This article has been written by Ishika Sharma, a 1st-year student of Gujarat National Law University.
About
In general, the Suprema Lex, the Indian Constitution, does not directly mention the notion of separation of powers, but it is clear from the way the Constitution is laid out.
The doctrine of separation of powers affirms the division of authority among the three branches of government: the legislative, executive, and judicial branches.
The job of the judiciary is to interpret laws if the legislative branch is responsible for drafting them and the executive branch is responsible for carrying them out. The guardian of the Constitution is the Supreme Court, in all its majesty.
The job of the judiciary is to interpret laws if the legislative branch is responsible for drafting them and the executive branch is responsible for carrying them out. The guardian of the Constitution is the Supreme Court, in all its majesty.
In the case of Prem Chand Garg v. Excise Commissioner, it was determined that the judiciary is the third wing of the state, howsoever functionally independent, with no deterrence to judicial activism, which it enthralls. There were several occasions when there was a locking of horns when it was to be decided whether the judiciary comes under the “meaning of state” so far as Article 12 of the constitution is concerned.
There have been times when the Supreme Court’s rulings have been highlighted, either to recognize their judicial activism or to condemn them for their judicial overreach.
Article 21 of the constitution, which guarantees the “right to life and personal liberty,” has generated the most debate. The actual text of the article is as follows: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
This article has huge dimensions and has become an omnibus article due to judicial activism and interpretation.
In the case of “Chairman, Railway Board v. Chandrima Das,” where the supreme court declared that even though article 21 is included in the list of fundamental rights secured by the constitution and that these rights are only available to citizens, article 21 is a mighty exception in that it also applies to foreigners, it was one of the first times that the efficacy of this article was examined to the fullest extent possible. It is crucial to distinguish between a citizen and a non-citizen in this situation because it is beyond dispute that Article 14 of the constitution applies to both citizens and non-citizens, including “companies” (Chiranjit Lal Chaudary v. UOI). However, Article 21 only applies to citizens and, as far as non-citizens are concerned, to foreigners, not to a company, foreign or domestic.
The Suprema Lex is included in the fundamental rights protected by articles 32 and 226 of the Constitution’s Part III, which provide the Supreme Court and the High Court, respectively, writ jurisdiction. In this case, Article 21 has given rise to a new branch of rights through judicial activism and interpretation over the past ten years. The reason for this is that, according to the Indian Constitution’s overall design, judicial decisions made by the Supreme Court have the status of “law of the land.”
Article 21 and Sec. 377, IPC
Consensual sexual contact between adults of the same sex was approved in a Delhi High Court decision from July 2009. For LGBT rights activists generally and the NAZ foundation specifically, it was a moment for joy, but the verdict sparked a lot of ire and anger. The judgment’s main argument revolved around the court’s interpretation of Article 21. The Delhi High Court’s ruling was swiftly the subject of an appeal to the Supreme Court. The Supreme Court’s views and publications published at the same time that the case is still pending at the top court indicate that it is past time to repeal Section 377 of the IPC.
As a three judge bench of the SC (composed of Chief Justice K G Balakrishnan, Deepak Verma, and B S Chauhan) offered legality to live-in relationships and pre-marital sex, late in March 2010, stating that Article 21 is not only a welfare piece of legislation but also a progressive piece of legislation, perhaps the same wisdom needs to be applied to settle differences between article 21 and sec. 377, IPC.
Article 21 and the Death Penalty
According to Section 354 (3) of the Criminal Procedure Code of 1973, the death sentence can only be imposed in the most extreme circumstances, meaning that the case’s facts and circumstances are so serious as to fundamentally shock the court’s conscience. Moreover, this section states that the bench presided over the particular case must explain “reasons” for their judgement if the sentence is life in prison and “special reasons” if the sentence is the death penalty.
In the case of Bishnu Deo Shaw v. State of West Bengal, it was determined that the death sentence is ultra vires Article 21 of the constitution and that “life imprisonment is the rule and death punishment is an exception.”
However, in other instances, such as Bachan Singh v. State of Punjab, Machhi Singh v. State of Punjab, and Dhananjoy Chatterjee v. State of West Bengal, the death sentence has been affirmed as a matter to serve the goals of justice.
The “abolitionist” position contends that crime fosters crime and murder breeds murder, and thus murder and the death penalty are not diametrically opposed but rather of the same sort.
Retentionists contend that Article 21 is no different from other basic rights in that it is subject to legitimate limitations based on public order, morality, health, public safety, and state security.
Regarding “theories of punishment,” criminal law has seen a dramatic shift from conceptions of retribution and deterrence to theories of prevention, reformation, and rehabilitation.
Death penalty in India is given in the following cases
1. “An act of treason or waging war against the Government of India—sec.121, IPC; abetment of mutiny—sec.132, IPC.
2. Perjury resulting in conviction & death of an innocent person—sec.194, IPC.
3. Murder—sec.302 & 303, IPC.
4. Abetment of suicide of a minor, an insane person or intoxicated person—sec.305, IPC.
5. Attempted murder by a life convict (a person undergoing life imprisonment)—sec.307, IPC.
6. Dacoity with murder—sec.396, IPC.
7. Kidnapping for ransom—sec.364-A, IPC”
Article 21 and the narco-analysis test:
Three doctrines are specifically mentioned in Article 20: the doctrine of ex post facto law, which states that no one can be punished for a law that is no longer in effect and that no punishment may exceed the statutory maximum; the doctrine of self-incrimination, which states that no one may be made to testify against himself; and the doctrine of double jeopardy, which states that no one may be punished twice for the same crime or misdemeanour.
Selvi v. State of Karnataka, 2010, was the case in which the Supreme Court permanently changed the course of the nation’s expert agencies that conducted narco-analysis tests, brain mapping tests, and polygraph tests. The top court stated that carrying out such tests violates the citizens’ “right against self-incrimination” based on the terminology employed in Article 20(3). The Supreme Court officially declared that the narco-analysis test violated Article 21.
The following reasons led to strong opposition to the SC’s decision:
1. Tests like the polygraph, brain mapping, and narco-analysis tests are carried out under medical supervision by medical experts, and as a result, they fall under the purview of section 45 of the Indian Evidence Act, 1872.
2. The narco-analysis test is a partial proof measure since it is performed first, and then the findings are confirmed and examined using a lie detector test, a polygraph test, and a brain mapping test.
3. Declaring that a lie detector test or brain mapping test is not admissible evidence is a step backward in the scientific effort to determine whether past-life regression analysis tests are admissible as evidence.
Points 1 and 2 are quite persuasive, however argument 3 is not. Yet, none of these concerns were addressed by the supreme court. The next instance was equally attracted to by article 21 with persuasive eyes.
Conclusion
Article 21’s narrative goes on forever, and it’s clear that it’s a welfare law since its scope is always being expanded and increased. No basic right has ever been construed with such prudence and skill as article 21. All legal and judicial knowledge must be summed up in the words “Salus populi est suprema lex,” the spirit of pro bono of the public. Judicial activity and fair judicial interpretation of legal provisions are the keys to the public welfare in all fields of action.
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