Name India did not, despite the English

Name of the article – Reshma Sekhar A justification of state punishment must show not merely that punishment achieves some good, but that it is a proper task of the state to pursue that good by these means.Jurisprudentially, punishment for deviation from laws was conceptualized with the four-fold objective of deterrence, retribution, rehabilitation and restoration. As prevention of crime is the state’s preferred approach to ensure the maintenance of law and justice, most criminal justice systems tend to favour deterrence over the other objectives. With this intent, most criminal laws prescribe imprisonment as the general norm for punishment. Academicians and jurists who support the utilitarian and consequentialist theories view sentencing as a general deterrent. However, penal policy gets impaired by unguided judicial discretion in the absence of sentencing guidelines and laws that reflect appropriate degrees of censure proportionate to the seriousness of the crime. Sentencing in IndiaIndian criminal law has largely been based on the English criminal law as a vestige of the country’s colonial past and even after one hundred and fifty years since the passing of the first penal code and seven decades of India’s independence, the underlying basis for most of the laws and to a great extent, the practice of the laws, today is still very much a creation of English law. However, with respect to sentencing for offences, India did not, despite the English influence,  adopt the flexible guideline system that later came to force in England and Wales.  India does not have structured sentencing guidelines issued by the legislature or the judiciary. The quantum of sentence is determined by the judges depending upon the facts and circumstances of each case deposed before them guided by certain, and in many cases vague, minimums and maximums prescribed by statutes. The lack of uniformity in the legislation dictating quantum, i.e. while some laws including the Indian Penal Code, Prevention of Corruption Act stipulate both the minimum and maximum terms of imprisonment others restrict only the maximum term such as the Unlawful Activities Prevention Act, 1967 encourages judges to exercise wide discretion.  This state of affairs has long been criticised by scholars and practitioners for its failure to ensure consistency of approach in sentencing.Drawbacks of the current systemThe Criminal Procedure Code 1973 (Code), consisting of 484 sections, 2 schedules and 56 forms does not provide for a distinct chapter on sentencing and these principles are scattered across several provisions in the Code. Section 235 of the Code lays down the procedure to be followed to mitigate the sentence prior to it being imposed while Section 325 deals with the procedure to be followed to pass a severe sentence and Section 361 imposes the obligation on the sentencing judge to provide reasons for the sentence. It would have been beneficial to have these scattered provisions on sentencing consolidated within a single statute. Judges exercise unfettered discretion while imposing punishment on offenders in the absence of any laid down principles of sentencing.  This leaves the sentencing system open to the vagaries of individual judges, affecting consistency across different courts and even within the different courthouses – the consistency that is a cardinal aim in any sentencing model. Even the Supreme Court of India stressed on the absence of any judicial guidelines in awarding sentences and opined that “The superior courts, except for making observations with regard to the purport and object for which punishment is imposed upon an offender, had not issued any guidelines giving rise to anomalies as regards the policy of sentencing.” In 2013, the apex court observed the absence of structured guidelines in the following words: “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.” The absence of specific principles for sentencing is also one of the contributing factors that delay trails as the judges are keen to pay close attention to every evidential aspect of a case which, the counsels for the accused misuse by insisting that the court deliberate over even the insignificant details of the case.   Another drawback of the current system is the absolute lack of any philosophical justification for a punishment for a specific crime that is given by the legislators in the determination of the quantum. This raises questions of proportionality to the seriousness of crime, fairness in choice of punishment, and the social impact. For instance, possession of drugs is punishable with ten years imprisonment while more serious offences such as publishing child pornography is punishable with seven years. Does this imply that the society is expected to view the former as a more serious offence in comparison to the latter? One cannot depend on the text of the provisions in either of the legislations covering the abovementioned crimes for a concrete clarification to that question. The fact that degree of fines has not been substantially updated in line with the value of Indian currency only adds fuel to the pitfalls in the system.Inconsistencies in the penalties prescribed by state laws for similar offences, without any legal backing for such differences whatsoever, is another issue that threatens the uniformity of these legislations. For instance, The Andhra Pradesh Prohibition of Ragging Act, 1997 in the state of Andhra Pradesh penalises perpetrators of physical and psychological harm with up to 10 years’ imprisonment while the same offence attracts a maximum punishment of 2 years’ imprisonment in Uttar Pradesh and Tamil Nadu under the respective state laws. Lastly, there is no legislative guidance available within the specific statutes prescribing the punishment or any guidelines or rules issued by the Ministry of Law and Justice that help judges assess the legislative intent and deduce a term of punishment. A legislative example is the high likelihood of arbitrary discretion that will be exercised while sentencing an accused under Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 which lays down a wide margin of 10 years to death penalty as punishment for repeated offenders. 1.2 Recommendations for reform in the system The drawbacks in the current process establishes that in order to have a uniform criminal justice system that can functioning smoothly without any bias, the sweeping discretion that is prevailing in the system must be replaced with computation based on certain set judicial rationale. Penal rehabilitation in India is in urgent need of reform that can be effectuated by the legislature or the judiciary.1.2.1  Proportionality of sentence to crime The conceptualisation of criminal offences in India is with a generic view that higher the punishment implies higher the gravity of offence. However, as illustrated earlier laws in India are mostly enacted under either social compulsions or to tackle urgent situations and the degree of censure fail to be commensurate with the crime itself. The preliminary step towards this end is the legislative application of ordinal and cardinal proportionality that has been suggested by Andrew von Hirsch. Ordinal proportionality stands for the gravity of offences, on a scale of least to highest, in relation to each other and cardinal proportionality constructs the gravity of the offence upon considering factors that mitigate or aggravate the offence such as intention, culpability, etc., that qualitatively affect the manner in which judicial discretion would be exercised. The offences are then ranked according to ordinal and cardinal proportionality to determine the relative gravity of an offence, and punishments are determined accordingly. Though this is not completely effective, at the very least, it compels the legislature to think of the relative seriousness of an offence before deciding what punishment to adopt, even though it may not be very helpful in answering “how much” to punish on an absolute scale.1.2.2 Equal weightage to all penal rehabilitation methodsThe prime aim of any penal rehabilitation method must be recidivism. The state must move from its current trend of devising fines or imprisonment or both as the only form of penalties and focus on reintegrating the offender back to the society. Deterrence is a prospective purpose of punishment because it relates to the future alone. From the point of view of the offender and of society, deterrence does not address the offense already committed but further offenses. The society may impose a punishment on the individual to inflict suffering on him for what he did (retribution), to deter him personally from recidivism (deterrence), to rehabilitate him (rehabilitation), and to disable his delinquent capabilities (incapacitation) and legislations must be focused in a way to achieve this. By limiting the penalties to only fines and imprisonment, the state is intentionally disregarding other objectives that a criminal justice system hopes to achieve. This is however, not the situation at the moment as states are explain how things are in india and rigourous legis exercise to change it. cover all objectives equally 1.2.1 Need for sentencing guidelines1.3 ConclusionPossible recommendations – Malimath and Madhava Menon – plea bargaining (Julian refer)Indian criminal law today is rife with examples of over-criminalisation, brutal and repressive laws, laws that leave too much room for discretion, and severely inconsistent punishments. (Sakshi)


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