Death penalty debate in India

Reading time: 8-10 minutes.

The International Court of Jurists condemn the execution of four men who were convicted of raping and murdering a 23-year-old student in December 2012 while stating that the execution of the perpetrators was an “affront to rule of law and does not improve access to justice for women”

The International Commission judicially pronounces the execution of four men for the punishment and denounces the executions and instigates to Indian Government to abolish the death penalty. ICJ called the Government to introduce systematic changes to the legal system that would prevent violence and improve access to justice for women

The International Court of Justice opposes capital punishment in all cases except as a violation of the right to life and freedom from cruel, inhuman or degrading punishment.

The International Court of Justice, sometimes called the world court, is the principal organ of the United Nation.

“State-sanctioned executions are little more public theatre that risk celebrating and perpetuating violence at the expense of the rule of law. As heinous as these crimes were, the imposition of the death penalty- the deterrent effect of which has been widely debunked- does nothing to improve the lives of women”.

Evolution of death penalty

After the Constitution was made death penalty was the normal punishment for murder when the first five-year plan was introduced. “If a person commits murder then the person will be awarded death sentence or death penalty is said to a murder”. But the practice of giving the death penalty is changed in 1955 basis on the discretion of the session judge. The session judge gives a discretionary power either in two- Capital punishment or Life imprisonment. Slowly and gradually in the year, the 1973 Code of Criminal Procedure was amended. By amending the proviso of CRPC parliament made it mandatorily that the session judge awarding capital punishment to a person who has committed murder; he has to show the reasons why he or she the judge has to show the special reasons while life imprisonment or while death sentence is awarded.

The famous case while stating for the death penalty in India:-

 In  Bachan Singh case- The Supreme Court ruled out that the death penalty could be imposed in only Rarest of Rare case, a judge or a court can impose i.e. alternative sentences of life is untestable for closed.

In Mache Singh vs. State of Punjab case- The case provides some exemptions to an earlier judgment of the court.

If the murder is committed in a brutal manner.

If the murder is committed by a motive.

If the crime is enormous in proportion.

Protections guaranteed under Constitution:-

Article 21- A person can be deprived not only of his life even under capital punishment.

Article 72- The president can pardon the death sentence while the governor cannot in a state to pardon.

Scope of judicial review- It can be conducted when presidential decision not to pardon the death sentence is arbitrary irrational and discriminatory

Article 134- It is a right of appeal from the High Court verdict to the Supreme Court and this is applicable anywhere when capital punishment is imposed in an acquittal order.

Global trend regarding death penalty

CORPORAL PUNISHMENT- This punishment was very common until the late 18th century. It includes flogging, branding, mutilation, chaining, and pillory.

FLOGGING- in India whipping was recognized as a mode of punishment under the Whipping Act, 1864 which was repealed and replaced by a similar act in 1909. The instruments and methods of flogging however differed from country to country. Some of them used straps and whips with a single lash while others used short pieces of rubber hose.

MUTILATION- It was also a common form of corporal punishment. It was known to have been in practice in ancient India during the Hindu period. In case of theft one or both, the hands of the offender were chopped off and in case of sex-offense his private part cut-off.

BRANDING- It is a mode of punishment that was commonly used in oriental and classical societies. Roman criminal law supported this mode of punishment and criminals were branded with an appropriate mark on their forehead so that they could be easily identified and permanently subjected to public ridicule.

CHAINING- The offenders together was also commonly used as a mode of punishment. Their liberty and mobility were thus completely restricted. The hands and legs of criminals were tied with iron rods and chained together.

PILLORY- This type of punishment was also called poetic punishment through it was more often used in fiction than in poetry. The offender was brought in public place for the execution of the sentence. He could even be publically stoned if offense was of a serious offense.

 Reason behind death penalty in India:-

 The existence of execution in India came into force by Justice JS Verma Panel

The report led to severe changes through the Legal code Amendment Act, 2013.

A report had suggested that seeking such a punishment would be a regressive step within the field of sentencing and reformation.

The committee has criticized the lack of reformatory and rehabilitation policies in jails and juvenile homes.

The committee had argued instead for rigorous punishment of a convict of life.

Critical analysis

  • The death penalty is error-ridden
  • The execution is unfair targets the poor and marginalized
  • Those without capital get the punishment
  • It is being implemented within the “rarest of the rare” cases
  • Its constitutionally is upheld even in liberal democracies like the U.S
  • The hanging of Ajmal Kasab and Yakub Memon strongly affirms India’s commitment to prevention of terrorism
  • Tougher punishments act as a deterrent for others to commit the identical.

Conclusion

The hanging of the four convicts in the Nirbhaya Gang Rape and murder case has come as closure for not just her family but also the police officials who investigated the barbaric case. However the need of the hour is to know and check what we can moderate or can we changed into the legal system without any delay of execution in condemning to death Justice is delayed but not denied.at the most what we can say is justice will ultimately prevail but it took a long time. And we can hope or pray that various victims who have suffered by this type of heinous crime should be delivered through justice by the legal system.

Author: Neha .M. George from ITM University, Raipur.

Editor: Tamanna Gupta from RGNUL, Patiala.

Amazon rainforest on fire: What is all the outrage about?

Reading time: 4-5 minutes.

The forest fires that broke out in the Amazon rainforest in Brazil are still ablaze. Amazon rainforest is the world’s largest tropical forest and it is facing one of the worst forest fires in history, for about four weeks now.

The number of forest fires in Brazil this year are recorded to be the highest since the year 2010, as reported by NASA. Brazil’s space research center has detected more than 80,000 fires in the country, which is said to be a dangerous sign.

Brazil’s National Institute for Space Research (INPE) has reported that at least 74,000 fires have already occurred in the Amazon this year so far. The Amazon forest fires are so grave in nature that it is claimed by space agencies that the smoke of the fire is even visible from the space.

To support such claims there are several images of the smoke captured from the International Space Center that are being circulated worldwide. The BBC reported last Friday that in a 48-hour period, leading up to Thursday, there were more than 2,500 active fires in the Brazilian rainforest.

International outrage: What, why and how much?

Since there was no media reporting of the issue initially even it being of such important nature, there was an international outrage. People from across the globe started sharing over social media platforms about the issue. Soon enough the hashtags like #ActForTheAmazon, #PrayforAmazonas, #AmazonRainforest all started trending.

Thereafter, in no time, this issue became international news. In fact, many twitter users even criticized the media for giving a lot of importance to Notre Dame church fire and not giving the due importance as compared to that to the Amazon Rainforest fires.

Social media users around the globe also lashed out and called out the world billionaires for not donating for the cause. Tim Cook appeared as the first tech company CEO who responded to the cause and offered an aid. Activists even protested outside the Brazilian Consulate and even occupied Brazilian embassy to show their rage.

What is the history of forest fires in Brazil?

Wildfires in Brazil often occur in the dry season. But recently, Brazilian government claimed these fires are deliberately started by some NGOs in order to illegally clear land for cattle ranching.

According to reports of INPE (space research organisation of Brazil), it had detected more than 74,000 fires between January and August which is claimed to be the highest number on records since it began in 2013. It also said that there are more than 40,000 fires in the same period as compared to 2018. Although, till now it was said that 2016 was the worst year for forest fires as it had recorded 68,000 fires in that period.

What is the international law involed?

There are several laws, organizations and treaties at the international level which are concerned with either management and tackling of forest fires directly or in a way deal with the conservation and management of forests and thus indirectly also put up certain guidelines for handling of such forest fires. Some of the such international-level steps are:

  • Food and Agriculture Organization (FAO) Ministerial Meeting on Forests called upon the FAO to develop the Strategy to Enhance International Cooperation on Fire Management.
  • UN resolutions and its statements on forest fires and importance of forests for present as well future generation.
  • Conventions on transboundary pollution.
  • General principles in International Environmental Law.
  • FAO has also developed an ‘International Wildlife Fire Management Agreements Template’.
  • Agreement on Joint Control of Forest Fire between China and Russia.

What are the major policies for forest conservation in India?

On national level, in India, there are several legislations and policies for the conservation of forests. Per se, there have been three major policy announcements on forests and its conservation in India:

  • The forest policy of 1952: It was formulated as there was a need for reorientation of forest policy in light of the changes that had taken place since the implementation of the 1894 policy on forests.
  • The National Commission on Agriculture, 1976: It stated that “there should be a change over from the conservation-oriented forestry to a more dynamic program of production forestry.”
  • The Forest Policy, 1988: It represented a major paradigm shift from the earlier policies and this shift began to take some shape through the introduction of Joint Forest Management in India in 1990.

In addition to these policies, there have been certain laws as well governing the conservation of forests in India:

  • Forest Conservation Act, 1980
  • The Biological Diversity Act, 2002
  • Indian Forest Act, 1927
  • The Forest Policy of 1988 and Joint Forest Management

The way forward…

The Amazon rainforest is an important and integral part of the earth which plays a very pivotal role in the global climatic conditions. Such large-scale forest fires will result in a devastation as well as degradation of world environment and climate at large.

Losing the Amazon rainforest will not only have harmful global consequences but such consequences will also be irreversible in nature. The loss of forest can result into severe changes in the climatic conditions, climate and weather patterns. There would also be a decline in the absorption of carbon, which is necessary for earth’s survival, and one of the most important functions of the Amazon rainforests.

Thus, it is important for everyone to contribute their bit, be it on individual level, community level, national level or international level for the protection of this rainforest, famously known as ‘lungs of Earth’. There are certain ways in which one can help to save the Amazon rainforest:

  • Donations can be made to Rainforest Action Network.
  • Donations to Rainforest Trust could be made.
  • Reduction in paper and wood consumption.

This article is brought to you in collaboration with Aprajita Jha from National Law University and Judicial Academy, Assam.

Decoding Brexit: What’s in it for India?

Reading time: 5-6 minutes.

Boris Johnson, the UK’s new Prime Minister will be dealing with a lot of issues left over by his predecessor, Theresa May. May was forced to resign after the UK’s lawmakers rejected to ratify the Brexit deal that she secured with the EU three times and also failed to agree on any alternative outcome.

At a glance, Johnson’s Brexit plan is simpler than May’s: Get a new agreement with the EU or crash out on October 31 with no deal. Given that the EU has said numerous times that May’s deal, formally known at the Withdrawal Agreement, is not open for negotiation, no deal seems on the cards.

When Parliament returns from its summer holiday on September 3, Johnson could well face a motion of no confidence in his government. It’s a vote that Johnson and his team can’t expect to win. He currently has a parliamentary majority of just one and some of his own Conservative lawmakers have implied they will put blocking no deal ahead of party loyalty.

But why is Britain willing to leave EU in the first place?

Brexit is the abbreviation of the term “Brtiish Exit” from the European Union. It mirrors the term Grexit, a term which was coined and used to refer to the possible exit of Greece from the EU. Britain decided to leave the EU after the result of the referendum which stated that 51.9% of the voters favoured exit of Britain.

A referendum denotes voting in which everyone of voting age can take part, normally giving a ‘yes’ or ‘no; answer to a question. After growing calls from many MPs of the Conservative Party and the UK Independence Party (UKIP), the referendum was finally held on June 23, 2016. A similar referendum was held in 1975 in which 67% of the voters voted to stay in the EU.

While there is no specific reason why Britain took this decision, people who voted for leaving the EU argued that it was necessary to protect the country’s identity, its culture, independence and its place in the world. They essentially were opposed to immigration of people into Britain for work related purpose. The Eurozone crisis added to their resentment.

Which international law is involved in Brexit?

Article 50 is a clause in the European Union’s Lisbon Treaty that outlines the steps to be taken by a country seeking to leave the Union voluntarily. Invoking Article 50 kick-starts the formal exit process and serves as a way for countries to officially declare their intention to leave the EU.

The procedure applies to each of the 28 nations of the EU; “in accordance with its own constitutional requirements’. The first step along the road to departure is for the departing Member State to notify the European Council of its intention to do so. The UK did this on 29th March 2017, after the assent of 498 MPs in the House of Commons. The next step was for the EU to negotiate and conclude a Withdrawal Agreement with the departing state, setting out the arrangements for its withdrawal.

What can be Brexit’s repercussions on Indian economy?

Brexit was one of the biggest global macroeconomic events in June 2016. The decision of Britain shook markets worldwide and had a major economic impact. This was clearly reflected in rebound the Indian stock markets showed post referendum results.

The UK has been an attractive centre of business and international finance due to its strong legal system and contract enforcement practice. India is one of the top investors with UK on account of UK being part of the European Union. With its strong investment climate and relationship with EU, it was considered the gateway to do business in Europe.

Many Indian companies like Rolta, Tata Steel, Bharti Airtel Ltd (UK) have set up operations in the UK and derive revenue from European operations. A no-deal Brexit is likely to cause some disruption in the operations and may also cost a few jobs. Jaguar Land Rover plc, owned by Tata Motors ltd. plans to eliminate 4,500 jobs in response to sales slowdown caused by Brexit and slowing Chinese demand.

Indian companies would need to recalibrate European operations, like setting up an additional operating company within European Union. This means short term disruptions will have a financial impact, as also take up management time. Similarly, Indian companies who have used London as their base to raise capital abroad may face issues and may need to work harder on the process.

Given that this risk has been around for a while, Indian investments in 2017 were at the highest level since 2008. This is partly driven by the depreciation of GBP (British pound sterling) against the rupee post the Brexit vote. Indian companies will need to focus on their merger and acquisition deal efforts across Europe while tackling the British market.

India would also need to negotiate a free trade deal with the UK as it proposes to retain the same goods and services schedules post Brexit. The concessions agreed upon by WTO members’ prior to Brexit may not hold the same value once Brexit happens.

All the additional costs and tariffs agreed upon may need to be rescheduled. India exports around USD 9.6 billion worth of goods and services to the UK. Though there may be other factors looming, Brexit may be another reason why the trade surplus of USD 4.6 billion in 2017 almost dropped by half to USD 2.5 billion in 2018.

The road ahead…

India sees the British exit as an opportunity to expand its trade and economic relations with the UK. British and Indian officials have been signalling that Brexit will make the conclusion of a bilateral free trade pact much easier. This is because Brexit provides a fresh opportunity to India to strengthen its economic relationship with the UK through an India-UK trade and investment agreement.

On the other side, a no deal Brexit and the uncertainty it produces would have many adverse impacts on the Indian economy in general and Indian businesses in the UK in particular. For instance, at present, roughly 800 Indian companies operate in the UK. The UK serves as an entry point for many Indian companies to the European market. A disorderly British exit would shut the direct access of these companies to the EU market. That may force some of the companies to relocate or shut down their businesses.

Finally, the doubt of a no deal scenario and risk aversion tendencies across markets can further depreciate the already fragile rupee. Economists note that the US Dollar would be the only currency that benefits from a hard Brexit and the subsequent uncertainty in global markets. Such an outcome will not only affect the pound sterling but the currencies of emerging markets as well, including the Indian rupee.

A no deal scenario will, therefore, have an adverse impact in the short term. However, in the longer run, Brexit is expected to provide an opportunity to India to reset its trade and economic relations with the UK and the EU.

-This article is brought to you in collaboration with Shivaang Maheshwari from Gujarat National Law University, Gandhinagar.

All You Need to Know About the Kulbhushan Jadhav Verdict

Reading time: 3-4 minutes.

Kulbhushan Jadhav is an Indian name that has been in vogue in the international arena for about 3 years now. International Court of Justice (ICJ) announced its verdict on the Jadhav case today (17th July) in India’s favour. This event raises several questions in our minds like what is the background of this issue? What does the judgement mean? Is Jadhav safe now? This post is an attempt to address these doubts.

Where, how and when did it all start?

Kulbhushan Jadhav is a former officer of the Indian navy. In March 2016, he was arrested by Pakistani agencies which accused him of being “an Indian spy”. They formally informed India about the arrest a few days later. Acting according to international customs, India demanded consular access to Jadhav. Pakistan denied 16 such requests.

Consular access, in essence, means the ability of people to have access to embassy officials of their own country in a foreign nation. The Veinna Convention of 1963 (of which Pakistan is a signatory) allows foreign nationals who are arrested or detained in host countries to have such access. This enables the arrested persons to get legal assistance. By denying the same, Pakistan violated International Law.

Pakistan claimed that Jadhav was arrested in Balochistan, Pakistan. However, India has firmly maintained that he was detained in Iran while on a personal business there. Fast forward to April 2017, a Pakistani military court conducted his trial in ambiguous circumstances and sentenced him to death. Jadhav was found guilty of espionage (gathering confidential information through illicit means) and sabotage (interfering with the national defence of a country).   

What steps did India take to protect its citizen?

India approached ICJ promptly in May 2017 and denied Pakistani claims about Jadhav being a spy. India termed it an “imaginary lie” and asked ICJ to issue an order to Pakistan to release Jadhav. The main argument was that Pakistan denied consular access to Jadhav during his trial and awarded him a death sentence.

India demanded that Pakistan should not be allowed to try Jadhav again even after granting consular access because Pakistani military courts “do not satisfy the standards of due process”. In response to these submissions, Pakistan stated that “Vienna Convention does not apply to spies”. ICJ evaluated all such arguments and gave its judgement in favour of India, which we shall now discuss.

What is the verdict of ICJ?

Salient features of the judgement are:

  • There will be review and reconsideration of death sentence awarded to Jadhav by the military court.
  • India will have consular access to Jadhav. It means that he can be provided with legal assistance.
  • Jadhav won’t be released, but he will get a fair trail as per the constitution of Pakistan.

What is the probable future for Jadhav?

It is clear that Jadhav won’t be released by Pakistan any time soon. However, it is a great relief that ICJ has directed Pakistan to suspend and review his death sentence. He will also get legal assistance from India which means that he has a greater chance of coming home now than earlier.

Renowned Senior Advocate Harish Salve, who fought the tough legal battle for India at ICJ, has stated that Jadhav will be informed about his legal rights. Salve also assured Indians that Jadhav won’t be executed. These developments are definitely a ray of hope for India and we are confident that justice will prevail.