COMPARATIVE STUDY – CONSTITUTION OF INDIA & CONSTITUTION OF USA INTRODUCTION

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INTRODUCTION

The Indian Constitution is the longest written document in the world. It was formulated by the constituent assembly headed by Dr. B.R Ambedkar in 1949. It comprises of 448 Articles divided into 25 Parts and 12 Schedules with 101 amendments. It was with this Constitution that India was freed from the British Rule which had been continuing since almost a century. Unlike the Indian Constitution the Constitution of USA is a short one, it only comprises of 7 Articles with 27 ratified amendments.

Though the Indian Constitution as well as the USA Constitution are Supreme laws of their respective countries, they differ at various levels of their structure. Without going into the depth of the differences between the two I have formulated a brief table below for better understanding.

S. No. POINT OF DIFFERENCE USA INDIA
1. Citizenship Dual Single
2. No. of Constitutions Two – where one is applicable on the Centre and the second is applicable on the State. Each State has its own Constitution. One – which is applicable on the entire country including States.
3. Form of Government Presidential Parliamentary
4. Legislature Divided into House of Representatives and Senate. Divided into Lok Sabha and Rajya Sabha.
5. Judiciary Supreme Court does not have Appellate Jurisdiction. Supreme Court has both Civil and Criminal Appellate Jurisdiction.
6. Residuary Powers Lies in the Centre Lies in the States
7. Inception Formulated at the time of revolution. Formulated at the time of communal disharmony and turmoil.
8. Rights Bill of Rights Fundamental Rights
9. Amendments 27 101
10. Federation Legislative Federation Executive Federation

CITIZENSHIP

Part III of the Indian Constitution talks about Citizenship. In India a person in entitled to one citizenship that is of the Centre and not of the State, but in the USA a person is entitled to dual citizenship one of the Centre and the other of the State. Citizenship is a very important part of the USA Constitution as it determines on the basis of citizenship weather a person can run for the position of the President and Vice – President in USA, only a natural born citizen is eligible for the same. The 14TH Amendment has defined Natural-Born Citizen as follows, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

 GOVERNMENT

The Constitution of a country forms the basic law of every country in the world which formulates the rights and duties of its citizens and the structure and power of the Government. I have classified above how the Constitution of USA and India differ in forms of their Governments. USA is a purely federal state where the Executive, Legislature and Judiciary work independently all three forming the Government. The President who heads the executive checks on the administration of the country, the legislature is responsible for making the laws and the Judiciary is responsible for the interpretation of law. What makes USA purely federal is that none of the various heads of the country interfere in each other’s functions, they are all independent from each other. The Executive and Legislature are both elected by the citizens of the country for a fixed term and the Judges are jointly appointed by the executive and legislature for lifetime.

On the other hand India has Parliamentary form of government where the executive and legislature assist each other in their functions making India a Quasi-Federal State. The President is the head of the State whereas the Prime Minister is the real head of the government. The Prime Minister with his Cabinet of Ministers assists and controls the functions of the President.

The Parliamentary form of government was adopted in 1947 after Independence, therefore our form of government is influenced by the British form of government mostly. Both Presidential and Parliamentary forms of Governments have their own pros and cons. On one hand the States in USA are meant to be self sufficient and run independently, the States in India are governed by the Centre. The centre always tends to supersede the state in India due to the existence of the Parliamentary form of government.

INCEPTION

Before the Constitution of USA was formulated on 17th September, 1787 and ratified on 21st June, 1788, the country was governed by the Articles of Confederation. During that time, there was no definite form of Government due to which States functioned as separate countries in USA. In 1787, the delegates decided to form a federal government with three branches under it, the Executive, the Legislature and the Judiciary. James Madison Jr. is called “Father of Constitution” for his crucial contribution in drafting and aiding the USA Constitution and its Bill of Rights. USA remains the oldest country where people elect their own government directly.

The Indian Constitution came into effect on 26th January, 1950. It was formulated by the constituent assembly which was headed by Dr. Bhimrao Ramji Ambedkar. Dr. B.R Ambedkar is popularly also known as “Father of Indian Constitution”.  It was after Independence that India came to adopt the Constitution, therefore our form of government is a lot similar to the British system. After Independence India needed a process to form a government and power to govern the country. That is why Indian Constitution has many elements from the other Constitutions of various countries around the world.

The USA Constitution evolved during the time of revolution whereas the Indian Constitution evolved during the period of religious disharmony and violence, therefore the USA Constitution focuses on giving rights to people also known as Bill of Rights and the Indian Constitution focuses on securing peace and unity.

 AMENDMENTS

Law of land needs to be equipped and enhanced from time to time to the changing requirements, situations, living standards, outlooks of the citizens of any country. Being supreme law of a country, the Constitutions of both USA and India enclose articles which can bring about amendments in it. In India amendments in the Constitution is not as rigid as amendments in the USA Constitution, there are only 27 ratified amendments which have taken place in the USA Constitution as compared to 101 ratified amendments in the Indian Constitution.

The First amendment in the USA Constitution was made to add Freedom of Speech and freedom of press in the Bill of Rights, which is present in the Indian Constitution under Article 19. However, the Indian Constitution has certain enabling restrictions which are absent in the Constitution of USA.

The Fourth amendment guards the citizens against unwarranted search and seizures, Indian Constitution enumerates the same under Article 22 which provides protection from arrest and detention, except in the cases of preventive detention. However, the concept of preventive detention is not mentioned in the Constitution of USA.

During the period between 1951 and 1967, there were many amendments in the Indian Constitution encroaching upon fundamental rights, federal and parliamentary form of government. However, in 1967 SC ruled that the Parliament has no power to amend the Basic Features of the Indian Constitution which limited the powers of the Parliament to amend the Constitution of India.

Amendment is a necessity due to the development of the society and its people. But it can also turn into evil if misused.

BORROWED FEATURES

When the Indian Constitution was made, there was not much time to frame it from scratch therefore the Constituent Assembly borrowed a lot of essential features of other Constitutions into one and drafted the longest Constitution in the world. The Indian Constitution has borrowed multiple features from the USA Constitution as well. Below is the list of some of those multiple features:

  1. Fundamental Rights
  2. Impeachment of President
  3. Functions of the President and vice-president
  4. Removal of Supreme Court and High Court Judges
  5. Preamble of the Constitution
  6. Independence of Judiciary
  7. Judicial Review

On the other hand if we talk about the Constitution of USA, it is the oldest Constitution in the world and it has not borrowed any of its features from any other Constitution in the world.

CONCLUSION

USA and India are the largest democracies in the world. They both function on Federal form of Government with slight difference between the two. Both Constitutions are quiet similar in a lot of other aspects. Both the Constitutions have a written constitution unlike United Kingdom. Both countries practise separation of power among institution namely Executive, Legislature and Judiciary. USA and India both have Bicameral Legislation. Since the inception of the Indian Constitution, it has been influenced by the American Constitution a number of times. Therefore, a number of principles laid down in the Indian Constitution are similar to that of the American Constitution. Right to Equality is mentioned in both the Constitutions and practised judiciously in both the countries. The upliftment of women in Indian since the past few years showcases interpretation of ‘equal protection of the laws’. Both the Constitutions showcase a number of similarities and differences, but it is its interpretation in both the countries which has caused both USA and India to become the largest democracies in the world.

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WANT TO START A NON-PROFIT IN INDIA?

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Be it an NGO, SOCIETY, TRUST or a COMPANY, every organization has its own procedure of formation and own requirement of application.

There are various methods of forming a non-profit organization in India, depending upon how one wants to go about it or gain from it. A non profit organization can be registered in India as a Society under the Registrar of Societies or as a Trust by making a Trust deed, or as a Section 8 Company, under the Companies Act, 2013.

Let’s talk about a Society today, one of the main requisites of forming a Society is having a minimum of seven members and creating its MOA which contains the objects of the Society and its AOA which contains its rules and regulations. Recently I drafted a Memorandum for a very different concept of Society emerging in India. It’s a society being formed for the benefit of retired or aged community of India. Since the registration of a Society is done in one particular state, hence it can operate only in that state, the draft I have shared below is made solely in relation to Tamil Nadu pertaining to the Tamil Nadu Societies Registration Act, 1975, but the Acts of various differ only to a minor extent and the format of the MOA remains the same. The AOA is another important draft which is required at the time of registration. After forming the Society, it is expected to submit the list of the Governing Body Members to the Registrar every year. Besides, the Society is expected to maintain its Minutes Book, Attendance Register and decisions taken in the form of resolutions. The Governing Body reports to the General Body, which has the supreme power to make or alter any policy decisions.   Once formed, the Society functions more democratically and elections are held.

Please shoot for any other queries!! 😀

https://www.dropbox.com/s/1e9xclxojd0zj6l/Memorandum%20%20of%20Association%20-%20SOCIETY.docx?dl=0

EMPLOYEE STOCK OPTION PLAN (ESOP).

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Employee Stock Option Plans, popularly known as ESOPs, is a concept introduced in India. It is used by companies as a scheme of selling shares to the employees by which they become a shareholder in the company and thus hold a certain small level in the ownership of the company.

ESOPs are given by the companies to the employees thereby, giving them the following rights:

  • Right to purchase a certain number of shares in the company-at a pre-determined price after a predetermined period.
  • It helps the employer to retain the company and assure a good level of performance in the work.

Companies Act, 2013:

Section 2(37)“employees’ stock option” means the option given to the directors, officers or employees of a company or of its holding company or subsidiary company or companies, if any, which gives such directors, officers or employees, the benefit or right to purchase, or to subscribe for, the shares of the company at a future date at a pre-determined price.

Section 62(1) (b) – to employees under a scheme of employees’ stock option, subject to special resolution passed by company and subject to such conditions as may be prescribed;

ESOPs come under the Companies (Share Capital and Debenture) Rules, 2014. These rules lay down some types of compliance for setting up a stock option.

 

 

 

TYPES:

Non-Compensatory Plan

It is the one under which the employees do not get compensation. The basic purpose of such plan is to either diversify ownership to include the employees or to raise additional capital for the Company.

Under a non-compensatory plan the shares can be in future at the market price on the date of exercise[1]/vesting[2].

Compensatory Plan

Under this category, the employees are compensated. In other words, services rendered by the employees are partially compensated for the issuance of shares of a certain value.

Companies use these kind of plans to motivate the employees. Compensatory plans are particularly useful for the fast growing knowledge-based companies that usually do not pay large salaries to the employees.

Usually, companies adopt one or more of the following types of plans, with variations in the specific terms to make it relevant to its business needs and objectives:

 

Various Stock Options Schemes Available

 

  • Employee Stock Option Scheme (ESOS) – An Employee Stock Option Scheme or ESOS is a right to buy shares at a pre-determined price. The option provided under this scheme confers a right but not an obligation on the employee. Stock options are subject to vesting that requires continued service over a specified period of time. Upon vesting of options, employees can exercise the options to get shares by paying the pre-determined exercise price.
  • Employee Stock Purchase (ESP) – An ESPP provides the employees an option to purchase company shares often at a discount on FMV (fair market value) at grant or on exercise. The plan term determines the date and price at which the employee is entitled to purchase company stock.
  • Stock Appreciation Rights (SARs) – Under SAR/PEP, the employees are allotted notional shares/units at a pre-determined price. When the employee fulfils the vesting conditions, he is paid cash equivalent to the net gain i.e. appreciation in the price of underlying shares without any cash investment. These plans generally result in cash outflow for the company.
  • Restricted Stock Award (RSA) – Under RSA, an employee receives an award of stock, subject to certain underlying conditions. If the underlying conditions are not met, the shares are forfeited. The employee is considered to be the owner of the shares from the date of award, along with an entitlement to receive dividends and the voting rights. The forfeiture conditions may be based on continued service over a specified period of time. The employee may be required to pay for RSA at grant which may be at a discount or more. It is usually awarded the stock at no cost.
  • Restricted Stock Unit (RSU) – Under RSU, an employee is awarded an entitlement to receive stock at some specified date in the future, subject to certain conditions. These conditions may relate to performance or tenure of employment. Until shares are actually delivered, the employee is not a shareholder and does not have voting rights or rights to receive dividends. RSU is not an immediate transfer of shares, subject to forfeiture, but a promise to give shares in the future. RSUs are generally entitled to quasi-dividends.

IMPORTANT CLAUSES

  1. The selection criteria for a particular model of plan would completely depend upon the objective of the implementation of the ESOP Plan. Say, if the objective is to use ESOP as a talent retention tool, then you can plan the vesting period to be longer than usual. If your objective is to use it as an incentive tool, you may keep the exercise price low. This would enable the employee to enjoy an upside when he sells off his holding. Again, if your objective is to use it as a part of remuneration mechanism, the eligibility criteria could be accordingly widened.
  2. The organization can have its separate blue print for determining the eligibility criteria for the purpose of this plan, there are certain statutory eligibility criteria which you have to keep in mind:
  • An employee who is a promoter or belongs to the promoter group shall not be eligible to participate in the ESOP.
  • A director who either himself or through his relative or through any boy corporate, directly or indirectly, holds more than 10% of the outstanding equity shares of the company shall not be eligible for ESOP.
  1. “Employee” means
  • a permanent employee of the company working in India or out of India; or
  • a director of the company, whether a whole time director or not; or
  • an employee as defined in sub-clauses (a) or (b) of a subsidiary, in India or out of India, or of a holding company of the company.

 

  1. A company grants to an employee the option to buy a certain number of shares in the company at a fixed price after a certain number of years (option period). Before the employee can exercise the option he is usually required to complete the vesting period which typically means that he has to continue to work for the Company for a minimum number of years before part or all of the options can be exercised.
  2. Grant of an ESOP is the act of commitment made by the employer through informing the employee of the eligibility for the Options, i.e. when the Employer sends the Grant Letter to the employees as a part of the ESOP Plan which is in place.
  3. Options are not valid for a lifetime. After a certain period, typically on termination of employee or expiry of Exercise Period, the Options lapse. Lapsed options cannot be converted into shares. Exercise Period is the period after the Vesting Period within which the employee has to Exercise.
  4. There are two stages of taxability in the hands of the employee which is as below:
  • The first stage is when the options are exercised by the employee. The benefit, which is the difference between the fair market value (“FMV”) of the shares on the date of which the option is exercised and the amount at which the options were granted to the employee, is treated as a perquisite as per Income Tax Act, 1961 (the “Act’).
  • The second stage is when the shares are sold or transferred by the employee in which case the difference between the sale consideration and the FMV of the shares would be treated as capital gains and will be subject to capital gains tax.
  1. The expenses related to ESOP be claimed as deduction by the company in the hands of the Company issuing the ESOPS, it is allowed to claim ESOP costs as deductions.
  2. There is no statutory limit for how much stake can be reserved for the purpose of ESOP. This completely depends upon the objective of the of the ESOP plan, the frequency of the ESOP grant in the company and company’s internal policies and mechanisms.
  3. Mere grant of an option does not make an employee shareholder of the company. Options are not shares; they are rights to own shares. These become shares only when employee exercises that right.
  4. Private limited companies and closely held companies eligible to issue ESOP to its employees. However, as per Industry practice, since the shares are not publicly traded, employees need to be provided with an exit option.
  5. A holding company issue implement ESOP scheme for the employees of its subsidiary company. However, the Articles of Association of the company must have such enabling provision.
  6. Constitution of Compensation Committee is compulsory only for listed companies. Private limited companies and closely held companies are not required to form such committee compulsorily.
  7. Legal compliance that is to be taken care of for implementation of ESOP scheme:

The laws that dictate implementation of Equity Compensation plans are:

  • SEBI (ESOP guidelines)
  • Companies Act
  • Income Tax Act
  • Accounting guidelines (ICAI, IFRS, US GAAP)
  • FEMA
  1. Accelerated vesting is a form of vesting that takes place at a faster pace than the original vesting schedule laid down in the ESOP scheme. Hence, the employee can obtain the benefit much sooner.
  2. Conditions for ESOP can be changed post acceptance of grant. This is called modification of ESOPs. Usually these changes are undertaken in favor of employees. As a part of these modifications, vesting period may be reduced, exercise price may be reduced and so on. It is done as an added incentive for employee’s morale or rewarding them for extra-ordinary performances.
  3. ESOPs are not shares per se. These are options which may or may not be converted into shares, subject to underlying conditions. Till the time these options are converted, these are not shares and hence there is no property in existence. Thus, ESOPs cannot be transferred or pledged. However, when these ESOPs are converted into shares of the company, those are freely transferrable, subject to terms and conditions of ESOP scheme.
  4. Do ESOP holders do not receive dividends or enjoy voting rights. Again ESOPs are not shares but options. Hence, they do not come with dividend rights or voting rights. Only when these options are converted into shares, these rights can be exercised.
  5. If the ESOP holder dies before the options get vested to the holders, they vest in their legal heir or nominee.
  6. In case an employee suffers permanent incapacitation during the course of his employment, then the vesting period gets preponed. These options are now vested on the date of his incapacitation. This is irrespective of the fact that he is able continue his employment or not.
  7. Once an ESOP holder becomes a shareholder, generally he would be entitled to enjoy the right to transfer his shares to anyone. This might not be an entertaining situation for a closely held private company or an unlisted public company. This issue can be addressed in a carefully drafted ESOP scheme by our experts.
  8. People usually tend to mix the concepts of Sweat Equity Shares and Employees Stock Options, but it should be well kept in mind that both the concepts differ a lot from various aspects. Sweat Equity shares are those shares issued by a company to its directors or employees at a discount or for consideration other than cash, for providing know-how, or IPR, or value additions, by whatever name called.

An ESOP (Employees Stock Option Plan) on the other hand is an option given to the employees to buy certain number of shares of the Company at a pre-determined price.

One of the basic differences between Sweat Equity and ESOP is Sweat Equity can be issued for consideration other than cash while ESOP has to be issued only in lieu of cash.

 

 

 

[1] Exercise is the act of paying the Exercise Price to convert the Options into Shares.

[2] Vesting is the process by which a company grants non-forfeitable rights over the shares of the company. Vesting gives an employee rights to own the shares of the company over time. Vesting basically has two parts – Vesting percentage is the portion of the total options Granted which can be exercised on completion of the Vesting Period.

10 LEGAL RIGHTS EVERY INDIAN CITIZEN SHOULD BE AWARE OF

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Introduction:

The Indian legal system has given a lot of power to its citizens in form of rights. But as we all know the Indian constitution is very complex. The complexity level has reached that point that we all fail to know our own basic rights. For example: if your cylinder explodes, you are entitled to Rs 40 lakhs as compensation. There are many such rights awarded to citizens of India. But unfortunately, most of us have a vague or a very little information about the legal system and its tenets. So, to help people know their rights and to help them fight back, here are 10 legal rights that we should be aware of.

  • Instances when a person is breaking COPYRIGHT Law :

“A bundle of intangible rights granted by statute to the author or originator of certain literary or artistic productions,whereby,for a limited period,the exclusive privilege is given to that person(or to any party to whom he or she transfers ownership) to make copies of the same for publication and sale.”

Sometimes, by doing some typical online activities, you are probably breaking copyright law. If you use a copyrighted video or song in your home video which is to be uploaded on internet (fore.g.YouTube).you are infringing on the Digital Millennium Copyright Act.

Ways by which you can reduce the risk of being caught.

1. Post to smaller, niche sharing sites that don’t automatically remove content that may contain (or appear to contain) copyrighted works.

2. If you want to post to larger sites, mirror the content on smaller sites as well.

3. Post to sites that use off-shore servers and are not subject to the DMCA

  • Sharing and clicking of photographs and videos :

Anyone in a public place can take pictures of anything they want. Public places include parks, sidewalks, malls, etc.  Even though malls are technically private property, being open to the public makes it public space. Anyone in a public place can take pictures of anything they want. Public places include parks, sidewalks, malls, etc. Malls. Even though it’s technically private property, being open to the public makes it public space.

1. If you are on public property, you can take pictures of private property. If a building, for example, is visible from the sidewalk, it’s fair to do so.

2. If you are on private property and are asked not to take pictures, you are obligated to honor that request. This includes posted signs.

3. Sensitive government buildings (military bases, nuclear facilities) can prohibit photography if it is deemed a threat to national security.

4. People can be photographed if they are in public (without their consent) unless they have secluded themselves and can expect a reasonable degree of privacy.

  • Rights of a renter:

Always landlords are not on the privileged side. As law says “possession is better title than ownership”. Every landlord has to abide with the state legislations. Moreover, as a renter, one should always make sure (i.e. before signing the agreement) that they are getting a property in accordance with the rent prescribed.

  • Rights of an air traveler :

There are quite few rights that an air traveler possess ,to which they are aware of

1. Right to Lock In Your Fare In Advance, Without Paying; before 24 hours a person can lock in the fare without paying a penny.

2. Right to Cash for cancelled Flights and lost Luggage: a person is always eligible to receive a reasonable compensation from the concerned airline for the loss incurred.

  • Rights of an employer
  1. Your employer can’t withhold your paycheck for poor performance.
  2. You must receive your paycheck promptly.
  3. Whether you’re eligible for overtime pay isn’t up to your employer; the government decides.
  4. Your employer cannot ask, require, or even allow you to work off the clock.: employer must pay you overtime (time and a half) for all hours you work above 40 in any given week.
  • Right of women for arrest and enquiry:

No male police officer can arrest the women for the said purpose and only a women officer is allowed to arrest a woman. Moreover, the women can only be arrested by the women before the sunset and generally 6p.m. is considered as a bar for the said purpose. Under section 160 of CrPC, 1973 a women cannot be called at the police station for the purpose of inquiry.

  • Right to be fined, under Motor Vehicle Act,1988:

A person can only be fined once for a particular infringement he cannot be fined twice for the same offence. Everyone is aware of the fact that they shouldn’t use cellphones while driving, but states have different bans on the kinds of cellphone use that are illegal while driving. Majorly all states ban texting while driving, but some prohibit any kind of use of your phone when you are at the wheel. Moreover some ban wearing of headphones while driving. Every state has different rules for traffic violations. For e.g. in Uttar Pradesh rs 100 is fined for using mobile phones while driving.

  • Right to Bargain:

  MRP is the Maximum Retail Price. As consumer, a person has the right to bargain for a price below that. However, a seller cannot go beyond the MRP.

  • Right for adoption:

Law allows every citizen to adopt a child but there are few exceptions to this rule under The Hindu Adoptions and Maintenance Act,1956 that if you have a son or son’s son or son’s son’s son you cannot adopt a son and same is for daughter. But if a married person  is adopting a daughter the age gap between them should be 21 years. An unmarried man cannot adopt a daughter.

  • Right to information:

This act specifically provides that all citizens have a right to information. The applicants are not required to provide reasons for seeking such information. The information is to be provided within 90 days or rejected with reasons.

 

Death penalty on terror offences

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Death penalty is the Capital Punishment of India whereas terrorism or ‘waging a war against the State’ is considered the gravest crime in our country and hence it seems perfectly alright to compensate one with another. In the previous year when the Supreme Court of India tasked the Law Commission to look into the topic of ‘death penalty’, the Commission recommended keeping death penalty only for terror cases.Terrorism is considered the most heinous activity in the world. It is through terrorism that mass innocent lives are taken and fear is created. But does that give us the right to take the life of the terrorist or is it our duty to understand the reason behind the act?

This is one question that has been argued constantly nationally as well as internationally recently. Amnesty opposes the death penalty at all times – regardless of who is accused, the crime, guilt or innocence or method of execution. Human rights – including the most basic right to life – are universal and endorsed by the vast majority of countries in the world. Amnesty has been working to end executions since 1977, when only 16 countries had abolished the death penalty in law or practice. Today, the number has risen to 140 – nearly two-thirds of countries around the world.

‘The death penalty breaches two essential human rights: the right to life and the right to live free from torture. Both rights are protected under the Universal Declaration of Human Rights, adopted by the UN in 1948’.

 “I have yet to see a death case among the dozen coming to the Supreme Court on the eve-of –execution stay applications in which the defendant was well represented at trial….. people who are well represented at trial do not get death penalty”

-Ruth Bader Ginsburg, U.S. Supreme Court Justice, at a lecture in the University of District of Columbia (2001).


The National Law University of Delhi have made an extensive report on death penalty, they have been consistently campaigning towards abolishing death penalty in India. Terror offences include cases where the prisoners were convicted under the TADA, POTA, UAPA or for the offence of ‘waging war’ under Section 121 of the IPC. The TADA and POTA have been repealed whereas the UAPA still exists monitoring the terror cases in India. 31 prisoners have been sentenced to death in India for terror offences. As analysed in the report the longest median duration for proceedings at trial court and High Court were observed to be in cases involving terror offences. It has also been stated that the longest duration of legal proceedings for terror offences can be understood when it is mapped on to the period of incarceration in these cases. Prisoners sentenced to death for terror offences are incarcerated for far longer durations as compared to prisoners sentenced to death for other crimes, with the median duration of incarceration for terror offences being 158 months i.e. 13 years, 2 months, duration significantly higher than the median duration of incarceration for all offences 66 months i.e. 5 years 6 months.  The order in which the prisoners under terror offences have been sentenced to death has been stated below in the table;
   

  In Bachan Singh v. State of Punjab (1980) (2 SCC 684) the Supreme Court held;

Capital punishment can only be given in ‘rarest of the rare’ cases.

‘if an accused is young or old he shall not be sentenced to death’.

According to the report 373 people were sentenced to death while making the report, out of which 31 people were sentenced to death for terror offences. 29 people out of this were (93.5%) were either scheduled caste or religious minorities, with 19 of them being Muslims (61.3%).

Dr. Yug Mohit Chaudhary is a practising lawyer in the Bombay High Court who pitches for abolition of death penalty. He has very precisely discussed administration of death penalty through three social-institutions, being;

Police – evidence gathering machinery.

Judge – adjudicate guilt and pass sentence and determine appropriate sentence.

Executive – deals with mercy petitions.

The way Police investigates a crime is disturbing as it has been seen in various instances that they implicate innocent person. When the police is known to fabricate material facts, then how can we let some persons life depend on those facts. In the case of Malegaon Blast 2006, bombs went off on the holy night a.k.a Badi raat outside the mosque. Malegaon is predominantly a Muslim city. Nine boys were arrested and charged for the execution of the blast. Nine confessions were recorded and the police produced RDX  in the court which they claimed to have ceased from the house of the accused. During the investigation of the Samjhauta express blast, the National Investigating Agency arrests Swami Aseemanand, who confesses to have been carried these blasts in Malegaon as well. He says that it was his Right wing Hindu terror group that did these Malegaon blasts. So then what happens to all that evidence, the confessional evidence, the RDX? Where did the RDX come from?

Now, put yourself in the position of a judge, adjudicating a case, and the Police produce RDX in Court, saying it was seized from the house of the accused. The defence lawyer says that evidence has been fabricated. The Judge asks: “Where did the Police get it from?” How do you answer that question? You are at a loss for an answer. The judge is going to believe that evidence, that the RDX was actually seized, because where do people get RDX from otherwise? Normal people don’t have RDX. But for Swami Aseemanand’s confession coming to light, these nine boys would be facing the gallows. This is not just one case, such fabrication by the police has been witnessed time and again. How can a life be put at stake when there is the slightest room for doubt?

No institution or person is flawless, same goes with the Judiciary of our country as well. It is administered by different set of people and hence it ought to be different. But the law is the same, the Constitution is the same hence its interpretation must also be same. But can the matter of life be dealt with differently from case to case just on the basis of different interpretation. In the cases of Yakub Memon if one judge examined him on the basis of his crimes as proved in the court, his death sentence would be valid, but what if another judge examined him on the basis of his ‘good conduct while on death row’ in the prison or just as another conspirator of the blast, maybe he would be alive right now just as other conspirators of the blast are whose death penalty had been commuted to imprisonment. In Harbans Singh’s case (1982), three persons with identical roles were sentenced to death for murder, and three different Supreme Court benches pronounced three dramatically different verdicts. Kashmira’s death sentence was commuted to life imprisonment, Jeeta’s appeal was dismissed and he was hanged, and Harbans was recommended for Presidential clemency though the court had initially dismissed his appeal and review petition.

Can this be justified? Death penalty is awarded to deter others from committing the same crime again. But killing one man and letting another live for the same crime just degrades judiciary in our eyes because change is acceptable but partiality is not especially when its regarding a life. 

Bacchan Singh held that the judges would have to look at both, the circumstances pertaining to the crime, as well as at the circumstances pertaining to the criminal. However, in cases of heinous crimes as well as cases of terrorism, this judicial caution takes a bit of a backseat and is overwhelmed by the sense of revulsion caused by the crime. How are you looking at the circumstances of the criminal when you do not offer him a second chance and send him to the gallows? ‘rarest of the rare’ concept for death penalty also arose in this case but how can one define it, it is very subjective concept which can be interpreted differently by different people. So can the question of death penalty as a punishment be based on this very concept.

There are a lot remedies provided by the law to the capital punishment. Review petitions, Curative petitions and the mercy petition. The executive has the power in dealing with the mercy petition. The present President Pranab Mukherjee has rejected 24 mercy pleas including that of Yakub Memon, Ajmal Kasab, Afzal Guru, all three involved in terror cases. ‘Article 21 of the Constitution is inalienable and applies to every human being, not only a citizen of India. Article 21 says that No person shall be deprived of his life or personal liberty except according to procedure established by law. And that procedure as per Supreme Court has to be fair, just and reasonable. If you are going to take away somebody’s life, you have to do it according to the legal procedure. What does the procedure say in the law? The rules of the government on this issue says that when a mercy petition is made, and that this mercy petition is rejected, whoever makes the mercy petition for the prisoner has to be informed about the rejection of the mercy petition. The prisoner and his family have to be informed about the rejection and told in advance about the date of the execution.’

Afsal Guru was sentenced to death in secrecy for his involvement in the ‘Parliament Attack’ without his family informed. Each person going to be executed has the right to make peace with his maker, prepare his will and meet his family. None of those rights were provided to this man.

This power has been given to the executive to make amends in case the judiciary has made any mistakes, but the executive seems to be fulfilling its own political agenda’s though it nowadays. 

The threat of execution is unlikely to stop men and women prepared to die for their beliefs – for example, suicide bombers. Executions are just as likely to create martyrs whose memory becomes a rallying point for their organizations. Amnesty research has shown that in many cases, people who are accused of terrorism are convicted of vaguely worded offences. Many are condemned to death on the basis of “confessions” extracted through torture.

In August, two MPs introduced bills seeking abolition of the death penalty. The State Assembly of Tripura passed a unanimous resolution urging the central government to abolish capital punishment for murder.

In August, the Law Commission of India submitted a report to the government favouring speedy abolition of the death penalty. The Commission said that the death penalty in India is “an irreversible punishment in an imperfect, fragile and fallible system” but recommended that it be retained for terrorism-related offences and “waging war against the state”.

 This article was written by me during my internship at Quill foundation.

Judgment analysis of Yakub Memon’s case

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I don’t think you should support the death penalty to seek revenge. I don’t think that’s right. I think the reason to support death penalty is because it saves other people’s lives. These lines have been rightly quoted by George Walker Bush.

In last two decades 64 terrorist attacks have taken place in India, lakhs of lives have been lost  and the masterminds of these attacks are still out there…. FREE.

The ‘1993 Bombay blast’ caused a havoc in India.

On 12th March 1993, series of 12 bomb blasts took place in the span of two hours in bombay, in which massive quantity of RDX was used.

Yakub Memon was caught in 1994 as one of the terrorist convicts of this blast. He spent 21 years in jail under trial and after multiple dismissal of mercy petitions and writ petitions, he was sentenced to death on 30th July 2015.

And here I have mentioned the chronology of events that took place from his conviction to execution in brief.

The seed of this attack were sown when the abolition of babri masjid took place in 1992 followed by months of rioting amongst Hindus and Muslims. A victim of this event Tiger Memon elder brother of Yakub Memon formulated this blast in the name of vengeance.

He was convicted on the basis the statement of one approver and the retracted confessions of co-accused. The prosecution did not produce any independent evidence to refute yakub’s assertion that he knew nothing about the blast.

Important legal points to be noted:

He was charged under various sections of TADA Act, IPC and Explosives Substance act, which together constitute no less punishment than death penalty.

Special TADA Court judge Justice Sathasivam held that the“gravity of crime and commanding position constituted special reasons for death penalty”.

When his sentence was read out by the TADA Court judge, Yakub cried out, “forgive him lord, for he knew not what he does”.

In Bachan Singh’s case, it was held that capital punishment in India can only be given in “rarest of rare case”.

Terrorism comes under this phenomenon.

The review petition filed by Yakub was dismissed by a panel of three judges.

Curative petition is the last remedy available to a convict, and since the petitioners contention did not fall within the guidelines laid down in the case of Rupa Ashok Hurra v. Ashok Hurra. Hence the curative petition was dismissed.

This petition was listed before a Justice AR Dave and Kurian Joseph.

There was a disagreement in the decision of both these judges, but it was concluded that the curative petition decided by the Chief justice and two senior most judges of the Supreme Court cannot be found fault with. Hence this petition was dismissed as well.

The midnight judgement:

The Supreme assembled at midnight before Yakub Memon was to be hanged. The petitioner prayed in this to stay the order of the death sentence.

The case was argued for a span of three hours before the judges made their decision.

The petitioner prayed on the basis of the good conduct of the convict in the jail and before the blast.

The Attorney General on behalf of the State stated that if this petition was entertained the concept of ad infinitum would enter into the field and it would become an unending process, which would be nothing but travesty of justice .

The Supreme Court rejected Yakub’s last minute petition against execution at 5 am in the morning, after a historic middle of the night hearing.

Lastly I would like to say that terrorism has become the systematic weapon of war that knows no boundaries or seldom has a face.

I would not vote for against the death sentence of Yakub Memon, because what is done cannot be repealed. But I also do not feel the need to argue over Yakub Memon’s innocence, because his crime has been proved with due procedure and time in spite of his good character.

Should Yakub Memon have received capital punishment ?

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Should this man who was convicted for the ‘1993 Bombay blast’ in the year 1994 have been hanged after 21 years imprisonment in India ?

Was the Indian Judiciary and Indian Government correct to decline his writ petition and mercy petition for commutation for his death sentence ?

Was this man really a terrorist ?

Come on guys give your views and answer my questions as next I have the whole analysis and minute details of this complex case and its judgement.