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#India -Fast-track death sentence raises brows, Specific law on ‘whole life’ term needed #Vaw #Justice

By , TNN | Jan 20, 2013, 1

Fast-track death sentence raises brows

NEW DELHI: The death penalty awarded this week by in a rape-and-murder case after a 10-day trial before a fast-track court has raised apprehensions about a possible rash of such sentences in the prevailing climate for enhanced punishment. One of the human rights concerns is whether, in the public outrage following the Nirbhaya case, the judiciary would be under pressure to award death routinely in all -and-murder cases, departing from the doctrine of the rarest of rare cases.

Given the dangers involved in introducing death for rape, the Verma committee would do well to consider the alternative proposed by the apex court, however tacitly, in rape-and-murder cases over the last five years. Evolved through judicial activism, it is a life sentence that is exempt from the usual stipulation of being reviewed after 14 years.

With the 2008 verdict in the Swami Shraddhananda case, the Supreme Court began the trend of awarding life sentence subject to the condition that the convict would either stay behind bars till his natural death or not be released for hitherto unheard-of terms extending up to 35 years.

This innovation of a “whole life” or “long life” sentence is contrary to the Criminal Procedure Code (CrPC), under which the executive has the discretion to remit a sentence in the course of the incarceration. The only restriction imposed by CrPC on this executive discretion is that for a heinous offence punishable with death, the convict cannot be released before 14 years.

It is on account of this restriction introduced in 1978 in the form of section 433A CrPC that life sentence in murder cases or rape-and-murder cases has often come to mean no more than 14 years. The departed from this norm for the first time ever in the Shraddhanand case, which was as egregious as Nirbhaya’s. It felt that Shraddhanand deserved neither the death penalty (as his crime, in its opinion, fell short of the rarest-of-rare category) nor the life sentence (which was found to be “grossly inadequate” as it was for all practical purposes no more than 14 years).

The spate of cases that followed the Shraddhanand precedent constitute a recurring signal from the judiciary that Parliament should amend the law providing a statutory backing to the discretion assumed by judges to put the life sentence beyond the ambit of section 433A CrPC. Such a legal provision may ensure greater objectivity in determining the cases in which the life convict would enjoy the existing safeguard of section 433A and those in which he would not be released after 14 years. It would also reduce the pressure on judges to resort to the extreme option of death penalty.

The disconnect between the statute and judicial practice in this regard cannot be ignored as judges at all levels – trial court, high court and apex court – have been awarding “whole life” or “long life” sentences, without being able to trace them to any legal provision. From the viewpoint of penology (the study of punishments), it is undesirable to impose such stringent sentences without a codification of the principles involved.

 

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