Punishment and the application of law

logoPunishment and the application of law/ the law and order and the application of same law with different views


Bhagwati, J delivering the judgment on behalf of himself, Chandrachud and Krishna Iyer, JJ. Propounded the new concept of equality in the following words-“Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrine limits. From a positivistic point of view, equality is antithesis to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belong to the rule of law in public while the other, to the whim and caprice of the absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.”

Article 14 of Constitution of India declares that “the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India”. The phrase “equality before law” occurs in almost all written constitutions that guarantee fundamental right. Equality before the law is an expression of English Common Law “equal protection of laws” owes its origin to the American Constitution.

Both the phrases aim to establish what is called the “equality and of opportunity” as embodied in the Preamble of the Constitution. While equality before the law is a somewhat negative concept implying the absence of any special privilege in favour of any individual and the equal subjection off all classes to the ordinary law, equal protection of laws is a more positive concept employing equality of treatment under equal circumstances.

Thus, Article 14 stands for the establishment of a situation under which there is complete absence of any arbitrary discrimination by the laws themselves or in their administration. But why there are different types of treatment with some criminals like: Dhananjoy Chatterjee, Afzal Guru, Kasab??? .

The arguments on the side of the retentionists are equally strong. However, in India the Supreme Court has made death penalty applicable only to the “rarest of rare cases” – the cases where the act is no less than shocking to human conscience. It has also recommended that a convict, whose death sentence has been confirmed by a High Court, should have the statutory right to appeal to the Supreme Court and that his/her appeal should be heard by a five-Judge Bench. Amnesty International, India, insists that the verdict of the death sentence should be unanimous by the Judges. These safeguards could further limit the scope for judicial errors in the award of capital punishment.



Death and its concept are absolutely empty. No picture comes to mind. The concept of death has a use for the living, while death itself has no use for anything. All we can say about death is that it is either real or it is not real. If it is real, then the end of one’s life is a simple termination. If it is not real, then the end of one’s embodied life is not true death, but a portal to another life.

This used to be a universal practice in North America. However, in recent decades, almost all democracies in the world have abandoned the death penalty. The U.S., Japan, and South Korea are the only exceptions. Of course, most dictatorships and theocracies in the world retain the death penalty as a terror weapon.

“It is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime.” In the early 1970s, the top argument in favor of the death penalty was general deterrence. This argument or hypothesis suggests that we must punish offenders to discourage others from committing similar offenses; we punish past offenders to send a message to potential offenders. “In short, a remarkable change in the way the death penalty is justified is occurring. What was once the public’s most widely cited justification for the death penalty is today rapidly losing its appeal?”


History of Capital Punishment:

The Capital Punishment has always been a part of the Indian Judicial system. It was incorporates on to the Indian Penal Code right from its beginning in 1860. Similarly, it was also present in the Criminal Procedure Code (1898). According to Section 367 of the Cr.PC, a person convicted of murder was to be sentenced to death. And this was to be the general rule, not an exception.

A commendable feature that we notice is that right from the days of British rule, there has been strict opposition to enforcing the Capital Punishment. In 1931, Gaya Prasad Singh, a member of the Legislative Assembly introduced a bill in the assembly which proposed to abolish the death penalty in the country. However, it was overturned. Even after Independence, there have been several attempts, both inside and outside the parliament, to force the abolition of death penalty. Of these efforts, those by Prithviraj Kapoor (He was also a member of the Rajya Sabha) in 1958 and by Raghunath Singh in the Lok Sabha in 1962 are not worthy. Even in contemporary times, there has been strict opposition to the death penalty. Unfortunately, such activities come to the fore only when the sentence is about to be executed.

In 1974, there came in to force a new Criminal Procedure Code. One of the major features of the new Code was the overturning of the over ruling regarding the death penalty. By the new code, for all offences involving murder, life imprisonment was to be the norm. The death penalty was to be awarded only in exceptional circumstances.


The landmark cases where the death sentences were awarded in India are Ranga Billa case, Indira Gandhi and Rajiv Gandhi Assassination case, Laxman Nayak case and most recently in 2004 Hatab case of West Bengal where accused Dhananjoy Chatterjee a security guard was sentenced to death after he raped and murdered a young girl whose mother had complained against him of eve teasing, hanged on 14 August, 2004, on his birthday, after Supreme Court affirmed the death sentence awarded by the lower courts. The President also declined his plea for pardon. The Dhananjoy Chatterjee case shows that both judicial and non-judicial decisions on a death sentence are guided by public outrage over the gravity of the crime committed.

Chatterjee is only the 55th person to be executed since Indian independence in 1947, and recently Kasab also. In the face of significant opposition to state executions, trials and appeals in such cases are usually lengthy and the death sentence rarely carried out. Between 1991 and 1998, 700 people were sentenced to death, but most are still involved in judicial appeals or have been granted clemency.

Recently, on 28 February, a Supreme Court bench comprising Justice AK Patnaik and Justice Swatanter Kumar elaborated on its clear preference for life rather than death while commuting a death sentence awarded by a Bilaspur trial court to life imprisonment. The case was related to four convicts who were held guilty of raping a married woman who died later. Justice Kumar emphatically observed that “the basic principle, stated repeatedly” by the Supreme Court is that “life imprisonment is the rule and death penalty an exception.”

As Justice Kumar explained, “In our opinion, the measure of punishment in any case must depend upon the atrocity of the crime; the conduct of the criminal and the defenseless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

It was in Bachan Singh v/s State of Punjab (1980) that the Supreme Court rejected the challenge to the constitutional validity of awarding the death penalty and held that it should not be imposed except in the “rarest of rare cases”. The court also enunciated some of the mitigating and aggravating circumstances required to be kept in view while considering the sentence.

In Ajitsingh, the Court has relied on Machhi Singh (1983) and Mohd. Mannan v/s State of Bihar (2011) to hold that murders which are gruesome, ghastly or horrendous, and when collective conscience of the community is petrified, death penalty is called for, as they belong to the category of rarest of rare cases. The questions whether the sentence of life imprisonment is inadequate and whether there is no alternative punishment cannot be answered with subjective views. The facts and circumstances of each murder are different, and therefore, by simply repeating the adjectives used to describe the manner of killing in earlier cases, the case before the Court does not ipso facto become rarest of rare. The distinction between ordinary murders and murders which are gruesome etc. which the Court has drawn in Paragraph 98 of Ajitsingh is not at all convincing. Neither Bachan Singh nor Machhi Singh Benches intended to draw such distinction. See lethal lottery-the death penalty in India, Amnesty International and PUCL, May 2008.

Mulla v/s State of UP should be viewed as the first step towards answering a larger question: Whether the Indian State shall continue with the lethal lottery of death penalty? At any given trial for murder today the chances of a person being hanged or not depend solely on the whims and fancies of the judges, so much that in a recent judgment the Supreme Court has expressed the fear that arbitrary sentencing may lead to a violation of Article 14 of the Constitution. , . In the impugned judgment while the convicts were spared the noose owing to their having served fourteen years in jail, a very different conclusion was reached by the same Court in Dhananjoy Chatterjee alias Dhana v/s State of West Bengal who had served an equal period in jail. The Supreme Court itself has remarked in Aloke Nath Dutta and Ors v/s State of West Bengal on the arbitrary nature in which the death penalty is awarded or commuted. While getting into the merits and demerits of the death penalty is beyond the scope of this research, the authors would like to quote Dr. B.R Ambedkar on the issue:

“This country by and large believes in the principle of non violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non violence as a moral mandate which they ought to observe as far as they possibly can and I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.”

Till that is done, judgments like the one discussed here will provide the humanitarian face to a retributive law.

Another landmark case decided in the Bombay High Court resulted in the release of hundreds of under-trial prisoners, who had languished in prisons for far beyond the maximum term of their punishment, due to slow court procedures. . However, statistics still demonstrate that 70% of India’s prison inmates are under trials and much remains to be done to improve the criminal justice system of the country.


In the year 2003 government laid a Bill in the Parliament, which proposed to add a provision of death penalty in Drugs and Cosmetics Act. After the new government came in power in June 2004, President Dr. A.P.J. Abdul Kalam suggested that Parliament should consider the abolition of death sentence altogether.

Kasab’s arguments for a review of his death sentence that was awarded by a trial court on 6 May 2010 and upheld by the Bombay High Court on 21 February 2011, tilts heavily in favour of the factors listed under the “mitigating circumstances”. For example, senior advocate and amicus curie Raju Ramachandran, who argued the case on behalf of Kasab in the SC, cited his young age (21 at the time of the terror attack) as an important factor that had to be considered. Also, that he was not acting on his own but was under the influence of “skewed religious faith and false ideology”. Though kasab is the puppet of anti-social elements he got death punishment for the crime he had done. Killing a life for the prosperity of the society is an acceptable equation in the civil society not only kasab, the terrorists involved in the Samjhota express blasts, malegaon, mecca masjid, Ajmer blasts, should be brought to the notice of the court and their crime should be proved like what happened in kasab’s case and they should be hanged. No body should use the name of God for terrorism

as no God has preached the killings. This punishment will send signals to those who sought religion as a tool against humanity. Human rights activists should take up the issue of fake encounters against innocents, happening in our country, rather than opposing capital punishment to the proved criminal. I vaguely remember Mahatma Gandhi’s opinion that dogs that have become mad due to rabies have to be killed and cannot be saved or reformed.


The prosecution lawyer Ujjwal Nikam has categorically stated that the terrorist should be awarded capital punishment as “This is the rarest of rare cases. He should not be entitled to any mercy.”

If we keep them in jail for life, we will only encourage their compatriots to try and save them. Have we forgotten the shameful episode of Jaswant Singh releasing Terrorists to save our brothers in Khandhar Hijacking?

Why leave ourselves open to such blackmail in future? Why keep these worthless folks alive? India is good place for criminals to live happily…

The constitutional power is that the President has the power to disagree with the Supreme Court both with its findings of fact and law. But others are of the view that such a sweeping Constitutional power cannot be given to the President in as much as it would subvert the concept of justice enshrined in the Constitution.

One very critical role of the President is the responsibility he has to take while dealing with a death penalty. The decision of death penalty given to a person by Indian Law can be overturned only by the President. This is one of the most crucial decisions that a President may have to make while respecting the legal procedure involved in the particular case. Death penalty in India is imposed only in the rarest of rare cases according to the rule of Supreme Court of India.

The term ‘justice’ in the Preamble embraces three distinct forms- social, economic and political, secured through various provisions of Fundamental Rights and Directive Principles. Social justice denotes the equal treatment of all citizens without any social distinction based on caste, colour, race, religion, sex and so on. It means absence of privileges being extended to any particular section of the society, and improvement in the conditions of backward classes (SCs, STs, and OBCs) and women. Economic justice denotes on the non- discrimination between people on the basis of economic factors. It involves the elimination of glaring in equalities in wealth, income and property. A combination of social justice and economic justice denotes what is known as ‘distributive justice’. Political justice implies that all citizens should have equal political rights, equal voice in the government. The ideal of justice- social, economic and political- has been taken from the Russian Revaluation .


Indian Judiciary system: So slow and lethargic

The Indian Judicial system is supposed to protect the common man from lawbreakers and offenders. But in reality it serves the political authorities and provides protection to gruesome criminals who are subtly baked by the politicians. The role of Indian Judiciary in securing law and order across the country should be impartial and free from all sorts of external or unauthorized influences.

Most negative aspect of Indian Judiciary system is its lethargic and slogging approach. There are countless instances wherein cases run for decades and the defendants pass away being awarded with the proper judgment. Indeed this is shameful for any civilized country that boasts about its advancing prosperity. According to the records till January 2005, more than 30,000 cases pending at the Supreme Court, 33.79 lakhs in high courts and more than 2.35 Crore in lower courts. With respect to the population of India, the ratio of judges to people is 10.5:10,00,000 which is no doubt the poorest in the world.

There should be an even arrangements for the pending cases and the new cases. The court remains closed for days just like school holidays which are nothing but an unnecessary luxury. With so much work pending, Government should trim down the number of holidays and day offs. Legal system should not be a purchasable commodity any more. Politicians should be strictly restricted from directly or indirectly interfering in judgments. Moreover the corrupt political leaders must be treated with utmost stringency.

But, in Kasab’s case.. his death sentence was upheld by the Supreme Court on 29 August 2012, and his mercy petition was rejected by the President on November 5. Stating that eleven mercy petitions from persons on death row were pending before the President prior to Kasab filing his petition, he said the convict’s lawyer and family in Pakistan were not informed of the imminent execution which was in violation of international standards on the use of the death penalty. The manner in which Kasab was hanged raises more questions than


It is hard to believe Home Minister’s Version that the PM was unaware

of the Hanging. If the PM was unaware how did the High Commissioner

deliver the information on Kasab’s Hanging to Pakistan before he was

hanged. Did the home ministry inform Indian High Commissioner without

informing the external affairs minister and the prime minister?

Did the Home Ministry Inform the High Commissioner through the external

affairs minister without informing the prime minister?

Did the External Affairs Minister act without informing the prime


It looks like the Government is Hiding Something.

Kasab was a weapon, used by terrorists and then by politicians. Victims are we people!


While the death penalty is legal in India, there is a growing lobby of highly influential persons and others who are pressing for its abolition. They include such notables as the senior Supreme Court lawyer Colin Gonsalves, former Supreme Court Justice AK Ganguly and Justice KT Thomas, whose bench upheld the death penalty in the Rajiv Gandhi assassination case.

Commenting on India’s growing ambivalence on the contentious issue of death penalty, The Economist observed in October 2011 that the case of Ajmal Kasab is being viewed as a “big test” for India. “It will be a brave Indian who demands that he be spared.”

Internationally, Amnesty International is in the forefront in challenging the death penalty while calling it “the ultimate denial of human rights” and “the premeditated and cold-blooded killing of a human being by the state in the name of justice.” What about all those innocents who were killed by Kasab??? Kasab killed Indians in cold blood if he would not be hanged and then he would have point his thumb at the nose of Indians and on the families who lost their loved ones due to acts of this terrorist.

This “rarest of rare” business is one day going to lead to a situation where even to arrest someone who has committed a crime; we will be doing the rounds of the courts that the crime was rarest of rare. The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.”

Judge: Kya bhai, kya kar diya ab?

Accused: Zyada kuch nahi huzoor – 3 khoon, 2 rape, jisme se ek saat saal kee bachchi thee, 14 bomb blast jisme do charso bakrey murey….

Judge: Ummm…mmm ; nothing rarest of rare here. Let the accused be set free. We are a liberal country….

But that will be OK because Congress will do whatever it takes to get the votes of Muslims. We all saw the real face of Congress during recent UP elections. What a shame. Bad luck for our country.

Whether death penalty is to be continued or not, is a different debate. But Kasab’s case is plain and simple; he was a cold blooded murderer and deserves no mercy. Death penalty would be an easy way out for him in fact…He should be made to regret every moment of his life for what he did. Reformation is not possible for such animals, though it may be fashionable for human rights activists to argue so.

There was a better chance of him dying of heart attack, his cholesterol levels would be going up with all the food items, Biryani that he was eating inside! I don’t understand that why our government was providing him all sorts of facilities inside the jail.. and why not he was treated like other criminals.. The Maharashtra Government has spent over Rs. 25 crores to keep 26/11 terrorist Ajmal Kasab alive since he was captured in 2008. Speaking in the Maharashtra Assembly state Home Minister RR Patil gave details of expenses for the sole surviving Pakistani terrorist.

Even as Kasab’s trial continues in the Supreme Court, the cost of keeping him alive is a huge burden on the state exchequer. While the Government has spent Rs. 5,25,00,000 on his high security cell at Mumbai’s Arthur Road jail, his security entrusted to the Indo Tibetan Border Police (ITBP) has cost the state over Rs. 19 crores.

Mr Patil also said that the state has once again asked the Centre to waive the charges, since terrorism is not a state subject alone. On the other hand, the cost of salaries of the policemen who protect Kasab cost the state Rs. 1,22,18,406. While his medical expenses cost Rs. 28,066, the state has paid another Rs. 34,975. There were many rights and privileges that kasab had in jail..

Also if we let him live, thousands will come onto our soil from pak ( as pak is imploding ), kill a few and spend rest of life in safe jails ( instead of being killed piece by piece in pak )

And if we keep him in jail who will pay bills???

We are not even able to feed our own country, You want to spend millions on feeding and security of a killer terrorist ???? All are equal in the eyes of the law but some are more equal than others.

Today there is no fear amongst the criminals. And unless there is a fear of punishment, there is no way we can see a drop in the crime rate. Our Preamble provides us many Acts for criminals, infect there is fixed punishment for each and every crime but still neither crimes are stopping nor criminals are minimizing. Instead, if these criminals are executed immediately after their crime, it will instill such a fear in the minds of people that such acts will come down drastically. Will this happen is a million dollar question!

Hypocrisy is the standard of Indian psychology, either abolish death penalty immediately or continue to use it without any of so called ‘reservations’ and end the waiting of more than 100 convicts who still do not know their fate. Death penalties are needed to have an order in the society, no rapist, murderer or a dacoit should feel ‘safe’ thinking whatever they do and get convicted they can still be alive and well and ‘stay’ in jails forever.

If religion and provocation and age are the factors which can bestow life for the criminals, terrorism in India will become the order of the day. Anybody can enter within our territory, any time and kill as many people as they like. In short there is no value for the life of an Indian in the eye of our own Judiciary.

17 mercy petitions pending before president:-

Mercy petitions of 17 people on death row were pending before former President Pratibha Patil. Most of the pleas are from those convicted of murder or rape. The petition of Sushil Mumu from Jharkhand, who was convicted of killing a nine-year-old child for a religious ritual, has been pending since 2005. Like this case many mercy petitions are pending before the President.

Pros and cons for death sentence

Different countries have different guidelines for Capital Punishment. In some countries, drug trafficking and corruption may be a capital offense, while in others, death penalty is only given to murderers. I think capital punishment is a very good way of making people scared of committing crimes and understanding the value of others life which they take away from them without even thinking once but there is a great constraint to this that not all who are accused are criminals there is a never ending list of innocent people who have beard the pain of a punishment which they never committed although there are some crimes which are clearly evident like rape should be given capital punishment, because it is a deliberate act and for some other cases the extent and severity of crime should be considered..

You see, a thief is always a thief and a murderer is always a murderer. Why should the government waste people’s taxes on thieves and murderers? Even when you hurt an animal you get a punishment under law. Then what is the punishment for killing 166 people. Is it keeping him in prison and teaching him values with good food & place to sleep with our tax money.

The Sikhs don’t want Bullar and Rajoana to be hanged, the Tamils don’t want the Rajiv assassins to be killed and the Kashmiris don’t want Afzal Guru to be killed. In fact, what all these communities together are asking for,…”It’s wrong to surmise everyone in respective communities wanted that way! No generalization please! aam aadmi is not at all interested in the issue. Let the law makers, not the President, decide about the fate- after all, their own ‘house’ was attacked!


Justice AK Ganguly of the Supreme Court has termed the award of death sentence as “barbaric, anti-life, undemocratic and irresponsible” which is “legal” in the prevailing judicial system.

Describing this as his “personal view”, Justice Ganguly said the Constitutional guarantee of right to life cannot be subjected to “vague premises”. The doctrine of the crime falling in the ’rarest of rare’ category in awarding the death penalty was a “grey” area as its interpretation depended on individual judges, he said, adding the “sentencing structures” should be in consonance with the goals set by the Constitution. The guilt of an accused should be proved beyond “lingering” doubt in cases warranting the award of capital punishment, which has so far not yet been evolved.

I don’t know where the hell Indian sentiment is! Instead of showing some toughness on terrorism, politicians are busy protecting their vote banks. With this kind of politics, we are sowing the seed of disintegration. We have proved ourselves as the soft state, completely non-serious about the rule of law, where religion and politics comes first and rule of law comes third. It is only in India where persons like Kasab and others found guilty on waging war against our country can survive so long. Take example of US and UK where the convicted were tried and executed with in a short period. But in India we keep on trying if some one is non Hindu.

He cautioned that before giving death penalty, a judge must be “extremely careful” and weigh “mitigating and aggravating circumstances”. The Judge said the state must adduce evidence that the accused cannot be reformed.

This strategy results in a tit-for-tat game with the two sides retaliating to each other’s actions in similar fashion. If there is a man linked to India on death row in Pakistan, be assured there will be one awaiting a similar fate in India. Today, Mohammad Afzal Guru stands convicted in India for storming the Lok Sabha in December 2001. In Kot Lakhpat jail, Lahore, we have Sarabjit Singh arrested in 1990 and convicted of carrying out serial bomb blasts in Faisalabad, Kasur and Lahore.

Sarabjit’s case will be coming up in court shortly and there are many reasons why thousands in Pakistan, as well as India, feel that he should not be hanged.

Sarabjit was sentenced to death in 1991 by Lahore’s anti-terrorism court. He filed a petition before the Supreme Court which was dismissed in 2005 on the grounds that it was time-barred. An appeal to review the petition was again dismissed in June 2009 when the government-appointed lawyer for the convict failed to appear before the court on two consecutive occasions when the case came up for hearing.



Anti-death sentence lobbyists ask if the rapist-killer’s death sentence is commuted, would it not give him an opportunity to reform himself, and spread the message of non-violence to others with similar criminal intent. Is death penalty the only form of justice that could satisfy the family of a victim and society at large? Apparently, these issues are debatable, and in the absence of any legislation and judicial decisions, the debate will largely remain academic.

The lack of professional hangmen should make the Law Commission’s 187th report to the government, submitted in October 2003, worthy of consideration. The Commission recommended alternative methods such as lethal injection, which would require rendering the convict unconscious with anaesthesia before injecting the lethal dose, in view of the physical pain and suffering a convict undergoes when he or she is hanged until death. I can’t explain why but I feel pity for him. We should be criticizing the system that creates situations where ordinary people turn to killing people to feed their family. It’s very unfortunate what happened. Please do not spread hatred…..he was a young man lured in by terrorist….no one is born a terrorist but made a terrorist by extremists…..he was a poor person who was lured in to do this because of money….I am Indian myself, but not a hater….do not show others that we Indians are haters…..

In India “death in the midst of life” is a literal, not figurative, notion. Along the Ganges River, for instance, bodies are regularly cremated, and the odor of burning flesh fills the air. And in the city of Calcutta, dead bodies become a problem to those responsible for keeping the streets clean. Thus, it is not surprising that in India’s sacred texts and stories, how one’s life determines one’s fate after death.

What we should do with the Godhra culprits…about 1000 people were killed during riots why we talk only about hanging Kasab? What about Modi who was the one n only one person/ maker of 2002 riots, that was not created by normal people it was a planned by our lovingly Gujrat CM Mr. Naredra Modi. And how shamed it is that Gujrat people and many BJP leaders want him as a prime minister of our country!! Why we people are not talking about Babu Bajrangi and Maya Kodanani .. they are also terrorists… hang till death to all three.


Killing Kasab will not stop the crime but if he alive and we give him torture, the people behind him may think once to attack again and if we kill him he will be happy and his team will attack again and again. I am not against the Kasab personally but the act which he had committed should be reciprocated, in a way, that any other person don’t ever try it due the consequences occurs after that. I hate offence not the offenders…!! So inspite of being an Indian I will not kill ‘Kasab’, rather I want to kill the offensive mood of the people like ‘Kasab’….!! Kasab’s hanging should act as a warning to other terrorists. But what about the main culprits who motivated him to commit the brutal murders?

Ram Chandr keh gaye siya se, Congress raj ayega, Anna bukh se marega, Kasab briyanniii khayega…

Here are main things which I want to mention:-

 At one place our Constitution says that “everybody is equal in the eyes of law” but there is not any difference between criminals who are doing wrong with Indian Public.

 There are differences between Dhananjoy Chatterjee and Afzal Guru and Kasab, because all the people who come in India did terrorism but they are not belongs to India and don’t have the Indian nationality.

 We all think that vote bank politics protecting terrorists.

 I think the government is waiting for new major incident like “Kandhar Hijack”.

Government is run by the politics and politician not by any other person as we all know the truth of our politicians therefore we can say yes they are waiting for another crime or attacks. Ruther to punish terrorist or the other to create.


Freedom of speech is the most abused and misused right in India. These so called Human Rights activists are just lime-light seekers and nothing more.

Women get raped and murdered, people in some slums use water from the same tank for consumption and other purposes, untouchability is still prevalant in many parts of India, dowry system, female feticide and there are many such gross violations of a human being’s right to live a free, healthy and fair life. Our HR activists are not bothered about such things because fighting for these causes does not give them the lime-light. Instead they wait for an execution of a terrorist or a rapist to raise the voice. For a man who shot at unarmed innocent people killing and injuring them death penalty is completely justified and absolutely correct. My request to these activists, please go out into the society and try to fight for solving real problems instead of making useless statements.



Unless otherwise indicated, all posts by a regular or guest contributor to this blog reflect that contributor’s own personal opinions and views and not any institution to which the contributor may be affiliated. Posts should not be attributed to the blog as a collective or to any other regular or guest contributors.

Furthermore, by expressing their views and opinions to this blog, contributor’s exercise their freedom of speech and expression protected by international human rights instruments and the Constitution of India.




Homosexuality-the legal arguments against it

safder kazmi


Article 14 of the Constitution of India guarantees two rights that the State shall not deny:

  i.            Equality before the Law

ii.            Equal protection of laws within the territory of India.

The former would mean that irrespective of any discrimination, law has to be absolutely applicable in the same manner to all. This has been an adoption of rule of law in Britain, the theory propounded by A.V. Dicey.[1] And the latter, postulates the application of the same laws alike and without any discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances.[2] In order to violate the principle of equality enshrined in Article 14 of the Constitution of India, law has to discriminatory in nature in similar circumstances. However, § 377 by a bare perusal does not qualify to be in the arena of such violation because it is applicable only to whoever voluntarily commits the said offences. Section  377 is in conformity and is in furtherance of Article 14 as it is applicable on all without any remotest discrimination.

Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transaction by the legislature for the purpose of achieving specific ends. Classification should be reasonable, should fulfil the following two tests:

i.        That the classification is founded on an intelligible differentia and

ii.      That differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. [3]          

In the light of preceding paragraph, it is noteworthy to bring to the light the fact that § 377, IPC has been incorporated in the statute as a curative and punitive provision in reference to sexual offences which are otherwise not included in any other section. Therefore, it can be rightfully interpreted as a residuary clause for crime related to sexual offences. Therefore, the provisions of § 375-§ 377 have to be read together and not separately if the true intention of the legislation has to be brought to light. Justice Parke has held that in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further.[4]

Thus, while enacting this Section, did not intend to include consensual and private sex within the ambit of § 377, IPC. Justice Scalia has observed that consensual sodomy, like heterosexual intercourse, is rarely performed on stage.  If all the Court means by acting in private is on private premises, with the doors closed and windows covered, it is entirely unsurprising that evidence of enforcement would be hard to come by.  (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.)  Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a fundamental right, even though all other consensual sodomy was criminalized.[5]

Therefore a  statutory provision has to be interpreted in such way that the reasonableness is judged with reference objectives of legislation and not cosmetic moral considerations.[6]



A  grand step was taken by the Court by expanding the scope of Article 21 of the Constitution of India it argued that lifein Article 21 does not mean merely animal existence but living with human dignity.[7] Therefore, the act of homosexuality itself is animal like and does not reasonably qualify to be within the ambit of natural and legitimate acts. It has been scientifically proved on various occasions that it becomes a cause of severe health hazards, and it the duty of the State to protect individuals from such activities which might hazardous to their health and the health of the society.

The Federal Centres for Disease Control and Prevention (CDC) and other health agencies report a disturbing increase in high-risk sexual behaviours and substance abuse among some groups of MSM in recent years.[8] Media reports also confirm a trend in dangerous behaviours among MSM, such as:

i.            Bug chasing. Another disturbing phenomenon among some MSM involves HIV-negative MSM who actively seek HIV infection by engaging in high-risk sexual activities with infected male partners. A 2003 Rolling Stone article brought national attention to “bug-chasing,” which the article described as “an intricate underground world that has sprouted, driven almost completely by the Internet, in which men who want to be infected with HIV get together with those willing to infect them.”[9] Carlos, a “bug chaser” who claimed to have had several hundred sexual partners and said he regularly had sex with three or four HIV-positive men a week, told Rolling Stone, “I know what the risks are…But I think it turns the other guy on to know that I’m negative and that they’re bringing me into the brotherhood. That gets me off, too.” [10]

ii.            Physical Damage: Homosexual men who engage in anal sex are at a significantly high risk for numerous health problems. The high-risk nature of anal sex is simple: the rectum was not designed for sexual intercourse. According to amfAR, “compared to the vagina, rectal tissue is much more vulnerable to tearing during intercourse and the larger surface area of the rectum/colon provides more opportunity for viral penetration and infection.”[11]In her book, Epidemic, Dr. Meg Meeker, a pediatrician, writes: “The anus opens into the rectum…which is not as well suited for penile penetration as the female vagina is. Both the anus and the rectum have rich blood supplies, and their walls, thinner than the walls of the vagina, are easily damaged. When penetration occurs, it’s easier to tear the blood vessels, which in turn increase the risk of acquiring or receiving an infection…”[12]

iii.            Anal Cancer: Homosexual men are also at an increased risk for anal cancer. [13]According to the American Cancer Society, risk factors for anal cancer include: Human papilloma virus (HPV), which causes anal and/or genital warts; multiple sexual partners; and anal intercourse.[14] Due to concerns about anal cancer, some health professionals now recommend anal Pap Smears for MSM.[15]

iv.            STDs: Compared to heterosexual men, MSM are at an increased risk of contracting a number of dangerous STDs, including HIV/AIDS. According to the GLMA, these STDs include: “urethritis, proctitis, pharyngitis, prostatitis, hepatitis A and B, syphilis, gonorrhea, chlamydia, herpes, genital warts and HIV infection.”[16]

v.            HIV/AIDS: Despite efforts by gay activists to disassociate homosexuality from the spread of AIDS, homosexual behavior, particularly among males, is associated with an increased risk of HIV. Although HIV can be transmitted through both vaginal and anal intercourse, receptive anal sex without a condom is at least 10 times more risky for contracting HIV than vaginal sex without a condom, according to amfAR.[17]

the word ‘expression’ occurring in Article 19(1) (a) of the Constitution canNOT  be read disjunctively from the word ‘speech’ and HENCE CAN NOT  include expression of sexual orientation of a citizen

Article 19 (1) of the Constitution of India reads as follows:

(1) All citizens shall have the right:

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(c) To form associations or unions;

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India…………

If the intention of the legislation was to read the two words disjunctively, then the same would have been separated while the Constitution was being drafted. The Hon’ble Supreme Court has held that the intention of the legislature is primarily to be gathered from the language used which means that attention should be paid to what has been said.[18] Furthermore, the Hon’ble Supreme Court has also held that a construction which requires for its support addition or substitution of words or which result in rejection of words as meaningless has to be avoided completely.[19] It should be observed for better interpretation of this Article that the legislation has made a deliberate effort of using the word “And” in Article 19 (1) (a) and not “or” as it has been used in Article 19 (1) (c) and Article 19 (1) (g). Thereby, this means that “And” is a compulsive inclusion and its exclusion would change the meaning and destroy the essence of the Article.

The scope of Article 19 (1) (a) has rightfully been expressed by this Court that the right to express one’s conviction’s and opinions freely, by word of mouth, writing, printing, picture or in any other manner (addressed to the eyes or the ears). It includes the expression of one’s idea by any “visible representation”, such as by gestures or the like.[20] Therefore, that Sexual orientation cannot be legitimately interpreted to be within the purview of Article 19 (1) (a).

Relying on the above mentioned points, the words freedom of speech and expression have been written together and separating them for a wider interpretation would be absurd and unjust. In this regard, Jervis, C.J has rightfully held that ifthe precise words are plain and unambiguous, then the Court is bound to construe them in their ordinary sense, the failure of which will leadto absurdity or manifest injustice.[21] Thus, the intention of the legislation was to read the words together and therefore it would ultimately lead to manifest injustice if such a wide interpretation is taken.

The Constitution strikes a balance between individual liberty and social control. A Division Bench of the Hon’ble Delhi High  Court has held on the above mentioned balance by holding that Article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality.[22]

sexual intercourse of the same sex is against such established and recognised norms of human behaviour that indulgence in it may justify curtailment of individual liberty by the State within parameters of a reasonable restriction on grounds of public decency or morality under Article 19(2).

India is a diverse nation having a rich and multi-cultural heritage accommodating a majority of the religions in the world.

Our Constitution guarantees in its Preamble that India is a secular state and thus, implying that the religious sentiments of all the cultures in this community are to be respected.[23]Secularism is a basic feature of the Constitution,[24] Rule of Law[25] and the Rule of Equity.[26] Therefore,a legislation cannot be made or amended which contravenes any of the said norms of any religious community existing in our country. Acts of homosexuality are condemned both in text and context by more than one religion being practiced in our country. The Srimad Bhaagvad Gita states that a Hindu marriage joins two individuals of opposite sex for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together. It also joins two families. Furthermore, the Quran condemns homosexuality by stating that Of all the creatures in the world, will ye approach males, “And leave those whom Allah has created for you to be your mates? Nay, ye are a people transgressing“[27] and even prescribes a punishment for such acts.[28] Even the canon law prohibits such acts.

Therefore, reasonable restriction is imposed in order to prevent that religious sentiment from being hurt of any particular community. The Hon’ble  Delhi High Court has held that the words ‘reasonablerestriction’ corresponds to the societal norms of decency, e.g, respect of rights or reputation of others, protection of national security or of public order, or of public health or morals etc.[29]

In its judgement, the Hon’ble Punjab and Haryana High Court have referred to Lord Devlin to emphasize the need of morality in the society. The Hon’ble Court has said that Lord Devlin appears says that society has the right to enforce morality as such on the ground that a shared, morality is essential to society’s existence, it is not at all clear that for him the statement that immorality jeopardizes or weakens society is a statement of empirical fact. It seems sometimes to be an a priori assumption, and sometimes a necessary truth and a very odd one. The most important indication that this is so is that, apart from one vague reference to “history” showing that the loosening of moral bonds is often the first stage of disintegration, no evidence is produced to show that deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society.[30]

The Supreme Court has held that if the Court finds on scrutiny, that the law has not overstepped the constitutional limitations, the court will have to uphold the law, whether it likes it or not.[31]Furthermore, the Hon’ble Supreme Court has even held that if a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to the other persons.[32]

Furthermore, the Hon’ble Supreme Court of the United States of America has held that the right to engage in homosexual acts is not deeply rooted in any country’s history and tradition.[33] American Courts have also held that countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority is belief that certain sexual behavior is immoral and unacceptable constitutes a rational basis for regulation.[34]In relevance to the instant matter, it has been held by that engaging in homosexual acts outside the scope of marriage is not protected by any constitutional mandate.[35]The Hon’ble Supreme Court of the United States of America has observed that State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in validation of laws based on moral choices.[36]

[1]Wade and Phillips, Constitution and Administrative Law, 87 (1977)

[2]Mohd. Shaheb Mahboob v. Dy. Custodian, AIR 1961 SC 1657

[3]Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 487

[4] Becke v Smith (1836) 2 M&W 195

[5]Lawrence v. Texas, 539 U.S. 558 (2003)

[6] R.K. Garg v. Union of India, (1981) 4 SCC 675

[7]Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746

[8]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[9]Freeman, Geoffery, “Bug Chasers: The men who long to be HIV+,” Rolling  Stone magazine, February 6, 2003.


[11]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[12]Meeker, Meg, MD, “High-Risk Sex,” Epidemic: How Teen Sex is Killing Our Kids, Regnery Publishing, Washington, DC: 2002, pgs. 152.

[13]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.111.

[14]American Cancer Society, “What are the risks of anal cancer,” All About Anal Cancer, www.cancer.org.

[15]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.120.

[16] Ibid

[17]amfAR, “HIV Prevention for Men Who Have Sex With Men,” Issue Brief  #4, June 2006, pgs. 1-2.

[18] Gwalior Rayon Silk Mfg. Co. Ltd. v. Custodian of Vested Forests, AIR 1990 SC 1747

[19] Shyam Kishori Devi v. Patna Municipal Corporation, AIR 1966 SC 1678

[20]Romesh Thapar v. State of Madras, (1950) SCR 594

[21] Abley v. Gale, 20 L.J.C.P (N.S) 233 (1851); Arul Nadar v. Authorised officer, Land Reforms, (1998)7SCC 57

[22]A.K. Gopalan v. State of Madras, (1950) SCR 88 (253-54)

[23] See The Preamble, The Constitution of India, 1950

[24]Shri Adi Visheshwara of Kashi Vishwa Nath Temple, Varanasi v. State of U.P, (1997) 4 SCC 606

[25]High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patel, (1997) 6 SCC 379

[26]Indira Sawhney v. Union of India, (2000) 1 SCC 168

[27] Qur’an (26:165-166)

[28] Qur’an (4:16) – “If two men among you are guilty of lewdness, punish them both.

[29]Director General, Directorate General of Doordarshan v. Anand Patwardhan, AIR 2006 SC 3346

[30] Kailash Alias Kala v State of Haryana, 2004 CriLJ 310

[31] Anwar v. State of J&K, AUR 1971 SC 337(388); Arunachal v. Khudiram, (1994) Supp (1) 615, para 75

[32]Chiranjit Lal v. Union of India, (1950) SCR 869; State of Bombay v. Balsara, (1951) SCR 682 (708-09)

[33]See Bowers v.  Hardwick, 478 U. S. 186(1986)

[34]Williams v.  Pryor, 240 F. 3d 944, 949 (CA11 2001)

[35] Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999)

[36]Supra Note 14

Carrying forward rule in sugar industry


Under the present regulated release mechanism for sugar industry, the centre fixes the quota of levy sugar and non levy sugar. Levy sugar being the quota/percentage of sugar to be kept aside for distribution through public distribution channels by producers. As per the Clause 2 of the Levy Sugar Supply (Control) Order, 1979 the Central Government may, from time to time, by order issue directions to any producer or recognized dealer to supply levy sugar of such type or grade, in such quantities and from such place of manufacture or storage to such persons or organizations or to such Governments, as may be specified in the order and at a price not exceeding the price determined under Section 3-C of the Essential Commodities Act, 1955. Section 3 of the Essential Commodities Act, 1955 describes powers of the Central Government to control production, supply, and distribution etc. of essential commodities. Levy sugar means sugar requisitioned by the Central Government under Section 3 of the aforesaid Act especially sub- section (2) (f) thereof. Section 3-C of the said Act describes powers of the Central Government to determine the minimum price of sugarcane, manufacturing cost of sugar, duty or tax and securing of reasonable return on the capital employed in the manufacturing of sugar and for that different prices may be determined from time to time for different areas or for different factories and for different kinds of sugar.

From 1985-86 to 2009-10, the percentage of levy sugar and non levy/free sugar was being fixed by the Govt. of India and since 2001-02, the percentage was fixed as 10% levy sugar and 90% free sale. The Department of Food and Public Distribution (Directorate of Sugar), Govt. of India had found that the Governments and the Corporations were not lifting allotted sugar from the factories which resulted in huge accumulation of sugar with the sugar factories affecting their financial position also, hence it issued a circular to all the factories dated 18.06.2002( Annexure-3) allowing Sugar Mills to sell equivalent quantity of unlifted levy sugar after lapse of three months from the date of allotment, in the open market, but levy obligation of the concerned Sugar Mills was to remain unchanged, meaning thereby that it will shift to the next year in addition to next year’s levy sugar. The situation of lifting of levy sugar by the government remains unchanged over the years. In a Cooperative Sugar Journal Vol.40, April, 2009 No.8 (Page nos.85-86), a monthly publication by National Federation of Cooperative Sugar Factory Limited, New Delhi, it can clearly be seen  that although levy entitlement for the year 2005-06 at the rate of 10% was 19.27 lac tonnes, but the Government/Corporation lifted only 8.01 lac tonnes; similarly, levy entitlement for the year 2006-07 at the rate of 10% was 28.36 lac tonnes, but the Government/Corporation lifted only 9.73 lac tonnes; whereas levy entitlement for the year 2007-08 at the rate of 10% was 26.36 lac tonnes, but the Government/Corporation lifted only 9.2 lac tonnes. This makes it quite evident that there has not been major deviation either in the production of the sugar or the demand of sugar or in the lifting of levy sugar for all these years rather the Government/Corporation has simply not been able to lift even close to 5% of their levy sugar entitlement. It is primarily because of this reason that the Government/Corporation has been trying again and again to seek for carrying-forward of there past years unlifted levy quotas .It is important here to understand the reasonableness and rationale behind this carry forward rule specifically with respect to the public distribution of  sugar as an essential commodity. If a person does not get sugar for any reason for two months, it is not that in the third month, he will consume three times the quantity. The distribution under Public Distribution System does not get increased in subsequent periods. His requirement each month he fulfills by purchase elsewhere. This clearly shows that the main object and policy behind, imposition of levy quota on sugar producers, is the distribution of sugar through public distribution and this in no way gets fulfilled by lifting of unlifted levy sugar in the subsequent years. Moreover under the Sugar (Control) Order 1966 and orders issued, a sugar mill is not free to stock its production of free sale sugar at will. It is obliged to make weekly/monthly dispatches as sale of quantities fixed by Central Government; the failure to abide by with attracts stiff penalties and prosecutions. It will, thus, be seen that all the free sale sugar of a year is sold immediately. Now if the levy liability is not lifted then even this stock is sold but liability continues. Thus, in the year, if the sugar mills are required to deliver past levy liability as well as current levy liability, all at once, they will have in sufficient stocks to meet the same, thus, exposing them to penalties and prosecutions and that too for no fault of theirs rather for fault of State. This position cannot be but termed as unfair, arbitrary and unreasonable within the meaning of Article 14 of the Constitution of India. Thus, this carry forward rule, which was earlier held to be valid, cannot hold good anymore and the only thing that stands justified is to give a reasonable time period of 3 months to Government/Corporations to liquidate their accumulated carry forward liabilities. This has clearly been reiterated by a recent order of the Patna High Court[1].


[1] M/S Vishnu Sugar Mills Limited vs. The Union Of India & Ors on 12 January, 2012