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Sentencing after conviction is a knotty problem in cases relating to capital offences. Trial judges are called upon to make a decision on whether only a death sentence will meet the ends of justice, or a life term will be enough.
As a salutary norm, the Supreme Court has laid down that the death penalty can be imposed only in the “rarest of rare” cases. Subsequent judgments have sought to buttress this principle by holding that the gruesome nature of the offence may not be the sole criterion to decide what brings it under the ‘rarest of rare’ category.
The offender, his socio-economic background and his state of mind are also key factors in this regard. In practice, the sentencing part of the trial takes place after the court records a conviction.
It is often done on the same day as the verdict, with only some limited arguments being heard on ‘mitigating circumstances’ from the convict’s side and on the ‘aggravating circumstances’ from the prosecution.
The latest order of a three-judge Bench, referring to a Constitution Bench the issue of granting a meaningful opportunity to convicts on the question of sentence, is a big stride in humanising the sentencing process.
Same-day sentencing has been upheld by several judgments, with the Supreme Court often saying where a meaningful opportunity has been given to the convict to present mitigating factors, the mere fact that death was awarded on the same day would not vitiate the sentence.
Some High Courts have given a chance to convicts to present mitigating factors so that the inadequacy of the sentencing process in the trial court does not matter.
Present thinking, however, is veering towards the view that courts must elicit reports from the jail authorities, probation officers and even trained psychologists to assess the mitigating factors in favour of not imposing the death penalty.
In its referral order, the Bench has also raised the question as to the stage at which mitigating factors are to be presented. It has noted that the scales are tilted against the convicts now, as it is only after conviction that they are able to speak about mitigating circumstances.
The prosecution, on the other hand, presents its case from the beginning on how heinous the crime was, and how much the accused deserved maximum punishment.
The Constitution Bench may come up with new guidelines under which the trial courts themselves can hold a comprehensive investigation into factors related to the upbringing, education and socio-economic conditions of an offender before deciding the punishment.
The legal and moral dilemma of sending someone to the gallows, of course, will subsist only as long as the death penalty remains on the statute book.
City
Law against workplace harassment poorly implemented: DCW (Page no. 2)
(GS Paper 2, Polity and Governance)
The Delhi Commission for Women (DCW) submitted a report to the city government pointing out the “sorry state of affairs” in the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.
The law mandates the constitution and proper functioning of a Local Complaints Committee (LCC) in every district.
The DCW chief Swati Maliwal in her report to the government stated that between 2019 and 2021, only 40 complaints were received by all the LCCs. It added that even the small number of complaints received by the LCCs were not dealt with in a time-bound manner.
The Commission also stated that the committees have not been provided dedicated office space, budget, and staff.This cripples their functioning. For instance, South, West and Shahdara districts have informed that there is no dedicated room or staff allocated for the functioning of the committees.
The DCW also flagged the lack of awareness about the existence of these committees. It recommended that an efficient complaint receiving mechanism be set up online as well as offline.The sorry state of affairs in the implementation of the law against sexual harassment at workplace in the Capital is distressing.
Editorial
The hijab case and the essential practices doctrine (Page no. 6)
(GS Paper 2, Polity and Governance)
A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka.
Over the last few days, counsel for the petitioners has addressed a bundle of different issues, ranging from the rights of students to freedom of expression, conscience, and religion to the disparate impact that the ban has had on the right to education of Muslim women.
In theory, the issues emanating out of these submissions ought to be capable of easy resolution, through an application of ordinary doctrines of constitutional law.
But, as transcripts from the hearings have shown us, every time an argument over religious freedom in India is made, it invariably mires itself in the court-crafted doctrine of essential practice.
This requires judges to engage not merely in legal analysis but also in theological study — something an education in the law scarcely equips one to perform.
The Karnataka High Court made three primary findings in its judgment. First, it held that the use of a hijab is not essential to the practice of Islam. Thus, the right to freedom of religion was not violated.
Second, it ruled that there exists no substantive right to freedom of expression or privacy inside a classroom and, therefore, these rights were simply not at stake here.
Third, it held that the ban did not stem directly out of the government’s order, which only called for a uniform dress code to be prescribed by the State or school management committees, and, hence, the law did not discriminate, either directly or indirectly, against Muslim students.
To decide on the correctness of this verdict, the Supreme Court need not answer all the questions posed before it. A reversal of any of the three findings made by the High Court ought to result in a nullification of the ban.
If the petitioners can establish that the law’s seemingly neutral language does not negate the ring-fencing of most forms of expression against the singling out of the hijab, and for that reason if they can show that Muslim women have been discriminated against, the Bench must reverse the High Court’s judgment.
Similarly, if the petitioners can establish that there is nothing to suggest that there exists no right to freedom of expression within the confines of an educational institution, then the onus shifts to the State to show that the ban is proportionate and legitimate.
It is the people of Pakistan who are suffering (Page no. 6)
(GS Paper 2, International Relations)
A humanitarian act can also be part of smart diplomacy, and India ought to make a distinction between the government and the people
Pakistan is facing a severe crisis that is unprecedented. A third of its territory is under water, the death toll has crossed 1,400, and over 33 million people are suffering from the disruption caused by the flood.
Two million acres of farmland are under water; 5,735 kilometres of transport links, and 1.6 million houses have been washed away, while 7,50,000 heads of livestock have been lost.
According to the World Health Organization, 6.4 million people need support, while 16 million children are in distress with 3.4 million of them needing ‘life-saving’ support, according to UNICEF.
Water-borne diseases are spreading. The crisis, in retrospect, began on June 14, 2022. Sind and Balochistan experienced 784% and 500% more rain, respectively, according to Sherry Rehman, Minister of Climate Change.
The Pakistani government failed to act promptly, and political leaders have not bothered to call for a ceasefire to their quarrels that prevent the government and society from giving their undivided attention to the catastrophe.
On August 26, 2022, Pakistan Prime Minister Shehbaz Sharif cut short his visit to Qatar and met with international organisations and a few governments including those of China, the United States and the United Kingdom.
An amount of $500 million was pledged, with the World Bank giving $350 million and the United Nations World Food Programme (WFP), $110 million.
The obvious question is about what India has done and should have done. On August 29, 2022 Prime Minister Narendra Modi tweeted: ‘Saddened to see the devastation caused by the floods in Pakistan.
We extend our heartfelt condolences to the families of the victims, the injured and all those affected by this natural calamity and hope for an early restoration of normalcy.’
The Indian media has reported that the matter of sending aid to Pakistan has been under discussion and that Pakistan has not asked for help so far.
The day Mr. Modi tweeted, Miftah Ismail, the Finance Minister of Pakistan, told the media that the government was thinking of re-opening road traffic with India. Till now, Pakistan has not declared its decision in the matter.
Pakistan often finds it difficult to formulate a policy on relations with India based on enlightened self-interest. The closure of road traffic following the change in the status of Jammu and Kashmir in 2019 was unnecessary posturing by Pakistan.
Opinion
From Lodha to Ramana: the Chief Justices of the Modi era (Page no. 7)
(GS Paper 2, Judiciary)
In its most essential form, the Indian Supreme Court is the custodian of the Constitution of India. In this role, its primary responsibility is to ensure that the fundamental rights of citizens guaranteed under the Constitution are not diluted, eroded, or otherwise impinged upon by the state.
It might have begun its existence as a passive court, but over the decades, it has become what I believe to be the most powerful court among its peers in the world.
This superior status manifests itself in at least three ways. Firstly, through its decision in KeshavanandaBharati , the Court assumed the power of judicial review over constitutional amendments.
Secondly, through multiple decisions, it assumed the power of judicial appointments to itself and High Courts.
And thirdly, it expanded the fundamental right to life and liberty under Article 21 of the Constitution through guaranteeing citizens unique and wide ranging protections, and ensuring the right to approach courts through public interest litigation.
At its helm sits the Chief Justice of India, or the CJI. The duties and responsibilities that come with the office of the CJI are unmatched by any other role in the country.
In theory, at least, the CJI must exhibit judicial and administrative talent of an unusually high order. A sample of the responsibilities of the office include selecting judges for appointment to the higher judiciary, deciding the number and composition of benches to adjudicate on different kinds of cases, besides performing normal judicial duties.
As George H. Gadbois puts it, the Chief Justice should be ‘a competent administrator, a shrewd judge of men and personalities, and a towering personality himself’.
But, by dint of circumstance, and to some degree by choice, the Indian judiciary evolved to follow the seniority convention in appointing the Chief Justice of India.
As a result, while the persons who eventually become Chief Justice may not have been appointed for exhibiting certain qualities, they are compelled to develop these skills on the job, and some have done so with aplomb, e.g., Justice Subba Rao, Justice Venkatachaliah, and Justice J.S. Verma.
However, an unfortunate fallout of the seniority convention is that Chief Justices tend to have very short tenures in office. Over 75 years, the Indian Supreme Court has already had 49 Chief Justices. Justice Y.V. Chandrachud, in the 1980s, had an exceptionally long tenure of over seven years, while at the other extreme, Justice K.N. Singh occupied the office for a mere 17 days.
Text and Context
Scandinavian social democracy (Page no. 8)
(GS Paper 2, International Relations)
In elections held in Sweden recently, while the Social Democrats returned as the single largest party according to preliminary results, a fractured mandate left it with only 107 of the 349-seat strong Riksdag (Swedish legislature) and 30.33% of the vote share.
This meant that the coalition that the Social Democrats were part of, which included the Centre Party, the Left Party and the Green Party, were left with 173 seats, as opposed to the right-wing coalition led by the Moderate Party, which bagged 176 seats.
The Moderate Party itself won only 68 seats, two lower than its previous tally in 2018, but the major gains among the Right was made by the far-right Sweden Democrats who won 73 seats and 20.54% of the votes, according to preliminary tallies.
Incumbent Prime Minister Magdalena Andersson of the Social Democrats conceded defeat and resigned, even as Moderate leader Ulf Kristerssonis expected to form the government with other right-wing parties offering support.
Some members of the coalition — the Liberal party’s representatives — have expressed unwillingness to be part of a government that had the support of the Sweden Democrats and that has put a spanner in the works in the new government’s formation.
The rise of the Sweden Democrats (SD), a party with origins in the neo-Nazi movement in the country, to the mainstream of the Swedish polity has much to do with the centring of the discourse over immigration in the country.
Several voters have expressed their concerns with rising immigrant violence and control of crime. The SD has taken a strident position against immigrants — Sweden played a major role in allowing refugees fleeing the Syrian, Iraq and Afghanistan wars to seek asylum in the 2010s — by promising to make it extremely difficult for asylum seekers to enter the country.
But does the rise of the polarising presence of the SD — which is not expected to be part of the new right-wing government but could lend issue-based support to it — threaten the political and social consensus driven Nordic model as it is called in Sweden and other Scandinavian countries?
To answer that question, we need to understand what is meant by the Nordic model, or if U.S. Senator Bernie Sanders’ version is accepted, “democratic socialism”.
Terming the political-economic system in the Scandinavian countries, despite its strong welfarist basis and emphasis on collective bargaining as “socialist” would be a misnomer.
For one, the term “socialism” is associated with the regimes of the erstwhile Communist bloc, which had a heavy preponderance of the state in not just the ownership of the major means of production but also in political life with a one-party system drawing its ideological basis for rule on behalf of the working class.
Following the collapse of the Soviet Union, new socialist regimes in recent years have sought to distance themselves from the one-party model in the so-called “second world”, instead focusing on retaining the functioning of market economies, while emphasising redistribution of wealth and a greater preponderance for the state in this process.
News
ECI seeks restriction on cash donations to parties, writes to govt (Page no. 10)
(GS Paper 2, Polity and Governance)
The Election Commission has proposed reducing anonymous political donations to ₹2,000 from ₹20,000 and cap cash donations at 20% or at a maximum of ₹20 crore to cleanse election funding of black money.
Chief Election Commissioner (CEC) Rajiv Kumar has written a letter to Union Law Minister KirenRijiju, recommending a slew of amendments in the Representation of the People (RP) Act.
The proposals are aimed at ushering in reforms and transparency in donations received by political parties, and also the expenditure incurred by candidates trying their luck at the hustings, they said.
As per rules in force currently, political parties have to disclose all donations above ₹20,000 through their contribution report that is submitted to the EC.
If the EC’s proposal is approved by the Law Ministry, all donations above ₹2,000 shall be reported, thereby enhancing transparency in funding, sources said.
The move comes in the backdrop of the poll panel recently delisting 284 defaulting and non-compliant registered unrecognised political parties (RUPPs), declaring more than 253 of them inactive.
The Income-tax department recently raided a number of such entities across the country on charges of tax evasion after the EC shared its report with its administrative authority, the Central Board of Direct Taxation (CBDT).
The Commission found that while donations reported by some political parties were nil, their audited accounts statement showed receipt of huge amounts, proving large-scale transactions in cash, below the threshold limit of ₹20,000, the sources said
The EC has also sought to restrict cash donations at 20% or at maximum ₹20 crore out of the total funds received by a party, whichever is less.
As part of bringing transparency in the expenditure made by individual candidates contesting polls and to remove “fungibility” in this expenditure, the EC has sought to make digital transactions or account payee cheque transfers mandatory for all expenses above ₹2,000 to a single entity/person.
Government sources said once this amendment -- to be made in Rule 89 of the Conduct of Election Rules, 1961 -- is carried out, a candidate would have to maintain a separate account for receipt and payments related to elections and the same has to be transparently disclosed to authorities, as an account of election expenditure.
As of now, maintaining a separate bank account for poll expenditure is part of instructions but EC wants it to become part of Conduct of Election Rules.
MHA’s notification on convicts’ biometrics (Page no. 10)
(GS Paper 2, Polity and Governance)
The Union Home Ministry on Monday notified rules under the Criminal Procedure (Identification) Act 2022 which empowers the police to obtain physical and biological samples of convicts and of those accused of crimes.
According to the rules, an authorised person can take “measurements” such as finger-impressions, palm-print impressions, footprint impressions, photographs, iris and retina scan, physical and biological samples and their analysis referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973.
The authorised user may take the measurements of a person arrested in a criminal case with the approval of a police officer not below the rank of Superintendent of Police.
Larger Bench’s decision prevails (Page no. 10)
(GS Paper 2, Polity and Governance)
A Constitution Bench on Monday decided that majority decision of a Bench of larger strength will prevail over the decision of a Bench of less strength, irrespective of the number of judges constituting the majority.
The lead judgment written by Justice Indira Banerjee held that under Article 145(5) of the Constitution, concurrence of a majority of the judges at the hearing would be considered as a judgment or opinion of the court.
Justice Hemant Gupta agreed observing that “a decision delivered by a Bench of largest strength is binding on any subsequent Bench of lesser or coequal strength”.
Rajnath on 2 day Egypt visit, agrees to focus on defence co production (Page no. 10)
(GS Paper 2, International Relations)
India and Egypt agreed to further develop military cooperation and focus on joint training, defence co-production and maintenance of equipment. This was agreed as Defence Minister Rajnath Singh called on Egyptian President Abdel Fattah Al-Sisi in Cairo.
They emphasised the need for coproduction and to discuss specific proposals in that regard, the Defence Ministry said. Mr. Singh is on a two-day visit to Egypt.
“Privileged to call on the President of Egypt Abdel Fattah Al-Sisi in Cairo today. India and Egypt continue to work on enhancing mutual trust and confidence. It was reaffirmed that both the countries are committed to expanding our multi-faceted cooperation,” Mr. Singh said on Twitter.
Stating that Mr. Singh expressed appreciation for the firm stand taken by Egypt against terrorism, the statement said, “President Sisi emphasised that there is need for India and Egypt to exchange expertise and best practices in countering the threat of terrorism.”
Mr. Singh also visited the Egyptian Air Force Museum in Cairo where he witnessed the Helwan 300 fighter jet which was a joint development project between India and Egypt.
The two countries are set to sign a Memorandum of Understanding (MoU) on defence cooperation.Mr. Singh acknowledged that Egypt is among the most important trading partners of India in Africa and that bilateral trade has expanded significantly.
Egypt has expressed interest in acquiring military platforms from India. Among other things, the Egypt government is considering the indigenous Light Combat Aircraft (LCA) for its fighter requirement.
No negotiations at the cost of food security, says Tomar at agriculture conference (Page no. 12)
(GS Paper 3, Economy)
No negotiation is possible at the cost of food security, announced Union Agriculture and Farmers Welfare Minister Narendra Singh Tomar at the ninth session of the governing body of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) on Monday.
All international forums must not forget that food is an essential fundamental right. Developing countries will be motivated by the need to ensure that the rights of farmers producing food are never compromised, adding that the struggle for climate resilient agriculture and nutritional security depends heavily on the decisions and actions of the signatories.
Mr. Tomar also talked about plant genetic resources being the source of solution to breeding challenges. We must use all modern technologies as well as traditional knowledge to preserve and use them in a sustainable manner.
Following Mr. Tomar’s inaugural address, Union Agriculture Secretary Manoj Ahuja said that deliberations in the session must lead to a balance between genetic resources governance and use, investment and innovation, and access and Benefit Sharing to achieve future-ready solutions for agriculture and food security.
QU Dongou, Director General, FAO, who joined the session virtually, said the meet is celebrating smallholder farmers as guardians of crop diversity.
They are food heroes and their contributions must be recognised. The world is heading for a population of nine billion. At the same time, the impacts of the climate crisis and biodiversity loss are putting pressure on agriculture. We must feed more people with less, with fewer inputs and safeguarding our natural resources.
The pandemic and ongoing conflicts are affecting the way the world produces, supplies and consumes food, he pointed out.
They have shown us how fragile our agri-food systems are and have put our global supply chains under pressure. To deal with these challenges, we must increase the use of diverse and resilient crops and their genetic resources.
We must conserve the source of our food and agriculture, our seeds and other plant genetic material. The future of food depends on it.
Dr.Dongou said the public and private sectors, farmers and academia need to put in the effort to use genetic diversity and sustainability, and ensure they are made available for breeders and researchers to enable innovation.
It will allow us to adapt our crops to the growing impacts of the climate crisis, and be more resilient to shocks in supply chains. The treaty is central to achieving these objectives. But to do so, we need capacity development, solid institutions and strong partnerships.
He offered support to the efforts to get all FAO (Food and Agriculture Organization) members to sign up to the treaty. Making the Treaty truly universal will help to ensure that agricultural diversity is saved, shared and cared for.
We must conserve this treasure for our descendants, for the food security of current and future generations, and for the improved resilience and preservation of our planet.
Business
Oil Ministry seeks review of windfall tax, wants certain fields exempted (Page no. 14)
(GS Paper 3, Economy)
The Oil Ministry has sought a review of the two-and-a-half-month old windfall profit tax on domestically-produced crude oil saying it goes against the principle of fiscal stability provided in contracts for finding and producing oil.
The Ministry in the August 12 letter, reviewed by PTI, sought exemption for fields or blocks - which were bid out to companies under the Production Sharing Contract (PSC) and the Revenue Sharing Contract (RSC) - from the new levy.
It stated that since the 1990s, companies had been awarded blocks or areas for exploration and production of oil and natural gas under different contractual regimes, wherein a royalty and cess is levied and the government gets a pre-determined percentage of profits.
The Ministry, according to the letter, was of the opinion that the contracts have an in-built mechanism to factor in high prices as incremental gains get transferred in the form of higher profit share for the government.
Emails sent to the Oil Ministry as well as the Finance Ministry for comments remained unanswered.India first imposed the windfall profit tax on July 1, joining a growing number of nations that tax super-normal profits of energy companies. While duties were slapped on the export of petrol, diesel and jet fuel (ATF), a Special Additional Excise Duty (SAED) was levied on locally-produced crude oil.
The SAED on domestic crude oil initially was ₹23,250 per tonne ($40 per barrel) and in fortnightly revisions brought down to ₹10,500 per tonne.
The government levies a 10-20% royalty on the price of oil and gas as also an oil cess of 20% on production from areas given to state-owned Oil and Natural Gas Corporation (ONGC) and Oil India Ltd. (OIL) on a nomination basis.
These levies apart, fields were awarded under the PSC regime where the government gets about 50-60% of the profit made after deducting costs. The RSC regime specifically has a clause to capture windfall gains for the government.
According to Oil Ministry calculations, the letter said, the new levy in the case of PSC and RSC results in a situation where the operator ends up paying much more than the windfall gain itself.
Besides, the contracts specifically provide for fiscal stability for the contracting parties, it said, adding any change of law or rule or regulation that adversely changes expected economic benefits to parties can lead to seeking revision and adjustments to the terms of the contracts.