Rethinking the penal notions

The system of penalty in India 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. 

However, owing to the modernization of the Indian Judiciary and the need of implementing a modern and diverse outlook to the justice system, a fourth purpose of penalty has now emerged and added to the list by many jurists, legal experts who are now focusing on the Victim’s compensation scheme added through Section 357-A in the Cr.P.C, 1973 after the recommendation of 41st Law Commission. The Supreme Court played a decisive role in forcing Parliament to add the victim’s compensation scheme in the new criminal code.

The History of Victim Compensation

Till 1955, the legislature and Judiciary were both inclined towards imposing a heavy penalty to the accused. And to substantiate the same, it was required that the courts are required to record reasons for not imposing the death of Sentence. Thus, the rate at which courts were awarding the death sentence alternative to Life imprisonment showed the harsh side of the judiciary. 

But, in 1955, the Parliament repealed Section 367(5) of CrPC,1898 and as per the new code 1973, Section 354(3) was enacted which mandates courts to now record reasons for awarding the capital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 thus decreased tremendously. Further, there is a paradigm shift in the instance of both the legislature and judiciary. Both are now more prone in favour of the accused taking into account the victim’s side via serving the restoration scheme of punishment.

Current Scenario

Time and again, since 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 step and came to the rescue. This is evident from the 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]. Thus, undoubtedly, through the efforts of the judiciary dignity of offenders are now more secure and justified.