Justice is a multifaceted thing

Winston churchill once remarked, “The mood and temper of the public with respect to the treatment of crime and criminals is one of the unfailing tests of the civilisation of any country.

Winston churchill once remarked, “The mood and temper of the public with respect to the treatment of crime and criminals is one of the unfailing tests of the civilisation of any country. A calm dispassionate recognition of the rights of the accused and even of the convicted criminal against the state; a constant heart-searching by all charged with the duty of punishment; a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment; tireless efforts towards the discovery of curative and regenerative processes; unfailing faith that there is a treasure, if you can only find it; these are the symbols which in the treatment of crime and criminals mark and measure the stored strength of a nation and are sign and proof of the living virtue in it.”

Writing about his time spent in prisons at various moments of his life, Jawaharlal Nehru lamented, “Not the least effort is made to consider the prisoner as an individual, a human being…” He bemoaned the utter apathy of the state apparatus in this regard. The ultimate justification of any punishment is not merely that it is a deterrent, but that it is an emphatic denunciation by the community of a crime. Sentencing although not a science requires an objective approach — reformation of the offender, protection of society, deterrence, expression of society’s disapproval of the crime and so on, are certain universally accepted objectives of a sentence. The sentence must therefore be carried with a sense of duty and of justice in a manner that best safeguards the interests of the society and the convict. The 48th Law Commission Report on ‘Some Questions under the Code of Criminal Procedure, Bill 1970’ made some very pertinent points on the necessity of the prosecution and the accused being heard at the time of sentencing. The Commission observed that both the prosecution and defence should be permitted to lead evidence on the question of sentence. Although these recommendations of the Commission were unfortunately never made part of the law, the courts have relied on these basic objectives of reformation, restoration and deterrence while sentencing.

It is important that in securing the rights of the convict, the rights of the victims (and or relatives) aren’t ignored. Several countries contemplate the representation of the victim at the time of the time of sentencing; after all, the crime committed by the convict is seen as one against society as a whole. The only compensation that the victim can get, where restoration is not possible, is an assurance that the convict is punished. When that punishment is missing either because of an error or because of extraneous grounds, it would naturally be seen as a failure on the part of the system. An effective sentence can be defeated either because of an inappropriate sentence guided by misplaced sympathy, deference to public feelings or an inappropriate exercise of the power of pardon. If sentencing was carried out with certain objectives, it follows that the abridgement of that sentence should be only on the attainment of the objective for which the sentence was passed in the first place.

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A pardon ought to be granted only when the sentence has fulfilled its purpose and ought not to be granted when granting such pardon would defeat the purpose of the sentence. It is a settled principle of law that a power conferred on an authority must be exercised in furtherance of the objectives for which the power is granted. Unrepentant convicts ought not to be returned to the folds of society, just as penitent convicts ought not to be mercilessly allowed to rot in cells when society can benefit from their services.

Although the Law Commission’s recommendation that consultation with the court (on the question of pardon) should be made mandatory to avoid any ‘appearance of arbitrary action’ and to remove suspicion that ‘political considerations’ were adopted; the Supreme Court filled in the lacuna by holding that where pardon is granted on extraneous and wholly irrelevant considerations it would be set aside. Such lapses must be seen as the failure of the people who are in the system and not the system itself.

Two instances from the freedom struggle reflect the need to adhere to the basic objectives of sentencing. General Dyer ordered the killing of thousands and without any compunction reported the same to his colleagues triumphantly. And, contrastingly, as events began to get ahead of themselves, Chandrasekhar Azad, confessed to Jawaharlal Nehru that ‘terrorism’ would not solve British India’s problem. Law is good, but justice is better.

The writer is a Delhi-based advocate

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