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Posts tagged ‘life sentence’

Rape & WE THE PEOPLE!


This programme called WE THE PEOPLE in NDTV 24/7 anchored by Barkha Dutt on 20/01/2013, was relating to the issue of Rape. I watched the programme and there were two retired Justices, and eminent persons including Ms. Flavia Agnes in the panel, which discussed the issue of RAPE in the Indian context.

My impression was that they came very close to the crux of the Legislative issue but somehow prevaricated tangentially leaving the core unattended to.

The crux according to me is two fold: firstly, the definition of the offence, which is essential for conviction. Secondly, the sentence part which would prescribe the maximum sentence prescribed for that offence.

The law of the land starts with the various legislations passed by the Legislative bodies and ratified by the head of the State or the Nation, as the case might be, to be called as ACTS and the rules/regulations made thereunder. Subsequently, if a matter is escalated to the courts, the judgements of the High Courts would be binding on those States to which the jurisdiction of the court extends, if there is no case law on the same topic if not decided by the Supreme Court of India.

The courts could however strike down the provisions if they are in derogation of the Fundamental Rights and other rights enshrined in the Constitution of India. This is the scheme, in a gist.

So, the definition of RAPE needs to be amended suitably. There could be discussions on end on this topic with no conclusion on it- so select committees and interested legislators could thrash it out. My ‘idea’ is that if HOMICIDE could be classified as MURDER, CULPABLE HOMICIDE and DEATH CAUSED THROUGH RECKLESSNESS& NEGLIGENCE, sure RAPE could also be classified into different categories and the corresponding sentences be prescribed through suitable amendments to the Indian Penal Code.

The real issue is how to ensure that the judges and justices throughout this vast country would be compelled by LAW to impose uniform penalty?

There is this Section 303 of the Indian Penal Code, which prescribes that if a person had been sentenced to life imprisonment and during that period commits MURDER, he shall be visited with DEATH PENALTY! There was NO DISCRETION LEFT FOR THE JUDGES. This section was struck down by the Supreme Court of India, on the grounds that the sentence was offensive of the provisions of Article 14 and 21 of the Constitution of India. So essentially, this Section 303 of the IPC, remains in the statute as a dead letter. No amendment has been made by the Legislatures or the Parliament to ratify the striking down of the provisions.

The point i am labouring to make is that, when a statute- in this case the IPC- could contain a provision prescribing a FIXED PENALTY for a particular crime, it is statutorily possible to bring an amendment to the IPC by imposing a fixed penalty for any of the three classes of rape, which i suggest to classify RAPE into.

This taking away the discretionary power of the judges would enormously help codifying a law which would be stringent and also provide the necessary deterrence!

Quintessentially, the Judges have only to option of weighing evidence and convicting the person, but the statute should be strengthened so that there are no whims of the judges coming into play when the offence has been established. Otherwise, like in a recent case, merely on the grounds that a person was inebriated and is young, judges may be swayed without any consideration of RETRIBUTIVE JUSTICE and award disproportionate sentences. I am aware that it would be the prerogative of the Judiciary to arrive at sentences in the normal course, but if the ACT prescribes sentences which will also not fall foul of the constitution, the vagaries besetting sentences could be avoided.

WE THE PEOPLE, did not broach this point adequately, even though the person from NLSUI came very close to it.

Analyzing a problem is one thing but attempting to find a solution is another thing. I think, the second is preferable, as otherwise there is every chance of the whole matter petering into vain sensation!.

 

 

 

35 Years- MAXIMUM SENTENCE- SCI!


Logic is one of the most important tools used in REASONING. But by no means am i implying, that LOGIC supervenes all the other tools, but when the line of reasoning is ILLOGICAL, my dumb mind is unable to grasp the line of reasoning. It is not the first time that i am confronted by this debility and i am sure that this issue would not be the last one to expose my inability!

The Supreme Court of  India, as per the News item appearing in THE TIMES OF INDIA dated 28/08/2009, has stated that the supreme court of India has sentenced a person by name Ghosh to life and has prescribed a minimum period of 35 years!!

As per the existing scheme of things as per the INDIAN PENAL CODE 1860, there are two sections (to the best of my knowledge) viz. s.392 (highway robbery between sunset and sunrise) and 457 (lurking house trespass with an intention to thieve) which prescribe a sentence of 14 years as the outer limit. In the hierarchy of sentences prescribed by the code, the next higher sentence would be LIFE IMPRISONMENT.

There is Section 57 of the IPC, which states that for the purposes of calculations of fractions of terms of punishment, for Life imprisonment the term shall be treated as twenty years. As mentioned in the section itself, there can be no interpretation that the term for life imprisonment HAS to be limited to  20 years.

Section 433A of the Criminal Procedure Code, 1973 clearly states that if  the conviction was for a crime punishable with Death or his punishment has been commuted to life from death, then that person shall not be released unless he had served at least 14 years of imprisonment.

Now what is this 14 years?

Herein lies the crunch. Each state government makes its own rules of Remission and Parole. The method of computation is given in those rules. However most of those rules agree that except for those category of prisoners who are convicted of heinous crimes, remission could be granted at the rate of one day per day of sentence actually served. Therefore minus the parole days, if the person had spent 14 years, the term of sentence undergone would be computed as 28 years!!

I am astonished that a person who has to undergo 35 years,  in effect  undergoes only 17 years and 6 months & thereafter he would be eligible to walk out, if his sentence were to be commuted.

In any case i am still to understand how the Supreme Court of India could put a floor limit of 35 years for the life sentence to be served by the convict Mr.Ghosh. The logic i use to question this sentence is, when the statute had given the privilege to the appropriate Government to commute the sentence, thru a statute (CrPC), from where do their Lordships derive the power to stop the appropriate government from using that discretionary power from the 14th year till the 35th year of the convict’s incarceration?

My logic fails!!

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