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The idea of Justice is not litigant centric


I will begin with the words of Sir Lionel Fox, an acclaimed Penologist of England. He quotes the example of an 18th Century Judge who passed sentence of death saying, “You are to be hanged not because you have stolen a sheep, but in order that others may not steal.” He continued, “Executions are intended to draw spectators, and if they don’t, Executions do not serve their purposes.”

It is said that if by punishing one offender, there is hope of deterring other prospective offender. Also, the punishment must also bring in some kind of shame to the delinquent so as to make deterrence demonstrative. Offenders are to suffer by punishment not because they were malignant or mischievous, but because others may not behave malignant and mischievous.

There seems to be an instinctive feeling in most of men that a person who has done an injury should be punished for it. However, in the light of above settings, the valid reason for punishing delinquency is not to avenge injury caused, but to prevent future injury to someone else. And, therefore, if it is true that, “if one is to be hanged so that others may not steal”, then I go to the Court of law not only to get justice for self but also for the good of the society.

However, the deterrence is zero if there is no certainty to the punishment. The gravitation of sin to sorrow should be as certain and analogous as that of earth to the sun. Yet those mighty Public functionaries have begin to argue that the consequence of disregarding the law will not be more than the strictures of the Court.

I will therefore insist that, whoever, when files a petition of complaint or appeal before any judicial or before any quasi judicial forum, alleging delinquency and seeking punishment for the same, then, the above proposition of punishment must be made demonstrative in their so petition or appeal.

Punishment is thus a method of forcing good behaviour. The business of Justice is to reduce crime & prevent mischief in the society. So evident is the truth of this simple great idea, that if realized by presiding judges, will bring good deal of respect for law in the society.

Thanks for sparing your time.

Sandeep Jalan
(Advocate)
Mumbai.

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Sandeep Jalan

Advocate

Law Referencer: https://www.litigationplatform.com/


Thank you.
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Comments

Unknown said…
Sandeep I need to understand more...
March 28, 2010 at 11:49 AM
Praful Vora said…
The key sentence to your presentation is: "... The punishment is imposed by authority which the delinquent respect and to which he pays allegiance and ...".

You must accept that in today's society, there are many with criminal intent and activity, who do NOT recognize or accept, the authority of the judiciary.

An extreme case would be the 'terrorists' within and without the nation, and more commonly the politico-criminals who know they can manipulate the judicial system, and regularly do so.

What then is the use of the victim crying for justice in the Courts with the altruistic hope of preventing further criminal behavior of other possible perpetrators? I feel that our India Judicial System is flawed because of this situation. The fault lies with the bad governance, especially when the State itself ignores or circumvents the orders of the Judiciary.

The logic of your presentation therefore FAILS.

By the way, my opinion is that the primary job of the Legislators is to promote and pass such Acts and Ordinances to enable: the Citizens to prosper, and for general social good. If this is done intelligently, the need for flawed laws and maximum control diminishes. Its only subsequent to this that the 'no broken window' policy can be implemented and only then your presentation can hope to be effective.
March 29, 2010 at 6:08 AM
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