Harshita Sharma, Aditya Maheshwari

The article highlights the arbitrariness and discrepancies present in the sentencing system of the Indian Criminal Justice System and attempts to outline the need for impartial sentencing via the establishment of a sentencing panel and sentencing policy.

Introduction

There must be a radical revolution in the world, a revolution in the very psyche itself- J. Krishnamurti

The most important aspect of a just criminal justice system is linked to a proportionate and reasonable sentence as it governs the administration of legal sanctions for individuals convicted of a criminal offense. It is the stage when the most-awaited upshot of a crime is to be decided by the judge. However, such quality is often missing in the Indian context, owing largely to the lack of a much-needed sentencing policy. The Supreme Court itself pointed out this flaw in Sonam v. the State of Karnataka and stated that “there are no legislative or judicially laid down guidelines to assist trial courts in deriving the just punishment to the accused facing trial before or after being held guilty of the charges”. Further, in Sangeeta v. State of Haryana, the apex court opined that the courts’ approach in applying the principle of mitigating and aggravating circumstances lacks uniformity and needs reconsideration.

In March 2021, at least 7 accused, who were minors, were sentenced to death by trial courts which based their justification on the fact that their crimes were part of the ‘rarest of the rare doctrine’.However, the doctrine itself lacks the proper consideration of mitigating and aggravating circumstances and is ultimately based upon the discretion of the presiding judge. As a result, the element of arbitrariness in sentencing brings the Criminal Justice system into a grey area. The application of personal prejudice or beliefs of judges raises a vital need for a proper sentencing policy and sentencing panel along with proper analysis of routine decisions.

This article attempts to outline the need for impartial sentencing via the establishment of a sentencing panel and sentencing policy. To this effect, the article, firstly, highlights the bare provisions and the landmark case laws which bring to light the discrepancy in the system of sentencing in India. Secondly, along with discussing the factors reflecting arbitrary sentencing, the article emphasises how a conscientious approach is the need of the hour. Thirdly, it also lays down the sentencing principles applicable in the USA & UK which have proved to be quite successful in curtailing judges’ arbitrariness while sentencing. Lastly, the article suggests a possible sentencing framework applicable to the Indian context.

Ambit of Discrepancy in the Indian Sentencing Policy

Section 53 of the Indian Penal Code (“IPC”) defines six types of punishments that are applicable in India. It is a settled principle of criminal law that punishment must always be proportional to the crime committed and should try to balance the rights of the offender and interest of the society at large.” However, while awarding a sentence for a particular offence, there exists enormous inconsistency and disparity in India.

For example, the punishments prescribed in murder, theft, and rape have a common pattern of provisions like minimum and maximum punishments but have no fixed penalty. The wide gap between the minimum and maximum punishment is the area that affects the criminal justice system as the judges exercise abundant independence of personal interpretations of such bare provisions, their ideologies, and fundamental precedents while sentencing.

Moreover, the Code of Criminal Procedure (“CrPc”) also grants wide discretionary powers to the judge once the conviction of the accused is established. Section 360 of the CrPc deals with the release of a convict on probation and is the central clause to judicial discretion. The scope of this section has been arbitrarily limited to ‘a woman, person (below 21 years of age) convicted of an offence the punishment of which is not death or life imprisonment, and a male (above 21 years) convicted of an offence the punishment of which is fine or imprisonment of not above 7 years.’ In these (with no prior conviction) cases, the court at its discretion may release the convict after due admonition. Having regard to mitigating factors provided under Section 360, there is no formal guidance to the judges to exercise such provisions.

The inefficiency of the criminal justice system and the delayed delivery of justice cannot solely be accounted for by an insufficient number of judges. What needs to be appraised primarily is the process of justice delivery and the underlying institutional framework.

The upholding of the death sentence in the case of Khuswinder Singh v. State of Punjab points to the arbitrariness in the system of sentencing. The said sentence was awarded by the Sessions Court, upheld by the Punjab and Haryana High Court, and lastly affirmed by the Apex Court. What is pertinent to observe is that the death penalty was upheld due to the defence’s inability to produce material on mitigating factors and hence the court based the decision on aggravating factors only.

In a recent report, it was found that the trial courts awarded over ‘102 death sentences in 2019’ out of which the Supreme Court only upheld ‘6 death sentences’. Thus, the lower court’s tendency to award death sentences raises serious concerns of such arbitrary sentencing while not safeguarding fair-trial rights. For illustration, immense reliance is placed upon a witness in the trial and when these witnesses become hostile, it leads to acquittals. More than 60% of the acquittals in heinous crimes are a result of such uncertain facets of trial.

Moreover, there is a lack of usage of provisions of the Evidence Act which can ensure a bias-free trial. Section 165 of the Evidence Act provides the power to the court to ask any question (in any form, at any time) about any fact (relevant or irrelevant). This provision can be mandatorily invoked by courts to maintain a fair balance ensuring the reformative interest of society along with individual rights. On the same lines, the Court in Santosh Bariyar v State of Maharashtra held that “the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.”

Thus, the trial courts hold a significant position to ensure impartial sentencing along with the opportunity for consideration of mitigating factors. Nevertheless, it predominantly comes under the threshold of being “unquestionably foreclosed” before the courts.

In Bachan Singh v. State of Punjab, the apex court made the first reference to the need for sentencing guidelines as guidelines ensure that the discretion for the capital punishment is not unguided and interpreted the ‘special reasons’ under section 354(3) CrPC. The court also emphasised a pre-sentence hearing under Section 235(2), CrPC, and ultimately about the principle of balancing aggravating and mitigating circumstances. However, it lacked the binding force and was simply indicative in nature. The majority opinion of the case was that “judicially mandated guidelines would violate the separation of power doctrine as it goes against the legislative will.” 

Henceforth, the Supreme Court, while assessing the vital standing of lower courts, also needs to review this critical principle to ensure a coherent balance that remains unaddressed to date. Stan Swamy was not being granted bail and the antithetical gesture by the Guwahati High Court in granting bail to a rape accused being an IIT student brings out the sheer arbitrariness the judges resort to. Indeed, Justice Ajit Borthakur who heard the bail application at issue considered “being an IItian a future asset” as a mitigating factor at a pre-trial stage. However, what legitimately ought to be considered is the bad precedence this sets with courts upholding such mitigating factors in the face of aggravating factors related to crimes like rape.

Factors Contributing to Arbitrary Sentencing

In the 268th report of the Law Commission of India, it has been well stated that “for financially-able individuals; bail is a right and for the rest, judicial discretion”. This comes into play in our sentencing system exercised through infamous factors related to the social status which ultimately mark the power system as a reality and justice as a concept.

The Supreme Court in the case of State v Amaramani Tripathi clearly stated that “the character, behaviour, means, position, and standing of the accused” should be considered in bail matters. For instance, in 2020, Swami Chinmayanand who was accused of sexual harassment was granted bail by the high court order under which several excessive statements were made underlining the victim’s conduct in place of suffered threat and ensued harassment. On a plea challenging the said order, the Supreme Court unduly noted that “it was a conditional bail and certain conditions were imposed for protection”. Undoubtedly, Swami Chinmayanand was considered as “powerful” and the victim as “vulnerable”. It should be duly noted that consideration of such social factors, if not guided by impartial guidance, can affect the justice delivery even for the judges themselves as it happened in Justice Karnan’s contempt case in which he was sentenced with a maximum punishment post which he talked about being a ‘victim of caste discrimination’.

Hence, it is nothing short of astounding that the courts implement the same with unguided discretion. A deeper analysis reflects how the justice system has failed at large and these cases cannot necessarily be linked to the inability of judges to consider mitigating factors but simply a reflection of the values they stand for.

In State of Karnataka v. S. Nagaraju, the conviction of the accused was done with the intent of the sentence acting as a deterrent for other probable offenders rather than penalising the convict. The problem underlying the sentencing mechanism in India is that punishments have not been delivered as a remedy at large but as a mere social defence. Notably, the joint reading of Section 235(2), CrPC with Section 354(3), CrPC, and Section 302 IPC brings to light that Court while determining the degree of punishment should give due consideration to the facets of the accused and not restrict its consideration primarily or merely to the circumstances related to the particular crime.

Adopting a Conscientious Approach

Punishment should be understood in the language as explained by Justice Krishna Iyer in Mohammad Giasuddin v. State of Andhra Pradesh, He stated that the key to the therapeutic role of punishment can be achieved through “criminologists considering offender as patients and the prisons as hospitals for both moral and mental support.” Thus, taking cognisance of the mental, psychological, social, and economic conditions of offenders can uncover the important facets of crime that are often left unheard in the court of law upholding predilection for crime and punishment.

In Channu Lal Verma v State of Chattisgarh, the court emphasised the importance of the ‘psychological analysis’ of the accused to uphold the ideal of reformative justice. Likewise, according to the Malimath Committee Report, the inadequacy of logistical and forensic backup support is one of the major difficulties in ensuring fair investigation. under the system, its operation is nevertheless underused, limited to obtaining evidence to prove the guilt or as a defence to evade sentence. Thus, the lack of modernization of investigative machinery and ensured lack of sentencing guidelines raise an irresponsive criminal justice system.

Sentencing Policy of the US and the UK

As clearly observed above, one of the primary issues with the Indian criminal justice system is the inconclusive subjectivity in decisions. Hence, the need is to bring an element of objectivity to ensure reasonable uniformity in decisions.

A similar problem was faced by the US when it provided for minimum and maximum sentences for offences. The same ultimately resulted in sentencing disparities. The judge used to sentence the convict as they deemed fit. However, to resolve the same, the US passed the Sentencing Reform Act, 1984 to ensure consistency in sentencing. Initially, it was ‘mandatory’ in nature, however, presently, it is ‘advisory’ in nature. As per the Federal Sentencing Guidelines, 2018, the two essential factors upon which sentencing guidelines have been based are a) the criminal history of the accused, and b) the offence committed.

These guidelines are well-balanced as for while they provide objectivity on one side, on the other, they also grant rational discretion to the judges to enhance, reduce, or even depart from the guidelines recommended. For the latter, the judges shall give proper reasons in writing.

Similarly in the UK, the Criminal Justice Act, 2003 was passed to bring uniformity in sentencing a comprehensive. This act also provided for the establishment of the “Sentencing Guidelines Council”. However, the Coroners and Justice Act, 2009 replaced the Sentencing Guidelines Council with a Sentencing Council, a more streamlined body. A proper composition has been defined for the council and the act clearly states that “it is the responsibility of the council to develop sentencing guidelines and also monitor its operation in addition to other tasks.”

Policy Framework for the Indian Criminal Justice System

In India, the Malimath Committee recommended establishing a body comprising of competent officers coming from diverse disciplines to help the police forces to investigate the crimes. However, there is also a need for solidifying impartial justice at the time of sentencing especially at the Trial stages. Independence of Judiciary does not give it the privilege to administer justice arbitrarily. The panel of a similar composition involving specialised forensic experts and medical jurists must be established and needs to be revised depending upon the multitude of facts in cases to ensure transparency. While sentencing and making other routine decisions, judges as per procedural laws must assess the expertise of the concerned panel upholding community service, probation, and youth justice services.

It is also essential to note here that the Indian legislators should not implement the provision verbatim from the US & UK considering the differences between the countries. Hence, a sentencing council should be selected at the earliest which shall exercise the following:

1. In an advisory capacity, it should hold a seat along with a presiding judge at the trial itself (as this is the primary stage of a discrepancy). In case, it is of the view that a sentence different from that of the trial judge should have been awarded, then it should notify its reasons which would aid the judges in rationalising the decisions.
2. It will develop the sentencing policy and ensure its implementation and effectiveness.

The rationale behind the first function is two-fledged: first, until the sentencing policy is implemented, it can personally ensure objectivity in sentencing, and second, to implement a policy for India, a first-hand experience at multitude and complexity of cases is a must.

A reasonable time must be permitted for the council to frame and implement the policy and the role of the council should be limited to ensure the effective implementation of the policy. Additionally, it should perform functions such as promoting awareness regarding sentencing practices in courts, preparing annual reports reflecting sentencing parameters involving major aspects like aggravating and mitigating circumstances, and lastly routinely analysing the impact of policy on the sentencing.

The need for a uniform sentencing policy has been highlighted by the courts in many cases. However, mere longing for fair justice without any strict implementation of the above-mentioned reports and committees’ call for reformation is a failing gesture. It is high time to instill life in such recommendations by taking serious attempts to implement the same in our Criminal Justice System.

Harshita is a third year law student at Ram Manohar Lohiya National Law University, Lucknow. Aditya is a third year law student at the National Law University, Jodhpur.