Method of herbal drug indentification in ancient era.
This gives brief about Doctrine of Ultra Vires
Richard M. Davidson is J. N. Andrews Professor of Old Testament Interpretation at the Seventh-day Adventist Theological Seminary at Andrews University, Berrien Springs, Michigan. He has been with t...
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Rar estofRar eDoct r i ne:Deat h Penal t y December 7, 2014 by admin Leave a Comment
By Satya Vrat Yadav, UPES Editors Note Editors Note:: The paper attempts to evaluate the rarest of rare doctrine which has een evolved y the Supreme !ourt for awardin" death penalty# penalty# $t see%s to hi"hli"ht the curr current ent methods of e& e&ecution ecution in the li"ht of international perspective#
I nt r oduct i on $ndian 'udiciary has pointed out their view re"ardin" death penalty y rulin" out in Bacchan sin"h vs state of Pun'a(i) Pun'a(i) that that the death penalty must e restricted to the *rarest of rare+ cases, this view of Supr Su prem eme e !o !our urtt wa was s ve very ry mu much ch fa favo vori rin" n" to mi mini nimi mie e th the e us use e of capi ca pita tall pu puni nish shme ment nt to pe pena nali lie e th the e cr crim imin inal als, s, u utt th this is vi view ew of hi"hest court was contradicted y the le"islation y increasin" the numer of crimes for which capital punishment is awarded# $n Bachan sin"h case Supreme !ourt e&pressed some outstandin" reasons relatin" wron"doin" and criminal in which -sections ./. at pa"e 012 of the 'ud"ment3# $n section ./1, Bacchan Sin"h further note no ted: d: *4 *4#i #in n se sett ttli lin" n" th the e le leve vell of di disc scip ipli line ne or se sett ttli lin" n" on th the e decisi dec ision on of sen senten tence ce for di5 di5er erent ent o5 o5ens enses, es, inc includ ludin" in" on one e und under er Section 167 of (the) Penal !ode, the court ou"ht not ind its thou"ht *chie8y+ or 'ust to the circumstances associated with the speci9c wron"doin", additionally "ive due attention to the circumstances of the criminal+(ii) criminal+(ii) # # $n Santosh umar Bariyar vs State of ;aharashtra(iii) ;aharashtra(iii),, the Supreme !ourt "ot an opportunity to e&plain this further: *The rarest of rare dict di ctum um se serv rves es as a "u "uid idel elin ine e in en enfo forrci cin" n" Se Sect ctio ion n 1< 1<==-13 13 an and d entrenches the policy that life imprisonment is the rule and death punishment is an e&ception# $t is a settled law of interpretation that e&ceptions are to e construed narrowly# That ein" the case, the rarest of rare dictum places an e&traor e&traordinary dinary urden on the court, in case it selects death penalty as the favoured penalty, to carry out an o'ective assessment of facts to satisfy the e&ceptions in"rained in the rarest of rare dictum#+ !onsti !ons titu tutio tion n cl clea earl rly y st stat ates es in >r >rtic ticle le 7. th that at no pe pers rson on sh shal alll e deprived of ?i"ht to life unless done followin" due process of law
ut !apital punishment denies due process of law# $ts imposition is always irrevocale @ forever deprivin" an individual of the opportunity to ene9t from new evidence or new laws that mi"ht warrant the reversal of a conviction, or the settin" aside of a death sentence# Ahen the conseuences are life and death, we need to demand the same standard for our system of 'ustice as we would for our airlines# $t is central pillars of our criminal 'ustice system that it is etter that many "uilty people "o free than that one innocent should su5er# Cet us re8ect to ensure that we are ein" 'ust# Cet us pause to e certain we do not %ill a sin"le innocent person# This is really not too much to as% for a civilied society#+ Since the reinstatement of the modern death penalty, many people have een freed from death row ecause they were Therefore throu"h liti"ation, le"islation and commutation y helpin" to foster a renewed pulic outcry a"ainst this ararous and rutaliin" institution, we strive to prevent e&ecutions and see% the aolishment of !apital punishment# $n addition to the si& cases which Bariyar faulted for havin" followed ?av'iDs wron" precedent, it identi9ed another case where the commutation of the death sentence is 'usti9ed# The case is Saianna vs State of arnata%a(iv) -766<3# Saianna was a life convict# Ahile on parole, he %illed his wife and dau"hter# The Supreme !ourt sentenced him to death on a reasonin" which e5ectively made death punishment mandatory for the cate"ory of o5enders servin" life sentence# owever, the Supreme !ourt had in ;ithu vs State of Pun'a(v) -.F213 already struc% down Section 161 of the $ndian Penal !ode, which provided for mandatory death punishment for o5enders servin" life sentence# The reason is that if the death sentence is mandatory, then it is meanin"less to hear the convict on the uestion of sentence, and it ecomes super8uous to state the reasons for imposin" the sentence of death# The ratio Gecidendi -the le"al principle which forms the asis of the 'ud"ment3 of Bacchan Sin"h is that the death sentence is constitutional if it is prescried as an alternative for the o5ence of murder and if the normal sentence prescried y law for murder is imprisonment for life# $n Bacchan Sin"h, the court also insisted that a court could impose the death penalty only in the rarest of rare cases when the alternative option is unuestionaly foreclosed# -The ratio Gecidendi of a 9veH'ud"e Bench would e indin" on other Benches of the Supreme !ourt, unless overruled y a Bench comprisin" more than 9ve 'ud"es# Bachan Sin"h was delivered y a 9veH'ud"e !onstitution Bench#3
$n Saianna, the court was doutful whether a person already under"oin" imprisonment for life could e visited with another term of imprisonment for life to run consecutively with the previous one# ?ather than resolve this dout throu"h constitutional means, the Supreme !ourt opted for the easy way out y imposin" the death penalty on Saianna# $n Bariyar, therefore, the Supreme !ourt declared its own rulin" in Saianna as ein" inconsistent with oth the ;ithu and Bachan Sin"h 'ud"ments and, as a result, per incuriam# If the .1 convicts who have een identi9ed in the 'ud"esD appeal, BantuDs death sentence was commuted y President Pratiha Patil in June this year# >nother convict, >n%ush ;aruti Shinde, has een declared a 'uvenile and has een removed from death row# Gayanidhi BisoiDs death sentence was commuted to life imprisonment y the Kovernor of Idisha in 7661# President Pratiha Patil commuted the death sentences of Sattan and Upendra in July 76..# Thus, there are now only ei"ht convicts whose death sentences ou"ht to e commuted in line with the Supreme !ourtDs 'ud"ment in Bariyar# If these, only SaiannaDs mercy petition was pendin" in the PresidentDs Secretariat when Pratiha Patil completed her term# $t is ine&plicale why the ;inistry of ome >5airs did not recommend the commutation of SaiannaDs death sentence even thou"h his case was rou"ht to the notice of the President more than a year a"o# Koin" y Pratiha PatilDs illustrious record in commutin" the death sentence of 1< convicts in 'ust two and a half years of her 9veHyear tenure, she mi"ht have commuted SaiannaDs sentence, too, had the "overnment recommended it# The mercy petitions of the remainin" seven convicts have not yet reached the President# ;ost of them have "ot their mercy petitions re'ected y the Kovernors of the States where they are lod"ed in 'ails awaitin" e&ecution# Ahen Pratiha Patil completed her term on July 7=, she left a fascinatin" record and a le"acy that none of her successors can i"nore easily# She e"an with a ac%lo" of 71 undecided mercy petitions from her immediate predecessors and received nine fresh petitions, involvin" =6 convicts# If these, she accepted .2 petitions -involvin" 1< convicts3, re'ected three -involvin" 9ve convicts3, and passed on .. undecided petitions -involvin" ./ convicts3 to her successor, Prana ;u%her'ee# Ine of the 1< convicts whose sentences she commuted on June 7 this year, Bandu Baurao Tida%e had died on Ictoer .2, 7660, while waitin" for her decision, ut the report aout his death apparently did not reach the ome ;inistry when it recommended his commutation# $t is a moot uestion whether Tida%e would have lived lon"er had the President commuted his sentence efore his death# But Pratiha PatilDs le"acy should not e 'ust seen in uantitative terms# $t also has a ualitative dimension# The ome ;inistry had
often chan"ed its recommendations with re"ard to the re'ection of mercy petitions whenever there was a chan"e of ;inister with a new "overnment or with a !ainet reshuLe, and a"reed to a review of the pendin" recommendations with the President# $f one ome ;inister recommends the re'ection of the mercy petition of a convict, it does not follow that his successor would recommend re'ection, if reconsidered# Ce"ally, the President is ound y the advice of the current "overnment and not the one precedin" it# Therefore, it can e inferred that she thou"ht it 9t to delay decisions on those mercy petitions which the "overnment wanted her to re'ect# She perhaps thou"ht that if successive ome ;inisters had recommended re'ection of the same mercy petition, then proaly her options were closed# That >spect of ?arest of rare doctrine, which needs serious consideration, is interpretation of latter part of the dictum @ Mthat ou"ht not to e done save in the rarest of rare cases when the alternative option is unuestionaly foreclosed#D Bachan Sin"h -supra3 su""ested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will e futile and serves no purpose# Geath punishment, as will e discussed in detail a little later, ualitatively stands on a very di5erent footin" from other types of punishments# $t is uniue in its total irrevocaility(vi)# $n >lo% Nath Gutt and Irs# V# State of Aest Ben"al(vii) this !ourt after e&aminin" various 'ud"ments over the past two decades in which the issues of rarest of rare fell for consideration,
Met hodsofexecut i onf orCapi t alpuni shment an"in" an"in" is the method of e&ecution in the civilian court system, accordin" to the $ndian !riminal Procedure !ode(viii)# Shootin" Under the .F<6 >rmy >ct, han"in" as well as shootin" are oth listed as ocial methods of e&ecution in the military courtHmartial system(i&)# !ons of capital punishment: Some of the important points due to which capital punishment is opposed y most of the human ri"hts or"anisation in the world are discussed in the te&t elow:
.# Unli%e many other punishments, loss su5ered y death penalty irreversile, ut can never i"nore hi"h ris% of convictin" the wron" person and e&ecutin" the innocent# Aell such cases are almost very rare when innocents are convicted for a crime which they had not done# 7# Geath penalty is actually deprivation of person from the fundamental ri"ht provided y constitution to the accused,, which is ri"ht to life# 1# Geath punishment is asolutely more e&pensive in comparison to other punishments provided y le"al system# These e&tra e&penses are due to additional time ta%es y the ody to actually e&ecute the person for the crime committed y him# >nd yes this is the fact that if any criminal is "iven death penalty, they are also %ept in special cains which causes e&tra e&penses to e su5ered y the "overnment# =# > murder trial normally ta%e more time and money than any other trail, and when such trial has chances of death penalty then courts ta%es even more time to e sure for the real conditions and these e&penses are paid up actually y ta&es that are paid y the ta&payers of the country# <# Bha"wati has pointed on >u"ust ./ .F27, *!apital punishment has a class comple&ion and is imposed randomly and disproportionately on the poor and uneducated+# /# The !ases of death penalty causes e&tra appeals and consumes more time that normally reuired decidin" a case and this is caused due to endless appeals and additional procedures that are ein" followed up y the court#
Wor l dWi der esol ut i onsandVi ews -.3The mandate of the National uman ri"hts !ommission estalished under the uman ?i"hts Protection >ct of .FF1 provides a lens throu"h which the situation can e etter understoodH *;urder is ahorrent and demonstrates a lac% of respect for human life and so a policy of state %illin" is immoral# $t epitomies the rutality of violence rather than the reason as the solution to solve social dicult prolems#+ -73The $nternational !onvention on !ivil and Political ?i"hts, to which $ndia is a party and which has een rati9ed y .== states, encoura"es the aolition of Geath Penalty# -13The 7nd Protocol to the $nternational !onvention on civil and Political ?i"hts adopted y the United Nations Keneral >ssemly
with its ?esolution on ==O.72 of .
ssemly of the United Nations resolved in .F0., *$n order to fully "uarantee the ri"ht to life provided in >rticle 1 of the UG?, the numer of o5ences for which !apital punishment may e imposed should e pro"ressively restricted, stressin" desiraility of aolishin" of this punishment in all countries#+
Concl usi on: Ipposin" the death penalty does not indicate a lac% of sympathy for murder victims# In the contrary, murder demonstrates a lac% of respect for human life# Because life is precious and death irrevocale, murder is ahorrent, and a policy of stateHauthoried %illin"s is immoral# State canDt %ill its pulic for estalishin" law# The main reason why this article tal%s aout aolishment of capital punishment is that MEven the vilest criminal remains a human ein" possessed of common human di"nityD Therefore one should respect each and every human ein"# $t epitomies the tra"ic inecacy and rutality of violence, rather than reason, as the solution to dicult social prolems# ;any murder victims do not support stateHsponsored violence to aven"e the death of their loved one# Sadly , these victims have often een ;ar"inalied y politicians and prosecutors, who would rather pulicie the opinions of proHdeath penalty family memers# The est thin" is that countries donDt have any law in which death penalty is mandatory# Ae cannot lose si"ht of the enormity and "ravity of a criminalDs crime# > criminal has to pay for his crime# But as a society we want to %ill the crime and not the criminal# > policy of life imprisonment without the possiility of a parole would e a much humane punishment# $n order to not ma%e the accused, not a liaility to the e&cheuer, the accused must e made to ma%e inancial ?estitution# The punishment should not e de"radale so as to randish the sanctuary of life of a person# The uote well suits the concernH *Ahy %ill people who %ill people to show %illin" is wron"+# ?ecently, in the case of Shatru"han !hauhan v# Union of $ndia, a threeH'ud"e ench of the $ndian Supreme !ourt delivered a
landmar% 'ud"ment on the death penalty: holdin", in particular, that an e&cessive delay in carryin" out the death sentence was an essential miti"atin" factor in a plea for commutation# $n doin" so, it 'oined 'urisdictions such as the United States and the Privy !ouncil, and overruled its own 76.1 'ud"ment in Bhullar v# N!T# $n Bhullar, the Supreme !ourt relied upon a concurrin" 'ud"ment in the previous case of Trivenien that appeared to hold that delay need not e a "round for commutation# The !ourt drew a distinction etween ordinary capital crimes and capital crimes under terrorism statutes -at issue in Bhullar3# $t held that ecause of the serious nature of the crimes involved, an e&cessive delay in processin" a death row convictDs mercy petition need not e a "round for commutin" the death sentence to life imprisonment# Thus, the !ourt had e5ectively held that the nature of the capital crime determined the due process treatment that the convict was entitled to# $n Shatru"han !hauhan, the Supreme !ourt comprehensively re'ected this reasonin"# $t held that the Bhullar court had overloo%ed the Trivenien ma'ority 'ud"mentDs contrary stance that a delay in carryin" out the death sentence was, indeed, one "round for commutationQ and thus, the !ourt held Bhullar to e per incuriam -i#e# decided without reference to an earlier relevant 'ud"ment, and thus havin" no force as precedent3# The !ourt held, on the other hand, that: *There is no "ood reason to disualify all T>G> cases as a class from relief on account of delay in e&ecution of death sentence#+ -Para /13 The !ourt, however, refused to provide a speci9c time after which a delay would render commutation necessary, and held that each case would e ad'udicated on its own merits# $n essence, the !ourt thus made delay an essential miti"atin" factor# This would e considered on the !ourtDs *alance sheet+ enuiry, under which it draws up a list of a""ravatin" and miti"atin" factors, in order to decide whether or not to award the death penalty in a particular case# >t the heart of the ar"ument is the idea that %eepin" a death row convict under the shadow of death for years is a form of cruel, inhuman and de"radin" punishment that no civilied society -whether or not it allows capital punishment3 should in8ict upon human ein"s -this short story y JeanHPaule Sartre and this poem y Iscar Ailde perhaps drive home the point most forcefully3# The inevitale mental a"ony that accompanies waitin" for an inevitale death, demeans individual di"nity# $nsofar as the !ourt has interpreted >rticle 7.Rs "uarantee of the ri"ht to life to include treatin" all individuals with di"nity, the 'ud"ment rearms the humanism that is the foundation the !onstitution, and that
whatever the crime mi"ht have een, human ein"s continue to have a le"itimate claim to e treated with di"nity under the !onstitution# The !ourt further held, referrin" to a copious ody of forei"n law and international law, that insanity was a "round for commutation -paras 0. @ 023Q this is 'usti9ed y our asic, intuitive notion that persons in a democracy ou"ht to su5er penalties and urdens only to the e&tent that they are responsile for the actions that they underta%e @ and that punishment must respond not 'ust to the nature of the crime, ut to the aility of the actor to understand or comprehend the nature of his actions# !omin" to the 9fteen individual cases efore it, the !ourt applied the delay principle to commute the sentences to life imprisonment# $t ended y framin" "uidelines for the purpose in future, layin" down various reuirements such as the written communication of the outcome of a mercy petition to a convict and his family, the provision of free le"al aid, a postHmortem report to verify whether han"in", as a form of capital punishment, caused undue amounts of pain, and so on# The Shatru"han 'ud"ment is a pro"ressive step in $ndian death penalty 'urisprudence# Perhaps it is est to leave the last word to the !ourt, in its penultimate para"raph, su""estin" not 'ust that the death penalty should e administered humanely, ut that the very idea @ say it softly @ of StateHsanctioned %illin" of human ein"s has no place in a civilied democracy: *?ememer, retriution has no !onstitutional value in our lar"est democratic country#+ Edited y Sa%sham Gwivedi (i) -.F263 7 S!! /2= (ii) Bacchan sin"h -.F263 7 S!! /2= (iii) -766F3 / S!! =F2 (iv) 766< -13 S!? 0/6 (v) .F21 S!? -73 /F6 (vi) -766F3 / S!! =F2 (vii) 766/-.13S!>CE=/0 (viii) $ndia !riminal Procedure !ode, !h# V$$, art# 1<= -<3, .F01