Weekly Roundup: September 12-19, 2016

1. Death Penalty

Two cases this week brought the debate on the death penalty back into the spotlight. In the case of Govindaswamy v. State of Kerala, Govindswamy had been convicted of rape and murder of 23- year-old Soumya. For the offence of murder, he was given the death penalty by the trial court which was confirmed by the High Court. However, on September 15, the Supreme Court acquitted Govindswamy of the charge under Section 302 (for murder) but upheld the charge under Section 376 (for rape). As a result, the death penalty imposed under Section 302 was set aside. He was sentenced to life imprisonment under Section 376.

In Tattu Lodhi v. State of Madhya Pradesh, where the Trial Court and the High Court had imposed the death penalty for the rape and murder of a 7-year-old girl, the Supreme Court commuted the death sentence to life imprisonment without the benefit of release on remission for a period of 25 years. In December 2015, a Constitution Bench of the Supreme Court had upheld the power of the Supreme Court to impose such conditions on release on remission. (See this piece for a brief history of the Supreme Court’s dicta on extended imprisonment as an alternative to the death penalty).

Both decisions raise concerns regarding the continuing arbitrariness in the imposition of the death penalty. When the Supreme Court upheld the constitutionality of the death penalty in Bachan Singh it had restricted the application of the death penalty to only “rarest of rare cases when the alternative option is unquestionably foreclosed.” Therefore, the judgement imposes a very high threshold for the imposition of the death penalty. Given the final and irrevocable nature of the death penalty, if judges disagree not only on whether the death penalty should be imposed but even more fundamentally, on whether the accused had committed the offence in the first place, then questions need to be asked on whether the death penalty is actually being imposed in the rarest of rare cases. Last year, the Law Commission in its 262^nd Report titled ‘The Death Penalty’ comprehensively studied the imposition of the death penalty and found that the judiciary was imposing the death penalty in an arbitrary manner, such that there is little to distinguish the cases where the death penalty is imposed from the cases where it is not. (CLPG directors were part of the drafting committee of this report. CLPG student fellows were research assistants to the drafting committee). The two cases decided this week where judges at different levels have disagreed with each other both on the guilt of the accused and the imposition of the death penalty, only supports the Law Commission’s analysis.

2. Anti-trafficking Bill

The Ministry of Woman and Child Development has drafted a new comprehensive anti-trafficking Bill. The original version of the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016, released in May, had been severely criticised by civil society organizations as inadequate (see e.g., here, here and here). The revised version, as reported, has expanded the definition of trafficking, and now spells out a range of other offences. The new list of offences includes trafficking for the purpose of bonded labour, begging, bearing a child, under the pretext marriage, using as a human shield or child soldiers.

3. Appointment of Judges

Last week we had reported the on-going tussle between the Executive and the Judiciary on the appointment of judges. This week the apex court ordered the Centre to furnish a complete report on the status of 74 names the Collegium had recommended for High Court judgeships, which the Centre did. The Court accepted that the judicial appointments process was “arduous” work and added that “when the names finally come to us [SC Collegium] and when we send them to you, it should not get stuck,”. Furthermore, the Supreme Court on 20.09.2016 dismissed a Public Interest Litigation (PIL) on having a mechanism other than collegium to appoint judges to the apex court and high courts.

4. Personal Laws

Uniform Civil Code (UCC) and Muslim women’s rights have been a popular topical issue. Mary E. John and Hasina Khan have criticised a recent Law Ministry note on this issue and opined that “It is amply evident that the Law Ministry’s note on the UCC does not venture beyond the old desire for uniformity, and barely finds room for equality. This makes it all the more imperative to nurture and to promote alternative perspectives — diverse voices must be empowered to enter public discourse, whether or not the state is ready to listen. After all, the common goal is gender justice, whether it is uniform or plural.”

Muslim personal law has been in the news independently of the UCC issue — because of the PIL filed by Shayara Bano demanding the repeal of unilateral divorce (or triple talaq). In advance of the Centre’s pending affidavit before the Supreme Court, Home Minister Rajnath Singh met with a Group of Ministers last week to formulate the government’s stand on the issue.

5. Access to Knowledge

 In The Chancellor Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services, popularly known as the DU photocopying case, the Delhi High Court dismissed the copyright infringement petition initiated in August 2012 by three publishers (Oxford, Cambridge and Taylor & Francis) against a photocopy shop located in the premises of Delhi University. The Court found the preparing of photocopied course packs to be within the fair use exception to the copyright law. The Court’s broad reading of the fair use exception has been seen as having immense significance for issues relating to access to knowledge. Lawerence Liang has supported the decision for its potentially wide-ranging impact and its bold articulation of the principles of equitable access to knowledge. On the other hand, Prashant Reddy has countered this view and has questioned whether educational use exceptions should be this wide in the age of photocopier machines.

(By Shruti Arora, Student Fellow, Centre for Constitutional Law, Policy, and Governance, NLU, Delhi)