This part 2 follows Part 1.
While hearing of a Criminal Appeal was going on in Supreme Court, the presiding judge suddenly said,
"In Criminal Law, we keep swinging like a pendulum. Sometimes we go to this extreme end, and sometime we go to exactly opposite opposite end. We just don't know what we are doing."
I was sitting court. The words touched some chords in my heart instantly. I remember the presiding Judge.
He was Justice B. N. Srikrishna. One of the most learned judges of India. He knew almost all languages of India, including, fluent Sanskrit. He was a scholar. Now a retired Judge. The Judge may have today forgotten that he may have ever said such a thing. But I do remember. At least, I still have vivid impression of Judge saying this.
I can cite cases after cases to show that how stand of Supreme Court differs from case to case and as per philosophy of individual judges of Supreme Court in criminal law. But without going into specific, I will try to explain why I am unable to understand these different trends of Supreme Court.
1) Some Judges believe that if they will give deterrent punishments, the crime will reduce because criminals will become frightened.
I think they need to consider two things which one of my criminal client told me years ago.
He said, "In this country, punishment is same, whether you kill an ordinary man or whether you kill a Prime Minister".
Perhaps, what he meant to say was,"Science of Penology" is not well ploughed by Supreme Court.
Secondly, he said, in every jails, every jailor fears him. Whenever a new jailor comes in Jail, he crosses his path and says Hi.
Once a Jailor replied him to behave properly in his jail, otherwise he will break his all bones of his ass.
The criminal replied, "Even if you break all my bones of my ass, it will not make any news. But if I will give a hard slap on your face, it will become a news and it will spread in all jails in a weak. I will become Don-hero overnight."
The point is, no kind of high punishments can deter criminals from committing crime.
In India is now there is too much population.
Poor live in a hell like situation. The idea of going to jail or being hanged to death do not deter them.
They have nothing to lose in this world except their life. Life itself is a hell for poor, who suddenly in heat of hunger, commit crimes over trivial issues.
2) All judges are bound to decide cases on basis of evidence produced in case. Evidence is in mess in most cases.
The reasons:
2.1. It is the Supreme Court who have held that Public Prosecutors cannot have any security of job. His masters, employers can change them anytime. Nothing wrong if govt changes all its prosecutors after an election.
Well, now all public prosecutors are at mercy of politicians. They are not free to prosecute criminal cases freely and without interference of political bosses.
2.2 It is again the Supreme Court which has held that there cannot be stay on transfer of a police officers. No one has right to serve at particular place or on a case.
Now each police officer has to serve their political bosses also. If they carry out investigation as per rules and if they collect evidence, their political bosses will transfer them at midnight.
Remember how Khemka in Haryana was transferred in the middle of night? Did any court protect him from humiliation?
2.3 Public also have reason for not coming forward to assist police and to be witness in any case. There are no witness protections laws.
In one PIL, Govt took stand in SC, that it cannot financially afford to give witness protections. What a shame!
Well, whatever evidence now comes in court, is in mess.
The criminal laws pronounced by Supreme Court in such environment, are bound to be in mess.
Part 2 in this series complete.
Haresh Raichura