By Anupam, Rajeev Gandhi School of Intellectual Property Law, IIT Kharagpur
Editor’s Note: Sentencing of a convict basically embarks the culmination of the judicial process which begins with the detection, enforcement of the law, prosecution and adjudication. Thus the importance of Sentencing lies in the fact that it becomes the face of Justice and a future deterrent for the prospective offender of law. Informed Public Opinion should be involved right at the beginning of the formation of Sentencing policy so that a consensus can be arrived at about its actual objective. A well-managed Public debate should be initiated by the authorities on various platforms as it will not only help to remove the Iron Curtain between the Courts and the society but will also improve the level of acceptance of the Court’s decision regarding sentencing by the people at large.
“Any action or practice that has costs-and which does not? -needs to pay its way in countervailing benefits or else it cannot be defended.”
The basic aim of all modern welfare States in the world is to provide a safe and secure environment to its citizen, so that they can flourish and contribute towards the betterment of the society and its future at large. But the ever increasing graph of crime is a blatant proof that Criminal Justice system has failed miserably to fulfil this cherished dream. Criminal Justice and more specifically Criminal Punishment system requires huge investment in terms of money, time and energy. Therefore, there must be compensating benefits to justify this exorbitant burden on public exchequer. We had better know that what they are and establish whether they are sufficient or not.
Two criteria to be considered while Sentencing should be: Crime eliminated during incarceration and Post-incarceration behaviour of the criminal towards the society. The main aim of the Sentencing policy should be to use scarce resources intelligently, on one hand and to give a fair chance to the accused to start a new life after he has served his term, on the other, so as to achieve the basic aim of crime reduction. There has been a gradual but sure decline of Public faith in the Criminal Justice system, over the period of time which give us a well-deserved opportunity to revisit and formulate a robust and truly democratic Sentencing policy. In this respect, the inclusion of a well informed and legitimate Public Opinion in Sentencing policy will not only increase its acceptance but also the much required transparency in the system.
“If the Criminal Law as a whole is the Cinderella of jurisprudence, then the Law of Sentencing is Cinderella’s illegitimate baby”
When we look at the history of India, we will find that the concept of Penology is embedded in it, right from the beginning. It developed under the connotation of danda-niti which literally means principle of punishment.[i] Manu, the great law-giver of India, emphasised that Danda was created as a derivative of Dharma [ii]. Though Criminology is a modern growth in the West but in reality it was a fully developed subject in our country before the dawn of Christian era. We have an abundance of literature on danda-niti or criminology contained in our Dharmashastras such as Vedas, Smritisastras, Kautilya’s Arthasastras. The first phase of ancient civilisation in India, when Dharma was supreme, the offender was shown maximum tolerance, but was gradually ousted by political authority of the State in the following Mughal and British periods.
Sentencing of a convict basically embarks the culmination of the judicial process which begins with the detection, enforcement of the law, prosecution and adjudication. Thus the importance of Sentencing lies in the fact that it becomes the face of Justice and a future deterrent for the prospective offender of law. There is no doubt in the fact that Criminal Courts have championed in the art of fact finding and law applying but when it comes to the process of Sentencing, there lies the lacuna. The success in former is mainly due to unemotional and objective approach while failure in later owes to emotional and subjective reaction towards the circumstances surrounding the convict. This situation is further aggravated due to the lack of well-defined sentencing policy.
The modern attitude towards Sentencing is that, it is an individualised treatment process and a sure response to every events of crime. The question, what Sentence is, cannot be distinguished from who is the offender and what are his offending act. The modern Criminologists are inclined to analyse not only the bio-socio-politico-cultural phenomenon but also psycho-pathological and most recently the genetic phenomenon of the person. Crime is a deviation from social norm and reason for this deviation lies in bio-psycho-genetic and eco-socio-cultural phenomenon. Therefore the main object of sentencing should be reformative rather than punitive so as to facilitate the return of offender to normal life and serving the ultimate goal of prevention of crime. Justice Krishna Iyer, observed that:
“The retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make depreciation of life and liberty reasonable as penal panacea.” [iii]
Basic Purpose of punishment:
There are two basic dimensions to punishment namely the purpose that justify punishment and the proportionality of nature and quantum of punishment in relation to the nature and seriousness of the crime. The basic purpose of punishment may be attributed to: [iv]
Retribution is based on the assumption that causing pain to the offender or making them face other unpleasant consequences is right and proper. Man is instinctively inclined to retaliate and if this urge is not satisfied there is the likelihood that the party affected by crime may take law and order in to their own hands spelling doom to the society. Though it seems to be of primitive nature but its presence can always be felt in the Criminal Justice system.
This theory authorises the infliction of pain in order to prevent future crimes. General prevention aims at dissuading members of the society, who have not committed those crimes, from committing them and creating a fearful environment for those who have proclivity for committing crimes.
This theory assumes that man is a rational being who has a free will. But it can be countered with the argument that the human beings and their behaviour is too unpredictable to reduce to a mechanistic formula. Often punishments are made severe so as to convey the message that anyone committing crimes will be similarly dealt with thus acting as a deterring force.
It is based on the assumption that criminality of human being depends upon external and internal forces which can be predicted by experts in order to prevent future crimes. It is severely criticized because the emphasis has shifted from Courts to Prison Authorities.
In India there is glaring absence of much required and anticipated Sentencing policy. Neither the Government nor the Judiciary have led down any structured guidelines regarding it. Meanwhile several Government committees have recommended the laying down of Sentencing guidelines at the earliest. In 2003 the ‘Malimath Committee’ laid down the guidelines to minimize the uncertainties in awarding sentences. It stated that:
“The 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. 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 need for such law in our country to minimise uncertainty to the matter of awarding sentence.” [v]
Even then Law minister Mr. Veerappa Moily said that “We are working on the uniform Sentencing policy which is on the lines of ones in place in United States and United Kingdom”[vi] Courts have laid down guidelines regarding Sentencing in several Judgements in the form of obiter dicta. Supreme Court of India has laid down the guiding principle of Death Sentence in Jagmohan Singh v. State of Utter Pradesh[vii] where the court gave the concept of balancing ‘Aggravating and Mitigating factors’[viii] while awarding Capital punishment. This approach was put to test in Bachan Singh v. State of Punjab[ix] where the court said that:
“Since an amendment was made to Indian Code of Criminal Procedure, the rule has changed so that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so” [x]
More recently the well-publicised ‘Priyadarshini Mattoo Case’ has proved to be an eye-opener for the whole Criminal Justice system of our country. In Trial Court Additional Sessions Judge G.P. Thareja said of Santosh (convict) that “though he knew that he is the man who committed the crime, he was forced to acquit him, giving him the benefit of doubt.”[xi] Under unprecedented public pressure and media publicity the Government had to file an Appeal in Delhi High Court, where the main accuse was convicted and awarded Capital punishment. The verdict criticized Justice G.P. Thareja’s original judgment: “The trial judge acquitted the accused amazingly taking a perverse approach. It murdered justice and shocked judicial conscience.”[xii] In 2010 an Appeal[xiii] was filed by Santosh in Supreme Court where it was argued by him that the decision given by the lower court is under excessive pressure of ‘Media Trial’ which have made the popular Public Opinion against him. The Court upheld his conviction by the Lower Court but commuted his Death Sentence to Life Imprisonment. This decision was widely criticized by the family in particular and Public at large.
In State of M.P. v. Bablu Natt, the Supreme Court observed that:
“The principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with.” [xiv]
In Soman v. State of Kerala, Supreme Court observed that:
“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.” [xv]
In Alister Anthony Pareira v. State of Maharashtra, the Supreme Court observed that
“One of the prime objectives of the criminal law is imposition of [an] appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of [the] crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: [the] twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.” [xvi]
Importance of Public Opinion in Sentencing Policy:
From the above mentioned cases and judicial observations it can be concluded that there is an absolute requirement of Sentencing Policy in India. Judiciary is going through a phase of lack of confidence because of an established model which is opaque, non-responsive and devoid of accountability. Judiciary is believed to be an elite class and its isolation from Public is considered to be legitimate and essential because it imparts a sense of authority to it. In India the Courts have got exclusive privilege to interpret the Law and to stretch its meaning to such an extent which sometimes causes interference in the working of other instrumentalities of the State. Now the question arises how far the basic meaning be extended so that it do not lead to the breakage of social network.
To impart legitimacy to the Criminal Justice system and more specifically the Sentencing policy, it is necessary to give due importance to the Public Opinion. Public Opinion is often confused with Media dominated reactionary utterances of people, popularly known as Opinion Polls, which is far away from accuracy and reasonableness. The response given by the people is mostly based upon his socio-politico-cultural affiliation and is largely emotional in nature. The problem lies not in the Public but the way in which the problem is being put forward before them. Media, which nowadays represent large business conglomerates, generally take up some ongoing controversies and gives an emotional angle to it before putting it in public domain, which make them highly unreliable. This practice is fundamentally wrong because it defeats the very purpose of Opinion Polls right at its nascent stage. The practice should be, to first of all give relevant factual description along with constraints and possible ramifications and then take a well ‘Informed’ Opinion Poll. In the exercise of Informed Opinion Poll, ‘deliberation’ plays a very important role. [xvii] The target of Informed Public can be achieved by initiating a well- managed Public debate. This will help in transformation of individualistic view into a rationale Public view on Sentencing policy.
Two extreme views can be adopted while deciding the Sentencing policy- one based on ‘Isolationism’ and another based on ‘Populism’[xviii]. In Isolationistic view Public has little or no knowledge of Sentencing policy and the Policy Makers are also not concerned about it. The main criticism of this approach would be that it is highly undemocratic and will create disconnect and disenchantment among Public. Furthermore, since there is no Public role in policy forming, it will give chance to the Politicians to put an undue pressure on the Judiciary as and when required, and in case of any unpopular decision by Court, the Public will stand against Judiciary.
In case of Populist view the Public will not understand the underlying principle behind the Sentencing policy. The Public perception will depend upon Media driven promulgation which in turn may be controlled by some Political motive or some emotional narration presented to them.
The prudent approach lies somewhere in between. The Public should be first educated and then consulted on the policy matter. A constructive debate should be initiated so that a consensus on the policy can be arrived at. The Judges and other Law officials should outreach the people, like taking seminar, because in most of the cases the Public is being misrepresented about Sentencing policy.
Public Opinion is much more complex as it is being perceived by the Policy Makers. Very often they will come across a wide range of views regarding a particular prospective policy decision regarding Sentencing. It is a boon in disguise because it gives ample opportunity to them to introduce alternative Sentencing reforms, which if introduced will not only make decision process faster but also reduce the economic burden of the policy. These reforms can be made acceptable to the society by involving them in discussions which might not be acceptable to them individually. It is not always necessary that just by increasing the severity of the Sentence a valid deterrence can be created in the mind of prospective convict. For example after recent Nirbhaya case [xix] a popular demand which have been vindicated by Media and Public is that to award Death Sentence to the rape convict. But the Policy Makers should make them understand that Death Sentence falls in ‘rarest of rare’ category and burden of proof so required will be quite high. Thus it may lead to lesser conviction. Only by involving Public in discussions this stand can be made clear.
Sentencing policy is the most vital link in Criminal Justice system which signifies the rule of Law in a State. In this respect Public Opinion is an indispensable asset which should be utilised in a proactive and step-wise manner by the Policy Makers. Informed Public Opinion should be involved right at the beginning of the formation of Sentencing policy so that a consensus can be arrived at about its actual objective. In the following stages of its implementation, if some anomaly arises regarding its interpretation, a well-managed Public debate should be initiated by the authorities on various platforms. It is very important to carry out the economic audit of the Sentencing policy and the ensuing result must be communicated to the Public so that they can understand its future implications. Inclusion of Public Opinion in Sentencing Policy will not only help to remove the Iron Curtain between the Courts and the society but will also improve the level of acceptance of the Court’s decision regarding sentencing by the people at large.
Edited by Kanchi Kaushik
[i] Dhawan, S.S., The Lucknow Law Journal, Vols. XIII and XIV, 1967-68, pp. 9-30
[ii] Manusmiriti, VII-3, 4, 15, 18, 22
[iii] Kunju Kunju Janaratharan v. State of Kerla ( AIR 1979 SC 916)
[iv] Ministry of Justice, New Zealand, Sentencing Policy and Guidance, A Discussion Paper, October 1997
[v] Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System
Report, 170, (Mar. 2003)
[vii] AIR 1973 SC 947
[ix] AIR 1980 SC 898
[xi] Priyadarshini Mattoo Case, 1999, From Wikipedia, the free encyclopaedia
[xiii] (2010) 9 SCC 747
[xiv] (2009) 2 SCC 272
[xv] (2013) 11 SCC 382
[xvi] AIR 2013 SC 3802
[xvii] Barasbus J. (2004) “How Deliberation Affects Policy Opinion” American Political Science Review, 98 (04); p. 687-701
[xviii] Public Opinion and the Media Seminar (8 February 2008) ‘Prisons and the Public’ Julian Roberts, Centre of Criminology, University of Oxford
[xix] State v. Ram Singh and Ors. , SC No. 114/2013