“Every person is entitled to equality before law and equal protection of laws. Where the state is bound to protect every human being from inequality” said the Supreme Court of India. But how do the courts then justify the incongruity of sentences being awarded to two persons who commit the same offence? Does Justicia, peek through her blindfold at the ancillary factors that surround the convict on a case to case basis and award different sentences? Mrinal Satish argues that these ancillary factors lead to ‘unwarranted disparity’, which results out of divergence from the identified norms i.e. the objective letter of the law. Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’) under sections 235 (2), 248 (2), and 255 (2) provides for a different stage for sentencing a convict. It is in this stage that the determinants of a sentence are presented before the court by both the parties. The uniformity in sentencing can be achieved by laying down sentencing guidelines, a need for which was also expressed by the committee set up by the Government of India. There are various factors that the 47th report of the Law Commission of India enumerated, which ought to be considered while sentencing, from nature and circumstances of the offence to the “possibility of a return of the offender to normal life in the community.” In this piece, I chart the lack of uniformity in sentencing by the Indian courts and try to offer a plausible solution to this lack of uniformity.
Is objectivity of law equal to uniformity?
In Ram Narain v State of U.P., the court observed that the sentencing shall be carried out keeping in mind an add-mix of the theories of reformation, deterrence, and retribution. In the case of Maru Ram v Union of India, the court adjudicated upon the constitutionality of the punishment of life imprisonment (section 433, Cr.P.C), and opined that reformation and recuperation of an offender to live a normal life in the society are factors to be considered while sentencing a person to imprisonment. In Sunil Batra v Delhi Administration, the court reiterated the ‘rehabilitative purpose’ behind sentencing. In the case of Charles Sobhraj v Superintendent, Central Jai, Tihar, New Delhi, the court noted deterrence, rehabilitation, and institutional security are vital considerations when sentencing a convict. In Ediga Annamma v State of Andhra Pradesh, the court observed that while sentencing “the reformatory component is as much operative” . In Satto v State of U.P., the court took into account the rehabilitative component of punishment while sentencing the offenders. In Phul Singh v State of Haryana, the court used the phrase – “The Court must restore the man.” In Phul Singh’s case, both the trial court and the appellate court took into consideration the rehabilitative approach while awarding imprisonment.
The above-cited abstracts from different cases entail that reformation and rehabilitation have been major consideration factors for the Courts while sentencing. But this approach is not uniformly adopted by the trial courts in all the cases. In Jameel v State of U.P., the Court said that while sentencing, the “gravity of the offence committed” shall be considered, and while sentencing “the courts should respond to the society’s cry for justice against the criminals”. In Mohan Anna Chavan v State of Maharashtra, the court while adjudicating upon an appeal filed by the accused against the trial court’s award of the death penalty, observed, “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 Bantu v State of U.P., the court took a retributive approach, as did the trial court in the said case and re-affirmed the death sentence of the convict. The above-cited cases are proof of the retributive approach followed by the Courts while sentencing. There are various other cases like that of Dhananjoy Chatterjee v State of West Bengal, where this approach has been followed. In my opinion the major problem that arises here is that the judges have been justifying the sentence by giving reasons at their own accord, instead of awarding sentences objectively according to the crime committed. These reasons keep changing across various judges and so does the sentence, whereas the crime committed remains the same. This is why the objectivity of law does not translate into its uniform application.
The need for the sentencing guidelines arises out of the rationale of equality. But this does not entail that same sentence should be awarded across the board because that would again lead to inequality. The aim is to maintain equality amongst equals. This will weed out the bias that creeps into sentencing because different judges focus differently on different factors. In the English legal system, the parliament enacted the Coroners and Justice Act, 2009, which gave birth to sentencing guidelines being laid down for the judges to follow.
Since the need for uniformity arises out of a call for equality, will the implementation of similar guidelines ensure equality amongst differently situated people? In this case, as Michael M. O’Hear argues there is to be a distinction drawn between the ‘warranted’ and ‘unwarranted’ disparities ingrained in the sentencing guidelines. A person who is differently placed shall be treated differently to an extent that they can be brought at par with the others.
In my opinion, in the Indian context, the best way to achieve uniformity in sentencing is by the implementation of the legislature made sentencing guidelines. These guidelines shall state the factors that the sentencing judges should/should not consider while awarding the sentence. It is important to have these guidelines drafted by the legislature chosen by people because the criminal law itself is drafted by the legislature and it is the legislative intent that shall be accrued foremost importance in judicial application of the law. As Justice Das opined, “A procedure laid down by the legislature may offend against the Court’s sense of justice and fair play and a sentence provided by the legislature may outrage the Court’s notions of penology, but that is a wholly irrelevant consideration.”
The role of the judiciary is to ‘apply’ the law made by the legislature. But given that every case is unique the judge has to interpret the law based on facts for its application in the individual cases. Therefore how does one accommodate this necessary interpretation of judges in the achievement of uniformity? A solution to this can be that the sentencing guidelines should enlist two types of factors that shall be considered by judges, i.e. relating to the offence and relating to the offender. Factors related to offence shall include factors that increase the gravity of an offence and the ones that mitigate it. Apart from these, there shall be factors that shall concern the offender for example the health status of the offender, etc. These two kinds of factors shall be read together based on unique facts of individual cases and accordingly, sentencing shall be exercised by the court. As Julian V. Roberts argues the courts shall be given the discretion to interpret these factors to an extent to which they are able to offer a reasoning that is rooted in the sentencing guidelines. This benefit of the departure from ‘Formalistic’ approach to giving courts a room for interpretation has been explained by Justice Oliver Wendell Holmes as, “The life of law has not been logic: it has been experience.”
This method shall ensure uniformity because reasons on which every sentence shall be offered will be capable of being traced back to one common set of guidelines, although the end result of every case shall be personalised to its facts.
This system is apt for the Indian context because as observed from the above-cited cases of Satto, Phul Singh, Mohan Anna Chavan, Bantu, and Dhananjoy a major reason for the lack of uniformity in sentencing by the Indian trial courts, even though offence committed in all these cases is the same, is that the judges choose to consider different factors in different cases while awarding sentences. Therefore, if the sentencing guidelines enlist the factors that will decide the sentence based on the gravity and mitigating quotient it will bring uniformity. This uniformity will be based on factors like, if the circumstances surrounding the commission of the offence are similar to a previous case or not. This will exterminate the biases that crept into the sentencing stage due to differences in reasoning offered across judges. Hence, the major causation behind incongruence will be eradicated.
Sahil Bansal is a final year law student at Jindal Global Law School.