17 Sentencing: Theory and Practice

Mr. Pattabhi Ramarao K.

I. INTRODUCTION

Punishing the wrong doer or treating him appropriately is one of the vital functions of the criminal justice administration. Many penal statutes prescribe the maximum punishment for offences, leaving the discretion to the courts to determine the quantum of sentence that can be imposed on the offender. In many jurisdictions law also provides for alternative methods to punishments, such as release after admonition or on probation of good conduct for certain categories of offences and offenders. The Indian Penal Code, 1860, the chief penal statute in our country provides for the maximum punishment that can be awarded to the different offences and only for few offences minimum punishment is prescribed. The special and local criminal statutes also are not different from Indian Penal Code, 1860, in this regard. Thus Indian judges are endowed with enormous discretion in determination of quantum as well as form of the Punishment to the convicts. The only general provision which caps the discretion of the sentencing judges to a very limited extent can be found in section 354 (3) of the Code of Criminal Procedure, 1973 which requires that in all cases punishable with the imprisonment of more than one year a minimum of three months imprisonment shall be awarded if there exist no special reasons.1 As far as form of punishment is concerned, the punishments that are mentioned in section 53 of the Penal Code only are to be imposed.

The process of sentencing is of considerable significance in criminal justice system and thus it is rightly described as a judgment on conviction of crime.2 Fixing the exact quantum of punishment is a highly difficult task. Great legal philosopher Hegel in his ‘Philosophy of Right’ pithily put the difficulty as follows:

Reason cannot determine nor can the concept provide any principle whose application could decide whether justice requires for an offence (i) a corporal punishment of forty lashes or thirty nine, or (ii) a fine of five dollars or four dollars ninety three, four, etc., cents, or (iii) imprisonment of a year or three hundred and sixty-four, three, etc., days or a year and one, two, or three days, And yet injustice is done at once if there is one lash too many, or one dollar or one cent, one week in prison or one day, too many or too few.3

A properly crafted legal frame work is needed to meet the challenging task of appropriate sentencing. But our judicial system could not develop any legal principles that can be applied in determination of appropriate sentences. Nor there exists any legislative frame work in this regard. This resulted in colossal liberty for Indian judges, and made the entire process largely judge centric. The situation is rightly described by the Supreme Court in Swami Shraddanandda @ Murali Manohar Mishra vs State of Karnataka4 thus:

The inability of the Criminal Justice System to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked imbalance in the end results. On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the Criminal Justice System. Thus the overall larger picture gets asymmetric and lop-sided and presents a poor reflection of the system of criminal administration of justice.

The unguided sentencing discretion led to unwarranted and huge disparity in sentences awarded by the courts of law, which is contrary to the basic principle of even handed administration of criminal law. Though blind uniformity in sentencing cannot be insisted, disparate sentences are considered to be violation of the principle of equality. In the long run disparate sentencing may have adverse effect of erosion of the public trust and confidence in the justice delivery system. Indian Supreme Court recognized the problem more than four decades ago when it found that in two identical cases, punishment of imprisonment 4 years in one case and mere three months jail term in another case is imposed.5 Another example is a case in which a one day jail term awarded by the trial court was enhanced to seven years by the High Court and subsequently modified to three years by the Supreme Court.6 The Supreme Court in Dananjoy Chatterjee@Dhana vs. State of West Bengal7 observed that “Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentences for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encouraging the criminals and in the ultimate make justice suffer by weakening the system’s credibility. Though it is recognized that punishing the wrong doer is at the heart of criminal justice delivery, in our country it is weakest part of administration of criminal justice.”8

Neither the courts nor the legislature can devise any formula for determination of appropriate sentences because of the limitation that none can visualize every potential situation, relating to sentencing the offender that may arise before the courts and provide guidelines to deal with all such situations. There is no straight jacket formula for sentencing the accused on proof of crime. Legal scholarship on sentencing developed basing on the theories of punishment and hence it is apposite to understand the inter play between the theories of punishment and sentencing process.

THEORIES OF PUNISHMENT AND SENTENCING PROCESS

Ideally, any punishment imposed by the court shall be justified either by it’s purpose or the goal. Penologists all over the world pondered over the justifications for punishing the criminals. On careful analysis punishment is inflicted on offender for achieving any of the following purposes, namely –

The above justifications can be found in theories of punishment known as (a) Retributive theory (b) Deterrent theory (c) Preventive theory and (d) Reformative theory. Theories of punishment thus offer justifications for punishing the offenders and the purpose that is to be achieved by imposing the punishment. Traditionally theories of punishment have been either consequentialist (i.e concerned with the supposed effects of the punishment) or deontological (i.e concerned with moral considerations other than consequences).9 Philosophy of Jeremy Bentham arguing for penal utilitarianism and Immanuel Kant, supporting the retributive sanctions provided fertile platform for the rival theories of punishment. Benthamites argue for such punishment which has some utility and Kantinians support that the persons who committed an offence has to suffer the punishment because they have chosen their actions which are punishable and no other justification is necessary to punish them.

Indian criminal justice system offers an example of influence of the theories of punishment on sentencing. During the British regime and the first two decades after independence with Victorian age values in the ambiance, Indian courts were more concerned with deterrent and proportionate sentences. In Emperor vs, Maiku, 10, the Allahabad High Court observed that “It is an elementary proposition in criminal jurisprudence that sentence in each case should be proportionate to the nature and gravity of the crime.” Similar observation was made by the Calcutta High Court in Emperor vs. Yar Muhammad.11 In Mohomed Hanif vs. Emperor12 the Bombay High Court observed regarding sentencing the offenders as follows:

In the first place, it is necessary to pass a sentence upon him which will make him realise that a life of crime becomes increasingly hard, and does not pay. In the second place, the sentence should serve as a warning to others who may be think-ing of adopting a criminal career. In the third place, the public must be protected against people was show that they are going to ignore the rules framed for the protection of society.

The above passage indicates that deterrence and protection of society were considered to be the objectives of punishment. Though proportional and deterrent sentences were advocated, harsh and inappropriate punishments were seriously objected.13 The reformative theory had it’s sway for nearly two decades commencing from mid-seventies. For some time, “Gandhian axiom that crime is like disease, and correction, not cruelty, has dominance in the sentencing calculus”14. The Supreme Court religiously advocated for reformation in the process of punishment. In Mohammed Giasuddin vs. State of Andhra Pradesh15 the Court observed as under:

If every saint has a past, every sinner has a future and it is the role of law to remind both of this. The Indian legal genius of old has made a healthy contribution to the world treasury of criminology. The drawback of our criminal process is that often they are built on the bricks of impressionist opinions and dated values, ignoring empirical studies and deeper researches.

The court further opined thus:

Progressive criminologists across the world will agree that the Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals-mental and moral-is the key to the pathology of delinquency and the therapeutic role of ‘punishment’ The whole man is a healthy man and every man is born good. Criminality is a curable deviance. The morality of the law may vary, but is real. The basic goodness of all human beings is a spiritual axiom, a fall-out of the advaita of cosmic creation and the spring of correctional thought in criminology.

In Santa Singh vs. State of Punjab16 the Supreme Court observed that

The modern concept of punishment and penology has undergone a vital transformation and the criminal is now not looked upon as a grave menace to the society which should be got rid of but is a diseased person suffering from mental malady or psychological frustration due to subconscious reactions and is, therefore, to be cured and corrected rather than to be killed or destroyed.

In Maru ram vs Union of India17, a judgment of five judge bench of the Supreme Court Justice V R Krishna Iyer speaking for majority18 made the following observation:

We feel that correctional strategy is integral to social defence which is the final justification for punishment of the criminal. And since personal injury can never psychically heal, it is obdurate obscurantism for any legislative criminologists to reject the potential for prisoner re-socialisation from the calculus of reformative remission and timely release.

While this trend in favour of reformation continued for about two decades, in recent years the focus appears to have shifted from the reformative approach to deterrent sentences on the principle of proportionality. This approach pushed back the reformative approach. In Mahesh vs. State of Madhya Pradesh19 the Supreme Court deprecated the practice of taking a lenient view and not imposing the appropriate punishment observing that 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. The court held that “To give a lesser punishment to the appellants would be to render the justice system of this country suspect. The common man will lose faith in the courts. In Sevaka Perumal vs. State of Tamilnadu 20the Supreme Court opined that:

“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.”

In Jashubha Bharatsinh Gohil and Ors. vs. State of Gujarat 21the apex court opined that Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence. In the case of Hazara Singh vs. Raj Kumar22 the apex Court has observed that:

“The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict. This Court further observed that the cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence.”

In State of Madhya Pradesh vs. Bablu23 after considering and following the earlier decisions, this Court reiterated the settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity, nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society.

Thus the last two decades witnessed a paradigm shift in the approach of the Supreme Court in sentencing practices and perhaps the changing social conditions and growing rate of the crime might have caused the change in the attitude of the courts in our country. The courts seem to have almost abandoned the reformative approach and in State of M.P. vs. Bala @Balram24the Supreme Court observed that “It is true that reformation as a theory of punishment is in fashion but under the guise of applying such theory, courts cannot forget their duty to society and to the victim.” Further it is to be noticed that the apex court in many recent cases did not deliberate on any particular theory of punishment and has been repeatedly following the principle of proportionality. The conceptual development of “Just Deserts” which is an outcome of the Kant‘s penal philosophy of retribution is the foundation of the proportionality principle. According to the principle the punishment shall fit the gravity of the crime and the offenders shall be punished because they deserve punishment. Andrew Von Hirsch, the modern exponent of the principle argues that proportionate punishment is requirement of fairness. Another argument in favour of the standardisation finds support on the rationale of rule of law. It is argued that the rule of law in this context means that judicial decisions should be taken openly and by standards declared in advance.25 On the other hand the preachers of utilitarianisms argue that the punishment shall yield some result either deterrence or reformation. They consider punishment as an evil and only the sentence required to deter the offender and the community need to be imposed. Against the idea of standardisation of the punishment, they argue for the absolute discretion to be given to the sentencing judges to decide appropriate form and quantum of punishment. The argument is that the judges have to fix the quantum that can reform, deter and rehabilitate the offenders.

Theories of punishment influence the approach of the courts towards sentencing. One might expect that sentencer’s views on the principles of sentencing would be closely related their opinion on the aims of punishment.26 A proper understanding of theories of punishment particularly in the absence of the sentencing guidelines, help the judges to fix the quantum and form of the punishment that can be imposed on offender. As the justifications for punishment advocated by the supporters of different theorists are not in watertight compartments a sentence awarded by the court may have different effects. A sentence to have the effect of general deterrence at times shall be more severe than a retributive and it may even remove the desire to commit the crime from the mind of the offender and he may become incapacitated to do the crime. It cannot be said that the sentencing judge shall determine the quantum of the sentence basing on any particular theory of sentence and it is not possible to undertake such exercise. Nevertheless the punishment awarded by a judge unguided by any principles reflects his personal penal philosophy. The judge who believes in retribution theory imposes the sentence, which satisfies the vengeance of the victims and the one who believes in deterrent theory, fixes the quantum of punishment which will have the effect of general as well as individual deterrence. The judge who believes in incapacitation may award long time custodial sentence or deprivation of the property. In the process care shall be taken to avoid the dominance of personal philosophy of the judges. Though sentencing disparity cannot be eliminated altogether yet efforts can be made for reducing it to minimum level.27

III. SENTENCING IN PRACTICE: TWO SCHOOLS OF THOUGHT

Sentencing is considered to be the end product of most law enforcement and prosecutorial efforts. Though the common man sees crime reduction as objective of sentencing, the judges and jurists have altogether different views in this regard. Few of them, are of course share common man’s perception, but as the sentencing dynamics disclose, a number of factors are considered by the judges in deciding sentence. The crucial issue is regarding the factors that can be considered by the judges while imposing the sentence. Justice P.N. Bhagwati in Santa Singh vs. State of Punjab28 observed thus:

“a proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances extenuating or aggravation of the offence, the prior criminal record if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, society and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility of return of the offender to a normal life in the community. The possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by other and the current community need, if any, for even a deterrent in respect to the particular type of office”.

The apex court and High Courts, while deciding the cases developed certain principles and made observations in the judgments as how the discretion is to be exercised. Penologists and jurists also contributed their scholarship as to how the judges have to exercise the sentencing discretion. Though such observations are loosely referred to as “sentencing policy” and “theories of sentencing”, in fact they only indicate sentencing practices by the courts and various factors that are to be considered by the courts while sentencing the offenders.

Disparity in the practices can be noticed in the observations made by the courts and this is largely because of the tussle between two rival schools of thought on sentencing, one arguing for a kind of uniformity in the sentencing which requires identical disposition of all persons convicted of the same offence and other demanding individualisation of the punishment basing on the character and antecedents of the convict by standardisation of sentencing process. The argument for uniformity in sentencing by standardisation of the sentences finds support in the philosophy of retributive and deterrent theories of punishment where as the individualisation of the punishment is based on reformative approach.

A. STANDARDISATION OF SENTENCING PRACTICES

It is argued that the imposition of disparate sentences up on the offenders with similar characteristics convicted of similar crimes hinders correctional methods and that the convicts who receive severe sentences than the sentence imposed on fellow convicts of similar offence and circumstances develop antagonism towards society. It may adversely affect the public trust and confidence in the justice system. The supporters of the “Just Deserts” and the principle of Proportionality insist on standardisation of the sentencing practices. The rule of law doctrine also requires that the discretion of the sentencers shall be guided discussion with the rules for sentencing framed in advanced. Though the constitutional permissibility of disparate sentences is debatable, there cannot be any disagreement to oppose the arbitrary and unreasonable exercising of sentencing discretion conferred on the judges. What is insisted is that the distinctions in sentencing shall be on sound reasons rooted in significant factual differences which have made the two cases substantially different. To achieve the kind of uniformity, standardisation of sentencing process is suggested. The standardisation of sentencing is possible by broadly categorizing:

(a) Offences such as offences against women, economic offices, white caller offences, regulatory offences etc.

(b) Offenders, such as adults, juveniles, women, youth etc and

(c) By strict tabulation of aggravating and mitigating circumstances.

In the process of the standardisation, the legislature shall prescribe minimum and maximum range of penalty, be it imprisonment or time, for each category of the offences qua each category of the offenders. Such fixation reduces the disparity in sentencing. The emphasis while determining the sentence is on crime and not the circumstances or the traits of the criminal. In Bachan Singh vs. State of Punjab 29a five judge Constitution Bench of the Supreme Court dismissed the suggestion for standardisation as well-nigh possible for the following reasons30:

(1) There is no agreement amongst jurists and penologists as to what information about the crime and criminal is relevant for fixing the dose of punishment for person convicted of a particular offence.

(2) Criminal cases do not fall in to set behaviour patters and categorization is not possible.

(3) Standardisation of the sentencing process leaves no room to take account of variations in culpability within single offence category cases.

The Supreme Court further opined that standardisation of punishment is a policy decision falling within the legislature power of the State and the judiciary shall not make any endeavour in this regard.31

B.INDIVIDUALISATION OF SENTENCING PROCESS

The second school of thought on sentencing is for individualisation of sentencing process, against the standardisation. The argument is that the standardisation of the sentencing practices does not adopt correctional practices and the reformation may not be possible by standardized punishments. While commenting on a judgment in which the youngsters were sentenced to jail term, Justice V R Krishna Iyer said:

The present case is an illustration of judicial habituation to prescribing sentences conditioned by the offence and its milieu, forgetting the fundamental fact that the human delinquent, not the criminal deviance, is the cynosure of punitive processing.32

The essence of individualisation of the punishment is to take the factors relating to the offender into consideration for fixing the term of the imprisonment. Such factors may include age, social back ground, education, occupation, circumstances in which the offence was committed, the possibility of his reformation, antecedents, character etc of the offender. Above all individualisation of sentencing process requires that the sentencing judge shall be vested with discretion to select the form and the quantum of punishment that can be imposed. Sections 235(2)33 (applicable to the trial of sessions cases ) and 248(2)34 (applicable to the trial of warrant cases by magistrates ) of the Code of Criminal Procedure, 1973, facilitating hearing the accused before passing the sentence, indicate the inclination of the legislature towards the pesonalisation of sentences. As remarked by the supreme Court in Santa Singh,35 these provisions reflect the contemporary thinking that sentencing is an important stage in the criminal justice and it should be given due place in the system. The Law Commission of India in it’s fourty-seventh report favoured individualisation of the punishments. It observed thus:

A proper sentence is a composite of many factors, including the nature of the offence, the circumstances-extenuating or aggravating-of the offence, the prior criminal record, if any, of the offender, the age of the offender, the professional and social record of the offender, the background of the offender with reference to the education, home-life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospect of the rehabilitation of the offender, the possibility of a return of the offender to normal life in the community, the possibility of treatment or of training of the offender, the possibility that the sentence may serve as deterrent to crime by this offender or by others, and the present community need, if any, for such a deterrent in respect to the particular type of offence involved.

Though the above recommendation of the Law Commission on sentencing suggests both the crime and criminal are important the dominant tone is demonstratively reformative and the suggestion is a reflection of the sentiments expressed in a numerous judgments delivered during the mid-seventies and early eighties. The exhaustive sentencing process contemplated by the Law Commission requires exercising of wide discretion by the sentencing judge. Though the recent judgments of the Supreme Court favour the principle of proportionality and deterrence few judges prefer wide discretion and reformative approach. Justice S B Sinha in Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra36 strongly advocated for sentencing discretion. He observed:

For an effective compliance of sentencing procedure under Section 354(3) and Section 235(2) Cr.P.C, sufficient discretion is a pre-condition. Strict channeling of discretion would also go against the founding principles of sentencing as it will prevent the sentencing court to identify and weigh various factors relating to the crime and the criminal such as culpability, impact on the society, gravity of offence, motive behind the crime etc.

In a recent judgment Justice Madan B Lokur opined that while awarding the punishment the principle of rehabilitation and the humanizing mission must not be forgotten.37 Thus the tussle between the two schools of thought on sentencing appears to be never ending one in the Indian sentencing jurisprudence.

IV.PRE SENTENCE HEARING

A criminal trial and evidence offer various factors relating to the crime and the manner in which it was committed. But the adversarial system of trial provides narrow scope for the information regarding the character and the antecedents of the convicts. In any scientific system which turns the focus, at the sentencing stage, not only on the crime but also the criminal, and seeks to personalise the punishment so that the reformatory component is as much operative as the deterrent element, it is essential that facts of a social and personal nature, sometimes altogether irrelevant if not injurious at the stage of fixing the guilt, may have to be brought to the notice of the Court when the actual sentence is determined.38 Sections 235 (2) and 248(2) of the Code of Criminal Procedure, 1973 provides scope for hearing the accused before sentencing. There was no such provision in previous statutes prescribing criminal procedure. The meaning of the word “hearing” in this case fell for judicial consideration in Santa Singh vs. State of Punjab39 in which it was opined that:

The hearing contemplated by Section 235(2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same.

In practice the hearing in a number of cases is confined to oral hearing and the courts are not furnished with required information regarding the criminal. There is no provision for pre-sentencing investigation or inquiry or pre sentence reports. Some of the information relating to crime can be culled out from the phase prior to the hearing on sentencing. The information would include aspects relating to the nature, motive and impact of crime and culpability of convict etc. 40 What is lacking is the information regarding social and economic back ground of the accused and his character and antecedents. The court has to hear the accused and pass the sentence basing on the hearing. Even in the light of the extended meaning of the word hearing as provided in Santa Singh, it is difficult to collect information regarding the criminal. About three decades ago the Supreme Court in Pyarli K. Tejani vs. M.Ramachandra Dange41 observed that unfortunately, the meaningful collection and presentation of penological facts bearing on the back ground 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.” This remains true even to this day. In Ramashraya Chakravarthy vs. State of Madhya Pradesh42 the apex court opined that the trial courts in this country already overburdened with work have hardly any time to set apart for sentencing reflection. In Ved Prakash vs. State of Haryana43 the Court observed that “it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitation slant” and “even if the Bar does not help, the Bench must fulfill the humanizing mission of sentencing implicit in such enactments as the Probation of Offenders Act.” The Supreme Court had an occasion to reprimand the session judge for deciding the quantum of sentence on the same day on which conviction was recorded.44 The Supreme Court however did not refer to the third proviso of section 309(2) of the Code of Criminal Procdure,1973 which mandates that no adjournment shall be granted to for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.45 The a incongruity of the legislative policy, giving an opportunity to the accused to be heard on the proposed sentence and not allowing an adjournment for the purpose of hearing on sentence can be explained as a precaution to avoid procrastination of the proceedings by the convicts. But it can be safely argued that there is no appropriate legislative frame work for the “hearing of the accused before sentencing” as interpreted by the Supreme Court in Santa Singh. Even to this day it is not clear whether the appellate courts while modifying or imposing sentence are bound by the requirement of section 235 (2) of the Code of Criminal Procedure, 1973 . The Supreme Court confronted with such a question while considering the judgment in which High Court reversing the acquittal by the trial court imposed the sentence without hearing the accused,. But the court did not answer the question as in that particular case the court restored the order of the acquittal by the trial court.46

V. DEBATE ON CAPITAL PUNISHMENT

The world on the issue of death penalty is divided. Despite rigorous campaign against death penalty many countries including India did not abolish the death penalty. But legislative policy in our country has undergone substantial change. Prior to 1955 as per the Code of the Criminal Procedure 1898, it was obligatory for a court to give reasons for not awarding death sentence. An amendment to the Code of the Criminal Procedure 1898 this requirement was done away with and later under the Code of the Criminal Procedure, 1973 the court has to record the reasons for awarding death sentence. Thus earlier for the offence of murder, death sentence was the rule and life imprisonment was an exception and after the amendments life imprisonment is the rule and death as exception. Though the constitutional validity of the death penalty was upheld by Jagmohan Singh vs. State of U.P.47 during the period when reformative was swaying the judiciary in a number of judgments the Supreme Courtt expressed it’s aversion the death penalty. The judgments of Supreme Court in Ediga Annamma vs State of A.P.48 Raghubir Singh vs. State of Haryana49 and State of U.P. vs. Rajendra Prasad50 almost pointed toward abolition of death punishment. Rajendra Prasad was a fractured verdict with Justice Krishna Iyer and Justice Desai, for majority favouring commutation of death penalty to life imprisonment and Justice A.N. Sen writing a powerful dissent. In due course of time, this eventuated in to reference of the question of the constitutional validity of the death sentence to a larger Bench in Bachan Singh vs. State of Punjab.51 Upholding the constitutional validity of the death sentence, the five judges Constitution Bench of the Supreme Court has seized the opportunity to make the rules clear. With 4-1 majority the court has evolved the test to determine whether the case falls within the category of rarest of rare case, by balancing the aggravating and mitigating circumstances, after taking the circumstances relating to the crime as well as criminal.

Bachan Singh continued to be the guiding precedent in deciding whether a case falls within the category of the rarest of rare case warranting awarding death sentence. However during the course of time it was realized that the decision on capital punishment is becoming judge centric and leading to miscarriage of justice. In Santosh Bariyar the Supreme Court opined that death sentence was awarded erroneously in few cases.52 The Supreme Court in some of its judgments has highlighted the instances of erroneously decided cases which pose serious concern in adjudication of death penalty cases. These instances reflect the extreme fragility in application of the ‘rarest of rare’ principle making the decision on death sentence too Judge-centric.53 The growing criticism against the subjectivity in awarding the death sentence made the Supreme Court to look for alternatives to death penalty as well as life imprisonment simpliciter (the sentence which can be sized down to 14 year term) and one such alternative found by the Supreme Court is awarding life imprisonment without remission or awarding life imprisonment for a fixed term without remission. This exploration started with the experiment in Swamy Shraddanand54in which the apex court has sentenced the convict to remainder of his natural life (without remission). The Court by invoking “the vast hiatus between 14 years’ imprisonment and death” has significantly expanded the range of “alternative options” which need to be exhausted before opting for death.55 A study of death sentence cases in the post- Swamy Shraddhanand verdict reveals that many cases which normally would have resulted in award of death sentence to the convicts of such cases, have got the benefit of various ‘alternative options’ between life sentence simpliciter to a sentence of full life.56 It can also be noticed that the post nirbhaya incident agitations made the parliament to amend the law relating to rape, prescribing the life imprisonment without remission (remainder of natural life of the offender) as punishment for aggravated form of rape.57 Thus the life sentence without remission has attained legislative recognition as an alternative to death penalty.

Though Bachan Singh58 still continues to be a binding precedent, it’s ratio is not spared from attack. There is no unanimity of the opinion on the factors which can be considered as aggravating or mitigating. In Sandesh alias Sainath Kailash Abhang vs. State of Maharashtra59the Supreme Court considered that “absence of normal behavior” and “ voluntary intoxication” as mitigating circumstances and later the court required to clarify in a review petition60 that those “observations may not be construed to generally mean that drunkenness of an accused is a mitigating factor in the award of punishment. In Sangeet vs. State of Haryana61, Justice Madan B Lokur questioned the method of balancing of aggravating and mitigating circumstances opining that the aggravating circumstances are relating to the crime and mitigating circumstances relate to criminal and they cannot be compared or balanced. But in Sunil Dutt Sharma vs. State (Govt of NCT of Delhi)62 in which the Supreme Court has dealt with sentencing jurisprudence at length, opined that the principles of sentencing evolved by the Court over the years, on aggravating and mitigating circumstances, 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 a lesser or a higher sentence. The lone voice of Justice Lokur in Sangeet63 did not get any support in subsequent judgments of the Supreme Court. However, in Shankar Kisanrao Khade vs. State of Maharashtra64, the Supreme Court evolved a three prong test – known as Crime Test, Criminal Test and Rarest of Rare Case Test (R R Test). According to test to consider a case as a rarest of rare case the Crime Test shall be 100%, the Criminal Test shall be 0% (no mitigating circumstances) and in addition the case shall pass RR test warranting it to be considered as a rarest of rare case which according to the court shall be society centric i.e basing on the perception of the society towards the punishment to the crime under consideration. This test is a further development of Bachan Singh principle and requires to stand the test of time.

VI. SUPREME COURT ON SENTENCING

The shift in the approach of the Supreme Court as regards to sentencing the offenders from the idea of reformation through correctional process to the retribution through the principle of proportionality, though incomplete, made the Indian sentencing jurisprudence hallow and inconsistent. Incongruity in sentencing practices and the ideas expressed by the Supreme Court in various judgments is quite apparent and becoming a cause of concern and confusion. Though the attempts of the Supreme Court to make punishment fit to the crime basing on the principle of proportionality are incoherent, the movement is towards stnadardisation of the sentencing practices. As rightly remarked by Prof. K N Chandrasekharan Pillai, “in the standardisation syndrome, no theorization is involved.”65The present sentencing practices of the Supreme Court are becoming incoherent for the following reasons:

• The Supreme Court has no consistent view on the theory that is to be followed in sentencing. In Jashubha Bharatsinh Gohil. vs. State of Gujarat66 the Supreme Court opined that “ Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence.”In Hazara Singh vs. Raj Kumar67 the apex court opined that the cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence. In State TR.P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda 68it was observed that “Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences.” In State of M.P. vs. Babulal69 the court observed that “One of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. The most relevant determinative factor of sentencing is proportionality between crime and punishment keeping in mind the social interest and consciousness of the society.” Though these observations indicate following of the principle of proportionality an off spring of retributive theory, the Supreme Court in Shatrughan Chauhan vs. Union of India70alerted the courts below against retribution saying that “Remember, retribution has no Constitutional value in our largest democratic country. In India, even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same.” This observation reflects the confusion of the Supreme Court in application of the theories of punishment. It is noteworthy to remind the judgment in an earlier case71 in which the Supreme Court recognized that in India, the view always has been that the punishment must be proportionate to the crime, but it was more skeptical when it said that applicability of the said principle in all situations, however, is open to question. In this case the court held that the sentencing must have policy of correction.
• In Bachan Singh72 the Supreme Court clearly indicated that the standardisation or making policy on sentencing is clearly out of judicial arena and it is only the parliament which can do it. In many the subsequent cases the supreme Court has not followed this dicta and has made attempts to formulate sentencing policy on it’ own In Sangeeth the court has delineated the development of sentencing policy at different phases. Such making of sentencing policy is questionable in the light of restraint exhibited by the constitution Bench in Bachan Singh. It is also to be noted that in Bachan Singh itself the court enumerated the aggravating and mitigating circumstances and cautious enough not to call it as policy. In a number of later cases the Supreme Court made unhesitant efforts to describe some random thoughts on death penalty as sentencing policy.
• which reflects the conscience of the society and the sentencing process has to be stern where it should be. State of U.P. vs. Shri Kishan75 it was opined that 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”. There are difficulties in comprehending this principle. First of all, it is not known as to how the sentencing judge perceives the “collective conscience of the society” and “cry of the society.” It may encourage, apart from the danger of substituting “judge’s perception” to “societal perception”, the media sentencing. In Om Prakash vs. State of Haryana76 Justice K.T. Thomas, deliberated on the apparent tension between responding to “cry of the society” and meeting the Bachan Singh dictum of balancing the “mitigating and aggravating circumstances.” The court was of the view that the sentencing court is bound by Bachan Singh and not in specific terms to the incoherent and fluid responses of society. In Santosh Kumar Bariyar77 the court made the following observed that Public Opinion may also run counter to the Rule of law and constitutionalism. Andrew Ashworth and Michael Hough observed that to construct sentencing policy on this flawed and partial notion of public opinion is irresponsible. The learned authors further observed:

The Supreme Court has been often quoting that the punishment shall reflect public opinion. In Surja Ram vs. State of Rajasthan73 it was held that the punishment must also respond to the society’s cry for justice against the criminal. In State of Madhya Pradesh vs. Ghanshyam Singh74 it was held that the Courts would operate the sentencing system so as to impose such sentence Unfortunately, the concept of public opinion in relation to sentencing practices is often employed in a superficial or simplistic way. In this short article we have identified two major difficulties with the use of the concept. First, members of the public have insufficient knowledge of actual sentencing practices. Second, there is a significant but much-neglected distinction between people’s sweeping impressions of sentencing and their views in relation to particular cases of which they know the facts

Summary

Appropriate sentencing of the offenders is an important function of the courts. The tussle between the rival arguments on stndardisation and individualisation of sentencing process seems to have not come to an end. Even in the jurisdictions where sentencing guidelines exist in the legal frame work, the sentencing disparity still exists. By and large Indian Supreme Court, at present, is in favour of the principle of proportionality and attempting standardisation of sentencing by narrating the aggravating and mitigating factors for considering in fixation of the appropriate sentencing. However, attempts of the Supreme Court to formulate sentencing policy ended up in additions and deletions to the list of aggravating and mitigating circumstances and could not make out the suitable theory of its choice. In Indian context the Supreme Court shall theorise the sentencing practices to guide all the courts which may reduce the disparity in sentencing.