TMI Blog1978 (8) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... ion although the scenario of events is judicially disquieting. Why ? Because in our adversary system and 'umpire' tradition of the judicial process the weaker accused, sometimes anathematized as naxalite or by other unpopular appellation, is theoretically equal before the law but in real-life terms, thanks to practical handicaps, the scales of justice (not the judges) tend to incline against him. Law is what law does, not what law speaks. The Judge, tradition- bound plays an umpire's passive role in an adversary system. He holds on the basis of proof proffered by the prosecution, tested by the conventional process of cross-examination and the standard yardsticks of credibility. He has no activist alternative of further probe, for he has no independent assistance in that behalf. The technical power to summon court witness or put questions hardly helps in practice. And when the defence is financially, socially, politically or otherwise too weak to explore the investigatory veracity or explode the testimonial value of the prosecution and its witnesses or to undertake its own garnering of effective materials to establish innocence, the equal scales of justice operate queerl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of the appropriate punishment The conspectus of facts relevant to this branch may be recapitulated. (i) all the seven sentences are around seventeen; (ii) all of them are self-less ideologues with revolutionary ardour impressed militantly with the Preamble declaration of the Constitution 'to secure economic justice'; (iii) none of them is a dacoit in the highway robbery sense but everyone is in the criminal connotation- more dangerous for the proprietariat because they violently and openly challenge the basis of 1 those capitalist values which find expression in the 118-year-old Penal Code. It is a matter for Parliamentary action whether the Code should shift its penal emphasis to the social justice concerns of Part III and IV more than Lord Macaulay meant.) The primary considerations which persuaded the trial Judge to 11: impose a lenient term of 30 months in jail have been succinctly stated: (i) All the accused persons are very young, accused No. 5 being only 17 years of age. (ii) The behaviour of the accused persons in the Court throughout the trial was exemplary. (iii) The accused persons are really anxious to relieve the suffering of the poor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for to give testimony for truth was not the essence of his mission as Hessianic King. He was born to give testimony for Justice, the justice to be realised in the Kingdom' of God, and for this justice he died on the cross. Thus behind the question of Pilate 'What is truth' ? arises, out of the blood of Christ, another still more important question, the eternal question of man kind. What is Justice ? No other question has been discussed so passionately; no other question has caused so much precious blood and so many bitter tears to be shed; no other question has been the object of so much intensive thinking by the most illustrious from Plato to Kant; and yet, this question is today as unanswered as it ever was. It seems that it is one of those questions to which the resigned wisdom applies that man cannot find a definitive answer, but can only try improve the question . It fairly follows that Christian justice was not Roman justice, and social justice hardly squares with 'Haves' justice. To enhance the sentence to seven years R.I. by merely saying the 'ends of justice' demand it is to continue the question, as Prof. Kelsen put it, not to meet it. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en evidence against them have been hurriedly rewarded officially by the Chief Minister. The writ of the rule of law, if it runs within the jail system, shall not permit inhumanity. On appropriate motion made to this Court showing violation of the residual rights of a prisoner by unnecessary cruelty and unreasonable impositions and denials and deprivations within the prison-setting, the judicial process will call to order the prison authorities and make them respect the fundamental rights of the appellants. Prisoners are not non-persons. The American Court has taken the view and we agree with it even on the basis of our Constitution: the responsible prison authorities .. have abandoned elemental concepts of decency by permitting conditions to prevail of a shocking and debased nature, then the courts must intervene and intervene promptly to restore the primal rules of a civilized community in accord with the mandate of the Constitution of the United States. (257 F. Supp. 674 (S. D. Cal. 1966) Justice Douglas, speaking of American prisons in Sweeney v. Wood all, (314 US. 86 (1952)) observed: (Petitioner) offered to prove that he was stripped to his waist and forced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perintendent to do so, in the expansive powers under Sec. 482 Cr. P. Code. Having regard to these circumstances, we direct that these prisoners be oriented on a humane course, be treated as 'B' class prisoners, allowed opportunities of improving themselves and nourishing their minds with wholesome reading so that on return thence they turn a new leaf retaining the flavour of their self-sacrificing spirit to change 'the sorry scheme of things entire' but without blood-letting barbarities and boomeranging terrorism. Recreational opportunities and other factors which will improve, rather than injure must be brought into play when dealing with these prisoners. These observations in the direction of prison reforms are relevant for the whole jail system, still of Raj vintage, because conditions there leave much to be desired in the matter of humanism and correctionalism. We are aware that there is a hopeful awakening on the part of the Government at the Central and State levels towards hospitalisation effect as against 'zoological' impact. If our observations did catalyse this trend it were good. After all, the Constitutional culture of our country imposes this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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