Section 302: Matter of Death and Life on the Sentences Preference

Abstract

My idea in this paper is that Article 111 of the Constitution is a strong reflection of the doctrine of binding precedent and it obliges the judicial organ to maintain a legal certainty. My submission is that a wide discretionary power entrusted to the judges under section 302 of the Penal Code leaves room for inconsistent and individual centric judgements which consequently is hindering the judicial organ to maintain a legal certainty. The focus then largely revolves surrounding the exercise of the discretionary power by the judges in the present sentencing system. First, whether there is any inconsistency in the decision of the HC benches while using their discretion under section 302 of PC. Second, whether bench system encourages inconsistency in the decision of the HCD and prevents the HCD to work as a whole. If so, can one HC bench can per incuriam the decision of another HC bench? Third, whether HCD has provided any specific direction for sentencing that has developed into a precedent. Keeping these questions in mind, this article makes an attempt to examine the application of Article 111 and 107 of the Constitution to maintain a legal certainty while sentencing.

Keywords: The Doctrine of Precedent, Death Reference (DR) Cases, Per Incuriam, Legal Certainty