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Criminology Penology and Sentencing Human Right

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Criminology Penology and Sentencing Human Right Criminology Penology and Sentencing Human Right Dimensions of Punishment and Sentencing Component - I (A)- Personal Details Role Name Affiliation Principal Investigator Prof(Dr) G S Bajpai Registrar National Law University Delhi Paper Coordinator Mr. Neeraj Tiwari Assistant Professor, National Law University Delhi Content Writer/Author Mr. Manwendra Kumar Assistant Professor, Tiwari RMLNLU, Lucknow Content Reviewer Prof. BB Pande Former Professor, Faculty of Law, Delhi University Component - I (B)- Description of Module Subject Name Criminology Paper Name Penology and Sentencing Module Name/Title Human Right Dimensions of Punishment and Sentencing Module Id Criminology/Penology & Sentencing/25 Pre-requisites Basic understanding of the Criminal Justice System in India and familiarity with the concept of Human Rights and rationale for punishment in Criminal Law Objectives To understand the interplay between Punishment, Sentencing and Human Rights. To understand why theorising the idea of punishment and sentencing in relation to human rights will always be contested Key Words Punishment, Sentencing, Human Right, Imprisonment, Degrading Punishment, minimum sentence, maximum sentence, Sentencing Discretion, Concurrent Sentences, Consecutive Sentences, Individualized Punishment, Execution, Death Row, Inordinate Delay “Trying a man is easy, as easy as falling off a log, compared with deciding what to do with him when he has been found guilty.” - Justice Henry Alfred McCardie 1. Introduction Punishment in law is the moral condemnation and denunciation by the society of the offence committed by the offender. Modern Penology, however, also insists on the individualization of punishment by insisting that sentencing must not be based solely on the aspects of crime committed but also on the elements attributable to the criminal. Sentencing should also therefore be looked at as the task of sending a patient to the hospital (Iyer, J., 1977, Para 4)1 and not simply the task of denunciation of the crime committed. Graver the offence committed, correspondingly severe would be the punishment. Therefore, the element of proportionality vis-à-vis the crime committed is entrenched in giving punishments. Imprisonment as punishment has a direct bearing upon the most sacrosanct right of freedom that inheres in human beings and therefore a person cannot be imprisoned without a valid justification. Justification for punishments comes primarily from the judicial orders applying legislations prescribing different punishments for the commission of different offences. However, legislations per se do not suffice for legal validity and therefore, the punishments prescribed must be consistent with the rights of the offender. Under the Indian Constitution, punishments prescribed by the laws must be consistent with the Fundamental Rights given under Part III of the Constitution, which in India is largely considered to be the repository of Human Rights. The Protection of Human Rights Act, 1993 defines Human Rights as meaning the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by the Courts in India. International Covenants cannot be enforced in the Courts of India directly but these Covenants can be used to interpret and enlarge the ambit of constitutionally guaranteed rights, wherein, the rights enumerated in these Covenants are in harmony and not in conflict with the constitutionally guaranteed rights.2 The concept of Human Rights, however, is not a territorial concept and therefore, a critique of the punishments given in India is very much possible from the point of view of its consistency with the global Human Rights norms. However, this will always be contentious, since, having universal content of human rights is a contested idea, on account of the cultural plurality of the world. Nevertheless, Human Rights norms are now globally accepted, but what accounts for these norms is the minefield of cultural relativity. For example, nations’ Constitution would vouch for the respect for human life and dignity and yet it would continue to give death penalty, whereas, other nations may consider this to be absolutely inconsistent with the right to life and human dignity. In fact in our world, we are still grappling to conclusively determine in several cases, whether, certain acts constitute a substantive offence or not. For example, the homosexual relations between consenting adults; it is an offence in India for which the punishment can be imprisonment upto ten years, whereas, the Supreme Court of United States of America (USA) has in the year 2015 held that the different States in USA by not allowing homosexual marriages violate the due process clause and equal protection clause of the fourteenth amendment of the United States’ Constitution (Kennedy J., 2015, page 28). 3 However, an inquiry into the factors constitutive of substantive offences is not the subject-matter of this paper, but this discussion only shows that Human Rights dimensions of punishment and sentencing are not completely divorced from this issue. Sentencing is the judicial exercise performed by the Courts by determining the suitable punishment to the convict of an offence. Sentencing necessarily involves discretion as the penal legislations at the most will only specify the minimum and maximum punishment for a particular offence or only the maximum punishment for an offence, thus prescribing a range of punishments for a particular offence. It is the task of the adjudicating Court to decide the appropriate punishment within the given range in the light of the facts and circumstances of the particular case. Therefore, sentencing necessarily involves discretion to choose from the given range and this definitely has a bearing upon the issue of Human Rights. The discretion in sentencing cannot be equated with prerogative and therefore Courts are bound to give a sentence warranted in a given case, a punishment in excess of what is legally warranted violates the right to life, liberty and dignity of the person, as that would be without a valid justification. 2. Learning Outcomes After going through the contents of the module, the reader will be able to understand the interplay between Punishment, Sentencing and Human Rights. The reader will also be able to acquaint herself with the different dimensions of Human Rights vis-à- vis Punishment and Sentencing and the complexities that underline the task of theorising these dimensions without any equivalence. 3. Punishment Indian law nowhere expressly provides for the prohibition upon the cruel, unusual and degrading punishment but such a prohibition is implicit in the guarantee for human dignity flowing from Article 21 of the Constitution. The prohibition against cruel and unusual punishment dates back to Magna Carta days but it was formally adopted in the year 1688 in the English Declaration of Rights. In the year 1791 it was incorporated in Bill of Rights of the USA’s Constitution by the Eighth Amendment.4 V. R. Krishna Iyer J. in Sunil Batra v. Delhi Administration5(1978, Para 213)has held cruel and degrading punishment to be violative of Article 14 and 19 on the ground of procedural fairness and on the ground that it falls foul of Article 21. Acting on this premise he declared solitary confinement of a prisoner of death sentence to be unconstitutional. The Supreme Court of India in Deena v. Union of India6(Chandrachud J., 1983, Para 88) has held that cruel, unusual and degrading punishment is impermissible under the Indian Constitution. However, the Court in this case simultaneously also declared that execution of death penalty by hanging is the not cruel, unusual and degrading punishment. The Court held hanging to be, relatively, the most humane way of the executing death sentence. All other means of extinguishing life by way of capital punishment, viz. shooting, lethal injection, lethal gas chamber, electrocution and guillotine was found to be less humane on account of unconsciousness not intervening instantaneously, which is the case in execution by hanging. This makes hanging less painful and therefore more humane. Further, hanging is not prone to accident which may occur while performing executions by other means. The Court also observed guillotine and shooting to be the uncivilized means of execution. In Attorney General of India v. Lachma Devi7(1989, Para 1) the Supreme Court rebuffed the argument of execution of death penalty by public hanging. The Court held it to be barbaric and violative of Article 21 and stated that any jail manual providing for public hanging would be an unconstitutional measure. 3. 1 Cruel and Unusual Treatment In T. V. Vatheeswaran v. State of Tamil Nadu8 (Chinnappa Reddy J., 1983, Para 21) it was held by the Supreme Court that if a prisoner of death sentence is made to wait for more than two years on death row after it is first affirmed on the convict by a Court, the death sentence becomes inexecutable owing to the fact that the delay beyond the period of two years constitutes cruel and degrading punishment violative of Article 21. However, the timeline of two years is now overruled by the Supreme Court in Triveniben v. State of Gujarat9(Oza J., 1989, Para 69) but the principle that inordinate delay results in cruel and degrading punishment has not been overruled. The Supreme Court held that, what constitutes inordinate delay is to be determined in the light of the facts and circumstances of the individual cases excluding the delay in the conclusion of the judicial process. Justice J. S. Verma Committee in its report10 submitted to the Government of India on 23 January, 2013 rejected the demand for chemical castration (following the national outrage over the Nirbhaya gang rape incident in Delhi) as a punishment for the offence of rape on account of it being tantamount to mutilation of human body which is impermissible and therefore unconstitutional and inconsistent with basic human rights treaties. As a consequence, the Criminal Law Amendment Act, 2013 enacted to strengthen the laws related to sexual offences against women in India does not provide for chemical castration as a punishment.
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