Trends Regarding Death Penalty in India

Reading time: 8-10 minutes.

A Bench of Rajasthan High Court comprising Justice Sabrina and Justice Chandra Kumar Sonagara recently upheld the conviction of a murder accused named Mohan Singh alias Mahaveer Singh, for murdering a women by strangulation and thereafter cutting her abdomen and taking out certain organs. The High Court upheld his conviction for the offences under Section 302, 391 and 201 of the Indian Penal Code allowing a maximum sentence of death which was awarded to him. The accused was already convicted under other murder cases of heinous nature. The Court held that the prosecution had clearly established the guilt of the accused without any shadow of doubt, using circumstantial evidence as well as medical evidence including DNA reports, to negate any possibility of innocence of the accused.

This brings to light the controversy surrounding imposition of death penalty in India and the domestic legislations as well as case laws and conflicting global movement in favour of abolishing death penalty.

Facts of the Case

In February 2020, a Trial Court in Kota convicted Mohan Singh for murdering a woman whose naked body was found in a sack in March 2019, though rape charges could not be proved against him. Mohan has previously been convicted for killing three women for which he was serving a life sentence. In 1997, Mohan had committed a double murder of a mother and her daughter in Kota, whose bodies he damaged using a beer bottle. In 2003, he raped and strangled a woman for which he was serving life imprisonment in Sanganer Open Jail, from where he escaped in 2016 and committed the present murder. Mohan had not only murdered the women but had thereafter cut her abdomen and replaced certain organs with her kurti and petticoat which he sewed in her abdomen with a wire. The post-mortem report revealed the missing liver, ovary, uterus and part of the deceased’s intestine.

Looking at the heinous manner of the crime by the accused, as well as his criminal antecedents, the Rajasthan High Court upheld his conviction of death penalty. In 2018, the courts imposed 162 death sentences out which 58 were for murder along with a sexual offence and 45 were for murder only.

Legal Provisions Involved

Section 302 of the Indian Penal Code provides the punishment for the offence of murder. It punishes murder with death, or imprisonment for life and also a fine.

The IPC also allows imposition of death penalty for waging war or attempt to do so against the Government of India (section 121), abetment of mutiny (section 132), abetment of suicide of a child or an insane person (section 305), kidnapping for ransom (section 364A), dacoity with murder (section 396), for repeat offenders in case of rape (section 376E) and by virtue of Criminal Law (Amendment) Act, 2018 for inflicting injuries which causes death or causes the rape victim to be in a persistent vegetative state (section 376A) or for committing rape on a women under twelve years of age (section 376AB) and gang rape of women under twelve years of age (section 376DB).

Article 21 of the Indian Constitution states that no person shall be deprived of life and personal liberty, except according to procedure established by law. There have been many discussions as to how the imposition of death penalty is a violation of the fundamental right to life, but the five bench judge of the Supreme Court in the case of Bachchan Singh v. State of Punjab held, by a majority of 5:4, that death penalty as an alternative punishment is not unreasonable or violative of Articles 14, 19 or 21 of the Constitution.

Articles 72 and 161 of the Indian Constitution empower the President and the Governors to grant pardon, suspend, remit or commute sentence of any person sentenced to death penalty among other cases. The Supreme Court has observed in the case of Shatrughan Chauhan v. Union of India that power conferred upon the executive under these Articles is not a matter of privilege or grace but an important constitutional duty to be performed in the aid of justice and not in its defiance.

Critical Analysis

Out of all the punishments available, the capital punishment is the most severe and extreme. There has been a practice of imposing capital punishment in almost every country since time immemorial. The irreversible nature of the act makes its imposition limited only to those convicted of the most gruesome, heinous and anti-social crimes. With time however, most of the countries put an end to this practice and became signatories to international conventions to prohibit the same. Currently, 133 countries have abolished death penalty in law or in practice. Even the Indian judiciary has acted in accordance with this international trend. In 1979, the constitutionality of capital punishment was challenged before the Supreme Court in the case of Rajendra Prasad v. State of Uttar Pradesh where the Justice Krishna Iyer held that death sentence is not justified unless it is shown that the criminal was dangerous to the society. He also pleaded for the abolition of death penalty and held that discretion given to the judge to choose between death and life imprisonment was violative of Article 14 which condemns arbitrariness.

However, the Supreme Court overruled Rajendra Prasad’s judgment in the case of Bachchan Singh v. State of Punjab and Machhi Singh v. State of Punjab but these cases limited the imposition of death penalty to the ‘rarest of the rare’ cases and issued guidelines to consider the manner of commission of offence, motive, anti-social behaviour or socially abhorrent nature of the crime, magnitude of the crime and the personality of the victim. The concerns about discrimination and arbitrariness are still present in the system despite international organizations like Amnesty International and United Nations seeking the abolition of the death penalty through its resolutions. 

A reason for its ban is the possibility of an innocent person being subjected to the strictest punishment of all. The Law Commission’s 2015 Report stated that 28.9% of the cases where the Trial Court had awarded the death sentence resulted in an acquittal by the High or the Supreme Court. One of the arguments made against the abolition of death penalty is the deterrent effect that such a sentence has on members of the society and the belief that it would actually deter others from committing the same offence. However, the reports and statistics suggest otherwise. The report of Royal Commission on Capital Punishment (1953) which was reiterated in the case of Triveniben v. State of Gujrat concluded that there was no conclusive statistical evidence that capital punishment was any more deterrent that other forms of punishments. Even after bringing the POCSO Act and various amendments to it as well as the Criminal Law (Amendment) Act incorporating death penalties for various offences, the number of cases of sexual assault and rape against children have gone up. Experts believe that the larger interest for bringing such laws is to empathise with the public anger. 

Another serious drawback of capital punishments is that since these acts came into force, there have been more and more cases of murder of the victims of sexual assault by the offender in an attempt to escape prosecution and possibly a death penalty. This can be observed by the fact that the number of death sentences imposed in cases of murder including sexual violence jumped 35% from the previous year. Another problem with the imposition of capital punishment is the possibility that the cases of such nature will not get reported. The National Crime Records Bureau, in its 2016 Report indicated that 94.6% of the rape accused were the victim’s relatives, including brother, father, grandfather, sons or acquaintances. In this situation, there is a chance that the victim, or if the victim is a minor then his or her guardians may not report the case to shield the relative accused to protect them from being subjected to death penalty.

Conclusion

Taking a look at the last fifteen years, the number of people sentenced to death, that were actually executed, stand at eight people, including Dhananjay Chatterjee’s hanging in 2004, Md. Ajmal Kasab’s, Md. Afzal Guru’s, Yakub Memon’s hanging in 2012, 2013 and 2015 respectively and the four of the convicts of Nirbhaya gang rape in 2012, who were hung in March 2020. Thus, despite the provisions allowing death penalty in various offences, the Courts of India have acted in accordance with the international trend of minimising the imposition of capital punishment and used the discretion only in the rarest of the rare cases, involving terrorism or gruesome acts of rape and murder. The power vested with the judges has been and should continue to be used very sparingly, in imposing the most severe and strict punishment there is, death.

Author: Ashray Singh, School of law, NMIMS Mumbai.

Editor: Astha Garg, Junior Editor, Lexlife India.

Analysis: Maternity Benefits of Contractual Workers

Reading time: 5-8 minutes.

Contractual employees are those workers who are hired for a certain amount of time till the project/work gets completed. Maternity benefits are those benefits which are given to women employees to protect their rights during pregnancy and after childbirth. Maternity benefits in India are governed by the Maternity Benefit Act, 1961. However, the provisions of the Act are only applicable to organisations having 10 or more employees, and to the women who have worked for at least 80 days in the 12 months preceding the date of their expected delivery. Women employed on a contractual basis did not find protection within the ambit of the Act and hence, were not entitled to benefits of maternity leave.

Recently, the Himachal Pradesh High Court in the case of Dr. Mandeep Kaur v. Union of India held that contractual employees are also entitled to maternity benefits, along with all consequential benefits, including continuity in service. This article analyses this decision, while discussing the facts of the case and the relevant provisions thereof.

Facts of the Issue

The Petitioner was appointed as a Medical Officer, on a contractual basis under the Respondents. She claimed maternity leave for 180 days with all consequential benefits, including continuity in service, being accorded to her. The Respondents on the other hand, opposed her claim by relying on the contract of employment executed between the parties, wherein no such covenant was present which made her entitled to maternity leave.

The Himachal Pradesh High Court opined in its judgement dated 15th July 2020, that irrespective of the fact that the contract did not contain a covenant with respect to the claim, the Petitioner was entitled to benefits of maternity leave. The court held “Even though, she was engaged on a contractual basis, yet, denial of, benefit of maternity leave to her, would, tantamount, to infringement; being visited, vis-à-vis, the salutary purpose, behind Article 21, of the Constitution of India.” The Court relied on various judgments including Municipal Corporation of Delhi v. Female Workers & Anr., which provided an “explicit mandate” vis-à-vis, the entitlement of maternity leave to women employees who are engaged on daily wages. Further, the Court placed reliance on two decisions- Rasitha C H v. State of Kerala and Rakhi v. State of Kerala, both of which held that contractual employees are also entitled to benefits under the Maternity Benefit Act, 1961.

Relevant Provisions

The relevant provisions here are of the Maternity Benefits Act, 1961. Under Section 2 of the Act, mentions all the cases where the Act is applicable. It mentions that the Act applies to factories, mines or plantations including Government owned establishment where people are employed for exhibition of equestrian, acrobatic and other performances. Moreover, it is also applicable to every other shop or establishment within the meaning of any law for the time being in force, which has ten or more employees.

Another provision relevant here is Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to a procedure established by law.

Critical Analysis

The judgment is the right way for securing and empowering working women’s rights in India. The country had passed the Maternity (Amendment) Bill, 2017 that increased the right to paid maternity leave for working women from 12 weeks to 26 weeks, which was the third highest in the world. Although, this was a commendable step taken by the government for working women, it was rather unfortunate that only 1% of all the working women could avail the benefit of this “phantom legislation”. The law was applicable to only those who work in a company with at least 10 employees which is a very miniscule proportion of the small share of India’s working women.

It is estimated that approximately 84% of the women work in companies with less than 10 employees which means they do not reap the benefits of the Act in place. Moreover, women employed on a contractual basis were also not entitled to the maternity leave benefits prior to the judgment. This implies that the majority of the beneficiaries under the Act could not reap benefits of its provisions. However, after this decision passed by the Himachal Pradesh High Court, a much larger percentage of working women in India would be entitled to maternity leave.

Further, the judgment is a breath of fresh air for pregnant women who are employed as they do not only get maternity leave until delivery, but are entitled to consequential benefits including continuity of their jobs. This is beneficial for the women even after childbirth.

Conclusion

The Court rightly upheld that even if a person is engaged on a contractual basis, but is denied the benefit of maternity leave, it would tantamount to the infringement of the right enshrined under Article 21 of the Constitution. Irrespective of the nature of their work, all working women are entitled to be treated with dignity and respect at their workplaces and therefore they must be provided with all the facilities for maintaining the same.

If a pregnant lady is forced to work even during the phase where she is carrying a baby in her womb, she may not even be able to perform her work efficiently. While that is one point to make, it is not the most important one here. Maternity leaves are important to be availed by women in order to protect their fundamental right to life. Moreover, the health of the baby she is carrying may also be affected if she is coerced to work during her pregnancy, which again, would tantamount to violation of the right to life of the foetus as well as the Mother by extension. Therefore, it is necessary that all women in the employment sector are given the benefits of maternity leave.

Author: Pranika Goswami from National Law University, Jodhpur.

Editor: Astha Garg, Junior Editor, Lexlife India.

Analysis: Quarantine v. Personal liberty

Reading time: 6-8 minutes.

“Life without liberty is like a body without spirit.” – Kahlil Gibran

The right to life and personal liberty is most fundamental of all our rights and gives meaning to our very existence.  Everyone comes into the world with a right to his person which includes the liberty of moving and using it at his own will. This Fundamental Right is guaranteed under Article 21 of the Constitution, which states “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

According to A.V.Dicey, “Personal liberty, as understood in English law, means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification”

 Bhagwati, J., said Article 21 “embodies a constitutional value of supreme importance in a democratic society.”

Being the most progressive provision of our Constitution, this right has been held to be the heart of the Constitution.  It is the only Article that has received the widest possible interpretation to include various rights like Right to Dignity of Life, Right to Travel, Right to Privacy, etc. The Constitution has made the judicial process as the protector of personal liberties. 

Maneka Gandhi v. Union of India: The right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Personal liberty makes for the worth of the human being and travel makes liberty worthwhile. 

A.K.Gopalan v. State of Madras:  The ‘personal liberty’ in Art.21 primarily means the freedom from any kind of physical restraint or coercion, including arrest and detention, which essentially consists in the freedom of movement and locomotion. It also includes a bundle of several other positive rights, such as the right to eat, drink, sleep, work, etc., which would go to make up a man’s liberty.

Kharak Singh v. the State of U.P.: The term “life” means more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.

D.B.M. Patnaik v. A.P.: Even a convict is entitled to the precious right guaranteed by Article 21, he shall not be deprived of his life or personal liberty except according to the procedure established by law.

COVID-19 quarantine

In December 2019, a novel Coronavirus known as SARS-CoV-2 was first detected in Wuhan, People’s Republic of China. It caused an outbreak of the Coronavirus disease (COVID-19) which has now spread globally.

The World Health Organization determined that the outbreak of COVID-19 constitutes a Public Health Emergency of International Concern in January and on March 11, 2020, it announced the COVID-19 as a Pandemic.

To prevent the introduction of the disease to new areas and to reduce human-to-human transmission, many countries have taken multiple public health measures such as Quarantine and total Lockdown.  By the United Nations Charter and International law principles, Member states have the sovereign right to implement their health policies, even if this involves the restriction of movement of individuals. Article 3 of the International Health Regulations, 2005 specifies rules for implementation of quarantine, ensuring it to be respectful of the dignity, human rights and fundamental freedoms of persons.

Quarantine involves the restriction of movement, or separation from the rest of the population, of healthy persons who may have been exposed to the virus, with the objective of monitoring their symptoms and ensuring early detection of cases. Persons who are quarantined need to be provided with health care; financial, social and psychosocial support; and basic needs, including food, water, and other essentials.

The global containment strategy includes the rapid identification of laboratory-confirmed cases and their isolation and management either in a medical facility or at home. WHO recommends that contacts of a COVID-19 positive patient be quarantined for 14 days. 

Constitutional validity of Quarantine

All citizens of India have a Fundamental Right  “to assemble peaceably” and “to move freely throughout the territory of India”, guaranteed under Article 19(1) (b) and 19(1) (d), respectively.

Quarantine being a limitation on free movement and assembly prima facie violates this fundamental right. However, Article 19 (3) says “Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order”. Similarly, Article 19(5) gives the state power to make such laws in the interest of the general public.

Moreover, Public Health and sanitation, hospital and dispensaries are items under List II of the Constitution and hence, States are empowered to make laws on these subjects.

Epidemic Diseases Act, 1897:  This is the main legal weapon the government possesses today. The objective of this Act is to provide for better prevention of the spread of dangerous epidemic diseases. Any state government, when satisfied that any part of its territory is threatened with an outbreak, may authorize all measures, including quarantine, to prevent it.

Section 2 empowers a state to inspect people and segregate suspected patients. Measures and regulations for the inspection, vaccination, and inoculation of persons, including their segregation in a hospital, temporary accommodation, or otherwise can also be taken.

The government of India declared the Coronavirus disease as a ‘notified disaster’ under the National Disaster Management Act, 2005. This Act’s purpose is to coordinate the response to natural or man-made disasters and capacity-building in disaster resiliency and crisis response. 

Sanctions against violation of Quarantine

While dealing with an emergency caused by the outbreak of a dangerous disease, the state may seek the cooperation of the public. If the desired cooperation is not forthcoming, a regulation may be imposed. For example, Section 144 (Cr.P.C.) empowers the administration to impose restrictions on the personal liberties of individuals to prevent injury or danger to human life, health, and safety or disturbance of public tranquility.

Failure to obey or comply with such restrictions constitutes a punishable violation under the following sections of the Indian Penal Code, 1860.

Section 188: Whoever disobeys a direction promulgated by a public servant, if such disobedience causes or tends to cause danger to human life, health or safety, shall be punished with imprisonment for a term up to six months, or with fine or both.  Any person who disobeys any order or regulation under the 1897 EPD Act may be charged under this section.

Section 269: Whoever unlawfully or negligently does any act likely to spread the infection of any disease dangerous to life, shall be punished with a term up to six months, or fine, or both.

Section 270: Whoever malignantly does any act which is, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment for a term up to two years, or fine, or both.

Conclusion

“Desperate times breed desperate measures.” Quarantine, across the globe, is proving to be the best bet in the containment of Coronavirus disease. It might be interfering with our liberty but such a reasonable restriction is even permissible under our Constitution. In the interest of general public and order, it is also our duty as a citizen to cooperate with the government and help stop this outbreak.

Author: Sweksha from Law Centre-II, Faculty of Law, University of Delhi.

Editor: Tamanna Gupta from RGNUL, Patiala.

Explained: Manual Scavengers Act, 2013

Reading time: 6-8 minutes.

Manual Scavenging is a dehumanizing and caste-based practice deeply rooted in Indian society for ages. This undignified practice requires a manual scavenger to manually remove untreated human excreta from bucket toilets or pit latrines by hands with buckets and shovels. This practice is not only problematic given the right to health and the right to life; it is also a threat to human dignity and raises questions of discrimination and casteism.

 Although this practice is outlawed by the Employment of Manual Scavenger & Construction of Latrines (Prohibition) Act, 1993, and Prohibition of Employment as Manual Scavenger & their Rehabilitation Act 2013, it continues to plague the downtrodden sections of the society.

National Commission for Safai Karamcharis report on deaths of manual scavengers from January 2017-18 depicts that, in India, every five days, a manual scavenger dies in a sewer, septic tank, or a manhole. Not only this, but according to the Census of 2011, there are more than 2.6 million dry latrines in the country. There are 13,14,652 toilets where human excreta is flushed in open drains, 7,94,390 dry latrines where human excreta is cleaned manually. These facts disclose the sorry state of affairs in our country and the gross failure of this well-intentioned legislation in curbing the barbaric practice.

Salient features of Prohibition of Employment as Manual Scavangers and their Rehabilitation Act 2013

Due to the loopholes in the Act of 1993, the government passed the Prohibition of Employment as Manual Scavengers & their Rehabilitation Act 2013, which reinforced the ban on manual scavenging. Following are the key features-

  • It bans manual scavenging and also discharges employees who are engaged in this practice on a contractual or regular basis.
  • It widened the definition of manual scavengers by including in it all forms of manual removal of human excreta like an open drain, pit latrine, septic tanks, manholes, and removal of excreta on the railway tracks. 
  • It lays key focus on rehabilitating the manual scavengers by providing them with ready-built houses, financial assistance & loans for taking up alternate occupation on a sustainable basis, organizing training programs for the scavengers so that they can opt for some other profession at a stipend of Rs. 3000 and offering scholarships to their children under the relevant scheme of the government.
  • The Act makes the offense of manual scavenging cognizable and non-bailable.
  • It calls for a survey of manual scavenging in urban & rural areas and the conversion of insanitary latrines into sanitary latrines.
  • It makes it obligatory for employers to provide protective tools to the workers.

Objectives & purpose of the Act

The 2013 legislation aims to provide manual scavengers the Right to live with dignity enshrined under the Constitution, to protect weaker sections from social injustice, to end the continuing existence of insanitary latrines and a highly unfair caste system, to rehabilitate them to a life of dignity and to correct the historical injustice and indignity suffered by the them. In the light of inadequacy and failure of the previous law in eliminating the evils of insanitary latrines and manual scavenging, the present act came into force.

Why was the act introduced?

Many areas were untouched by the 1993 Act, which needed to be taken into account. The perspective of the Act of 1993 was limited to sanitation. It covered only dry latrines, and the definition of manual scavenging was restricted to a person employed for manually carrying human excreta. There was no stress laid upon the rehabilitation of these workers. The lenient penal punishment of one-year imprisonment and fine of Rs. 2000 could not create deterrence in society, as was evident from the deaths of manual scavengers.

The courts have also adopted a stern attitude towards manual scavenging and criticized the state authorities for failing to eliminate this practice in Safai Karamchari Andolan v. Union of India, where the Honourable Court highlighted the importance of rehabilitation so that present, as well as future generations, could be prevented from working as a manual scavenger. Thus, arose the need for entirely new legislation.

Analysis of progress made under it 

The New Act of 2013 brought under the purview of manual scavenging the Indian Railways as well. This has led to the coming up of bio-toilets in trains for treating human excreta.

According to the Government of India, there are 54,130 manual scavengers across 13 states post 2013. However, the newspaper reports say that the number is understated as the survey was conducted only in areas where there are reasons to believe the existence of manual scavengers. The survey was conducted in 170 districts in 18 states. The newspaper report states that if the official surveys of the 2011 census are compared with the data after 2013, a lot of imbalance is detected in reporting the real number of manual scavengers.

For instance, UP is among the most imbalanced state where there is a very high number of service latrines and a relatively low number of manual scavengers. It is also believed that the benefits of 2013 Act do not reach all the affected families, which defeats the very purpose of this legislation.

Scope of improvement 

The act of 2013 under Section 2(g) provides that in cases where protective gear is provided, the person employed to do the task would not be deemed as a manual scavenger, which is a flawed provision. The responsibility to provide for such safety gear rests upon the employer. Most of the municipal cleaning is outsourced, and thus, this responsibility falls on the private employers who fail to comply with the provisions under Rule 5 of the Act.

Another question is whether these safety tools are useful enough to protect the workers from life-threatening diseases like hepatitis, typhoid, cholera, jaundice, and other toxic gases. Thus, the issue needs to be revisited by the parliament. 

Another issue is the provision of treating these cases as a summary trial as it would compromise on the gravity of the offense. In Cr.P.C., a summary trial is conducted in the non-cognizable offenses only. However, this practice is termed as cognizable and non-bailable under the present act. 

The act fails to prescribe the time for the conversion of insanitary latrine into sanitary ones. Thus, the time must be specified.

Conclusion

There are various legislations, and budget allocations made by the parliament to end this practice not much has been achieved in this regard. No legislation can bore fruits without the countenance of the people of the country. There is no doubt that the schemes of the government have failed miserly due to the loopholes in the system, but the origin of this problem is the existence and continuance of the caste system in the society to date. The stigma attached to casteism has to be done away if we, as a nation, want to tread upon the path of progress. 

Community initiatives are crucial for abolishing manual scavenging. The community should discourage and stop subletting the service like sewer cleaning. People should pledge to adopt sanitary practices and vow to not encourage or employ manual scavengers for such menial tasks. 

There is a need to adopt a National Level monitoring system comprising of representatives from concerned ministries, social workers from NGOs working for this   cause, and other members from the public interested in the cause. This committee will keep a close check on the implementation of the present Act and related schemes to find loopholes in the system, which can be taken into account for ensuring an efficient system in place. 

Lastly, NGOs working for this noble cause should be roped into work along with the government to ensure the proper implementation of the act in urban as well as rural areas.

Author: Mehak Mehra from University Institute of Legal Studies, Panjab University, Chandigarh.

Editor: Tamanna Gupta from RGNUL, Patiala