Sentencing Policy: The thurst of criminal law!!!

What does a criminal deserve? Punishment no doubt, but the question is, how much. The simplest and straight-forward answer most would give is 'teeth for a teeth, eye for an eye'. The legal systems, however, have different yardsticks. Some apply deterrence model, giving exemplary punishment to mould the behaviour of others through the 'stick model' while some believe in proportionality. Some apply victimological methods to take into account the harm suffered by the victim while some the 'correctional model' considering that circumstances break the man and it is the changed circumstances which can raise a fallen men. A consensus evade, however. 


Just a few days back we had written about a recent Supreme Court decision where the Court had given its approval to the proportionality principle, holding that "In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should  be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It was the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."


However the matter does not rest here. There are a number of issues which do not come to rest still and require an answer. For example the High Court of Delhi while considering a matter for confirmation of Death Sentence (STATE v. RAJ KUMAR KHANDELWAL, dt. 08.05.2009) noted the glaring lack of a sentencing policy in India. It observed;

70. The issue of sentence in the instant case and for that matter imposition of a sentence in many cases has troubled us. We find no sentencing policy in India. Much of the debate on the sentencing policy has centered around the issue as to when the extreme penalty of death has to be imposed, wherever permitted by law vis-à-vis the lesser sentence of imprisonment for life. But what about most offences punishable under the Penal Code, where the legislature has either prescribed a maximum sentence, with no lower limit prescribed, or where the legislature has provide a range between a minimum and a maximum sentence. We find no uniformity in sentences imposed by Courts in India. 

71. Nigel Walker tartly said:- “If the criminal law as a whole is the Cinderella of jurisprudence, then the law of sentencing is Cinderella‟s illegitimate baby.” 

72. Sentencing is a crucial strategy of Criminal Law in achieving social defence and re-socialization of the offender. Sentencing is a facet of social justice. None can dispute the need to humanize sentencing as a tool of reformation. If the social pressure compels a Court to take cognizance of the society‟s cry for retribution where the offence is committed in a diabolic and a brutal manner of a magnitude where the conscience of the society is revolted, the same social sanction has a catalyst – to respect the worth of personhood and the right of a human being in its residual human essence. 

73. Unfortunately, the votaries of the extreme penalty have started raising their voice in support of imposition of higher sentences, citing the rising graph of crime and are churning out theories that the scare of law is no deterrent to the criminal, unless sanctioned with a liberal imposition of hard sentences. The mafia taking over the system and thumbing the nose at the judicial system, is cited by them, in support of the need to impose higher sentences. 

74. But, what is happening at the ground level is that, in a para violent society and a scared community, where the mafia savages at large, the poor desperate as scapegoats. The cynics say that the capital gets no punishment. 

75. If we look at the penal code, we find, it provides for four kinds of punishments: firstly – death; secondly – imprisonment for life; thirdly – imprisonment for various terms which may be either simple or rigorous and; fourthly – fine. We further find that for certain offences a minimum sentence is prescribed with a cap qua the maximum. For some offences, an upper limit of sentence is prescribed, leaving the minimum, at the discretion of the Court, which may be a single day. 

76. Writings and opinions on crime and its causes and cure are legion. But, most of the writings are of not much use to Judges because of the requirement of law of a Judge being concerned with the immediate intent (mens rea) of the offender and rarely concerned with what is beyond the intent. This skin deep pursuit, obviously misses the real roots. Unsolved stress, sometimes sudden and sometimes soared up, results in an act which is criminal in law and unfortunately for the offender, the immediate intent i.e. mens rea is gathered from the act. Any serious student on the subject easily realizes that many social disorders and disturbances are the product of an overheated system with tensions blowing up. Indeed, society as a whole may become criminal, as in mass violence situations. Strikes erupting into violent demonstrations are common. Indeed, at the bottom of most crimes, one would find a distraught psyche or a warped consciousness. Oscar Wilde‟s Poignant Poetry about prison life holds good even today:- “This too I know – and wise it were If each could know the same – That every prison that men build I built with bricks of shame, And bound with bars lest Christ should see How men their brothers maim. The vilest deeds like poison weeks Bloom well in prison-air; It is only what is good in Man That wastes and withers there; Pale Anguish keeps the heavy gate, And the Warder is Despair.” 

77. To somewhat mitigate the problem of sentencing, the principle of proportion between crime and punishment, requiring the Judge to prepare a balance sheet of mitigating and aggravating circumstances and after balancing the two, awarding an appropriate sentence have been evolved over the period of time. We note various decisions on the point, each bringing out a circumstance or two; listing out the same to be aggravating or mitigating.

These decisions go on to show that much still needs to be done in this area. The is a lot of scholarly writing on this subject that the law-makers should legislate even on such areas wherein the quantum of punishment to be meted out of the offence is prescribed. In fact most criminal law (and peculiarly even fiscal statutes) provide the minimum and maximum amount of punishment/fine that is to be imposed in various situations. However complete objectivity in this regard is also not permissible. No two cases are on same pedestal in criminal law in as much as the circumstances surrounding the commission of the offence, the presence of aggravating and mitigating factors makes a distinction and the mental state of the accused and victims also create potent factors for making out different cases and calling for different punishments. Further the principle of judicial review would be rendered obsolete if complete objectivity is installed in the system. What role is of a judge if he cannot decide? The net result is that sentencing policy remains a quagmire with various celebrated cases only culling out principles but not able to provide a complete test to act as a guide to the judges for sentencing the convicts. 


Another interesting decision (State of Madhya Pradesh v. Sheikh Shahid) is one given by Supreme Court in which the sentence of the convict was reduced by the High Court on the ground that he came from a rural area. The Supreme Court, while holding that undue sympathy not be granted to the accused, explained certain principles of sentencing policy as under;

8. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation the sentencing process should be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organized crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P. [(1987) 2 SCR 710], this Court while refusing to reduce the death sentence observed thus:

"It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon." 

9. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu (AIR 1991 SC 1463). 

10. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from `just desserts' as the basis of punishment and create cases of apparent injustice that are serious and widespread.

11. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

12. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California: 402 US 183: 28 L.D. 2d 711 that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.

13. In Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353), it has been held by this Court that in the matter of death sentence, the Courts are required to answer new challenges and mould the sentencing system to meet these challenges. The object should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Even though the principles were indicated in the background of death sentence and life sentence, the logic applies to all cases where appropriate sentence is the issue.

14. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic a view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 

15. In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC 220), this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.

16. Similar view has also been expressed in Ravji v. State of Rajasthan, (1996 (2) SCC 175). It has been held in the said case that it is the nature and gravity of the crime and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for an extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, the most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.

17. These aspects have been elaborated in State of M.P. v. Ghanshyam Singh (2003 (8) SCC 13).