By:- thelawiq.com Written By: Harshvardhan Abhimanyu Karad (MNLU Mumbai)
In the Indian criminal justice system, no structured guidelines have been issued nor has any mandate been laid down by the judiciary or the legislature apropos the sentencing policy or the minimum punishment that could be inflicted by the Judge. In order to avoid the uncertainty that pervades in the infliction of the sentences, it has been several government committees for the need to adopt the guidelines or the policy on the subject. Thus, in the absence of such guidelines, the baton had been taken by the higher courts have laid down certain principles as well as the factors that must be taken into the consideration while awarding of the sentence.
In the year 2013, the responsibility of the task had been handed over to the Malimath Committee which has reported that –
“The Indian Penal Code prescribes offences and punishments for the same. For many offences only the maximum punishment is prescribed and for some offences the minimum is 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 I 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 minimize uncertainty to the matter of awarding sentence. There are several factors which are relevant in prescribing the alternative sentences. This requires a thorough examination by an expert statutory body.”
It has been further advised by the committee that in order for there being the “predictability in the matter of sentencing”, there should be establishment of the statutory committee under the aegis of the Judge of the Apex court or the High Court such that the guidelines on the minimum punishment and the sentencing policy could be laid down. This report has been reasserted again in the year 2008 by the Madhava Menon Committee.
Thus, from the above it could be implied that at present there is no sentencing policy under the Indian criminal justice system, unlike the United State and the United Kingdom, as a corollary of which the punishment inflicted is premised on the individual analysis and philosophy of the Judge.
PUNISHMENT PROVISION UNDER THE IPC AND OBJECT THEREOF:
The chapter III of the Indian Penal Coe, 1860, under the provision section 53 provides for the kinds of the punishments that could be inflicted under the code, which are as hereunder:
1. Death Penalty
2. Imprisonment for life
4. Forfeiture of property
The main objective behind the punishment infliction could be stated to be the prevention of the crime in the society by punishing the transgressors and the perpetrators, or by their rehabilitation or with the compensation to the victims such that there could maintenance of the law and order in the society.
WHY MINIMUM PUNISHMENT IS INFLICTED IN THE CERTAIN CASES:
The sentence that should be inflicted for the offense should neither be too excessive nor even ridiculously low. The principle of the proportionality should be kept in the mind by the Judge, while determining the quantum of the sentence, and that too should be based on the facts and circumstances of the given case. Also, there are certain other factors and aspects that shall also be taken into the consideration like the gravity of the offence, manner of commission of the crime, age and the sex of the Accused, etc. But nevertheless, even if the minimum punishment is inflicted by the judge, that should not be based or premised on the arbitrary or the whimsical facts.
The term minimum punishment is implied as the prescription of the minimum sentence for the offence by the legislature, without conferring any discretion on the court, and which sentence could not be reduced by the court, unless the exceptional case warrants. But their certain offenses, wherein albeit minimum punishment has been prescribed by the legislature, but nevertheless discretion has been conferred on the court to even reduce that.
Under the Indian penal Code, the punishment that could be inflicted for the certain offense has been provided under the benchmark of the minimum and the maximum punishment, and determination of the appropriate punishment for the case at hand becomes the ardent task for the Judge. The minimum and the maximum punishment only provide for the yardstick between which the punishment could be awarded for the offence, but based on the certain circumstances, the awarding is at the discretion of the judge. More often than not, the minimum punishment is awarded by the Judges in the cases beforehand owing to the following reasons as have been mentioned hereunder:
1. The manner in which and the circumstances under which the sentences have been committed.
2. The age of the Accused is a relevant factor in the determination of the sentence, but save herein that no a determinative factor.
3. The probability of the reformation and rehabilitation of the Accused, and the chances of the subsequent commission of the crime.
4. When the Accused believed himself to be morally justified in the commission of the crime.
5. When the Judge is of the view that the crime has not been committed in the preordained manner.
The above list is not exhausted, but more often than not it has been perceived that for the various offenses the minimum punishment is awarded by the Judges. In the case of the Shailesh Jasvantbhai and Another v. State of Gujarat, it has been held by the Apex Court that-
In the case of State of Madhya Pradesh vs. Mehtab, it has been held by the Apex Court that the convict against whom the charge has been proved, it becomes the obligor of the judge to award the punishment. It was further held that the sentence that should be inflicted should also be fair to the society and not only the Accused.
The evolution of the law and its implementation is co-extensive with the evolution of the society, and the law ought to be keep the parallel pace with the society. Under the Indian Penal Code, under most of the provisions, if not all, the minimum and the maximum punishment had remained same, but what has changed in the years is the perception of the society, what had been perceived as the heinous and the most brutal form of the commission of the offence 10 years ago, is considered as the new common. With the advancement of the society, the manner of the commission of the offences has also evolved, and such commission are fall at the lowest grade, as the multiple manner of the commission, in most brutal form, ever than before had come to the fore, thus not warranting the maximum punishment under the provisions, which earlier used to be inflicted. It has been stated by the Friedman in his “Law in Changing Society” that “State of criminal law continues to be as it should be a decisive reflection of social consciousness of society.”
Thus, since the notion of the gravity of the offense has changed, so will the sentence thereon. It has been stated by the Apex Court in the case of State of Andhra Pradesh v. Polamala Raju Rajarao, that- “We are of the considered opinion that it is an obligation of the sentencing court to consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the gravity of the offence.”
Following are the circumstances wherein the punishment had been reduced by the Apex Court along with the opinion thereon:
In case, wherein for the rape of the minor when the sentence of the seven years had been imposed by the trial court, on appeal it had been reduced to 3 years by the High Court.
While reducing the sentence from the three years to the one year for the offense committed under the Section 324 of the Indian Penal Code, it has been opined by the Apex Court in the case of Gopal Singh vs. State of Uttarakhand that- “Apart from other circumstances sometimes lapse of time in commission of the crime is a ground for reduction of the sentence.”
While dealing and grappled with the imposition of the sentence on the rape victim, it has been opined by the Apex court in the case of Shyam Narain v. The State of NCT of Delhi “The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes.” Thus, it could be implied that the amount of the punishment which makes realize the Accused the offense committed by him, should be sufficient and imposition of any further sentence would be futile.
In the case of Sunil Dutt Sharma v. State (Govt of NCT of Delhi, the Hon’ble Apex Court has stated that– “The principles of sentencing evolved by this Court over the years, though largely in the context of the death penalty, will be applicable to all lesser sentences so long as the sentencing Judge is vested with the discretion to award lesser or a higher sentence.”
IS INLFICTION OF THE MINIMUM PUNISHMENT JUSTIFIED?
The minimum sentence, the term implies that the minimum term of the imprisonment which must be inflicted while awarding the sentence for the offense in question, without there being any discretion conferred on the court of law. In other words, it implies the quantum of the punishment below which the imprisonment could not be awarded. A provision whereunder discretion has been conferred on the court to not award the minimum sentence could not be treated at par with the provision whereunder minimum sentence has been prescribed sans nay discretion on the court.
The punishment must be inflicted to the Accused in proportion to the crime that has been committed. In the case of the Mohd. Arif Ashfaq Vs. The Registrar, Supreme Court of India, it has been opined by the Apex Court that the crime and punishment are the two sides of the same coin. The culpability of the offender proportionated to the punishment became the premises of the criminal jurisprudence. The court further opined that “It is not out of place to mention that in all of recorded history, there has never been a time when crime and punishment have not been the subject of debate and difference of opinion. There are no statutory guidelines to regulate punishment.”
The punishment that should be awarded to the accused shall be just, adequate and proportionate to the gravity of the crime that has been committed by him, and should commensurate with it. It also is proportionate to the nature and the manner of doing the offence. The other aspects that shall be kept in the mind while inflicting the punishment shall be societal interest and the societal conscience, while the question of the determination of the sentence of the gravity of the crime is under consideration.
About the crime and the criminal, it could also be said that- “The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behavior has to be countered not by undue cruelty but by re-culturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defense. Hence a therapeutic, rather than an ‘in terrorem’ outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries.”
Also, it has be stated by the Hon’ble Apex Court that- “The reformative approach to punishment should be the object of the criminal law. In order to promote rehabilitation of the offenders without offending their communal conscience and to secure social justice to them, the courts should prefer reformative approach towards the offenders instead of subjecting them to harsher punishments.”
Thus, the conclusion on the present article could be best given by the judgement of the Apex Court in the case of the Sahdev vs. Jaibar, wherein the court has stated that the “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. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for 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.”
It could also be stated that the as the society is progressing it becomes imperative upon the law to improvise and evolve as well, meaning thereby that the letter of the law remains the same, but the implementation thereof ought to be progressive. The minimum punishment is awarded on the same notion that what was considered as the heinous crime a time ago, is now the common crime committed in the states, and as a corollary not shaking the societal sense and security to the extent that punishment of the greatest measure should be awarded, rather the minimum punishment suffices in such cases.