oppn parties Judges Should Not Prescribe Radical Punishment

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Judges Should Not Prescribe Radical Punishment

By Sunil Garodia

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Writes for a number of publications.
Is it ethical for judges to make radical observations during the course of delivering a judgment? Some judges have a habit of making extreme comments that have no relation to laws in India and should not be spoken by someone who is seen as interpreter of laws and upholder of justice. Judges in the Madras high court have acquired notoriety in this regard. In the past, disregarding various Supreme Court judgments and observations that had clearly said that there can be no leniency shown to rapists, the Madras high court had allowed deliberations for compromise between the rapist and the family of the minor who had been raped. In doing so, the high court had sought to indicate that if a compromise is reached, the original crime of rape was to be condoned which goes against all tenets of law. In a separate observation in another judgment, it had also called for potency tests before marriage, saying that it will reduce incidence of divorce. The judge perhaps thought that a majority of divorces happened because the male spouse was impotent, which is untrue.

Now, the Madras high court has once again controversially suggested castration as the punishment for those who rape children. While we had seen placards demanding the same punishment when there were protests against the Nirbhaya rape case in Delhi, a judge, when sitting on the high bench, is not supposed to suggest such radical punishment. For, the purpose of the criminal law and punishment meted out under it is to act as a deterrent and reform the criminal through imprisonment if the crime is proved. Our laws, except perhaps the death penalty, are not retributive in nature. We do not cut the hands of robbers and thieves. Nor do we gouge out the eyes of peeping toms. Even the death penalty is supposed to be given in the rarest of the rare cases, where the judge is of the opinion that the crime shows the irredeemable sick mind of the perpetrator. Still, there is a huge body of opinion that wants capital punishment to be scrapped.

Justice N Kirubakaran, while himself admitting that his suggestion was barbaric and retrograde, suggested that the government should seriously consider having ‘barbaric’ punishment as deterrence for barbaric crimes. He forgot that it is a proven fact that severity of punishment has not acted as a deterrent. Gruesome and multiple murders continue to happen even though the criminal knows that he might be hanged for his crime. The psychology of the criminal and his mindset at the time of committing the crime often blanks out the thought of punishment from his mind. Although a cliché, it needs repeating that every criminal thinks he is too smart to be caught. Whatever his personal opinion, the judge committed an impropriety by suggesting such radical punishment while hearing a case. In doing so, he lowered the esteem of the high office he holds.