Bombay High Court- Liability of employee is on principal employer #Goodnews


Employment

A ruling by Bombay High Court that should interest labor activists and leftists in general. The court recently ruled that in case an employee faces an accident, it will be the liability of the principal employer, and not the contract employer. The case involved the Bombay High Court deciding that Mahindra and Mahindra Ltd (M&M) would have to pay monetary compensation on the death of a worker who was working for M GM Motors, which in turn was under Mahindra and Mahindra’s contract.

The driver Sureshkumar Parasnath Singh died in accident while working for M G M Motors on behalf of Mahindra. The case, related to the  The Employees’ Compensation Act, should serve as an important milestone for those fighting against the anti worker policies under the neo liberal regime of the Indian state. Recently, there has been a growing trend of hiring contract workers/casual workers, because this allows the corporations to avoid ensuring all worker safety and security regulations. There is a growing buzz that worker laws need to be diluted because it is these “stringent” laws that allegedly are the reason behind India’s lackluster economic performance.

Of course, we cannot forget that despite this Bombay High Court ruling, other courts or even this same court will not think twice about going against this judgment at a later date. That is after all the nature of the sham democracy that corporatized, neo liberal India is. Why, how can we forget that the same Supreme Court which ruled in favor of the gram sabhas (village councils) in their power to decide about mining projects in the Niyamgiri hills region [concerning the preposterous Vedanta project], struck down the opposition voiced against Posco steel project in Odisha?

Even so, the left must use every tool available within the system as long as it is available to increase pressure on corporations like Maruti Suzuki which is going out of its way to penalize workers who were demanding their legitimate right of unionizing and regularization of the large number of casual workers in the Manesar factory. The present ruling may be seen as a milestone in the fight against the dangerous trend of increasing ratio of contract to permanent workers in India.

 

The last rites of sick units


Workers wait long enough to get dues after liquidation proceedings

M J Antony  May 21, 2013 BS 

M J Antony

Winding up an industrial unit is usually followed by a swarm of creditors. Financial institutions have the stamina to withstand the laborious procedures under various statutes. But the lifespan of workers is limited. Their families are crushed under the weight of the institutional creditors. Though various laws give workers primacy in the creditors’ queue, it takes them decades to get their dues.

Early this month, the Supreme Court dealt with a case in which the company closed down in 1992, and litigation over the last rites was going on till now. The story has not ended yet. The 50-page judgment ended thus: “The Bombay High Court judgment is set aside. The Debt Recovery Tribunal and the official liquidator shall proceed further now concerning workers’ dues as indicated in this judgment.”

This case, Bank of Maharashtra vs Pandurang, ascended the judicial ladder to reach the Supreme Court, where it was gathering dust since 2005. Half a dozen statutes had to be trawled and, therefore, a larger bench was necessary. The main question was “whether the claims of workers who claim to be entitled to payment pari passuhave to be considered by the official liquidator or by the tribunal”.

The Court set 12 rules as guidelines for the future. They were largely in favour of workers – putting them at the head of the creditors’ queue. Since the tribunal and the liquidator were reviving the proceedings regarding the workers’ dues after more than two decades, the moot question is how many of the workers would be able to enjoy the benefit of the final order if it was in their favour.

This case is not unique. Many such disputes are still at the Board for Industrial and Financial Reconstruction (BIFR) or the tribunal stages, and have a long way to reach the high courts or the Supreme Court. A few weeks ago, a similar dispute over the claim of workers was decided after a decade. The court ruled that their dues under the Industrial Disputes Act and the Payment of Gratuity Act shall have preference over that of the state financial corporation (Karnataka State Finance Corporation vs Industrial Workers’ General Union). Though the authorities allowed their claims, the labour commissioner, suspiciously, did not take action for a long time and the corporation sold the assets, leading to appeals up to the Supreme Court.

There are several statutes involved in such disputes. Though the Companies Act grants high priority to workers’ claims, Sections 529 and 529A dealing with disbursement of sums from the sale of assets of a failed company are couched in complex clauses, leading to long-winded litigation. Then, there are laws like the Insolvency Actthat have to be taken into account. In the constant tug of war between workers and the secured creditors, courts sway. In one case, Jitendra Nath vs Official Liquidator, the judges were divided 2:1. The Jharkhand High Court gave its judgment in favour of the banks and financial institutions. The workers moved the Supreme Court. It allowed their appeal. Hoping to end such disputes, the Court laid down a four-point formula.

Then, there are laws like the Sick Industries Act, under which the BIFR has been set up. While the board tries to revive sick units, payments of dues are usually suspended till a final decision. The law and its implementation are prone to gross misuse of various kinds, and the Act itself was supposed to give place to a new one. But the old law continues to burden the courts and the parties involved. The shrewd ones manipulate the provisions to their advantage.

Earlier judgments of the court have not put an end to the priority issue. In NTC Workers’ Union vs P R Ramakrishnan, the court had stated that there was an obligation to see that “no secured or unsecured creditors, including banks or financial institutions, are paid before the workmen’s dues are paid”. But this view was seen to have been diluted by a later judgment in the case, Andhra Bank vs Official Liquidator. That judgment stated that an earlier judgment in the case of Allahabad Bank vs Canara Bank did not lay down the correct law and its propositions were at best “stray observations”. The recent judgments show that there are several loose ends to the problems raised in winding up proceedings, amalgamation and transformation.

It is well known that there is a general dilution of labour laws in recent decades. The old and existing laws have not received a second look for long – either due to other preoccupations like rushing to the well of the Houses, or as a result of malign neglect. The fluctuating judicial decisions regarding workers’ dues when an industrial unit closes down add to their woes.

source-

 

Manipur encounter deaths show pattern of carelessness, says Supreme Court #AFSPA


J. Venkatesan, The Hindu

Centre assures Bench that it will come out with dos and don’ts for security forces

The Centre on Tuesday informed the Supreme Court that the Cabinet Committee on Security (CCS) headed by Prime Minister Manmohan Singh would take a decision on the expert committee report holding that seven persons were killed in Manipur in fake encounters in six cases.

 

Additional Solicitor General Paras Kuhad submitted this before a Bench of Justices Aftab Alam and Ms. Ranjana Desai hearing a public interest writ petition highlighting how mass killings had taken place in the last decade. The committee comprised the former Supreme Court judge, Justice N. Santosh Hegde, the former Chief Election Commissioner, J.M. Lyngdoh, and the former DGP of Karnataka, Ajay Kumar Singh.

 

Justice Alam told counsel: “We can’t tell you how sorrowful we are. What is the use of sitting here? Everything appears meaningless.” The committee, in its report, said six cases of encounters resulting in the killing of seven persons were fake and the victims did not have any criminal background. The committee also reportedly recommended withdrawal of the Armed Forces (Special Powers) Act (AFSPA).

 

‘No respect for human lives’

 

The Centre also assured the court that it would come out with “dos and don’ts for the security forces” and sought four weeks for responding to the report. When senior counsel V. Giri, appearing for the Manipur government, wanted the court to lay down guidelines on this issue, the Bench observed: “How many times this court laid down guidelines. Tragedy is guidelines are not followed. We want to proceed further and these things should not happen in future. These deaths reveal a pattern of carelessness. No respect for human lives.”

 

The Bench said, “Security forces are also human beings, away from family. They also get brutalised. These people are also young and in the midst of violence. They also don’t lead a normal life.”

 

NHRC suggestion

 

In its response to the committee’s report, the NHRC said: “To ensure that all such incidents in the future are thoroughly investigated, irrespective of whether they involve the Army, the paramilitary or the police, or are joint operations of these forces, the Government of Manipur must follow the NHRC guidelines on the steps to be taken after encounters.”

 

Detailed enquiries

 

The steps are: reporting these incidents within 48 hours to the NHRC and holding magisterial inquiries within three months. These enquiries should not be perfunctory, as they presently are.

 

The magistrate must inter alia closely examine all reports, including of post mortem, inspect the site and take statements from the families of the victims; the CBCID should inquire into each incident within two months.

 

“In every instance where the nature of the incident warrants it, the Government of Manipur should appoint a Commission of Inquiry headed by a judge. It must accept the findings and act on the recommendations of these commissions, instead of burying them, which is its current practice. The constitution of such a Commission of Inquiry must immediately be reported to the NHRC, and the report sent to it as soon as it has been tabled in the Legislative Assembly.”

 

The Bench adjourned the hearing by four weeks.

 

Six encounter cases in Manipur not genuine: Panel to SC


New Delhi, April 4, 2013, Agencies

 

A Supreme Court-appointed committee probing six cases of alleged extra-judicial killings in Manipur informed the court on Thursday that these were not genuine encounters and the victims, including a 12-year-old boy, did not have any criminal records.

A bench comprising Justices Aftab Alam and Ranjana Prakash Desai perused the committee’s report which said none of the six cases qualify as encounters and they are fake.

The committee, comprising of former Supreme Court judge Santosh Hegde, ex-CEC J.M. Lyngdoh and a senior police officer, has said in its report that the probe showed that none of the victims had any criminal records.

The bench said the report makes it clear that the guidelines on encounters laid down by the apex court in the Naga People’s Movement case was not followed.

Appropriate directions will be passed on the basis of the panel’s report on April 9, it said.

The Supreme Court on January 4, had decided to appoint the committee to hold an inquiry into the alleged fake encounter killings in Manipur.

The panel was set up to probe six cases of alleged extra- judicial killings in the Northeast State where a magisterial inquiry had raised questions on genuineness of the encounters.

The apex court had appointed the panel on a PIL filed by an association of the families of the alleged victims, seeking setting up of a special investigation team and direct inquiry into around 1,528 such cases.

The association had alleged in its plea that over 2,000 odd extra-judicial killings have taken place in the State, but no one has been held guilty till date.

It had alleged that innocent people with no criminal records have been killed by security forces and no proper investigation has been done in such cases.

The apex court while deciding to form the panel had said, “Magisterial inquiry does not inspire confidence as it is not satisfactory and none, including the Army personnel, appeared before it.”

It had, however, turned down the plea for SIT probe and also refused to go into the legality of Armed Forces (Special Powers) Act which grants special powers to the security personnel in disturbed areas.

On July 4, 2012, the apex court had agreed to hear a similar plea for probe into alleged extra-judicial killings by BSF in the border area of West Bengal.

In that case, petitioner Bangla Manabadhikar Suraksha Mancha, a Kolkata-based NGO, had alleged that there are more than 200 cases where BSF personnel indulged in extra-judicial killings and torture in the border area and those cases were never probed by the state police.

The NGO had alleged that instead of registering FIRs against the BSF personnel, these were registered against the deceased and the cases were closed on that basis.

Ardent Atmosphere Prevails In Manipur Over Probe Into Extrajudicial Killings #AFSPA


Acknowledging the positive response of Supreme Court towards the families of the victims of extrajudicial executions, family members and human right activists in Manipur are hoping that upcoming independent probe will deliver a long denied justice, and expose the harsh truth of summary killings of innocent and unarmed victims

RK SURESH, Tehelka 

March 4, 2013

The independent probe team led by former SC Justice Santosh Hegde, former Chief ECI JM Lyngdoh and retired Karnataka DGP Ajay Kumar reached Imphal on Saturday

In Manipur, families of over 1500 victims of extrajudicial execution are eagerly awaiting justice as the SC appointed Inquiry Committee reached Imphal on Saturday to begin probe into the summary executions of seven unarmed civilians. The independent probe team led by former SC Justice Santosh Hegde, former Chief ECI JM Lyngdoh and retired Karnataka DGP Ajay Kumar reached Imphal on Saturday amid an ardent tone among the public who are eager to find out the truth about 1528 cases of reported fake encounter killings. Laishram Gyaneshori, President of Thangmeiband Women Society observed, “We have been demanding justice for a long time; my appeal to the new probe team is to expose these cruel army personnel and police commandos who have slaughtered our sons.”

Acknowledging the positive response of Supreme Court towards the families of the victims of extrajudicial executions, family members and human right activists are hoping that upcoming independent probe will deliver a long denied justice, and expose the harsh truth of summary killings of innocent and unarmed victims. Ningthoujam Neena Devi, one of the petitioners who filed the PIL on behalf of over 2000 bereaved families said, “My only wish is to let the world know how innocent people in Manipur are reeling under critical human right violations. I have already lost my faith in the system, so I am hoping that humanity itself will save further loss of innocent lives.”

Expressing strong doubts against the credibility and intentions of security personnel engaging in CI Ops in the state, a Supreme Court bench led by Aftab Alam on January 4 had ordered an independent probe in the alleged killings of Chongtham Umakanta, Elangbam Kiranjit, Akoijam Priyobrata, Kh Orsonjit, Phisubam Md Azad and cousins Nameirakpam Nobo and Nameirakpam Gobin. In revealing information from fact finding NGOs, there seemed to be serious doubts on the authenticity of report filed by the security force about the encounter killings of Elangbam Kiranjit and Chongtham Umakanta. According to findings of the respective district magistrates, both murders were committed at the same place and under same circumstance to another established fake encounter of L Satish. According to post mortem reports, both victims had severe torture marks which were perpetrated before shooting them. Even the Supreme Court seemed to have similar views on the rest of the victims in the six cases to be probed. “How can a 12 year old be a terrorist?” was the remark of Justice Ranjana citing the killing of Md Azad on 4 March 2009. Substantiating doubts, Azad’s teacher at thePhubakchaoHigh Schoolwho witnessed his student being gruesomely murdered said, “I saw Azad being pushed and kicked at back by the commandoes and dragged to the paddy field in full view of half the villagers. In a shocking turn of event, two of the police commandos who were standing behind fired at the boy when he begged for his life with folded palms. The boy began writhing violently from the bullet shots. It was extremely painful to watch so shouted at the police to stop. In response, the police commandos fired another shot at the boy after which the writhing ceased.” More than a dozen people claimed that they saw the ruthless killing of the child by security personnel.

An ardent atmosphere prevails within and outside Manipur with high expectations to find out the facts about the existence of state sponsored genocide in the name of counter insurgency. Right now, Manipur is in chaos where human lives have no value; we are falling into a deep abyss of darkness and fear. As a mother, I strongly appeal the concerned authority to save our children and future generations from this futile slaughtering,” appealed Soibam Momon, the co-convenor of Sharmila Kanba Lup. For people like Kh Lata, mother of Kh Orsonjit, positive feedback from the SC has given hope of fulfilling justice which was denied for all these years. Lata Devi expressed, “I always knew that my son was innocent, but my plea for justice have been ignored by the government and all concerned authority till now. My 19 year old son was a mere supplier of generator fuel for Tata Indicom Towers; the police tortured and killed him for the money he was carrying.”

In the hearing on January 4, the SC also assured to probe the validity of AFSPA, while conveying its cognizance against the extrajudicial impunity of security forces in Manipur. A public notice issued by the Secretary of the Inquiry Committee, PS Moorthy also urged willing individuals to file their affidavits to corroborate previous cases of extrajudicial executions and other excess acts of the armed forces under AFSPA by evening of 3 March. In this regard, RTI activist and Chairperson of HRI, Mr Joykumar expressed discontentment over the short duration given by the commission for submission of affidavits. HRI Chairman also sought a special witness protection policy from the concerned central authority, so that more petitioners can file their affidavits without apprehension. Judging from the information received so far, Joykumar’s observation seemed to be reasonable even as 32 writ petitions have been filed to the commission on behalf of the security personnel involved, while only seven affidavits have been received from the victims’ side till filing of this report.

Meanwhile, more than a dozen woman activists, family members and kins of many victims have also filed affidavits on Sunday to re-open investigation into the killings of their loved ones by security personnel under suspicious circumstances. Among the petitioner was young Yumnam Abhisek who lost two of his brother, Yumnam Inaocha in 1997 and Yumnam Bhumi in 2005.

Activist and President of All Manipur Khunai Kanba Lup (AMKIL) Phanjoubam Shakhi Devi  stated, “A boy was snatched from his mother’s arms at the dead of the night and then beaten to an inch of his life, while the mother and the victim’s brother watched helplessly. Then he was shot at the courtyard in front of their eyes; such is the madness.”

Mutum Ibemhal, another petitioner added, “I have seen many inquiries and investigations, but till now we have not heard those criminals in uniforms being punished according to law. But this time, I am hoping that justice will be served. Therefore my humble request to the three member commission is to expose nothing, but the truth that we have been witnessing so that the security personnel are given appropriate punishment.”

Meanwhile, apprehension still runs high among many people about the upcoming independent probe. One such individual, Thokchom Ramani Devi, the General Secretary of the All Manipur Social Reform and Development Samaj expressed strong doubts that justice will be served citing many previous inquiries where hundreds of security personnel were convicted of summary killings, rapes and other human rights violation, but it is yet to confirm whether they were punished or not.

“In the name of AFSPA and other black laws, the security forces has committed extreme crimes like the forced disappearances of Yumlembam Sanamacha, Rajkumar Lokendro. A woman was raped in front of her paralysed husband and another tribal lady was raped in full view of her in-laws. These are pure facts and there were witnesses, but nothing was done against the culprit. Many inquiries have been done and concluded and I highly doubt the upcoming independent probe will be fruitfull,” said Thokchom Ramani.

It may be mentioned that the SC bench led by Justice Aftab Alam was instrumental in booking the culprits involved in Ishrat Jehan fake encounter killings during the 2004Gujaratriot. In a hearing on December 6, 2012, the bench led by Justice Aftab Alam and Ranjana Prakash Desai had already acknowledged that the situation in Manipur is not normal and that a probe is needed into various encounter killings in Manipur. An earlier ruling from the special bench had also rapped the attitude of the Union Home Ministry and the CM Ibobi Singh led Manipur Government on the unabated allegations of extrajudicial killings, while raising serious concern on the futility of the National Human Rights Commission to provide any information.

 

 

Executing the Mentally Retarded: The Night the Lights Went Out in Georgia #mentalhealth


FEB 13 2013, 11:54 AM ET
The justices of the U.S. Supreme Court have an opportunity to reinforce their historic ruling banning capital punishment for criminals with low IQs. They should take it.

supremeswoundedban.jpg

Reuters

The story of Warren Lee Hill, which is poised to reach its apex next week, is really the story of how vast the gulf is sometimes between the lofty pronouncements of the United States Supreme Court and the manner in which lesser functionaries of law and justice implement the letter and the spirit of those pronouncements. For in the case of Warren Lee Hill, we see nothing less than the state-sanctioned defiance of a recent Supreme Court mandate: Thou shalt not execute the mentally retarded.

Hill is a capital inmate in Georgia, long ago convicted of murder, who is scheduled to be executed next Tuesday. This is happening, at least for now, because Georgia officials have come up with a way to satisfy themselves that Hill is not mentally retarded. They have accomplished this psychological miracle by enforcing a restrictive state law which makes it virtually impossible for any capital defendant to ever prove his or her mental retardation. And they say they are entitled to apply this law because the Supreme Court said so.

Georgia is pressing ahead with the execution even though Hill’s lawyers have proven beyond a reasonable doubt that, with an IQ of 70, he has “significantly subaverage intellectual functioning.” The state is pressing ahead because Hill’s lawyers were only able to prove by a preponderance of the evidence that Hill’s mental retardation caused “impairments in adaptive behavior which manifested during the developmental period.” Not good enough, say Georgia officials. The second part of the test also must be proven beyond a reasonable doubt.

This is in conflict with the Supreme Court’s 2002 pronouncement, in a case styled Atkins v. Virginia, that the execution of mentally retarded murderers violated the Eighth Amendment’s prohibition against “cruel and unusual punishment.” Aware of the growing national consensus against such executions, and mindful of the rule that the Supreme Court must by obeyed, the state has gotten around the problem simply by claiming that Hill is not mentally retarded.

It’s one thing to require the state to prove the elements of a crime beyond a reasonable doubt. It’s another to require a mentally retarded individual to save his own life by applying such a standard.

Filing their briefs, Hill’s lawyers late last week asked the Supreme Court justices to spare their client and, in so doing, to fortify their ruling in Atkinswith blunt new language that requires officials in states like Georgia to give meaningful effect to the new constitutional prohibition. The justices should rush to embrace this desperate request. A right without a remedy is no right at all. And what Georgia — and other states — have done sinceAtkins is deny men like Hill (and Marvin Wilson, executed last summer in Texas despite an IQ of 61) the remedy they deserve.

Atkins v. Virginia

The Supreme Court did something in Atkins v. Virginia which it does too often in close cases — which, in fact, officials throughout the ages have done too often: It came up with a neat compromise that left for a future day the true ramifications of its choice. While it announced a ban against the execution of the mentally retarded, at the very same time, it gave recalcitrant states a map to getting around the ban. The broad stroke was widely hailed as a great victory for human rights, but the details doomed men like Marvin Wilson — and perhaps Warren Lee Hill as well.

The justices who signed onto the majority ruling in the case were acutely aware in Atkins that, by leaving the key question to the states, they would enable officials in some jurisdictions to continue to execute mentally retarded defendants whom other states would spare. Justice John Paul Stevens wrote:

To the extent there is serious disagreement about the execution of mentally retarded offenders it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, “we leave to the State[s] the task of developing ways to enforce the constitutional restriction upon its execution of sentences.”

In other words, the court in Atkins was ready to extend full Eighth Amendment protection in “easy” cases of mental retardation, but not in “hard” cases where there might be “serious disagreement” between experts about the level of retardation. This cop-out was part of the ruling, even as the court acknowledged that “some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.” Justice Stevens continued in this vein:

Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.

Despite its grand constitutional claim, Atkins allowed states to continue to manipulate the results of “close” capital cases of mental retardation by trotting out their medical experts and their psychiatrists, in order to conclude that the condemned was not so mentally retarded as to fall within the protections of the Eighth Amendment. This scenario resulted last year in theshocking execution of a Texas man “who could not handle money or navigate a phone book, a man who sucked his thumb and could not always tell the difference between left and right, a man who, as a child, could not match his socks, tie his shoes or button his clothes.”

To its eternal shame, placing federalism above core protections in the Bill of Rights, the Supreme Court turned its back on Marvin Wilson, that man in Texas. It should not turn its back on Warren Hill. By requiring him to prove his mental retardation beyond a reasonable doubt, and by dismissing the substantial proof of retardation he did establish, Georgia took cynical advantage of the court’s deference in Atkins. The Supreme Court should put to right this ongoing injustice. It should no longer countenance such continuing disrespect.

Hill v. Humphrey

Georgia argues in this case that the Supreme Court should just leave it alone. It argues that what its officials have done in the Hill case — the many hearings, the many layers of appellate review, the culling of experts on the topic of Hill’s mental status — is precisely the sort of due process the justices in Atkins intended for them to undertake. Georgia’s relevant mental evaluation standards are quite liberal, the state lawyers argue, especially in comparison with those of other states. “Georgia’s burden of proof as to claims of mental retardation is not unconstitutional,” the state bluntly told the court.

And then Georgia reminded the justices of the oversight scenario they had purposefully chosen to avoid in Atkins: creating a national constitutional rule that would protect individual defendants, but that would also run into the types of federalism concerns that so disturb this Supreme Court. Even if the court “chooses to retract that portion of Atkins leaving the task of developing procedures to the States,” the state lawyers wrote, “this Court will be in the position of setting out detailed guidelines to ensure what it deems constitutional is met as there are many variables in each state’s statute.”

Hill’s lawyers aren’t asking the Supreme Court to force Georgia to roll over. They instead are asking the justices to issue a ruling that ensures that no state may require a capital defendant to prove his or her mental retardation using the most onerous “reasonable doubt” standard. The “substantive protection” the court promised in Atkins, the defense argues, is “eviscerated” by a uniquely harsh state law with such a requirement. “Georgia stands alone among American jurisdictions,” Hill’s lawyers write, “in denying the protection of Atkins v. Virginia to capital defendants who probably have mental retardation in fact.”

The heart of their case — and perhaps the best argument against the cruelty of the Georgia statute — is that the nature of these psychological cases makes it easy for a prosecutor to generate “reasonable doubt” of mental retardation simply by offering up an expert who will cast that doubt. “Because of the detail and complexity of the information and expert judgments that enter into the diagnostic process,” Hill’s lawyers remind the court, “a prosecutor can almost always hope to fashion some argument for reasonable doubt if the issue goes to trial — particularly in the context of an ugly crime.”

It’s one thing to require the state to prove the elements of a crime beyond a reasonable doubt. It’s another thing to require a mentally retarded individual to bear the burden of saving his own life by such a standard. Justice Sonia Sotomayor, the only former trial judge on the court, surely will appreciate that distinction. Whether Justice Anthony Kennedy does as well will likely determine Hill’s fate. It was Justice Kennedy who voted for the Atkins ban and who also wrote the opinion in the more recent ban on the execution of juvenile murderers. He’s the critical fifth vote Hill would need, both to stay the execution and to extend the promise of Atkins.

The problem isn’t going to solve itself. And the Supreme Court is the only means of help. The Georgia Supreme Court, Hill’s lawyers assert, “has already made its intentions clear: it will not disturb the reasonable doubt standard in mental retardation cases ‘unless the Supreme Court or the United States so requires at some future date.'”

That day is here. If it is not Hill it will be another man, in another state, who is mentally retarded but unable to prove so to the satisfaction of a state judge because of some arbitrary legal standard. There is no standing still on Atkins. The court must either go forward or go back. And it must do so quickly.

 

#India – Madras High Court Bench saves paranoid schizophrenia patient from execution #mentalhealth


      MOHAMED IMRANULLAH S. , The Hindu , Jan 12,2013
          Sets aside his conviction and orders treatment at Institute of Mental Health

The Madras High Court Bench here on Friday came to the rescue of a person suffering from paranoid schizophrenia and saved him from facing the gallows as ordered by a lower court.

The individual R. Maruthu alias Maruthupandian had beaten to death two women and three men with a log at Melachivapuri village in Ponnamaravathy Taluk of Pudukottai district on June 19, 2009.

Disposing a criminal appeal filed by him along with a statutory reference made by the trial court, a Division Bench of Justice M. Jaichandren and Justice S. Nagamuthu set aside the conviction as well as capital punishment imposed on him by the Mahila Court in Pudukottai district on January 23, 2012.

The Bench held that a person of unsound mind could not be convicted for any offence.

The judges also disagreed with the trial court’s conclusion that the appellant was only pretending to be suffering from paranoid schizophrenia.

Referring to the medical evidence as well as statements made by the prosecution witnesses before the trial court, they said that there was overwhelming evidence to prove that he was suffering from the mental disorder for long.

The judges directed the Superintendent of Tiruchi Central Prison to release the appellant forthwith.

However, apprehending that he might be a potential danger to others if allowed to go scot-free, they invoked Section 24 of the Mental Health Act and ordered his detention at the Institute of Mental Health at Kilpauk in Chennai for safe custody and treatment.

Writing the judgement for the Bench, Justice Nagamuthu pointed out that the appellant, a native of Melachivapuri, was married five years before the five murders took place and migrated to Tiruppur. But his wife deserted him. His parents too refused to take care of him. Alienated and alone, he turned to narcotic drugs and liquor.

After a few years, he returned to his native place and struggled to make both ends meet.

“Even to meet his every day expenditure, he had no money. He used to seek monetary help from the villagers for food. Virtually, he was begging and therefore, the villagers did not respect him. Obviously, he was suffering from mental illness,” the judgement read.

Considering him a nuisance, the villagers forced him onto a bus bound to Tiruppur on June 8, 2009. However, he jumped out of the vehicle after travelling some distance and returned to his village, much to the dismay of many.

On the day of the incident, he was infuriated at the villagers and began attacking people at random.

The rage resulted in the death of five.

Though the facts clearly establish that the appellant was suffering from a mental disorder even before the killing occurred, the trial court had refused to give credence to them for the sole reason that the appellant admitted killing the five individuals when questioned by a police officer immediately after the incident. The court was of the view that a mentally unstable person would not admit his offence.

Stating that it was unable to agree with the findings given by the trial court, the Division Bench held that the act of the accused of killing the villagers was not an offence as it squarely fell within the exemption under Section 84 of the Indian Penal Code.

The Section states that no act committed by a person of unsound mind could be termed as an offence punishable under law.

 

 

#India- To hell with modesty- #Vaw #Law #Patriarchy


TO HELL WITH MODESTY

The vocabulary of sexual assault framed in the 19th century still persists in the IPC

KIM ARORA TIMES NEWS NETWORK , Jan 19,2013

Language is seldom value-neutral. It is more like a looking glass that shapes perceptions, creates moral codes and tells us who we are and what we stand for or against. The vocabulary of sexual assault, as laid down in the Indian Penal Code and used in the courtroom, is no exception. Not only does it betray a lack of empathy for the victim but also shows distinct gender insensitivity and the influence of patriarchy.
Take for instance the use of the word, modesty, in legal parlance. Section 354 of the IPC criminalises “assault or criminal force to woman with intent to outrage her modesty.” The Oxford English Dictionary (2005) defines modesty as “dressing or behaving so as to avoid impropriety or indecency, especially to avoid attracting sexual attention”. In other words, any woman dressed “immodestly” is part of the problem because she seems to be attracting attention. Incidentally, the word “modesty” does not appear in the law specifically pertaining to peno-vaginal penetrative sexual assault, but in those concerned with molestation and sexual harassment. Section 509 of the IPC penalises “Word, gesture or act intended to insult the modesty of a woman.”
Activist lawyer Madhu Mehra of Partners for Law in Development (PLD) insists that “language is not an innocent side issue; rather, it is the way we adjudicate and perceive rape victims.” PLD has made a submission to the Justice Verma Committee raising the issue of the vocabulary of the country’s rape laws. Adds Dr Ranjana Kaul, lawyer and member of the Delhi Commission for Women, “The language currently used in our statute is terribly Victorian and patriarchal. It looks at ‘modesty’ as something to be guarded. There is an utmost urgency to give clarity to what sexual assault means.”
The language goes back to 1860 when the Indian Penal Code drafted by Lord Macaulay came into practice. Though the IPC has been amended countless times since, the immense concern with a woman’s private sexual conduct remains. And it seems that on the issue of women’s sexual autonomy, present-day Indian jurisprudence is in agreement with the 19th century British administrator and the era he belonged to. Judges through the decades have tried wrapping their heads around the issue, without once coming up with the idea of formally acknowledging that not just the word, but the entire concept of sexual “modesty” is outdated.
Consider this. Back in 1966, while hearing a case of a penetrative assault on a seven month old, the then Chief Justice of India A K Sarkar made some interesting observations. The accused was being tried for “outraging the modesty of a woman” under section 354, and not rape. The judgment, eventually passed in the favour of the prosecutor, had the following remarks by Justice Sarkar: “I do not think a reasonable man would say that a female child of seven and a half months is
possessed of womanly modesty. If she had not, there could be no question of the respondent having intended to outrage her modesty or having known that his act was likely to have that result. I would for this reason answer the question in the negative.”
How the lack of “womanly modesty” nullifies the violence of an assault is a point that Justice Sarkar neglected to make. He did, however, make one allowance for the women of India. “If it is proved that criminal force was used on a sleeping woman with intent to outrage her modesty, then the fact that she does not wake up nor feel that her modesty had been outraged would be no defence to the person doing the act. The woman’s reaction would be irrelevant in deciding the question of guilt,” he added in the judgment.
Fast forward to March 2007. The apex court of the country made an observation that set a precedent for codifying women’s sexual behavior and autonomy within the legal system. A Supreme Court bench comprising Justices Arijit Pasayat and S H Kapadia ruled: “The essence of the woman’s modesty is her sex”. Critics say this observation only reinforces objectification of women. Says Madhu Mehra, “Modesty has nothing to do with a woman’s sex. This reduces her personhood to a sexual characteristic.”
The much talked about Ruchika Girhotra case dragged on for over two decades in various courts. The 14-year-old Ruchika was molested by a senior police officer in Panchkula. After three years of criminal intimidation, systematic physical torture of her brother and threats of violence followed by her complaint, the young teenager ended her own life. Everything Rathore did was covered under “outraging the modesty of a woman” for which he was convicted. The 2010 Punjab Haryana High Court judgment in relation to the case goes so far as to point to the exact moment when the young victim’s modesty was outraged. “The other act of the petitioner of encircling the waist and holding one hand of Ms. Ruchika and pushing her towards his chest is enough to conclude that her modesty had been outraged at that moment itself.”
As of now, the Criminal Law Amendment Bill still retains the word “modesty”. “Whoever has drafted these laws has no knowledge of feminist jurisprudence,” says lawyer Vrinda Grover. Until that comes about, the women of India will have to guard what the courts deem to be their “honour”.

WORDY AFFAIR: Victorian phrases in IPC are at odds with today’s India. (Above) girls at Slutwalk in Delhi last year

 

#India “Rarest of rare principle has not been followed uniformly.”Justice A.P. Shah #Deathpenalty


V. VENKATESAN, The Frontline

Interview with Justice A.P. Shah, former Chief Justice of the Delhi High Court.

SHANKER CHAKRAVARTY 

“Rarest of rare principle has not been followed uniformly,” says Justice Ajit Prakash Shah. 

Justice Ajit Prakash Shah, former Chief Justice of the Delhi High Court, was one of the 14 former judges who sent an appeal to President Pranab Mukherjee to commute the sentences of nine death-row prisoners whom the Supreme Court admitted that it had erroneously sentenced to death. In this interview, he explains the significance of the Supreme Court’s judgment in the Sangeet case.

The Supreme Court has, for the second time (first time was in Swamy Shraddananda II), reiterated in ‘Sangeet’ that ‘Machhi Singh’ is inconsistent with the ‘Bachan Singh’ judgment and that many Supreme Court Benches had erroneously decided death penalty cases applying ‘Machchi Singh’ principles. How serious is this finding and how can the Supreme Court correct its error?

First, it is important to understand what was decided in the Bachan Singh judgment. The court identified the two issues to be decided as (i) whether the death penalty provided under Section 302 of the IPC [Indian Penal Code] is constitutional and (ii) whether the sentencing procedure provided for in Section 354(3) of the CrPC [Code of Criminal Procedure] gave the court unrestricted and unguided discretion, thereby allowing death sentences to be arbitrarily imposed.

With regard to the first issue, the majority ruling in Bachan Singh dismissed the challenge that the death penalty was unconstitutional, in violation of Articles 14, 19 and 21.

While answering the second issue, the court held that the normal rule is that the offence of murder shall be punished with a sentence of life imprisonment. However, the court can make a departure and impose the sentence of death only if there are special reasons for doing so and such reasons must be recorded in writing. The court laid down that not only the relevant circumstances of the crime should be factored in, but due consideration must also be given to the circumstances of the criminal. The concluding paragraph in the majority opinion in Bachan Singh limited the death sentence to the “rarest of rare cases” which showed the exceptional nature of the death penalty that Parliament had envisaged under the Criminal Procedure Code.

Thereafter, the Supreme Court gave the judgment in Machhi Singh’s case, where the Bench (of three judges) upheld three death sentences. This decision was seen by many as one supporting the death penalty since it appeared to expand the “rarest of rare formulation” beyond the aggravating circumstances in Bachan Singh to cases where the “collective conscience of a community may be shocked”. It further held that a “balance sheet of aggravating and mitigating circumstances” had to be drawn up and a just balance had to be drawn between the aggravating and mitigating circumstances.

The recent decision in Sangeet’s case criticises the decision of Machhi Singh by stating that aggravating and mitigating circumstances are two distinct and different elements and cannot be compared with each other. A balance sheet cannot be drawn up of two different constituents of an incident. In fact, this particular formulation was not accepted in Bachan Singh. Sangeet’s decision clearly notes that the rarest of rare principle has not been followed uniformly or correctly. Nevertheless, the balance sheet theory is still being applied by several courts, post Machhi Singh.

Earlier, the decision in Swamy Shraddananda’s case also criticised the theory laid down in Machhi Singh by holding that the balance sheet of aggravating and mitigating circumstances approach invoked on a case by case basis has not worked sufficiently and has therefore failed to remove the vice of arbitrariness from our capital sentencing system. The Bachan Singh threshold of the rarest of rare cases has been applied most variedly and inconsistently by various High Courts as well as the Supreme Court. It appears that even though Bachan Singh intended “principled sentencing”, sentencing has now really become “judge-centric”.

In this context, it is important to refer to Justice [P.N.] Bhagwati’s dissenting judgment in Bachan Singh where he said that when a judge is called upon to decide whether an accused should be killed or permitted to live, his conclusion would depend to a large extent on his approach and attitude, his predilections and preconceptions and his value system and social philosophy. This renders the imposition of the death penalty arbitrary and capricious.

Now the only way to correct these contradictions and inconsistencies amongst different Benches is to refer the matter to a larger Bench. We must also be mindful of the changing global trends where most countries have abolished the death penalty in law or practice. As of June 2012, a total of 141 nations (which constitute over two-thirds of the countries in the world) had abolished the death penalty in law or practice. Europe is most death penalty-free, while in the Americas only some Caribbean states and the United States use the death penalty. Of the 54 countries in Africa, 38 are abolitionist in law or practice. Central Asia and the Pacific region are also death penalty-free.

‘Sangeet’ has also found that the ‘Ravji’ precedent was wrongly followed in more cases after ‘Bariyar’ first discovered it in 2009. You wrote an appeal along with 13 other judges pleading commutation for 13 convicts, the sentences of four of whom have been commuted already. Would you suggest that the five new convicts identified in ‘Sangeet’ also must get commutation?

In giving the solution of the rarest of rare cases for imposing the death penalty, the five-judge Bench of the Supreme Court gave sufficient weight to the mitigating circumstances of the crime and the criminal. However, the decision in Ravji, which was decided by two judges, held that it is the gravity of the crime and not the criminal which is relevant to decide the appropriate punishment. Thus, the decision in Ravji was in direct conflict with Bachan Singh. The court in Bariyar’s case noticed the conflict in these two decisions and held that seven of the decisions of the Supreme Court awarding death sentence were rendered per incuriam.

However, even after the decision in Bariyar, the courts still followed the precedent in Ravji’s case. Clearly, the two prisoners inRavji’s case who were wrongly sentenced to death were executed as a result of these flawed judgments, constituting the gravest known miscarriages of justice in the history of independent India. Therefore, it is extremely important and necessary that in order to prevent such miscarriages of justice, the five new convicts identified in Sangeet’s decision must also get commutation.

It appears that even the Kasab case was wrongly decided by the Supreme Court, applying the ‘Machhi Singh’ principle. Justice Aftab Alam, who wrote the judgment in the Kasab case, also wrote the three-judge Bench verdict in ‘Swamy Shraddananda II’ in 2008, which had held that ‘Machhi Singh’ conflicted with ‘Bachan Singh’. Your comments.

It was admitted by the judges in Swamy Shraddananda’s decision that the death penalty was not free from the subjective element and the confirmation of death sentence and its commutation by the Supreme Court depended a lot on the personal predilection of the judges constituting the Bench. The 2007 decision in Aloke Dutta’s case also expresses helplessness after noticing that different criteria have been adopted by different Benches of the Supreme Court where offences were similar in nature. No sentencing policy in clear-cut terms has been adopted by the Supreme Court. Amongst these varying decisions, one can witness several disturbing trends. There have been instances where similarly placed accused in identical circumstances in the same case have been given different punishments of life imprisonment and the death sentence because they had gone before different Benches. This was seen in the 1982 decision in Harbans Singh.

Also, there is a time-honoured principle of not confirming the death penalty if one of the judges on the Bench or any of the lower courts had either acquitted the accused or sentenced him to life imprisonment. However, in Krishna Mochi (2002) and again in Bhullar (2002), the Supreme confirmed the death sentences despite one of the judges on the Bench having acquitted the accused. In Kheraj Ram (2003) and Satish (2005), the Supreme Court imposed the death sentence on persons who had been acquitted by the High Courts. Justice Bhagwati pointed out that “judicial ad hocism or judicial impressionism dominates the sentencing exercise and infliction of death penalty suffers from the vice of arbitrariness”.

There are some death penalty cases decided by the Supreme Court which do not directly cite ‘Machhi’ or ‘Ravji’, but nevertheless adopt the approach followed in those cases. How do we correct these flaws?

These decisions may not cite Machhi or Ravji, but they do follow them in principle, making them equally flawed as Machhi andRavji. In these cases also, the death sentences are liable to be commuted to life imprisonment.

What is the significance of the term per incuriam? ‘Sangeet’ does not use this term, but will its findings, if applied, make those cases that adopted the ‘Ravji’ and ‘Machhi Singh’ principles per incuriam?

The expression ‘per incuriam’ means decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some binding judicial precedent. Although the decision in Sangeet does not use the term per incuriam, Sangeet clearly mentions that the principles laid down in Machhi and Ravji are inconsistent with the decision in Bachan Singh, which was given by a larger Bench. Therefore, due to this observation in Sangeet, the decisions in Machhi and Ravji are rendered per incuriam.

Do you support a moratorium on death sentences in view of these flaws in death sentencing?

Until the time there is a relook on this issue by a larger Bench, there should be a moratorium on death sentences. Justice Bhagwati rightly pointed out in Bachan Singh that the decisions of a judge regarding the imposition of the death penalty were based on several factors that were specific to the judge, including his personal predilections. The decision of the South African Constitutional Court in S. vs Makwanyane also holds that at every stage of process, there is an element of chance and the outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and attitude of the trial judge as well as the appellate judges, and lack of financial means to engage seasoned advocates. The decision admits that it is difficult to lay down a system which is perfect and avoids arbitrariness completely.

In this regard, it is also relevant to refer to the American experience with imposition of the death penalty. Three judges in the case of Gregg said that the death penalty experiment had failed and that the death penalty experiment was a discredit to the law because of its arbitrary and unprincipled use.

Should a commission be set up to identify flawed death sentences?

In the context of the interpretation of Section 27 of the Evidence Act, the Privy Council overruled the decision of the Madras High Court in Goundan’s case. Since a large number of prisoners were executed and many more were facing the gallows because of the interpretation of Section 27 in Goundan’s case, the Madras Presidency instituted a commission to examine all convictions based on the Goundan judgment, reprieved the sentences, and unconditionally released the prisoners.

However, a commission to identify death sentences given on wrong principles of law may not be necessary now since such cases have already been identified by the Supreme Court in Sangeet’s decision. In all such cases, the executive should consider commutation of the death sentence to life imprisonment.

In the U.S., the Supreme Court restored the death penalty in ‘Gregg vs Georgia’ (1976) after finding it unconstitutional in ‘Furman’ in 1972. The Indian Supreme Court last heard a challenge to the death penalty in 1992 in ‘Shashi Nayar vs Union of India’, but found that the time was inopportune to reconsider the law on the issue. The South African Constitutional Court found it unconstitutional in ‘S vs Makwanyane and Another’ in 1995. Has the time come for the Indian Supreme Court to reconsider the law on the subject?

The Supreme Court in Bachan Singh took a leaf out of the decision in Gregg and introduced the concept of aggravating and mitigating circumstances. Both the Benches in Bachan Singh and Gregg believed that the discretion to impose the death penalty following clear guidelines balancing aggravating and mitigating circumstances was sufficiently structured and excluded arbitrariness and inconsistency. Subsequent events have shown that this belief was completely misplaced. Even the decision in S vs Makwanyane, while holding the death penalty to be unconstitutional, admitted that it was very difficult to come up with clear criteria that would exclude arbitrariness completely. Therefore, the time is now right to have a complete review and reconsideration of the law on this subject.

What should be the principles that guide the exercise of mercy power under Article 72? Can the President consider erroneous death sentences as a ground to commute death sentences?

Once the judicial process has come to an end, there are two ways in which a convict can avoid execution by appealing to the executive. The first is commutation; the appropriate government can commute a death sentence under the provisions of the IPC and the CrPC. The second is a commutation or pardon granted by the President of India or the Governor of the relevant State under Article 72 and Article 161 of the Constitution of India. The second process is not constrained by the judicial verdict. Where the constitutional powers of clemency are involved, the extent of judicial review is extremely limited. The Supreme Court has observed in a number of cases that unless in extreme cases, the courts should not intervene in the exercise of powers of clemency by the Governor or the President.

The executive is vested with sufficient powers under Articles 72 and 161 to commute the death sentence of prisoners who have been wrongly sentenced to death by ignoring the position of law in Bachan Singh’s case.

Do you think the time has come for Parliament to substitute the death penalty with imprisonment for the entire life of the convict (without remission) in the rarest of rare cases?

India stands with Afghanistan, Pakistan and Bangladesh in holding on to the death penalty. We are one of the nations that retain the death penalty but rarely execute people. The criterion of the rarest of rare cases has not resulted in any satisfactory solution at all. The Supreme Court’s attempt to regulate capital punishment has been unsuccessful on its own terms. Courts and governments worldwide have tried to lay down satisfactory and clear criteria eliminating arbitrariness, subjectivity and inconsistency from the death penalty.

For this reason, the global trend is increasingly and overwhelmingly in favour of abolitionism. We would be deluding ourselves if we were to believe that the execution of a few persons sentenced to death will provide a solution to the unacceptably high rate of crime. In reality, capital punishment neither has any deterrent effect, nor can it be counted as a preventive measure. Therefore, India should join the list of such abolitionists as the legal safeguards aimed at avoiding miscarriage of justice have failed to deliver. The decision to substitute the death penalty with imprisonment for the entire life (without remission) for the rarest of rare cases should be decided appropriately by the legislature.

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Santosh Hegde panel to probe #Manipur encounter deaths


LEGAL CORRESPONDENT, The Hindu, Jan 9,2013

Former Lokayukta N Santosh Hegde. File photo

The HinduFormer Lokayukta N Santosh Hegde. File photo

Supreme Court rejects State’s demand to entrust job to NHRC

A high-power commission headed by the retired Supreme Court judge, Santosh Hegde, will probe six encounter deaths in Manipur.

A Bench of Justices Aftab Alam and Ms. Ranjana Desai passed this order on a writ petition by the Extra Judicial Execution Victim Families Association, which complained that over 1,500 fake encounter deaths had occurred in the State in the last 10 years.

The Bench said: “This matter requires a further careful and deeper consideration.” It rejected Manipur’s contention that “the occasion for this court to examine those cases would arise only if it holds that the NHRC had failed to perform its statutory functions in safeguarding human rights of the people in the State.”

The Bench said entrusting the probe to the National Human Rights Commission “will completely dissipate the vigour and vitality of Article 32 of the Constitution.”

The Bench said “Article 21 coupled with 32 provides the finest guarantee and most effective protection of the most precious of all rights — the right to life and personal liberty. Any indication of violation of this right would put all the faculties of this court on high alert to find out the truth. In case the court finds that there has, in fact, been violation of the right, it would be the court’s bounden duty to step in to protect those rights against the unlawful onslaught by the state. We, therefore, see no reason not to examine the matter directly but only vicariously and second-hand, through the agency of the NHRC.”

The Supreme Court said: “It is true that Manipur is a disturbed area, that there appears to be a good amount of terrorist activity affecting the public order and, maybe, even security of that State. If the police version of the incidents in question were true, there could have been no question of any interference by the court. Nobody can say the police should wait till they are shot at. It is for the force on the spot to decide when to act, how to act and where to act. It is not for the court to say how the terrorists should be fought. We cannot be blind to the fact that even after 50 years of our independence, our territorial integrity is not fully secure. We request the commission to make a thorough enquiry in the first six cases.”

The commission, which includes the former Chief Election Commissioner, J.M. Lyngdoh, and the former DGP, Karnataka, Ajay Kumar Singh, would also address the larger question of the role of the State police and the security forces and make a report on their functioning within 12 weeks. If it was found that they violated legal bounds, the commission should make its recommendations for keeping the police and security forces within the legal limits without compromising on the fight against insurgency, the Bench said.