By Shivam Mishra and Dharmesh Basedia
In the opening part of this bipartite blog series, the co-authors take a gestalt perspective to carefully analyze the sentencing policy of India, its evolvement and ranging wide discretion power entrusted to judges. The compelling concern of such wide range power and its effect in the form of different aspects causing irreparable damages.
“Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice.”
INTRODUCTION
From ancient times, human civilization has been maintaining the social order in society by developing rules and regulations which are ideally followed by the people. In case someone breaches the relevant rule, he/she in the ordinary course of justice mechanism was to be punished for the same. Back then, punishment provisions were more stringent with its major focus on deterrence effect by setting up the example of more brutal punishment concerning their criminal nature. However, with human development and social change punishment became more rational and its focus tilted towards the reformative approach as well.
India has also adopted the reformative approach with the primary aim of rehabilitating the offender. It can also be evident from model prison reform 2016 released by the government. Despite such an encouraging approach, a major lacuna exists in the Indian criminal law system which hampers not only the very purpose of the criminal justice system but also raises major concerns from a human rights perspective as well. A major part of criminal justice revolves around punishing someone for an act and for which there exists the sentencing policy. In India, neither the legislature nor the judiciary has issued structured sentencing guidelines. The need for well-thought guidelines has been realized on many occasions by different committees. Even, the judiciary has pointed out that the absence of sentencing guidelines is resulting in wide discretion which ultimately leads to uncertainty in awarding sentences. The authors have emphasized the need for structured sentencing guidelines in India. For this, the Authors have taken a dichotomy approach wherein first part they explained why there is a need for structured guidelines in a country like India and then in the second part they have given strong reasons to implement such policy by drawing an analogy with the Coroners and Justice Act, 2009.
WHY SENTENCING POLICY?
In March 2003, the Malimath Committee (Committee on Reforms of Criminal Justice System) (Page 170) in its report submitted that a statutory guideline is required for the sentencing policy. The committee stated that under Indian penal laws, maximum or minimum punishment is prescribed for the offences. However, the gap between theses statutory limits gives wide discretion to the judges which result in uncertainty of sentencing, since some judges are lenient and some are harsh in their approach. Thus, a statutory guideline is the dire need of the time.
In 2008, the Madhav Menon committee also reasserted the need for sentencing policy in India. In 2010, the then law minister stated that India is planning to establish a ‘uniform sentencing policy’ in line with USA and UK guidelines. However, despite all such recommendations, no endeavour has been taken towards its creation.
While the legislature hasn’t given any guidelines regarding this, the judiciary has enunciated certain principles. For example, in Soman v. Kerala (Para 13) the court mentioned that principles such as deterrence, proportionality, and rehabilitation need to be taken into account while sentencing. The proportionality principle also includes factors such as mitigating and aggravating circumstances. Further, the court in the State of M.P v Bablu Natt (Para 13) said that the imposition of these principles depends on the fact and circumstances of each case. However, such principles are nothing but the only object and purport (Para 2) for which sentence is given to the accused, denying its original existence.
Moreover, the apex court itself has failed to utilize and implement such principles. In Rajendra Pralhadrao Wasnik v. the State of Maharashtra (Para 5), the court acknowledged these principles but also held that the judiciary cannot be fettered into these principles since they are not absolute rules. Further, in the State of Madhya Pradesh v Mehtab (Para 8) the court even considered these principles as an obstruction for fair justice. In light of such holdings, it is apparent that though certain principles have been developed by the judiciary, the implementation of these holdings and guidelines is still far from reality. The guidelines majorly depend upon the discretion of judges which raises major concern regarding the sentencing methodology.
The proceedings of courts can be divided into two parts. First, in which the court decides the liability of the offender. Second, in which it decides about the sentence of the offender in light of provisions of Section 354, 361, 360 and 235 of the CrPC which makes mandatory for the judges to take into account the demographic information of the accused minutely. This results in overburden on the judiciary and cases takes more time than they ideally should. With the pending cases of approx. 3.3 cr, the over-burdened judiciary often compromises with the second stage of proceedings i.e. deciding the quantum of punishment for the accused in which the lack of consistency in their approach is discernable. It can be evident from Modi Ram and Lala v State of Madhya Pradesh‘s case. Here, the accused cut off the nose and male organ of the victim in vengeance after the victim married his wife. The trial court sentenced him one-year rigorous imprisonment by saying that the victim’s act was provocative in nature which leads to the commission of the crime. (Para 2) The high court in appeal changed this sentence to eight years of rigorous imprisonment. The high court mentioned that though the victim’s act was provocative in nature, it was not sufficient to take the lenient approach like the trial court. (Para 3) Further, on special leave to the Supreme Court, the sentence was reduced to three years of rigorous imprisonment. The Apex court tried to balance the severity of the offence and circumstances of the case and later acknowledged that the act was provocative in nature. (Para 4) The three concluding punishment by three courts manifests the ambiguity in the sentencing policy of India.
INFLUENTIAL FACTOR
It is an admitted fact that judges’-do- get influenced by several factors during the proceedings of the cases. It can also be deducted from the 2003 Malimath committee (Page 171) recommendations wherein they advised for the establishment of a statutory committee to lay down sentencing guidelines under the chairmanship of a former judge of Supreme Court or former Chief Justice of High Court including members representing the prosecution, legal profession, police, social scientist and women representative. They sought different members so that sentencing guidelines cannot be influenced as much as possible and can hold major stakeholder views as well.
Though the influence factor can vary, the authors here have taken only the social background[i] factor of the offender to illustrate this. In Shakti Mills rape case, five men including two juveniles raped a girl. The three accused were granted the death penalty under the newly adopted section 376E of IPC. Here the court took a strict approach towards the accused and allowed the death penalty on the ground that earlier also they raped a girl for which life sentence was given to them, this was even though the men had not been convicted in the previous rape case at the time the crime had occurred. Unsurprisingly, all the convicts hailed from lower socio-economic backgrounds and had a history of juvenile delinquency. While, in 2006 Khairlanji massacre, where a mob stripped the mother and daughter naked in the market and sexually assaulted them, even inserted objects in their private parts and then ghastly murdered them. This crime was no less heinous than Shakti mills case as it was not only against the victim but was against the whole community. However, here accused were granted only life-sentence. Again, the convicts belonged from the higher class while the victim was from a lower social background. In the Bhanwari Devi case which resulted in the formation of Vishakha guidelines, the victim was a social worker. She was gang-raped by five men belonging from higher social class while attempting to prevent a child marriage during the course of her work. In this case, even the proper verdict wasn’t concluded as only one hearing has been taken up by the court in appeal after the acquittal of the accused from the trial court. Unsurprisingly, here also the victim hailed from the lower socio-economic background. In addition to this state, initiative is also an effective factor. For example, in unnerving Kathua rape case, wherein an 8 years old girl was raped on a periodical basis in a temple after she was abducted. The heinousness of crime was no less heinous than Nirbhaya Crime, wherein the accused belonged from the lower social background were hanged to death as the state initiative for their death sentencing was huge with mass protests by the people all across the nation. However, here the state initiative for death sentence wasn’t in parallel to Nirbhaya or Shakti mill case and consequently, the court allowed only for a life sentence.
One recent example is the rape case of Unnao which involved the name of the high personality who was an ex-BJP MLA. He was convicted not only for the rape of a minor but also for conspiring to kill her father. However, even then he was awarded only life sentence. Further, the Supreme Court in Rameshwar Dayal case itself observed that there exist similarities between cases but the quantum of the sentence that was awarded to the accused was different in both cases.
PROSTRATION OF PRIMARY PURPOSE
According to Lombroso’s theory (Page 20), “nobody is born as a criminal and it is the society that makes a person criminal” and on this concept, punishment rational was evolved. Though, punishment in itself is institutionalized violence executed by the state. However, it is justified by its deterrence effects on society and the possibility of rehabilitation of the offender. Thus, punishment requires more vigilant look over by the judges as excessive punishment defeats the object of law in ensuring the rehabilitation of the offender while unconscionably lenient sentencing would result in the miscarriage of justice and will negate the deterrence effect. Therefore, to achieve the primary purpose of law these two aspects are required to implement 1. The immediacy of punishment 2. Consistency of punishment.
Many commentators and Commissions of Inquiry have identified appellate jurisdiction as a means of ensuring consistent sentencing. Any structured guidelines or statutory provisions wherein the range of punishment could be find explicitly mentioned should be the ideal choice for India rather than depending on the judicial principles as in absence of any guidelines, parties don’t feel justified and they then consequently appeal to higher courts to seek the remedy. This, in turn, delays the judgment of the court and results in the absence of immediacy in providing swift justice.
The continuous appeal from the lower to higher court leads to the disparity in sentencing which often results in the lack of consistency while awarding it. For example in Mohd. Chaman v. State (N.C.T. of Delhi) the accused brutally raped and killed a one-year-old girl. The trial court found this under the category of rarest of rare cases and sentenced him to the death penalty which was later overturned by the high court on the ground that the accused didn’t pose any threat to the society. In NarSingh Prasad Singh v. Raj Kumar@ Pappu the court in appeal reduced the sentence of the accused without giving any reasons and without considering the crime which was prevalent in the society for unjustified demand of dowry. We already have discussed how despite having the same fact and circumstances, the court has given different decisions as far as quantum of punishment is concerned (see the above section). The Supreme Court has acknowledged that the superior court often comes across a large number of cases that show anomalies regarding the sentencing policy. (Para 8) It is also reported 90% of the trial courts are overturned by the higher courts. Thus, it results in the absence of a consistent approach while sentencing.
This lack of immediacy and consistency of punishment emboldens the offender as it gives them a thought of escape which might lead to an offence in the future as well.
[The co-authors are second-year students at Ram Manohar Lohiya National Law University, Lucknow.]
[i] Lizotte, Alan J. 1978. “Extra-Legal Factors in Chicago’s Criminal Courts: Testing the Conflict Model of Criminal Justice.” Social Problems 25(5, June): 564-580; Jankovic, Ivan. 1978. “Social Class and Criminal Sentencing.” Crime and Social Justice 1 O(Fall-Winter): 9-1 6.
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