Abhishek Raj
The Indian criminal justice system is governed mainly by the Indian Penal Code 1860, Indian Evidence Act 1872 and The Code of Criminal Procedure 1973. However, even after one and a half century of enactment of these legislations, there still remains ambiguity in the sentences given by the judges. There is no unified sentencing policy in India, and penalties reflect the judges’ personal beliefs. The vagaries of sentencing were eloquently highlighted by Krishna Iyer J in Rajendra Prasad v State of Uttar Pradesh[1], which is still relevant in terms of what elements impact sentencing even in other offences. This is the irony of India’s criminal justice system. On a broader scale, these features can be harmonised by the virtue of these features: firstly, the Quantum of Punishment in accordance to the gravity of the offences [A]; and secondly, the Rule of Proportionality when carrying out penalties [B].
[A] Quantum of Punishment
The policy of the law is, in most situations, to specify a maximum penalty that is only meant for the worst cases, and leave it to the Judge’s discretion to determine the extent to which the punishment awarded in a particular case should approach or recede from the maximum limit.[2] The maximum punishment provided for an act reflects the gravity of the act, and the courts must decide whether the act committed falls short of the maximum degree of gravity, and, if so, by how much.[3] When deciding on a sentence, the court must consider the gravity of the crime, the purpose for the crime, the type of the offence, and all other relevant facts. The court should also take in consideration a general view of the society and its impact such as which was seen in Mukesh v. State (NCT of Delhi)[4] (Nirbhaya Case). All these factors must be weighed in, including social interest and societal consciousness for imposing an appropriate sentence.[5]
There are no statutory guidelines in place to regulate the punishment awarded. As a result, there is much variation in sentencing practices across the country. There are laws in many countries that provide sentencing parameters; however, India does not have a uniform statutory sentencing policy. The IPC only specifies the maximum sentence for offences and, in some situations, the minimum sentence. The Judges have broad discretion within the legislative boundaries, and the decision on the amount of punishment is left to the court after hearing the parties. A sentence is the result of numerous variables such as gravity of the offence, repeat offences, mental state of the offender or degree of harm to the victim. It also considers the nature of the offence[6] as a mitigating factor such as mental inability, provocation or passive involvement of an offender will reduce the sentences while aggravating factors such well as hate crime, intention or influential role of the offender will increase the sentence.
The IPC provides distinct provisions for penalising various offences. The minimum punishment is provided in some circumstances, but in the majority of the other cases, the court has the option to issue a sentence of imprisonment that may extend to a specific period. Because of the nature of these provisions, Judges must exercise their discretion and determine the quantum of sentence to be awarded based on the facts of the case, the gravity of the offence, the instigating or extenuating circumstances of the case, and other circumstances that may justify the award of the lesser or maximum sentence.[7] However, if there has been a significant delay in the disposition of the case, the interests of justice would be served by awarding a sentence shorter than the minimum prescribed.[8] If the accused is a first-time offender, this is no basis for imposing a sentence more concise than the stipulated minimum.[9]
[B] Rule of proportionality
Criminal law requires careful adherence to the rule of proportionality in imposing punishment based on the culpability of each type of criminal action, while bearing in mind the societal impact of not awarding just punishment.[10]
The Supreme Court observed the lack of specified rules in Soman v State of Kerala[11]. Furthermore, the court ruled that, while punishing the wrongdoer is vital to criminal justice delivery, it is our country’s weakest link in criminal justice administration. There are no statutory or judicially established guidelines to assist the trial Court in inflicting the just sentence on the accused standing trial if he is found guilty of the allegations. In defining India’s sentencing procedure, the Court observed that “the challenges of establishing down criteria is at the very heart of the Criminal law as it is administered in India, which leaves the Judges with a very wide discretion in the matter of fixing the degree of punishment.” In this case, the Court noted several factors it considered when exercising discretion in sentencing, such as proportionality, deterrent, and rehabilitation. The Court went on to say that “mitigating and aggravating factors should be addressed as part of the proportionality examination.”[12]
The issue of the emphasis of punishment was addressed in State of Gujarat v Hon’ble High Court of Gujarat[13], in which the Supreme Court was asked to rule on the provision of minimum wages to convicts forced to labour as part of their punishment. After reviewing the concepts mentioned by Krishna Iyer J, Thomas J stated once more what should be the central emphasis of Indian sentencing policy:
Reformation should be the central objective of a just punishment, and every effort should be made throughout incarceration to reconstruct the decent man out of guilty inmates. An assurance to him that his hard labour will eventually snowball into saving for his own rehabilitation would assist him in getting rid of the moroseness and desperation in his mind while toiling with the rigours of hard labour throughout his jail existence. Thus, adaptation of this practise would accentuate prisoner reform and rehabilitation, both of which are essential matters of public policy. As a result, they serve a public function.
However, this method to identify the primary thrusts of sentencing—rehabilitative, reformative, retributive, and deterrent—has received varying treatment, based on a range of circumstances, some of which have been graphically articulated by Krishna Iyer J, as mentioned above. In contrast, Wadhwa J cautions in the same ruling that too much emphasis should not be placed on reformative theory. It is equally important to remember that the rights of victims of crime must not be overlooked. Just as the rights of inmates and the problem of prison reform must be prioritised, the rights of victims must be prioritised as well. While there is no argument that victims’ needs should not be disregarded, when the nature of crime and the criminal are contrasted, the diverse opinions of judges determining a wide variety of often disparate penalties are exposed.[14]
The discrepancy in sentencing is most visible in death penalty cases. Supreme Court in Suresh Chandra Bahri v State of Bihar[15] observed that “The critique of judicial sentencing has taken several forms: it is inequitable as reflected in disparate sentences; it is ineffectual; or it is unfair because it is either inadequate or, in some situations, cruel. It has frequently been stated that there is a significant disparity in punishing an accused who has been found guilty of some offence.”
It is an undeniable reality that the incidence of crime has increased during the past couple of decades, some of them involving brutal savagery. When addressing some of these, courts have been forced to reconsider the nature of the sentence—whether the emphasis of sentencing is deterrent, retributive, rehabilitative, or reformative. Thus, the Supreme Court emphasised the retributive character of punishment in Dhananjoy Chatterjee alias Dhana v State of West Bengal[16]. The court acknowledged accepted discrepancies in courts’ criminal punishment, particularly in severe offences against women. While some criminals receive hefty penalties, others receive drastically varied terms for virtually the same conduct.
Apart from this, a staggering number of crimes go unpunished which encourages criminals and, in the end, harms the court system by undermining its legitimacy. The court finally said, “Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime”. The dictum established by the court in the preceding case was then adopted in Ravji alias Ram Chandra v State of Rajasthan[17], in which the Supreme Court stated:
It is the nature and intensity of the offence, rather than the offender, which are relevant in determining suitable punishment in a criminal prosecution. The Court will be failing in its duty if proper punishment is not awarded for a crime committed not only against the individual victim but also against the society to which the perpetrator and victim belong. The punishment for a crime must not be irrelevant, but it must be just in nature, conform to and be consistent with the atrocity and brutality with which the crime was committed, the enormity of the crime warranting public abhorrence, and it must respond to society’s cry for justice against the criminal.[18]
A court is thus expected to conduct the sentencing system in such a way that the imposed punishment reflects the society’s conscience and corresponds to “the society’s cry for justice against the offender.”[19]
Conclusion
A thorough discussion of the nature of disparities in sentencing, not only in death sentence cases but also in other offences, necessitates a broader viewpoint. However, one thing is clear: there is an urgent need for the country to develop a comprehensive and well-formulated sentencing policy to guarantee that inequalities in sentencing, such as those shown in Dhananjoy Chatterjee’s case, be avoided. However, in Jagmohan Singh v State of Uttar Pradesh, the Supreme Court stated that the exercise of judicial discretion based on well-established norms is the safest conceivable safeguard for the accused. A meagre sentence issued only based on time-lapse without regard for the gravity of the offence will be counterproductive in the long run and detrimental to society’s interests.[20] Additionally, we have the judgments of Krishna Iyer J, who has created in a series of statements of what the essence of Indian sentencing policy should be, and which sentences actually embody the aphorism, that every saint has a past and every sinner has a future.[21] A sentencing policy is the need of the hour to ensure uniform sentencing. While a strict enactment or amendment of legislation would take away judges’ discretion, a set of guidelines can be formulated by taking inspiration from other countries to ensure balance of judges’ discretion and just punishment. This can be crucial in executing just and fair sentence and removing any kind of disparity before, after and during the trial.
[The author is a third year BLS. LL.B. student at Government Law College, Mumbai]
[Contact: abhishekivr02@gmail.com ]
[1] Rajendra Prasad v. State of U.P., (1979) 3 SCC 646.
[2] HALSBURY, H. S. G., & MACKAY OF CLASHFERN, J. P. H. (Vol 11, 4th edn). Halsbury's laws of England. Halsbury's Laws of England. Butterworths, London 1986, p 287.
[3] Nga Ka v. Queen-Empress, (1897–1901) 1 UBR 330.
[4] Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.
[5] Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648.
[6] Mohd Arif v. The Registrar, Supreme Court of India, (2014) 9 SCC 737.
[7] R Chakravarti v. State of Madhya Pradesh, AIR 1976 SC 392; Ram Narain v. State of Uttar Pradesh, AIR 1973 SC 2200; State of Madhya Pradesh v. Bablu, (2014) 9 SCC 281.
[8] Vivian Rodrice v. State of West Bengal, AIR 1971 SC 1584; State of Maharashtra v. Manglya Dhavu Kongil, AIR 1972 SC 1797; State of Punjab v. Jagir Singh Baljit Singh, AIR 1973 SC 2407; Jagdish Chander v. State of Delhi, AIR 1973 SC 127, p 1396; Ghisa v. State of Rajasthan, 1976 Cr LJ 39; Municipal Committee, Ambala v. Baisakhi Ram, 1963 Cr LJ 475.
[9] Bisahulal v. State of Madhya Pradesh, (1969) MPLJ 649.
[10] C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567.
[11] Soman v. State of Kerala, (2013) 11 SCC 382.
[12] Ibid.
[13] State of Gujarat v. Hon’ble High Court of Gujarat, AIR 1998 SC 3164.
[14] Shobhit Chamar v. State of Bihar, (1998) 3 SCC 455; Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
[15] Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420.
[16] Dhananjoy Chatterjee alias Dhana v. State of West Bengal, (1994) 2 SCC 220.
[17] Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175.
[18] UOI v. Kuldeep Singh, AIR 2004 SC 827; State of Uttar Pradesh v. Shri Kishan, (2005) Cr LJ 333 (SC); and State of Madhya Pradesh v. Saleem, (2005) Cr LJ 3433 (SC).
[19] State of Madhya Pradesh v. Ghanshyam Singh, AIR 2003 SC 3191; UOI v. Kuldeep Singh, (2004) Cr LJ 836 (SC); State of Karnataka v. Puttaraja, AIR 2004 SC 433; Dalwadi Govindbhai v. State of Gujarat, (2004) Cr LJ 2767 (Guj); Dhananjoy Chatterjee alias Dhana v. State of West Bengal, (1994) 2 SCC 220.
[20] State of Punjab v. Bawa Singh, (2015) 3 SCC 441.
[21] Giasuddin v. State of Andhra Pradesh, AIR 1977 SC 1926; Hiralal Mallick v. State of Bihar, AIR 1977 SC 2236.