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. Giving an exhaustive list of what constitutes cruel and unusual punishment is not possible but the same must be examined from the point of view of the evolving standards of decency that mark the progress of maturing society.11 Thus punishments to be constitutionally tenable must be humane and civilised and not inhuman and barbaric.

Different modes of mutilating, barbaric or cruel punishments

Castration/ Flogging or Amputation Eye Prolonged Physical or Caning of limbs Gouging wait on Chemical death row

4. Sentencing

Sentencing is the verdict of the Court determining the punishment. Sentencing is one of the most significant judicial functions performed by the Courts in India and elsewhere. As already stated, the legislations generally provide a range of punishments and the Court in individual cases decide the appropriate sentence based on the facts and circumstances of the case. Sentencing is an exercise different from the determination of guilt as the factors like motive, the act being brutal and gruesome, though not relevant in determining the guilt, become relevant while sentencing. Further, terms like brutal and gruesome are terms which in itself admit subjectivity. Legislations completely leave it to the Courts to decide the appropriate sentence without laying down the standards or guidelines for sentencing. Constitution bench of the Supreme Court in Mohd. Arif v. Registrar, Supreme Court12(Nariman J.,

2014, Para 2) observed that the punishment must fit the crime but simultaneously acknowledged that the sentencing procedure under the Indian law admits the scope of judicial vagaries to a great extent. However, several penal provisions provide for a minimum sentence in relation to an offence and therefore in such cases the discretion to award a sentence lesser than the minimum sentence is not there with the courts.

The imprisonment for life also has several categories; first is the life imprisonment simpliciter, i.e. life imprisonment which is subject to remission powers of the State after the convict completes 14 years in prison,13 second is life imprisonment for the remainder of the person’s natural life14 and third is the Supreme Court’s crafted life imprisonment without the statutory powers of remission of State, extending upto the remainder of the natural life of the convict or a fixed term of imprisonment in excess of 14 years in relation to a case which falls in between life imprisonment and death penalty and the offence happens to be one for which death sentence is an alternative punishment apart from life imprisonment.15

Section 31 of the Code of Criminal Procedure (Cr.P.C.), 1973 talks about the discretion of giving concurrent and consecutive punishments when the accused in convicted in one trial for two or more offences. However, the consecutive punishment cannot be more than 14 years in aggregate and more than double of the maximum sentence awardable by the sentencing court for a single offence. This rule however, is inapplicable when life imprisonment is given for more than one offence in a trial, since life imprisonment in essence is for the remainder of the natural life and therefore multiple life imprisonments will always run concurrently (Banumathi J.,

2014, Para 13). 16 When the prosecution is based on single transaction where it

constitutes two or more offences, the sentences are to run concurrently and not consecutively (Gowda J., 2014, Para 10).17 Any sentence of imprisonment in default of fine has to be in excess of, and not concurrent with any other sentence (Banumathi

J., 2014, Para 11).18 The court, before exercising its jurisdiction under section 31 is required to consider the totality of facts and circumstances while deciding whether sentences are to run concurrently or consecutively (Banumathi J., 2014, Para 12.19

Difference sentencing options under the Penal laws in India

Sentence

Imprisonment Death Sentence

Imprisonment

Imprisonment other than Life Life Imprsionment Imprisonment

Imprisonment Other than Life Imprisonment

Only maximum imprisonment Both minimum and maximum prescribed in law imprisonment prescribed in law

Life Imprisonment

Life Imprisonment subject to Life Imprsionment not subject the statutory power of the to the statutory power of remission of the Government remission of the Government

Life Life Imprisonment Imprisonment for the for a fixed remainder of period in the natural life excess of 14 years

Judicial Discretion if accused is guilty for more than one offence in a trial

Sentences to run concurrently Sentences to run consecutively

4.1 Conviction and Sentencing

Conviction precedes sentencing, conviction determines the culpability of the accused, whereas, sentencing is the task of pronouncing punishment befitting the crime committed. However, it is emphasised now, that, sentencing should not only be based on crime and therefore other factors must also be taken into account while sentencing.

For example repeat offenders should be sentenced stringently compared to a first time offender. Before the coming effect of the new Cr.P.C. 1973, the old Cr.P.C. of 1898 had no specific provision for special hearing on the question of sentence after conviction. Therefore, the criminal trial was mainly confined to finding the guilt and

proceeding in the course of determining the guilt was considered sufficient for the

Court to take a call on the appropriate sentence as well. The new Cr.P.C. however, contemplates special proceeding under section 235(2)20and 248(2)21 on the quantum of sentence after the conviction. In Santa Singh v. State of Punjab22(Bhagwati J.,

1976, Para 4) it was held by the Supreme Court that the hearing contemplated under section 235(2) is not merely confined to oral submissions, rather it provides an opportunity to the accused and the prosecution to present before the Court, all the materials which have a bearing upon the question of sentencing and if the claims are contested by the either side, then to produce even documentary evidence to substantiate the claim.

V. R. Krishna Iyer, J. in Mohd. Giasuddin v. State of A.P.23(Iyer J., 1973, Para 20) emphasised that sentencing must exhibit the perfect blend of denunciation of the crime committed and “hospitalization techniques” (Iyer J., 1973, Para 20), i.e. to consider the therapeutic effect of punishment on the convict. In the present case the appeal was against the three years imprisonment given to the appellant after his conviction under section 420 of the India Penal Code for duping 1200 rupees from few young men on the false pretence of securing jobs for them. Iyer, J. lamented the fact that only the severity of the offence committed was gone into while determining the sentence and therefore, the soul of section 248(2) of Cr.P.C. in this case has been ignored. Iyer, J., therefore, commuted the imprisonment to a term of eighteen months in the light of the facts that the convict is a young 28 years old double graduate working as Junior Assistant in the Government Secretariat and his parents and younger siblings are financially dependent on him. The economic hardship of his

imprisonment was taken as an extenuating factor. Iyer, J. also ordered that keeping in mind his qualifications, the convict should not only be given mechanical work in the prison rather some mental, intellectual work mixed with manual labour must be assigned to him. This clearly reflects that a just penological approach is true to the rights of the convict and those rights are not to be sacrificed at the altar of assuaging the hurt sentiment of the society. However, these interventions are more piecemeal than the general rule. At the same time though, giving punishments less than the statutory minimum in the name of individualization of justice has been severely deprecated by the Supreme Court (Radhakrishnan J., 2012, Para 7). 24 Therefore, individualization of punishment can only be done within the statutorily permissible range of punishment.

In Mithu v. State of Punjab25(Chandrachud J., 1983, Para 23) a five judge constitution bench of the Supreme Court declared section 303 of the Indian Penal Code which provides for mandatory death sentence for a person committing murder while undergoing life imprisonment inside jail or outside while on parole to be unconstitutional owing to it being harsh, oppressive and unjust. The court held section

303 to be violative of Article 21 and 14 of the Constitution as it deprives the person convicted from the benefits of procedural safeguards by not giving any scope for the application of judicial mind on the question of suitable punishment. This therefore tells us that the presence of judicial discretion is crucial to safeguarding the rights of the convict and in the name of curbing judicial vagaries punishments cannot be fixed beforehand by the legislators, depriving the occasion for the application of judicial mind on the question of sentence.

4. 2 Question of Proportionality

The hospitalization technique referred to by Iyer J. in the aforesaid paragraph apparently tends to dilute the principle that the sentence awarded must be proportionate to the act in question. Undue sympathy would also harm the faith of people in the justice delivery system. The Supreme Court in State of M.P. v. Kedar

Yadav26(Pasayat J., 2009, Para 11) held that the act of sentencing must take into account the social impact of the punishment. The court emphasised that the social impact of the crime where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude and moral delinquency have great impact on social order and therefore such offences require exemplary punishment. Therefore, proportionality it to be adjudged not by simply looking at the act committed and the manner of commission of the act but a holistic account of factors must be taken into account to arrive at the decision regarding appropriate sentence.

5. Conclusion

Discourse on Human Rights dimensions of punishment and sentencing is mostly viewed from the side of the accused, and rightly so, as the accused is pitted against the State in a criminal case and therefore, the potential infringement of the rights of the accused cannot be denied at the hands of State including Courts. Punishments are meant to denounce the criminal conduct but it cannot be savage, brutal and uncivilized and therefore, it must be consistent with the respect for human dignity of the convict. Punishments such as beheading, stoning, flogging, amputation, castration

and solitary confinement etc. are therefore impermissible in a civilised legal system.

Sentencing, to a great extent is a task dependent upon the personal predilections of individual judges and standardizing the task of sentencing therefore, is still a distant goal in India. Consequently, the human rights of the convicts continue to be in peril despite the sentences being ostensibly passed under the law.Further, otherthan the occasional piecemeal concern shown by the Courts,the task of sentencing is largely considered an act of punishing the convict for the crime committed and scant regard has been shown for individualization of punishments.

6. Summary

Punishment in criminal law is the social instrument of exhibiting societal disapproval or societal disapprobation of the impugned conduct. However, in modern times punishment is also considered a therapeutic tool meant to cure the criminal by disinfecting the inner moral fabric of the criminal. But, the resort to the task of cleansing the criminal from within appears largely anecdotal and piecemeal.

Punishment, necessarily contemplates curtailment of the liberties which a person is otherwise entitled to and even extinguishment of life in case of death penalty.

However, punishment to be handed out must be consistent with the human dignity that every person is endowed with including the convict and therefore cruel, unusual and degrading punishments violate the right to dignity of the convict. For the

Supreme Court, hanging is the most humane way of executing the convict condemned to death by the Court. The task of sentencing admits the scope of subjectivity by judges, as substantive laws generally provide for a range of punishment, leaving it to judges to decide the appropriate punishment in a given case. Despite several years of

the exercise of this judicial discretion by the higher courts, the existing judicial precedents have not been able to standardize the task of sentencing in India, and therefore, it continues to be largely judge centric exercise and thereby puts the human rights of convicts in jeopardy.

1 See, Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287. 2 Second Protocol to the International Covenant on Civil and Political Rights (ICCPR) is meant for the abolition of death penalty, however, India is not a party to it and therefore it cannot be enforced in India nor can it be used to enlarge the ambit of right to life guaranteed in the Constitution as right to life is subject to a due process of law under the Constitution and therefore not absolute. In Vishaka v. State of Rajasthan, (1997) 6 SCC 241, the Supreme Court read the provisions of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) into guaranteed fundamental rights and framed guidelines for the protection of Women from Sexual Harassment at the Workplaces, as India is a party to this Convention and these provisions of the Convention were in harmony with the constitutional fundamental rights. 3Obergefell v. Hodges, Available at http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf, last visited on 15 May’2016. 4 Article 5 of the Universal Declaration of Human Rights provides that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Article 7 of the ICCPR [International Covenant on Civil and Political Rights] provides that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation." Article 10, paragraph 1 of the ICCPR states that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." 5 (1978) 4 SCC 494. 6 (1983) 4 SCC 645. 7 1989 (Supp) 1 SCC 264. 8 (1983) 2 SCC 68. 9 (1988) 4 SCC 574 & (1989) 1 SCC 678, see also, Shatrughan Chauhan v. Union of India (2014) 3 SCC 1. 10 Report of the Committee on Amendments to Criminal Law, Available at http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20co mmitte%20report.pdf, Accessed on 25 January’ 2017. 11Gregg v. Georgia, 428 US 153, 172-173 (1976). 12 (2014) 9 SCC 737. 13 See, Section 433A of the Code of Criminal Procedure, 1973. 14 See. Sections 376-A, 376-D & 376-E of the Indian Penal Code, 1860. 15 See, Swamy Shraddananda(2) v. State of Karnataka (2008) 13 SCC 767 and Union of India v. V. Sriharan (2016) 7 SCC 1, Haru Ghosh v. State of W.B. (2009) 15 SCC 551, Dilip Premnarayan Tiwari v. State of Maharashtra (2010) 1SCC 775. 16O. M. Cherian v. State of Kerala (2015) 2 SCC 501. 17Manoj v. State of Haryana (2014) 2 SCC 153. 18Supra note 16. 19Ibid. 20 Section 235 (2) – If the accused is convicted, the judge shall, unless he proceeds in accordance with the provisions of section 360 (section 360 deals with probation of offenders), hear the accused on the question of sentence, and then pass sentence on him according to law. Section 235(2) is for Sessions Trial. 21 Similar to Section 235(2), Section 248(2) is for Warrant Trial. 22 (1976) 4 SCC 190.

23Supra note 1. 24State of M.P. v. Ayub Khan (2012) 8 SCC 676. 25 (1983) 2 SCC 277. 26 (2009) 17 SCC 280.