By Nipun Kalra
INTRODUCTION
Judgement is not upon all occasions required, but discretion always is.
-Philip Stanhope
Discretion is said to be the right or the power to make official decisions using reasoning and accurate judgment of the circumstances while choosing from the available alternatives. The exercise of this power is considered to be omnipotent when vested with judges in respect of judicial proceedings. The penal law first prescribes the maximum punishment to be awarded in respect of an offence and then leaves it to the discretion of the courts to pass suitable sentence, however the same has to be within the prescribed limit. The policy of criminal law is to fix a maximum penalty regardless of the nature of the crime, leaving a wide discretion in the matter of the punishment to the judge.
The problem with the existing system as provided for in the Criminal Procedure Code is the variation in the result obtained from the same or similar set of facts. The judges are allowed to reach the decision after hearing the parties. However, the factors which should be considered while determining the decision and those which should be avoided, are not specified anywhere. This is where the judge is expected to use his or her personal discretionary capacity to fix the punishment. This discretion eventually gets abused in a large number of cases due to irrelevant consideration and application of personal prejudices.
Therefore, through this article, the author explores the concept of discretion by using the death penalty as an example. The courts in India have repeatedly deliberated and expressed views in relation to the death penalty as a punishment. However, the same has been met with unguided discretionary power, which is further shown with the help of case laws and various reports. This is the primary reason for advocating a sentencing policy or guidelines.
Sentencing to ‘death’
Under Section 303 of the Indian Penal Code, death is prescribed as the only punishment for murder by a person serving a life sentence, is the only provision in the Indian Penal Code to do so, and even this lone section has been struck down by the Hon’ble Supreme Court as it was found violative of the constitutional provisions. There are other sections where death has been prescribed as an alternative punishment for the offence. The discretion given in these cases to the courts is of utmost importance and is extremely difficult to exercise due to the irrevocable character of the death penalty.
Section 354(3) of the Code of Criminal Procedure provides that the Court must give the reasons for the sentence awarded, and for a death sentence, “special reasons” must be given for such sentence being awarded.
Constitutional Test
The first notable challenge to the death penalty on grounds of constitutionality came up in the case of Jagmohan Singh v State of Uttar Pradesh. In this case, one of the arguments was that Section 302 (includes ‘death’ as punishment) of the Indian Penal Code granted uncontrolled discretion to the judiciary and hence rendered the provision unconstitutional. However, the same argument was rejected by the Constitutional Bench of the Court. It was held that the legislature had granted ‘wide discretion’ to the judiciary, recognizing that it is impossible to lay down comprehensive guidelines for the exercise of such discretion and that judges had been using this discretion since the inception of IPC on the basis of “well-recognized principles”.
The court also referred to certain judgements which mentioned that this judicial discretion was not arbitrary in nature as each case was unique and an argument based on discrimination could not be accepted. Another reason that the court gave was the confidence to be reposed in the availability of appellate review. It noted that if a subordinate court made an error, then the higher could always rectify the same error, in the appeal process.
The next challenge to this ‘discretion’ came up in the case of Rajendra Prasad v. State of Uttar Pradesh. The court, in this case, held that in the absence of principles, the capital sentencing discretion of courts would be unconstitutional. The court also challenged the use of the phrase “well-recognized principles” in the Jagmohan case by questioning the vagueness relating to it as the judges would differ on what these principles are. It was held that it would be ‘dangerous’ to use those words unless a specific meaning was assigned to them. However, this judgment could not overrule the Jagmohan judgment because it was delivered by a three-judge bench and Jagmohan was a constitutional bench.
Between these 2 judgments, a major development took place. A new Code of Criminal Procedure (1973) was introduced by replacing the 1898 Code. While the 1898 Code considered the death penalty as the rule and life imprisonment as the exception, the 1973 Code considered life imprisonment as the rule and death penalty as an exception. Hence, now the court required to provide ‘special reasons’ to justify the death sentence. However, the ‘special reasons’ were not defined in any manner and the judges had wide discretion in deciding the meaning of this phrase. This was the basis of challenge in Rajendra case.
Bachan Singh case: Rarest of the rare?
Finally, in the case of Bachan Singh v State of Punjab, the current law of the land was laid down. The constitutionality of the death penalty was upheld in this case. The court had to respond to the opinion given in the Rajendra Prasad case that there was no defined meaning of “well-recognized principles”. It held that the “well-recognized principles” would fall within the ‘special reasons’ for the purposes of Section 354(3) of the Code of Criminal Procedure.
Regarding the discretion factor in the sentencing, the court said that the standardising of the discretion policy is in the hands of the legislature and it is up to the legislature to come up with guidelines on the same. Therefore, there was no certainty in this aspect. Although the court came up with the ‘rarest of the rare’ doctrine (death penalty to be given in most aggravated circumstances), there was no clarity on the discretion factor.
It is important to note that in this case, Justice Bhagwati gave a dissenting opinion. According to his opinion, if a rule or a norm is not within the contemplation of the legislature, then it has to follow the general practice. The general practice is that the Court tests the constitutionality of an action based on whether the legislature lays down any guidelines for the same. If not, then the same action is unconstitutional. Following the same logic, Section 302 IPC, does not give any discerning policy for the sentencing discretion and therefore, should be unconstitutional. Moreover, the term ‘special reasons’ is so open-ended that there are no objective criteria and it is completely left to the subjective assessment given by judges.
Machhi Singh Dilemma
The “rarest of the rare” formula regarding the death sentence came up for scrutiny in this case. It was observed that when the collective conscience of the society would expect that capital punishment has to be awarded irrespective of personal opinions, then the punishment is awarded. The court gave factors like crime’s vastness and the victim’s personality that have to be seen while awarding a sentence.
This case enlarged the scope of discretion in choosing as to when the death sentence has to be given by giving five broad categories. However, still, there was a lack of consistency observed in later cases and the reality is that the later decisions neither apply the rarest of the rare doctrine nor do they exhaustively follow the Machhi Singh categories.
Contradictions
In the case of Rajvi v State of Rajasthan, the apex court observed that what has to be seen is the nature of the crime committed and not the criminal in order to determine the sentence. This principle of the judgment, however, directly contradicts with the one that was laid down in the Bachan Singh case that the circumstances of the offender have to be taken into account while imposing a death sentence.
The SC later on repeatedly used this doctrine to impose the death penalty by limiting the focus only on the circumstances of the case and not that of the offender. This folly was later on observed by the court in the Bariyar case where it observed that the Rajvi case was being repeatedly used and relied on as a precedent for such category of heinous crimes. Therefore, later on, the Rajvi case was held to be per incuriam.
The circumstances that need to be taken into account and the circumstances which do not need to be taken into account, as well as those which might be sufficient in the exercise of discretion by the judges in order to arrive at a sentence, cannot be exhaustively enumerated. There are cases which have listed out the guidelines as to in which circumstances the culpability of the criminal has to be decided which included listing out the mitigating and aggravating circumstances. There are instances even, where the application of section 354(3) and 235 of CrPC has been subject to constitutional challenges. Moreover, in the recent case of Shabnam v State of UP, it was upheld that death penalty is only seen as an alternative to life imprisonment because if that was not the case then it would make no sense in providing applicability of section 235(2) of CrPC, since hearing accused would barely have any effect on commutation of a death sentence.
Conflicting views relating to the Age of the offender
In Ramnaresh v. State of Chhattisgarh, the facts involved gang rape and murder. The apex court gave life imprisonment taking into consideration younger ages of the offenders (ages between 20-30) and this was seen as a reformative measure. However, in the case of Dhananjoy Chatterjee v. State of West Bengal, the SC imposed death penalty on a 27-year old for committing the murder of an 18-year old woman. This is the reason why there is a stark difference in the imposition of a death sentence in both these cases.
Conflicting views relating to Nature of the offence
In the case of Bhagwan Das v. State (Delhi NCT), the plaintiff had killed his daughter on accusations of adulterous relations. The trial court sentenced the appellant and the High Court upheld this judgment. The Supreme Court rejected the appeal and ruled that, for whatever cause, honour killings fell under “rarest of the rare” situations attracting death penalty.
However, in Dilip Premnarayan Tiwari & Anr v. State of Maharashtra, where a girl was killed for marrying outside her caste the Supreme Court commuted the death sentence to life imprisonment holding that the murders were the outcomes of the social issues and the time has come that we start considering these issues as relevant in deciding the sentence. This is because caste is something that has gripped the society in general which affects the psyche of the offender.
Therefore, the SC has given judgments on similar fact situations however, the ratio has differed to a large extent. While the murder of three children the court did not award death sentence and in the one where one child was sacrificed, the said death penalty was being awarded.
Opinions on Scope of Discretion
In the year 2003, the Committee on Reforms of Criminal Justice System (also known as Malimath Committee) was constituted by the Ministry of Home Affairs. The report was majorly about the necessity of coming up with principle guidelines in ensuring uniformity and streamlining the process in the sentencing procedure. The report noted that such guidelines have also existed in other common law following countries and therefore highlighted that there was an urgent need to come up with a similar framework in India. There was a recommendation to form a statutory body. The body would consist of a retired SC judge and former High Court CJ for the same purpose.
Moreover, the Committee on Draft National Policy on Criminal Justice (known as Madhava Menon Committee) in 2007, argued for other types of punishments and reviews of the quantum of punishments along with the introduction of guidelines. This Committee was oriented towards streamlining the process of judgments by introducing the regular reviews of the sentences passed by the courts.
It has to be noted that in the case State of Punjab v. Prem Sagar (2008), the Supreme Court of India observed the absence of guidelines on sentencing in India. It also put the onus on the judiciary for not coming up with guidelines for the same. It observed that while there were punishments laid down from minimum to maximum for the offences, the courts employed different methods in arriving at the final decision and hence there was a lack of uniform guidelines and principles. Further, in the case of Soman v. State of Kerala (2013), the Supreme Court again emphasized that it was a duty of the legislature to come up with the guidelines on the discretionary part in sentencing.
Conclusion
It has to be noted that the main problem does not lie in the fact that the judges are vested with the discretion to determine the kind of sentence to be imposed. Rather, the discretion of the judges will always exist in the criminal justice system. This is because the judges are assigned this important role of using their ‘judicial mind’ in applying the facts and arriving at a decision. Taking away this power would be detrimental to the system. The main goal, therefore, should be to minimise the use of discretion in the sense that a certain level of uniformity and consistency be reflected in the sentences that are awarded.
The victims ‘ interests should also be given priority in the course of the determination of the appropriate punishment along with the criminal’s rights. Non-uniform sentencing will undermine the trust of the people and can lead to catastrophic effects when people fear to approach the courts for their cases. At least, a uniform sentencing law should be achieved in the cases with similar facts and situations. For example, when a human is sacrificed in the name of any superstition, then the death penalty (say) should be imposed in every case with similar facts. The personal bias of judges should be kept away in this process. Therefore, an objective test can be laid down as far as the cases with similar facts are concerned.
[The author is a second-year B.A. LL.B. (Hons.) student at National Law University, Delhi.]
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