Law in a nutshell

A comprehensive and user-friendly digest that offers a collection of the Supreme Court's judgments dealing with criminal law.

This book is very popular because it follows a unique method whereby the law, as laid down by the Supreme Court on various subjects, is made available for perusal with minimum effort. Every year, the Supreme Court's judgments are printed in several volumes of recognised journals. It is almost impossible for a lay reader to understand the significance of these judgments under every branch of law, let alone criminal law. This digest helps the reader understand the continuities and changes in any area under criminal law from 1950, when the Constitution came into force, to 2010. As the Supreme Court's judgments influence the governance of the country in myriad ways, this book helps to make these accessible to every reader in a user-friendly manner.

The first edition of this book appeared in 1961. The author, J.K. Soonavala, then senior counsel in the Bombay High Court, died before the second edition came out in 1968. But that did not stop his relatives, friends and admirers from updating and expanding this digest by bringing out three subsequent editions in the author's name, in 1990, 2007 and 2011.For the purpose of review, one is tempted to choose entries, arranged in alphabetical order, some of which have hogged newspaper headlines in recent days, for random reading. The first to hold one's attention is the one on capital punishment in Volume 1. Because the state finds it legitimate to take away the life of a convict sentenced to death, the Supreme Court's justification of this inhuman punishment over the years is of considerable interest.

The very first case that required the Supreme Court to pronounce on its constitutionality was Jagmohan Singh vs State of Uttar Pradesh, decided in 1973. A few entries in the book give a gist of the Supreme Court's holdings in this case, and in subsequent cases. The court in this case held that deprivation of life was constitutionally permissible if it was done according to procedure established by law, and it would be very difficult to hold that capital sentence was regarded per se as unreasonable by our Constitution makers or that it was not in the public interest.

Ironically, the legal challenge posed in that case by the petitioner to the continuance of the death penalty in our statute books continues to be relevant even today. The court rejected his argument that the uncontrolled and unguided discretion given to judges to impose capital punishment or imprisonment for life was violative of Article 14 of the Constitution, which guarantees the right to equality. The court did so on the grounds that there were a number of safeguards to regulate the exercise of this discretion.

In subsequent years, the legislature as well as the court tried to strengthen these safeguards. In the new Code for Criminal Procedure (Cr.PC) brought into effect in 1974, it became imperative for judges to write very special reasons for the award of the death penalty. In the Bachan Singh (1980) case, the Supreme Court's five-judge Constitution Bench identified seven mitigating circumstances that the court should consider in favour of the convict before awarding the death penalty. The court evolved the rarest of rare doctrine in this case, to hold that the extreme penalty of death need not be inflicted except in the gravest cases of extreme culpability.

The court further limited the application of this doctrine by asking the judges to ask and answer whether there was something uncommon about the crime which rendered the sentence of imprisonment for life inadequate, and whether there was no alternative to the death sentence even after according maximum weightage to the mitigating circumstances in favour of the offender.

However, the frequent resort to this doctrine to justify the imposition of the death sentence by the Supreme Court in the post-Bachan Singh era showed that there was no consistency in the court's judgments and that the sentencing discretion of the judges continued to be unfettered. In a recent case (Ajit Singh) decided by the court, a two-judge Bench justified the imposition of the death penalty on the appellant-convict after admitting that there was not a precise definition of what constituted a rarest of rare case. For the proponents of the abolition of the death penalty, this should be reason enough for the Supreme Court to declare a moratorium on the death penalty in all pending and future cases, until the court evolves a suitable definition of the doctrine to guide its imposition by the courts.

The reliance on a vague doctrine to take away the life of a human being cannot be a procedure established by law, as required under Article 21, they say. The proponents of abolition point out that in most cases, the court appears to have inferred that rarest of rare means the brutality and severity of the offence. This was the result of losing sight of the emphasis placed in the Bachan Singh case by the court on the need to assess the feasibility of an alternative punishment to the death sentence in a given case, however brutal the offence.

The Supreme Court's plea, repeated in several judgments, that it cannot abolish the death penalty, as it is part of the legislative domain also fails to convince the proponents of abolition. After all, the same court declared Section 303 of the Indian Penal Code unconstitutional in Mithu vs State of Punjab in 1983. Section 303 imposed the death penalty on a convict if he was found to have committed murder while undergoing a life sentence for another offence. In Bachan Singh, the court refused to declare the death penalty unconstitutional, not because it did not have that power but for other reasons.

The entry on clemency is insightful. The power to pardon a convict, entrusted with the President or the Governor, is not an act of grace or mercy but part of the constitutional scheme (the Kehar Singh case, 1989). At a time when critics question the relevance of the President and Governors exercising this power after the Supreme Court has confirmed the death penalty, the Supreme Court's judgment in the Kehar Singh case is instructive. It is open to the President, the court said, to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court with regard to the guilt of and sentence imposed on the accused. The President, the court said, acted in a wholly different plane from that in which the court acted. More important, the court can examine whether the President considered all the relevant materials while rejecting a mercy petition from a convict.

There are other entries in the book that can persuade a reader to treat criminal law as a fascinating discipline. An entry on communalism in Volume 2 refers to the Supreme Court's decision in a case that the valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests, needs and necessities to preserve the very core of democratic life ( State of Karnataka vs Praveen Bhai Togadia, 2004).

In an earlier case, too, the court was clear that the promotion of feelings of enmity, hatred and ill will between different religious communities could not be carried out in the name of political thesis or historical truth. Demands for the prosecution of Janata Party leader Subramanian Swamy following a recent newspaper article by him seeking disenfranchisement of Muslims who do not subscribe to their Hindu ancestry make sense in view of this clear enunciation of law.

An entry on Law in Volume 3 makes for interesting reading. It refers to an early pronouncement of the Supreme Court, which has since been reversed. In A.K. Gopalan vs State of Madras, decided in 1950, the court said: To read the law as meaning rules of natural justice will land one in difficulties because the rules of natural justice, as regards procedure, are nowhere defined and the Constitution cannot be read as laying down a vague standard. The word Law' is equivalent to state-made Law. In the A.K. Gopalan case, the Supreme Court dismissed his challenge to the Preventive Detention Act under which he was arrested.

Contrast this with what the Supreme Court said in the Bachan Singh case: What is a necessary element of the rule of law is that the law must not be arbitrary or irrational and it must satisfy the test of reason. The Supreme Court's contribution to the evolution of law is indeed exemplary.

On public meeting

The entry on public meeting in Volume 4 refers to the only case that throws light on the right to assemble peaceably and without arms ( Himat Lal K. Shah vs Commissioner of Police, Ahmedabad, 1973). Recently, the ruling came to the aid of both Team Anna and the Delhi Police when the latter first refused permission to Anna Hazare to hold an indefinite fast at a public place. The Delhi Police relied on the ruling to hold that the right to assemble does not mean that the right can be exercised at any and every place. Team Anna, however, pointed to another part of the judgment which held that the right to hold public meetings flows from Article 19(1)(b) and Article 19(1)(d), and that the state cannot impose unreasonable restrictions on this right. Ultimately, Team Anna's view prevailed over that of the Delhi Police.

A curious reader will find many other entries in this four-volume digest (there are nearly 2,000 entries) a rich source of reference material on contemporary legal issues that defy easy resolution.

However, a word of caution may be justified against using the book as one's only source for keeping oneself updated on the developments in law. Certain entries suggest that the book could have gained by incorporating the relevant legislative developments along with the Supreme Court judgments. The entry on plea bargaining, for instance, completely ignores the fact that Parliament made it legal by amending the Cr.PC in 2005 with the objective of reducing the pendency of criminal cases. The book's entry ends with the Supreme Court's judgment in 2003, wherein it deprecated the practice in cases involving serious offences.

Plea bargaining refers to pre-trial negotiations between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution. The amendment makes it necessary for certain conditions to be fulfilled before a court accepts plea bargaining. These conditions require, among other things, that the offence, for which plea bargaining is invoked, must be one punishable with not more than seven years' imprisonment. Habitual offenders, and those charged with socio-economic offences, and those who have committed offences against women and children are ineligible to avail themselves of plea bargaining in India.

The publishers would do well to make an effort to include in the next edition entries that might have been left out inadvertently. One such is about sting operations by the media and individual citizens to expose corruption and wrongdoing in public life. The use of sting by the media has been vindicated by the Supreme Court in R.K. Anand vs Registrar Delhi High Court, in 2009.

Another judgment by the Delhi High Court in the Aniruddha Bahal case last year found nothing wrong with the use of stings by journalists and citizens alike to expose corruption. The issue has come to the fore with the Delhi Police after much prodding by the Supreme Court arresting the whistle-blower MPs who organised a sting operation to expose the cash-for-votes scam in Parliament in 2008. The law on stings and entrapment is still evolving in India, and it will be useful to include an entry on the subject in a digest like this.