Balancing between the Death Sentence, Mercy and Speedy Justice.
Execution of death sentence by hanging: Validity.
[T]he State has discharged the heavy burden which lies upon it to prove that the method of hanging prescribed by Section 354(5) of the CrPC does not violate the guarantee right contained in Article 21 of the Constitution. The material shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble. The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner’s apprehension. The chances of an accident during the course of hanging can safely be excluded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae. Continue reading “Death Sentence and Mercy Petition: Balancing the Justice.”→
Every administrative decision by Executive is subject to Judicial Review. There is no such thing as absolute discretion. However Judicial Review is not an appeal. The earliest reported case in this regard is Associated Provincial Pictures (also called Wednesbury’s case) which laid down the law relating to scope of Judicial Review. It is more concerned with the decision making process rather than the merits of decision. Following extract clinches the issue:
It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another………
The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.(By Lord Greene)
High Courts in India have same powers to issue the prerogative writs which English Law provides. The issue of writ is considered to be a matter of discretion which is to be exercised on sound principles of law. But once the discretion has been exercised by a single Judge of the court, it is subject to an Appeal to Division Bench of High Court, popularly called as Letters Patent Appeal. Scope of this intra court appeal has been circumscribed by Supreme Court of India in following words:
“While deciding intra court appeals against the exercise of discretion by a Single Judge, the Appellate Court would not interfere with the exercise of discretion by the Court of First Instance and substitute its own discretion, except where the discretion has been shown to have been exercised either arbitrarily, or capriciously or perversely or where the Court has ignored settled principles of law regulating grant or refusal of interlocutory injunction. Appeal against exercise of discretion is said to be an appeal on principle.”
[Source: Wander Ltd. v. Anton India Pvt. Ltd. (1990 (Suppl) SCC 727)]
The scope of intra-court appeal was considered by Supreme Court of India (in Baddula Lakshmaiah v. Sri Anianeya Swami Temple (1996) 3 SCC 52), and it was indicated that a Letters Patent Appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a subordinate Court. In such appellate jurisdiction the High Court exercises the powers of a court of Error.
It is unfortunate that despite the above authoritative pronouncements about the scope of appeals to division bench, very often the High Court travels beyond the scope and without pointing out the error in judgement of court below, pass a fresh judgement. This manner of exercise of power is not only unjust and illegal but is also contrary to judicial discipline.
Comment: It appears that jurisdiction of court in writ appeal is more akin to review than an appeal. Review is tethered to discovery of new facts or an apparent error of record but appeal is entirely a rehearing of the case. Therefore a writ appeal is not a rehearing but merely an exercise to correct an apparent error not to substitute opinion of division bench with the opinion of single judge.