THE HINDU EDITORIAL – MAY, 7, 2022
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Crowed down Strict anti-lynching laws and a legal rethink on cattle slaughter
laws are the need of the hour In yet another disturbing and dastardly act that is now part of a
pattern in much of North India; two tribal men were beaten to death by
alleged activists of the Bajrang Dal in Seoni, Madhya Pradesh, on the
suspicion that they were slaughtering cows. Apart from tribal people, Muslims
and Dalits in particular have borne the brunt of these senseless acts of mob
violence and murders. Reminiscent of the murder of a dairy farmer, Pehlu
Khan, after he and his sons were attacked by self-described “cow vigilantes”
in April 2017 in Rajasthan, the two men, Sampatlal Vatti and Dhansai Invati,
were attacked by nearly 20 men; both died of injuries. The police have
arrested 13 people for their alleged involvement; at least six of them were
members of the Bajrang Dal, according to the family members. An insinuation
by the police that one of the dead men was involved in a “cow slaughter” case
has shown yet again where the priorities of law enforcement lie in such
cases. In another pattern, there has been certain acuity in the
implementation of cattle slaughter laws which is missing in trying and
bringing those involved in lynch mobs to justice. Stricter cattle slaughter
laws have been implemented with a fervor that has less to do with animal
preservation and more to do with appeasement of majoritarian impulses to
garner political support. In 2005, the Supreme
Court had justified the total ban on cattle slaughter by an expansive
interpretation of the directive principles of state policy, and relying on
Articles 48, 48A, and 51(A) of the Constitution, that seeks to preserve
breeds used in agriculture and animal husbandry, explicitly prohibiting the
slaughter of cows and calves and other milk and draught cattle, besides
promoting compassion to animals. The judgment had overturned an earlier
ruling in 1958 which had limited the ban only to “useful” cattle which are
still engaged in agriculture and husbandry. This interpretation only laid the
grounds for State governments – especially those led by the BJP and its
alliance partners – to come up with stringent laws on cow slaughter, and in
the public sphere, a stigmatization of communities such as Dalits, Muslims
and tribals for the dietary habits and their dependence on cattle products
for a livelihood. Four States (Rajasthan, Jharkhand, West Bengal and Manipur)
had passed laws against lynching after many such incidents but they were
under various stages of implementation with the Union government taking the
view that lynching is not a crime under the Indian penal code. While civil
society in Madhya Pradesh must demand justice for the injured and dead tribal
men and a return to the rule of law in which such murderous acts do not go
unpunished, it is time for a judicial rethink on legislation around cattle
slaughter. Overcoming differences India’s new push for stronger ties with Europe comes at a crucial
time for both Prime Minister Narendra Modi ended his tour to Europe this week by
dropping in on French President Emmanuel Macron, who was re-elected recently.
What was billed a simple “tete-a tete” during a “working visit” turned out to
be a comprehensive discussion on bilateral, regional and international
issues, with a 30 paragraph-long joint statement. As with his other stops in
Germany and Denmark for the Nordic Summit, as well as the visit to India by
European Commission President Ursula von der Leyen the week before, the Ukraine
war remained at the top of the agenda. The joint statement records their
differences on the issue. However, they also discussed mitigating the war’s
“knock-on” effects, and Mr. Macron invited India to cooperate with the Food
and Agriculture Resilience Mission (FARM) initiative for food security in the
most vulnerable countries, particularly in terms of wheat exports. However,
as the severe heatwave has damaged India’s crops, the Government will have to
do some hard thinking on its promises of wheat supply to the rest of the
world at a time when fears of shortages are sending wheat prices soaring.
Climate change was another key issue during the stopovers in Berlin and
Copenhagen, France and India, that worked closely for the success of the
Paris climate accord, and co-founded the International Solar Alliance in
2015, are ready to take it to the next level – setting up industrial
partnerships to build integrated supply chains in solar energy production for
integrated supply chains in solar energy production for markets in Europe and
Asia. There was also a bilateral strategic dialogue on space issues, which
will build on their six-decade-long partnership in the field of space – a
contested area now with China, Russia and the U.S. stepping up hostilities in
this frontier. India and France have
decades of an unusually productive partnership given that neither has allowed
other relationships to play a role in the bilateral. This has been the basis
of their strong defence partnership. In 1998, France stood out as a western
country that did not judge or impose sanctions on India for its nuclear
tests; in 2008, it was the first country to conclude a civil nuclear deal
with India after the NSF passed a waiver allowing India to access nuclear
fuel and technology. It would be a fitting tribute to the consistency of the
relationship if the French bid for six nuclear power plants in Maharashtra’s
Jaitapur makes some headway now, more than 12 years after the original MoU
was signed and a year after the French company, EDF, last year submitted an
offer to the Nuclear power corporation of India Ltd. It is however
disappointing that Mr. Modi travelled to Germany and France on the same visit
– a significant gesture that he recognises the importance of both in India’s
new push for stronger ties with Europe. In rising heat, the cry of the wilting outdoor worker With a large segment of its population dependent on outdoor work,
India needs to initiate safety nets VINOD THORMAS & MEHTAB
AHMEDJAGIL More asphalt-melting heatwaves driven by runaway climate change
are on the way. The consequences for health and livelihoods are catastrophic,
as a third of South Asia’s population depends on outdoor work. To get to
grips with this predicament, India must initiate safety nets a combination of
targeted transfers and insurance schemes – to improve the resilience of
outdoor workers. Transfers are best linked to the beneficiaries’ own efforts
to build resilience, for example, adapting agricultural practices to the
uptick in heatwaves. Disaster insurance schemes, far too few in India, should
enable workers to transfer some of the losses from debilitating heat to
public and private insurance providers. A hotter future in South Asia The intensity and frequency of
heatwaves have soared in South Asia and they are set to worsen in the years
ahead. Extreme heat conditions have hit swathes of India, not only in the
northern States of Rajasthan, Uttar Pradesh, Gujarat, and New Delhi, but now
increasingly also in the south. Following the India Meteorological
Department’s (IMD) April forecast that maximum temperatures in some parts of
Tamil Nadu would rise by 2֯-3֯ Celsius, recorded
temperatures hit 41֯ C in Vellore, Karur, Tiruchi and Tiruttani.
Delhi this month suffered its second warmest April in 72 years, temperatures
averaging 40.2֯
C, and Gurgaon in neighboring Haryana crossed 45֯
C for the first time. Labour-intensive agriculture and construction have
become near impossible during afternoons.
Over the last 100 years, global temperatures have risen by 1.5֯
C and, at the current rate, could reach 4֯ C by 2100 – an
unthinkable scenario. So far in the year, 2022 has been the fifth-warmest
year on record. The prevalence of extreme temperatures around the worlds
suggests that India’s warming is the result not only of local factors but
also global warming. In fact, scientists have made clear how greenhouse gas
(GHG) emissions exacerbate temperatures in the oceans, leading to soaring
temperatures. The culprit in the current plight from intense weather is not
Mother Nature but anthropogenic GHG emissions. Crucially, heatwaves and
wildfires are ‘unimaginable’ without human-caused climate change, according
to a study done by World Weather Attribution in July 2021. High economic losses The impacts are dire across the world.
Heatwaves are proving to be Europe’s deadliest climate disaster. India faces
the largest heat exposure impacts in South Asia. One study finds that
1,41,308 lives were claimed by acute weather in India during 1971-2019, of
which the loss of 17,362 lives was due to unrelenting heat, with mortality
rates rising by two-thirds during the time period. Worldwide economic losses,
by one estimate, could reach U.S.$1.6 trillion (1.6 lakh crore rupees)
annually if global warming exceeds 2֯ C. India, China,
Pakistan, and Indonesia, where large numbers of people work outdoors, are
among the most vulnerable.
India’s outdoor workers, reeling under daily temperatures more than 40֯
C, are on the frontlines of the climate catastrophe. The wellbeing of outdoor
workers will be fundamentally determined by the ability to keep the
temperature rise to well below 2֯ C. Reversing climate change is predicated on
leading emitters, including India, moving away from carbon-emitting fossil
fuels, and replacing them with cleaner, renewable fuels. But such climate
mitigation in India and elsewhere is painfully slow, because of a lack of
political will in the major emitting countries for decisive active. Adaptation is
essential In the meantime, hotter temperatures are making
outdoor work unbearable, in addition to other dire consequences. Climate
mitigation or decarbonisation of economies on the part especially of the big
emitters, such as the United States, the European Union, China, and India
remains an imperative. But temperatures are set to rise regardless of
mitigation, based on the emission damage already done. That means climate
adaptation, or coping with the predicament, is as big a priority as
mitigation. A
crucial aspect of adaptation is better environmental care that can contribute
to cooling. Heatwaves are rooted in degraded land and relentless
deforestation, which exacerbate wildfires. Agriculture, being
water-intensive, does not do well in heat wave prone areas. A solution is to
promote better agricultural practices which are not water-intensive, and to
support afforestation that has a salutary effect on warming. Response
to the current plight of outdoor workers can be linked to climate adaptation.
Financial transfers can be targeted to help farmer plant trees and buy
equipment better suited for the extreme weather. For example, support for
drip irrigation can reduce irrigation can reduce heavy water usage. Averting
slash and burn agriculture and stubble burning is not only key to cutting air
pollution but also cooling temperatures. Urban forests and green roofs can
help cool urban areas. Workers in cities and villages can benefit from early
warning systems and better preparedness as well as community outreach
programmes during an episode. Collaboration for
insurance Insurance schemes can help transfer some of the
risks of severe heat faced by industrial, construction and agricultural
workers to insurers. Insurance against natural hazards is minimal not only in
India but also Asia where less than 10% of the losses are typically covered.
Government and insurers need to collaborate in providing greater coverage of
losses from extreme weather events, including for calamities from brutal
heat. For
greatest effectiveness, transfers and insurance payments can be tied to
investments in resilience made at the local levels, such as restoring the
urban environment that has a cooling effect. Delhi’s Aravali Biodiversity
Park is a stand-out example that transformed a barren landscape into forest
communities protecting greenery and biodiversity. Transfers could also be
linked with mapping of the incidence of heatwaves across locations. The most
severely affected areas are also likely to be the most poverty-prone and need
stronger insurance packages, including guarantees for crop losses. Incentive
schemes could also be tailored to annual changes in the intensity of the
hazard. Studies
warn of heat-stress inequalities where the poorer segments of the populations
are especially battered by heatwaves. The projections of the IMD can guide
future scenarios, which the Central government can use to develop subsidies
and insurance schemes linked to State and district-level actions for building
resilience to climate change. Insurance schemes require public and private
sectors to jointly set out risk-sharing mechanisms that outdoor workers can
avail of. Targeted
transfers and insurance schemes can cushion financial hardships, for example,
by improving crop resilience to heatwaves. Making them part of the
Government’s economic programmes is one way to make these safety net policies
sustainable and hard to reverse, as international experience with cash
transfer programmes shows. A priority India offers a range of food and fuel subsidies,
but most of them are poorly targeted. For example, kerosene subsidies provide
modest financial benefit to disadvantaged rural households, with only 26% of
the subsidy value estimated to reach the poor directly. As the efficiency and
the equity of existing subsidies are re-examined, the provision of transfers
and insurance linked to building climate resilience should become a priority.
Heatwaves, exacerbated by climate change, are embroiling regions of
India in a downward spiral, and the situation is projected to get worse.
Outdoor labourers are especially hammered by the relentless heat. Tying cash
transfers and insurance schemes to State and local green investments will not
only provide some financial cover for outdoor workers but also motivate
small-scale investments in much-needed resilience to heatwaves. A new track for capital punishment jurisprudence The Supreme Court of India’s intervention paves the way for reaffirming
the fundamentals of the rarest of rare principle MANURAJ SHUMUGASUNDARAM A recent trend in the evolution of jurisprudence
around the death penalty in India may reset judicial thinking around
sentencing and have long-term ramifications in the awarding of capital
punishment. Over the last six months or so, while dealing with appeals
against confirmation of the death sentence, the Supreme Court of India has
examined sentencing methodology from the perspective of mitigating
circumstances more closely. The Court has also initiated a suo motu writ
petition (criminal) to delve deep into these issues on key aspects
surrounding our understanding of death penalty sentencing. As such, it is
clear that the present trajectory of judicial thinking will not only reaffirm
the fundamentals of the rarest of rare principle but also lead a new wave of
thinking in the jurisprudence around capital punishment. Sentencing lapses Capital punishment once delivered by the court
of sessions (“sentencing court”) is required under law, specifically Chapter
28 of the code of Criminal Procedure, to be confirmed by the jurisdictional
High Court (“confirming court”). The development of case laws on the point of
sentencing has emphasised that sentencing cannot be a formality and that the
sentencing court must make a genuine effort to hear the accused on the
question of sentence. Bachan Singh vs State of Punjab (1980), the
leading case on this point, calls for mitigating and aggravating
circumstances to be balanced against each other and laid down the principle
that the death penalty ought not to be awarded unless the alternative of life
imprisonment is “unquestionably foreclosed”. Subsequent cases have developed
this position to that of the state (which is the prosecuting agency) having
the onus to lead evidence to establish that there is no possibility of
reformation of the accused for the sentencing court to impose capital
punishment. It also an equally well-established legal principle that in a
sentencing hearing, the accused must necessarily be provided with sufficient
opportunity to produce any material that may have bearing on the sentencing
exercise. When read in conjunction with the ratio decidendi of the
Bachan Singh case, it is incumbent upon the sentencing court and the
confirming court to ensure that the question of reform and rehabilitation of
a convicted person has been examined in detail for these courts to come to a
definitive conclusion that all such options are unquestionably foreclosed. In
spite of such judicial guidance developed over four decades, studies have
shown that when a group of former judges was asked what it considered as a
rarest of rare case, the judges gave personalised, subjective and divergent
explanations. A report by the National Law University Delhi’s Project 39A
(earlier known as the “Centre on the Death Penalty”) titled ‘Matters of
Judgment’ found that there is no judicial uniformity or consistency when it
comes to awarding the death sentence. In the report titled ‘Death Penalty
Sentencing in Trail Courts’(also authored by Project 39A), findings reported
from a study of cases involving death sentencing between 2000 and 2015 in
Delhi, Maharashtra and Madhya Pradesh have showed that courts have been las
in assessing the aspect of reformation while undertaking the sentencing
exercise. Mitigation
investigation On the back of such studies, the Supreme Court
has begun to inquire into sentencing methodology with great interest. In Rajendra
Pralhadrao Wasnik vs The State of Maharashtra (2018), the Court was open
to bringing on record material pertaining to the convict “about his conduct
in jail, his conduct outside jail if he has been on bail for some time,
medical evidence about his mental make-up, contact with his family and so
on”. Building on this, the Court, in Mofil Khan vs State of Jharkhand
(2021), held that the “the State is under a duty to procure evidence to
establish that there is no possibility of reformation and rehabilitation of
the accused” and that “the Court will have to highlight clear evidence as to
why the convict is not fit for any kind of reformatory and rehabilitation
scheme.”
Undoubtedly, the onus has been placed on the State to lead evidence to
show that no reformation is possible and for the sentencing courts to be
satisfied that a thorough mitigation analysis was done before the death
sentence is awarded. For a complete mitigation investigation, professionals
trained in psychology, sociology and criminology are required in addition to
legal professionals. Taking cognisance of the value of a holistic approach to
mitigation investigation, the Court in Manoj & ors vs State of Madhya
Pradesh (2022) issued directions
to the State to place before the court all “report(s) of all the probation
officer(s)” relating to the accused the reports “about their conduct and
nature of the work done by them” while in prison. More importantly, the order
also directs that a trained psychiatrist and a local professor of psychology
conduct a psychiatric and psychological evaluation of the convict. Suo motu writ
petition On March 29, 2022, a Bench of the Supreme Court
led by Justice U.U. Lalit (along with Justices S. Ravindra Bhat and P.S.
Narasimha) was hearing an interlocutory application filed on behalf of a
death sentence convict seeking permission for a mitigation investigator from
Project 39A be provided permission to conduct interviews and access material
pertaining to the prisoner. While doing so, the Court recorded a set of
observations around the questions of what may constitute mitigating
circumstances, the role of a probation officer in assisting the Court and the
potential value addition of a mitigation investigator to the sentencing
exercise. These observations now form the bases of a suo motu writ petition
(criminal) which will be heard separately and comprehensively on these
aspects. The views of the Attorney General representing the Union of India as
well as those of the National Legal Services Authority have been sought in
this matter; and this is now listed for hearing on May 10, 2022 for
consideration of arguments. At this hearing, or soon thereafter, it is hoped
that guidelines around best practices in death penalty sentencing will be
framed. Onus on courts Nevertheless, it is undeniable that there is a
new wave of thinking in this hitherto underexplored domain of sentencing,
which forms a key pillar of judicial work. The intervention of the Supreme
Court of India in, hopefully, framing guidelines around incorporation of a
mitigation analysis and consideration of psycho-social reports of the
prisoner at the time of sentencing is timely and necessary. As a result, the
responsibility of the sentencing and confirming courts will now be greater in
ensuring that no death sentence is manually awarded or routinely confirmed.
The entire judicial exercise that has culminated in the institution of the
suo motu writ petition will only go to strengthening the doctrine of the
rarest of rare, as laid down in the Bachan Singh case and, thereby,
reinstating fairness in the death penalty sentencing exercise. |
