In the digital age, upholding justice is crucial, specifically in cases of NCII, where the current legal framework and terminology inadequately address the complexities, ultimately resulting in a lack of justice…The global outrage erupted in response to NCII has spurred concrete actions in various countries. India has no reason not to follow suit and can do so more efficiently

With vast experience on a wide range of human rights issues since 1985, Enakshi Ganguly, the co-founder of HAQ: Centre for Child Rights recently published her first book, ‘Juvenile, Not Delinquents: Children in Conflict With the Law’. The book, co-authored with Kalpana Purushothaman and Puneeta Roy, is a thought-provoking account of her experience working on child rights, powerfully arguing that we have failed to support vulnerable children in their path to reform. In this conversation with Snehal Dhote, Associate (Sentencing) at Project 39A, Enakshi discusses the book as well as her thoughts on child rights discourse.

This article examines the Dharmalingam case along with the issue of prosecutorial discretion that lies at the heart of a wider critique of section 33B of the Misuse of Drugs (Amendment) Act 2012 that has made the mandatory death penalty discretionary for persons convicted for being ‘couriers’ in drug trafficking cases in Singapore. It argues that the provision is both procedurally and substantively arbitrary, and creates a misleading sense of individualised sentencing for drug trafficking in Singapore.

This article seeks to provide a summary of the Supreme Court’s recent judgement dated 24.03.2023 in Arup Bhuyan v State of Assam which overruled its previous decision in Arup Bhuyan v State of Assam, (2011) 3 SCC 377.

Since the inception of the field of criminal law, through all its evolutions and transformations, an indispensable cog that is essential to make the wheels of effective criminal justice turn is that of ‘a witness.’ The Witness Protection Scheme, 2018 was a first step towards securing rights for witnesses in India. However, unfortunately, the Scheme still remains riddled with problems in both its drafting and implementation. The present article aims to analyse a few questions which are required to be answered immediately, to bring the Scheme a step closer to what it set out to achieve.

The POCSO Act presumes an accused’s guilt through its reverse onus clauses. The basis for such clauses must be examined against a theoretical and legal framework in order to assess its suitability.

During the recent formulation of the Draft Rules of Criminal Procedure, the Supreme Court has recognised the need for a fair disclosure of exculpatory documents to the accused. While judgements mandating disclosure are essential for this right, the rights of the accused shall continue to be impeded without immediate statutory amendments as well.

The Prevention of Money Laundering Act 2002 is a piece of legislation which attempts, among other things, to help reduce the prevalence of money laundering, and to repossess any ill-gotten gains of money laundering. The first of its kind in India, it was introduced in order to combat threats against the Indian financial systems, and to fight the menace of money laundering. In order to achieve its goals, the Act provides for stringent measures, which empowers the Enforcement Directorate (ED), the agency responsible for investigating complaints under the Act, with sweeping powers.

Legal anthropologists Shrimoyee Ghosh and Haley Duschinski argue that Kashmir’s “permanent emergency” is sustained through a system of “indefinite incarceration” materialised through “proliferation of paperwork, jurisdictional complexity, and excessive legalism” (Ghosh and Duschinski 2020, 377). They note the manner in which, throughout a detainee’s “revolving-door detention”, it remains unclear which jurisdiction is being exercised – judicial, executive, or military – thus producing a state of “proliferating jurisdictions” .

In September 2022, the Supreme Court of India acknowledged concerns about the capital sentencing framework and ordered the setting up of a Constitution Bench to review it. For any meaningful reform, it will be crucial % for the Constitution Bench to take note of the nature and extent of the crisis in capital sentencing in trial courts.

Six years after being on death row a POCSO Special Court re-sentenced the accused to death in August 2022 in Anokhilal v. State of Madhya Pradesh. Convicted for child rape and murder case in 2013 [“Anokhilal I”] by the Khandwa POCSO court, in 2019, the Supreme Court struck down Anokhilal I on the grounds of fair trial violations of the accused. The Court remanded the case and ordered that the trial court must ensure “real and meaningful” legal aid to the accused in the retrial [“Anokhilal II”]. In this article, we analyse Anokhilal II and find it to be repeating the same mistakes as Anokhilal I. Only this time, the due process lapses have grave consequences as Anokhilal II has reinstated the death penalty on a prisoner who has already languished on death row. We argue that trial courts are duty-bound to ensure scrupulous adherence to due process requirements, not only for the specific violations observed in the remand but in all processes of the retrial.

The right to free legal aid is an essential ingredient of reasonable, fair and just procedure for a person accused of any offence. Accordingly, it is implicit under Article 21 of the Constitution of India. The state has the constitutional and statutory obligation to provide free legal services not only at the stage of trial but also at the stage when the accused is first produced before the magistrate or under circumstances of near-custodial interrogation.

When judges award the death penalty, how relevant is it for them to know about an accused person’s life, their social milieu, education, family circumstances and their personal traumas? What exactly does it take to obtain information about potential mitigating circumstances and how much time is needed to do so?
The top judicial minds of this country may need to deliberate on these questions in light of the September 19 Supreme Court judgment.

Set in place by a 42-year-old Supreme Court judgement, Indian law requires judges to consider a convict’s life story and the probability of reform in deciding life imprisonment or a death sentence. That ruling has been largely violated, as a study of trial-court judgements makes clear, because the law is fuzzy. Is it really possible to ensure no one is unlawfully sentenced to death? A Supreme Court Constitution bench will have to figure that out.

On September 19th, 2022, a 3-judge bench of the Supreme Court referred certain issues of death penalty sentencing to a larger constitutional bench. One of these issues relates to the amount of time required to collect and present mitigation evidence at the stage of sentencing. This issue is particularly important because, as evidenced by Project 39A’s study, sentencing persons to death on the same day as their conviction is pervasive across trial courts.

The Supreme Court in a recent order referred issues relating to capital sentencing in India to a Constitution bench. Unlike the dominant Supreme Court jurisprudence that has articulated inconsistent application of the Bachan Singh framework as the problem with capital sentencing, the referral order, in a markedly distinct approach, recognises the underdeveloped nature of the law.

The imagination of legal representation in capital cases is limited to lawyers. Mitigation, however, needs to be conducted by individuals trained in social work, sociology or psychology.

The Supreme Court has done well to acknowledge that capital punishment needs closer scrutiny and referring the matter to a five-judge bench. The problem that the Supreme Court’s reference to a Constitution Bench seeks to remedy is the need to achieve consistency on the requirements of a fair, meaningful and effective sentencing hearing

The SC does not allow standalone mental facts to trigger the exception under Section 27, but does not clearly explain why. This post argues that a possible reason is that mere mental facts do not guarantee the truthfulness or trustworthiness of information given by the accused, whereas the recovery of a physical object offers this guarantee.

The right to presumed innocence has not been given the status of a fundamental right in the Indian legal system. Yet, its status as a universal human right, crucial to the fairness of criminal trials, has been widely recognised in democratic legal systems.