Feb. 1
INDIA:
Supreme Court strikes down Arms Act provision for mandatory death penalty
The Supreme Court on Wednesday declared unconstitutional Section 27 (3) of the
Arms Act, which provides for mandatory death sentence to an accused charged
with an offence under this provision.
Section 27(3) says: “Whoever uses any prohibited arms or prohibited ammunition
or does any act in contravention of Section 7 and such use or act results in
the death of any other person shall be punishable with death.”
A Bench of Justices A.K. Ganguly and J.S. Khehar said: “A law which is not
consistent with [the] notions of fairness while it imposes an irreversible
penalty like death is repugnant to the concept of right and reason.”
Writing the judgment, Justice Ganguly said the scope of Section 27(3) was very
wide in that anything done in contravention of Section 7 and with the use of
prohibited arms and ammunition resulting in death would attract the death
penalty. “Even if an act done in contravention of Section 7, namely,
acquisition or possession or manufacture or sale of prohibited arms results in
the death of any person, the person in contravention of Section 7 shall be
punished with death.”
Dealing with the question arising out of a judgment by the Punjab and Haryana
High Court, the Bench said: “In fact, the challenge to the constitutional
validity of [the] death penalty under Section 302 of the Indian Penal Code has
been negatived in the ‘Bachan Singh case' in view of the sentencing structure
in Sections 235 (2) and 354 (3) of the Criminal Procedure Code. By imposing
mandatory death penalty, Section 27 (3) of the Arms Act runs contrary to those
statutory safeguards which give [the] judiciary the discretion in the matter
imposing [the] death penalty. Section 27(3) of the Arms Act is thus ultra vires
the concept of judicial review, which is one of the basic features of our
Constitution.”
The Bench said: “This is thus a very drastic provision for many reasons. Apart
from the fact that this imposes a mandatory death penalty, the Section is so
widely worded to the extent that if, as a result of any accidental or
unintentional use or any accident arising out of any act in contravention of
Section 7, death results, the only punishment, which has to be mandatorily
imposed on the person in contravention, is death. Therefore, the provision of
Section 27(3) of the Act is violative of Articles 14 and 21 of the
Constitution.”
The Bench said: “Apart from that, Section 27 (3) is a post-constitutional law
and has to obey the injunction of Article 13 which is clear and explicit.
Article 13 (2) says ‘The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in contravention of
this clause shall, to the extent of the contravention, be void. In view of the
mandate of Article 13 of the Constitution, Section 27(3) having been enacted in
clear contravention of fundamental rights, Section 27(3) of the Act is
repugnant to Articles 14 and 21 and is void. Section 27(3) of the Act also…
[prevents] the judiciary from discharging its constitutional duties of judicial
review, whereby it has the power of using discretion in the sentencing
procedure.”
The Bench held that this provision was against the fundamental tenets of the
constitutional law and ultra vires the Constitution.
(source: The Hindu)
CANADA:
Bringing back the death penalty a debate worth having
As a general rule, one doesn’t need to remind politicians that publicly
advocating for suicide is usually a bad idea. On Wednesday, Conservative
senator Pierre-Hugues Boisvenu, however, proved an exception.
Mr. Boisvenu, heading into a caucus meeting on Wednesday, was asked by a
reporter if the Tories had any intention of bringing back the death penalty in
Canada. He said that he himself did not support the death penalty. But in
certain cases — where rehabilitation is not an option — the Senator added in
French, “Basically I think that every murderer should have a rope in his cell
and he can decide on his own life. But I’m against the death penalty.”
So he doesn’t support killing criminals, per se. He just supports them not
being alive anymore.
The Senator was predictably assailed from all sides, and quickly backtracked.
But that doesn’t mean his idea, though presented badly, wouldn’t find support
among the public. While Canadians might not much countenance the idea of
tossing Paul Bernardo a coil of rope and a knowing wink, I bet a good many of
them would be willing to meet Senator Boisvenu more than halfway — they’d
prefer it if criminals convicted, with absolute certainty, of especially
heinous crimes somehow wound up dead.
Indeed, the Senator’s off-the-cuff suggestion of a model for extremely passive
capital punishment is a typically Canadian response to a controversial social
issue. Do we want to get our hands dirty and order someone executed, and go
through all the tedious steps required to make sure our already bloated,
plodding justice system is up to properly administering capital trials? Ehh ..
not really. How about we just encourage them to kill themselves and save us a
whole heap of effort? Perfect!
Actually, I should give my countrymen more credit — Canadians do seem to be
willing to have a discussion about capital punishment. A survey by Angus Reid
in 2010 found that a strong majority of Canadians — a full 62% — are supportive
of capital punishment for homicide.
That means that Mr. Boisvenu is arguably softer on crime than a strong majority
of Canadians, who seem perfectly comfortable with executing some killers, some
of the time. So much for NDP leader Nycole Turmel’s contention that a
pro-capital punishment viewpoint “doesn’t represent the Canadian society at
all.” It might not represent the Canadian society the NDP wishes existed, but
it’s the NDP that’s offside with Canadians on this one. Mr. Boisvenu may have
awkwardly stumbled into a potential winning issue for the Tories.
And there would be no one better than Mr. Boisvenu to carry that banner. Before
being appointed to the upper chamber in 2010, he had spent years as a victims’
advocate, his passion driven in large part by the kidnapping and sex-killing of
his adult daughter Julie in 2002. His personal story, plus the fact that he
would not be an enthusiastic supporter of capital punishment, make him the
perfect candidate to sell a limited use of capital punishment in the Canadian
justice system. The willingness among Canadians there. We just need someone to
lead the charge.
Not that it will happen, of course. Capital punishment, despite not being
explicitly declared a no-go area by the Tories (like gay marriage and
abortion), is probably too controversial for them to touch. Indeed, the Prime
Minister has already expressed his “personal support” for limited capital
punishment but also said his government wouldn’t introduce legislation (and
even that was enough to trigger howls of outrage from the opposition). Pity.
Until and unless a Canadian government moves to recognize the desire of the
people for return of capital punishment, hoping our worst killers off
themselves will remain a second-best option by default.
(source: Matt Gurney, National Post)
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