In 1955 Amendment in Code of Criminal Procedure there was introduced amendment by Section 66 of the Code of Criminal Procedure (Amendment) Act, 1955 (XXVI of 1955) which deleted old sub-section (5) of Section 367 with effect from January 1, 1956. Thus, for capital offences, it was left to the Court, on the facts of each case, to pass, in its discretion, for reasons to be recorded, the sentence of death or the lesser sentence. Different High Courts, however, took different view, prominent amongst those were that the Bombay High Court in the State v. Vali Mohammad, AIR 1969 Bombay 294 (299) (FB), held that death is not a normal penalty for murder. As against this, the Division Bench of the Madras High Court in Valuchami Thevar, AIR 1965 Madras 48 held that death was the normal punishment where there were no extenuating circumstances.

35th Law Commission Report on Capital punishment- 1967:

Based on its analysis of the existing socio-economic cultural structures (including education levels and crime rates) and the absence of any Indian empirical research to the contrary, it concluded that the death penalty should be retained.

In Jagmohan Singh v. State of U.P., AIR 1973 SC 947 – Larger Bench Hon’ble Supreme Court held that –

The structure of our criminal law which is principally contained in the Indian Penal Code and the Criminal Procedure Code underlines the policy that when the Legislature has defined an offence with sufficient clarity and prescribed the maximum punishment therefor, a wide discretion in the matter of fixing the degree of punishment should be allowed to the Judge. It was only in section 303 where death was prescribed as the only punishment for murder by person under sentence of imprisonment for life. There are several other sections in which death sentence could be imposed, but that sentence is not mandatory. Under two sections ie Section 302-murder and Section 121-waging war against the Government of India, alternative punishments of death or imprisonment for life are leviable. Two other sections in the IPC i.e. Section 397 which provides that if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years and Section 398(2) which provides that if at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment shall not be less than seven years. As regards the rest of the offences, even those cases where the maximum punishment is the death penalty, a wide discretion to punish is given to the Judge.

Law Commission in its 48th Report (submitted on 25.7.1972) had pointed out deficiency in the sentencing procedure :

“45. It is now being increasingly recognised that a rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is the lack of comprehensive information as to characteristics and background of the offender.

The aims of sentencing:- Themselves obscure become all the more so in the absence of information on which the correctional process is to operate. The public as well as the courts themselves are in the dark about judicial approach in this regard.

We are of the view that the taking of evidence as to the circumstances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to co-operate in the process.”

Pursuant to recommendations of the Law Commission, Section 235(2) was amended to the following effect:-

235. Judgment of acquittal or conviction. – (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.“

Murlidhar Meghraj Loya v. State of Maharashtra, (SC) : AIR 1976 SC 1929

Krishna Iyer, J.– Judicial fluctuations in sentencing and societal seriousness in punishing have combined to persuade Parliament to prescribe inflexible, judge-proof, sentencing minim in the Food Adulteration law. This deprivatory punitive strategy sometimes inflicts harsher-than-deserved compulsory imprisonment on lighter offenders, the situation being beyond judicial discretion even if prosecution and accused consent to an ameliorative course.

Denouncing the policy of leaving no discretion with the court it was emphasized that the sentencing policy has a punitive and a correctional role and we are sure that what is the need of the appellants will be meted out to them if they deserve any activist administrative sympathy at all.

In Santa Singh v State of Punjab – AIR 1976 SC 2386

Hon’ble Apex Court referred to recommendation of 48th Report the Law Commission that the accused must have a right to make a representation against the sentence to be imposed after the judgment of conviction had been passed on the basis of which Section 235(2) was amended in 1973 to the following effect:-

“235 (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

It was held that the statute, in my view, seeks to achieve a socio-economic purpose and is aimed at attaining the ideal principle of proper sentencing in a rational and progressive society.

In Shiv Mohan Singh v State of Delhi – AIR 1977 SC 949 Hon’ble Apex Court held that the heinousness of the crime is a relevant factor in the choice of the sentence. The circumstances of the crime, especially social pressures which induce the crime which we may epitiomised as a ‘just sentence in an unjust society’ are another consideration. The criminal, not the crime, must figure prominently in shaping the sentence where a reform of the individual, rehabilitation into society and other measures to prevent recurrence, are weightily factors.

In Satto v State of Pb. AIR 1979 SC 1519 Hon’ble Supreme Court while dealing with a rape case by a juvenile held that

“….the current Indian ethos and standards of punitive deterrence make rape a heinous offence. The offenders, however, are children and the dilemmantic issue is to fix the sentencing guidelines when juvenile delinquents come before the court. ‘Justice and the Child’ is a distinct jurisprudential-criminological branch of socio-legal speciality which is still in its infant status in India and many other countries. The Children Act is a preliminary exercise; the Borstal School is an experiment in reformation and even Section 360, Criminal Procedure Code, 1973 tends in the same direction. Correction informed by compassion, not incarceration leading to degeneration, is the primary aim of this field of criminal justice. Juvenile justice has constitutional roots in Articles 15(3) and 39(e) and the pervasive humanism which bespeaks the superparental concern of the State for its child-citizens including juvenile delinqents. The penal pharmacopoea of India, in tune with the reformatory strategy currently prevalent in civilised criminology, has to approach the child offender not as a target of harsh punishment but of humane nourishment. This is the central problem of sentencing policy when juveniles are found guilty of delinquency…..”

In a landmark judicial pronouncement in case reported as Bachan Singh v. State of Punjab, (SC) AIR 1980 SC 898 (Larger Bench), Hon’ble Supreme Court dealt with the issue –

“whether this Court can lay down standards or norms restricting the area of the imposition of death penalty to a narrow category of murders…..”

Hon’ble Supreme Court held that it was not possible to categorise types of murder and to lay down standards. However, some of aggravating circumstances and mitigating circumstances were laid down as an indication for imposition of extreme penalty.

Hon’ble Supreme Court referred to Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, and the “aggravating circumstances” set out by Dr. Chitale were broadly accepted with the observation that there is no fetters on judicial discretion:

“Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion :

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed –

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.”

Dr. Chitaley had suggested these mitigating factors :

“Mitigating circumstances :- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances :-

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. It the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”

In Machhi Singh v. State of Punjab, (1983) 3 SCC 470, Hon’ble Supreme Court formulated the following two questions to be considered as a test to determine the rarest of the rare cases in which the death sentence can be inflicted:

“(a) Is there something uncommon, which renders sentence for imprisonment for life inadequate calls for death sentence?

(b) Rather the circumstances of the crime such that there is no alternative, but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speaks in favour of the offender?”

The circumstances in which death sentence may be imposed for the crime of murder and held as follows:-

I. Manner of commission of murder

When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

II. Motive for commission of murder

When the murder is committed for a motive which evinces total depravity and meanness.

III. Anti-social or socially abhorrent nature of the crime

When murder of a member of a Scheduled Caste or minority community or bride burning etc., is committed which arouse social wrath.

IV. Magnitude of crime

When multiple murders are committed and the crime is enormous in proportion.

V. Personality of victim of murder

When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons …..”

It was thus held that the extreme penalty of death sentence need not be inflicted except in gravest cases of extreme culpability. Such abhorent nature of the crime will certainly fall in the exceptional category of gravest cases of extreme culpability.

Similarly in case reported as Govind Ramji Jadhav v State of Maharashtra – 1990(4) SCC 718, it was held that one of the main objects of the sentencing policy is that where the sentence awarded by the Subordinate Courts is grossly inadequate or unconscionably lenient or ‘flea bite’ or is not commensurate with the gravity of the offence the High Court has the power of enhancing the sentence both in its revisional and appellate jurisdiction subject to the provisos (1) and (2) to Section 386 of the Code.

In case State of Gujarat v. Hon’ble High Court of Gujarat, (SC) – AIR 1998 SC 3164 the issue before Hon’ble Supreme court was that the convicts who awarded with rigorous imprisonment are made to render hard labour should be paid wages for the labour they put in. While referring to Theory of reformation through punishment is grounded on the sublime philosophy that every man is born good but circumstances transform him into a criminal, his rehabilitation after completion of sentence and Constitutional provisions as to prohibition of “begar” it was held that wages must be paid to the prisoners rendering hard labour.

Hon’ble Supreme Court also noticed the trend in sentencing policy to listen to the wailings of the victims. Rehabilitation of the prisoner need not be by closing the eyes towards the suffering victims of the offence. A glimpse at the field of victimology reveals two types of victims. First type consists of direct victims i.e. those who are alive and suffering on account of the harm inflicted by the prisoner while committing the crime. Second type comprises of indirect victims who are dependants of the direct victims of crimes who undergo sufferings due to deprivation of their breadwinner. Being conscious of Restorative and reparative theories following norms were laid down:

(1) It is lawful to employ the prisoner sentenced to rigorous imprisonment to do hard labour whether he consents to do it or not.

(2) It is open to the jail officials to permit other prisoners also to do any work which they choose to do provided such prisoners make a request for that purpose.

(3) It is imperative that the prisoner should be paid equitable wages for the work done by them. In order to determine the quantum of equitable wages payable to prisoners the State concerned shall constitute a wage fixation body for making recommendations. We direct each State do so as early as possible.

(4) Until the State Government takes any decision on such recommendations every prisoner must be paid wages for the work done by him at such rates or revised rates as the Government concerned fixes in the light of the observations made above. For this purpose we direct all the State Governments to fix the rate of such interim wages within six weeks from today and report to this Court of compliance of this direction.

(5) We recommend to the State concerned to make law for setting apart a portion of the wages earned by the prisoners to be paid as compensation to deserving victims of the offence the commission of which entailed the sentence of imprisonment to the prisoner, either directly or through a common fund to be created for this purpose or in any other feasible mode.

State of Karnataka v. Krishnappa, 2000(4) SCC 75 Hon’ble supreme Court in a case relating to rape recorded that “rape is not merely a physical assault, it is an offence which is destructive of the whole personality of the victim of crime and Courts shoulder a great responsibility while trying an accused on charges of rape and must deal with such cases with utmost sensitivity. Referring to imposition of punishment in such cases, it was opined :

“The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.”

In the 187th Report on the Mode of Execution (2003) of those convicted with death sentence.

Referring to the preamble, definition of expression `atrocities’ and punishments it was held that sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.

In Phoolwati v. State of Haryana (SC) : 2013(3) CCR 160 while referring to large number of judicial pronouncements it was held that where death sentence seems to be excessive and unduly harsh and life imprisonment is highly disproportionally inadequate, the court may find out a via media and instead of giving or confirming the death sentence awarded by the trial court may award a particular period of punishment as in a particular case, 14 years or 20 years may be found to be too less considering the gravity of the offence. The court may further impose a condition that State authorities will not grant them the benefit of remission and may not consider the case of premature release as per the sentencing policy adopted by the State.

In State of Haryana v. Jagdish, (2010) 4 SCC 216, Hon’ble Supreme Court dealt with the issue of clemency power elaborately and held that such powers are unfettered and absolute. Where the State authority frames rules under Article 161 of the Constitution, the case of the convict is required to be considered under the said rules. Even if the life convict does not satisfy the requirements of the remission rules or of the short sentencing scheme, there can be no prohibition for the President or the Governor of the State, as the case may be, to exercise the power of clemency vested in them, under the provisions of Articles 72 and 161 of the Constitution and the order of the Court in such an eventuality always remains subject to the clemency powers.

In the case relating to corruption Shanti Lal Meena v. State of NCT of Delhi, CBI (SC) AIR 2015 SC 2678, it was noticed that the punishments under Sections 8, 9, 10, 11 of the PC Act, 1988 were minimum six months extendable to five years with fine and under Section 14 of the Act, it was minimum two years extendable to seven years and fine. After analysis of the provisions on punishment under the PC Act it was held that there is a clear indication on the penal philosophy of deterrence conceived by the Parliament which intended to restrict the discretion of the courts while imposing the sentence for offences under the Prevention of Corruption Act.

In State of Madhya Pradesh v. Bablu, 2015(1) RCR (Criminal) 761 : 2015(1) Recent Apex Judgments (R.A.J.) 380 : (2014)9 SCC 281, it was held as follows :

“10. It is well-settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. One should keep in mind the social interest and consciousness of the society while considering the determinative factor of sentence commensurate with the gravity and nature of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, the solemn duty of the court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages any criminal and as a result of the same society suffers.”

In Hazara Singh v. Raj Kumar and others, 2013(2) RCR (Criminal) 851 : 2013(3) Recent Apex Judgments (R.A.J.) 86 : (2013)9 SCC 516, this Court took the view that . “the cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence.”

In State of Punjab v. Saurabh Bakshi, 2015(2) RCR (Criminal) 495 : 2015(2) Recent Apex Judgments (R.A.J.) 468 : (2015) 5 SCC 182, Supreme Court has observed thus:

“Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the “Emperors of all they survey”. Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilised persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as “larger than life”. In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinise, relook and revisit the sentencing policy in Section 304A I.P.C. We say so with immense anguish.”

LAW COMMISSION OF INDIA Report No.262 The Death Penalty August 2015 –

Need for re-examining the 35th Report – The Commission’s conclusion in the 35th Report that “at the present juncture, India cannot risk the experiment of abolition of capital punishment,” and its recommendation that “capital punishment should be retained in the present state of the country”, were clearly dependent on, and qualified by, the conditions that prevailed in India at that point in time. A great deal has changed in India, and indeed around the world, since December 1967, so much so that a fresh look at the issue in the contemporary context has become desirable. Six factors require special mention.

(i) Development in India –

The Commission’s conclusions in the 35th Report rejecting the abolition of capital punishment were linked to the “conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country.”

Nevertheless, education, general well-being, and social and economic conditions are vastly different today from those prevailing at the time of writing the 35th Report. For example, per capita Net National Income at constant prices, based on the 2004-2005 series was Rs. 1838.5 in 2011 – 2012, while it was Rs. 191.9 in 1967-1968.13 Similarly, adult literacy was 24.02% in 196114 and 74.0% in 2011, 15 and life expectancy (a product of nutrition, health care, etc.) was 47.1 years in 1965-197016 and 64.9 years in 2010-2015. The state of the country and its inhabitants has thus changed significantly.

Further, the 35th Report justified its hesitation in “risk[ing] the experiment of abolition,” “at the present juncture,” on the prevailing (high) crime rate. It expressed its concern in the following manner:

The figures of homicide in India during the several years have not shown any marked decline. The rate of homicide per million of the population is considerably higher in India than in many of the countries where capital punishment has been abolished.

However, according to the Crime in India reports, published by the National Crime Records Bureau (`NCRB`) under the aegis of the Ministry of Home Affairs, the murder rate has been in continuous and uninterrupted decline since 1992, when it was 4.6 per lakh of population. As per the latest figures for 2013, the murder rate is 2.7 per lakh of population, after having fallen further from 2012, when it was 2.8. This decline in the murder rate has coincided with a corresponding decline in the rate of executions, thus raising questions about whether the death penalty has any greater deterrent effect than life imprisonment.

It is evident that the socio-economic and cultural conditions in India, which had influenced the Commission in formulating its conclusions in the 35th Report, have changed considerably since 1967.

(ii) The new Code of Criminal Procedure in 1973 –

The Commission’s recommendations in the 35th Report predate the current Code of Criminal Procedure (`CrPC’), which was enacted in 1973. This resulted in an amendment to Section 354(3), requiring “special reasons” to be given when the death sentence was imposed for an offence where the punishment could be life imprisonment or death.

Pertinently, the Report also recommended that Section 303 of the Indian Penal Code, remain unchanged though subsequently this provision was held unconstitutional in Mithu v. State of Punjab, AIR 1983 SC 473 and that there was no requirement for a minimum interval between the death sentence and the actual execution (subsequently made 14 days in Shatrughan Chauhan v. Union of India (2014) 3 SCC 1).

Such developments emphasise the importance of relooking at the Report.

(iii) The emergence of constitutional due process standards Post-1967, India has witnessed an expansion of the interpretation of Article 21 of the Constitution of India, reading into the right to dignity and substantive and due process. Most famously, Maneka Gandhi v Union of India, AIR 1978 SC 597, held that the procedure prescribed by law has to be “fair, just and reasonable, not fanciful, oppressive or arbitrary.”

Subsequently, in Bachan Singh, the Court observed that Section 354(3) of the CrPC, 1973, is part of the due process framework on the death penalty.

(iv) Judicial developments on the arbitrary and subjective application of the death penalty

Despite the Court’s optimism in Bachan Singh that its guidelines will minimise the risk of arbitrary imposition of the death penalty, there remain concerns that capital punishment is “arbitrarily or freakishly imposed”. In Santosh Kumar Satishbushan Bariyar v. State of Maharashtra (SC), (2009)2 SCC (Cri.) 1150, the Court held that “there is no uniformity of precedents, to say the least. In most cases, the death penalty has been affirmed or refused to be affirmed by us, without laying down any legal principle.” The Supreme Court has itself admitted errors in the application of the death penalty in various cases.

(v) Recent Political Developments –

In August 2015, the Tripura Assembly voted in favour of a resolution seeking the abolition of the death penalty. Demands for the abolition of the death penalty have been made by the (CPI), the CPI (M), the CPI (Marxist – Leninist Liberation) and various other. On 31st July, 2015, D. Raja of the CPI introduced a Private Member’s Bill asking the Government to declare a moratorium on death sentences pending abolition of the death penalty. In August 2015, DMK Member of Parliament Kanimozhi introduced a private member’s bill in the Rajya Sabha seeking abolition of capital punishment.

(vi) International Developments –

In 1967, when the 35th Report was presented, only 12 countries had abolished capital punishment. Today, 140 countries have abolished the death penalty in law or in practice. Further, the number of countries that have remained “active retentionists”, the execution has fallen drastically. The issues relating to capital sentencing and the move towards the abolition of the death penalty internationally subsequent to the publication of the 35th Report deserve detailed consideration.

While we stand at this juncture awaiting abolition of death penalty, the recent emphasis is on to strike balance between the criminal and the victim. In case reported as Ravi S/o Ashok Ghumare v. State of Maharashtra (SC) AIR 2019 SC 5170, Hon’ble Supreme Court held as under:-

“51. Equally important is the stand-point of a ‘victim’ which includes his/her guardian or legal heirs as defined in Section 2(wa), Cr.P.C. For long, the criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The ‘victim’- the de facto sufferer of a crime had no say in the adjudicatory process and was made to sit outside the court as a mute spectator. The ethos of criminal justice dispensation to prevent and punish ‘crime’ would surreptitiously turn its back on the ‘victim’ of such crime whose cries went unheard for centuries in the long corridors of the conventional apparatus. A few limited rights, including to participate in the trial have now been bestowed on a ‘victim’ in India by the Act No. 5 of 2009 whereby some pragmatic changes in Cr.P.C. have been made.

52. The Sentencing Policy, therefore, needs to strike a balance between the two sides and count upon the twin test of (i) deterrent effect, or (ii) complete reformation for integration of the offender in civil society. Where the Court is satisfied that there is no possibility of reforming the offender, the punishments before all things, must be befitting the nature of crime and deterrent with an explicit aim to make an example out of the evil-doer and a warning to those who are still innocent. There is no gainsaying that the punishment is a reflection of societal morals. The subsistence of capital punishment proves that there are certain acts which the society so essentially abhores that they justify the taking of most crucial of the rights – the right to life.

57. It is equally apt at this stage to refer the recent amendments carried out by Parliament in the Protection of Children from Sexual Offences Act, 2012 by way of The Protection of Children from Sexual Offences (Amendment) Act, 2019 as notified on 6th August, 2019. The unamended Act defines “Aggravated Penetrative Sexual Assault” in Section 5, which included, “whoever commits aggravated penetrative sexual assault on a child below the age of 12 years.” Originally, the punishment for an aggravated sexual assault was rigorous imprisonment for a term not less than 10-years but which may extend for imprisonment for life with fine.

58. The recent amendment in Section 6 of 2012 Act has substituted the punishment as follows:-

“Post the Amendment, Section 6 has been substituted as follows:-

“6. (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.”

59. The minimum sentence for an aggravated penetrative sexual assault has been thus increased from 10 years to 20 years and imprisonment for life has now been expressly stated to be imprisonment for natural life of the person. Significantly, ‘death sentence’ has also been introduced as a penalty for the offence of aggravated penetrative sexual assault on a child below 12 years.

60. The Legislature has impliedly distanced itself from the propounders of “No-Death Sentence” in “No Circumstances” theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12 years without murder of the victim, ‘death penalty’ can also be imposed. In the Statement of Objects and Reasons of amendment, Parliament has shown its concern of the fact that “in recent past incidents of child sexual abuse cases administering the inhuman mindset of the accused, who have been barbaric in their approach to young victim, is rising in the country.” If the Parliament, armed with adequate facts and figures, has decided to introduce capital punishment for the offence of sexual abuse of a child, the Court hitherto will bear in mind the latest Legislative Policy even though it has no applicability in a case where the offence was committed prior thereto. The judicial precedents rendered before the recent amendment came into force, therefore, ought to be viewed with a purposive approach so that the legislative and judicial approaches are well harmonised.”

Thus, even though education, general well-being, and social and economic conditions of the country are vastly different now vis-a-vis 1967 we still have long to wait for abolition of death sentence.

India, a developing country, has made substantial progress in the areas of providing health, education and other necessities of life to its citizen. There is phenomenal increase of professionals, entrepreneurs and businessmen. Every individual is working hard to become financially independent. There is growth in financial resources of people, their consciousness about their rights and will to enforce such rights has increased. The commerce has grown tremendously which is now a universal phenomena. Technology affects the pattern of working of people. There is ever growing need of new legislations to regulate new emerging situations. Similarly, there is ever existing need to update the existing laws to meet the new emerging situations. Those who do not match this changing scenario are bound to mis-match and faulter. The government machinery is required to be responsive to the needs of a conscious society which invariably lags behind. Whenever there is infraction of rights of people at the hands of others, invariably at the hands of Government or its agencies, it gives rise to litigation.

Past trends have shown that litigation is ever growing. The number of cases filed in courts are increasing year by year despite best efforts being made by the Courts and by the Governments to ensure that litigation is curtailed. Data available on website of Punjab & Harayana High Court showing year-wise institution, disposal and increase in pendency of cases can be quoted as an example :

Picture of other States is no good. In June, 2018 the Chief Justice of India had sounded the alarm on rising pendency considering the problem of backlog of cases touching 3.3 crore cases. While 2.84 crore cases were pending in the subordinate courts, the backlog clogging the High Courts and Supreme Court was 43 lacs and 57,987 cases, respectively. According to National Judicial Data Grid, the five States which account for the highest pendency were Uttar Pradesh (61.58 lacs), Maharashtra (33.22 lacs), West Bengal (17.59 lacs), Bihar (16.58 lacs) and Gujarat (16.45 lacs). There were large number of under-trials languishing in jails across the country as they do not get bail and many of them spend more than their sentence once they are convicted. Of all the pending cases, 60% are more than two years old, while 40% are more than five year old. In the Supreme Court, more than 30% of pending cases are more than five years old. In the Allahabad High Court, 15% of the appeals have been pending since 1980s, while in the MP High Court, 70,000 are pending since 1994. Therefore, overall picture is very grim.

The above figures reveal that invariably there has been consistent higher institution of cases year after year. There has also been great effort at disposal of cases but the disposal has not matched the institution and finally the pendency has grown. If the present dispensation is not able to dispose of the number of cases that are filed every year despite the fact that every court is over-worked with ever growing cause lists, courts function beyond their time schedules, hence, some extra-ordinary steps need to be taken.

The judiciary has adopted multi-pronged strategies to handle the litigation. There is lot of emphasis on Alternate Dispute Resolution (ADR). The government has introduced amendments in Arbitration & Conciliation Act, 1996 to ensure that wherever there is an agreement between the parties to get the disputes resolved through arbitration, such disputes should get resolved at a faster pace but lot more needs to be done in this regard. After an award is passed, a statutory right to file objections is available. Objections are maintainable before principle court of original Civil Jurisdiction i.e. the District Judge. Thus upon case being decided by arbitrator, the litigation enters mainstream of court process at Divisional Level. This mechanism is helping only at first stage decision.

Mediation is also being resorted to extensively for which mediation cells have been set up in almost all the courts. Through this process, a team of trained mediators is available and the disputes can be got resolved by the people through this mode. It is a job of an independent Mediator to sensitise the disputing parties about the strengths and weaknesses of their dispute. The parties are required to be told that if left to be decided through court process there is inherent risk of relief being granted, about the delays which are bound to occur and about the right available with a losing party to approach higher courts and by convincing the parties a permanent quietus to a lis can be given. Quite a substantial number of cases are getting resolved through mediation process. Having felt necessity of pre-litigation mediation, Mediation & Conciliation Committee of Punjab & Haryana High Court in October, 2014, launched the concept of Pre-litigation Mediation on the same lines as was being followed by Delhi High Court Mediation Centre. Under this concept of Mediation, a party has the option to make an application to the Mediation Cell by paying a nominal fee of Rs.10,000/- for seeking mediation in a dispute and in case matter gets settled, such settlement is at par with an award rendered in arbitral proceedings in terms of section 74 of Arbitration and Conciliation Act, 1996. So even if there is no arbitration agreement, still a party can opt for resolution of dispute by Pre-litigation Mediation mechanism. A wide publicity in this regard is being made so that public is made conscious of this mode of settlement of disputes. This system needs to be widened and strengthened so that litigation burden on regular courts could be drastically reduced.

The Central Government has also recognized the need of having adequate mechanism to settle the disputes at pre-mediation stage itself. A very important amendment came about in the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018. Section 12-A in Chapter III-A on Pre-Institution Mediation And Settlement which is a step in right direction, is to the following effect:-

“12A. (1) A suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government.

(2) The Central Government may, by notification, authorise the Authorities constituted under the Legal Services Authorities Act, 1987, for the purposes of pre-institution mediation.

(3) Notwithstanding anything contained in the Legal Services Authorities Act, 1987, the Authority authorised by the Central Government under sub-section (2) shall complete the process of mediation within a period of three months from the date of application made by the plaintiff under sub-section (1)

Provided that the period of mediation may be extended for a further period of two months with the consent of the parties

Provided further that, the period during which the parties remained occupied with the pre-institution mediation, such period shall not be computed for the purpose of limitation under the Limitation Act, 1963.

(4) If the parties to the commercial dispute arrive at a settlement, the same shall be reduced into writing and shall be signed by the parties to the dispute and the mediator.

(5) The settlement arrived at under this section shall have the same status and effect as if it is an arbitral award on agreed terms under sub-section (4) of section 30 of the Arbitration and Conciliation Act, 1996.”

This legislation is certainly going to cause big dent on the litigation of a category covered under the provisions of Commercial Courts Act. This concept needs to be introduced to all the category of cases being filed in regular courts, of course with exception qua few identified category of cases.

Similar provisions exist in The Micro, Small and Medium Enterprises (MSME) Development Act, 2006 which mandate conciliation when disputes arise on payments to MSMEs. Its only when mandatory conciliation fails that the disputes are referred for statutory arbitration. Section 18 of the 2006 Act is reproduced as under:-

“18. Reference to Micro and Small Enterprises Facilitation Council.

(1) Notwithstanding anything contained in any other law for the time being in force, any party to a dispute may, with regard to any amount due under section 17, make a reference to the Micro and Small Enterprises Facilitation Council.

(2) On receipt of a reference under sub-section (1), the Council shall either itself conduct conciliation in the matter or seek the assistance of any institution or centre providing alternate dispute resolution services by making a reference to such an institution or centre, for conducting conciliation and the provisions of sections 65 to 81 of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to such a dispute as if the conciliation was initiated under Part III of that Act.

(3) Where the conciliation initiated under sub-section (2) is not successful and stands terminated without any settlement between the parties, the Council shall either itself take up the dispute for arbitration or refer it to any institution or centre providing alternate dispute resolution services for such arbitration and the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall then apply to the disputes as if the arbitration was in pursuance of an arbitration agreement referred to in sub-section (1) of section 7 of that Act.

(4) Notwithstanding anything contained in any other law for the time being in force, the Micro and Small Enterprises Facilitation Council or the centre providing alternate dispute resolution services shall have jurisdiction to act as an Arbitrator or Conciliator under this section in a dispute between the supplier located within its jurisdiction and a buyer located anywhere in India.

(5) Every reference made under this section shall be decided within a period of ninety days from the date of making such a reference.”

This measure of mandatory pre-litigation conciliation by the Micro and Small Enterprises Facilitation Council. has gone a long way in protecting the interest of Micro Small and Medium Enterprises and their disputes are getting resolved expeditiously.

For carrying out pre-litigation mandatory mediation there may be necessity of involving experts. During the hearing, there may be necessity of calling oral/documentary evidence from different departments and necessity of having expert opinions may be required with a focus on resolution of dispute. The type of cases that can be easily handled may be those involving insurance, employment, business and other civil disputes. The process of mediation saves both money and time. Pre-litigation would provide quicker resolution to a dispute. The time thus saved on handing new emerging litigation can be utilized by the courts on deciding old pending cases and the litigation which flows in regular courts. Otherwise there does not seem to be any possible solution to the problem of deciding pending cases. Option must also be given to those litigants whose cases are pending for years together and there is hardly any likelihood of those cases being taken up by the courts for decision to make an effort at mediation by getting the cases referred to Mediation. Some incentive to Bar would work miracles.

A statutory duty must be case on the Advocates to apprise the potential litigant that mediation is a process adopted to arrive at amicable resolution of dispute. The parties themselves or through Advocates must spell out their dispute in detail to the other side with corroborative evidence. In case provision is in place to ensure fixed professional fee to the Advocates handling matters at pre-litigation stage, surely the majority of disputes would get resolved at this stage itself. Many issues can be settled through this process even if the mediation did not result in a final decision and the left out issues can be got settled through the court process. This exercise carried out at pre-litigation stage would still assist the Court in a big way inasmuch as the material collected through mediation process can be made basis and be made admissible in evidence in evidence before court of law and the court may proceed to adjudicate only the left out issues of fact and law which were left unresolved through mandatory pre-litigation exercise.

By way of pre-litigation mediation, a potential litigant is required to be provided with an option and opportunity to have a formal process involving several steps to be taken prior to litigation. Necessary amendments can be introduced to various statutes, as has been done by the Central Govt. under Commercial Courts Act and MSME Act, discussed above. Such provisions made in the land laws will go a long way in resolving various boundary related issues. It should be made a mandatory condition for every litigant to have the dispute raised through Advocate by giving out complete detail of the dispute, supporting evidence and the settled legal position on the issue. Such a notice should be examined by the opposite party and its Advocate and a mandatory response must transact in this regard between the parties. The area how Advocates would conduct the matter can also be specified and regulated. It can be made a statutory duty of the Advocates representing respective parties to certify the actual dispute on facts and on law. It is only thereafter that consensus report of both the Advocates on the gist of dispute on facts and law alongwith documentary evidence should be placed before a “Designated Authority” may be under the Legal Services Authority Act and/or before the Mediators who may make their best efforts to get the dispute resolved obviating necessity of approaching the Court. When all efforts at settlement fail only then the dispute must enter the Court process. Law needs to be amended and made harsher that in case a party ultimately is found to have acted unreasonably and with dishonesty in not settling the dispute through mandatory pre-litigation stage mechanism and fails in court, must be burdened with exemplary consequences.

It would be apt to discuss the litigation policy adopted by Italian Government. In 2014 The Italian government enacted a Decree (later to converted into Law) laying down urgent measures to reform the Italian civil judicial system and to deal with the backlog of pending cases. According to the Decree’s explanatory report, it was necessary and critical for Italy to reduce the duration of Italian court proceedings in order to put an end to its violations of the “reasonable time” requirement for a fair trial set forth in Article 6(1) of the European Convention on Human Rights. Moreover, the government aims to transform the Italian justice system from a burden on the country’s growth to a driving force to assist in resolving the nation’s economic crisis. The new measures were designed to reduce the workload of Italian courts by diminishing the average time required to obtain a decision in civil cases. This would make Italy a more attractive country for foreign investment and work toward the ultimate goal of accelerating economic growth. The Decree was also inspired by a decision to leverage the professional capabilities and skills of Italian lawyers in the judicial system. The main changes introduced by the Decree included:

• The possibility to refer pending cases to arbitration conducted by panels comprising lawyers who have been members of the relevant Italian bar for more than three years (Articles 1 and 9);

• The introduction of the so-called “settlement negotiation assisted by legal counsel” or “assisted negotiation” as an out-of-court means to resolve disputes, which would become a mandatory prelitigation step for disputes pertaining to certain specific matters (Articles 2-5);

• The possibility to interrupt statute of limitations by inviting the counterparty to proceed with assisted negotiation (Article 8);

• A reduction in the number of cases in which the judge may order that each party bear its own costs, thereby discouraging potential losing parties from bringing proceedings as a dilatory tactic (Article 13);

• The possibility to convert ordinary proceedings into summary proceedings to accelerate the taking-of-evidence phase (Article 14);

• The introduction of written affidavits to accelerate the hearing-of-witnesses phase (Article 15);

• Reductions in the periods during which Italian courts are closed in summer, judicial deadlines and hearings are suspended, and judges take holiday leave (Article 16);

• An increase in the interest rate applicable to pending legal proceedings to limit the use of vexatious litigation by debtors as a means of delaying payments (Article 17); and

• Measures directed to simplify enforcement proceedings and make them more effective (Article 18-20).

Mediation policies in some of the countries, like Italy, mandate mediations through various mechanisms, which is working well and is highly successful.

In India also there is a dire need for a comprehensive policy on pre-litigation mediation rather than selective, half-hearted and disconnected steps making no big difference. The role and professional responsibilities of Advocates, Mediators and other Experts with consequential responsibility of Government as a major litigant, the rights and obligations of parties in the process, and the outcome of the mediation agreement need to be well defined to get desired result. It has to be a collective action by Legislature, Executive and Judiciary that this monster of pendency of cases can be managed. It is not possible only for the ill-equipped Judiciary to handle this alarming situation.

India, a Welfare State, has been enjoined upon the responsibility under the Constitution to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The State is obligated to regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. One of the most deserving segments of population which need special attention is of “Senior Citizen”.

As per data available on the Government websites, in 2011 Census there were approx.104 million senior citizen in India (53 million females and 51 million males). According to an estimate this number must have grown to approx. 150 million which is about 9% of the total population. About 70% of the elderly population resides in rural areas whereas 30% resides in urban areas. The life expectancy is between age group 65 to 70 exception being certain States like Kerala and Punjab where it is little more. During 2013 the age specific death rate per 1000 population for the age group 60 – 64 years was 19.7 for rural areas and 15.0 for urban areas. The old – age dependency ratio climbed from 10.9% in 1961 to 14.2% in 2011 for India as a whole. In rural areas, 66% of elderly men and 28% of elderly women were working, while in urban areas only 46% of elderly men and about 11% of elderly women were working. The percent of literates among elderly persons increased from 27% in 1991 to 44% in 2011.The literacy rates among elderly females (28%) is less than half of the literacy rate among elderly males (59%).Most common disability among the aged persons was locomotor disability and visual disability as per Census 2011. In the age – group of 60 – 64 years, 76% persons were married while 22% were widowed. Remaining 2% were either never married or divorced.

LEGAL PROVISIONS:

Hindu Adoption & Maintenance Act, 1956:

Prevailing statutory provisions were highly inadequate. Section 20 of the Hindu Adoption & Maintenance Act, 1956 makes a provision for maintenance of children and aged parents. The provision makes it mandatory for a Hindu, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. The obligation of a person to maintain his or her aged or infirm parent in so far as the parent is unable to maintain himself or herself out of his or her own earnings or other property.

Code of Criminal Procedure, 1973:

Similarly, Section 125 of the Code of Criminal Procedure, 1973 makes a provision that in case a person having sufficient means neglects or refuses to maintain his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. The provisions contained in Hindu Adoption & Maintenance Act related only to Hindus and that too for aged or inform parents. It did not contain provision to take complete care of Senior Citizen. Similarly, Code of Criminal Procedure makes provision only in respect to those parents who are neglected or refused to be maintained and/or is unable to maintain himself.

National Policy on Older Persons, 1999:

In the year 1999 Government of India adopted the National Policy on Older Persons, 1999 in pursuance of the UN General Assembly Resolution 47/5 to observe 1999 as International Year of Older Persons and in keeping with obligation contained in Article 41 of the Constitution. The international endeavour i.e. The Madrid Plan of Action and the United Nations Principles for Senior Citizens adopted by the UN General Assembly in 2002, the Proclamation on Ageing and the global targets on ageing for the Year 2001 adopted by the General Assembly in 1992, the Shanghai Plan of Action 2002 and the Macau Outcome document 2007 adopted by UNESCAP formed the basis for the global policy guidelines to encourage government to design and implement their own policies from time to time. The Government of India is a signatory to all such documents demonstrating its commitment to address the concerns of the elderly. The policy and plans were put in place by central and state governments for the welfare of older persons. Pensions, travel concessions, income tax relief, medical benefit, extra interest on savings, security of older persons through an integrated scheme of the Ministry of Social Justice and Empowerment as well as financial support was provided for Homes, Day Care Centres, Medical Vans, Help Lines etc are extended currently. The Ministry of Social Justice and Empowerment coordinates programmes to be undertaken by other Ministries in their relevant areas of support to older persons.

The Social Defence Division of the Ministry mainly caters to the requirements of Senior Citizens. The Ministry develops and implements Acts, Policies and Programmes for welfare of Senior Citizens in collaboration with State Governments/ Union Territory Administrations to ensure that Senior Citizens may lead a secured, dignified and productive life. The laws and policies which are applied to achieve this laudable objection need to be discussed.

Maintenance & Welfare of Parents and Sr. Citizens Act, 2007:

Having been confronted with the problem of taking care of senior citizen Central Government enacted Maintenance & Welfare of Parents and Sr. Citizens Act, 2007 (hereinafter called 2007Act) to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto. Government of India, Ministry of Social Justice and Empowerment, Department of Social Justice and Empowerment has set up a Senior Citizen Division.

Section 2(h) of 2007 Act defines a “senior citizen” means any person being a citizen of India, who has attained the age of sixty years or above. The 2007 Act makes it obligatory upon the “children” i.e. son, daughter, grandson and grand-daughter excluding a minor and a “relative” i.e. any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death to provide maintenance of upto Rs.10,000/- per month, if so claimed by the parents and grand-parents. A Tribunal constituted under the Act has to fix monthly allowance of interim maintenance, payable from the date of order or from the date of application. Failure to comply without sufficient cause can invite issuance of warrants for fine on application to be made within three months and also for imprisonment, which may extend to one month for every default. Maintenance order can be enforced anywhere where children or relatives reside. Besides making it obligatory upon the children and relatives to provide maintenance to Senior Citizen, the Government has also been obligated to set up old age homes and also to provide for medical care of senior citizen. The Act further lays obligation upon the Government to provide comprehensive action plan for providing protection of life and property of senior citizens. The provision goes to the extent that even if senior citizen has transferred his property to his children or relative such transfer shall be rendered void if transferee fails to provide basic amenities and basic physical needs to such senior citizen. Those who abandon the senior citizen are punishable upto three months or fine upto 5000/- or both.

National Policy on Senior Citizens 2011:

In line with its continuous endeavour to ameliorate the lot of the Senior Citizen and to make their lives easy, Central Government adopted National Policy on Senior Citizens 2011. Endeavour is to provide quality of life in old age and health care. Increase in life span results in chronic functional disabilities creating a need for assistance required by Older persons. Special emphasis was laid to target women who are in precarious state having suffered lifetime of gender based discrimination, often stemming from deep-rooted cultural and social bias and compounded by discrimination based on class, caste, disability, illiteracy, unemployment and marital status. Over 50% of women over age 80 are widows. It was recognized that the rural poor would need social security in large measure at later years of life. The objectives of this policy were to include the demographic explosion among the elderly, the changing economy and social milieu, advancement in medical research, science and technology and high levels of destitution among the elderly rural poor. The prime object of the policy was to develop a formal and informal social support system, so that the capacity of the family to take care of senior citizens is strengthened and they continue to live in the family. The policy seeks to reach out in particular to the bulk of senior citizens living in rural areas who are dependent on family bonds and intergenerational understanding and support. The focus of the policy was to mainstream senior citizens, especially older women. To promote the concept of “Ageing in Place” or ageing in own home, housing, income security and home care services, old age pension and access to health care insurance schemes and other programmes and services to facilitate and sustain dignity in old age. The thrust of the policy was to be preventive rather than cure. The institutional care was to be the last resort. The policy recognised that care of senior citizens has to remain vested in the family which would partner the community, government and the private sector. Senior citizens were to be recognized as a valuable resource for the country and create an environment that provides them with equal opportunities, protects their rights and enables their full participation in society. By ensuring their social security, health care, shelter and welfare, their abuse and exploitation could be protected.

The policy required to provide income security in old age by launching Old Age Pension Scheme. Public Distribution System was to reach out to cover all senior citizens living below the poverty line. Income Tax rebate for senior citizens, to make available loans at reasonable rates of Interest to start small businesses. Senior citizens have to cope with health and associated problems some of which may be chronic, of a multiple nature, require constant attention and carry the risk of disability and consequent loss of autonomy were to be given high priority with focus on preventive, curative, rehabilitative health care. Efforts would be made to strengthen the family system so that it continues to play the role of primary caregiver in old age. This would be done by sensitizing younger generations and by providing tax incentives for those taking care of the older members. RSBY (Rashtriya Swasthya Bima Yojana) is promoted and senior citizens are compulsorily included in the coverage. Special programmes were to be developed to increase awareness on mental health and for early detection and care of those with Dementia and Alzheimer?s disease. Restoration of vision and eyesight of senior citizens will be an integral part of the National Programme for Control of Blindness (NPCB). The prevailing National Programme for Health Care of the Elderly (NPHCE) was to be expanded and in partnership with civil society organizations, scaled up further. Public private partnership models will be developed wherever possible to implement health care of the elderly. Services of mobile health clinics would be made available through PHCs or a subsidy would be granted to NGOs who offer such services. Health Insurance cover would be provided to all senior citizens through public funded schemes, especially those over 80 years who do not pay income tax. Provision was to be made for safety and security of senior citizens with a direction to the Police to keep a friendly vigil and monitor programmes which will include a comprehensive plan for security of senior citizens whether living alone or as couples and to promote mechanisms for interaction of the elderly with neighbourhood associations. Ten percent of housing schemes for urban and rural lower income segments were to be earmarked for senior citizens. Special arrangements for travel of senior citizen. A welfare fund for senior citizens was to be set up to generate revenue through a social security cess besides larger budgetary allocations to be made, which could be used for the welfare of the senior citizen. The policy was to have focus on promoting bonding of generations and multigenerational support by incorporating relevant educational material in school curriculum and promoting value education. Block Development Offices, Panchayat Raj Institutions and Tribal Councils/Gram Sabhas Block Development offices would appoint nodal officers to serve as a one point contact for senior citizens to ease access to pensions and handle documentation and physical presence requirements, especially by the elderly women.

This shows that the Government has already launched its policies and enacted 2007 Act with laudable object of taking all round care of the senior citizen. However, despite all these provisions, it seems that the true effect of these policies and statutory provisions has not percolated down to the most needy. Government has made provision for financial assistance by giving old-age pension to the senior citizen so that they are able to meet their financial needs but considering the large number of senior citizen, especially the poor ones, the quantum of pension of say Rs.1000/- or so per month given is hardly sufficient to meet dire needs of senior citizen in distress.

It would have been one of the basic parameters to ascertain social structure of our Society. Because of impact of family planning norms, the family units comprising of husband, wife and children is reduced in size. There has also been more stress on education as a result of which the children become financially and socially independent during their twenties and are supposed to move out of their homes leaving senior citizen invariably alone. This phenomena is higher in rural areas as compared to urban areas. So by the time a person attains age of a “senior citizen” the children are no more living under one roof. It creates a situation where own children are not available to take care of the needs of senior citizen. Even though the children may be able to financially assist their old parents, they are not present to take personal care. Though the Govt. aims at family care to senior citizen but that is not at times possible due to small size of families and the children moving away from their homes for better avenues. Therefore, the despite all policy trust of the Government, the majority of senior citizen are not getting physical care from family. Further wherever family is available to take care of senior citizen invariably they are not trained to do so. Therefore, the Government shall have to make available adequate and trained manpower which takes care of senior citizen.

NATIONAL HEALTH MISSION :

It would be appropriate to make reference to another policy of the Government; namely, National Health Mission. National Health Mission (NHM) was started by the Hon’ble Prime Minister of India in the year 2005 with following objectives:-

The Vision of the Mission

• To provide effective healthcare to rural population throughout the country with special focus on 18 states, which have weak public health indicators and/or weak infrastructure.

• To raise public spending on health from 0.9% GDP to 2-3% of GDP, with improved arrangement for community financing and risk pooling.

• To undertake architectural correction of the health system to enable it to effectively handle increased allocations and promote policies that strengthen public health management and service delivery in the country.

• To revitalize local health traditions and mainstream AYUSH into the public health system.

• Effective integration of health concerns through decentralized management at district, with determinants of health like sanitation and hygiene, nutrition, safe drinking water, gender and social concerns.

• Address inter State and inter district disparities.

• Time bound goals and report publicly on progress.

• To improve access to rural people, especially poor women and children to equitable, affordable, accountable and effective primary health care.

GOALS, STRATEGIES AND OUTCOMES OF THE MISSION :

The National Rural Health Mission (NRHM) has been launched with a view to bringing about dramatic improvement in the health system and the health status of the people, especially those who live in the rural areas of the country. The Mission seeks to provide universal access to equitable, affordable and quality health care which is accountable at the same time responsive to the needs of the people, reduction of child and maternal deaths as well as population stabilization, gender and demographic balance. In this process, the Mission would help achieve goals set under the National Health Policy and the Millennium Development Goals. To achieve these goals NRHM will:

• Facilitate increased access and utilization of quality health services by all.

• Forge a partnership between the Central, state and the local governments.

• Set up a platform for involving the Panchayati Raj institutions and community in the management of primary health programmes and infrastructure.

• Provide an opportunity for promoting equity and social justice.

• Establish a mechanism to provide flexibility to the states and the community to promote local initiatives.

• Develop a framework for promoting inter-sectoral convergence for promotive and preventive health care.

THE OBJECTIVES OF THE MISSION :

• Reduction in child and maternal mortality

• Universal access to public services for food and nutrition, sanitation and hygiene and universal access to public health care services with emphasis on services addressing womens and childrens health and universal immunization

• Prevention and control of communicable and non-communicable diseases, including locally endemic diseases.

• Access to integrated comprehensive primary health care.

• Population stabilization, gender and demographic balance.

• Revitalize local health traditions & mainstream AYUSH.

• Promotion of healthy life styles.

• Improved access to universal immunization through induction of Auto Disabled Syringes, alternate vaccine delivery and improved mobilization services under the programme.

• Improved facilities for institutional deliveries through provision of referral transport, escort and improved hospital care subsidized under the Janani Surakshya Yojana (JSY) for the below poverty line families.

• Availability of assured health care at reduced financial risk through pilots of Community Health Insurance under the Mission.

• Availability of safe drinking water.

• Provision of household toilets.

• Improved outreach services to medically under-served remote areas through mobile medical units.

• Increase awareness about preventive health including nutrition.

In the year 2013, the Govt. of India decided to aim eradication of defects at birth, diseases, deficiencies and developmental delays including disabilities i.e. 4 Ds amongst the children and therefore, launched Rastriya Bal Swasthaya Karyakarm (RBSK). A detailed guidelines were set out for implementing this programme known as Child Health Screening and Early Intervention Services under National Rural Health Mission initiated by the Ministry of Health and Family Welfare. The target group under this Programme is to cover all children from 0 to 18 years of age.

For implementing the Programme, the Govt. decided to set up District Early Intervention Centres throughout the country. The DEICs were to work under the National Health Mission as a Special Project. Various aims and objectives of DEICs and infrastructure/posts created thereunder are set out in guidelines laid down in this regard. A team consisting of Paediatrician, Medical Officer, Staff Nurses, Para-medics, Early Interventionist-cum-Special Educator-cum-Social Worker-cum Manager etc., a total of 13 posts in each district of the country was created.

GAPS NEED TO BE FILLED :

The emphasis of National Health Mission is on services addressing womens and childrens health. Special emphasis also needs to be laid on taking physical care of “senior citizen” on the similar lines which is altogether missing for which the existing infrastructure and trained personnel already appointed by the Governments under National Health Mission could be utilised. National Programme for Health Care of the Elderly needs to be synthesized with National Health Mission so that major aspect of physical health and care of senior citizen could be addressed in a more effective manner.

Lacuna in Maintenance & Welfare of Parents and Sr. Citizens Act, 2007:

Situations are emerging in courts that senior citizen move to the authority under the Act for seeking maintenance and for relief under section 23 of the Act and despite the fact that favourable orders are passed in favour of senior citizen, the same remain unimplemented due to delay in execution of such orders invariably due to challenge being made to such orders in higher forums and in the meantime senior citizen being of advanced age, in distress and at times ailing, passes away, the benefit thus accrued in favour of senior citizen remains unexecuted and bestows back upon the children/ relatives who were responsible for not maintaining the senior citizen. Thus legal heirs become beneficiary of their own wrongs. Why should they be allowed taken benefit of their own wrongs.

On this proposition of law, in case reported as Indian Council for Enviro-Legal Action v. Union of India (SC), 2011(8) SCC 161, Hon’ble Supreme Court laid down following principles of law:-

“223. The other aspect which has been dealt with in great details is to neutralise any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.

1. It is the bounden duty and obligation of the court to neutralise any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.

2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.

3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.

4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.

5. No litigant can derive benefit from the mere pendency of a case in a court of law.

6. A party cannot be allowed to take any benefit of his own wrongs.

7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.

8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts.

In the event of failure of children/relatives to take care and maintain senior citizen it is the Government which is toiling hard to do so, it must be ensured by the Government that benefit of orders passed in favour of Senior Citizen does not automatically revert back to such wrong doer children/relatives upon death of senior citizen when orders remain unimplemented. The benefits accruing upon execution of such valid orders should go to public exchequer which is funding the infrastructure being created by the Government for care and maintenance of senior citizen. Law relating to succession needs to be amended suitably to make statutory provision. Even Immediate amendments in this require to be made in the 2007 Act.

It’s my ardent feeling that in case these gaps are not filled up immediately, the aimed outcome would be hazy and vague. There should be zero possibility why even single senior citizen in need should not get service. Responsive mechanism is the site need of the hour.