Written By: Adarsh Pharasi
The ancient Hindu lawgiver Manu has rightly said that “punishment governs all mankind, punishment alone preserves mankind, punishment wakes while the guards are asleep.” Certainly, the provision of punishment for offenders has been ‘justice for unjust’ since times immemorable but the other side of the coin of this jurisprudence is that we must kill the criminality, not the criminal and to attain this goal persistent reform is required in sentencing policy. In India, there is no concrete and structured sentencing policy. Several government committees had pointed out for the need for a structured sentencing policy. There have been numerous instances where higher judiciary of India has pointed out for the need of concrete and structured sentencing policy. But it is the lacuna of Indian criminal jurisprudence which is yet to be seriously pondered upon by our legislature and overcome it. In response the higher courts have adopted various guidelines in form of principles and factors into account while exercising its discretion in sentencing like considering question of sentencing in light of various parameters like previous criminal record, emotional and mental condition, reformative tendency, age, occupation, educational background, etc. of the offender by virtue of Sec. 235(2) Cr.P.C. which mandates the hearing of accused on the question of sentence. But the exercise of this wide discretionary power by judges in the matter of sentencing by virtue of the wide range of quantum of punishment prescribed from minimum to maximum for a single offence is incommensurate to the problem of structural sentencing method and rather it aggravates the lacuna of Indian Penology.
WIDE DISCRETION IN PENAL SENTENCING AND GUIDELINES:
Committee of Reforms of Criminal Justice System (the Malimath Committee) which was constituted by Ministry of Home Affairs issued its report in March 2003 while emphasising on the needs of structured sentencing guidelines for offences stated:
“[t]he Indian Penal Code prescribed offences and punishments for the same. For many offences, only the maximum punishment is prescribed and for some offences, the minimum may be prescribed. The Judge has wide discretion in awarding the sentence within the statutory limits. There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case. Therefore each Judge exercises discretion accordingly to his own judgment. There is, therefore, no uniformity. Some Judges are lenient and some Judges are harsh. The exercise of unguided discretion is not good even if it is the Judge that exercises the discretion. In some countries guidance regarding sentencing option[s] is given in the penal code and sentencing guideline laws. There is a need for such law in our country to minimise uncertainty to the matter of awarding sentence. There are several factors which are relevant in prescribing the alternative sentences. This requires a thorough examination by an expert statutory body. [t]he Indian Penal Code prescribed offences and punishments for the same. For many offences, only the maximum punishment is prescribed and for some offences, the minimum may be prescribed. The Judge has wide discretion in awarding the sentence within the statutory limits. There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case. Therefore each Judge exercises discretion accordingly to his own judgment. There is, therefore, no uniformity. Some Judges are lenient and some Judges are harsh. The exercise of unguided discretion is not good even if it is the Judge that exercises the discretion. In some countries guidance regarding sentencing option[s] is given in the penal code and sentencing guideline laws. There is a need for such law in our country to minimise uncertainty to the matter of awarding sentence. There are several factors which are relevant in prescribing the alternative sentences. This requires a thorough examination by an expert statutory body.”
The Committee on Draft National Policy on Criminal Justice (the Madhava Menon Committee), reasserted the need for statutory sentencing guidelines in its report of 2008.
In earlier times the offender was punished with a specifically prescribed punishment but in current penal provisions of India wide amplitude of discretion is bestowed upon courts in sentencing within a wide range of ceiling of punishment for a particular offence which if not exercised with rationality could prove to be fatal to reform our society through punishment. For instance, in the offence of rape which is a flavour of the season currently on account of the suicide committed by a minor girl of Orissa after being raped, under Sec. 376(1) prescribes punishment minimum of seven years to life imprisonment with compulsory fine, in clause (2) of the section and Sec. 376D(Gang Rape) the minimum punishment is extended to ten years and twenty years respectively. Further under Sec. 376A (i.e. Punishment for causing death or resulting in persistent vegetative state of victim) and Sec. 376E (i.e. Punishment for repeated offenders) adds up capital punishment for the offender besides imprisonment for life, here the latter sections give wide scope of discretionary power to the court for punishing for the same offence ranging from imprisonment for minimum term and imprisonment for life to death.
Likewise in the punishment for the offence of murder under Sec. 302 the punishment is death or imprisonment for life which gives further discretion to the judges for sentencing a convict. The apex court has given guideline to exercise this discretion for awarding death in Bachan Singh v. the State of Punjab, the apex court stated that the minimum punishment for murder is imprisonment for life but “the court can depart from that rule and impose the sentence of death only if there are special reasons for doing so.” The court also emphasised that due consideration should be given to circumstances of crime and criminal also. However, in Sangeet and Anr. v. State of Haryana, the apex court noted that the approach adopted in Bachan Singh case is not fully exercised subsequently “primacy still seems to be given to the nature of the crime,” and that the “circumstances of the criminal, referred to in Bachan Singh appear to have taken a bit of a back seat in the sentencing process.” The Court in Sangeet concluded as follows:
- This Court has not endorsed the approach of aggravating and mitigating circumstances in [the 1971 case of] Bachan Singh. However, this approach has been adopted in several decisions. This needs a fresh look. In any event, there is little or no uniformity in the application of this approach.
- Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review.
- In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing.
- The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.
- The grant of remissions is statutory. However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in the statute. These need to be faithfully enforced.
The apex court has itself taken account of non-implementation of its guidelines for awarding punishment in murder cases which is due to the wrong exercise of its discretion due to the absence of structured sentencing policy in Indian Penal provisions.
The punishment for causing death by negligence is punishable by imprisonment of up to two years, a fine or both. While the crime of similar nature like punishment for culpable homicide not amounting to murder, covered under Sec. 304 of Indian Penal Code reads as under:
“Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”
Therefore, there is no degree of deterrence stated by any code for sentencing policy in terms of the same type of crimes which makes the punishment incommensurate.
Indian lawmakers have to rise up to this problem, as legal penal provisions are to reform the society but when there is less punishment for a crime in comparison to aggravated punishment for other crime of the same nature, it defeats the sole purpose of criminal jurisprudence. Deterrence for a crime is not only one way to reform the penal provisions but aggravating the sentences for any offence in light of other offences in various acts is to be done to solve the uneven punishment criteria for various crime to solve lacunas of sentencing for offences. A structured sentencing guideline has to be pondered upon by legislature and judiciary with respect to the gravity that to which extent the offence can be compoundable. A balance has to be made between deterrence in punishment and humane treatment of offenders as our constitution is wise enough to check encroachment of fundamental rights of prisoners because they are also the citizens upon whom punishment is inflicted with the prime motive to reform them for a peaceful society, and therefore the same approach shall be followed to punish offenders so as not to aggravate the punishment of their offence what is really needed for reformation.