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HUMANISING PENALTY: RECONCEPTUALISING INDIAN JUDICIAL ACTIVISM

  • HUMANISING PENALTY: RECONCEPTUALISING INDIAN JUDICIAL ACTIVISM

    Date : 12-07-2018 11:18

    The system of Penalty exists to serve Justice to the Victim and protect Society from the Offenders. The four purposes served by any penalty include: (a) Deterrence (b) Retribution (c) Rehabilitation (d) Restoration. The fourth one is the new one added to the list by many jurists, legal experts seeing the Victim’s compensation scheme added through Section 357-A in Cr.P.C, 1973 after the recommendation of 41st Law Commission through their report. The Supreme Court played a decisive role in forcing Parliament to add the Victim’s compensation scheme in the new Criminal Code.

    Earlier till 1955, the legislature and Judiciary both are inclined towards imposing a heavy penalty to the accused. To substantiate the same, the focus should be on section 367(5) of 1898 Criminal code. It requires that the Courts are required to record reasons for not imposing the death of Sentence. The rate at which Courts were awarding the death sentence alternative to Life imprisonment shows the harsh side of the judiciary. But, in 1955, the Parliament repealed Section 367(5) of CrPC,1898. Per the new code 1973, Section 354(3) was enacted which mandates Courts now to record reasons for awarding the Capital Sentence. This was a significant modification from the situation following the 1955 amendment (where terms of imprisonment and the death penalty were equal possibilities in a capital case), and a reversal of the position under the 1898 law (where death sentence was the norm and reasons had to be recorded if any other punishment was imposed). Now, judges needed to provide special reasons for why they imposed the death sentence. The rate of awarding the death sentence decreased tremendously. Further, Section 235(2) of CrPC, 1973 mandates the Indian Courts to hear the accused on the Question of Sentence. Now, there is a paradigm shift in the instance of both the Legislature and Judiciary. It is more prone in favor of the Accused taking into account the Victim’s side via serving the restoration scheme of Punishment.

    Time and again, when the legislature failed to give effect to Several International conventions signed by Government of India (Executive) in furtherance of Article 21, the Judiciary took the front seat and came to rescue. The focus here should be on several Judgments delivered by Hon’ble Supreme Court and High Courts in humanizing the Penalty that was imposed through Charles Sobraj v. Supdt. Central Jail, Tihar [(1978) 4 SCC 104], Bandhua Mukti Morcha v. Union of India [(1984) 3 S.C.C. 161], D.K. Basu v State of W.B [(1997) 1 SCC 416], E.P. Royappa v State of Tamil Nadu [AIR 1974 SC 555], Inhuman Conditions in 1382 Prisons, In re [(2016) 3 SCC 700], Selvi v. State of Karnataka [(2010) 7 SCC 263], Sheela Barse v. State of Maharashtra [(1983) 2 SCC 96]. Undoubtedly, it is the Judiciary that stood alone to protect the dignity of offenders.

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