When the judgment's weak, the prejudice is strong- Kane O'Hara

The essence of democracy and the rule of law has a limitation of the discretion of judiciary, by a process or guideline by which errors or abuse of discretion can be corrected. Some discretion is unavoidable, because law cannot anticipate every eventuality or how to decide which law may apply to a given situation. What guidance the law cannot provide is supposed to be provided by standard principles of justice and due process, reason, and the facts of each case.

Ideally, judges should be mutually consistent and interchangeable, making similar decisions in similar cases, so that no one can gain an undue advantage by choosing the judge or exercising undue influence on the official or on the process he operates. We trust the judiciary to exercise such discretion as they have with wisdom, justice, and competence, to avoid government that is arbitrary, insolent, discriminatory, prejudiced, intrusive and corrupt.

The judges while deciding criminal cases on the presented facts and relevant evidence, he may arrive a decision to convict or acquit the person from the case, but the confusion raises when the judge exercise his discretion while sentencing the accused person on the purview of Indian Penal Code which has been an hearted topic which deserve a time for discussion.

A balance between the rights of both the victim needs to be achieved before defining a sentencing policy. The Indian criminal justice delivery system is lacking in sentencing policy as compared to the countries of the United States and United Kingdom. The article opines that certain guidelines and policies need to introduce by the legislature for reducing the conflicting judgements and for bringing fairness and consistency while awarding sentences in criminal cases. The article also describes about the present Criminal system in India, some principles which need to be adopted and judicial uncertain sentencing guidance and recommends for rendering complete justice.

Indian Criminal Justice System

There are two comprehensive codes dealing with the substantive and procedural aspect of criminal law in India namely The Indian Penal Code, 1860 (IPC) and The Criminal Procedure Code, 1973 (CrPC) accordingly. IPC defines the offences and also prescribes punishment for those offences in addition to identifying different kinds of punishments that may be awarded by the courts on trial. In addition to IPC there are some special and local laws dealing with those crimes which are not included in the IPC, e.g. Narcotic Drugs and Psychotropic Substances Act, 1985, Prevention of Food Adulteration Act,1954,Prevention of Corruption Act,1986, Sexual Harassment (prevention, protection and rehabilitation) Act,2013 to name a few.

These special laws may have their independent norms with reference to arrest, bail, proof etc. Still it is primarily the IPC that contains the paramount framework for proscribing conduct as criminal. The (CrPC) consolidates the procedural detailing of the criminal justice administration machinery and mechanism. Thus it is a combination of these two codes along with the Indian Evidence Act, 1872 that forms the framework for criminal justice administration in India.

Chapter III of IPC deals with Punishments. Section 53 envisages primarily five kinds of punishment. These include Death Sentence, Life Imprisonment, Imprisonment (simple or rigorous), Forfeiture of Property, and Fine. Section 54 deals with commutation of sentence of death whereas section 55 deals with commutation of sentence of life imprisonment. Section 57 clarifies that life imprisonment is to be constructed as imprisonment for a period of 20 years.

After the 2013 Criminal Law Amendment Act, section 376A, 376 D, 376E have added a new dimension to the 'life imprisonment' by specifying that it shall mean imprisonment for the remainder of that person' natural life. The CrPC empowers the high courts and sessions courts to impose any of these sentences, except that in case death sentence is awarded by the sessions court, it has to be confirmed by the high court of the state. The subordinate judiciary has clearly specified powers and authority to try cases of specific nature and award punishments accordingly.

The judges while a sentencing the accused will follow the concept of 'just desert' or individualization as criminal sanctions which various from cases to cases and judges. The 'Just desert' concept underlines that the punishment should fit the crime. Even within the notion of 'deserved' punishment there are varying and subtle thought currents. In individualization, punishment is to find the balance between the gravity of the offence and the individuality of the offender, then find the most appropriate penalty that is commensurate to crime committed. The judges often reach different conclusions (sentence) even when the facts are so similar and overall conduct of the offenders has resulted in the same crime. The said principles are discussed in detail as follows.

Principle Of Just Desert

Just desert' as a theory of criminal punishment, proposes reduced judicial discretion in sentencing and specific sentences for criminal conducts with little or no regard to the individual offender. It simply connotes deserved punishment or reward. It proposes that an offender must receive as appropriate punishment on the basis of what he/she deserves. And this 'deservedness' as already observed is not always based on 'retaliation' i.e. an 'eye for an eye' and rather can have other reasons like 'equality, fair play and censure.This principle has critically interrupted by the scholars Tim Scanlon and Andrew Von Hirsch as discussed below:
The principle of Just Desert has been punctuated by Tim Scanlon as:
the idea that when a person has done something that is morally wrong it is morally better that he or she should suffer some loss in consequence [i] In the context of punishment, it suggests that a person who has committed a criminal wrong deserves to suffer some loss, and it is the function of the system of punishment to impose that loss for the wrong done.

According to Andrew Von Hirsch and Ashworth,[ii] the penal sanction should fairly reflect the harmfulness and culpability of the actor's conduct. These treats people fairly i.e., like cases alike and different cases differently. Punishments should be proportional is based on the premise that people are reasoning agents and penalties should respect citizens as persons.

Proportionality doesn't provide the rationale for either having or not having a system of punishment. Rather any system of punishment in its design and critique must respect the demands of proportionality. Since disproportionate punishment can be equated with punishment without guilt and does not result in justice. And justice should not only be done but should also seem to have been done. Also it needs to be borne in mind that followers of proportionate principle do not focus on factors underlying crime causation and hence for them every individual is a rational being and has freedom to make choices about his/ her conduct.

Principle Of Individualization

While the Just desert theory of retribution looks back at the wrong committed, primarily focusing on crime and the need to assuage the victim by punishing wrongdoer, the notion of individualization of punishment is based on utilitarianism [iii] is forward looking and considers deterrence, incapacitation and reformation as the goals of punishment.

The thin line is that while deterrent approach aims to deter potential future criminal minds, the rehabilitative approach seeks to reform or rehabilitate the convict inside prison so that he will become a better and useful member of the community and can play a constructive role in society after his release from prison. The sentencing discretion vesting in the judges gives them the space to individualize punishment depending upon specific facts and circumstances of a particular case.

Despite the fact that the Indian Supreme Court has, over the years, reiterated that punishment should fit the crime, this measure of proportionality is to be based exclusively on retributive or utilitarian rationale, has not been made explicit. And while deciding the quantum of punishment specifically in heinous offences, both the principles of just desert [iv] and individualization of sentence go hand in hand. Due mainly to the inability of the utilitarian approach with varying dimensions of deterrence, incapacitation or rehabilitation to effectuate a reduction in crime, philosophers and scholars have re-examined retribution as a viable justification for punishment [v].

Disillusioned with Utilitarian philosophy for not being able to reduce the crime incidence in various jurisdictions across America, a regime of 'fixed penalties' for certain offences has been adopted. Fixed penalties as the nomenclature suggests rules out judicial discretion and is implemented purely on certain presidentiable criteria of just deserved and proportionality of sentence. Till date, the fusion and/or combined application of all of them is yet to make much needed difference of ensuring a society free from criminalities.

Legislative Step On Sentencing Guideline

The 47th Law Commission was constituted by the Union Ministry of Law and Justice Headed by Mr. Gajendragadkar and he submitted the report on 28.02.1972 with the question of how sentence ought to be determined observed [vi]:
A proper sentence is a composite of many factors, including the nature of offence, the circumstances-extenuating or aggravating- of the offense, the prior criminal record, if any, of the offender, the age of the offender, the professional or 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 for the rehabilitation of the offender, the possibility of a return of the offender to 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 this offender, or by others, and the present community need, if any, of such a deterrent in respect to the particular type of offense involved.

And for determination of sentence post- conviction, Cr PC envisages a separate phase of sentencing process under sections 235(2),17 248(2) and 255(2). Generally after the pronouncement of conviction a separate date is fixed for hearing arguments on quantum of sentence where both the parties to the case are entitled to put evidence before the court relating to factors relevant for sentencing [vii].

Hearing on the sentence is mandatory and a punishment pronounced without giving an opportunity of hearing on sentence, within the mandated requirements of law shall be quashed in appeal. The final judgment is always at the end of hearing on sentence signifying the conclusion of trial. The court has the power to release a person on probation of good conduct or after admonition simply under the provisions of Cr PC or Probation of Offender Act, 1958.

The court may award Fine, compensation, imprisonment or capital punishment but it has to be a reasoned order. Sections 432 and 433, Cr PC empower the appropriate government to suspend, remit or commute sentence. Even the life imprisonment can be commuted to an imprisonment for a period not exceeding 14 yrs[viii]

The next Law Commission was constituted on March 2003, the Committee on Reforms of Criminal Justice System (the Malimath Committee), a body established by the Ministry of Home Affairs, issued a report that emphasized the need to introduce sentencing guidelines in order to minimize uncertainty in awarding sentences, stating:
The Indian Penal Code prescribed offences and punishments for the same. For many offences only the maximum punishment is prescribed and for some offences the minimum may be 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 is not good even if it is the Judge that exercises the discretion

The Committee advised further that, in order to bring predictability in the matter of sentencing, a statutory committee should be established to lay guidelines on sentencing guidelines under the Chairmanship of a former Judge of Supreme Court or a former Chief Justice of a High Court experienced in criminal law with other members representing the prosecution, legal profession, police, social scientist and women representative. Till now the words not turned to action.

Crimes And Judicial Guidances

Murder
The punishment for murder under India's Penal Code is life imprisonment or death and the person is also liable to a fine in case of Sangeet & Anr. v. State of Haryana [ix]The Court concluded as follows:

• This Court has not endorsed the approach of aggravating and mitigating circumstances in [the 1971 case of] Bachan Singh. However, this approach has been adopted in several decisions. This needs a fresh look. In any event, there is little or no uniformity in the application of this approach.
  
  
• Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review.
  
  
• In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing.
  
  
• The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.
  
  
• The grant of remissions is statutory. However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in the statute. These need to be faithfully enforced

Theft
The punishment for theft is up to three years' imprisonment, a fine, or both. No judicial guidance was found regarding sentencing for theft [x]

Rape
The Punishment for rape, is rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine [xi] After the Nirbhaya case, a juvenile can also be tried as an adult depending upon the circumstances of the case. In pursuant to the judgment a legislation has also made in criminal law.

In the case of State of Punjab Vs. Gurmit Singh [xii] wherein the Court imposed less sentence than the minimum prescribed one. In that case, a judgment of acquittal was passed. And another judgment made in State of Madhya Pradesh Vs. Balu [xiii] made a view that the occurrence took place on 30.3.1984. The respondents were aged between 21-24 years of age at the time when the offence was committed. We are informed that the respondents have not been involved in any other offence after they were acquitted by the trial court on 1.6.85, more than a decade ago.

All the respondents as well as prosecutrix must have by now got married and settled down in life. These are some of the factors which we need to take into consideration while imposing an appropriate sentence on the respondents. We accordingly sentence the respondents for the offence Under Sec 376 IPC to undergo five years' RI each and to pay a fine of Rs. 5000 each and in default of payment of fine to 1 year's RI each. For the offence Under sec 363 IPC we sentence them to undergo three years R.I. each but impose no spear under section366 & 368 IPC. The substantive sentences of imprisonment shall, however, run concurrently.

Guidelines Put Forth By The Hon'ble Supreme Court Of India

The apex court has putforth many sentencing guidelines for the certain punishments in some cases which is discussed below:
In case of Bachan Singh Vs. State of Punjab [xiv]

The case was tried accused convicted and sentenced to death under section 302, IPC for the murders of - Desa Singh, Durga Bai and Veeran Bai by the sessions judge of State of Punjab. On heated altercations between the parties, the appellant led others (acquitted) who armed themselves with spear and other dangerous weapons with which they gave several and deep cutting fatal blows to the deceased, which resulted in their deaths. The three murders were described as extremely heinous and inhuman.

On appeal, the high court confirmed the death sentence pronounced on the appellant and dismissed his appeal. Being dissatisfied, he further appealed to the Supreme Court. The question before the Supreme Court Constitution bench was, inter alia, the sentencing procedure embodied in sub-section (3) of section 354 of the Cr PC, 1973. In drawing up the guidelines, the Supreme Court hinged its opinion on the sentiments or feelings of the community.

Therefore, the court ruled that death penalty shall be imposed for murder, if any of the following circumstances are decipherable:

• Manner of Commission of Murder - When the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
  
  
• Motive for Commission of murder - When the murder is committed for a motive which evince total depravity and meanness).
  
  
• Anti-Social or Socially abhorrent nature of the crime - When murder of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. And in cases of 'bride burning' and what are known as 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
  
  
• Magnitude of Crime- When the crime is enormous in proportion.
• Personality of Victim of Murder: When the victim of murder i:
  
  1. an innocent child;
  2. helpless woman;
  3. victim is a person vis-a vis whom the murderer is in a position of domination or trust;
  4. when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

In case of Machhi Singh v. State of Punjab [xv]
No doubt that the identification and application of the 'rarest of rare' doctrine, enunciated in Bachan Sigh's case needed some kind of precision. The main guidelines to be followed in its application was one of the issues that engaged the attention of the court in present case. A violent dispute between two families resulted in the loss of 17 lives in five separate incidents.

The appellant and his associates were tried by the sessions court. This appellant was among the four who were sentenced to death. His death penalty was confirmed by the High Court of Punjab of necessitating an appeal to the Supreme Court. While hearing the appeal, the apex court considered and laid down what would amount to normal guidelines to be followed so as to clarify the rarest of rare cases formula, for imposing death sentence, as spelled out in Bachan Singh's case[xvi]

In Santosh Kumar Singh v. State [xvii]
The accused, a lawyer and senior of the deceased Priyadarshini Mattoo, a student of faculty of law, University of Delhi ,raped and murdered her at her home when she was all alone. It was established by the prosecution that prior to the fateful day, Santosh the accused who was the son of a high profile police officer, had been stalking the deceased for almost two years and that the deceased had been provided with a body guard on her complaint to the police of such harassment by the accused. Also, that it was the rejection of all the overtures made by the accused to the deceased over a period of time, that he wanted to ensure that if the deceased doesn't accept his advances then she should not be allowed to become someone else' too.

Despite the evidence against the accused, the trial court for some strange reasons, acquitted him. On appeal, the high court reversed the judgment of the trial court and passed comments against the trial court for error apparent on the face of the decision on the basis of available evidence.

Aggrieved by the decision of the High Court of Delhi convicting the accused on both counts of rape and murder and awarding death sentence, he moved an appeal before the Supreme Court. H. S. Bedi J of the Supreme Court speaking for the court held that sentencing part is a difficult function and where the option is between a life sentence and a death sentence, the options are indeed extremely limited and if the court itself feels some difficulty in awarding one or the other, it is only appropriate that the lesser sentence should be awarded. This is the underlying philosophy behind 'the rarest of the rare' principle.

Focusing on mitigating circumstances the court though upheld conviction of the accused but substituted 'death penalty' with 'life imprisonment' on the ground that: [xviii]
The court talked of aggravating circumstances in unequivocal terms and noticed the tendency of parents to be over indulgent to their progeny often resulting in the most horrendous of situations like the instant one where an accused belongs to a category with unlimited power or pelf or even more dangerously, a volatile and heady cocktail of the two[xix]. Though the court put on record the alarming incidents of such class reality of the society still it held that the balance sheet tilts marginally in favor of the appellant, and the ends of justice would be met if the sentence awarded to him is commuted from death to life imprisonment.

In Dhananjay Chatterjee v. State of West Bengal [xx],
Going by the reasoning given by the court considering that the accused got married and has a girl child ,forgetting and forgiving his past conduct of stalking for almost two years despite being a lawyer, the manner and motive of crime commission and to cap it all suggesting the possibility of reform after the demise of his high profile police officer father, leaves one with utter confusion about the plight of the victim and the collective conscience of society which has otherwise been used as a justification by court in pronouncing death sentence.

In case of Mohd Chaman v. State (N.C.T.of Delhi) [xxi]
The Accused had brutally raped and killed a one year old. The lower courts having seen the situation as the rarest of the rarest cases imposed death penalty. The lower courts awarded death penalty, but when sent for clarification was overruled by the high court stating that the convict didn't pose a threat to the society, and reduced the sentence.

In case of Raju v. State of Karnataka [xxii]
This case highlighted that the Indian judiciary is not victim based, the sentence of the convict was reduced just because it was claimed that the victim had an immoral character in the eyes of law.

In Soman v. State of Kerala [xxiii]
The Hon'ble Supreme Court observed that Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges.

Over the period of time, the Indian courts have through inconsistent decision making and faulty rationales have indirectly pointed out the need for a sentencing policy. The concept of aggravating and mitigating factors depends on each case also, the concept of rarest of the rare case is a matter of case and its circumstances .It has not been specified and is completely over the discretion of the deciding person, what might be brutal for one may not be for the other person

Quite a few committees set up by the government have emphasized the importance of having and/ or adopting sentencing guidelines in India. That call is hereby re-iterated. Having such will definitely address individualization of punishment and minimize the uncertainties surrounding the award sentences in India. The rights of the victim, the offender and the society should be simultaneously considered in any sentence that will pass the justice test.

Conclusion
Indian judiciary has come of age and deserve appropriate sentencing policy. Individualization, non-uniform or random sentencing status in India needs to give way for certainty and logicality in the award of sentence. Having sentencing guidelines in place will enable the courts respond to the daily cry for justice and the yearnings of the community. The judges should be able to award appropriate punishment proportionate to crime committed. It is only by so doing that the retributive and just desert theories of criminal punishments can be met.

End-Notes:

1. T. M. Scanlon, What We Owe Each other 274 (Harvard University Press, US, 1998
2. Andrew Von Hirsch and Andrew Ashworth, Proportionate Sentencing, (Oxford University Press, 2012
3. (Jeremy Bentham (1748-1832) propounded the philosophy of utilitarianism suggesting punishment should be proportional to the offence. That people will pursue pleasure or 'happiness' and be deterred by the imposition of 'pain' or restraint Available at: http://compass.port.ac.uk/UoP/file/639aa3c6-7e3a-4f10-b9c6- a9c39a9ab257/1/Classicism_IMSLRN.zip/page_03.htm
4. M. Scanlon, What We Owe Each other 274 (Harvard University Press, US, 1998)
5. C.S., Lewis. The Humanitarian Theory of Punishment, 287(1970). Available at: http://www.olena.com/edu/downloads/intro-philosophy/pchapter-7.pdf
6. Available at: http://www.lawcommissionofindia.nic.in/welcome.html.
7. Allaudin Mian v. State of Bihar, (1989) 3 SCC 5
8. Section 433(b) of Criminal Procedure Code 1860
9. (2013) 2 SCC 452
10. Section 379 of Indian Penal Code 1860
11. Section 376 of Indian Penal Code 1860
12. (1996) 2 SCC 384
13. Crl. No. 1273 of 2004
14. (1980) (2 SCC 684
15. (1983) 3 SCC 470.
16. Supra note8
17. (2010) 9 SCC 747
18. Ibid., para 37.
19. Id., para 38
20. (1994) 2 SCC 220
21. Crl.No. 68-69 1999
22. CRL.A 802/2013
23. (2013) 11 SCC 382