Written by: Neetu Lather

Introduction

Alerting growth in the rate of crimes is there worldwide, and India is no exception. The requirement of a suitable criminal justice system is there, and a very important aspect of Criminal Law is the imposition of suitable, just, and proportionate sentences. In India, criminal law and the system of sentencing and punishment are governed by the Indian Penal Code, 1860 (IPC), The Indian Evidence Act, 1872, and The Code of Criminal Procedure, 1973 (CrPC).

Section 53, Chapter III of the IPC, lays down the various kinds of punishments: Death, Imprisonment for life, Rigorous imprisonment or simple imprisonment, Forfeiture of property, Fine. There is a difference between sentence and punishment. Though interconnected, they cannot be used interchangeably. ‘Sentences’ are statements in judgments that mention the punishment for a particular offence under the law. When the same is operationalized and is put in action, it is known as the ‘punishment’ Thus, the sentence is the predecessor to the actual imposition of punishment.

Giving punishment is the weakest part of the administration of criminal justice in India. There are no legislative or judicially laid down guidelines to assist the trial court in meeting out the just sentence to the accused facing trial before it after he is held guilty of the charges.[1] 

The Death Penalty India Report (2016), from Project 39A’s foundational work, disclosed that of more than 1,700 prisoners sentenced to death by trial courts over 15 years to 2015, appellate courts ultimately confirmed sentences of 4.9%: the prisoners went from being sentenced to death to being acquitted of all charges of 29.8%, while death sentences were commuted to life of 65.3%.[2]

Purposes of sentencing in the criminal justice system

To ensure the offender is adequately punished for the offence, to prevent crime, to protect the community, to promote rehabilitation, to make the offender responsible (accountable) for his or her actions, to condemn the conduct of the offender.

Legislative Step on Sentencing Guideline

The 47th Law Commission was constituted by the Union Ministry of Law and Justice with the question of how a sentence could be determined, it was found that a proper sentence is a combination of many factors, including the nature of the offence, the circumstances-extenuating or aggravating- of the offence, the age of the offender, the professional or social record of the offender,

The background of the offender regarding the education, home life, sobriety and social adjustment, the prior criminal record, if any, of the offender, the prospect for the rehabilitation of the offender, the possibility of a return of the offender to normal life in the community, the emotional and mental condition of the offender, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by this offender, or by others, and the present community need if any, of such a deterrent in respect to the particular type of offence involved.

The court has power under the provisions of CrPC or Probation of Offender Act, 1958 to release a person for good conduct during custodial or after admonition simply. The court may award any punishment but by reasoning the order. The appropriate government is empowered under Sections 432 and 433, Cr PC to suspend, remit or commute the sentence.

In 2000, the Malimath Committee established by the Ministry of Home Affairs went on to emphasize the discretionary power of the judges while deciding sentences. The need for regulation of such power and uniformity in sentencing policy is felt. It is not only the judges who possess this wide discretionary power. Section 360 and 361 of the IPC gives power and regulates the release of offenders and convicts based on their good conduct whilst imprisoned. A convict’s release depends on the discretion of his respective jail authorities, due to the absence of a sentencing policy and a set definition of ‘good conduct’,

In March 2003, the Malimath Committee established by the Ministry of Home Affairs issued a report that emphasized the need to introduce sentencing guidelines to minimize uncertainty in awarding sentences. The IPC prescribed offences and punishments for the same. For many offences only the maximum punishment and for some offences the minimum may be prescribed. There is now no guidance to the Judge regarding the selection of the most appropriate sentence in given circumstances of the case, nor have wide discretionary power. There is no uniformity as each Judge exercises discretion accordingly to his judgment.

Unguided discretion is not good even if it is the Judge that exercises the discretion because some Judges are lenient and some Judges are harsh. The Committee advised that to bring predictability in sentencing matters, a statutory committee should be established to lay guidelines on sentencing guidelines under the Chairmanship of a former Judge of SC or a former Chief Justice of an HC experienced in criminal law with other members representing the prosecution, police, social scientist, the legal profession, and women representative. Till now the words have not turned to action[3].

In 2008, Madhava Menon Committee on Draft National Policy on Criminal Justice, the need for statutory sentencing guidelines was asserted.

In October 2010 in a news report, it’s stated that the Law Minister said that the government is looking into establishing a “uniform sentencing policy” in line with the US and the UK to ensure that judges don’t issue varied sentences.[4]

The law commission Report 2015 has majorly been derived by reference to the SC and the need for re-examination of the Commission’s recommendations on the death penalty in the light of changed circumstances.

Need for a sentencing policy

The gap between the minimum or maximum penalty prescribed for a particular offence, so the decision depends solely on the judge’s discretion. Section 354(1) (B) of CrPC directs judges to record reasons behind awarding a particular sentence, and according to Section 354(3), whenever any sentence authorizes life imprisonment or the death penalty, special reasons must be laid down. Despite the above provisions, it is clear that the absence of a sentencing policy in India leaves the judiciary with a lot of power.

A few general factors that all judges take into account would be the intention, the severity, and the liability of an offence but not every judge has the same frame of mind and considerations while awarding sentences. The Judge’s personal experience, prejudice, and considerations majorly affect the final sentence. It also depends on factors like the competency of lawyers present on a particular day in front of a particular judge, who could or could not sway the judges in their favour.

Every case has different aggrading and mitigating factors and circumstances. Judges might impose different sentences on offenders being tried for the same offence. The judges can’t be entirely blamed as every judge has their considerations. However, all these results in an imbalance in the criminal justice system as in many cases the offenders are unnecessarily imprisoned for a long time.

Guidelines Put Forth by the Hon’ble Supreme Court of India for the Death penalty

• Rarest of the rare case

In Bachan Singh v. State of Punjab[5], the identification and application of the ‘rarest of rare’ doctrine, enunciated. The court directed that for murder the death penalty shall be imposed by considering any of the following circumstances: Manner & Motive for Commission of murder, Anti-Social or Socially abhorrent nature of the murder, Magnitude of Crime, Personality of Victim of Murder.

In Santosh Kumar Singh v. State[6], SC  held that where the option is between a life sentence and a death sentence, the options are indeed extremely limited and if the court feels difficulty in deciding and awarding, it is only suitable to award the lesser sentence. This is the fundamental philosophy behind ‘the rarest of the rare’ principle.

Focusing on mitigating circumstances the court though upheld the conviction of the accused substituted ‘death penalty’ with ‘life imprisonment on the ground that, the court talked of aggravating circumstances in unequivocal terms and noticed the tendency of parents to be over-indulgent in their progeny often resulting in the most horrendous of situations like the instant one where an accused is part of a category with immense power or money or even more dangerously, an unpredictable and strong combination of both.

• Nature of offence

In Md. Mannan @ Abdul Mannan v. the State of Bihar, [7]the convict had kidnapped, raped, and murdered a seven-year-old. The Court awarded the death penalty since the victim was an “innocent, helpless and defenceless child.” The Court held that the crime “had resulted in extreme distress in the community and shocked the ethical environment of the society.

They expected the authorities to adjudicate the death sentence which is natural and logical. SC recognized that “there is a very thin line on facts which differentiates the punishment of a death sentence from a life imprisonment in the case of murder and rape of a minor by a young man and the personal opinion of Judges based on the morality, efficacy or otherwise of a death sentence cannot entirely be eliminated.” In cases with similar facts, while in one the Court awarded the death sentence, in another it awarded the life imprisonment.

• Doctrine of proportionality

In Vikram Singh v. Union of India[8], a three-judge Bench of the SC discussed questions of proportionality of sentences, the difference in kind, and degree between capital punishment, and a sentence of imprisonment. It was held that while there are various cases when the death sentence has been considered as disproportionate to the offence committed, there are few and rare cases of sentence of imprisonment being considered as disproportionate.

• Prior Criminal Record of the Offender

In B.A. Umesh v. Registrar General, High Court of Karnataka[9], the accused was convicted for rape, murder, and robbery, the SC awarded death sentence to him on the ground that he had engaged in similar conduct previously, and had been caught two days after the present incident, trying to commit a similar crime. The Court held that “the prior and subsequent conduct of the appellant indicates that he is a danger to society and is not capable of rehabilitation.

In Mohd. Farooq Abdul Gafur v. State of Maharashtra,[10] the Court has held that unless a person is proven guilty in a case, it should not be considered as an aggravating factor against him.

Considering Age of the offender

In Dhananjoy Chatterjee v. State of West Bengal[11], the SC had imposed the death sentence on the offender for committing the rape and murder of an 18-year-old girl who lived in a building where he was a security guard.

Ramnaresh v. State of Chhattisgarh,[12] the Court imposed life imprisonment on the offenders for committing gang rape and murder by considering their young age (all between 21-30 years of age), which pointed to the possibility of reform.

In Rameshbhai Chandubhai Rathod v. the State of Gujarat, [13] the three-judge Bench of the Court noted the similarity of the facts to Dhananjoy Chatterjee‟s case but held that the offender was 28-year-old which pointed to the possibility of reform and hence awarded life imprisonment. In an admittedly similar fact situation, Rameshbhai Rathod was given life imprisonment because he was 28 years old. Dhananjoy Chatterjee was given the death sentence even if he was 27 years old and was executed in 2004.

In Purushottam Dashrath Borate v. the State of Maharashtra,[14] the Court again pointed to the similarity of the case to that of Dhananjoy Chatterjee, and following Dhananjoy Chatterjee, it awarded the death penalty to both the offenders of rape and murder. The Court did not refer to the decision in Rameshbhai Rathod which had doubted the imposition of the death penalty in Dhananjoy Chatterjee on the ground that the Court had not accounted for mitigating factors. The age of the offenders in Purushottam Dashrath Borate was 26 years and 20 years respectively.

• Judges discretion

All former judges were asked reasons they saw for abolition and retention of the death penalty in India. In response, 29 judges recognized abolitionist justifications, and 39 recognized retentions justifications. 14 retentions judges point of view was that there was no reason whatsoever to consider abolition in India and 3 abolitionist judges point of view was that there is no reason to keep the death penalty.[15]

• Life Imprisonment without Remission

In Union of India v. V. Sriharan @Murugun[16], some questions of law about remission powers under the CrPC, 1973 were referred to a Constitution Bench, in a matter relating to the question of remission and premature release of the Rajiv Gandhi assassination convicts by the Tamil Nadu government. One of the questions involved the validity of the special category of the sentence. The Court held that the special category was valid in law. It further added that such a sentence could only be imposed by the High Courts or the Supreme Court. However, the constitutional powers of remission under Articles 72 and 161 would be unaffected by such a sentence.

• Death Warrant Procedure

In Peoples’ Union for Democratic Rights (PUDR) v. Union of India & Ors. (2015) SCC All 143[17], the SC also gave its stamp of approval to the guidelines given by the Allahabad HC and made it mandatory in all cases:

• The notice of the warrant issued by the Sessions Court must be given to convict so that he/she can arrange for a counsel to represent her.
• The death warrant must specify the exact date and time of the execution.
• There must be a reasonable time between the date of order on the warrant and the date of execution so that the convict can pursue legal recourse against the warrant and meet her family.
• A copy of the warrant must be immediately supplied to the convict.
• Where required the convict must be provided with legal aid.

In Shabnam v. Union of India[18], A writ petition was filed in the SC by two prisoners on death row, challenging the death warrant issued by the trial court just 6 days after their appeal had been dismissed by the SC. The Court found that it was impermissible to issue a death warrant when judicial and administrative remedies are still pending in a death sentence case so held that for filing a review of the limitation period and to file a mercy petition reasonable time had to be given to the petitioners.

• Clemency Powers and Supervening Circumstances

In Ajay Kumar Pal v. Union of India[19], a writ was filed by a prisoner whose mercy petition had been rejected by the President. The SC held that the delay of 3 years and 10 months in deciding the mercy petition combined with the fact of solitary confinement was enough to establish a violation of rights under Article 21 of the Constitution of India, 1950 and entitle the petitioner to a commutation.

In cases with similar facts, while in one the Court awarded the death sentence, in another it awarded the life imprisonment, no clear guidance is there.

About the Author

Conclusion

Currently, India doesn’t have formal sentencing guidelines that have been provided either by the legislature or the judiciary. Over time, the Indian courts have through inconsistent decision-making and faulty rationales have indirectly pointed out the need for certainty and logical sentencing policy.

Some committees set up by the government have highlighted the need of adopting sentencing guidelines in India. Guidelines should be such that they address the individualization of punishment and minimize the uncertainties in awarding sentences in India. It is indisputable that control of the increasing rate of crime in society is needed.

Having sentencing guidelines in place will enable the courts to respond to the daily cry for justice and the yearnings of the community. The judges should be able to award appropriate punishment proportionate to the crime committed by simultaneously considering the rights of the victim, the offender, and society. Retributive and just desert theories of criminal punishments should be taken together.

The discretionary power of the judges cannot be completely taken away[20] but needed to be regulated. In India, in some cases convicts have spent the majority of their lives in custody, with sentences falling just short of life imprisonment, a strict sentencing policy would ensure fewer such instances.

However, the need of the hour is to improve the criminal justice system in our country and develop and implement a uniform sentencing policy.[21]

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[1] Soman vs. State of Kerela 2013 (11) SCC 382, Paragraph 13

[2] Neetika Vishwanath, PROJECT 39A EQUAL JUSTICE EQUAL OPPORTUNITY, (22 Aug 2021)https://www.project39a.com/op-eds/how-indias-trial-courts-pass-death-sentences-they-should-not

[3]The factor of sentencing, elements of proportionality, aggravation, and mitigation,(21 Aug 2021)

[4] Govt for a Uniform Sentencing Policy by Courts, Zee News (21 Aug 2021), http://zeenews.india.com/news/nation/ govt-for-a-uniform-sentencing-policy-bycourts_660232.html.

[5] Bachan Singh Vs. State of Punjab (1980) 2 SCC 684

[6] Santosh Kumar Singh v. State(2010) 9 SCC 747

[7] Md. Mannan v. the State of Bihar, (2011) 8 S.C.C 65.

[8] Vikram Singh v. Union of India (2013) 169 PLR 279

[9] B.A. Umesh v. Registrar General, High Court of Karnataka (2011) 3 SCC 85

[10]Mohd. Farooq Abdul Gafur v. State of Maharashtra [2009] INSC 1403

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

[12] Ramnaresh and Ors. v. State of Chhattisgarh, (2012) 4 SCC 257

[13] Rameshbhai Chandubhai Rathod (2) v. the State of Gujarat, (2011) 2 SCC 764.

[14] Purushottam Dashrath Borate v. State of Maharashtra, A.I.R. 2015 SC 2170

[15] National Law University, Delhi, Matters of judgment,(23 Aug 2021), https://www.deathpenaltyproject.org/wp-content/uploads/2018/06/Matter-of-Judgment.pdf

[16]Union of India v. V. Sriharan @Murugun (2016) 7 SCC 1

[17] Peoples’ Union for Democratic Rights (PUDR) v. Union of India & Ors. (2015) SCC All 143

[18] Shabnam v. Union of India (2015) 6 SCC 702

[19] Ajay Kumar Pal v. Union of India (2015) 2 SCC 478

[20] State of Madhya Pradesh vs. Mehtab 2015 (5) SCC 197, Paragraph 8

[21] Sentencing and punishment policy in India, ProBonoIndia, (21Aug,2021), https://www.probono-india.in/blog-detail.php?id=152

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