Decisions at the sentencing stage affect the fundamental interests of the offender in just as coercive and intrusive a way as decisions at the conviction stage affect the defendant. Indeed, the possibility of the ultimate application of a sanction which deprives an offender of some of her most valued goods and freedoms is one of the most important reasons underpinning the need for certainty and procedural safeguards in the criminal law itself … Once we have conceived criminal justice as an integrated process with certain complex social functions, it almost amounts to bad faith to place so much emphasis on these doctrinal values at one stage of the process whilst virtually ignoring them at others.[1]
By
Jasper Vikas George*
Introduction
Sentencing amounts to the use of state coercion against a person for committing an offence. The sanction may take the form of some deprivation, restriction, or positive obligation. Deprivations and obligations are fairly widespread in social contexts – e.g. duties to pay taxes, to complete various forms, etc. But when imposed as a sentence, there is the added element of condemnation, labeling, or censure of the offender. In view of the direct personal and indirect social effects this can have, it calls for justification.[2]
In all the systems of modern law a wide latitude is given to the courts in this matter. It is one of the most unsatisfactory features of the law as introducing a large element of uncertainty in the administration of criminal justice. Attempts to standardize sentences have hitherto met with little success. In the Indian Penal Code the only instance of a fixed sentence is to be found in section 302, (murder). In cases of murder there are only two alternative sentences which a court is competent to pass, namely, a sentence to death or imprisonment for life.[3] Therefore, it is necessary to discuss the role of sentence- hearing under the Code of Criminal Procedure, 1973. We shall also discuss the provisions of the above Code in the light of it as a rehabilitative technique.
In Jai Kumar v. State of M.P[4] Supreme Court held that “Section 302 of the Indian Penal Code authorizes the Court to punish the offender of murder with death or imprisonment for life. The statute therefore, has provided a discretion to the Court to sentence the offender either with death or with imprisonment for life: Obviously, a serious decision and a heavy burden imposed on the Court. This discretion conferred however, shall have to be thus exercised in a manner and in consonance with the concept of law so as to sub-serve the ends of justice and it is on this aspect of the matter that in a long catena of cases this Court in no uncertain terms laid down that award of death sentence though within the ambit of jurisdiction of the courts, but that does not clothe the Courts to exercise the same in a manner indiscriminate. This Court has been candid enough to record on more occasions than one that it is only in the rarest of the rare cases that this discretion as regards capital punishment ought to be exercised. Ours is a civilized society. Tooth for a tooth and eye for an eye ought not to be the criteria; the civilization and the due process of law coupled with social order ought not to permit us to be hastly in regard to the award of capital punishment and as a matter of fact the courts ought to be rather slow in that direction.” In State of Rajasthan v. Kheraj Ram [5] Supreme Court held that “Section 361 and Section 354 (3) of The Code Of Criminal Procedure, 1973, have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed.”
We are living in the society, which is essentially ‘Individual Justice Centered’ and governing on the sound principles of ‘rule of law’. But, in this ‘Individual Centered Justice’ system number of other realities also lives. Judiciary has to face the double enmity of socio-political realities of individual crime on the one hand and on the other it has to face the politics of judiciary as the third organ of the state. The lack of uniformity is all due to the above tussle. Even so the criminal law is rule-based. “When we come to the sentencing stage of the criminal process, we find that once we get beyond the conviction of the accused, the rules and principles of the criminal law largely evaporate and the system becomes much more discretionary and less regulated by law.”[6] The central problem with which Liberalism is concerned is the relation between the individual and authority. It holds that, in view of the absolute value of human personality, no human being should be made to surrender himself to any authority capable of acting capriciously and arbitrarily. He can submit only to the authority of law, which is impersonal and objective. As Voltaire puts it, ‘Freedom consists in being independent from everything but law’. The same might be right for the criminal law too. In the absence of proper set of rules for sentencing, the liberty of the individual is at stake of the discretion of Judges.
The reactions to crime have been different at different stages of human civilization. There are number of theories available pertaining to ‘Reaction to crime’. Important among those theories are Retribution theory, Utilitarian theory, Deterrent theory etc. In common, every theory provides justification for punishment. We can summarise the objects of punishment as:
1. Partly of making example of the criminal;
2. Partly of deterring the criminal from repeating the same act;
3. Partly of reforming the criminal by eradicating the evil will; and
4. Partly of satisfying society’s feeling of vengeance which the act is supposed to evoke.[7]
Retributive and Deterrent Theories
In the words of Hegel punishment ‘annuls’ the crime. Punishment is justified as the natural response to crime. The justification of punishment is to deter the crime. In the words of Stephen, “ criminal law stands to the passion of revenge in much the same relation as marriage to sexual appetite”[8]. Immanuel Kant expressed, “ Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime, for a human being can never be manipulated merely as a means to the purposes of someone else and can never be confused with the objects of the law of things.”[9] Though laws are based on ‘right reason’ and are improperly described as ‘commands’, Kant concedes that they require to be enforced by means of penalties. He asserts that freedom and law, which are the two axes of civil legislation, should be combined with force in order to achieve a constitutional order. He does not justify punishment on the ground that it would prevent repetition of crime in the future or that it tends to reform the culprit as was done by Bentham; he adopts the view that it is the wages of sin. In short he upholds the retributive theory. The behavioural premise of desert is that individuals are responsible and predominantly rational decision makers. In the words of Andrew Ashworth the political premise is that all individuals are entitled to equal respect and dignity: an offender does not forfeit all rights on conviction, and has a right not to be punished disproportionately to the crime committed.
Proportionality is the key. In Gopal Khaitan v. State[10] Court held that, “Law is good but justice is better and it is expedient in the interest of justice that the sentence passed in a case should reasonably be balanced to the exigencies of the case.” “Some other supporting arguments for retribution may be summarized as follows:
1. Retribution connects the offender to correct values; it sends the message to the wrongdoer that what he did was wrong. Retribution should, therefore, not be confused with revenge.
2. It would be unfair to victims if there is no retribution against the wrongdoers.
3. It would also be unfair to the law-abiding citizens if the offenders get undeserved benefit through their criminal acts.”[11]
In the words of Lord Denning, “The ultimate justification of any punishment is not that it is a deterrent, but that it is the emphatic denunciation by the community of a crime”[12]. “Major utilitarian writers such as Jeremy Bentham develop the notion of setting penalties at levels sufficient to outweigh the likely benefits of offending”[13]. According to the Bentham’s Hedonistic Calculus for the Measurement of Pleasures and Pains the greatest number represents the supreme value, and that the individual counts only for one: it may therefore be justifiable to punish one person severely in order to deter others effectively.
Primary and Secondary Decisions
“The first issue which a court has to decide after finding an accused person guilty is to determine whether the offender needs to be dealt with through ‘individualization’ or by penal sanctions. The tem ‘individualization’ includes in this context preventive as well as rehabilitative measures, and an approach different from the concepts of retribution and general deterrence. After making the choice between the two conflicting approaches, the court has to select the appropriate mode out of the available devices in the particular approach. If the choice made is ‘individualization’ the further issue is to choose between alternatives like probation and suspended sentence. If the punitive approach is chosen, the alternatives available are fine, imprisonment, or death sentence in the extreme cases. It is obvious that in case of the imposition of imprisonment or fine, the quantum of the sanction shall also have to be fixed. The various parts of the sentencing decisions are referred to as the primary and secondary decisions.”[14]
Pre-sentencing Inquiry
The significance and importance of the pre-sentence report has been described by Sheldon Glueck thus:[15]
“A pre-sentence investigation is helpful even if one clings to the conviction that the chief aim of the criminal law is painful punishment with a view to general and specific deterrence; all the more necessary it is if one believes its main objective to be the reform and the rehabilitation of the offender.
Not only is the pre-sentence report valuable as a basis for sentence and treatment in the individual case but the accumulation and study of many pre-sentence reports can lead to a realistic rather than a merely theoretical, re-examination of the entire philosophy of punishment.”
“The congress of the Institutional Penal and Penitentiary Commission in Brussels held in 1951, recognized the utility of pre-sentencing reports and some of the resolutions reproduced below indicate the scope and content of such reports likely to be helpful in the sentencing process:
1. In the modern administration of criminal justice, a pre-sentence report covering not merely the surrounding circumstances of the crime but also the factors of the constitution, personality character and socio-cultural background of the offender is a highly-desirable basis for the sentencing, correctional and releasing procedures.
2. The scope and intensity of the investigation and report should be adequate to furnish the judge with enough information to enable him to make a reasoned disposition of the case.
3. In this connection it is recommended that criminologists in various countries conduct researches designed to develop prognostic methods (‘prediction tables’, etc.).
4. It is further recommended that the professional preparation of judges concerned with peno-correctional problems include training in the field of criminology.”[16]
In the absence of any pre-sentence reports, courts in India have to fix the punishment on the basis of whatever inadequate information they receive about the offender in the course of the actual trial. The Supreme Court has lamented more than once over this kind of unsatisfactory state of affairs. In P.K. Tejani v. M.R. Dange[17], Krishna Iyer, J. Observed:
“Finally comes the post-conviction stage where the current criminal system is the weakest. The court’s approach has at once to be socially informed and personalised. Unfortunately, the meaningful collection and presentation of penological facts bearing on the background of the individual, the dimension of damage, the social milieu and what not – these are not provided for in the Code and we have to make intelligent hunches on the basis of materials adduced to prove guilt…”
Section 235 (2) of the Criminal Procedure Code of 1973, deals with pre-sentencing hearing. “Despite the mandatory provision contained in Section 235 (2) of Cr.P.C., 1973, the courts quite often take up the pre-sentencing exercise in a somewhat casual manner as if it was just a meaningless formality.”[18] In number of cases i.e., Santa Singh v. State of Punjab[19], Anshad v. State of Karnataka[20], etc., court in detail discussed the importance of pre-sentencing aspect of hearing.
The punishments available in India are capital punishment, imprisonment including life-term and fine.
The Supreme Court is working hard to provide guidelines for the above-mentioned punishments. In India, the discretion regarding punishment rests with the judge. Therefore, to provide some sort of uniformity in sentencing process Supreme Court, time to time gives guidelines for the Subordinate Courts.
Like, while dealing with ‘Capital Punishment’, Supreme Court gave guidelines of ‘Rarest of Rare Cases’, through its larger Bench of five judges in Bachan Singh v. State of Punjab[21]. Other important areas of discussion are ‘President’s Mercy Jurisdiction’, ‘Delay in Execution’, Fine and Imprisonment’, etc.
Supreme Court is working hard to remove the ‘Disparity in Sentencing’. “The magistracy, while awarding the sentence must bear in mind that grading of various offences in the penal code is based on their gravity; and the gravity of an offence is generally assessed in terms of social danger, social disapprobation; alarm it causes in the society and depravity of the offender. It is for this reason that quite often similar offence committed by two different persons is looked at differently in the matter of sentencing. The criminal act, which we call crime, being related to social behaviour, there cannot be any exact measuring rod to assess its intensity and magnitude and, therefore, any mathematical accuracy of punishment is a myth. It is for this reason that punishment has to be awarded within the broad parameters set by the penal court, its exact quantum being left to the judicial discretion of the sentencing authority.
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Notes
*Jasper Vikas George, Advocate, Delhi High Court, Res. 69, Antriksha Apartments, H-3, Vikas Puri, New Delhi -110018, Office. G & G Associates, G-2/2, Ground Floor, Sector-16, New Delhi-110085, (M) 9818821498, contact at
jaspervikas@yahoo.com g_and_gassociates@yahoo.co.in 1. Larcey, 1987, p. 222-223, Quoted from Sentencing, p. 197.
2. Ashworth, Andrew, Sentencing, p. 819.
3. Huda, Shamsul, Principles of the Law of Crimes, p. 444.
4. 1999 (3) Crimes 120 (S.C.)
5. 2003, 8 SCC 224.
6. Quoted from Sentencing, p.197.
7. Huda, Shamsul, Principles of the Law of Crimes, p. 5.
8. Stephen, General View of the Criminal law, p. 99
9. The Metaphysical Elements of Justice, translated by John Ladd (Bobbs Merrill, U.S.A.), p. 100 quoted from Siddique, Ahmad, Criminology Problems and Perspectives, p. 112.
10. A.I.R. 1969 Cal. 132 at p. 138
11. Siddique, Ahmad, Criminology Problems and Perspectives, p. 113.
12. Denning, Rt. Hon. Lord, Landmarks in the Law, p. 27.
13. Ashworth, Andrew, Sentencing, p. 820.
14. Siddique, Ahmad, Criminology Problems and Perspectives, p. 322.
15. Journal of Criminal Law and Crime 717, quoted from Siddique, Ahmad, Criminology Problems and Perspectives, p. 324.
16. Ibid. p. 324.
17. 1974 1 SCC 167.
18. Siddique, Ahmad, Criminology Problems and Perspectives, p. 327.
19. 1976 4 SCC 190.
20. 1994 SCC (Cr.) 1204.
21. 1980 2 SCC 684.
22. Prof. Paranjape, N.V., Criminology and Penology, p. 175.
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