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LEGAL REVIEW COMMITTEE

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LETTER FROM THE CHAIRPERSON
Fellow Debaters,
It is my utmost pleasure to welcome you to be a part of the Legal Review Committee at the
Hindu Policy Summit, 2016. The simulation of this highly technical and academic committee
offers an opportunity to deliberate upon two of the most crucial issues Indian polity of the
present is faced with, each requiring a polar choice to be made.

The issue of appointments to the esteemed judicial office has historically been a matter of
grave concern in India. Whilst the conception of the collegium system got devised as a
judicial measure against covert and harmful involvement of the Executive under certain Law
Ministers, rampant nepotism, opacity and absolute exclusion of the Executive, which is
argued as being judicial-reconstruction of the Constitutional mandate, are the common
grievances sounded against the continuation of the system. An attempt to device a new
judicial appointments instrument, which purports to balance the role of the Judiciary, the
Executive and also introduces a new public role in the appointments process, has succumbed
to the test of constitutionality before the Supreme Court of India, on largely the same grounds
that essentially led to the birth of the collegium.

Another choice before us is regarding the contemporary relevance of death penalty, or rightly
termed the capital punishment. The constitutional conundrum that it places before us is that
the right to life stands as a guaranteed fundamental right under the Constitution, subject only
to the procedure established by law. Even within the scope of death penalty, there are
complex issues such as the manner of administration of death penalty, whether the botched-
up process of criminal trial in itself is a mitigating factor for convicts, and the extremely
political nature of the exercise of Presidential Clemency, one of the last-resort constitutional
remedies for a life convict. The committee must deliberate if the State achieves anything by
the current procedure established under the law (the IPC and certain other Acts), or should
the India, in tune with other nations of the world, exercise restraint and resort to more
humane punitive measures.

I wish you all the very best for a hyperactive social sporting event to begin your year with.

Regards,

Sharad Verma.

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1. THE JUDICIAL APPOINTMENTS

CONTROVERSY
The method of appointment of the Chief Justice of India, and the Supreme Court and High
Court judges has been laid down in the Constitution of India. Under the Constitutional
scheme, the President shall make these appointments after consulting with the Chief Justice
of India and other SC and HC judges as he considers necessary. Between the years 1982-
1999, the issue of method of appointment of judges was examined and reinterpreted by the
Supreme Court. Since then, a collegium, consisting of the Chief Justice of India and 4 other
senior most SC judges, made recommendations for persons to be appointed as SC and HC
judges, to the President.

I. HISTORY OF JUDICIAL APPOINTMENTS IN INDIA:

Judicial Appointments in India have always undergone evolutionary transformation and also
always remained the most controversial aspect. The collegium system devised by the
Supreme Court of India, which appointed the judges to the nations constitutional courts, has
its genesis in, and continued basis resting upon, three of the Courts own judgments which
are collectively known as the Three Judges Cases- S. P. Gupta v. Union of India (1981)
which promoted executive primacy in judicial appointments. Then came the Supreme Court
Advocates-on-record Association v. Union of India (1993) which proposed the collegium
system of appointment, and was followed by the Court In re: Special Reference (1998) which
was an extension of the same proposal.

Over the decades, several high level Commissions have also examined the method of
appointment of judges to the higher judiciary. They have suggested that an independent body
be set up to make recommendations for such appointments. However, they differed in the
representation of the Judiciary, Legislature and Executive in making such appointments.

Comparison of various recommendations on the composition of a proposed


appointments body:

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Recommendatory Suggested composition
Body

2nd Administrative Judiciary : CJI; [For HC judges: Chief Justice of the relevant High
Reforms Court of that state]
Commission
(2007) Executive : Vice-President (Chairperson), PM, Law Minister, [For
HC judges: Includes CM of the state]

Legislature: Speaker of Lok Sabha, Leaders of Opposition from


both Houses of Parliament.

Other: No representative.

National Advisory Judiciary: CJI; [For HC judges: Chief Justice of the relevant High
Council (2005) Court of that state]

Executive: Vice-President (Chairman), PM (or nominee), Law


Minister, [For HC judges: Includes CM of the state]

Legislature: Speaker of Lok Sabha, Leader of Opposition from both


Houses of Parliament.

Other: No representative.

NCRWC (2002) Judiciary: CJI (Chairman), two senior most SC judges.

Executive: Union Law Minister.

Legislature: No representative.

Other: one eminent person.

Law Commission Judiciary : CJI (Chairman), three senior most SC judges, immediate
(1987) predecessor of the CJI, three senior most CJs of HCs, [For HC
judges: Chief Justice of the relevant High Court of that state].

Executive: Law Minister, Attorney General of India, [For HC


judges: Includes CM of the state].

Legislature: No representative.

Other: One law academic.

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II. THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION:

The National Judicial Appointments Commission Bill, 2014 was introduced in the Lok Sabha
on August 11, 2014 by the Minister of Law and Justice, Mr. Ravi Shankar Prasad. The Bill
had been introduced in conjunction with the Constitutional (121st Amendment) Bill, 2014,
which establishes the National Judicial Appointments Commission (NJAC). The Bill
provides for the procedure to be followed by the NJAC for recommending persons for
appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief
Justice and other Judges of High Courts (HC).

A National Judicial Appointment Commission (NJAC) is to be established (art 124A). It will


consist of six members: three judicial members (the Chief Justice of India, who will chair the
Commission, and the two next most senior judges from the Supreme Court); the Minister in
charge of Law and Justice in the Central Government; and two eminent persons to be
appointed by a committee consisting of the Prime Minister, the Chief Justice of India and the
Leader of Opposition, at least one of whom must be a woman or a member of the Scheduled
Castes, the Scheduled Tribes, Other Backward Classes, Minorities. The NJAC is responsible
for making recommendations to the President in respect of all Supreme Court and High Court
vacancies (art 124B). It must recommend the senior most Judge in the Supreme Court to fill a
vacancy in the position of Chief Justice of India, if it finds the judge in question to be fit for
that office (NJAC Act 2014, s 5(1)).

When considering vacancies in a High Court, the NJAC must consult the Chief Justice of that
High Court (NJAC Act 2014, s 6). Seniority is among the statutory factors to be considered in
respect of all candidates who are already judges. The recommendation of a candidate for
any position other than Chief Justice of India may be blocked by the objection of two of the
six NJAC members (NJAC Act 2014, s 5(2) and 6(6)). Upon receiving a recommendation
of the NJAC, the President may require the NJAC to reconsider its recommendation once, but
is required to make any appointment recommended by the NJAC after reconsideration (NJAC
Act 2014 s 7).

Reference to Commission for filling up of vacancies

When a vacancy arises in the SC or HCs, the central government will make a reference to the
NJAC. Existing vacancies will be notified to the NJAC within thirty days of the Act entering
into force. When a vacancy arises due to the completion of term, a reference will be made to

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the NJAC, six months in advance. For vacancies due to death or resignation, a reference must
be made to the NJAC within thirty days of its occurrence.

Procedure for Selection of Supreme Court judges

Chief Justice of India: The NJAC shall recommend the senior most judge of the Supreme
Court for appointment as Chief Justice of India. This is provided he is considered fit to hold
the office.

SC judges: The NJAC shall recommend names of persons on the basis of their ability, merit
and other criteria specified in the regulations.

Veto power of members: The NJAC shall not recommend a person for appointment if any
two of its members do not agree to such recommendation.

Procedure for Selection of High Courts judges

Chief Justices of HCs: The NJAC is to recommend a Judge of a High Court to be the Chief
Justice of a High Court on the basis of seniority across High Court judges. The ability, merit
and other criteria of suitability as specified in the regulations would also be considered.

Appointment of other HC Judges:

Nominations: Nominations shall be sought from Chief Justice of the concerned High Court
for appointments of HC judges.

Eliciting views: The Commission shall nominate names for appointment of HC judges and
forward such names to the Chief Justice of the concerned HCs for his views.

In both cases, the Chief Justice of the HC shall consult two senior most judges of that HC and
any other judges and advocates as specified in the regulations.

Views of the Governor and CM: The NJAC shall elicit the views of the Governor and Chief
Minister of the state before making recommendations.

Veto power of members: The NJAC shall not recommend a person for appointment if any
two members of the Commission do not agree to such recommendation.

Transfer of Chief Justices and High Court judges:

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The NJAC is to make recommendations for transfer of Chief Justices and other judges of the
High Courts. The procedure to be followed will be specified in the regulations.

Power of the President to require reconsideration:

The President may require the NJAC to reconsider the recommendations made by it. If the
NJAC makes a unanimous recommendation after such reconsideration, the President shall
make the appointment accordingly.

III. APPOINTMENTS PROCESS IN OTHER COUNTRIES:

Internationally, there are varied methods for making appointments of judges to the higher
judiciary. The method of appointment of judges to the highest court, in some jurisdictions, is
outlined herein:

Appointment of judges to the highest court in different jurisdictions:

Country Method of Appointment to the Who is involved in making the


highest court appointments

UK SC judges are appointed by a five- It consists of the SC President, his


person selection commission. deputy, and one member each
appointed by the JACs of England,
Scotland and Northern Ireland. (The
JACs comprise lay persons.)

Canada Appointments are made by the A selection panel comprising five


Governor in Council. MPs (from the government and the
opposition) reviews list of nominees
and submits 3 names to the Prime
Minister.

USA Appointments are made by the Supreme Court Justices are


President. nominated by the President and
confirmed by the United States
Senate.

Germany Appointments are made by election. Half the members of the Federal
Constitutional Court are elected by
the executive and half by the
legislature.

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France Appointments are made by the President receives proposals for
President. appointments from Conseil
Superieur de la Magistrature.

IV. CONSTITUTIONALITY OF THE NJAC:

In Writ Petition (Civil) No. 13 Of 2015, the Constitution Bench comprising of J.S. Khehar,
M.B. Lokur, Kurian Joseph, A.K. Goel and J. Chelameshwar, JJ., with a ratio of 4:1, declared
the 99th Amendment to the Constitution and the corresponding National Judicial
Appointments Commission Act, 2014 to be void and unconstitutional. The majority also held
that the Collegium System of appointment of judges is to be made operative once again
after this decision. However the Bench left the discussion open to consider the introduction of
appropriate measures for an improved working of the Collegium system.

As per the majority, the issue of appointment of Judges has direct nexus with the
independence of judiciary; therefore the contention by the Government to the contrary is
completely baseless. It was further observed that the issue of appointment and transfer of
judges is a matter of great significance which cannot be left to the moral strength of the
individuals and where judicial primacy is a necessity, thus acceptance of any alternate
mechanism for appointment is out of question. Articles 124A (1) (a) and (b) as introduced by
the Amendment, do not ensure judicial primacy in the matter of appointment and transfer,
therefore it encroaches upon the independence of judiciary, thereby violating the basic
structure of the Constitution.

V. EMINENT PERSONS AND THE VETO POWER:

The inclusion of two eminent persons in the selection panel and a veto power were among
the components in the law that drew the maximum glare of the Apex Court. It is also
difficult to appreciate the wisdom of the Parliament to introduce two lay persons in the
process of selection and appointment of judges to the higher judiciary, and to simultaneously
vest with them, a power of veto, the majority expresses.

The second proviso under Section 5 (2) and Section 6 (6) of the NJAC (National Judicial
Appointments Commission) Act clearly mandate that a person nominated to be considered
for appointment as a judge of the Supreme Court, and persons being considered for

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appointment as chief justices and judges of high courts, cannot be appointed, if any two
members of the NJAC do not agree to the proposal.

The court added: Not just that, the two eminent persons would also have the absolute
authority to reject all names unanimously approved by the remaining four members of the
NJAC. That would obviously include the power to reject the unanimous recommendation of
the entire judicial component of the NJAC. In our considered view, the vesting of such
authority in the eminent persons is clearly unsustainable in the scheme of independence of the
judiciary. Vesting of such authority on persons who have no nexus to the system of
administration of justice is clearly arbitrary, and we hold it to be so.

The Apex Court said that the grant of veto power to eminent persons under the NJAC Act
amounted to conferring them with monarchical power as they could then stymie the
decision of the President as well as the Chief Justice of India on the appointment of judges.
Eminent persons could be consulted but empowering them to veto the decisions of the Chief
Justice of India or the President was unthinkable.

On selection of the eminent persons, Justice Lokur said the categories ought not to be
limited to scheduled castes, scheduled tribes, other backward classes, minorities or women
but that is a matter of policy and nothing more can be said about this, except that a rethink is
necessary. The appointment of judges by the six-member committee could certainly be
influenced to a great extent by the law minister and the two nominated members, affecting
the independence of judiciary.

Justice J. Chelameswar, the lone judge on the five-judge bench who upheld the NJAC Act,
said that to think only the judiciary could give valuable inputs in appointment of judges
requires great conceit and disrespect for civil society and suggested that a panel of three
members for each of the two categories of eminent persons should be drawn up. Such a
panel should be placed before the full house of the Supreme Court for voting. Nominees
securing the highest vote in each of the two categories should eventually be nominated as
eminent members of the NJAC, the judge said, adding that the procedure would incorporate
sufficient safeguards against possible abuse of the power by the selection committee.

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2. CONTEMPORARY RELEVANCE OF

CAPITAL PUNISHMENT
Death penalty has been a mode of punishment since time immemorial. The arguments for and
against have not changed much over the years. Crimes, as well as the mode of punishment
correspond to the culture and form of civilization from which they emerge. With the march of
civilization, the modes of death punishment have witnessed significant humanized changes. It
is now accepted that death punishment is qualitatively different from any other punishment in
as much as it is irreversible and if an error is committed, there is no way to rectify the error.
However, in Bachan Singh's case1, the constitutional validity of death sentence, while
considering the interaction of Capital Punishment with Article 21 of the Constitution, was
upheld by the Supreme Court of India by majority of 4:1, with Justice P.N. Bhagwati,
dissenting.

I. THE INDIAN JURISPRUDENCE RELATING TO DEATH PENALTY:

Post-1967, India has witnessed an expansion of the interpretation of Article 21 of the


Constitution of India, reading into the right to dignity and substantive and due process. Most
famously, in Maneka Gandhi v. Union of India, it was held that the procedure prescribed by
law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary.

Subsequently, in Bachan Singh, the Court observed taking a life through law's instrumentality
ought not to be done save in the rarest of rare cases when the alternative option is
unquestionably foreclosed. The rarest of rare standard has at its core the conception of the
death penalty as a sentence that is unique in its absolute denunciation of life. As part of its
concerns for human life and human dignity, and its recognition of the complete irrevocability
of this punishment, the Court devised one of the most demanding and compelling standards
in the law of crimes. The emergence of the rarest of rare dictum when the alternative
option is unquestionably foreclosed was very much the beginning of constitutional
regulation of death penalty in India.

The sentence of death is the most extreme punishment provided under the Indian Penal Code.
Regarding death as a punishment, the framers of the IPC have categorically stated that it

1
AIR 1982 SC 1325

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ought to be inflicted very sparingly and only in those cases where either murder of the highest
offence against the State has been committed. Despite the Courts optimism in Bachan Singh
that its guidelines will minimise the risk of arbitrary imposition of the death penalty, there
remain concerns that capital punishment is arbitrarily or freakishly imposed. The Court
has acknowledged that the subjective and arbitrary application of the death penalty has led
principled sentencing to become judge-centric sentencing, based on the personal
predilection of the judges constituting the Bench.

II. PREVIOUS LAW COMMISSION REPORTS ON CAPITAL PUNISHMENT:

(i) The 35th Report of the Law Commission

The Law Commission released its 35th Report on Capital Punishment in 1967,
recommending that the death penalty be retained. After considering the arguments of the
abolitionists and retentionists, the state of the death penalty in various countries and
objectives of capital punishment, the Commission recommended that the death penalty be
retained in India.

(ii) The 187th Report of the Law Commission

In 2003, the Commission released its 187th Report on the Mode of Execution of Death and
Incidental Matters. The Commission had taken up this matter because of the
technological advances in the field of science, technology, medicine, anesthetics since its
35th Report. This Report did not address the question of whether the death penalty was
desirable. Instead, it restricted itself to three issues: (a) the method of execution of death
sentence, (b) the process of eliminating differences in judicial opinions among Judges of the
apex Court in passing sentence of death penalty, and (c) the need to provide a right of appeal
to the accused to the Supreme Court in death sentence matters.

III. RECENT POLITICAL DEVELOPMENTS:

Some recent developments indicate an increase in political opinion in favour of abolition.


Most recently, in August 2015, the Tripura Assembly voted in favour of a resolution seeking
the abolition of the death penalty.

Demands for the abolition of the death penalty have been made by the Communist Party of
India (CPI), the Communist Party of India (Marxist) [CPI (M)], the Communist Party of India
(Marxist Leninist Liberation) [CPI (M-L)] the Viduthalai Chiruthaigal Katchi (VCK), the

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Manithaneya Makkal Katchi (MMK), the Gandhiya Makkal Iyakkam (GMI), the
Marumalarchi Dravida Munnetra Kazhagam (MDMK), and the Dravida Munnetra Kazhagam
(DMK).

On 31st July, 2015, D. Raja of the CPI introduced a Private Members Bill asking the
Government to declare a moratorium on death sentences pending the abolition of the death
penalty. In August 2015, DMK Member of Parliament Kanimozhi introduced a private
members bill in the Rajya Sabha seeking abolition of capital punishment.

IV. THE INTERNATIONAL TREND TOWARDS ABOLITION:

International developments in the past decade have produced a clear and emphatic trend away
from capital punishment as countries abandon its use, call upon the remaining death penalty
states to sharply curtail its use, and formulate international agreements which express a strong
preference for an end to all executions. Today, 140 countries have abolished the death penalty
in law or in practice. Further, the number of countries that have remained active-
retentionists, namely they have executed at least one person in the last ten years, has fallen
from 51 in 2007 to 39 (as of April 2014). A category of countries have also abolished death
penalty for ordinary crimes such as murder and retained it for exceptional crimes such as
crimes under military law or under exceptional circumstances. The death penalty is most
prominently used in Iran, China, Pakistan, Saudi Arabia and the United States of America.

Internationally, countries are classified on their death penalty status, based on the following
categories:

Abolitionist for all crimes.

Abolitionist for ordinary crimes.

Abolitionist de facto.

Retentionist.

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There is a clear trend towards abolition in international law and state practice across the
globe. International legal norms have evolved to restrict the lawful use of capital punishment
in a very narrow variety of cases, and a very limited manner. Although formal abolition of the
death penalty dates as far back as 1867 for Venezuela and 1870 for the Netherlands, and even
earlier for some states in the United States such as Michigan (1846), most of the movement
towards elimination of capital punishment has been fairly recent. India continues to sentence
individuals to death and execute them, and has also opposed all five General Assembly
resolutions on a moratorium. In doing so, we maintain company with a minority of countries
who retain the death penalty, and an even smaller number who actually carry out executions,
a list that includes China, Iran, Iraq and Saudi Arabia.

V. AN ISSUE OF HUMAN RIGHTS

The reasons why countries abolish the death penalty vary. For some, it is their understanding
of human rights. Switzerland abolished the death penalty because it constitutes a flagrant
violation of the right to life and dignity... Defining the death penalty as a human rights issue
is a critical first step, but one resisted by countries that aggressively use the death penalty.
When the United Nations General Assembly considered a resolution in 1994 to restrict the
death penalty and encourage a moratorium on executions, Singapore asserted that "capital
punishment is not a human rights issue." In the end, 74 countries abstained from voting on
the resolution and it failed.

Similarly, Trinidad and Tobago, in recently withdrawing from the human rights convention
of the Organization for American States and returning to executions, insisted that The death
penalty is not a human rights issue. However, for an increasing number of countries the
death penalty is a critical human rights issue. In 1997, the U.N. Commission on Human

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Rights approved a resolution stating that the abolition of the death penalty contributes to the
enhancement of human dignity and to the progressive development of human rights. The
resolution was strengthened in 1998 and 1999 by a call for a restriction of offenses for which
the death penalty can be imposed and a moratorium on all executions, leading eventually to
abolition. That type of vengeance does not help us, to kill people merely because they have
killed others.

VI. RECENT EXPANSIONS OF THE SCOPE OF THE DEATH PENALTY

In 2013, the Criminal Law (Amendment) Act introduced several new provisions into the IPC,
including Section 376A, which allowed for the death penalty to be imposed in cases where
rape led to the death of the victim, or left her in a persistent vegetative state; and 376E which
allowed for the imposition of the death penalty for certain repeat offenders. These
amendments were passed in the wake of the recommendations of the Verma Committee.113
Pertinently, while the Verma Committee was in favour of enhanced punishment for certain
forms of sexual assault and rape, it noted that in the larger interests of society, and having
regard to the current thinking in favour of abolition of the death penalty, and also to avoid
the argument of any sentencing arbitrariness, we are not inclined to recommend the death
penalty. The Criminal Law (Amendment) Act, 2013, nevertheless expanded the scope of the
death penalty.

There is currently a Bill pending in Parliament, the Anti-Hijacking (Amendment) Bill 2014,
which also prescribes the death penalty.

VII. CASE OF TERRORISM

An important question faced by this Legal Review Committee is whether the death penalty
should be retained in the context of terrorism-related crimes, even if it abolished for all other
offences. One of the major reasons for this proposition is that the death penalty acts as an
important tool for maintaining the security of citizens and the integrity of the nation, by
deterring similar future crimes.

The Law Commission submitted its 262nd Report on Death Penalty on August 31, 2015. The
Commission felt that time has come for India to move towards abolition of the death penalty.
However, concerns had been raised that abolition of death penalty for terrorism related
offences and waging war would affect national security. Therefore, it recommended that the
death penalty be abolished for all crimes other than the offences of terrorism and waging

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war against the state. It also hoped that the report would contribute to an informed debate on
abolition of death penalty for all cases, and the movement towards absolute abolition would
be swift and irreversible. It noted that by relying on the death penalty alone to secure justice
to victims, other challenges of the criminal justice system were ignored. These challenges
related to that of an overburdened police force, poor investigation, ineffective prosecution,
and rights of victims of crime. It recommended that the government and the courts must
provide compensation to victims of crime. Further, a witness protection scheme to protect
witnesses of crimes must be established. It recommended that police reforms for effective
investigation of crimes and prosecution must be prioritized.

MANDATE OF THE COMMITTEE

It is requested that every participant in this committee respects the nature of this committee,
being essentially a non-political and academic committee.

It is expected of every participant to prepare bearing the nature of the committee in


mind, and any arguments that may have not been addressed in this document are most
welcome.
The presence of members of political parties in the committee matrix is to be
inclusive of the political considerations, and not for portfolio holders to stick to
traditional inter-party rivalries.
Documentary proof of all statistical data, reports, resolutions, etc. would greatly
benefit the committee and enrich our discourse.
Any statement of proposition concerning either of the agenda, by a group of members,
or by a single member, shall be duly considered and will be voted upon.

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