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The Theoretical and Conceptual Framework of Family Law Mediation

This article is written by Melita Tessy, a student at School of Law, Christ University. In this article, she discusses the theoretical and conceptual framework of family law mediation.

Introduction

Modern mediation refers to a movement that gathered momentum in the 1970s in the United States, in the 1980s in Australia and the United Kingdom and in the 1990s in much of Europe, Africa and India. [1]

The need for accessible and affordable dispute resolution was identified in the Pound Conference, formally known as ‘The National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice’ in the address given by Frank Sander. [2]

The above-mentioned conference took place in Minneapolis in 1976 and addressed issues relating to the perceived crisis in access to justice. A similar voice of dissatisfaction was being heard globally.

Taking the themes that emerged from the then dissatisfaction with access to justice, writers such as Blankenburg, Galanter and Johnson continued to debate on the visions for the justice system. These visions included the introduction of mediation. [3]

In India, the 129th Law Commission of India Report [4] and the report by The Malimath Committee (Committee on Reforms of the Criminal Justice System constituted in November 2000) recommended that a provision for settlement of disputes outside the court be created by the legislature. Based on this, section 89 of the Civil Procedure Code, 1908 was inserted in 1999. [5]

This section deals with out-of-court settlement mechanisms such as arbitration, conciliation, judicial settlement including Lok Adalat settlements and mediation.

However, there is no specific legislation governing mediation in India. Voluntary mediation is treated as a purely contractual creature established and regulated in accordance to the agreement between the parties and Court Referred or Annexed Mediation under section 89 of the Civil Procedure Code is governed by the Mediation Rules of 2003.

As a result, there is no statutory definition given to the term ‘mediation’. A widely accepted definition of mediation is given by Goldberg and Sanders. According to them, ‘mediation is negotiation carried out with the assistance of a third party. The mediator, in contrast to the arbitrator or judge, has no power to impose an outcome on disputing parties.’ [6]

Thus, conceptually, mediation is an assisted decision-making process.

Family mediation refers to the process of settlement of family law disputes such as divorce, partition, restitution of conjugal rights and so on through the process of mediation. Family disputes deal with the sensitive personal issues of people and can often involve children. Mediation in this scenario, because of its facilitative and confidential nature, can make the process of settlement of these disputes much easier in comparison to litigation.

With time, the areas of family mediation practice have expanded beyond those arising from divorce and separation and include child protection, child abduction, the homeless young and other kinds of family disputes such as intergenerational family matters. [7]

In this paper, the theoretical and conceptual framework of family mediation under Alternative Dispute Resolution in India is explored.

Legal Framework

Mediation in India is traced back to the Panchayat system that existed since the Vedic Ages. It is believed to be the oldest mode of out-of-court settlements in India. However, the modern-day methods of alternative dispute resolution in India cannot be directly linked to the Panchayat system due to the colonization of the Indian subcontinent by the British. During the colonial period, various legislations were passed by the British rulers to regulate the locals, especially those that lived near the Presidency towns. Arbitration was widely promoted as a means of settling disputes. The Civil Procedure Code of 1859 and various Regulation Acts such as the ones in 1781, 1787 and 1793 laid down the procedure for arbitration in India with the objective of arriving at a mutually-beneficial result between the parties. There are no reliable records as to how successful these efforts were.

Later, the Indian Arbitration Act in 1899 based on the English Arbitration Law of 1889. The Act of 1899 was repealed in the year 1940 and laws relating to arbitration were redrafted and consolidated as the Arbitration Act, 1940 based on the English Arbitration Act of 1934.

After Independence, the word ‘arbitration’ was incorporated under Entry 13 of the Concurrent List of the Indian Constitution. Subsequently, the Arbitration and Conciliation Act, 1996 was enacted based on the UNCITRAL (United Nations Commissions on International Trade Law) Model Law to keep up with the new challenges that liberalization, privatization and globalization of the economy presented to the judiciary. The 1996 Act superseded the Arbitration Act of 1940.

It is clear from the above paragraphs, that the development of alternative dispute resolution was primarily restricted to Arbitration. Conciliation was given some significance only in the year 1996. Despite this, however, these developments indirectly allowed the legal minds of the country to understand the need for mediation and although slow-paced, provide minimally for its regulation.

Coming to Family Mediation, The Hindu Marriage Act and the Special Marriage Act prescribe mediation as the desirable mode of dispute resolution. This can be seen in sections 23(2) and 23(3) of the Hindu Marriage Act of 1955 which make it mandatory for the court in the first instance to try mediation in every case where it is possible, in keeping with the nature of the case. Corresponding provisions can be found in Section 34(3) and 34(4) of the Special Marriages Act.

Research Questions

What is the scope and what are the shortcomings of mediation in India? What is the scope of family law mediation in India?

What are the steps to be taken to improve mediation in India?

The History of Alternative Dispute Resolution in India

The ancient Indian jurisprudence recognised two methods by which disputes between citizens could be settled, viz. judicial process in the Court established by the King and the other by various categories of Arbitration Institutions. [8]

The earliest known model of Alternative Dispute Resolution was the Panchayat system created during the ancient Vedic ages, where the head of the family or the chief of the community acted as the Panchayat head, and whose commands were believed to be the voice of God and was obeyed unquestionably. [9]

During the colonial period in India, various regulations and rules were framed to introduce alternative dispute resolution mechanisms into the legal systems in the Presidency Towns of Madras, Bombay and Calcutta. However, these regulations were concerned with arbitration primarily and laws to facilitate other forms of out-of-court settlements such as mediation and conciliation were not developed.

The Regulation Act, 1781 recommended judges to direct parties to approach a mutually agreed person to settle the disputes among them. However, in such cases, an award of the arbitrator could not be set aside unless there were two witnesses who testified that the arbitrator had committed gross errors or was partial to a party. [10]

Regulation of 1787 laid down rules for referring suits to arbitration with the consent of the parties. However, there was no detailed provision to regulate the arbitration proceedings, nor any provisions for the consequences of the award not being made in time or for the situation in which the arbitrators differed in their opinion. [11]

Regulation XVI of 1793 came up with provisions referring suits to arbitration and submitting them to the decision of the Nizam. Further Regulations XXI of 1793 and XV of 1795 made provisions to promote references of disputes of certain description to arbitration. They even laid down procedures for reference, award and set aside. They further recommended criteria for the appointment of arbitrators. Regulation VI of 1813 allowed arbitration in suits, with respect to rights in land and disputes regarding the forcible disposition of land. Regulation XXVII of 1814 allowed Vakils to act as arbitrators, removing an age-old bar on acting as such. [12]

The act of 1840 passed by the Legislative Council of India amended the law concerned with the arbitration. Section 312 to 327 of the Code of Civil Procedure, 1859 permitted references to arbitration in pending suits. The Code allowed arbitration without the intervention of courts.

Later, the Indian Arbitration Act was enacted on arbitration law in the year 1899. It was based on the English Arbitration Law, 1889. It recognised the concept of arbitration agreements and it allowed reference of present and future disputes to arbitration. The Act of 1899 was repealed in the year 1940 and laws relating to arbitration were redrafted and consolidated as the Arbitration Act, 1940 based on the English Arbitration Act of 1934.

After Independence, the word ‘arbitration’ was incorporated under Entry 13 of the Concurrent List of the Indian Constitution. To increase efficiency, the Indian economy was liberalised, privatised and globalised. This created new challenges in settling large numbers of commercial disputes. The Arbitration Act, 1940 proved insufficient in tackling these new issues. This led to the adoption of the UNCITRAL (United Nations Commissions on International Trade Law) Model Law by India which enacted the Arbitration and Conciliation Act, 1996 superseding the Arbitration Act of 1940.

In Babar Ali v. Union of India and Others [13], the constitutionality of the 1996 act was challenged. However, the court was of the opinion that the Act was not unconstitutional and in no way did it offend the basic structure of the Indian Constitution.

The government has since independence made efforts to encourage the various types of alternate dispute resolution so as to reduce the burden on courts, improve time efficiency and reduce costs for the parties. However, there are still significant improvements to be made, especially in the field of mediation.

Mediation and Courts in India

The pressure on the judiciary due to a large number of pending cases has always been a matter of concern as that being an obvious case of delay. Therefore promoting widespread use of mediation and conciliation as an effective means of settling disputes without resorting to the formal litigation process has been at the forefront of the Indian Judiciary over the last decade.

In ONGC v. Collector of Central Excise[14], the dispute was between government and department and PSU. It was held by the Supreme Court that public undertaking to solve the disputes amicably by mutual consultation in or through good offices empowered agencies of government or arbitration avoiding litigation. The Government of India was directed to constitute a committee consisting of representatives of different departments to monitor such disputes and to ensure that no litigation comes to court or tribunal without the committee’s prior examination and clearance.

In Salem Advocates Bar Association v. Union of India,[15] the Supreme Court held that after referring a matter to admissions and denials, courts should direct the parties to opt for one of the modes of Alternative Dispute Resolution specified in Section 89. It was observed in this case that the intention of the legislature behind enacting Section 89 is that where it appears to the court that there exists an element of a settlement which may be acceptable to the parties, they, at the instance of the courts, shall be made to apply their mind so as to opt for one or the other of the four Alternative Dispute Resolution mechanisms mentioned in the section and if the parties do not agree, the court shall refer to one or the other of the said modes.

Subsequently, in Afcon Infrastructure Ltd. V. Cherian Varkey Construction Pvt. Ltd.[16], the Supreme Court laid down the summarized procedure to be followed by the referral judge while referring a matter to an alternative dispute resolution method under section 89 of the Civil Procedure Code. As per the procedure, preliminary hearings are to be fixed once the pleadings are complete but prior to the framing of the issues. At this stage, the judge should independently consider the suitability of the case for referral to Alternative Dispute Redressal. In the event the case falls under a suitable category, the judge should obtain the consent of both parties and explain to them the choice of Alternative Dispute Resolutions available, nature and process of the mechanism, and the costs involved. In the absence of consensus, the judge should simply refer simple matters to Lok Adalats and more complex matters to mediation. Once the settlement is reached through Alternative Dispute Redressal, the court will proceed to make a decree in terms of the settlement in accordance with the principles of Order 23 Rule 3 of the Civil Procedure Code and in case no settlement is arrived at, the court will hear the suit. Therefore, based on the case, courts may mandatorily refer to certain categories of matters to Alternative Dispute Resolution.

Mediation around the World

The four countries discussed below are discussed because they have something to offer to the mediation system in India. This section does not consist of a comprehensive collection of facts relating to all aspects of mediation in the countries discussed. Rather, the data provided is limited to relevant details that facilitate understanding of the scope of regulation of mediation. The data is largely obtained from the book ‘Mediation Practice and Law’. [17]

Spain

Spain passed the law on mediation in civil and commercial matters effective from July 2012 to give effect to the 2008 European Union directive on Mediation. Till the passage of the Act, mediation as an alternative dispute resolution mechanism was not widely used in Spain, although the concept of mediation was not unknown in the country. [18]

The 2012 Act applies to civil and commercial matters in Spain with the exception of consumer, employment and public administration mediations, and criminal cases. Cross-border mediations are covered under the Act if at least one of the parties is based in Spain and the mediation takes place in Spain. As per the Act, parties are compelled to attempt to mediate in good faith if there is a mediation clause in a contract. Provisions of the act deal with the qualification of mediators, initiating mediation, confidentiality, restriction on litigation or other legal proceedings during mediation and enforceability of settlement agreements, both domestic and foreign.

The Act specifies that to qualify as a mediator, an individual has to pass specified courses such as law, psychology, negotiation, communication, ethics, etc. In Spain, mediators can be held liable for any damages caused by their actions and are required to have a civil liability insurance policy.

Limitation period is suspended for the duration of the mediation but resumes if the constitutive session is not held within 15 days from the date that the mediator received notice of the mediation. Settlement agreements are binding on the parties.

Italy

Mediation has been used in Italy for several years in family and labour related matters, but only in the last fifteen years has it gained prominence. Several laws provide for mediation, but the European Union Mediation Act, 2011 incorporated into the system is the main law on the matter. The law provides that mediation can only be conducted by mediation bodies accredited by the Ministry of Justice.

Tax incentives and tax credit are available to parties who opt for mediation. A duty is imposed on lawyers to inform their clients in writing about the option of submitting the dispute for mediation and the financial incentives of doing so. The presence of lawyers during mediation is mandatory. The non-attendance of a party at a mediation session without valid justification results in penalties in the form of court costs in future litigation.

The law provides for criteria to be fulfilled by mediators for accreditation and the minimum training required. They may be held liable for misconduct or gross negligence or improper behaviour. Mediation bodies are required to have insurance cover of at least Euros 500,000.

Austria

Austria was one of the first countries of the European Union to enact comprehensive legislation on mediation through the Civil Law Mediation Act of 2004. Under this Act, mediators must have proper education and qualifications and be registered with the Ministry of Justice. For registration, a mediator must be qualified through training, of at least 29 years of age, with no criminal record and with professional liability insurance. Breach of the confidentiality obligation is punishable by a term of imprisonment of up to 6 months or a fine.

Australia

Mediation in Australia is conducted as a court-connected procedure. There are a few institutions that conduct mediation like the Institution of Arbitrators and Mediators, Australia, the Association of Dispute Resolvers, National Dispute Resolution Advisory Council, Law Society of New South Wales and the Victoria Bar Mediation Centre. In Australia, legal representatives can be held liable for not informing clients of this requirement.

Australia does not have any law for the regulation of mediators, though a voluntary National Mediation Accreditation System has evolved as the primary source of mediator standards since 2008. Accredited mediators are required to hold indemnity insurance.

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Recommendations to improve Mediation in India

The following recommendations are based on mediation trends in the countries discussed above and the Mediation Rules of 2015. The recommendations are as follows:

In India, the Central Mediation Rules provide the qualifications necessary to be a mediator in court-connected mediation centres. However, they don’t provide qualifications for mediators in private centres. This leaves private mediation largely unregulated which can leave inexperienced and underqualified mediators providing sub-par services to the parties. Framing rules based on the system in Spain and Austria can enhance private mediation in India. The 2012 act governing mediation in Spain specifies that to qualify as a mediator, an individual must pass specified courses such as law, psychology, negotiation, communication, ethics, etc. This is followed by training specific to the practice. For registration, as a mediator is Austria, among other things, one must be qualified through training, of at least 29 years of age and with no criminal record. Adopting these provisions can make mediation well-known and attract youngsters into the field. This has the additional benefit of creating employment opportunities.

As per Rule 5 of the Mediation Rules 2015, court-empanelled mediators need to have a minimum of 10 years of experience as a lawyer or they need to be a Judicial Officer of the Higher Judicial Service or they need to be an expert or professional with fifteen years standing. All these qualifications take a long time to achieve. A lawyer with a ten-year practise might, in most cases, find it profitable to continue his practice when compared to beginning a new mediation practice. The same can be said for an expert or professional with 15 years standing. Retired judges, bureaucrats and senior executives can also be court-empanelled mediators. But it is to be noted that the said individuals are not half as hungry for jobs as youngsters would be. They have a plethora of high-profile tasks to choose from once they retire. For example, they may be tasked with heading committees, quasi-judicial bodies, advisory roles, mentoring and so on. For these reasons, the qualifications required to be a court-empanelled mediator must not be the same as the qualification required to be a private mediator. If it is possible, even the criteria to be a court-empanelled mediator must be widened.

Under Rule 26 of the Mediation rules, no honorarium (fees) is paid to court-nominated mediators in cases where a settlement is not reached by the parties. Given this situation, it is sadly, reasonable to assume that this might make the mediator act in his own interests as opposed to those of the parties when it comes to settling a dispute. In fact, the highest fee a mediator can acquire per settlement is when it comes to family law disputes such as matrimonial cases, custody, guardianship, probate, partition and possession. Upon settling one such family law dispute, a mediator is entitled to a payment of Rs. 3000. If he has settled two or more of such connected cases, he is given a maximum of Rs. 4000. If mediation is to ever become a sustainable career choice, this pay structure must be modified by increasing the fees per settlement.

The second recommendation is concerned with insurance. In Spain, mediators are required to have a civil liability insurance policy. Mediation bodies in Italy are required to have insurance cover of at least Euros 500,000. In Austria, mediators are required by law to have professional liability insurance. Accredited mediators in Australia are required to hold indemnity insurance. These requirements provide a safety net to the parties to a mediation. They give legitimacy to the mediation profession. Parties will be compensated for any losses they suffer due to the negligent actions of the mediators. For the said reasons, mediators must be mandated to have professional liability insurance in India.

The law in Italy provides that mediation can only be conducted by mediation bodies accredited by the Ministry of Justice. A similar regulation can be framed in India so that the quality of mediation can be high.

In Italy, a duty is imposed on lawyers to inform their clients in writing about the option of submitting a dispute for mediation and the financial incentives of doing so. This alone can greatly popularize mediation and its benefits can be successfully reaped.

Another important aspect of popularizing mediation would be by making it a part of law-school and business-school curriculum in the form of an elective course.

The last recommendation is the most obvious one. It is for the legislature to pass an act that governs mediation. Till the passage of the 2012 mediation act in Spain, mediation as an alternative dispute resolution mechanism was not widely used in Spain, although the concept of mediation was not unknown in the country. Passing an act for mediation in India can have the same effect in India as passing an act for mediation had in Spain.

Types of Models of Mediation

There are four main models of mediation. They are:

Facilitative Mediation;

Evaluative Mediation;

Transformative Mediation and;

Expert-advisory Mediation. [19]

They are differentiated on the grounds of objectives, procedures and value assumptions.

Facilitative Mediation

In the facilitative style of mediation, the mediator is in charge of the process, but the parties are in charge of the result.[20] This mediation model may be adopted where the parties, on their own accord, cannot reach a conclusion as to what procedure must be followed in conducting the mediation proceedings. This type of mediation generally consists of joint sessions where all the parties are present and importance is given to the interests of the parties.

In facilitative mediation, caucuses are held on a regular basis. They want the parties to have the major control on decisions made, rather than the parties attorneys.[21] This is the first and most common form of mediation. The goal of this type of mediation is a win-win settlement where the mediator helps all the parties achieve a mutually beneficial result.

Evaluative Mediation

An evaluative mediator guides the parties in reaching resolution by highlighting the weaknesses of their cases, and predicting what a judge or jury would be likely to do. Evaluative mediators are more concerned with the substantive legal rights of the parties rather than focusing on positions and interests and evaluate based on legal perceptions of fairness. The mediators meet quite often in separate meetings with the parties and their attorneys, practising shuttle diplomacy.[22] The evaluative mediator is totally responsible for organizing the process of the mediation, and also directly influences the outcome of the mediation.

Evaluative mediation is oftentimes court-mandated or court-referred mediation. Attorneys normally work with the court to decide the mediator and are active participants in the mediation. The role played by the parties are most often much less active here when compared to facilitative mediation.

Transformative Mediation

This type of mediation came after facilitative and evaluative types of mediation. It was propagated by Professors Baruch Bush and Joseph Folger in 1994. [23]

According to Leonard Riskin “in some ways, the values of transformative mediation reflect those of early facilitative mediation, in its interest in empowering parties and transformation.” [24]

In a transformative style of mediation, the parties are responsible for the formulation of both the process and outcome of mediation, and the mediator has to follow the lead. [25]

Both facilitative and transformative types of mediation are focused on empowering the parties and their interests. This can promote greater ownership of the agreed settlement by the parties, making them more willing to abide by it. However, the said types can take much longer to settle when compared with evaluative mediation. They can also end without a settlement reached. Another issue that plagues facilitative and transformative mediation is a power imbalance. The party/parties with greater bargaining power (Access to Legal and Technical Experts, Greater Spending Capability) can dominate those with lesser bargaining power since the mediator takes a backseat and it is up to the parties to play an active role in negotiating a settlement. When the mediator is involved to a great extent, the process has more credibility. Evaluative mediation too, however, has its disadvantages. The positions of the parties will be fixed as it is based on the party’s rights rather than interests. This might lead to polarization. The parties in evaluative mediation may be more reluctant to collaborate with each other to find a solution and a win-win situation may become harder to achieve when compared to facilitative and transformative styles of mediation.

Expert-Advisory Mediation

This type involves a high intensity of mediators intervention in the problem. Expert Advisory mediators are typically senior lawyers or other professionals chosen on the basis of their expertise in the subject-matter of a dispute and their pre-eminence, rather than their mediation practice skills.[26] Parties are generally accompanied by legal representatives. A positional bargaining approach similar to that in evaluative mediation is adopted rather than an interest-based one. That is, the parties hold a fixed position regardless of underlying interests. The advantage is that the parties focus on the issues common to all of them rather than the interests specific to each of them.

Expert advisory mediation may be useful where there is a power imbalance between parties. The party/parties with greater bargaining power will not be allowed to dominate those with lesser bargaining power because the mediation process and its results will be respectively controlled and directly influenced by an expert mediator who is concerned with the rights of the parties and not their bargaining ability or interests. This type of mediation can be court-mandated quite often.

Court-annexed Mediation

Court-annexed mediation refers to court-referred or court-mandated mediation proceedings under section 89 of the Civil Procedure Code where the referral judge oversees the mediation proceedings conducted by the mediator. It is governed by the Mediation Rules of 2015. It is one of the types of court-annexed alternative dispute resolution mechanisms. The 129th Law Commission of India report notes that:

When a court refers a case to a court-annexed mediation service, keeping the overall supervision of the process, no one would feel that the system parts with the case. This also gives a larger public acceptance for the process, as the same time-tested court system, which has acquired public confidence because of integrity and impartiality retains its control and provides additional service. [27]

Advantages of Mediation

According to Goldberg and Sanders, ‘Despite the lack of ‘teeth’ in the mediation process, the involvement of a mediator alters the dynamics of negotiation.’[28] This altered dynamic is a preferable one as the mediator helps the parties understand each other’s views, provides new legal and technical information and makes an assessment of the alternatives to a settlement. The advantages of mediation are enlisted below:

Mediation is more time and cost-effective than arbitration and litigation. Parties to a mediation settlement need not go through long court waiting lists. It is advantageous compared to conciliation for those who want guidance, but also want to come up with solutions by themselves. It is ideal for those who want to make use of the least intrusive process in reaching a settlement.

The mediation process is a flexible one. The structure of the mediation process is not rigid. Rule 10(a) of The Mediation Rules of 2015 allows the parties to decide on the procedure to be followed by the mediator in the conduct of mediation proceedings. If they don’t reach an agreement regarding the procedure to be followed, Rule 10(b)(i) gives the mediator the power to fix, in consultation with the parties, a time schedule, the dates and the time of each mediation session, where all parties have to be present. The same opportunity is not provided by traditional courts to the parties in a case. Rule 10(b)(ii) even allows the mediator to hold the mediation session at any convenient location agreeable to him and the parties. This level of flexibility is highly desirable to the parties who opt for mediation. However, the currently applicable Mediation Rules of 2015 does not have this provision. Rule 11 of the 2015 rules merely state that a matter referred to the mediation must be settled by the structure usually followed, including but not limited to, introduction and opening statement, joint session, separate session(s) and closing.

The efficiency that mediation offers does not only benefit the parties but also benefits overburdened civil courts by reducing their workload.

Mediation assures privacy under Rule 21 of the 2015 rules by allowing all mediation sessions to be attended only by the concerned parties or their counsel or the power of attorney holders. Other persons can attend only with the permission of the parties and with the consent of the mediator. This level of privacy cannot be guaranteed in in-court settlements.

Rule 12 of the 2015 rules state that Mediation is not bound by The Evidence Act, 1872 or Code of Civil Procedure, 1908. This in itself extends the flexibility of the Mediation process. Confidentiality to be maintained by the parties and the mediator under Rule 20 of the 2015 rules is another attractive feature of mediation.

Theories of Mediation

According to Ury, Brett, & Goldberg, there are three methods that can be used in conflict resolution.[29] These three methods are applicable to mediation. These three methods give rise to three different theories of conflict resolution. The first and third theory is applicable to facilitative and transformative models of mediation, while the second is applicable to evaluative and expert-advisory mediation. They are:

The Theory of Power-oriented Conflict Resolution

A party using power to resolve a dispute seeks to prevail over the other party by using force: physical, economic, or psychological. An example of physical force would be a civil rights group blocking access to a restaurant believed to be discriminating in hiring; economic force would be the civil rights group organizing a consumer boycott of the restaurant; psychological force would be a member of the civil rights group refusing to talk to one of his friends until he stopped patronizing the restaurant. Threats to take harmful action if one’s demands are not met are another use of power. Determining which party is more powerful without engaging in a potentially destructive power contest is difficult. This is because power is largely a matter of perception and each party’s perception of its own and the other party’s power may differ. Additionally, once a power struggle has begun, it can easily spiral out of control as each party invests more and more resources for fear of losing a decisive battle. The restaurant believed by the civil rights group to be discriminating may, for example, engage high-priced lawyers to seek millions of dollars in a defamation action designed to bankrupt the civil rights group. The latter, in turn, may seek to persuade suppliers not to do business with the restaurant. In the end, a power contest results in costs for both parties, even if one capitulates.

The Theory of Rights-oriented Conflict Resolution

Another way to resolve disputes is to rely on an independent standard with perceived legitimacy or fairness, such as the law or a contract between the parties, to determine which party is “right.” A problem with this approach is that rights are rarely clear. One party relies on a law that supports its position; the other party relies on a different law or a different interpretation of the first law. To resolve the question of whose rights, standard or interpretation should prevail, the parties often need to turn to a third party, an arbitrator or judge, to make a binding decision. Involving a third party decision-maker is frequently a costly and time-consuming procedure. Furthermore, the loser may only grudgingly comply with the third-party’s decision, leading to further disputes. Finally, a conclusion that one party is right and the other wrong may end their existing relationship and the prospect of any future relationship. Think of the number of divorced couples, who, after a bitter court fight over child custody, are soon back in court because they cannot cooperate on some new child-related issue.

The Theory of Interest-oriented Mediation

Interests are peoples’ needs, desires, concerns, or fears, the things they care about or want. Interests underlie people’s positions, the tangible items they say they want when they make or reject claims. Reconciling interests is not easy. It involves probing for deep-seated concerns, determining which interests are more important than others, devising creative solutions that reconcile interests, and making trade-offs and concessions. But, interest-based agreements are possible in many disputes. Recall the quarrel between husband and wife about whether to spend money on a new car. Suppose that his underlying interest was to impress his friends and hers was reliable transportation. An interest-based solution might be to buy a high end, but less expensive, used car with a long-term warranty, so satisfying the wife’s interest in reliable transportation and the husband’s interest in impressing his friends. In the land-use permit dispute, both the government agency and the user groups may have an interest in conserving the park for future use. As a result, the agency may agree to issue a use permit if the users agree to leave the campsite in a pristine condition and solicit volunteers for the annual park clean-up day.

Family Law Mediation

Matrimonial disputes are a key area for the use of mediation. When mediation first started as a structured process, it was introduced for matrimonial and industrial disputes. Even before trained mediators came on to the scene, family counsellors were common. Sometimes psychologists and even divorce lawyers try to reconcile differences between the couple. The very nature and composition of a family unit – domestic, sensitive, emotional and private – draw a presumption for the use of consensual dispute resolution. [30]

Mediation of matrimonial disputes has many advantages in comparison to litigating the same. Family mediation creates a safe space for analysing touchy topics and enables rational thinking in difficult circumstances. This, in turn, enables the parties to understand each other and draw up solutions that are mutually favourable. When issues are solved this way as opposed to a time-consuming, adversarial process, there is much less to recuperate from.

In fact, the process in itself creates scope for inner-healing and reparation of the relationship between both the parties as there is no fighting involved. Keeping confidential delicate and intimate issues is another attractive feature of mediation. Parties are more likely to be honest and willing to open up regarding their feelings and interests, especially since either party can meet up with the mediator separately. Children involved in mediation as opposed to court proceedings are less likely to suffer from neglect and emotional and physical insecurity as the process endeavours to be quick and empathetic to their needs.

Indian statutes concerned with family disputes emphasize the need for attempting reconciliation and out-of-court settlements. Settling through reconciliation in family disputes received statutory recognition in India even before the enactment of Part III of the Arbitration and Conciliation Act of 1996.

Importance of Family Law Mediation

The traditional approach in most family law disputes has been for each partner to consult their own lawyer and for the two lawyers to negotiate on their client’s behalf, reach agreement if possible or, if not, hand over to a judge the responsibility of making decisions. The judge makes an order that is imposed on the parties based on the facts before him.

For couples unable to reach an agreement on their own, the only alternative, therefore, was to transfer responsibility for negotiating and decision-making to third parties. So, mediation emerged to fill a space hitherto unoccupied, which none of the existing services, welfare, advisory or therapeutic on the one hand and lawyers and the courts on the other, could in nature have filled.

Statutory Provisions concerned with Family Law Mediation in India

The Hindu Marriage Act and the Special Marriage Act prescribe mediation as the desirable mode of dispute resolution. This can be seen in sections 23(2) and 23(3) of the Hindu Marriage Act of 1955 which make it mandatory for the court in the first instance to try mediation in every case where it is possible, in keeping with the nature of the case. Corresponding provisions can be found in Section 34(3) and 34(4) of the Special Marriages Act. The court must make every endeavour to bring about a reconciliation between the parties to the dispute, and may refer the matter to a person nominated by the parties or by the court to effect a reconciliation.

Section 89 and Order XXXII-A of the Code of Civil Procedure, 1908, which makes it obligatory for the court to refer all suitable disputes to arbitration, conciliation, mediation or judicial settlement. Section 14 of the Protection of Women from Domestic Violence Act, 2005 provides that the court can refer the matter to conciliation at any stage of the dispute. The Family Courts Act of 1984 makes a slight departure in Section 9 of the Act making it the court’s obligation to try and bring about a settlement between the parties.

Conclusion

Backlog of cases in judicial bodies due to an overwhelming number of petitions undermines the fundamental goals of in-court processes. It also violates the fundamental right to a speedy trial under Article 21 laid down in Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar. [31] Each and every dispute need not be heard by a judge in a court. This gives courts the opportunity to reduce the backlog by referring cases to alternate dispute resolution mechanisms once a case is deemed fit for such mechanisms. Popularizing mediation and other alternative dispute mechanisms, setting up mediation centres in every district and training mediators needs to take place so that justice is assured to all those who seek it.

At the same time, precautions must be taken to not overburden court-connected mediation centres. Cases must not be referred to mediation indiscriminately as all cases are not suitable for the same. The act of referring a case to mediation with an intent to delay court proceedings or to avoid a judge must be identified and discouraged by levying a fine. Pre-litigation mediation and non-litigative mediation must be promoted in suitable areas so that mediation does not denigrate to a solely court-controlled process. In cases where parties select and pay their own mediator, the room for success is greater as they have confidence in the mediator’s ethics, ability and neutrality. They pursue the process earnestly since it is funded by them. This also ensures that they refrain from resorting to delaying tactics and avoiding judges.

References

[1] N. Alexander, Global Trends in Mediation (1st Edition, Kluwer Law International, 2006)

[2] Frank E. A. Sander, Varieties of Dispute Processing: Address at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (Levin and Wheeler, 1979)

[3] M. Cappelletti, Alternative Dispute Resolution Processes Within the Framework of the World Wide Access-to-Justice Movement, 56 Modern Law Review 287 (1995)

[4] Law Commission of India, Report on Urban Litigation Mediation as an Alternative to Adjudication (129th Report, 1988)

[5] The Civil Procedure Code (Amendment) Act, 1999, No. 46, Acts of Parliament, 1999 (India)

[6] Stephen B. Goldberg, Sander and Rogers, Dispute Resolution: Negotiation, Mediation and other Processes (3rd Edition, Aspine Law and Business, 1999)

[7] Marian Roberts, Mediation in Family Disputes: Principles of Practice (3rd Edition, Ashgate Publishing Company 2008)

[8] Dr Kane, History of Dharmashastra: Volume 3 (1st Edition, Bhandarkar Oriental Research Institute, 1968)

[9] Maine, “Ancient Village Communities”, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (1st Edition, Hardpress Publishing, 2019)

[10] Rishab Sinha, Sarabjeet Singh, “Taking Alternative Dispute Resolution To The Common Man”, … http://www.adrcentre.in/images/pdfs/Taking%20Alternative%20Dispute%20Resolution %20To%20The%20Common%20Man.pdf

[11] Nripendra Nath Sircar, Law of Arbitration in British India, 1962

[12] Vishnu S Warrier, Arbitration, Conciliation and Mediation (1st edition, LexisNexis, 2015)

[13] Babar Ali v. Union of India and Others, 2 SCC 178 (SC: 1999)

[14] ONGC v. Collector of Central Excise, 4 SCC 541 (SC: 1995)

[15] Salem Advocates Bar Association v. Union of India, 1 SCC 49 (SC: 2003)

[16] Afcon Infrastructure Ltd. V. Cherian Varkey Construction Pvt. Ltd, 8 SCC 24 (SC: 2010)

[17] Sriram Panchu, Mediation Practice and Law (2nd edition, LexisNexis, 2015)

[18] Arevalo, Irene, Mediation in Spain, IBA Mediation Committee Newsletter, April 2005, pg.29

[19] N Alexander, The Mediation Metamodel: Understanding Practice, 26 Conflict Resolution Quarterly 97 (2008)

[20] Leonard L Riskin, “Understanding Mediators” Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1:7 Harv. Neg. L.R 7 (1996)

[21] Anirban Chakraborty, Law & Practice of Alternative Dispute Resolution in India: A Detailed Analysis (1st Edition, LexisNexis, 2016)

[22] Lela P. Love, The Top 10 Reasons Why Mediators Should Not Evaluate, 24:4 Florida State University Law Review 937 (1997)

[23] Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (1994)

[24] Leonard L Riskin, ‘Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1:7 Harv. Neg. L.R 7 (1996)

[25] Id.

[26] Supra 9

[27] Supra 4

[28] Supra 6

[29] Ury, W. L., Brett, J. M., & Goldberg, S. B., Getting Disputes Resolved (1st edition, Cambridge, 1993)

[30] Sriram Panchu, Mediation Practice and Law (2nd edition, LexisNexis, 2015)

[31] Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, AIR 1369 (SC: 1979)

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loyallogic · 5 years ago

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Punishment under IPC: All you need to know about it

This article has been written by Lakshmi. V. Pillai of 5th year pursuing B.A. LL.B from GLS Law College, Ahmedabad. This article in depth discusses the various types of punishment provided under Section 53 of the Indian Penal Code,1860. Further, the constitutionality of the death penalty and various case laws wherein the death penalty has been upheld and not upheld by the Apex Court are also cited. This article also includes topics like sentencing policy, compensation to victims and proposals for reform under IPC.

Introduction

Under the sanction of the law, punishment is retribution on the offender to the suffering in person or property which is inflicted by the offender. Punishment is the way through which an offender can be stopped from doing offences against person, property, and government. Therefore, punishments can be of various types like deterrent, rehabilitative, restorative and retributive.

Sentencing Policy

Under the Indian Penal Code, the sentencing policy is measured on the following factors:

The gravity of the violation;

The seriousness of the crime; and

Its general effect upon public tranquillity.

There is a correlation between measures of punishment and the measure of guilt. Accordingly, the sentencing policy in a particular offence is standardized.

In March 2003, a body was established by the Ministry of Home Affairs, the Malimath Committee (the Committee on Reforms of Criminal Justice System) in India. The purpose of the committee was to give recommendations on the sentencing guidelines for the Indian Judiciary. The aforesaid committee had issued its report in which it stated that there is a need to introduce guidelines on sentencing to minimize the uncertainty of awarding sentences. The committee observed that “for many offences, only the maximum punishment is prescribed and for some offences, the minimum may be prescribed” and thereby there is a lack of uniformity. This results in wide discretionary powers to the Judges to decide the sentencing duration, which leads to uncertainty in the sentencing policy. In 2008, the Madhava Menon Committee (the Committee on Draft National Policy on Criminal Justice), again reaffirmed the need for statutory sentencing guidelines.

As per the white paper introduced by the British Parliament, the aim of having a sentencing policy should be “deterrence and protection of society from evils”. The lack of sentencing policy will not only affect the judicial system but it will also substantially harm society.

Fundamental Principles for Imposition of Different Types of Punishments

As per the United States Institute of Peace, the principle of the imposition of punishment can be based on:

The necessity for criminal justice compulsion; and

The proportionality of punishment based on the nature and degree of the danger which is present against the fundamental freedoms, human rights, social values, rights guaranteed and protected under the Constitution or international law.

In the case of Soman v. Kerala, the Supreme Court of India cited a number of principles while exercising discretionary powers by the Court. The general principles are proportionality, deterrence, and rehabilitation. In the proportionality principle aggravating and mitigating factors should be considered. Mitigating circumstances are related to the criminal and aggravating circumstances are related to the crime.

In para 12 of the Soman’s case, the Supreme Court pronounced that “Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out just punishment to the accused facing trial before it after he is held guilty of the charges.” Further, the court acknowledged and opined the observation made in the case of State of Punjab v. Prem Sagar, wherein the Court stated that “In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender have not issued any guidelines.” Therefore, there is a necessity to have a sentencing policy with due consideration to the recommendations made by the Madhava Menon Committee and Malimath Committee.

Scope of Section 53

In the Indian Penal Code, 1803 (“Code”), Section 53, specifically deals with different types of punishments which can be given by the Criminal Courts if the person is held liable under the Code.

There are five kinds of punishments recognized under Section 53 of the Code:

Death;

Imprisonment for life;

Imprisonment:

Rigorous Imprisonment; or

Simple Imprisonment.

Forfeiture of property;

Fine.

Considering the above punishments, the courts are supposed to follow the procedures and provisions which are prescribed under other adjective and substantive laws.

As per the scheme of the Code the maximum punishment is prescribed, leaving the minimum to the discretion of the Judge. The Judge has all the means to form an opinion on the sentence which would meet the end of justice in a particular case. If the offence is grave in nature then the Code had prescribed the maximum and the minimum duration of the punishment.

Awarding Appropriate Sentence is the Discretion of the Trial Court

In the case of Sibbu Munnilal vs State Of Madhya Pradesh, the three-judge bench of the Madhya Pradesh High Court had observed the scheme of punishment as follows:

The classification of offences is made with reference to the maximum punishment to which the offender is liable to receive.

In the case of the death penalty and imprisonment for life is provided as a punishment under a section. Imprisonment for life shall be considered as an alternative. And death penalty shall only be given if the case comes under the ambit of ‘rarest of rare case’. While giving the death penalty as punishment the Judge shall give due importance to the facts and nature of the case.

Imprisonment can be categorized into two categories- simple and rigorous.

Imprisonment for life means rigorous imprisonment for twenty years.

The difference between imprisonment for life and imprisonment is the former can be rigorous and the imprisonment is till his last breath, however, the duration of the latter can vary from period 24 hours to 14 years.

Lastly, offences punishable with fine means the offences for which the maximum penalty can be fine only.

In a recent case of 2017, in State Of H.P vs Nirmala Devi, the Supreme Court ruled that the trial court has the discretion to give punishments as per the scheme provided under the code.

When Appellate Courts Can Interfere with Sentence Imposed

As per Section 386 of CrPC, the Powers of Appellate Court are as follows:

The Appellate court can interfere or dismiss the appeal if it finds sufficient grounds to do so after hearing the parties of the appeal;

If the matter is an appeal from an order or acquittal:

Then the appellate court can reverse such order and direct further inquiry of the matter or;

Direct for retrial of the accused.

3) If an appeal from a conviction, then the Appellate court have the following powers:

Reverse the finding and sentencing and acquit or discharge the accused or order for the retrial by a competent court, or committed for trial;

Alter the maintaining, finding of the sentence, or;

Alter the nature or the extent or nature and extent of the sentence, with or without altering the finding. However no power to enhance the sentence by the court.

4) If an appeal for enhancement of sentence, then the Appellate court have the following powers:

Reverse the finding and sentencing and acquit or discharge the accused or order for the retrial, or committed for trial;

Alter the maintaining, finding of the sentence, or;

Alter the nature or the extent or nature and extent of the sentence, with or without altering the findings with the power to enhance or reduce the sentence.

5) if the appeal is from any other order, then power to alter or reverse such order;

6) the appellate court can make any amendment or act incidental or any consequential order can be ordered which may seem to be just or proper to the court.

The section also includes a provision wherein it lays out conditions to the Appellate Court while exercising this power:

The conditions are as follows:

The Appellate Court shall not enhance the punishment unless the accused given an opportunity for such enhancement;

Further, the Appellate Court shall not inflict the punishment given by the court under appeal (trial court or lower court) unless the Appellate Court has a view that the punishment is inadequate.

In the recent case of State Of H.P vs Nirmala Devi, the Supreme Court held that the Appellate court shall not exceed its powers under Section 386 of Cr.P.C. beyond the statutory scheme provided under the Indian Penal Code. For example, to alter the sentence of imprisonment and fine with a sentence only of fine, the Appellate Court can not alter the order likewise where the consequences will be unjust and unfair.

Principles for Sentencing

The principle for sentencing developed through court decisions and legislation. And these principles form the sentencing decisions. The principles which are generally followed by the court are as follows:

Excessiveness/Parsimony– the punishment which is given shall not be severe unless required.

Proportionality– the sentencing shall fit to the overall gravity of the crime.

Parity– the punishment should be similar for similar types of offences committed by offenders under similar situations.

Totality– when an offender is punished with more than one sentence, the overall sentence must be just and appropriate which shall proportional to the offending behaviour.

Purpose– the sentencing shall achieve the purpose of the punishment. The purpose of punishment can be a deterrent, rehabilitative, protection of the public, etc.

Simplicity and predictability– sentencing shall not be depending on the bias or personality of the judge. There shall be a clear and definite scheme of sentencing.

Truthfulness- the sentencing shall reflect the actual term to be served by the prisoner in prison, so there shall be no place for ambiguity.

Aggravating Circumstances

The aggravating circumstances to which the Judges consider are as follows:

The surrounding of the crime itself;

The circumstances relating to the criminal’s background;

The circumstances relating to the criminal’s conduct;

The criminal’s future dangerousness;

The other factors which are considered under aggravating circumstances are as follows:

Professionalism and premeditation;

Prevalence of offence;

Offences committed in the group;

Breach of trust.

In the case of Sangeet & Anr. v. State of Haryana, the court noted that the approach which was laid down in the case of Bachan Singh was subsequently not fully adopted by the courts. The mitigating factors and aggravating factors both need to be considered and balanced while sentencing a punishment to the accused.

Types of Punishments

Death Sentence

The death sentence is a punishment which is sanctioned by the government and ordered by the court where a person is put to death for a crime acted by him. It is also referred to as ‘Capital Punishment’. The act of carrying out such practice is called execution. As per the Amnesty International survey, the report on as of July 2018 is 56 countries retain capital punishment and 106 countries have completely abolished capital punishment for all crimes. In India, the death penalty is given by the method of hanging. The other ways through which death sentences executed at world scenarios are stoning, sawing, blowing from a gun, lethal injection, electrocution, etc.

The subject of death sentence always has been a matter of controversy. While considering the Constitution as the supreme, the validity of death sentence v/s fundamental rights constantly came forward for the debates. However, the death sentences are rarely given in the Indian criminal courts. In the case of Bachan Singh vs State Of Punjab, the Supreme Court held that capital punishment shall be given in the “rarest of the rare” case. However, what constitutes the “rarest of the rare cases” is not prescribed by the Supreme Court or by the legislature.

In the case of Jagmohan Singh v. State of Uttar Pradesh, the SC ruled that the approach towards imposing capital punishment shall be balanced on mitigating and aggravating factors of the crime. However, in the case of Bachan Singh, for the first time, this approach was called into question due to the amendments in the Cr.P.C. As per the amendment in the Cr.P.C. in the offence of murder the offender shall be punished with the sentence of life imprisonment. After taking due consideration of the amendment, the Court stated that capital punishment shall be given in special cases only. However, in the case of Sangeet & Anr. v. State of Haryana, the court noted that the approach laid down in Bachan Singh’s case is not fully adopted. The courts still give primacy to the crime and not to the circumstances of the criminal. The balance of the mitigating and aggravating factors have taken a bit of a back seat in ordering punishment.

The provisions under which the death penalty is given as punishment under IPC are as follows:

Section 115– Abetment for an offence punishable with death or imprisonment for life (if offence not committed);

Section 118– Concealing design to commit an offence punishable with death or imprisonment for life.

Section 121– When armed rebellion (i.e. waging, abetting to waging of war or attempting to wage war) is made against the constitutionally and legally established government;

Section 132– Uprising, supporting and encouraging the formation of the mutinous group of people in the nations armed forces;

Section 194- With the intent to obtain a death sentence to an innocent by presenting concocted vexatious proof;

Section 302– Causing murder of another;

Section 305– Abetting suicide to an insane or minor person;

Section 303– When a life convict person murders another person;

Section 396– Causing dacoity with murder;

Section 364A– Kidnapping;

Section 376A (as per the Criminal Law Amendment Act, 2013)- Rape

Some other Acts under which the death penalty covered as punishment are:

Section 4, part II of the Prevention of Sati Act- Abetting or aiding an act of sati.

Section 31A of the Narcotic Drugs and Psychotropic Substances Act- Drug trafficking in cases of repeat offences.

However, the death penalty as a punishment is an exception to certain persons like intellectually disabled, pregnant women and minors.

Procedure When Death Penalty is Imposed

The death sentence is executed by two modes in India:

Hanging by the neck till death (this is mostly ordered by the Courts);

Being shot to death.

The various states of India have jail manuals that provide a method for the execution of death sentences. In accordance with Section 354(5) of the Code of Criminal Procedure Act, 1950 hanging by neck till death is the mode of the execution. After the death sentence is awarded by the court, the accused have the right to appeal the order. After exhausting all remedies and confirmation of the order, the execution is made as per procedure under Section 354(5) of Cr.P.C. The process of execution is provided separately under the Air Force Act, 1950, the Army Act, 1950 and the Navy Act, 1957. However, the procedure under the above-mentioned defence acts is applicable to defence officers only.

The Prison manual of different states of India gives detailed instructions about the execution particulars. Some are as follows:

The prisoner who is convicted for death sentence shall be given a proper diet, examined twice a day. The officers shall satisfy that the prisoner has no article by which he can attempt for suicide.

The description of the rope and testing of rope.

Regulation of the drop while executing the hanging.

Time of executions.

Constitutional Validity of Death Penalty

The issue of the death penalty is not a recent issue. It has been discussed, studied and debated for a prolonged time. However, till today no conclusion is drawn about the abolition or retention of the provision. The death penalty has been the mode of punishment from the British era. Various countries have abolished this practice. However, in Arab countries the principle of retributive punishment i.e. “an eye for an eye” is practised. In the list of retention countries as mentioned above, India is one of them which have retained to give death penalty unless some ‘special reasons’ or ‘rarest of rare case’ condition arise.

Under Article 21 of the Constitution of India, the right to life and liberty is guaranteed, including the right to live with human dignity. There are certain exceptions that are recognized by the law wherein in the name of law and public order the state can restrict the rights. In Maneka Gandhi v. Union of India, the SC laid down the principle of “due process” through which a state can restrict the citizens from enjoying their rights. In the case of the death penalty the due process can be as follows:

Death penalty to be given in ‘rarest of the rare’ cases;

The accused shall be given the ‘right to heard’;

As per Article 136, the death penalty shall be confirmed by the High Court;

Under Section 379 of the Cr.P.C., the accused have the right to appeal in the Supreme Court;

Under Section 433 and 434 Cr.P.C., the accused may pray for commutation, forgiveness, etc. of the sentence.

In various cases, the constitutional validity of the death penalty was challenged. In the case of Jagmohan Singh v. State of U.P, the argument was that the death penalty is in violation of Article 14 (Right to Equality), Article 19 (Right to Freedom) and “right to life” i.e. Article 21, which has been unanimously rejected by the five-judge bench of the Supreme Court. Further, it was contended that as per Cr.P.C. the procedure is confined to findings of guilt and not awarding death sentence. However, the Supreme Court held that the death sentence is a choice by the court made according to the procedure established by law and the choice between capital sentence or imprisonment of life is based on the circumstances, nature and facts of the case brought during the trial.

In the case of Rajendra Prasad v. State of U.P, Justice Krishna Iyer had empathetically stressed that the death penalty is violative of articles 14, 19 and 21. With this the Justice Iyer said two conditions under which the death penalty can be given:

While giving the death penalty the court shall record special reasons.

Only in extraordinary cases the death penalty to be imposed.

However, in the case of Bachan Singh vs. State of Punjab, within one year the five-judge bench (4:1- Bhagwati J. dissenting) overruled the decision of Rajendra Prasad’s case. The judgment expressed that the death penalty is not violative of Article 14,19 and 21 of the Constitution of India and pronounced that in the “rare of the rarest case” i.e. those cases in which the collective conscience of the community is so shocked that it will expect the judiciary to deliver the death penalty on the accused the death penalty can be ordered. Although, Justice Bhagwati in his dissenting judgment stated that the death penalty is not only being violative to Article 14 and 21 but also undesirable because of several other reasons.

Further, in the case of Machhi Singh vs. State of Punjab, the Supreme Court laid down the broad outlines of the circumstances under which the death sentence can be imposed. The court pointed out that under five categories of cases the extreme penalty can be given. Those points are as follows:

Manner of commission of murder;

Motive;

The magnitude of the crime;

Anti-social abhorrent nature of the crime;

The personality of the victim of murder.

Similarly, in the case of Sher Singh v. State of Punjab and Triveniben vs. State of Gujarat, the Apex court asserted affirmatively that the death penalty does not invalidate the rights enriched under the Constitution of India.

In the case of Mithu v. State of Punjab, the Supreme Court held that the mandatory death penalty is invalid and unconstitutional in nature. However, no comments were made on the consequent legislation for drug and criminal offences wherein the death penalty is considered mandatory. But at the same time, Indian courts actually applied the mandatory death penalty for these crimes.

However, recently in the case of Channu Lal Verma v. State of Chattisgarh, the question of the constitutional validity of the death penalty came to the three-judge bench. The Bench Constituted of Justice Kurian Joseph, Justice Deepak Gupta, and Justice Hemant Gupta. The bench upheld the decision of the Bachan Singh case. However, Justice Kurian Joseph had a different view, he said that “there is no substantial proof for the death penalty as a deterrent to crime”.

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Evolving Parameters for Imposition of Death Sentence

The basic evolving parameters for the imposition of Death Sentence are:

The punishment shall not be so severe, so as to degrade the dignity of humans;

The state shall not arbitrarily inflict a severe punishment;

In a contemporary society such severe punishment shall not be unacceptable;

Such severe punishment must not be unnecessary.

However, there are other two questions which can be pondered by the Court while imposing the death penalty as punishment:

There is something uncommon in the crime which calls for the imposition of the death penalty and renders the sentence of imprisonment for life as inadequate.

Even after giving maximum weightage to the mitigating factors which are in favour of the offender there is no other alternative other than imposing the death sentence.

Sentencing Procedure: Mandatory Provision of Section 235(2), Code of Criminal Procedure 1973

In the ‘41st report of Law Commission’, it recommended for the insertion of new provision which made a significant contribution in acknowledging the cardinal feature of procedural fairness and natural justice. Under the old code, there was no statutory opportunity given to the accused to explain the mitigating factor which is relevant to decide the nature of the punishment. However, after the recommendation of the Commission introduction of Section 235(2) and Section 248(2) of the Cr.P.C. was made. The new provisions provided an opportunity for the convict to place necessary information to the court to determine the mitigating factors and decide the case accordingly. Therefore, the choice of sentence shall be made after following the procedure under section 235(2) duly followed by the court. In the cases of death sentence the importance of “right of hearing” has been overemphasized.

In 1976, in the case of Santa Singh v. State of Punjab, the Supreme Court explained the nature and scope of Section 235(2). The Bench remarked that “The provision is an acknowledgement of the fact that sentencing is an important stage in the criminal justice administration as the adjudication of guilt. And in no case, it should be consigned to a subsidiary position. It seeks to personalize the punishment so that the reformist component remains as much operative as the deterrent element. It is, for this reason, the facts of social and personal nature, maybe irrelevant for guilt determination, should be brought to the notice of the court at the time of actual determination of sentence”.

Further, the court also opined about the meaning of the word ‘hearing’. The hearing is not only limited to the oral submissions but it is wider than that. It gives both parties the right to put facts and materials which can be essential for the questions of sentencing. The Court stressed on the point that it is mandatory for the lower courts to comply with this provision. Not complying with Section 235(2) will not only be considered as mere irregularity, but that shall vitiate the sentence.

In the case of Allauddin Mian v. State of Bihar, Justice Ahmadi emphasized the purpose of Section 235(2):

It gives the accused an opportunity of being heard, which satisfies the rule of natural justice;

To determine the sentence of the award it assists the court.

Case laws on Death Sentence (When the death sentence is confirmed)

(1) State of Tamil Nadu v Nalini

In the case of State of Tamil Nadu v Nalini, the case was filed as an appeal against the judgment of the High Court of Tamil Nadu. This case is popularly known as Rajiv Gandhi’s assassination case. The offenders were accused under Indian Evidence Act, 1872, Indian Wireless Telegraphy Act, 1933, The Foreigners Act, 1946, Passports Act, 1967, Arms Act, 1959, Explosive Substances Act, 1908, Indian Penal Code, 1908 (IPC), TADA Rules, The Terrorist And Disruptive Activities (Prevention) Act, 1987. In the case, there were 26 accused out of which four accused were punished death penalty by the Apex Court. The accused were from the LTTE (Liberation Tigers of Tamil Eelam) group and were seeking revenge for the Indian government’s decision for sending army troops in Srilanka. However, as per recent update Nalini Sriharan, V Sriharan, and Murghan have applied plea for mercy killing as there is no response to their mercy petition till date.

(2) Jai Kumar v State of Madhya Pradesh

In Jai Kumar v State of Madhya Pradesh case, an appeal by the grant of special leave against the order of the Division bench of the High Court of Madhya Pradesh was made. In this case, the accused brutally murdered sister-in-law and 7-year-old niece. The Court considered the factual matrix of the case and observed that the act of murder was not done in the rage and the accused himself under Section 313 of the Cr.P.C admitted the murder. Thereby, the Supreme Court upheld the verdict of the Sessions Court and the High Court of Madhya Pradesh.

(3) Suresh Chandra Bahri v State of Bihar

The case of Suresh Chandra Bahri v State of Bihar was filed as an appeal from the High Court of Patna. The Sessions Court convicted the three appellants named Suresh Bahri, Gurbachan Singh and Raj Pal Sharma for the death penalty under Section 302 and Section 120 B of the IPC. The High Court of Patna dismissed the appeal affirming the sentence awarded by the trial court. In this case, the accused killed Urshia Bahri and her two children because of some dispute in the property. The Supreme Court confirmed the death penalty of Suresh Bahri, whereas the death penalty of the Gurbachan Singh and Raj Pal Sharma was commuted to a life sentence.

(4) Dhananjoy Chatterjee alias Dhana v State of West Bengal

In the 21st century, the case of Dhananjoy Chatterjee alias Dhana v State of West Bengal can be called as a historic case as the accused was the first person who was lawfully executed for a crime not related to terrorism. The accused was working as a watchman in the building of the deceased. He had raped and murdered an 18-year-old girl at her own home. The trial court ordered the death penalty under Section 302 of the IPC. The same has been confirmed by the High Court of West Bengal. While the appeal in the Supreme Court, the court held that case will be considered under “the rarest of the rare” case, thereby there will be no commutation of the punishment.

(5) Sushil Murmu v State of Jharkhand

In the case of Sushil Murmu v State of Jharkhand, the accused was punished with the death penalty for the sacrifice before Goddess Kali of a 9-year-old child. The accused made the sacrifice for his own prosperity. The trial court held the accused liable under Section 302 and 201 of the IPC, 1860 and the Jharkhand High Court confirmed the death penalty. The Appeal was made to the Supreme Court, however, the Apex court upheld the order of the lower court and affirmed that this is an exemplary case which can be treated as the rarest of rare case, therefore there is no exception to be given to this case.

(6) Holiram Bardokti v State of Assam

In the case of Holiram Bardokti v State of Assam, there were 17 accused. The appellant is one of the accused who has been awarded the death penalty under Section 302 read with Section 149 of the IPC by the Sessions Judge. The same has been confirmed by the High Court of Assam. The accused was being held for two murders i.e. of Narayan Bordoloi, Padam Bordoloi and Nayanmoni (6-year-old child). The Supreme Court observed that the appellant had no spark of kindness or compassion while burning the bodies and cutting the body into pieces, the whole accident shocked the collective conscience of the community. Therefore, the Apex Court upheld the order of the lower courts and observed that the court is not able to find any mitigating factors to refrain from the death penalty.

Cases laws on Death Sentence (When Death Sentence has been Commuted to Life Imprisonment)

(1) Om Prakash v State of Haryana

In the case of Om Prakash v State of Haryana, the accused named Om Prakash was guilty of seven murders, thereby the Sessions court held him guilty under Section 302 of IPC, which was upheld by the High Court of Punjab and Haryana. There were two other accused but they were given life imprisonment and a fine of Rs.2000. During the appeal to the Apex Court, the court observed that mitigating factors of the case and considering other circumstances of the case, this can not be counted under the rarest of rare cases. The court considering the background of the case found that the murder was acted due to constant harassment of the family members (deceased ones).

Further, the court observed that this is not the case which was committed to fulfil the lust for women or wealth, neither it is for money, the act does not include any anti-social element like kidnapping or trafficking, the act does not include any dealing in dangerous drugs, nor any act committed for political or power ambitions. And further, the accused was working in BSF at the age of 23 with no criminal antecedents. Thereby, the Apex Court converted the death penalty to the sentence of imprisonment for life.

(2) Rajendra Rai v. State of Bihar

In the case of Rajendra Rai v. State of Bihar, the accused were held guilty of the murder of Krishnandan (deceased 1) and Sir Bahadur (the son of deceased 1), as the accused and deceased had a dispute over the land situated between their houses. The Trial court-ordered death penalty and the High Court confirmed the order. However, the Apex Court was of the view that the case cannot be regarded under the rarest of rare cases. Thereby the death penalty was reduced to life imprisonment.

(3) Kishori v State of Delhi

In the case of Kishori v State of Delhi, the accused was in relation to the mob attack which occurred against the Sikh community immediately after the assassination of Mrs. Indira Gandhi, the then Prime Minister which broke out in several places including Delhi. The appellant was held to be a part of the mob. The Sessions court was of the view that the accused deserves a death sentence, as he has been convicted for several murders and he killed innumerable Sikhs in a brutal manner. The High Court of Delhi confirmed the order. However, the Apex Court had a different opinion. The Court said that the acts conducted during the chain of events shall be considered as one. Further, the act of the accused was not a personal action, was just a part of the group activity which can not be called as a systematic or organized activity. Therefore, the Apex court felt that the act of the accused as a result of the temporary frenzy act, so the court reduced the death penalty to life imprisonment.

(4) State v Paltan Mallah & Ors

In the case of State Of M.P Through C.B.I., Etc vs Paltan Mallah, the deceased Shankar Guha Yogi, who was a popular and powerful trade union leader was killed. As he had been working for the welfare of the labour, the industrial unit at Bhillai and Durg wanted him to be out of their way. The deceased was the leader of the labourer organization named “CHATTISGARH MUKTI MORCHA” (‘CMM’). The workers at Bhillai asked for help in the protest. To help those labourers SG Yogi shifted to Bhilla with his servant Bhahal Ram. There was a widespread movement, due to this, the leaders of the CMM were attacked by the industrialists. The deceased apprehended that there is a serious threat to his life. On the midnight of 27.09.1991, Bahul Ram heard a noise from the neighbouring room where the deceased was sleeping. The servant found Niyogi lying on the bed in pain because of gunshot injuries. However, the accused Paltan Mallah and others were acquitted by the Sessions and High Court due to lack of evidence. However, the Supreme Court reviewed the matter and reversed the order of acquittal by the lower court. As there was a long lapse of time from the lower court’s decision of acquittal to appeal, the court sentenced him to undergo imprisonment of life.

(5) Sambhal Singh v State of Uttar Pradesh

In the case of Sambhal Singh v. State of UP, wherein the four accused (Sambhal Singh, Jag Mohan Singh, Krishna Mohan Singh, and Hari Mohan Singh) murdered the three children of the Munshi Mall (deceased- the brother of the Sambhal Singh) because of a family land dispute. The Sessions court found them guilty and the High Court confirmed the sentence. However, the Apex Court observed that the age of the four accused was not considered by the lower court. Sambhal Singh was old and the other three were young, therefore, the court reduced the punishment of death penalty to life imprisonment.

(6) Swamy Shraddananda @ Murali Manohar Mishra v State of Karnataka

In the case Swamy Shraddananda @ Murali Manohar Mishra v State of Karnataka, the accused was the second husband of the deceased Shakereh. The deceased came from a highly reputed and wealthy family. The accused murdered the deceased after a well-designed plan and executed it accordingly for attaining property which was on her name. The Session Court ordered the death penalty and the same was confirmed by the High Court of Karnataka. However, the Supreme Court converted the death penalty to life imprisonment. This is an important case from the point of view of sentencing and remitting the sentence. The Apex Court clearly differentiated the sentence of imprisonment for life from ordinary life imprisonment and held that the remission is not applicable to the cases where the imprisonment of life is given as a substitute to the death penalty, it means the accused will be in imprisonment till his last breath.

Commutation of Death Sentence by the State or Central Government Scope

The powers of commutation of the death sentence by the State and Central government is provided under the following provisions of the Constitution:

Article 72– gives pardoning power to the President.

Article 161– gives pardoning power to the Governor.

The difference between Article 161 and Article 72 are:

Article 161 is narrower than Article 72.

Article 72 covers the punishment sentenced by a Court Martial, however, Governor is not entitled with such powers.

Article 72 covers all death sentences, however, under the ambit of Article 161 death sentences are not covered.

Imprisonment for Life

Life imprisonment is one of the types of punishment which is recognized under Section 53 of the IPC. Earlier this was also known as transportation for life. This punishment is given for serious crimes wherein the convicted remains in prison until his/her last breath.

Scope of Section 57

Section 57 of the IPC is used when fractions of terms of punishment need to be calculated. However, it is important to understand that this section does not give any implied or explicit right to the prisoner to reduce his life imprisonment to 20 years of the sentence.

Under some sections like Section 116,119,120 and 511 of the Code, the prisoners can ask for relief under this section.

Is Life Sentence does Period of 14 Years?

In the case of Duryodhan Rout vs State Of Orissa (2014), the Apex Court clearly stated that reading Section 55 of the Code and Section 433 and 433 A of Cr.P.C, life imprisonment is not confined to 14 years of imprisonment, only the appropriate government can commute the life imprisonment of the prisoner.

The government can commute the punishment of life imprisonment to the imprisonment of term equal to or less than 14 years, or if the prisoner exceeded 14 years of imprisonment then he can be released.

In 1961 in Gopal Vinayak Godse vs. The State of Maharashtra & Ors., the question ‘whether there is any section in the law wherein the life imprisonment without formal remission by the appropriate government can be automatically treated as one for a definite period?’ came to the Apex Court as a question of law. Answering the question the court pointed out the observation made by the judicial committee which stated that, the transportation for life shall be deemed to be transportation for 20 years, however, this does not say that it shall be deemed to be considered the same for all purposes. Further, the provisions under which transportation for life has been amended to imprisonment for life can also not be put under Section 57 IPC. Therefore, a sentence of imprisonment for life or transportation for life must prima facie need to be considered as imprisonment or transportation for the whole life of the prisoner till his natural death.

The distinction between ‘Commutation’ under Section 55, Indian Penal Code 1860, and Section 433, Code of Criminal Procedure 1973

There is a thin line difference between Section 55, IPC and Section 433, Cr.P.C. Section 55 of IPC covers only the commutation of life imprisonment for a term not exceeding 14 years. Whereas Section 433 of Cr.P.C. covers the following powers of commutation to the appropriate government:

Death sentence- to any other punishment can be given which is recognised under the IPC.

Life imprisonment- to imprisonment not exceeding 14 years or fine.

Sentence of rigorous imprisonment- to any term of simple imprisonment (within the term he is convicted ) or fine.

Sentence of simple imprisonment- Fine.

However, both provisions give power to the appropriate government to commute the sentencing of the offender without the consent of the offender. For the understanding of the section, the appropriate government can be either State or Central Government. If the order is passed under the matter which is exclusively covered by the union list, then the central government will be considered as an appropriate government. Otherwise, in all other cases, the State Government will have the power to commute the sentence.

In the case of Harishankar, Gayaprasad Jaiswal vs State Of Gujarat, the Gujarat High Court observed that Section 55 of IPC is independent of Section 433 (b) of Cr.P.C.

Imprisonment

The general meaning of imprisonment means captivity or to put someone in prison. Under Section 53 of IPC, imprisonment can be of two types. One is simple and the other is rigorous. As per Section 60 of the IPC, the competent court has the discretion to decide the description of sentencing. It can be of various types, like:

Wholly or partly rigorous; or

Wholly or partly simple; or

Any term to be rigorous and the rest simple.

Minimum Wages for Prisoners

The prisoners who are prisoned in jail get wages for doing work inside the jail. The work done by them either can be voluntary or it can be part of their punishment. The wages of the prisoners are fixed as per their skills. Their classification is based on a) skilled, b) semi-skilled and c) unskilled.

Kerala High Court was the first High Court which took the initiative of giving minimum wages to the prisoners. The National Human Rights Commission (NHRC) after taking into the recommendation of the Mulla Committee proposed Indian Prisons Bill 1996. As per the Bill, it was prescribed that the wages should be fair, adequate and equitable wage rates. While considering the minimum wage rate it shall be prevalent to each State and Union territory agricultural, industry, etc. wage rate. Units of work shall also be prescribed for such minimum wages. The average per capita cost of the food and clothing shall be reduced from the wages and the remaining wages shall be paid to the prisoners.

The wages are given on per day basis. The idea of the prisoner’s wage is to compensate the victim or the relative of the victim from the fund made by the prisoner’s wage. As per Prison Statistics India 2015 of National Crime Records Bureau (NCRB), the highest wages were paid in Puducherry, followed by Delhi’s Tihar and Rajasthan. The wages for skilled varied from Rs.180- Rs.150, for semiskilled Rs.160- Rs.112 and for unskilled Rs.150- Rs.103 as per the top three high waged states.

Forfeiture of Property

Forfeiture generally means the loss of property without any compensation in return, which is the result of the default caused by the person in terms of contractual obligation, or in paying penalty for illegal conduct.

In two provisions the forfeiture of the property has been abolished:

Under Section 126 for committing depredation on territories of Power at peace with the Government of India.

Under Section 127 for receiving property taken during war or depredation mentioned in sections 126 and 126 of IPC.

Fine

The court may impose a fine as an alternative for imprisonment or can add it is an addition to the imprisonment. In certain cases the fine is added along with imprisonment. Section 63 to 69 covers various fines under the IPC. However, as per Section 64 of the Code, when there is a default in the payment of a fine, the court may order for imprisonment.

Amount of Fine should not be Excessive

As per Section 63 of the IPC, when the sum is not expressed under the provisions of the Code, the amount of fine to which the offender is liable is unlimited, however, the fine shall not be excessive.

In the case of Palaniappa Gounder v. State of Tamil Nadu, the Apex Court stated that the sentence given by the court shall be proportionate to the nature of the offence which includes the sentence of fine. And the punishment shall not be unduly excessive.

Sentence of Imprisonment for Non-payment of Fine

Under IPC Section 64, the following offences are covered:

Imprisonment with fine;

Imprisonment or fine;

Fine only and where the offender is sentenced to:

(i) imprisonment; or

(ii) fine or both.

In such cases, the court of competence shall direct the sentence to the offender for a certain term. Under Section 66 of the IPC, the court has the discretion to provide any description for the imprisonment.

In the case of H.M Treasury (1957), the court said that in the case if the death of the convict has occurred then also the fine will be recovered from his property.

Scope of Section 65

As per Section 65 of IPC, the court shall limit the imprisonment when the offender is sentenced to imprisonment and fine because of non-payment of fine. The limit of imprisonment shall not exceed one-fourth of the term of imprisonment which is the maximum period of the particular offence.

Scope of Section 67

Under Section 67 of IPC, the offences for which this section will be applicable is the offence which is punishable with fine only.

The imprisonment so awarded shall be simple only;

However, the term shall not exceed the following scale:

If fine does not exceed Rs. 50- the term shall not exceed two months;

If fine does not exceed Rs. 100- the term shall not exceed four months;

If fine exceeding of Rs. 100 to any amount- term shall not exceed six months.

Recovery of Fine

Under Sec 421 of the Cr.P.C., the Court after passing the sentence can take the action for the recovery of the fine in two ways:

The court can issue a warrant to levy the amount by attaching and selling any movable property which belongs to the offender; or

Can issue a warrant to the collector of the district at the place of living of the offender, authorizing him to take the money from the immovable property or movable property or both.

Provided that such actions shall not be ordered by the court if the offender has undergone imprisonment due to the default he made for the payment of the fine. Further, if the court gives any such order as after the offender has undergone imprisonment, then the court shall give special reasons for the same.

Further, in the case of Raju Tiwari v. State of Chhattisgarh, the Chhattisgarh High Court stated that without giving a proper ‘special reason’ the court can not order for the levy of money under Section 421 of CrPC when the offender already had undergone imprisonment for non-payment.

Conviction for Doubtful Offences

As per Section 72 of the IPC, when there is doubt regarding which offence has been committed by the offender and there is a problem to get evidence for the offences committed by the offender, in such circumstances the court can give the lowest punishment if the same punishment provided for all.

Solitary Confinement

Section 73 of the IPC covers solitary confinement (“Sol. Conf.”). The Code gives the description of the way punishment to be ordered by the Court. While giving solitary confinement the court shall keep in mind not to exceed three months in total. The scale is as follows:

If the term not exceeds more than six months- Sol. Conf. not exceeding one month;

If the term exceeds more than six months but not exceed one year- Sol. Conf. not exceeding two months;

If the term exceeds one year- Sol. Conf. not exceeding three months.

Section 74 of the IPC gives the limit of Solitary Confinement while executing the Sol. Conf. the duration shall not exceed fourteen days.

And further, if the solitary confinement given exceed three months, then confinement shall not exceed 7 days in one month.

Scope of the Sections Providing Solitary Confinement

In the case of Sunil Batra Etc vs Delhi Administration And Ors. the court observed that the Sol. Conf. should not be ordered unless it is deemed to be required as per the offence committed by the offender. The offence shall be extreme violence or the commission of the offence shall be brutally committed by the offender. However, the court felt that Sol. Conf. inhumane and horrendous.

In the case of Smt. Triveniben & Ors vs State Of Gujarat & Ors, the court had a similar view and held that under Sec 30 (2) of the Prisons Act, the jail authorities do not have right to Sol. confine the prisoner who is under sentence of death.

Enhanced Punishment

Scope of Section 75

Under Section 75 of the Code when a person is convicted for the second time of an offence which is punishable under Chapter XII (Offences Relating to Coin and Government Stamps) or Chapter XVII (Offences Against Property), if sentenced for more than three years imprisonment, they are liable to greatly enhanced sentence.

However, even when it seems like under Section 348 of the Cr.P.C. the magistrate is competent, the magistrate is not competent to award sentence under this provision when viewed with the amendment in Section 30 of Cr.P.C. wherein the Session Judge has the power to adjudicate such matters. Even though Section 75 makes certain classes of cases liable to be enhanced, it is not obligatory to the Court to do so while sentencing.generally this provision is used to give a deterrent effect. Further, it needs to be noted that the previous convictions for the attempt to commit an offence not covered under the ambit of this section.

Compensation to Victims of Crime

The purpose of the criminal justice system is to protect the rights of the individuals and give punishment to the offenders. In such cases, the accused is caught and he is punished. However, an essential part is left over i.e. the ‘victim’. Earlier no one uses to consider the losses of the victim. Thereby compensation is the method to provide justice to the victim.

Compensation to Victims of Crime from Fine

The IPC provided various provisions under which fine is given as a mode of punishment. However, the fine sometimes is not sufficient enough to realise the actual loss of the victim. And the amount prescribed under IPC is minimal which need to be amended as per the current requirements.

Compensation to Victims of Crime from Victim Compensation Scheme

In 2009, the Central Government ordered the State to prepare a scheme for the compensation of victims. The main objective of the scheme was to support the dependents of the victims who suffered the loss or injury due to offence. Under this scheme, the rehabilitation can also be made.

Compensation to Victims of Crime from Wages of Prisoners

Under this, from the wages of the prisoners, a certain percentage of money is deducted and the saved money is converted into a fund for the welfare of the victims. However, recently a PIL was filed in the High Court of Delhi wherein the deduction of the wage of the Prisoners was considered to be arbitrary in nature and asked for repealing such provisions. Another interesting fact is as per the records of 2006 around Rs.15 crore was collected out of which only Rs.14 Crore is lying unutilised. However, the Delhi High Court held that deduction in prisons wages not wrong if allowed under the law.

Proposals for Reform

The proposals for reform in sentencing can be as follows:

Reclassification of criminal offences: There is a huge increase in the types of offences, therefore to classify offences into different classes or separating them into different codes will make the Code more understandable and lucid. Further under the different codes the procedure and nature of trail can also be explained.

The punishments need to be deterrent at the same time it shall not be severe. Therefore, it is time for Indian Judiciary to have a sentencing policy, so there is no space for ambiguity and bias of the Judge which creates a barrier while sentencing. And this step will also reduce the appeals for enhancing or reducing punishment which will be a great relief for the judiciary.

A proper victim compensation fund can be created under the Code, wherein the confiscated assets from organised crime can also be included.

References

https://www.loc.gov/law/help/sentencing-guidelines/india.php

https://www.usip.org/sites/default/files/MC1/MC1-Part1Section2.pdf

https://indiacode.nic.in/handle/123456789/2263?locale=en

https://www.iitk.ac.in/wc/data/IPC_186045.pdf

https://madhavuniversity.edu.in/constitutional-validity-of-capital-punishment.html

https://www.indianbarassociation.org/constitutionality-of-death-penalty/

https://shodhganga.inflibnet.ac.in/bitstream/10603/201779/12/12_chapter%205.pdf

https://www.drishtiias.com/daily-updates/daily-news-analysis/commutation-of-death-sentence

https://www.srdlawnotes.com/2017/04/punishments-under-indian-penal-code1860.html

https://www.jatinverma.org/need-for-reforms-in-indias-criminal-justice-system/

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Live-In Relationship And Indian Judiciary

Introduction

It is being truly said that the only thing which is constant in this world is change. The Indian society has observed a drastic change in its living pattern in the past few years. People are slowly and gradually opening their minds towards the idea of pre-marital sex and live-in relationships. However, this change has been continuously under criticism and highly discussed as such concepts lack legality and acceptance by the society. Unlike marriage, in live-in relationships couples are not married to each other but live together under the same roof that resembles a relation like marriage. In other words, we can say it is a cohabitation. In India, only those relations between a man and a woman is considered to be legitimate where marriage has taken place between the two based on existing marriage laws otherwise all other sort of relationships are deemed to be illegitimate.

The reason behind people choosing to have a live-in relationship is to check the compatibility between couples before getting legally married. It also exempts partners from the chaos of family drama and lengthy court procedures in case the couple decides to break-up. Whatever the reason, it is very evident that in a conventional society like ours, where the institution of marriage is considered to be “sacred” an increasing number of couples choose to have a live-in relationship, even as a perpetual plan, over marriage. In such circumstances, many legal and social issues have arisen which have become the topic of debate. With time many incidents have been reported and seen where partners in live-in relationships or a child born out of such relationship have remained vulnerable for the very simple reason that such relationships have been kept outside the realm of law. There has been gross misuse by the partners in live-in relationships since they do not have any duties and responsibilities to perform. This article seeks to analyse the judicial response to the concept of live-in relationships so far. It also talks about the rights available to live-in partners in India and also, what is the status of children born out of such relationships.

Live-in Relationship and Law in India

There is no particular law regarding the matter of live-in relationship in India. There is no enactment to lay down the rights and commitments for the parties in a live-in relationship, and for the status of children born to such couples. There is no legal definition of live-in relationship and in this way the lawful status of such sort of connections is likewise unverified. The Indian law does not give any rights or obligations to the parties of live-in relationships. However, court has clarified the concept of live-in relationship through various judgments. Though law is still unclear about the status of such relationship yet few rights have been granted by interpreting and amending the existing legislations so that misuse of such relationships can be prevented by the partners. Various legislations are discussed below—

Domestic Violence Act, 2005

For the very first time in Protection of Women from Domestic Violence Act, 2005 (Pwdva), the legislature has acknowledged live-in relationships by giving rights and protection to those females who are not legally married, but rather are living with a male individual in a relationship, which is in the idea of marriage, additionally akin to wife, however not equivalent to wife.

Section 2(f) of the Domestic Violence Act, 2005 defines:

Domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.[1]

Though live-in relationship is not categorically defined in the Act but left to the courts for interpretation. By virtue of aforementioned provision, the court interpreted the expression “relationship in the nature of marriage”. The provisions of Pwdva are presently made applicable to the individuals who are in live-in relationships. Courts presume live-in relationships to be covered under the ambit of the expression as the words nature of marriage and live-in relationship stand on the same line and meaning. This gives women some basic rights to protect themselves from the abuse of fraudulent marriage, bigamous relationships.

Criminal Procedure Code, 1973

… Section 125 CrPC was incorporated in order to avoid vagrancy and destitution for a wife/minor children/old age parents, and the same has now been extended by judicial interpretation to partners of a live-in relationship.[2]

In November 2000 the Malimath Committee i.e. the Committee on Reforms of Criminal Justice System, was set up. In 2003 when the Malimath Committee submitted its report, it made several recommendations under the head “offences against women”[3]. One of its recommendations was to amend Section 125 CrPC so as to alter the meaning of “wife”. Owing to this alteration, a revision was made and now the expression “wife” incorporates the ladies who were previously in a live-in relationship and now her accomplice has abandoned her at his will so a lady in live-in relationship can now get the status of a wife. Basically, it expresses that if a female has been in a live-in relationship for a sensible period of time, she ought to have the legitimate privileges as that a of a spouse and can claim maintenance under Section 125 CrPC. Where partners live together as husband and wife, a presumption would arise in favour of wedlock.[4] However, in a debate it was recently observed that it is a divorced wife who can be treated as wife under Section 125 CrPC and can claim maintenance and as for partners when they are not legally married, they cannot give divorce to each other and hence cannot claim maintenance under this section.

Evidence Act, 1872

The court may presume the existence of any fact which it thinks likely to have happened, regard being given to the common course of natural events, human conduct and public and private business, in a relation as to the facts of the particular case. Therefore, where a man and a lady live respectively for a long spell of time as a couple then there would be an assumption of marriage.[5]

Judicial Response to Live-in Relationships

“With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today.”

— Honourable Justice A.K. Ganguly in Revanasiddappa v. Mallikarjun[6]

Indian judiciary has taken a lead to fill the gap that was created in absence of any specific statute relating to live-in relationships. It may be considered immoral in the eyes of society but it is not at all “illegal” in the eye of the law. The intention of Indian judiciary is to render justice to the partners of live-in relationships who, were earlier not protected by any statute when subjected to any abuse arising out of such relationships. Judiciary is neither expressly promoting such concept nor prohibiting such sort of relationships. It is, however, just concerned that there should not be any miscarriage of justice. Therefore, while deciding various cases, the judiciary has kept in mind various factors including both societal norms and constitutional values.

Since from the time of Privy Council, a presumption for couples living together without getting legally married had begun. This fact can be seen in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy[7] here the Privy Council took a stand that, “where a man and a lady are proved to have lived respectively as spouse, the law will presume, unless the opposite be obviously demonstrated that they were living respectively in result of a legitimate marriage, and not in a condition of concubinage”[8]. This same view was also taken in Mohabbat Ali Khan v. Md. Ibrahim Khan[9] wherein the court held the marriage to be legitimate as both the partners have lived together as spouse.

Later the Supreme Court in its judgment in Badri Prasad v. Director of Consolidation[10] gave legal validity to a 50-year live-in relationship. But in the same case the Supreme Court observed that, “The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon a bastard.”[11] Even though it may tempt to presume the relationship in the nature of marriage, certain peculiar circumstances do occur which may force the Supreme Court to rebut such a presumption.[12]

The Allahabad High Court again recognised the concept of live-in relationship in Payal Sharma v. Nari Niketan[13], wherein the Bench consisting of Justice M. Katju and Justice R.B. Misra observed that, “In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but it is not illegal. There is a difference between law and morality.”[14] Thereafter, in Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel[15], the Court observed that two people who are in a live-in relationship without a formal marriage are not criminal offenders. This judgment then was made applicable to various other cases.

In Madan Mohan Singh v. Rajni Kant[16], the Court held that, the live-in relationship if continued for long time, cannot be termed as a “walk-in and walk-out” relationship and that there is a presumption of marriage between the parties. By this approach of the Court it can be clearly inferred that the Court is in favour of treating long-term living relationships as marriage rather than giving making it a new concept like live-in relationship.

In landmark case of S. Khushboo v. Kanniammal[17], the Supreme Court held that a living relationship comes within the ambit of right to life under Article 21 of the Constitution of India. The Court further held that live-in relationships are permissible and the act of two major living together cannot be considered illegal or unlawful.

In later part of 2010 the Delhi High Court decided Alok Kumar v. State[18] which also was related to live-in relationships. The complainant was in a live-in relationship with the petitioner, who had not even divorced his previous wife and had a child of his own. The complainant also had a child of her own. The Delhi High Court, therefore, tagged the nature of such relationship as a walk-in and walk-out relationship with no legal strings attached. It is a contract of living together “which is renewed everyday by the parties and can be terminated by either of the parties without consent of the other party”. Those who do not want to enter into such relationships enter into a relationship of marriage which creates a legal bond that cannot be broken by either party at will. Thus, people who choose to have “live-in relationships” cannot later complain of infidelity or immorality.

In another leading case of Koppisetti Subbharao v. State of A.P.[19], the Supreme Court held that the classification “dowry” has no magical charm. It alludes to a request of cash in connection to a conjugal relationship. The court has not accepted the contention of the defendant that since he was not legally married to the complainant, Section 498?A did not make a difference to him in a stage ahead in shielding the lady from badgering for dowry in a live-in relationship.

In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha[20] where High Court declared that appellant wife is not entitled to maintenance on the ground that only legally married woman can claim maintenance under Section 125 CrPC. But the Supreme Court turned down the judgment delivered by the High Court and awarded maintenance to the wife (appellant) saying that provisions of Section 125 CrPC must be considered in the light of Section 26 of the Pwdva, 2005.[21] The Supreme Court held that women in live-in relationships are equally entitled to all the claims and reliefs which are available to a legally wedded wife.[22]

A relationship like marriage under the 2005 Act must consent to some basic criteria. It provides that the couple must be of legal age to marry or should be qualified to enter into a legal marriage. It was also stated that the couple must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. Every kind of live-in relationships should not be covered under the Act of 2005. Simply spending a week together or a one night stand would not make it a household relationship. It additionally held that if a man has a “keep” whom he maintains financially and uses principally for sexual reasons or potentially as a slave then it would not be considered, as a relationship in the nature of marriage.[23]

Lately, in a landmark case, Supreme Court dealt with the issue of live-in relationships in detail and also laid down the conditions for live-in relationship that can be given the status of marriage. On 26-11-2013 a two-Judge Bench of the Supreme Court constituting of K.S.P. Radhakrishnan and Pinaki Chandra Ghose, JJ. in Indra Sarma v. V.K.V. Sarma[24] held that “when the woman is aware of the fact that the man with whom she is in a live-in relationship and who already has a legally wedded wife and two children, is not entitled to various reliefs available to a legally wedded wife and also to those who enter into a relationship in the nature of marriage” as per provisions of Pwdva, 2005. But in this case, the Supreme Court felt that denial of any protection would amount to a great injustice to victims of illegal relationships.[25] Therefore, the Supreme Court emphasised that there is a great need to extend Section 2(f) which defines “domestic relationships” in Pwdva, 2005 so as to include victims of illegal relationships who are poor, illiterate along with their children who are born out of such relationships and who do not have any source of income. Further, Supreme Court requested Parliament to enact a new legislation based on certain guidelines given by it so that the victims can be given protection from any societal wrong caused from such relationships.

Following are the guidelines given by Supreme Court:

“(1) Duration of Period of Relationship

Section 2(f) of the Domestic Violence (DV) Act has used the expression ‘at any point of time’, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

(2) Shared Household

The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.

(3) Pooling of Resources and Financial Arrangements

Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in business, shares in separate and joint names, so as to have a long-standing relationship, may be a guiding factor.

(4) Domestic Arrangements

Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship

Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc.

(6) Children

Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing-up and supporting them is also a strong indication.

(7) Socialisation in Public

Holding out to the public and socialising with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

(8) Intention and Conduct of the Parties

Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.”[26]

Lately, a landmark judgment on 8-4-2015[27] by the seat comprising of Justice M.Y. Eqbal and Justice Amitava Roy, the Supreme Court decided out that couples living in live-in relationship will be presumed legally married. The Bench also added that the woman in the relationship would be eligible to inherit the property after the death of her partner[28].

Legal Status of Children Born Out of Live-in Relationship

The first time when the Supreme Court held the legitimacy of children born out of live-in relationship was in S.P.S. Balasubramanyam v. Suruttayan[29], the Supreme Court had said, “If a man and woman are living under the same roof and cohabiting for some years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.”[30] Further, the court interpreted the status and legislation to an extent that it shows conformity from Article 39(f) of the Constitution of India which sets out the obligation of the State to give the children adequate opportunity so that they develop in proper manner and further safeguard their interest.

Dealing with the recent case on the legitimacy of children of such relationships, Supreme Court in Tulsa v. Durghatiya[31] has held that a child born out of such relationship will no longer be considered as an illegitimate child. The important precondition for the same should be that the parents must have lived under one roof and cohabited for a significantly long time for the society to recognise them as husband and wife and it should not be a “walk-in and walk-out” relationship.[32]

In another case Bharatha Matha v. R. Vijaya Renganathan[33], the Supreme Court held that a child born out of a live-in relationship may be allowed to inherit the property of the parents (if any) and therefore be given legitimacy in the eyes of law. We have seen that Indian judiciary in the absence of specific legislation have been protecting the rights of the children by giving law a broader interpretation so that no child is “bastardised” for having no fault of his/her own.

On 31-3-2011 a Special Bench of the Supreme Court of India consisting of G.S. Singhvi, Asok Kumar Ganguly in Revanasiddappa v. Mallikarjun[34] remarked that irrespective of the relationship between parents, birth of a child out of such relationship has to be viewed independently of the relationship of the parents. It is as plain and clear as sunshine that a child born out of such relationship is innocent and is entitled to all the rights and privileges available to children born out of valid marriages. This is the crux of Section 16(3) of the amended Hindu Marriage Act, 1955.

Conclusion

Live-in relationship has always been the focus of debates as it possess threats to our basic societal framework. It is not considered as an offense as there is no law until the date that prohibits this kind of relationship. In order to bring justice to those female who are the victims of live-in relationships Indian judiciary took a step, brought interpretations and made such arrangements valid. Still India has not legalised it, legalising means having special legislation for it. As of now, there is no legislation or statute that specifically governs matters related to succession, maintenance, guardianship in regards to live-in relationships. However, for Protection of Women from Domestic Violence Act, 2005 legislature has acknowledged the right of partners living in a live-in relationship to get protection. It has recognised live-in relationships through various judgments so that individuals of the relationships can be protected from abuse. At the same time, courts frequently declined to make any kind of positive steps towards legalising such practise by allowing any compulsory agreements between unmarried couples as this could conflict with the general society strategy. It ends up plainly obvious that the Indian judiciary is not prepared to treat all kind of living relations as akin to marriage. Only stable and reasonably long period of relations between the couples are given the advantage of the 2005 Act. It is the duty of the judiciary to ensure that law has to accommodate with the changing scenario of the society. Though courts through various judgments and case laws attempted to get a clear picture regarding the status of live-in relationships, yet it remains unclear on various aspects, where there is an urgent need for having different sets of rules and regulation and codification with regards to such kind of relationship.

In the author’s view, there must be a separate statute dealing with this current issue so that rights of living partners, children born out of such relationships and all those people who are likely to get affected by such relationship should be protected. Not all live-in relationships should be given legitimate status, but only those which satisfy certain basic requirements. At the same time, there should also be awareness among live-in partners regarding the legal consequences arising out of such living arrangement.

[1] S. 2(f) of the Domestic Violence Act, 2005.

[2] Ajay Bhardwaj v. Jyotsna, 2016 SCC OnLine P&H 9707.

[3] Justice V.S. Malimath Committee Report, available at <https://mha.gov.in/sites/default/files/criminal_justice_system_2.pdf>, pp. 181-194.

[4] Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141.

[5] S. 114 of the Evidence Act, 1872.

[6] (2011) 11 SCC 1 : (2011) 2 UJ 1342.

[7] 1927 SCC OnLine PC 51 : AIR 1927 PC 185.

[8] Id., 187.

[9] 1929 SCC OnLine PC 21 : AIR 1929 PC 135.

[10] (1978) 3 SCC 527 : AIR 1978 SC 1557.

[11] Ibid.

[12] Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, 333.

[13] 2001 SCC OnLine All 332.

[14] Ibid.

[15] (2006) 8 SCC 726.

[16] (2010) 9 SCC 209.

[17] (2010) 5 SCC 600.

[18] 2010 SCC OnLine Del 2645.

[19] (2009) 12 SCC 331.

[20] (2011) 1 SCC 141.

[21] Ibid, para 39.

[22] (2011) 1 SCC 38, para 38.

[23] D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469 : AIR 2011 SC 479.

[24] (2013) 15 SCC 755.

[25] Ibid.

[26] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, available at <http://www.indiatvnews.com/news/india/historic-supreme-court-approves-live-in-relationships-asks-par-30912.html?page=3>.

[27] Dhannulal v. Ganeshram, (2015) 12 SCC 301.

[28] Available at <https://timesofindia.indiatimes.com/india/Couple-living-together-will-be-presumed-married-Supreme-Court-rules/articleshow/46901198.cms>.

[29] (1994) 1 SCC 460 : AIR 1994 SC 133.

[30] Ibid.

[31] (2008) 4 SCC 520 : AIR 2008 SC 1193.

[32] Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209 : AIR 2010 SC 2933.

[33] (2010) 11 SCC 483 : AIR 2010 SC 2685.

[34] (2011) 11 SCC 1 : (2011) 2 UJ 1342.

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