Criminal Justice system is an instrument of state and is a key index of the state of democracy. “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country,” said Winston Churchill. A criminal trial has two stages ie determination of guilt and fixing of the sentence. We give maximum importance to determination of guilt but how punishment is decided by the judge has not received requisite juristic attention in India.
We have not done much scholarly works on gross disparities in sentencing decisions. Poor, Dalits and minorities are certainly overrepresented in our prisons and on death rows. Caste and religious biases in sentencing need a deeper examination. Even in the United States, whites’ imprisonment rate is less than one-seventh of black’s imprisonment.
“If the criminal law as a whole is the Cinderella of jurisprudence, then the law of sentencing is Cinderella’s illegitimate baby”, said British criminologist Nigel Walker. Sentencing is an instrument of social defence as well as re-socialization of the criminal. Surprisingly unlike other western countries, we have neither any Sentencing Act nor statutory guidelines for the sentencing judges. There are serious doubts about the appropriateness of sentences passed against Lalu Prasad. Similarly, demand for the mandatory death penalty in cases of child rape shows our retributive mentality and deficient understanding of limitations of criminal punishment. The promptness with which NDA government promulgated an Ordinance providing for the death penalty in cases of child rapes has been criticised by all leading experts. Even minimum mandatory imprisonment of twenty years or imprisonment for the rest of life are certainly harsh, retributive and excessive. It is sad that BJP government is following the example of Muslim countries. These countries should not be our ideals. Prime Minister Modi’s recent visit to Sweden should have ideally been used as an opportunity to learn from Scandinavian countries which prefer humane penal policies and do not prefer longer incarcerations. Incarceration rates are higher in countries whose capacities for regulating the macroeconomy and containing inequality are weak. ‘Culture of control’ is a product of the dynamics of liberal market economies. We in India, unfortunately, continue to follow ‘culture of control’ and a tendency to ‘govern through crime.’
India has a long tradition of hunting as a sport going back to Lord Rama’s father Dashrath and therefore we continue to have hunting of even endangered animals. Our fathers and grandfathers tell us stories of their hunting days. True ignorance of law is no defence but there is a need to educate people about the need to protect wild animals. The idea of man as centre of universe is dated concept. As many as 71 black bucks were killed in last two decades but other than Salman Khan’s, we know of no other conviction for hunting blackbuck in which five year’s imprisonment has been given. Was it ‘just desert’ for him? Has he paid price of his stardom? Did he deserve lighter sentence in view of social work he has been doing? Is sentencing an art or science? How judges really reach at the most appropriate sentence? Should judge take into account public opinion? are some of the questions which must be answered.
Salman is now a convict under Wildlife Protection Act,1972 which provides a minimum of one year and a maximum of six years’ imprisonment for the offence committed by him. In a country where people were given death penalty to satisfy so-called ‘collective conscience of nation’, people have started questioning the unduly harsh sentence against Salman as an overwhelming majority of public does not want to punish him with such severe punishment. Ideally public opinion should be irrelevant in the determination of sentence. We have no choice but to have justice according of law.
Sentencing is the least understood area of criminal justice system in India. It is certainly not a mechanical function. Sentencing must commensurate with the seriousness of crime. In fact sentencing is painful and excruciating and some judges do describe it as something that ‘you just sweat blood over.’ Sentencing is really quite a stressful job. We have huge disparities in the sentences passed by different judges for same offences. But then considering sentencing process in mathematical terms would be ridiculous.
The nation must know more about the determination of sentences as it is an exercise of judicial discretion. This discretion cannot be exercised in a carte blanche or unbridled manner and must be exercised with due caution and in accordance with law. Arbitrariness is anti-thesis of rule of law. Bar Council of India has not made sentencing as mandatory course in its LL.B curriculum. UGC too has not included it as compulsory course in LL.M. Resultantly we do not have sentencing experts in the country. This author had the privilege of studying Sentencing from Prof. M.Zakaria Siddiqui, who did India’s first Ph.D in Sentencing in 1971 and is a leading authority on Sentencing.
This author feels that Salman’s case should be used as an opportunity to revisit our sentencing policy. In India we have indeterminate sentencing policy under which law provides maximum punishments and in some exceptional cases minimum punishments. The maximum punishment indicates the maximum gravity of the offence and upper limit of judicial discretion provided by the Parliament. Section 235(2) of Code of Criminal Procedure, 1973 merely lays down that after the determination of guilt ie conviction, the court shall hear the accused on sentence and then pass the sentence. Subsequently, the hearing opportunity was extended by the Supreme Court to even prosecution. Ideally court should fix a later date to hold hearing on sentence. In Salman’s case, this was not done and sentence was pronounced within few hours of conviction. Generally, mid-point sentence is given under what is called ‘tariff system’. Thus Salman did not deserve more than three years. If there are mitigating factors, it should be further reduced. If there are aggravating factors, it may be increased.
There is legislative gap on sentencing in India and judges have not been given any statutory guidelines. The sentencing laws in other countries clearly lay down goals and purposes of sentencing, principles and factors to be taken into account by the judge who is supposed to apply them to the case in hand.
In simplest terms sentencing is all about balancing of interests within the broader framework of law. There has to be a counterbalance between goals of punishment ie retribution, deterrence and rehabilitation. Retributive theory which has long been rejected was revived in the last decades of 20th century in a sophisticated form by Andrew von Hirsch who came up with the theory of ‘just desert’ or the notion of deserved punishment. The better view is justice can and should never be retributive. ‘Just desert’ should thus mean nothing more than the principle of proportionality. The Determinate Sentencing Act,1976 in California, Sentencing Commission of Minnesota and Criminal Justice Act,1991 in Britain accepted “just deserts” as a fundamental principle of sentencing. New laws in western countries no more refer to ‘just deserts’ as guiding principle of sentencing. In fact latest thinking is that state should not ‘privilege events over people’. We should rather look things in totality and problem of the ‘whole human beings’ rather than with particular pieces of behaviour. Under new republican theory, shaming the offender is considered better option than imprisonment. Since all punishments are pain and therefore ought to be avoided or minimised wherever possible. Bentham too argued for a principle of frugality in punishment ie in all cases the lowest sufficient punishment should be chosen.
Many of us will find it difficult to accept that criminal justice policy is largely irrelevant as an effective means of reducing crime. General deterrence is nothing more than a fiction. It is indeed dated idea though utilitarians like Jermey Benthan considered it effective means of crime prevention. The problem with the theory of general deterrence is that it justifies passing of harsher sentences against the convict so that others in future get deterred from committing crimes. This is a superficial appeal. Utility of general deterrence has not been proved in any authentic scientific study.
Specific deterrence, on the other hand, has the limited goal of preventing offender from repeating crimes. This will require more in-depth evaluation of personal history of the offender. In cases like Salman, specific deterrence would have achieved desired results as he is not a habitual offender. He has indeed been acquitted by superior courts in other cases. Large-scale denunciation and rebuke faced by Salman did have the desired effect. His image had got a beating and for many he is no more their hero. In cases like this restorative justice should be a preferred option which could have been used along with a shorter term of imprisonment. In an ideal situation, he should have been asked to spend six months or so in forests with and black bucks and the Bishnoi community.
In sentencing functions, judge makes an attempt to juggle objects of various sizes while walking a tightrope which is being shaken at both ends. He has to balance interest of accused, his family, the victim and his family and the society at large. Due to this balancing being the central concern of sentencing, it is called an art or intuition. It is like putting the pieces into a jig saw in each case. As an art it cannot be really taught but acquired by experience. Thus it is an intuitive skill.
The statutory mechanism though needed should not take away judicial discretion entirely as we must trust our judges. Thus minimum mandatory sentences which restrict judicial discretion are not good. Absence of discretion will certainly lead to harsher sentences. Other than recent judgment under SC/ST Act, our courts too have been showing more inclination towards retribution and deterrence rather than reformation and rehabilitation. This is an alarming situation for the criminal justice system.
In giving imprisonment we close the door behind person. While rendering imprisonment for longer terms like in Salman’s case, the judge must see whether society is best served by imposing that term of imprisonment on the accused. Our prisons are already overpopulated and there is overcrowding in prisons. Will jail really teach him the lesson to take up the responsibility of his actions is the moot question? In any case it is temporary solution as the convict will eventually come out. Indian jails were described by Justice Krishna Iyer as universities of criminality, can any graduate from such universities become a better human being? This author has argued elsewhere that best prison reform will be to abolish prisons. Oscar Wilde’s poetry must be read by every sentencing judge.
In Hoare(1989), it was held that imprisonment should never exceed that which can be justified as proportionate to the gravity of the crime. The aggravating factors statutorily recognised in several countries include previous convictions, offence committed on bail, religious or racial (caste in India) aggravation, high level of profit from offence, abuse of power and trust etc.
Personal mitigation is globally recognized principle and includes plea of guilt by the accused, assisting criminal justice system, voluntary reparation ie payment of compensation to the victim or his family, contribution to the society, impact on the convict etc.
It seems Salman does lot of social work and everyday gives lakhs of rupees in charity. In Reid(1982), British Court of Appeal reduced a custodial sentence for burglary in the light of accused’s conduct, whilst awaiting trial, of attempting to rescue three children from blazing house. The court explicitly observed that ‘the appellant was a much better and more valuable member of society than his criminal activities’ would lead one to suppose. In Keightley(1972), sentence was reduced due to saving a child from drowning in. In another case sentence was similarly reduced for helping an injured police official. Similarly in Ingham(1980), sentence was reduced because the convict has ‘done quite a lot of voluntary work’, which in judges’ view demonstrated ‘social responsibility’ and that convict ‘has got inclinations to serve others rather than to prey upon them.’
These mitigating factors are nothing but ‘social accounting’ and the judges while sentencing may resort to drawing up of a balance sheet while determining the sentence. Salman fully satisfies these mitigating factors. Moreover delay in conclusion of criminal proceedings itself is considered as mitigating factor in India. Salman must have been under constant stress due to long drawn trial.
Equality demands elite too should not be discriminated or unfairly treated. Thus if law should not punish more severely blacks, minorities, Dalits or poor due to their low or vulnerable status. Similarly it should not punish harshly anyone just because he is celebrity or political leader. British courts have held that no offender can be given higher and harsher sentence because of their paying capacity or higher status. The court cannot say that Salman should get higher punishment as he had set the bad example for his millions of fans. In fact for such offenders even smaller punishments will involve much greater deprivations and pains.
Modi government must undertake relative cost and benefits analysis of imprisonment under the new concept of ‘zemiology’. In fact high imprisonment rates make little or no difference on the crime levels. Money spent on prison thus largely goes waste. In fact any enhancement of expenditure on prison administration out of taxpayer’s hard earned money is nothing but a sort of fiscal mismanagement.