Sentencing Policy of India: A Critical Analysis and Suggestions [Part II]

By Shivam Mishra and Dharmesh Basedia

In the concluding part of the bipartite blog series, the authors continue their discussion on the undesirable effect of Indian sentencing policy in the constitutional touchstone. An imperative analysis of the Constitutional touchstone has been followed by suggestions including the adaption of measures enshrined under the Coroners and Justice Act passed by the United Kingdom. The first part of this series can be accessed here.

ANALYSIS ON THE CONSTITUTIONAL TOUCHSTONE

Prima Facie, the sentencing policy doesn’t seem to violate the fundamental right of an individual. However, a careful study explains how this unregulated policy of sentencing affects the fundamental rights of the offender.

Article 14 of the Constitution states that everyone shall be treated equally before the law. However, the application of the same law over two persons under the same circumstances resulting in different consequences ostensibly violates article 14. In the earlier part of the paper, we have discussed such cases wherein the quantum of punishment is regulated by the presiding judge discretion which often leads to a peculiar situation.

Moreover, the effect of the current sentencing policy is resulting in more cases of appeal in (see the earlier part) as in absence of any guidelines, parties don’t feel justified and they then consequently appeal to higher courts to seek the remedy. Such appeal in higher courts further results in a delay of a court proceeding as there are cases where one has to wait for years to get his hearing. Such delay does violate one’s right to speedy trial provided under Article 21 of the constitution as held by the apex court in Kartar Singh v. the State of Punjab. Besides this, such delays also result in mental anguish, and physical torture, bodily injury and loss of property to the party associated with cases which have an abysmal effect on their right to have a dignified life.

THE CORONER AND JUSTICE ACT, 2009:  LEARNING FOR INDIA

In India, the sentencing procedure can be observed in CrPC under several sections such as section 235.  It ensures that the accused will have an opportunity of last say while acknowledging the punishment. Punishment quantum is given in acts (e.g. IPC) such as section 302 of IPC prescribes the punishment for murder while section 300 describes the murder. However, the procedure is scattered into enormous sections as CrPC has 484 sections, 2 schedules, 56 forms and IPC has more than 550 sections and this, in turn, makes proceeding burdensome for the judges. The Malimath committee also hinted for a separate codification for sentences in its recommendations. Hence, the authors here are giving the suggestions of a separate act based on the Coroners and Justice Act (“the Act”) while explaining how it can be beneficial in the Indian context.

This Act changes the law on criminal justice in England and Wales. It seeks to achieve a more transparent and effective justice by introducing a more consistent and transparent sentencing framework. §118 of the Act establish a sentencing council which has a priority to promote public confidence. A number of commentators have regarded this priority as their main functions as well. The new council consists of 14 members in which non-judicial members have also been given an equal role in the council. The Malimath committee also recommended the setup of such committee for implementation of an effective and non-influential guideline.

The hallmark of any sentencing guideline is the range of limitation imposed upon courts. A rigid system prevents the court from sentencing outside a threshold unless the conditions demand so. If the guidelines adopt the mild approach for cases that fall across the threshold, the aim of consistency in approach while sentencing gets diluted.  In evaluating the recent changes to compliance, it is necessary to get hold of specific guidelines.

There are 2 ranges mainly proposed in the Act- i.e. the offence range which means that if you did something then what should your ideal punishment would be.

Within the offence range, there is a category range i.e. if you did something and it falls under a certain category then what should be the ideal punishment in that category. §121 of the act duly prescribes the sentencing range and the factors that need to be considered. It is noteworthy that Indian judiciary has also recognised these factors in the form of judicial principles. However, without any legislative backing, the implementation of such principles depends on the discretion of judges. It also remains the matter of subject by more number of judges bench which results in ambiguity for the people. Inputting these principles into an act will make them a matter of right than a matter of discretion for the victim as well as for accused. §121(5) of the act mandates that each guideline should duly prescribe the sentencing starting point in the offence range and if there exist category within the said offence then it should also specify the sentencing starting range in each of those categories.

 The guidelines issued for the act of robbery can be looked forward to understanding this whole process. This one has been divided into 3 types based on the crime seriousness.  The first type is when you use threat or minimal force to commit robbery, then the starting range shall be 1-year custody which can be up to 3years. The second type is when you use weapon or force and it results in injury, then the range will begin from 4 years custody to 2-7 years custody. The third type is when you caused serious physical injury by use of force or weapon for which the range starts from 8 years custody to 7-12 years custody.  It should also be noted that the three types have separate (but overlapping) sentence length ranges for each level.

The provisions also attracted a heated debate when it was under review in the parliament. It ultimately proclaimed into law adopted the following result:

• Every court must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
• must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of that function, unless the court is satisfied that it would be contrary to the interests of justice to do so.

It should also be noted that the statutory language of the Act, now, has been made in a more mandatory sense than that which it replaced. Thus, while merely a duty was cast upon the courts in the earlier acts, now courts must “follow” any relevant definitive guidelines. The language also provides the due discretion to the courts to impose a sentence that runs parallel to the guidelines in case the guidelines conflict with the interest of justice. This conspicuously shows the importance and purpose of this Act which it intends to serve.

Unlike the US grid system, which is more specifically narrow ranged and has a too restrictive approach, this Act never fetters the judiciary or results in obstruction wherein the independence of the judiciary is hampered. The Act provides each offence-specific guideline which contains considerable latitude concerning the appropriate sentencing and it also provides a due margin for discretion. It can be evident under the §125(3)(b) of the Act which makes it clear that the court must impose a sentence within the overall offence range, not the more restrictive category range. If the court crosses the range for the interest of justice, it must assign due reasons. The new provisions focus a court’s attention on the relevance of the guidelines, yet also allow judicial discretion to impose a fit sentence in the interest of justice. The council shall also be accountable for producing far more well-thought procedure for the sentencing and will benefit crime victims as well. There is no denying of a fact that even England system has some lacunae in their sentencing policy or for that matter in their council itself but there is a considerable utility in setting up a sentencing commission. The sentencers without an iota of doubt get benefit from a detailed and reasoned sentencing policy which will further reduce the probability of appeal in higher courts and which will result in more consistent sentencing from the judiciary. There exists a form of understanding among the common law countries that as far as consistency of sentencing is considered it cannot be achieved by the appellate body alone.

This is not the first time that the need for the sentencing council has been raised. In a unitary jurisdiction such as India, it is important to set a national standard, and then allow limited departures from that standard. A sentencing council in India along the lines of the Council in England and Wales would also serve the purpose of generating awareness of sentencing among members of the legal profession. Without this, even well-meaning criminal law amendments will remain ineffective, and the problems of sentencing will continue. The policy will maximise that prisoners are treated with a fair degree so that even if they are unable to move up in appeal, they have not been unduly prejudiced in terms of their sentence. India has so much less to lose but to gain from introducing such form of policy.

CONCLUSION

With the increasing stats of crimes rates in India, the Indian Criminal law system is in dire need of ‘the proper sentencing policy. However, it must not be a rigid policy as the purpose behind the introduction of such policy is to eliminate the subjectivity which the judges exercise to a minimal degree while giving them due discretion required in the interest of justice. The goal of the sentencing policy is to establish a just and fair society wherein both convicts and victim rights are protected which are being diluted in the current regime of sentencing. Considering this, the author has discussed these major lacunae in the present law system and the author has provided a few suggestions to eliminate them by drawing the analogy from the Coroners and Justice Act, 2009. Law is much better when forged according to the present needs of the society and the idea of discretion that gets distorted because of several factors is what is focused upon here. There has to be a proper balance of both rights and to achieve this mid-way needs to be tread upon and in direction of this, it is outrightly correct for India to improve its sentencing mechanism by taking inspiration from the Act.

[The co-authors are second-year students at Ram Manohar Lohiya National Law University, Lucknow.]