By Dipti Khatri, UPES, Dehradun.
“Sentencing” is the final stage of delivering Justice to the convict and victim. In India, punishment is given according to own applied thoughts of Judges and within statutory limit. For some offences, the maximum punishment is prescribed and for some, it is minimum. In some cases, Judges lower down the punishment using the retributive principle. However, on the same cases of similar facts Judges give death penalty setting as a deterrent for the others in the society. Some Judges tend to be lenient while others tend to be harsh. This has eventually led to improper convictions, due to irrelevant consideration and personal bias. This has also led the society to question what Judiciary should do in a particular state of affairs.
Though, IPC in Chapter III of Sec. 53 provides for broad gradation of punishment such as:
1.Death penalty, 2. Imprisonment for life, 3. Imprisonment, 4. Forfeiture of property and 5. Fine
But, again it suffers from certain limitations. The problem is that the highest punishment considered is Death penalty while the second highest is imprisonment for life. No punishment is provided between them as provided in US such as “imprisonment for life without commutation or remission”.
Another problem is that from early 1860, fine imposed on the offences has not been reviewed. In most of the offences, the Court requires the prosecution to prove beyond reasonable doubt. Therefore, in many cases, though the Court is convinced but convict is made to escape on the reason of prosecution failing to prove beyond reasonable doubt. This makes the general society lose trust in the Justice system and gives the accused a chance to escape taking the benefit.
However, the England Criminal Court Sentencing Act, 2000 provides for supervision during suspension, community sentences, community rehabilitation order, financial penalties and reparation orders, parenting orders for children, confiscation order, curfew order, disqualification orders of public servant for criminal misappropriation, rehabilitating sexual offender or drug addict etc. Also, Section 78 of the English Act imposes limits on imprisonment and detention of young offender’s. Sections 79 & 80 provide for general restrictions on description and custody of sentences and length of sentences. Section 83 helps out persons who are not legally represented. Financial compensation for young offenders, the regular offenders, etc. is fixed under the statute.
Taking the US system into consideration, the two broad guidelines are given i.e. (1) the conduct associated with the offence and (2) the defendant’s criminal history. Though the discretion has been provided but Judges need to adhere to certain standards while giving the decisions. If any sentence is given beyond the scope, written explanation is required to be provided to the Commission to check and review the decision making process.
Therefore, in order to provide Criminal Justice System, it needs to address on a critical premise. For instance, casualties of assault, rape and so forth require injury guiding, psychiatric and rehabilitative administrations separated from legal aid. As recommended by the Law Commission, offenders should also be classified as casual offender, an offender who casually commits a crime, a habitual offender , a professional  offender or one who belongs to Mafia. Changes need to be made in IPC to take into consideration new and serious crimes such as cyber crime, hijacking, terrorism, pornography, domestic violence. These crimes need to be looked at stretch and laws should be reformed for meeting the above challenges. Fines imposed on the commitment of crime need to be revised, as value of money has increased 50 times compared to the year 1860 and it sets an ambiguous term for the one who is genuinely incapable of paying. ‘Proof beyond reasonable doubt’ should be amended with the proof which is enough to prove the truth. Participation of the accused should be increased to achieve the ultimate goal. The accused should be made to file a statement to the prosecution disclosing his stand.
To conclude, it is unrealistic to get rid of discretion altogether. However, what one needs to remember is to have a specific framework which regards a specific factor as either aggravating or mitigating. Imposition of punishment should be in a manner which is correct for responding to the society’s cry for justice against the criminals. The Court must keep in view the rights of the victim as well as accused. Justice demands that, under the fall of sympathy, inadequate sentence should not be given as it would do more harm to the society and undermine the public confidence in the efficacy of law and society.
At last, law is important for curbing crime. Therefore, not only should new law be implemented but also flaws in the existing law which affects the society as a whole should be rectified.
- Recommendations of the Malimath Committee on reforms of Criminal Justice System, http://www.pucl.org/Topics/Law/2003/malimathrecommendations.htm (Date of visit 22nd October, 2015).
- Training of Empanelled Layers In Jharkhand On Violence Against Women & Violence Against Child http://jhalsa.org/pdfs/Reading_Materials/RM_19_09_2015/volume_4.pdf (Date of Visit: 25th October, 2015).