The US has the world’s largest population behind bars and leads in life sentences as well, at a rate of 50 people per 100,000 residents imprisoned for life. Should India follow these regressive precedents? A recent Supreme Court decision not only goes against federalism but also revives retribution as the sole aim of punishment. Instead of hating the sin, the SC now favours hating the sinner as it has created a new sentence of life imprisonment for life without remission.
Retribution is fast emerging as the only goal of Indian penology. We continue to believe that harsher punishments do annul the crime and restore the social balance disturbed by the convict. This dated view makes a case for the convict to receive as much pain as was inflicted by him on his victim. If the case does not fall within the ‘rarest of rare’, a convict cannot be sent to the gallows, but after the latest decision, he can still be awarded a life term for entire life without remission. The court has thus denied the right of remission to a person who has been given the lesser sentence of life imprisonment though the convict who has been awarded the highest penalty of death may get the benefit of remission.
Life imprisonment in its simple form is a kind of punitive reaction that damages the life of a convict. His personal identity is replaced by a number. This leads to social debasement in his own eyes and unlike a convict put to death, he dies every day. Just because Tamil Nadu wanted to remit the life imprisonment of Rajiv Gandhi’s assassins, the SC in a regressive decision has laid down that even this hope of remission, after 14 years, should be denied to them.
The judgment is flawed as the court cannot go beyond the Constitution. Similarly, by holding that the Centre’s opinion shall have primacy and ‘consultation with central government’ in granting remission means ‘concurrence’ impinges on the spirit of federalism. Just because a case was investigated by the CBI it does not mean that the Centre would have overriding powers in the grant of remission after the lifer has served 14 years or more in prison. This innovation of creating a life term without remission is an act of judicial adventurism.
Neither are the harsher sentences necessarily a deterrent nor does the release of a life convict put society in greater peril. Punishment should be a means to a certain end, not an end in itself. Life imprisonment has been effectively abolished in a number of countries and India should follow this progressive trend.
(Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad. The views expressed are personal.)