SENTENCING POLICY IN INDIA – AN OVERVIEW

THIS ARTICLE WAS WRITTEN BY HITESHI AGARWAL, A STUDENT OF SS JAIN SUBODH LAW COLLEGE.

INTRODUCTION

The world today notices an alarming increase in the crime rates and demands an all inclusive criminal justice system with a fixed regime. Though, there can be no straight jacket formula for infliction of punishment as every deviation has its own consequences which are different with respect to each other but there is a dire need to have certain sentencing guidelines to eliminate the subjectiveness. ‘Sentence’ as the term is used in criminal law denotes the action of the court before which trial is held in consequence of the determination of the guilt of the accused. Therefore, any consequence which flows from conviction is sentence. The article opines the need for proper sentencing guidelines to remove disparity while awarding sentences and describes the current sentencing policy in India, the nature and role of aggravating and mitigation factors and the sentences awarded to various crimes and offenders.

The words ‘Punishment’ and ‘Sentencing’ are often used interchangeably but are distinct entities. Operationalization of punishment is the sentencing policy. A sentence does the work of stating and defining the punishment stated in the law of land. Sentences are judgments containing punishments for criminal matters.

In India punishments are described in Sec 53 under Chap.III of Indian Penal Code, 1860. The various types of punishments described are death, imprisonment for life, simple or rigorous forfeiture of property, and fine. There has been an enumeration of the specific type of punishments but the purpose of punishment is not fulfilled as the sentencing policy is not laid down as clearly as  the type of punishments, both being important aspects of criminal law.

ABSENCE OF STRUCTURED GUIDELINES

In March, 2003 the Malimath Committee (the Committee on Criminal Justice and reform) issued a report that emphasized the need for sentencing guidelines to minimize the uncertainty in awarding sentences stating,

“The IPC prescribes only the minimum and maximum punishments for offences without laying down any guideline for infliction of punishment in proportion to the crime. Therefore, each judge exercises it own discretion resulting in a sentencing system which lacks uniformity. This requires a thorough examination by an expert statutory body.”[1]

The SC, in the case of Soman v. State of Kerala, also observed the absence of structured guidelines:

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.  There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges.[2]

THEORIZING SENTENCING DISPARITY

The entire debate over sentencing discretion surrounds over disparity in sentencing. Disparity exists when similar offenders are sentenced differently or when different offenders receive the same sentence. It exists when judges impose different sentences on offenders with identical criminal histories or when they impose similar sentences on offenders with different crime records. Criminal law demands consistency, and discretion in sentencing leads to unjustified disparity. When all ingredients are equally fulfilled in both the cases and sentences differ in an apparently unjustified way it results in unjustified disparity. For ex age of the offender and chances of reformation are seen as mitigating factor in one case[3] and ignored in another.[4]

COMMON DEFECTS IN SENTENCING POLICY:

• The highest punishment awarded is death penalty and the second highest is life imprisonment there is no punishment in between as it is in the USA “imprisonment without remission or commutation”
• The fines incorporated under the Code need to be revised as value of money has increased 50 times compared to the year 1860.
• The court requires the prosecution to either prove beyond reasonable doubt or else the accused will be acquitted whether or not he is guilty. This undermines the confidence of the public in the system of law and order.
• The aggravating and mitigating factors must be applied uniformly to all cases and must have a specific framework.
• Imposition of punishments by the trial courts without recording adequate reasons in a manner which appears to be arbitrary and unjust. The higher judiciary has had at occasions criticized the role of different functionaries in the criminal justice system.[5]

DEBATE OVER ABOLITION AND RETENTION OF DEATH PENALTY

The death penalty debate has gathered much heat over the recent times. While the protagonists of death penalty claim that it must be awarded to the most heinous crimes, the persons who advocate human rights allege continuance of death penalty as a violation of basic human rights of the individual.[6] Before proceeding further into the reasons and jurisprudence which established the validity of the death penalty, it is vital to know the meaning of death sentence; death penalty is the sentence which legally terminates the natural life of the person.

CONSTITUTIONAL VALIDITY OF DEATH PENALTY

The Law Commission of India in its 36^th report submitted that the retention of the death penalty is the need of the hour and at the present juncture India cannot risk the experiment of abolition of capital punishment.[7]

In Bachan Singh’s case[8] the SC overruled its earlier decision in Rajendra Prasad’s case[9] and held that death penalty it to be awarded in ‘rarest of the rare cases’ and it is not  unreasonable as an alternative punishment for murder under Sec 302 of the Indian Procedural Code. The following ruling made death penalty an exception and life imprisonment a general rule.

In Mithu v. State of Punjab[10], the Constitutional Bench unanimously held Sec. 303 of mandatory death sentence for commission of murder by a life convict as unconstitutional.

The Criminal Procedure code was re-enacted in 1973 and Sec 354(3) required that judgment recording conviction for an offence punishable with death must record special reasons for such sentence.

CONCLUSION

In any legal system, justice for the members of the society is of prime importance. In this domain protection of rights through fair trials and proper punishment mechanism needs to be envisaged which is able to strike a balance between the rights of the victim and accused. Death penalty can also be viewed from the perspective of psychological concept. Death is the greatest fear of most of them. When death is prescribed as a punishment for any offence it acts as a deterrent in commission of heinous crimes. Thus, the purpose of punishment to act as a deterrent is served   Death penalty must be inflicted in cases which reflect barbaric and inhuman attitude towards humanity, inadequate sentences in the fall of sympathy will suppress the society’s cry for justice against criminals.  Thus, sentencing discretion is an unavoidable evil, it can only be structured, regulated and disciplined.

[1] Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System Report Vol I March 2003

[2] Soman v. State of Kerala, (2013) 11 S.C.C. 382,

[3]  Jai Kumar v. State of Madhya Pradesh (1999) 5 SCC 1

[4] Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220

[5] State of M.P. v. Gyan 1992 CriLJ 192

[6] Jagmohan Singh v. State of UP AIR 1973 SC 947

[7]  Law Commission of India, 35^th Report on Capital Punishment (1967 ) pp. 4-5

[8] Bachan Singh v. State of Punjab AIR 1980 SC 898

[9] Rajendra Prasad  v. State of U.P.  AIR 1979 SC 916

[10]  1983 SCR (2) 690