It is not unusual to come across observations by the courts while justifying the death sentence, that there is extreme indignation of the community over the nature of the crime, and that collective conscience of the community is petrified by the extremely brutal, grotesque, diabolical, revolting or dastardly manner of the commission of the crime. After making these observations, it is easy for the courts to jump to the conclusion that the criminal is a menace to society and shall continue to be so and he cannot be reformed.
These are empty clichés repeated ad nauseam without any basis. Sangeet, therefore, gently reminds the courts about the need to back such observations with some material. The nature of the crime alone cannot form such material, it has held.
Sangeet has pointed out a grave infirmity with regard to the sentencing of Umesh and Sushil Murmu, to death. The Supreme Court found both Umesh and Sushil Murmu incapable of rehabilitation and, therefore, deserving of the death sentence because of their alleged involvement in crimes other than those for which they were convicted — turning upside down the doctrine of presumption of innocence, the cornerstone of our criminal jurisprudence.
Bachan Singh, delivered by a five-judge Constitution Bench, clearly discarded the proposition that the court must balance aggravating and mitigating circumstances through a balance sheet theory. The theory requires weighing aggravating factors of the crime against the mitigating factors of the criminal. In Machhi Singh (1983), however, a three-judge Supreme Court Bench, brought the balance sheet theory back, and gave it legitimacy. The theory has held the field post-Machhi Singh.
Sangeet has sought to revive the Bachan Singh dictum that the aggravating circumstances of the crime and the mitigating circumstances of the criminal are completely distinct and different elements, and cannot be compared with one another. Therefore, it has held that a balance sheet cannot be drawn up of two distinct and different constituents of an incident, as required by Machhi Singh.
Sangeet holds the balance sheet theory responsible for much of the arbitrariness in judging whether a case falls under the rarest of rare category, a test enunciated in Bachan Singh. It also endorses the proposition that by standardising and categorising crimes, Machhi Singh considerably enlarged the scope for imposing the death penalty, that was greatly restricted by Bachan Singh.
The Radhakrishnan-Lokur Bench, being a two-judge Bench, could not have overruled Machhi Singh, despite its obvious flaws, and the source of much of the inconsistency in our death penalty jurisprudence. A three-judge bench in Swami Shraddhanand II in 2008 had raised similar doubts about Machhi Singh; but the courts continue to invoke it.
In its judgment delivered on August 29, among other things, the Supreme Court relied on the flawed Machhi Singh for its reasoning, and used the balance sheet theory, arraigned by Sangeet, to sentence Ajmal Kasab.
The serious issues raised in Sangeet are incapable of being resolved by the judiciary itself. Any delay in their resolution will inexorably create more death row convicts, than what is justified legally. There is indeed a case for the government to immediately announce a moratorium on executing death sentences and set up a Commission to identify the cases in which any of the courts — trial courts, high courts and the Supreme Court — might have erred in correctly applying the Bachan Singh principles, while sentencing. The findings of the Commission will be useful for deciding the future of death sentence in the country.
Eight years ago, the Supreme Court condemned Muhammad Afzal Guru to be hanged for his role in the 2001 attack on Parliament House, saying, astonishingly, that “the collective conscience of the society will only be satisfied if the capital punishment is awarded to the offender.” Guru was walked to the gallows Saturday morning at the end of the macabre rite governments enact from time to time to propitiate that most angry of gods, a vengeful public. Through this grim, secret ceremony, however, India has been gravely diminished. The reasons for this are not just the obvious ones — among them, that Guru was a bit-actor in the attack on Parliament, and his trial marred by procedural and substantive errors. These arguments were examined by the highest court in the country and found wanting. There is one argument, though, that wasn't ever examined — which is precisely why Guru, like scores of other Indians, ended up on death row in the first place. The answer has a great deal to do with expedience, and nothing to do with justice.
The hideous truth is this: judicial executions in India have all the rationality of the roulette table. Last month, Justices P Sathasivam and Fakkir Kalifullah commuted the death penalty given to Mohinder Singh for killing both his daughter and wife -- this while out of prison on parole where he was serving time for earlier raping the girl. The judges argued that the death penalty ought only be considered when a perpetrator posed “a menace and threat to the harmonious and peaceful coexistence of the society.” One week later, Justices Sathasivam and Jagdish Khehar upheld death for Sundararajan, who kidnapped and then killed a seven year old boy. The judges noted, among other things the “agony for parents for the loss of their male child, who would have carried further the family lineage.” Besides the obvious imprint of gender values on judicial reasoning, it is the arbitrariness of outcome in cases that are similar which tells us something is seriously wrong. In a signal article published recently in this newspaper. V. Venkatesan noted how the Supreme Court has itself admitted that many of those on death row are there because of“erroneous legal precedents set by itself.” (December 10, 2012) Yet, both the judiciary and the government have been reluctant to announce a moratorium on executions until a thoroughgoing review is carried out. This ought not to surprise us: in case after case, the course of criminal justice has been shaped by public anger and special-interest lobbying. Indians must remember the foundational principle of our Republic, the guardian of all our rights and freedoms, isn't popular sentiment: it is justice, which in turn is based on the consistent application of principles. For one overriding reason, Guru’s hanging ought to concern even those unmoved by his particular case, or the growing ethics-based global consensus against the death penalty. There is no principle underpinning the death penalty in India today except vengeance. And vengeance is no principle at all.
Wasn’t it? Yesterday I mean. Spring announced itself in Delhi. The sun was out, and the Law took its Course. Just before breakfast, Afzal Guru, prime accused in the 2001 Parliament Attack was secretly hanged, and his body was interred in Tihar Jail. Was he buried next to Maqbool Butt? (The other Kashmiri who was hanged in Tihar in 1984. Kashmiris will mark that anniversary tomorrow.) Afzal’s wife and son were not informed. “The Authorities intimated the family through Speed Post and Registered Post,” the Home Secretary told the press, “the Director General of J&K Police has been told to check whether they got it or not.” No big deal, they’re only the family of a Kashmiri terrorist.
In a moment of rare unity the Nation, or at least its major political parties, the Congress, the BJP and the CPM came together as one (barring a few squabbles about ‘delay’ and ‘timing’) to celebrate the triumph of the Rule of Law. The Conscience of the Nation, which broadcasts live from TV studios these days, unleashed its collective intellect on us — the usual cocktail of papal passion and a delicate grip on facts. Even though the man was dead and gone, like cowards that hunt in packs, they seemed to need each other to keep their courage up. Perhaps because deep inside themselves they know that they all colluded to do something terribly wrong.
What are the facts?
On the 13th of December 2001 five armed men drove through the gates of the Parliament House in a white Ambassador fitted out with an Improvised Explosive Device. When they were challenged they jumped out of the car and opened fire. They killed eight security personnel and a gardener. In the gun battle that followed, all five attackers were killed. In one of the many versions of confessions he made in police custody, Afzal Guru identified the men as Mohammed, Rana, Raja, Hamza and Haider. That’s all we know about them even today. L.K. Advani, the then Home Minister, said they ‘looked like Pakistanis.’ (He should know what Pakistanis look like right? Being a Sindhi himself.) Based only on Afzal’s confession (which the Supreme Court subsequently set aside citing ‘lapses’ and ‘violations of procedural safeguards’) the Government of India recalled its Ambassador from Pakistan and mobilised half a million soldiers to the Pakistan border. There was talk of nuclear war. Foreign embassies issued Travel Advisories and evacuated their staff from Delhi. The standoff lasted for months and cost India thousands of crores.
On the 14th of December 2001 the Delhi Police Special Cell claimed it had cracked the case. On the 15th of December it arrested the ‘master mind’ Professor S.A.R Geelani in Delhi and Showkat Guru and Afzal Guru in a fruit market in Srinagar. Subsequently they arrested Afsan Guru, Showkat’s wife. The media enthusiastically disseminated the Special Cell’s version. These were some of the headlines: ‘DU Lecturer was Terror Plan Hub’, ‘Varsity Don Guided Fidayeen’, ‘Don Lectured on Terror in Free Time.’ Zee TV broadcast a ‘docudrama’ called December 13th , a recreation that claimed to be the ‘Truth Based on the Police Charge Sheet.’ (If the police version is the truth, then why have courts?) Then Prime Minister Vajpayee and L.K. Advani publicly appreciated the film. The Supreme Court refused to stay the screening saying that the media would not influence judges. The film was broadcast only a few days before the fast track court sentenced Afzal, Showkat and Geelani to death. Subsequently the High Court acquitted the ‘mastermind’, Professor S.A.R Geelani, and Afsan Guru. The Supreme Court upheld the acquittal. But in its 5th August 2005 judgment it gave Mohammed Afzal three life sentences and a double death sentence.
Contrary to the lies that have been put about by some senior journalists who would have known better, Afzal Guru was not one of “the terrorists who stormed Parliament House on December 13th 2001” nor was he among those who “opened fire on security personnel, apparently killing three of the six who died.” (That was the BJP Rajya Sabha MP, Chandan Mitra, in The Pioneer, October 7th 2006). Even the police charge sheet does not accuse him of that. The Supreme Court judgment says the evidence is circumstantial: “As is the case with most conspiracies, there is and could be no direct evidence amounting to criminal conspiracy.” But then it goes on to say: “The incident, which resulted in heavy casualties had shaken the entire nation, and the collective conscience of society will only be satisfied if capital punishment is awarded to the offender.”
Who crafted our collective conscience on the Parliament Attack case? Could it have been the facts we gleaned from the papers? The films we saw on TV?
There are those who will argue that the very fact that the courts acquitted S.A.R Geelani and convicted Afzal proves that the trial was free and fair. Was it?
The trial in the fast-track court began in May 2002. The world was still convulsed by post 9/11 frenzy. The US government was gloating prematurely over its ‘victory’ in Afghanistan. The Gujarat pogrom was ongoing. And in the Parliament Attack case, the Law was indeed taking its own course. At the most crucial stage of a criminal case, when evidence is presented, when witnesses are cross-examined, when the foundations of the argument are laid — in the High Court and the Supreme Court you can only argue points of law, you cannot introduce new evidence — Afzal Guru, locked in a high security solitary cell, had no lawyer. The court-appointed junior lawyer did not visit his client even once in jail, he did not summon any witnesses in Afzal’s defence and did not cross examine the prosecution witnesses. The judge expressed his inability to do anything about the situation.
Even still, from the word go, the case fell apart. A few examples out of many:
How did the police get to Afzal? They said that S.A.R Geelani led them to him. But the court records show that the message to arrest Afzal went out before they picked up Geelani. The High Court called this a ‘material contradiction’ but left it at that.
The two most incriminating pieces of evidence against Afzal were a cellphone and a laptop confiscated at the time of arrest. The Arrest Memos were signed by Bismillah, Geelani’s brother, in Delhi. The Seizure Memos were signed by two men of the J&K Police, one of them an old tormentor from Afzal’s past as a surrendered ‘militant’. The computer and cellphone were not sealed, as evidence is required to be. During the trial it emerged that the hard disc of the laptop had been accessed after the arrest. It only contained the fake home ministry passes and the fake identity cards that the terrorists used to access Parliament. And a Zee TV video clip of Parliament House. So according to the police, Afzal had deleted all the information except the most incriminating bits, and he was speeding off to hand it over to Ghazi Baba, who the charge sheet described as the Chief of Operations.
A witness for the prosecution, Kamal Kishore, identified Afzal and told the court he had sold him the crucial SIM card that connected all the accused in the case to each other on the 4th of December 2001. But the prosecution’s own call records showed that the SIM was actually operational from November 6th 2001.
It goes on and on, this pile up of lies and fabricated evidence. The courts note them, but for their pains the police get no more than a gentle rap on their knuckles. Nothing more.
Then there’s the back story. Like most surrendered militants Afzal was easy meat in Kashmir — a victim of torture, blackmail, extortion. In the larger scheme of things he was a nobody. Anyone who was really interested in solving the mystery of the Parliament Attack would have followed the dense trail of evidence that was on offer. No one did, thereby ensuring that the real authors of conspiracy will remain unidentified and uninvestigated.
But now that Afzal Guru has been hanged, I hope our collective conscience has been satisfied. Or is our cup of blood still only half full?
LATE GOPAL GODSE AND CONSPIRACY THEORY ~~Suman Mukhopadhyay
Late Gopal Godse
The problem is that Human memory is short and Indian media is sold: Many of the journalists you see on TV are simply "Dalals" or "Agents" of Political Outfits in India. Most of the Politicians want loyalty and a bunch of Journalists oblige them (but not all though). Hence, they would present the news and views as is desired by their bosses. Most of these journalists (except a few) are spineless bunch of parasites.
"Before analysing the possibly disastrous consequences of this hanging, it is imperative to understand the mindset of television news anchors who have successfully managed to convert personal beliefs into news, and trash all voices of sanity and sobriety that seek answers to complex questions. News channels are supposed to report the news and not give their editorial comments to a point where contrary voices are restricted from giving their views. There was a time when reporters followed the news, reporting it as it was, communicating and informing the public, without wearing their prejudice, bias or for that matter, views on their sleeves. Journalists are supposed to play the devil's advocate, be on the other side of the fence as it were, and review the story in all its dimensions. Indian democracy has many views, and a media that insists only on one view as 'nationalist' promotes a monolith that is in contradiction to the pluralism and diversity of this country. was clear at the onset that the police had no clue about the attackers. Finally, Delhi university lecturer S A R Geelani was arrested, and then Afzal Guru was picked up. Geelani's trial took a chequered course, but because of the support in Delhi and the involvement of well known lawyers, he was finally released. Guru was from Kashmir and unable to afford a decent lawyer. He did not have the money and as senior advocate Kamini Jaiswal managed to say hastily on a news channel, he went virtually unrepresented. Somehow we have becomes so blood thirsty as a nation, so wedded to war
and violence (largely because of TRP ratings) that we do not like to ask
any questions. After all, even a death row convict has rights, or is the case now that
all these chaps should be shown no mercy and hung the moment they are
convicted by the courts? And should not it be the job of the sane voice of journalism to ensure that at least the rule of law is respected, and the rights of an individual acknowledged? The impact of the hanging can have damaging repercussions at different levels, and far more than this government will be able to handle", says Seema Mustafa, the former Political Editor and Delhi Bureau Chief of The Asian Age newspaper published in India.
Anyway, today, the whole day I kept more or less quiet as I was fearing, communal flare up and did not want to add to the mess already created by two former "Failure Ministers", Shinde---Pranab combination.
The day Pranab Mukherjee became the President of India, I started counting the number of blunders he will do, after his pathetic performance in the Finance Ministry. Sushil Kumar Shinde is a failure minister number one......just ask anyone, about his performance as the CM of Maharashtra. He does not know what to speak and what to say, but then "Unfortunately" , this persons is the home minister of India.
He is simply a junk but then vote bank of caste--politics can make persons of dubious credential as Presidents (Ms.Pratibha Patil) and Home Ministers of India or may be any minister of this great country. This is nothing new.....!!
Anyway, I saw the enthusiasm, and celebration, of a large section of Indian mass (including a section of the Indian media) post hanging of one of the conspirators of the Heinous Parliament Attack, Md.Afzal Guru, a Hindu--Brahmin (Kashmiri Pundit) convert to Islam (may be by force during the Islamic rule in India). There were media reports that, a television news anchor,
shortly after Parliament terror attack accused, Afzal Guru was hung by
the government in Tihar jail, declared, "All nationalist, secular and
progressive people support this." That was just one of the statements among the cacophony of euphoric reactions, following the hanging. But then like in many earlier occasion I am here, still opposing strongly, the continuance of Death Penalty in Indian Union and at the same time questioning the motive behind such drastic move. .
In the accompanying video, Md. Afzal Guru, says, "Motivation from outside the border and steep Financial Crisis, is the cause of his involvement in the attack of the Parliament Attack conspiracy". These two things needs to be dealt firmly but when Dr.Pranab Mukherjee was the defense minister of India, he did not approve of limited air--strikes in enemy territories across the border, for the trivial reasons that it might bring in a third party in the Kashmir issue. The point is that any pending issue needs to be solved, whether it by bipartite or through tripartite arrangements. Does it makes much sense to stick to only one method and drain India's resources? Also, it is better to hit hard, "Fanatical and Political Islam" rather than targeting their victims.
The fate of Afzal Guru, is due to Political Islam, overtaking his conscience, leading him to be a part of the heinous crime nexus.This is the 2nd blunder by the government and it might again escalate the Islamic Terrorism both in the Kashmir Valley and in the whole of India.
Did the execution of Maqbool Bhat of the Jammu and Kashmir Liberation Front, in 1984, stop militancy in the Kashmir Valley? Infact hasty execution of Maqbool Bhat, eventually led to ignition of Islamic militancy in the Kashmir Valley, which has its roots in 26/11 Mumbai attack.
When Afzal Guru said the above things (in the video) candidly in the media, little did he think that these inputs can be used as evidence against him, by the media to mould public opinion and various vested groups. He is a simple person or else, he would not have been saying these in the media. Afzal Guru had a lot of books in his cell and he spent most of his time reading them. He also owned a radio to which he used to listen during the evenings. He was not at all a picayunecriminal, except that he was from a poor family. Hence, he could not take the help of the best lawyers in India.
Before, I say anything more let me say that the Parliament Attack act has to be condemned with the highest possible words and the criminal punished according to the law of the land.There has to be an effective justice system, with an adequate delivery mechanism. The laws needs to be changed according to the changing circumstances.
Also, above Honourable Supreme Court, there is another court (though not official but is understood)----the Home Ministry, which can over-rule any Ddeath Sentence, after referring to the President of India. Hence, the President of India is the "Rubber Stamp" of the Home Ministry of India. So, the President of India by his capacity can refuse to sign any petition but it is very difficult to go against the cabinet decision.
So, this hanging of Afzal Guru is more of the handiwork of Sushil Kumar Shinde, who comes from the state of Maharashtra, where Shiv Sena is known to have high affinity for retributive justice methods. Probably that is the reason why he wanted to act smarter than Sena--BJP axis to prove his credentials among the "Marathi Manus", after the former President from Maharashtra, Ms.Pratibha Patil, probably disappointed them all. Now, having said that, please tell me one thing: If conspiracy is the chief reason for hanging a young and educated Indian from Kashmir valley, then tell me why Late Gopal Godse, the brother of Late Nathuram Godse, was given life imprisonment and not hanged....? Was he not a conspirator? How is this case different from that of the assassination of M K Gandhi?
Also, tell me if Murder is such a crime, then how did Late Phoolan Devi become MP, from Uttar Pradesh and Supreme Court did not say anything.....?Yes, I agree, if the law of land permits one can become President of India, with dubious credentials, but then why double standards for the poor and the rich?
Now, there were some placards by some young school girls some months back, as why there are "Rapists" in Indian Parliament and the Indian media projected them, without feeling a little bit ashamed on what they were doing. This has spoiled India's image and many foreigners have started to call Hindustan as "Rapistan". The media has again brought India to its knees. Now tell me is "Murder" a less crime than "Rape".....? Since, Phoolan Devi is a women so she has to be given Life imprisonment....?
Also, tell me what are the positives of hanging someone instead of using the same person to solve a problem.....? SHOULD INDIANS BE GUIDED BY CROWD MENTALITY OR WE NEED TO DEVICE METHODS OR WAYS TO STOP CRIME....?
Yes, I know many of you will say that the government of India is just following Lord Ram, who also did the same thing with his wife, SITA Devi, fully knowing that she is "Pure".Some of our Freedom fighters also murdered people, but then why do we respect them, if the word "Murder" is so bad? What about Khudiram Bose and Bhagat Singh....?
The theory of retributive justice is nothing but a hoax or temporary relief. It never worked anywhere and it will not work in India too. I have said many times that this kind of justice system, led to murder of a couple of millions by Joseph Stalin, in the erstwhile USSR. But ultimately could he stop the collapse of the USSR?
In the US too, state after state, Capital Punishment is being abolished.The whole of Latin American is almost free of this brutal method, but then India still wants to use it at will. We Indians do not look at Britain, Australia or Canada......or almost the whole of Latin America. Some people think that, Capital Punishment or no punishment is the same. Huh!!You will understand 10 years from now what I am saying..........and that too, if any of your near and dear ones get trapped in one such case....!!
But then I sometimes remember, what my daddy used to say too often, "It is often futile to argue in the land of blinds and it is equally dangerous to become a leader of blinds". There are 476 convicts on death row in India. There are people senior to Guru on death row still waiting. This too creates suspicion, as to why Ajmal Kasab and Md.Afzal Guru's hanging was superseded? Also, Uttar Pradesh has 174 people on death row; Karnataka has 61, Maharashtra 50, Bihar 37, and so on. Therefore, what is the way forward? Start murdering these people one by one and overtake, China, Iran or Saudi Arabia? Judicial verdicts are mostly arrived at by a process of elimination and evidence is almost always circumstantial. It is expected that the judges apply their mind and weed out doubt as much as humanly possible.Hence, it is an imperfect exercise by its very nature, in tune with the old adage that "All human activities are imperfect, varying in degrees". So, there are chances that any judgement might dissatisfyone side or the other. Therefore, there are more points of the abolition of Capital Punishment, rather than retaining it. I condemn all STATE SPONSORED MURDERS........AND CALL THEM AS "GOVERNMENTS' HOOLIGANISM" AGAINST THE POOR AND VULNERABLE....!!
Monday, 28 January 2013
Live-in Relationship Vs Marriage
Are we finally seeing the rapid decline of the "old-fashioned" institution of marriage? In a significant ruling recently, the Supreme Court said a long-term live-in relationship was as good as marriage. Indeed, live-in relationships are slowly but surely acquiring a more important status, both socially and legally. What does that mean for a society where matrimony holds center stage? Sandhya Gokhale and Mihir Desai, who have been in a live-in relationship for 23 years, vouch that marriage has more complications than advantages.
They believe that love binds them more than family pressures would have. "Wedlock means subscribing to societal norms, where I will be recognised as someone's wife or daughterin- law," says Gokhale, a Mumbai-based software consultant. Her partner, Desai, strongly supports Gokhale's views. "If we decide to part ways, we can do it without getting involved in litigation or succumbing to family pressure," says Desai, a human rights lawyer.
But the fact is that with legal rights still a far cry for those in a live-in relationship, practicalities still do tilt the scales in favour of marriage. The Supreme Court's bold rulings on live-in relationships and pre- marital sex notwithstanding, the law is yet to recognise a live- in relationship as marriage.
"Though live-in relationships come under the ambit of the Domestic Violence Act and Right to Maintenance Act, there is still a long way to go," says Supreme Court advocate Priya Hingorani. Property rights, and adoption and child custody issues are yet to be addressed, she says.
Live-in relationships do bring with them a clutch of complications, no matter the freedom they offers. Questions arise over what happens to a child born in a live- in relationship? Would an ended relationship render a partner homeless? Says Meenakshi Lekhi, Supreme Court lawyer: "Putting live-in and wedlock at par dilutes the sanctity of marriage. There is no status called 'almost married'. There can't be any ad hocism in a contract like marriage."
There are other pertinent issues too. "A woman in a live- in relationship comes under the ambit of the Domestic Violence Act and right to maintenance as long as there isn't a second relationship involved. The question then would be: Who is in a relationship with whom? If a married man enters into a live- in relationship, only the legal wife is eligible for benefits, the second woman gets none. So between the two women, who supersedes who? That's the debate," says Lekhi.
Antara Mali breaks her silence on father’s illness
[Antara Mali's reaction to the incident, has shoched me. Instead of praising the efforts of Salman Khan and Mink Brar, let's observe what she says: "This may be a publicity stunt by someone trying to capitalise on his ill health and has accomplished nothing but damaged a 35-year-old glorious career".
THIS IS DIRECTED TO WHOM?
And then she says: "“We don't need anybody's help"............Really....??!!
What kind of WOMEN can say such things, is well understood!! Also it can be noted how much she actually loved her father. Actually in Bollywood many things are cosmetic and her love for her DADDY might qualify for the same. What to say about these daughters of illustrous fathers??!!]
Mumbai: Actress Antara, daughter of ace photographer Jagdish Mali, breaks her silence on her father’s illness. Jagdish, a renowned Bollywood photographer was apparently spotted in a semi-nude state by ‘Bigg Boss 6’ contestant Mink Brar, who eventually took Salman Khan’s help to escort him to his residence.
Reportedly, Salman Khan sent across a vehicle and his staff to help Mink escort Mali to his residence.
Mink called up Antara for help on finding her father in such a state on the street in Versova area in Mumbai. Since she couldn’t get through to her, she sought help from the star actor.
However, Antara issued a press statement to a tabloid, quashing the news that her father was an alcoholic and suffered from depression.
The press statement read, “His condition is such that at times, if he forgets his insulin shot, he gets disoriented. At such times opening a simple door latch can be a challenge. This may happen once in six months, the rest of the time he's fully functioning and normal. This is what happened that evening.”
“This may be a publicity stunt by someone trying to capitalise on his ill health and has accomplished nothing but damaged a 35-year-old glorious career. My dad is not an alcoholic but has a chronic liver disorder along with heavy diabetes. He hasn't touched a drop of alcohol for 15 years. He is sober,” said Mali in the statement.
“We don't need anybody's help. I am proud of my father's legacy, he is a truly an incredible artist and has a lot of goodwill in the film and fashion industry,” the Mali added in the statement.
Jagdish Mali had played a pivotal role in giving Rekha the ‘Diva’ status. He had also worked with other A-list Bollywood celebrities.
The governement should now treat these girls/women strictly like they are dealing with the rape accused
The Punjab police reported ten false cases of rape in just one week. Police say that criminal proceedings would be initiated against those who made false allegations. Since the nationwide protests against the Delhi rape case, complaints have been pouring in by the victims of sexual harassment — whether true or false.
The rush to report rape was attributed in part to the strict instructions issued to all districts police officials to take stern action and to be sensitive towards cases related to women and children.
Already, the state top cop Sumedh Singh Saini has shot off an advisory to all the field officers across the state to exercise restraint in sexual assault cases. The advisory read, “While it is imperative to ensure prompt registration of cases and expeditious and vigorous investigation in all cases of sexual assault and violence, at the same time, it is incumbent on the district police chiefs to ensure that innocent persons are not booked or harassed merely on the basis of false allegations and by misrepresentation and distortion of facts. The increase in number of false cases does not mean that we won’t look into these complaints. We cannot turn insensitive towards that. We will strictly follow the law and take appropriate action as per the rules. Those filing fake cases, and giving false information, stands to face action.”
And just today, a news story reports police saying that a case of alleged rape by a former husband of a divorcee was concocted. The woman had complained to police that she was raped by her husband, but police said that the woman not only changed her statements frequently but had registered six cases against her former husband at different police stations that were later proved to be false.
"That Boy was not her Boy Friend": The father of the victim
[If he was not his boy friend, then what was he doing at 10 pm that night, in Delhi, when even dogs fear to go out due to such severe cold? The media first introduced her as a medical student, which later turned out to be BPT. At 23 years, people becomes B Tech Engineers but it is strange that she was still doing BPT. Till the other day, the media said, she was to get married in February, 2013, but now the fathers says, there is no question of marriage...Huh!! What nonsense..!! Also, what is the brave thing she did, except roaming with a boy, at such night? If she had a least badly injured one of the ruffians, I would have called her brave. But alas.......I am sick of media reporting, who changes landscape and story everyday!!]
London: The Delhi gang-rape victim's father has revealed the name of his brave daughter to give courage to other women who have survived such attacks.
According to UK's The Sunday People, the devastated father asserted that he wanted the world to know his brave daughter's name, who earlier was known to the world only as India's Daughter following her sickening gang rape and murder, as she didn't do anything wrong and died while protecting herself.
"We want the world to know her real name," he said.
"My daughter didn't do anything wrong, she died while protecting herself," he said.
"I am proud of her. Revealing her name will give courage to other women who have survived these attacks. They will find strength from my daughter," he added.
The distressed father also clarified that his daughter's friend, who was with her that night, was not her boyfriend but just a very brave friend who tried to save her.
"There was no question of her marrying because we belong to different castes," he said.
"She never expressed a desire to marry. She was concentrating on her studies and wanted a job first," he added.
ANI at its editorial discretion, has refrained from naming the victim for the time being.
[It is unfortunate that the lawyers in Delhi, have perhaps forgotten their professional ethics and is behaving in a shameless manner; when the case of defending the poor slum-dwellers accused of rape and murder is concerned. Will the lawyers have done the same, if for example, a multi-millionaire is involved in a similar episide? I doubt!! However, this is not an isolated case in India, this kind of prejudice against the poor and vulnerable in the society is present all over the world. That is why it is said: A person who does not have "Capital" to appoint good lawyers is more prone to get Capital Punishment (Death Sentence). Shame upon these lawyers in Delhi....!! Also, where is the BJP, MP and a distinguised lawyer, Mr.Ram Jethmalani now, who gave long speeches, when he took up a similar case.......??!! I have placed the video, for you to judge, if the lawyers are doing the correct thing. I feel that every person or any alleged criminal should be given a chance to represent his case and every trial should be free and fair. This kind of professional mis-conduct by the lawyers of Delhi, is a blot to our democracy. Shame!! Shame!! Shame!!]
New Delhi: Lawyers at a Delhi court have said they will not defend the six people standing trial for the gang-rape and murder of a 23-year-old medical student whose case has shocked the country and provoked a national outcry for safety of women.
Hearings are expected to begin on Thursday at the Saket district courts, where the Delhi Police will formally present a 1,000-page chargesheet against five men facing the charges. The sixth, believed to be a juvenile, would be tried in a juveniles' court, but the police are conducting bone tests to determine his age.
"We have decided that no lawyer will stand up to defend them. It would be immoral to defend the case," said Sanjay Kumar, a lawyer and member of the Saket District Bar Council.
Kumar said the 2,500 advocates registered at the court have decided to "stay away" to ensure "speedy justice", meaning the government would have to appoint lawyers for the defendants. Another lawyer at the court confirmed the boycott.
The woman died on Saturday morning after a brave struggle of 13 days to survive injuries that doctor said were so grievous that her body couldn't endure.
She was gang-raped on a moving bus on December 16 and thrown out with her male friend, who was also battered.
Only one conviction out of 635 rape cases in Delhi this year, reveals home ministry data This proves my earlier take that most of these so-called "Rape" cases are fake and are planted by cunning/shrewed ladies to extract money or other favours.
NEW DELHI: There has been only one conviction out of over 600 cases of rape reported to Delhi Police this year even as crime against women has been on the rise in the national capital.
As many as 754 accused were arrested in the 635 cases reported to Delhi Police between January and November, the highest in past five years, home ministry data said.
Of these total accused, only one was convicted while 403 were facing trials, investigations were pending against 348 and two others were discharged.
A total of 572 rape cases were reported to Delhi Police last year as against 507 in 2010, 469 in 2009 and 466 in 2008.
The Delhi Police arrested 745 accused last year. Of these, 18 were convicted, 34 were acquitted, 597 were facing trials in different courts, 86 were still being investigated and 10 were discharged for the crime.
In 2010, out of 685 arrested accused, 37 were convicted and 107 were acquitted. Trials were going on against 518 accused and investigations were pending against 13 others, the data said.
Whereas, a total of 675 and 604 persons were arrested for rape in 2009 and 2008 respectively. Of these, 82 were convicted in 2009 and 52 in 2008, the data said.
As many as 211 were acquitted in 2009 and 119 in 2008. During 2009, investigation was pending against one accused and in 2008, probe involving 17 accused was yet to be completed, the home ministry data said.
The national capital has also reported 624 cases of molestation of women between January and November and the police have arrested 768 accused. However, conviction was done in only one case. The trials were pending against 402 accused and investigations were pending against 356 others suspected to have molested women, it said.
A total of 657 cases of molestation of women were reported last year in which 910 were arrested. Whereas, in 601 cases of molestation of women reported in 2010, 552 in 2009 and 611 in 2008, 867 accused were arrested in 2010, 826 in 2009 and 912 in 2008, the data said.
Only three were convicted for molesting women last year, 12 in 2010, 11 in 2009 and 16 in 2008, it said.
A total of 835 accused arrested in 2011 were facing trials. Also, the trials were pending against 811, 737 and 780 accused arrested in 2010, 2009 and 2008 respectively, the data said.
The national capital has reported 111 cases of dowry harassment between January and November this year. Besides, 98 such cases were reported to Delhi Police last year, 78 in 2010, 118 in 2009 and 104 in 2008.
There were 128 dowry deaths reported in the national capital in the first eleven months this year as against 142 and 143 such deaths in 2011 and 2010 respectively, it said.
A total of 193 cases of eve teasing were reported to Delhi Police between January and November in which 200 accused were arrested. Of these, 105 were still under investigation and 95 were facing trials, the data said adding that there was no conviction in any of the reported cases.
Delhi has reported 165 cases of eve teasing last year and 126 in 2010 in which 172 and 116 accused were arrested respectively.
Abolition of death penalty cannot be achieved in one sitting: MOJ
~~~by Huang Yi-han and Sofia Wu
In Taiwan, progress has been made on the death penalty issue, the MOJ said, adding that it will continue working toward its ultimate goal of scrapping capital punishment.
Taipei, Dec. 23 (CNA): Abolishment of capital punishment cannot be achieved in one sitting and instead requires popular support and completion of legislation, the Ministry of Justice (MOJ) said Sunday.
Responding to Amnesty International's criticism of Taiwan for its Dec. 21 execution of six death row inmates, the ministry said abolishing capital punishment is a goal that requires long-term efforts to realize.
The ministry cited the progress of the European Convention on Human Rights and experiences of some European countries in abolishing capital punishment to back its argument.
When the European convention took effect in 1953, it did not contain any provision requiring its signatories to abolish capital punishment, the MOJ said in a statement.
In 1983, all signatories were required to phase out capital punishment during peacetime and use such punishment only in wartime or on the brink of war, the statement aid.
The convention did not demand an all-out abolishment of capital punishment until July 1, 2003, nearly 50 years after the convention took effect, the MOJ added.
It also took several decades of efforts for the United Kingdom, Germany and France to attain the goal of phasing out capital punishment, the ministry said.
To date, it added, most countries around the world have not yet reached a consistent view or stance on capital punishment.
In Taiwan, progress has been made on the death penalty issue, the MOJ said, adding that it will continue working toward its ultimate goal of scrapping capital punishment.
"As it's a goal that require phased, multilayer and comprehensive efforts to accomplish, the ministry has not and cannot set a date for terminating or abolishing death penalty," the MOJ added.
Within our society, men and boys can suffer appalling sexual assaults
and humiliations, but rarely does a victim cry out for help. Such is his
feeling of shame, he will often be as desperate to keep it a secret as
his attacker is. Confusion, depression and a sense of inescapable
isolation are common reactions. They can wreck a man's life. The effects
of sexual abuse on men are in many ways similar to those on women, but
the response of society is markedly different. Men are seen as strong
protectors, capable of defending themselves and those that they care
about. When rape occurs feelings of shame, guilt, bewilderment and
disbelief often lead to a change of self-esteem. Frequently men feel
unable to express their anger and rage at what has happened to them and
turn it in on themselves. In a twist that doesn't occur in female rape,
sometimes the perpetrator of male rape will arouse his victim sexually,
leading him to ejaculation. This is a control move which leaves the
victim totally confused as to his role in the rape - did he in fact
contribute, by becoming aroused?
It is important to bear in mind
that co-operation does not mean consent. Sometimes co-operation with a
rapist or abuser is essential to survive the situation. Many men
unfortunately find it easier to blame themselves than accept that they
were over-powered and raped, in spite of possibly being tricked or
manipulated into trusting, or sometimes even feeling an attachment for,
their attacker.
It is only by bringing these issues out into the
open and discussing them, that we can hope to change society's attitudes
so that male rape is seen as the same violent crime as female rape.
Rape and Sexual Assault are not about sex or a sexual relationship. They
are serious crimes about power, control, humiliation and domination. Childhood Sexual Abuse:
Being
both mentally and physically strong is something that society seems to
expect of males from a very early age. Some young men will feel that
they should be able to physically protect themselves and, when they
cannot, they find this hard to accept. Many boys, like all children,
find it hard to ask for help when abuse is happening. As they grow up
they find it even harder to ask for help. Many boys do not report acts
of sexual violence because they see this as a sign of weakness. By
accepting that the abuse was not your fault it can only help to shift
the feelings of guilt and shame, putting them where they belong, on the
perpetrator.
"Obviously if you're watching a
scene with a woman tied to a bed while a man forces sx on her, the
final act of that movie will involve said man getting shot in the face
by Bruce Willis. If, on the other hand, it's a man being tied down and
forced into sex by a pretty lady, well, you're watching a wacky romantic
comedy." ~~C. Coville, Cracked, 6 Romantic Movie Gestures That Can Get You Prison Time
A Sub Trope of Double Standard.
Rape is a special kind of Evil, beyond kicking the dog or any of the other acts of villainy in media. But there seems to be one exception: when the victim is a man and the attacker is a woman. Men are stereotyped as constantly wanting sex and of being stronger in general than women. Therefore, the idea that the man could have either not consented to sex with a woman or been incapable of fighting off a female aggressor if he did refuse sex is simply not taken seriously. Another commonly-held notion that the idea of female-on-male rape challenges is the false idea that since men have erections, they enjoy the sex, and hence is not rape or not as traumatic as any other kind of rape.
The consequence of this line of thought is this trope. A man raped by an attractive woman is considered a lucky man, and a man being raped by an unattractive woman is comedy gold.
Sadly, people thinking this way is Truth in Television. For instance, some countries don't penalize sexual acts done by females as "rape", and this even extends to Sexual Harassment, too. Since real examples can get complicated, No Real Life Examples, Please!
This trope is not just females raping males, but females raping males and that being somehow more okay in-universe than males raping females, males raping males, and so forth.
Man raped by gang of girls in Dehradun ~~Neetu Banga
It is shocking when girls abduct and rape a man, and make a MMS. However, reactions of women are different, when asked about the same, and they are not ready to accept this story. Parul Mehta, Energy World CEO says, “Why he is crying? Daily there are
incidents of rape cases with females and police refuses to lodge FIR or
make the victim as a culprit. It is right that gang of girls have turned
the table. Hatts off,”
IT IS shocking news about what seems to be women's desire to teach a lesson to the opposite sex. A man from Dehradun has alleged that a gang of girls forcefully abducted and raped him, and a MMS was filmed. The FIR lodged at Kotawali police station says that a group of women did this offence near the Hindu National College, Dehradun.
The plaintiff claimed that he was also threatened with dire consequences if he went to the police. His story is not less than any movie. He told police that a few women approached him on the afternoon of April 9and asked for direction of road. One of then sprayed something on his face and made him comatose. Then he was taken to a nearby building and sexually molested by the women, and a video was shot.
Later, he was dumped near a bus stand with a warning that he would be killed if he informed the police or anyone. Now, police are getting him examined by a medical professional and the matter is under investigation.
This Citizen Journalist asked women about their feedback on this incident, and no woman was ready to accept the truth. Sujata Hangal, an engineering executive says, “This story is scripted like any film. Typically, he wants publicity with with the help of a wrong route. Indian women cannot do this type of act. Shame on this man.”
Parul Mehta, Energy World CEO says, “Why he is crying? Daily there are incidents of rape cases with females and police refuses to lodge FIR or make the victim as a culprit. It is right that gang of girls have turned the table. Hatts off,”
Mansi Gaur, a homemaker says, “Where is the eye witness? The girls were dumping a male near a bus stand and no one protested? It is filmy story,”
Ankita Kohli, a college goers says, “First police hold these women and investigate them, only we gals will accept this story. However, this story motivates me how to teach a lesson to these guys who are raping girls without any second thoughts.” Alina, a school teacher says, “Indian girls cannot do this act. We are bound with our traditions. This man is a liar.”
However, the incident is not the first in India. It is believed that in the Indian society Indian girls are considered relatively introverted and they cannot do the rape act. The molesting of a man by a group is possible and for some women it is the only option left to stop rape cases.
Man ‘raped’ by a gang of girls, claims perpetrators shot MMS
Dehradun (Uttara-khand): Women it seems have turned the table on men, yet again. A man from Dehradun has alleged that a gang of girls abducted, forcefully had sex with him and filmed the act. He also claims he was threatened with dire consequences if the went to the police.
As per the FIR lodged at Kotwali police station a man was abducted from near the Hindu National College by a group of women, raped and an MMS was filmed of the act.
The complainant claimed that on April 9 afternoon a few women approached him asking for directions. One of them sprayed “something” on his face that made him unconscious. He was then taken to a building and sexually molested by the women. He claims a video was also shot while he was being ravaged.
He was later dumped near bus stand with a warning that he would be killed if he informed the police. Cops are getting him examined by a medical professional and investigating the matter.
A Muslim is a man who had given up his "hostility" to Islam and entered into a patronage relationship with an Arab master. This relation was called "Muwalat".
Please Click on the Photo and then Press Control and + simultaneously to Expand
The designation mu'min stood in contrast to the term "kafir" denoting the one rejecting the monotheistic revelation as Hazarat Muhammad had received it.
The term mu'min seems to have been reserved for the first adherents to Islam - the Arabs. Therefore the definition of the term `amir al-mu'minin receives a new and narrower meaning, i.e. the prince of the Arab believers whose security was assured.
The mu'min receives the free protection of his leader.
The "dhimmi" on the other hand will not receive free protection and is a "non-Arab of inferior status".
Therefore any submitted non-Arabic person is not a mu'min, but a mawla of an inferior status.
Islam thus denotes a total "submission and entering into peace and pronouncing the creed and giving up hostility that one has shown".
Sunday, 2 December 2012
Why mandatory death penalty be not abolished? Supreme Court asks
“To err is human, to forgive is divine,” Alexander Pope, the English poet and critic
NEW DELHI: Days after a two-judge bench of the Supreme Court said it was time to revisit jurisprudence behind imposition of death penalty, the apex court asked the Union government why provisions in some laws mandating compulsory death penalty as punishment be not struck down as unconstitutional.
The question from a bench of Justices Aftab Alam and Ranajana Desai put additional solicitor general Siddharth Luthra in a piquant position for he had sought to argue the Centre's appeal against a Bombay high court judgment diluting the mandatory death penalty prescribed under section 31A of Narcotics and Psychotropic Substances (NDPS) Act for repeat offenders trading in huge quantities of contraband.
Though the Union government's appeal challenged the Bombay HC's decision to read down Section 31A to provide the concerned Judge with the discretion of imposing life sentence, the bench decided to take suo motu of other similar provisions in some laws warranting mandatory imposition of death penalty. The read down principle limits a provision of law.
Expressing its view on statutory provisions mandating compulsory capital punishment, the bench said prima facie it appeared to be violative of Article 21 (right to life) and Article 14 (non-discrimination/equality).
On a PIL by a Delhi-based NGO Indian Harm Reduction Network challenging the constitutional validity of Section 31A of NDPS Act, a Bombay HC bench of Justices AM Khanwilkar and AP Bhangale on June 16, 2011, had held that the provision is violative of Article 21 as it provides for a mandatory death penalty.
"Instead of declaring Section 31A as unconstitutional, we accede to the alternative argument of the Union government that the said provision be construed as directory by reading down the expression 'shall be punishable with death' as 'may be punishable with death' in relation to the offences covered under Section 31A of the Act," the HC had said.
The HC had further clarified — "Thus, the court will have discretion to impose punishment specified in Section 31A of the Act for offences covered by Section 31A of the Act. But, in appropriate cases, the court can award death penalty for the offences covered by Section 31A upon recording reasons therefore."
The Union government challenged this reading down of the provision and in its appeal before the apex court said sentencing was, essentially, a legislative policy and that it was also the legislature's prerogative whether to grant courts any discretion while imposing sentence under a provision of a penal statute.
It said: "the mandatory death penalty provided in Section 31A is in the nature of minimum sentence in respect of repeat offenders of specified activities and for offences involving huge quantities of specified categories of narcotic drugs."
"Would it still be open for the court to reduce the minimum sentence provided for by the Legislature?" the Union government asked and said offences falling under NDPS Act had been held by the apex court to be of such nature which had deleterious effect and deadly impact on the society as a whole. "The Supreme Court had time and again held that narcotic crimes are more heinous than murder," it said.
Section 31A is attracted only in cases where a person who has been convicted of either embezzlement of opium by a licensed cultivator (Section 19), unauthorized trade and external dealing in narcotic drugs and psychotropic substances (Section 24), financing illicit trafficking and harbouring offenders (Section 27A) and for offences involving commercial quantity of any narcotic drug or psychotropic substance."
