As I write this first weekly piece for the year just begun, my thoughts return to the fifty or so I wrote during the year just ended. Unless my memory is playing tricks with me, I do not recall a single one that expressed joy or pride at some happy event calling for a genuine celebration. The entire year was a continuous exposure of the frolics, follies and frauds committed by our rulers. The hope of a decent living for more than half our nation has faded into final disappearance, and the darkness of poverty and despair engulfs the hearts and minds of the aam admi.

The last few days of the year came as a horrific and tragic climax — an innocent young girl with decent education and reasonable chance of a self-earned upward economic status, met a horrendous, violent and painful death at the hands of six sexual perverts, who not only violated her womanhood and chastity, but tore her body apart, extinguishing the lamp of her life. I feel miserable devoting the first piece of the year to this horrific episode that has shamed our nation and has become part of the life experience of our people. The only redeeming aspect is the love and sympathy that has poured out in plenty from every decent heart for our dear departed Nirbhaya. Every decent human being has suffered her anguish and pain, which has rightly been accompanied by acute indignation against the non-humans in human form, who perpetrated this ghastly crime.

Extreme anger in turn calls for revenge, and then we inevitably must turn to legal processes. Public anger has expressed dissatisfaction with our legal system and is vociferously calling for drastic changes. It is about this that I am writing — and it pretty much behoves an old lawyer and teacher of law to control his anger, though it is as intense as anybody else’s.

We must, however, realise that the problem is too intricate for a simple and instant solution. The criminals involved in these offences are by no means human. What they have done even wild beasts do not do. Law and law enforcement cannot hope to change their character or control the actions of such inhuman creatures.

We boast that “ours is a government of laws and not of men”. But this very idea is misleading and it is wholly false that men make no difference in the administration of laws. There are certain fundamentals — rulers and citizens ought to be bound by general laws with equal application. Laws should be easily understandable and intelligible, so that at least well-intentioned people must know what not to do and predict with reasonable certainty the legal consequences of their actions. But the field of sentencing for crimes is almost an unmanageable field. Principles of sentencing do not form a significant part of any law school curriculum.

Laws prescribe and permit a wide range of punishments, but there are no intelligible principles for selecting the right one for a specific crime on hand at the end of a long trial. Society must recognise that there is compelling evidence across the world that widely unequal sentences are imposed every day in great numbers for crimes and criminals not easily distinguishable from one another.

If the mood and temper of the general populace begins to be reflected in every judicial sentence the pattern produced will be a crazy patchwork quilt. It is well known that judges compensate for their own inadequacies by the practice of imposing severe sentences particularly for crimes or criminals they feel disposed to stamp out from society.

The public as well as the judges must understand that different judges will mete out widely divergent sentences in which the divergences are explained by variations of judicial temperament and not by material differences in the accused or their crimes. Sentencing disparities however apparently irrational, happen all over the world and cannot be avoided through any rules, however detailed.

There is today, even in responsible newspapers and among highly educated citizens, including a respected leader in Parliament, a demand for the sentence of death for rapists. This demand must be forcefully rejected by a polite reminder that the Constitution prohibits infliction of higher sentences than those prescribed by law at the date of offence. So far as the future is concerned, I do not believe that rape simpliciter should carry a ‘sentence of death’, something I will discuss later in this article.

Here is a passage from Bentham whose utilitarian philosophy is the basis of the entire Indian Penal Code produced by the great Macaulay in the second half of the 19th century. I cannot do better than reproduce the passage.

“CAPITAL PUNISHMENTS: The more attention one gives to the punishment of death, the more he will be inclined to adopt the opinion of Beccaria, — that it ought to be disused. This subject is so ably discussed in his book, that to treat it after him is work that may well be dispensed with. Those who wish to see at a single glance, all that can be said for and against it, have only to turn back to the chapter containing the table of qualities desirable in a punishment.

“Whence originated the prodigal fury with which the punishment of death has been inflicted? It is the effect of resentment which at first inclines to the greatest rigour, and of an imbecility of soul, which finds in the rapid destruction of convicts the great advantage of having no further occasion to concern one’s self about them.”

“Death! Always Death! It requires neither the mediations of genius nor resistance to the passions. It is only to yield one’s self to them, and we are carried at once to that fatal term.”

“It is said that death is necessary to take from an assassin the power of reiterating his offence? For the same reason, then, we ought to destroy the frantic and the mad, from whom society has everything to fear. If we can guard against these, why not against these assassins? It is said death is the only punishment which can outweigh certain temptations to commit homicide? These temptations can only arise from hostility or cupidity, and do not these passions, from their very nature, dread humiliation, want and captivity more than death?

“I should astonish the reader were I to expose to him the Penal Code of a nation celebrated for its humanity and its enlightenment. We should expect to find in it the most exact proportion between offences and punishments, but in fact,that proportion is continually outraged or forgotten and the punishment of death is lavished upon the more trifling offences. The mildness of the national character is in contradiction to the laws and as might be expected, it is that which triumphs. The laws are eluded, pardons are multiplied, offences are overlooked, testimony is excluded, and juries, often fall into excess of indulgence. Thence, results are a system of Penal Law, incoherent, contradictory, uniting violence to weakness, dependent on the humour of a judge, varying from circuit to circuit, sometimes sanguinary, sometimes null.”

To this passage I might add my own points. Judges are human and their judgements are fallible. Many judicial convictions have been found hopelessly wrong as a result of evidence of innocence originally suppressed or later discovered. The poor convicts still alive have been pardoned and generously compensated. The sentence of death is irrevocable. Besides, prescribing it as ‘or even permitting it to be imposed, will only ensure that the rapist will also murder his victim, so that the main witness of his crime is got rid of.

In my next piece, I will discuss other issues related to the subject.

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