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ISSUES RELATED TO ARTICLE 21 BY ATRISHEKHAR - Coggle Diagram

- - - - According to section 309 of IPC, an unsuccessful attempt of suicide will invite a penal prosecution.
      - “Attempt to commit suicide.—Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year [or with fine, or with both]”
        
        In P. Rathinam v. Union of India the court, giving relief to the misers attempting suicide, section 309 was held to be irrational and deserves to be effaced from the statute book to humanize our penal laws.
        
        It attempts in doubly punishing the man who is tremendous pain and would be undergoing ignominy because of failure to commit suicide.
      - Soon, this was also overruled in the case of Gian Kaur v. State of Punjab and it was held that right to life does not include right to die or the right to be killed.
        
        It was further held that right to life was a natural right embodied in Article 21, but suicide was unnatural termination or extinction of life and therefore, ‘incompatible and inconsistent’ with the concept of the right to life.
      - Does mental healthcare act offer a solution?
        
        In 2017, Parliament passed the Mental Healthcare Act. Section 115 (1) of the Act provides, that any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said Code.
        
        However, this law applies only to those suffering from mental illness. There is presumption of severe stress in case of an attempt to die by suicide.
        
        But what if severe stress is not proved?
      - Chenna Jagadeeswar v. State of Andhra Pradesh and P. Rathinam v. Union of India (1994): In these judgments court held that Section 309 of the Indian Penal Code is a violation of Articles 14 and 21 and is void and unconstitutional.
        
        Aruna Ramchandra Shanbaug v. Union of India (2011): In this case, the Supreme Court endorsed the Gian Kaur judgment.
      - Points in favour of decriminalizing suicide
        
        Harsh treatment of jails:
        
        instead of tackling his situation with compassion, love
        and care, we are treating him with punishment,
        
        Indian laws will be in sync with global norms
        
        In various mature democracies around the world suicide is decriminalized.
        
        Commission of crime vs. attempt of crime
        
        In criminal jurisprudence where the punishment for an
        attempted crime has to be less than the committed crime, same is not applicable in case of suicide where the attempt of crime is punished more
        
        Indian philosophy accepts right to die:
        
        With practices like santhara, Sita and Ram taking samadhi, right to die has been some what accepted by the Indian society at large While the western view ordained in Christian ideals, views the body as a temple of God, but in
        Indian philosophy is seen as a prisoner of soul
        
        Failure of society:
        
        If there are such individuals who have been so burdened that death is preferable to living by such
        people, it is failure of society to recognize and bring compassion to such people.
        
        Sec 309 of IPC
        
        It leads to missing of the golden hour to save the life of a patient, due to medico-legal issues and thus doctors hesitate to attend the patient.
      - Points against decriminalizing suicide:
        
        The logic used here is that life is a personal property, but the effects on immediate family members etc.
        is ignored, thus this right to life is seen as an individualistic notion of capitalism.
        
        State has a duty to prevent violence in the society, even when the violence is against the self, even
        when it is self-inflicted. I
        
        In 1996, Gian Kaur case, the apex court upheld sec 309, even though the law
        commission in 1971 and 2008 advocated that sec 309 should be repealed.
        
        Mental Health Act, 2017, Section 115 has watered down the scope of Sec 309 of IPC, on the
        presumption of the victim being under stress, unless proven otherwise.
    - - TYPES
        
        Active
        
        Active euthanasia entails the use of lethal substances or forces, such as administering a lethal injection, to kill and is the most controversial means.
        
        Non-Voluntary euthanasia
        
        Euthanasia conducted where the consent of the patient is unavailable is termed non-voluntary euthanasia. Non-voluntary euthanasia is illegal in all countries
        
        Examples include child euthanasia, which is illegal worldwide but decriminalised under certain specific circumstances in the Netherlands under the Groningen Protocol.
        
        Passive Euthanasia.
        
        Voluntary euthanasia:
        
        Euthanasia conducted with the consent of the patient is termed voluntary euthanasia. Voluntary euthanasia is legal in some countries. Jurisdictions, where euthanasia is legal, include the Netherlands, Colombia, Belgium and Luxembourg.
        
        Involuntary euthanasia:
        
        Eutanasia conducted against the will of the patient is termed involuntary euthanasia. Involuntary euthanasia is usually considered murder.
        
        Passive euthanasia entails the withholding of common treatments, such as antibiotics, necessary for the continuance of life.
      - The word Euthanasia originates from Greek terms ‘Eu’ (good) and ‘Thanatos’ (death), meaning “good death” or “gentle and easy death”.
      - The term euthanasia was first used in a medical context by Francis Bacon in the 17th century to refer to an easy and painless death during which it is a physician’s duty to alleviate the ‘physical sufferings’ of the body.
      - It is also known as Mercy Killing.
      - Arguments for euthanasia:
        
        A permanent end to the suffering of an individual is a benevolent action, almost a charitable one.
        
        Ends physical, mental and psychological misery for the patient and the family
        
        Enables more facilities and funds for other patients needing medical treatment and attention
        
        An example of freedom of choice
        
        Organs can be transplanted to save numerous other lives
      - Arguments against euthanasia:
        
        Exploitation of ‘living will’
        
        Against religious sentiments
        
        Possibility of the lack of awareness about additional treatment options
        
        Euthanasia demeans and devalues the sanctity of human life
        
        Possibility of becoming a means to reduce healthcare cost
        
        Possibility of becoming involuntary
        
        Possibility of being used for those not terminally ill
        
        Destroys potential of life, which is unknown to the patient, doctor or family
        
        Irreversible
      - CASES
        
        In the Aruna Shaunbaug case, 2011, the apex court allowed passive euthanasia only for people who are terminally ill or in a vegetative state.
        
        It further said that every case of euthanasia would be decided by a division bench of the local high court which would decide on the basis of the opinion received from a panel of 3 doctors.
        
        • In 20 18, in the Common Cause judgment too, the Supreme Court reiterated its stand of 2011 on passive euthanasia.
        
        • In 20 16, a bill was introduced, called as The Medical Treatment of Terminally Ill Patients Bill, 2016 to frame further detailed rules in this matter, but it could not be passed
        
        Advanced medical directive/living will:
        
        • Suppose a person is suffering from a critical disease like Alzheimer, eventually with time his brain functions will start shutting down. The person diagnosed with the disease knows that he would be in a pitiable state in the future.
        
        Should the person be allowed to write a will with regards to his property, etc. and write in the will that if his situation reaches a point where he is totally incoherent, is totally dependent on other people for basic bodily functions be allowed to die?
        
        In 20 18 apex court gave legal sanctity to living will. In the year 2000, a person went to The Kerala High Court, in CA Thomas Master case, and said that he was not under any stress, he was content with his life having lived it to the fullest, and he had no obligations to anyone and hence wanted to choose the time and manner of his death.
        
        This was a request for voluntary death. But the high court denied the permission.
    - - It was discussed that Suicide was an act of self-destruction, to terminate one’s own life without the aid or assistance of any other human agency whereas euthanasia being different as it involves the intervention of a human agency to end one’s life. This mercy killing is from nowhere covered in section 309 of Indian Penal code
- - - - Though the court focused on self-certification, but the bill had the requirement of a transgender
        certificate.
        
        Moreover, under the bill, sexual abuse of transgenders invites less quantum of punishment as
        compared to cisgenders and thus it codifies inequality of genders.
- - - - Pardon: The convict is absolved of the guilt and the convict's sentence is nullified
      - Commutation: Changing the character of the sentence
      - Remission: Reducing the sentence without changing the character
      - Respite: A reduced sentence is given in light of some special circumstance.
      - Reprieve: A temporary stay on the death sentence of the convict due to the pending of the clemency
      - Diff between P& G clemency
        
        The power to pardon a death sentence is exclusively held by the President of India and not the Governor
        
        • In the Court Martial cases, the President has exclusive clemency powers.
        
        • Clemency power rests with the President if the conviction is with respect to an offense in law to which the executive power of the Union extends and in other cases the clemency powers is with the Governors.
  - - - In case the President/Governor misused the power of clemency, then can a person go to the courts to redress this through judicial review.
      - This question came up before the apex court and it held that the court cannot question the decision of the clemency based on its merits, but the judiciary still has a limited power of judicial review to ensure that the President and Governor consider all the relevant material pertaining to that case before coming to a decision.
      - The President/Governor can examine the evidence afresh before deciding the decision to grant clemency.
      - The petitioner cannot demand an oral hearing, but the President or Governor can allow this. But it is not granted as a matter of right.
      - Judiciary cannot lay down any guidelines for the exercise of clemency powers by the President/Governor.
      - The powers of clemency cannot be treated like an appeals court above the judiciary and have to be treated independently of the judiciary.
      - These powers cannot be exercised by the President/Governor on their wisdom. These powers have to be exercised on the advice of the Council of Ministers much like every power of the President/Governor.
    - - Clemency powers are prone to misuse and if there is clear evidence of misuse, the courts will step in to conduct a limited judicial review on grounds of wisdom and merit.
      - Clemency cannot be shown on undue grounds of caste, religion, political loyalty, etc.
      - Regarding the question of clemency powers being a private act of grace, the courts termed it a public act, thus the foremost thing that should weigh on the mind of the President/Governor is the interest of the society and not the interest of the convict.
    - - These questions were laid before the Apex Court. The court was also asked whether the application of
        clemency be allowed if there is no application filed by the convicts themselves and thus can the State Governments exercise unilateral powers of remission. This matter was sent to the Constitutional
        Bench
        
        In 2014, the Supreme Court had commuted the death sentence of AG Perarivalan, one of the convicts in the Rajiv Gandhi assassination case, to life imprisonment on account of the undue and unexplained delay in deciding his mercy plea.
        
        Subsequently in 2018, Perarivalan submitted an early release application to the Governor of Tamil Nadu under Article 161 of the Constitution.
        
        The then Governor of Tamil Nadu decided to refer the plea to the President of India.
        
        The Tamil Nadu government objected to such ‘reference’, which has no statutory or constitutional validity.
        
        Both Perarivalan and the Tamil Nadu government, in 2018, approached the Supreme Court due to the delay in his release, despite a recommendation given by the then Tamil Nadu government to remit his sentence.
        
        In May 2022, the Supreme Court ordered the release of AG Perarivalan, invoking powers under Article 142 of the Constitution.
        
        The court was of the view that the inordinate delay in deciding Perarivalan’s early release plea by the Governor under Article 161 warranted his release.
        
        The court observed that the inordinate delay by the Tamil Nadu Governor in exercising his powers under Article 161 can be subject to judicial review.
        
        The court opined that the state government is well-within its authority to aid and advise the Governor in pardon and remission pleas pertaining to cases of murder
        
        Article 142 provides a unique power to the Supreme Court, to do complete justice between the parties, where at times law or statute may not provide a remedy.
        
        On 11 nov ,The Supreme Court has set free the remaining six convicts in the Rajiv Gandhi assassination case, extending to them the benefit of its order releasing their co-convict A G Perarivalan.
      - In the Sriharan Murugan Case (2015), the court termed that double-dip was allowed.
        
        if the case is investigated by a Central
        Agency, remission cannot be granted by the State Government
        
        Thirdly, the courts said that there cannot be a unilateral application of remission by the State Government without the application
        coming from the convicts themselves.
      - Meaning of Life Sentence:
        
        The courts also talked about what the term 'life sentence' means.
        
        The courts said that if there was no possibility of parole or remission in a life sentence, how can there
        
        Section 433A of the CrPC states the minimum of 14 years of sentence must be spent for any kind of remission or parole.
        
        Thus the Apex court said that in special cases, the court can lay out theminimum number of years for remission or parole, apart from the 14 years already statutorily mentioned looking at the gravity of the offense.
        
        Parole
        It is the conditional release of prisoners, usually, an early release on certain conditions and the prisoner will have to regularly report to the authorities for a set period of time.To grant some relief to the prisoners in certain exigencies.
        
        Furlough
        It is the granting of leave of absence to a convict from prison for a specified period of time.It is granted after a stipulated number of years to the prisoner without a reason.
        
        Remission is different from parole and furlough as it is a reduction in sentence as opposed to a break from prison life.
        
        Recently, a bench comprising Dr DY Chandrachud and BV Nagarathna, JJ in 2021 formulated and stated the “broad, general” principles governing rules for granting “parole” and “furlough”.
        
        2 more items...
- - - - In judicial custody death mainly occurs due to suicide, natural death, inferior food quality, heath concerns, disease, etc.
  - - - In this context, right recruitment and right training is needed, and the right kind of person has to be recruited.
- - - - As rich people with the best legal help can escape from the punishment of death sentence even
        after being convicted for a cruel crime.
  - - - Punishment has to be proportionate to the crime.
      - Death sentence must be given in the rarest of rare cases where the alternative of life sentence is unquestionably foreclosed.
      - The judge has to judge whether end of justice will be served by a life sentence or not.
      - Two factors must be considered, namely the aggravating factors and mitigating factors,representing the circumstances of the crime and circumstances of the criminal, respectively.
      - First the aggravating factors have to be looked into and later the mitigating factors to decide the quantum of the punishment.
      - Even though the rarest of rare doctrine was conceived in the Bachan Singh case, the courts did not give
        any kind of elaboration.
    - - In Mach hi Singh case, 1983, 'rarest of rare' was defined as follows:
        
        Look into manner of commission of crime, whether it shocks the conscience of society, judge etc.
        
        Anti-social nature of crime: bride burning, killing a Dalit, etc.
        
        Motive of crime: motive shows extreme moral depravity like murder committed just for money.
        
        Magnitude of crime: how many murders, victims etc.
        
        Personality of victim: helpless child, mentally disabled person, leader of the masses, old people
        
        Some kind of elaboration was conceived in Machhi Singh case as discussed before. This was the
        progressive part of the judgement, while the balance sheet theory was the regressive part of the judgement, which is not workable.
      - In the Ravji judgement (1996), the courts said to look at only the aggravating factors and ignore the
        mitigating factors, thus the previous practice of aggravating and mitigating factors was nullified and it was termed a regressive judgement.
        
        In the Bariya Case (2009), the apex court brought back the mitigating factors and the judgements
        declared after Ravji case were declared 'per incuriam' (lack of due regard to law). but the balance sheet theory was not rejected.
        
        The balance sheet theory that came up in the Machhi Singh case was rejected in the Sangeet Case
        (2012) and thus the mitigating and aggravating factors were considered independently of each other.
- - - - UN norm is 222 pol ice per lakh population, whereas India has 155 per lakh population
    - - The principle of 'bail should be the norm.jail should be the exception' is not followed.
    - - The average pendency of cases in I ndian judiciary is 15 years, while in Supreme Court alone it is 4 years.
    - - There is shortage of prosecutor as well as poor quality of prosecutors.
        
        Legal aid mess:
        
        There is lack of awareness and systemic procedure to avail the benefit of legal aid. The accused most of the times are not aware of the person who is going to defend them in the court of law.
        
        A person committing a crime not punishable by death can be released on own surety bond if he has served half the sentence while being undertrial, if he would have been convicted. This provision exists under section 436A of the CrPC, but it is not being implemented.
        
        In 2014, the Supreme Court in Bhim Singh case chided the governments to implement it fully.
    - - Poor strata of popu lation are not in a position to afford trials in courts
- - - - Opinion of the State-level medical board is essential for a pregnancy to be terminated after 24 weeks in case of substantial foetal abnormalities.
  - - - a leak by political journalism company Politico has revealed that, the US Supreme Court has decided to overturn Roe v. Wade, 1973 the court’s landmark 1973 judgment that made abortion a constitutional right.
        
        The abortion debate is the ongoing controversy surrounding the moral, legal, and religious status of induced abortion.
        
        In many western countries, the sides involved in the debate are the self-described "pro-choice" and "pro-life" movements.
        
        In many western countries, the sides involved in the debate are the self-described "pro-choice" and "pro-life" movements.
        
        On the contrary, the pro-life position stresses the humanity of both the mother and fetus, arguing that a fetus is a human person deserving of legal protection.
      - In 2018, the state of Mississippi banned most abortions after 15 weeks — much before fetal viability, and sooner than was allowed by Roe — throwing a direct challenge to the 1973 judgment.
        
        In 2019, “heartbeat” abortion law was passed in Mississippi, an even more restrictive measure that banned most abortions once fetal cardiac activity could be detected — which is about six weeks.