sentencing process — review of jural perspectives

P 2.51- 217

Sentencing Process —

Review of Jural Perspectives

S. S. HEGDE*

"The sentence of the law is to the moral sentiment of thepublic what a seal is to hot wax."

The great Judge, Sir James Stephen, observed this in 1874while he was expounding his doctrine of retributive justificationof punishments. Today the contents of "the sentence" have nodoubt, undergone successive changes, but his sentence remainsthe vessex rule of sentencing.

In the Indian panorama the crime oriented Penal Code1860; the guilt finding procedure of the Criminal ProcedureCode 1898 and the Evidence Act 1872 formed the foundationof British Administration of Criminal Justice in India. Withthe rise of positive school of criminology during the present cen-tury, the trend in penology has been a societal reaction to law-breakers. The attention is sought to be shifted from crime tothe criminal. The criminal is sought to be cured by treatmentrather than punished by infliction of pains. To these develop-ments, the ideal of social justice has added its colour with amore humanitarian approach to the problem of crime and cri-minals. The mores of the society and the needs of the communityare reflected in the several ameliorative legislations enacted in thepost-independence period. The Probation of Offenders Actfound its way into the statute book in 1958; The Children Actin 1960; The Borstal Schools Act similarly came to be passedby several states in subsequent years. These legislations supple-ment the crime-oriented pattern of punishments in the Penal

* B.A., LUM., Lecturer, University College of Law, Dharwad.

258 COCHIN UNIVERSITY LAW REVIEW Vial

Code with the guilt-finding process of the Criminal ProcedureCode, which was recently replaced in 1974. Thus the side byside existence of two basic norms in the present day admini-stration of criminal justice, resulting in a dual system of sen-tencing has caused considerable confusion within and withoutthe law implementing agency. The reformative idea is miscon-strued as liberalisation of punishment and as a declaration ofdiscount for the commission of crimes in the face of ever in-creasing rate of crimes. The individualisation of punishments inthe course of the experiments of 'correctional measures has re-sulted in a widespread impression of sacrifice of uniformity,objectivity, clarity and severity, resulting in lack of faith incriminal law.

It is in the light of these developments that an earnestattempt is made in this paper to unfold many 'whys,"hows' and`whats' surrounding the complex problem of sentencing. Thepaper revolves on the following questions:

Upon a conviction of an offender what can the State do?

In practice what the State is doing upon a conviction of anoffender?

SENTENCING PROCESS - WHAT IT MEANS

The modem system of criminal trial consists of two rigidlyseparated phases:-

The determination of criminal liability leading to an acqui-tal or conviction.

The determination of the way in which a person convictedshould be dealt with.

The sentencing process has nothing to do with the first ofthe above phases. It begins where the first ends. When anoffender is found guilty, the question of applying the 'sanctions'of Criminal Law has to be decided. Whether the convict shouldbe 'punished' or otherwise should be treated, if he is to bepunished what punishment is appropriate?, if he is to be treatedwhat measures are appropriate?, all falls for consideration.

S. S. HEGDE 259

The expression 'sentencing' has a close proximity with san-ctions. The term 'sanctions' however, has a generic and narrowmeaning. Prof. H. L. A. Hart's proposition that 'sanction' mustalways involve some pain' is based on the narrower mean-ing. Corresponding to this, 'sentencing' also has a generic andnarrower meaning. So where the convict is treated under thereformative theory either by probation or by sending him to acarectional institution, it is not sentencing in the strict sense ofthe term, 2 In its generic sense however, 'sentencing' means"all things that the court may do in respect of a convicted offen-der." So where a convict is released upon admonition, probation,etc., all such determinations are sanctions and hence falls with-in the meaning of sentencing. I propose to use the term sentenc-ing in this generic sense. Sentencing process may be definedaccordingly as,

"the process where by the State determines the criminallaw sanctions and apply it to a person convicted of anoffence."

The use of the word state is intended to signify that in thisprocess the three wings of the state, the legislature, the courtsand the executive, are all involved and sentencing process isthug' a 'gradual concretization' of criminal law sanctions.

THE BASIC QUESTIONS

Whether it be the infliction of pain or treatment, everysentence inevitably results in the curtailment of an individual'sliberty. For, even where a person is treated, that requires hiscontinued presence in confinement. The entire criminal proce-dure, from the pre-trial stage to the final stage of resocialisation(returning to society) can be seen as a complex mechanism.

H. L. A. Hart, Punishment and Responsibility (1968), p. 4. Hart's de-finition has been criticised by George Fletcher, Rethinking CriminalLaw • (Boston Little Brown, 1978), p. and also see Indo-China SteamNavigation Co. v. lusfit Singh A.M. 1964 S.C. 1140 at p. 1153.

Criminal Procedure Code 1973 Ss. 248, 235, 360. A release on ad-monition is not a sentence.

260 COCHIN UNIVERSITY LAW REVIEW

The magisterial vigilence itself calls for justification. The usualanswer (very ordinary) is the "protection of the society againstcrime." The administration of criminal justice 'aims at reducingcrimes by making as many people as possible want 'to obeycriminal law.3

The Supreme Court answers,

"The broad object of punishment of an accused foundguilty in progressive civilised socities is to impress onthe guilty party that commission of crimes does not payand that it is both against his individual interest and alsoagainst the larger interest of the society to which hebelongs." 4

These explanations are too broad and will not account for ourbasic question, why to punish (pain) some and treat (correct)others, why to pain more one than the other when all are law-breakers? This basic question about justification can be formu-lated as,

What ought to be punishment and why?

Who should be punished and how?

What factors should decide the corelation between what,why, who and how?

The Streatfield Committee s in England, in a preliminarydiscussion of the aims of sentencing, pointed out that the oldidea that sentence is right (justified) if it is proportionate tothe offenders culpability (the tariff system) is no longer ananswer to the complex problems facing a sentencer; modernidea of sentencing requires a difficult choice between a sentencereflecting the gravity of the offence and one which would servesome other purpose. The committee finally appears to recognisefive principal aims as justification for sentencing:

Rupert Cross, The English Sentencing System (London, Butterworths,1971), p. 91.

Ram Narayan v. State of U.P. (1973) 2 S.C.C. 86 at p. 91.

Report of the Streatfield Committee on the Business of CriminalCourts, Comnd. 1289.'

S. S. HEGDE 261

To fit the punishment to the crime - as society's retributionand denunciation;

To deter potential offenders - as a general deterrence;

3. To deter the particular offender from injuring again - asspecific deterrence.

4.' To precent the particular offender from injuring societyagain - as prevention by disablement or incarceration.

To enable the offender to take his place as a responsibleand law abiding useful member of society - as reformationby correction or rehabilitation.

It is needless to point out that the five principal aims for-mulated in the above objective are of the five leading theoriesof punishment - Retribution, General Deterrence, Specific Deter-rence, Preventive and Reformative. There is no substantialdifference of opinion as regards the premise and structure ofthese theories in several texts treatises. But differences there are,and the chief among them is the claim for exclusiveness or pro-minence in the content of a sentence and there lies the crux ofthe matter. In the wards of Mr. Justice Dua of the SupremeCourt of India,

"The next question is one of sentence which is always amatter of some difficulty. It generally poses a complex pro-blem which requires a working compromise between thecompeting views, based on reformative, detterrent and re-tributive theories of punishment.... The sentence to beappropriate should therefore be neither too harsh nor toolenient." 6

It is now clear that unless a sentences bestows his attention to theleading theories of punishment he cannot justify the trust reposedin him. Let us consider the thepries.

THEORIES OF PUNISHMENT

The diverse rationales of theories of punishment fall intotwo well-defined groups. In the one, justification is founded on

Supra, n. 4.


predicted consequences of criminal sanctions. The other groupfinds justification not in the possibility of same desired effectsbut in itself as balancing the equilibrium. The former grou p hasbeen described as `utilitarianist' or consequentialist grou p.' Thelatter may rightly be called as Retributionalists.

The consequentialists are again of four classes. The firstamong them belive that the good of punishing one criminal de-rives from the likelihood that others will thereby be influencednot to commit the same crime. The second group think that bypunishing an offender it is possible to deter him from commit

-ing similar crimes after his release. The third group of conse-quentialists believe that the only permanent solution is notpunishing but correcting a criminal. They think that it is possibleto cure the impulse to engage in criminal activity by treatment.If there is one common feature in these three diverse groups, itis that, •all of them seek justification in the predicted goodswhich are highly speculative. In contrast to these speculativegoals, the fourth group in the consequentialists category thinkin terms of a fairly certain consequence - Prevention. We havethen, the following broad classification of theories of punish-ment:

Theories of Punishment

Social Protection Social Response

Consequentialists Retribunalists(1)

Speculative goals Certain goalI Prevention

(4)

General Specific ReformativeDeterrence Deterrence Correctional and

(2) (3) Rehabilitation(5)

7. George Fletcher, Rethinking Criminal Law (Boston, Little Brown,1978), p. 414.

S. S. HEGDE 263

1. Retributive theory

Retribution is the instinctive sentiment - a natural pheno-menon found in living beings. Roughly, it consists of an "eye foran eye, tooth for a tooth." The refined expression is community'sdenunciation or reprobation of a crime. Hammurabi's Code,formulated in about 1975 B.C. provides a rough and ready illus-tration of retributive penology. "The criminal deserves to suffer"appears to be the gist of penal justice in this theory.

Aristotle, Kant and Sir James Stephen are the classicaladvocates of this theory. Sir James Stephen ex pounds his theoryof retribution which he called 'community revenge,' thus;

"The punishment of common crimes may be justified onthe principles of self protection and apart from any questionas to their moral character. It is not, however, difficult toshow that these acts have, in fact, been forbidden and sub-ject to punishment not only because they are dangerous tosociety, and so ought to be prevented, but also for the sakeof gratifying the feeling of hatred - call it revenge, resent-ment or what you will - which the contem plation of suchconduct excites in healthy constituted minds. If this can beshown, it will follow that criminal law is in the nature ofa prosecution of the grosser forms of vice, and an emphaticassertion of the principle that the feeling of hatred and thedesire of vengeance above mentioned are important ele-ments of human nature which ought in such cases to besatisfied in a regular public and legal manner." 8 -

To Sir James Stephen, the essential function of criminallaw is to give distinct shape to moral indignation and hatred ofthe criminal. It is in this context that he wrote, the sentence ofthe law is to the moral sentiment of the public what a seal isto a hot wax.

Historically, it appears that instinctive response of venge-ance (moral right?) of a victim was first transformed into a

8. James Stephen, Liberty, Equality and Fraternity; History of theCriminal Law in England Vol. 2 (New York, Burt Franklin, 1883),p. 81. Emphasis added.


moral right of the society to inflict similar pain on the offender.This much is clear from the growth of the concept of crime andcriminal law. Then in the interest of uniformity the impositionof definite punishment was confined to actual offenders. Thispaid the foundation for the tariff system of punishment. Finallyobjectivity in punishment was ought to be achieved in the qua-ntifying of punishments for different crimes under distinct cir-cumstances. The idea of selecting an appropriate punishment outof a maximum and minimum in the tariff thus marked thedenunciation of crime. The modern idea of retribution hasthree distinct aspects:

Retaliatory retribution meaning the intentional infliction ofpain proportionate to the pain resulted by the intentionalconduct of the offender.

Distributive retribution meaning the restriction on the appli-cation of the penal measures by uniform criteria.

Quantitatitve retribution, meaning the limitation of penalmeasures (by maximum or minimum) which have aimsother than retribution so that they do not exceed a degreeof severity considered appropriate.

Of the three aspects of retribution, it is the distributiveaspect which has a striking attraction to modern penologists.Prof. H. L. A. Hart called it "retribution in the distribution ofpunishments." 9It may be said that the idea that every sentencemust be proportionate to the offenders culpability. Many of ourjudges have an unimpeachable faith in this just deserts principle.The principle has two aspects - a positive denunciation, that theoffender should receive a sentence which adequately reflects thegravity of the offence in the view of the society, a negativeaspect, that the offender should not receive a sentence which isheaviar than that justified by the offence."

The refined retribution theory is the modern concept ofcommunity's denunciation or reprobation of a crime. Speaking

Hart, Supra, n. 1 at p. 17.

G. N. Sabhahit, Sentencing by Courts in India (Bangalore, DixitPub, 1975), p. 13.

S. S. HEGDE 266

about it, Lord Denning stated in his evidence before the RoyalCommission on capital punishment:

"The ultimate justification of any punishment is not thatit is deterrent but that its emphatic denunciation by thecommunity of a crime. However much one may try to re-fine the language, a little reflection would convince us thatthe sentiment of just vengeance is too deeply grounded inhuman nature to be lightly ignored or brushed aside....If the Law ignores the sentiment of retribution the feelingitself would not evaporate into thin air. On the other hand,people are likely to take law into their own hands andlynching would be the order of the day.""

This assertion, however, should not be carried to an un-limited extent. It may be pointed out that retribution theoryif carried to its logical conclusion will simply result in addingone more evil to the evil already committed. As Prof. Sutherlandpoints out,

"In punishing criminals society expresses the same urgeswhich are expressed among criminals in committing acrime." 12

The theory aims only at a temporary adjustment ignoringthe long term social tranquility.

2. The Deterrent theory

Punishment acts on the motives of the offender - actual orpotential. The state should demonstrate that crime does not pay.Sentence must therefore work as an example and warning tothe offender and to all other likeminded people to deter themfrom committing the same or similar offences.

Plato expounded this idea and Bentham strongly advocatedit. In his 'Principles of Penal Laws' he argued,

Law Commission of India, Thirty-Fifth Report. Capital Punishment(New Delhi, Government Press, 1971). Emphasis added.Edwin Sutherland, Principles of Criminology 6th ed. (Bombay,Times of India Press, 1965), p. 301.


"when we consider that an unpunished crime leaves thepath of crime open, not only to the same delinquent but alsoto all those who have the same motives and opportunitiesfor entering upon it, we perceive that the punishment in-flicted on the individual becomes a source of security toall." 13

This utilitarian approach, obviously, rests on the calcula-tion of pain and pleasure in the course of ordinary human be-haviour. The aim of punishment is to increase the pain overthe pleasure of the contemplated criminal act and to render thecommission of crime an ill-bargain. The assumption is thatcrimes are committed in the course of cool calculation of painand pleasure. Though this may be true of a special category ofcrimes (where there is the economic gain) majority of crimesare not committed in cool calculation.

The deterrent theory has two aspects as it operates at twolevels - individual offender himself and other potential offenders.The classical example of general deterrence sentence is that ofa judge in England during 18th century who said,

"You are to be hanged not because you have stolen a sheepbut in order that others may not steel sheep. 14

Techniques of deterrence

Physical violence, brutal corporal punishment inside andoutside the prison (torture in public) were deliberate techniquesof deterrence apart from capital punishment. The deterrentprison philosophy beautifully summed up by Prof. Nigel Walker,is that the life inside the prisons should be less tolerablethan the life outside. The main object is to impress upon aconvict that the prison life is hard - hard fare, hard labour, hardbed was deliberately used as technique of deterrence.

In the modern systems many of the primitive brutal methodsof deterrence are given up as a result of Human Rights move-

Jeremy Bentham, Principles of Penal Law, p. 396.As cited by Sabhahit, supra n. 10 at p. 17.

S. S. HEGDE 267

meat, but there are two factors which still serve the deterrentpurpose of prison life:

1. Deliberate and illegal intensification of discomforts and in-convenience by a minority of subordinate state who areeither temperamentally out of sympathy with the officialpolicy or have been provoked by the behaviour of.prisoners.

2. Imposition of several instructions for administrative reasonswhich are inevitable in many cases.

The general objections to deterrent philosophy are:

Deterrence has no utility in crimes of emotion and passion.

It is unjust to punish one individual to teach a lesson toothers.

Crimes are not committed by cool calculations.

Deterrence converts a curable criminal into a hardenedcriminal.

3. The preventive theory

The assumption is, by keeping an offender in confinementthe society may be secured. The rational is that the offenderwill not pose a threat to persons outside the prison during theperiod of confinement. Now a days this theory is not pleadedas a general justification of sanctions but pleaded mainly withreference to incorrigible offenders and highly dangerouscharacters.

4. The reformative theory

Sincere efforts to excavate the causes of crimes and crimi-nal behaviour since the beginning of this century has revealedthat majority of criminals are patients - patients curable byproper treatment. Further, it is revealed that some offenders arenot deterred however unpleasant the penalty may be. Experi-ments and efforts began to put the , theory in practice. In thecourse of these years the grounds are often shifted. It is in thisway that the penal philosophy received a new dimension bythe inclusion of correction and rehabilitation as one of the aimsof criminal justice.


The reformative theory is still in its experimental stage.Criminology and penology is so much associated in the refor-mative theory that it becomes very difficult to speak aboutone without mentioning the mechanisms of behavioural sciences.Our purpose, however, would be better served by a considera-tion of the techniques used, proposed in the process of correc-tion and rehabilitation.

Techniques of reformation

As soon as the aim of reformation was extended to sen-tencing process, theories about the way it is to be attainedbegan to multiply. Prof. Nigel Walker, aptly points out, "thevarieties of these theories and the rapidity with which fashionsin them change is a sure index of the failure of any one of themto yield spectacular results." Most simple methods without muchtechnical expertise are solitude, homily, industry, activity, andenvironmental manipulation. The more sophisticated techniquerequiring expertise is psychotherapy.

Solitude: this is the reinforced system of separation andsegregation of deterrent categories of offenders - the objectis to prevent contamination of novice and facilities treat-ment.

Homily: this technique, religious in origin is mostly aimedat prison reforms. Direct moral instructions, by prayer lec-tures lessons and reading and probation service is the gistof this technique.

Industry: An excellent way of correction is the reclamationthrough industry, industry is also the main technique ofrehabilitation. By providing a useful, satisfying work or joba prisoner may be made to understand his responsibilities.

Activity: Strenuous games and other forms of physical andcultural recreation are used to mould the character of adelinquent convict. The abject is to enable the prisoner todevelop a sense of confidence, self-respect and dignity.

15. Nigel Walker. Crime and Punishment in Britain (Edinburgh Univ.Press, 1%6), p. 134.

S. S. HEGDE 269

Environmental manipulation: The best rehabilitation techni-que which has recorded a considerable result is rehousingof a problem family. Crimes of economic origin can beeffectively dealt with by this technique.

Psychotherapy: Psychotherapeutic techniques devised byFreud and the hypothesis which he founded on them formsthe basis of treatment of delinqency. The methods aim atsupplying artificially, permissiveness, parental love, affection,faith etc.n to rectify the maladjustment of the delinquent.Modern psychoanalysis stresses the importance of "trans-ference" i.e., the temporary emotional dependence of thepatient on the analysist which seems to be essential tosuccessful treatment. Based on this theory, the "groupcounseling" and "group psychotherapy" is used in theU.S.A. The technique originally used in psychiatric schoolsis extended to young offenders. The method consists essen-tially of providing regular discussions between small groupsof inmates in the presence of and under the leadership oftrained probationary officers.

Mr. Justice Krishna Iyer advocates the techni que of "Trans-cendental meditation" as a useful correctional measure. Heargues,

"I have recurrently emphasised that crime is a disease ofstress and stress related causes. Murder is caused in theheat of passion, burgulgary in the pressure for possession,rape shoots out of over powering sex. Whatever the appa-rent motiviation the cause causans is stress, tension, suppre-ssion, anxiety, destruction, negativity, a neurophsiological- psychological syndrome. The whole focus therefore shiftsto stress proofing.... Result - natural, restoration ofwholeness, promotion of creative potential and rehabilita-tion without the sanction of the state violence.... T. M.is simple, inexpensive, quiet exercise - 2 minutes morningand evening with no tie up with religion."16

16. Krishna Iyer, "Sentences and Sentencing: Possibilities of Crimino-logy of Consciousness." Prof. R. S. Thampi Farewell Commemora-tion Volume p. 1.


He believed that criminals can be changed almost over-night. He recommended it to "judges, tension prone professions,patients, prisoners and to undetected delinquents who deserveto be imprisoned but who by failure of our justice system struckabout as if they were not criminals."

For an efficient application of all the above techniques thecriminals (delinquents) should be classified. Different cata-gories of prisoners should be kept separate (in separate inst:-tutions if possible). The United Nations Congress on the pre-vention and treatment of offenders, working under the UNESCOhas recommended a number of measures to be the minimumrules for treatment. 17 The measures for general management ofinstitutions applicable to all •types of prisoners, criminal civilundertrials or convicts stress the importance of recruitment ofspirited, devoted, specialised trained staff. Compulsory pre-appointment training, establishment of regional training insti-tutes and inservice training are some of the measures worthconsideraing among many others.

The UNESCO movement, first found its way in actual pra-ctice in the United States. But surprisingly the benevolent reha-bilitative measures, so far have not yielded any positive results.On the other hand the indiscriminate individualisation of punish-ments are reported to have become a matter of national concern.

Prof. George Fletcher writes,

"It may be that the rehabilitation ideal was too deeplyand too naively held, for the failure to produce results hasgenerated widespread cynicism in the United States bothabout rehabilitation and indeterminate sentencing. This dis-illusionment and perhaps the natural eff and flow of intel-lectual history has rekindled interest in retributive theoriesof punishment." 18

Standard Minimum Rules for the treatment of pr:soaers and relatedrecommendations, - UNESCO Resolutions Reproduced in Mueller,Sentencing Process and Procedure (Springfield - Charles C. Thomas,1977), Appendix A.

Fletcher, supra n. 7 at p. 416.

S. S. HEGDE 271

The reinforced emphasis on retribution in a number ofcontemporary writings in U.S.A. is a sure index of the reversetrend in penology.' 9

SENTENCING PROCESS - JUST COMPROMISE

It is only by way of repetition of off-repeated assertion, thatthe penal machinery cannot operate at its maximum efficiencywith just one of the theories of punishment, that a plea for a`just compromise' (working compromise) of the diverse claimsof theories may be analysed.

The inevitable need for such a compromise necessarilyraises the question - who should make it?, how it should bemade? How it should be effected? The answer necessarily in-volves the role of the legislature, the judiciary, the executive instriking a just compromise.

Legislative participation

Prof. Gerhard Mueller illustrates the role of the legislaturein the following passage:

"When the legislature deliberates a proposed statute it mustconsider all the aims of punishment in order to find theright frame for the sanctions to be imposed. It must askitself: How many years or what range of years wouldroughly correspond to the public clamour for retribution fora given wrong? How much of demonstration do we needfor the internalization of the notion of wrongfulness amongthe general public? What should be its frame in accord-ance with the psychological function of general deterrence?Who is likely to commit such an offence and how long itwill take us to work on such a typical person in order toimpress on the person through special deterrence? How

19. J. B. Cederblom and Blizek, Justice and Puns. (Cambridge,Mass, Ballinger, 1977).


long is that person likely to constitute a danger and there-fore be kept away from society?". 20

The individulization of sanctions at this stage is only abroad classification of offenders such as juveniles, first offenders,incorrigibles and lay down the broad policy norms of maximumor minimum punishments.

Judicial participation

It is really the courts who individualise the penal measuresin the proper sense. They have the benefit of the presence ofthe offender before them for the first hand evaluation of chara-cter, culture and climate in which the offender committed theoffence. They can get the material to decide what would be theappropriate sentence to serve the purposes.

Executive participation - administration

When the question of rehabilitation, correction, or punish-ment otherwise is finally determined by the court it is not forthe lawyers or judges to decide upon specific methods or tech-niques. Lawyers and judges lack that ex pertise. This is properlythe realm of executives, more correctly behavioural scientists.But that does not mean that the law and lawyers are uncon-cerned with execution. Law should provide for the minimumrules for the selection and training of the personnel for penaland correctional, institutions.

In the sentencing process, finally, the people of a countryhave an indirect but the most important role to play. Whetherit be general deterrence, reformation, or retribution, the citizensof the system have the final say - law represents the mores ofthe people.

SENTENCING PROCESS IN CONTEMPORARY INDIAN CRIMINAL

JUSTICE

The winds of reformative theory started its way into India

20. G. 0. V4 Mueller, Sentencing, Process and Procedure (SpringfieldCharles C.' Thomas, 1977), p. 57.

S. S. HEGDE 273

in the late fifties and the ideal of social justice gave a nucleus(impetus) to the progressive movements. Reformation theory re-flected its presence by the Probation of Offenders Act, on thelegislative horizons. Several proposals for jail reforms and esta-blishment of correctional institutions corresponded with the legi-slative spirit. Still the crime-guilt finding oriented Penal Codeand Criminal Procedure Code remains the foundation of sen-tencing law. In the meanwhile, several special enactments tocheck socio-economic crimes have been enacted proposing anenhanced punishment for these offenders. The result is that thesentencing process has become a com plex problem.

The complexity can be understood by a consideration ofavailable punitive measures, classification of offenders and classi-fication of courts.

The following are the punishments (stricto senso) in force.

A. Custodial —

Capital punishment

Imprisonment for life

(3) Imprisonment for a term i.e.

Rigorous - with hard labour

Simple (S. 53 I.P.C.)

B. Non-custodial —

(4) fine

Forfeiture of property (Section 53 I.P.C.)

Confiscation (Foreign Exchange Regulation Act andCustoms Act)

(7) Payment of compensation of victim (Section 545 Cr.P.C.)

The Law Commission has recommended a new provisionin S. 53 in the Penal Code to include externmenk public censureand order for compensation also in addition to the existing pu-


nishment. 21 The Bill proposing these changes is pending since1972,

The following are the special measures for treatment andrehabilitation:

Release after admonition (S. 3 of Probation of OffendersAct).

Release on probation of good conduct (S. 4 of probationof Offenders Act)

Release with burden of paying compensation and cost (S. 5of Probation of Offenders Act)

Remand to correctional institutions (Children Act, BorstalSchools Act).

Law provides 22 that all offenders below the age of 16 incase of boys and 18 in case of girls should be tried by only aJuvenile Court; they should be confined only in correctional in-stitutions; during their confinement the young offenders shouldbe given such industrial training and other instructions or shouldbe subject to such discipline and influences as will conducethem to reformation.

In case of women offenders, under the Suppression of Im-moral Traffic in Women and Girls Act there is a provision tosend way-ward and convicted women to Welfare Homes andother correctional institutions.

SPECIAL DETERRENT MEASURES

Realising the gravity of certain offences, the urgent needfor checking them, undeniable difficulty in detection, sophisti-cated means employed and personalities involved, certain offences

• are put in the bandwagon of the newly developing concept ofsocio-economic offences. Stringent measures giving heed to re-tributive and deterrent ideals are proposed for this class of

Law Commission of India, Forty Second Report. Indian Penal Codef(New Delhi, Government Press, 19711).Probation of Offenders Act, Children Act.

S. S. HEGDE 275

offenders. 23 Apart from S. 75 of the Indian Penal Code thevarious provisions of special enactments like Foreign ExchangeRegulation Act, 'Prevention of Food Adulteration Act, EssentialCommodities Act etc. 24 provide for enhanced punishment. Thereis a considerable argument for applying reformative measures tothis category also but the law commission has recommendedsevere punishment. 25

From this, it is obvious that our system has a tripleapproach in the matter of penology. We have a more reformativeapproach towards young offenders, a more retributive deterrentapproach towards socio-economic offenders and an unconcernedapproach for ordinary offenders.

FORUM

To suit this triple approach three separate forums are pro-vided to try the offenders.

Juvenile Courts

Ordinary Courts

3. Special Courts

JUDICIAL PROCESS SENTENCING

When the trial of a criminal reaches the stage of sentencingthe three approaches broadly outlined above have its reflectionon the nature of the burden cast on the judiciary. The systemconfers a wide discretion on judges to come to a conclusion

Law Commission of India, Forty Seventh Report. Trial and Punish-ment of Social and Economic Offenders (New Delhi, Govt. Press,1972).Central Excises and Salt Act, 1944; 'Prevention of Food AdulterationAct 1954, Essential Commodities Act 1957, Wealth Tax Act, 1957,Income Tax Act ,1961, Customs Act, 1962, Gold Control Act 1968.Inspite of the Law Commissions recommendations the plea for re-formation was urged in a catena of cases. Isher Das v. State ofPunjab A.I.R. 1972 S.C. 1975, P. K. Tejani v. M. R. Dange1974 S.C. 228 at p. 237, Bala*rishna v. State of West Bengal A.I.R.1974 S.C. 120; Kishore Prasad v. State of Bihar A.I.R. 1972 S.C.2522.

276 COCHIN UNIVERSITY LAW REVIEW %lei

as to an appropriate sentence. The relevant sections of the Cri-minal Procedure Code in this respect are Ss. 235, 248, 255,325, 360 and 361. Similarly the provisions in the Probation ofOffenders Act and the Children Act are operative at this stage.The object of all these sections is to enable the court to deter-mine a correct course of sanction. The Probation of OffendersAct particularly provides for a pre-sentence investigation reportby the Probation Officer before the passing of the sentences.

The law commisssion speaking about a proper sentencestated:

"A proper sentence is a composite of many factors includ-ing the nature of the offence, the circumstances extenuatingor aggravating the offence, the prior criminal record of theoffender, the background of the offender with reference toeducation, homelife, sobriety and social adjustment, theemotional and mental condition of the offender, the pros-pect for the rehabilitation of the offender, the possibilitiesof return to normal life, the possibility of treatment andtraining of the offender, the possibility that this sentencemay serve as a deterrent...." 26

Similarly the Supreme Court in a number of decisions 27 haslaid down the norms for sentencing. The gist of these decisionsis that, extending the operation of probation should be a ruleand its exclusion exception.

The discretion oriented sentencing, no doubt, sounds idea-listic in spirit. But all is not well. The lower judiciary is blamedfor lack of awareness of proper perspectives 28 whereas they in

Supra, n. 23.

Ram Naresh v. State of M.P. A.I.R 1974 S.0 35; P. K. Tejani v.M. R. Dange A.I.R. 1974 S.C. 228; Chacko v. State of Kerala (1971)Cr. L. J. 1251; Krishna Prasad v. State of Bihar A.I.R. 1972 S.C.2522; Lekhraj v. State A.I.R. 1960 Punj. 452; State of U.P. v. ParasNath A.I.R. 1973 S.C. 183; State of Maharashtra v. Nasim KhanA.I.R. 1971 S.C. 381.

28. Per Krishna Iyer, J., in Siva Prasad v. State of Kerala 1969 K.L.T.862 and Chacko v. State of Kerala (1971) Cr. L. J. 1251.

S. S. HEGDE 277

turn point to the paucity of materials. 29 At the level of SupremeCourt, the ideological differences and personalised approaches ofthe individual judges has given an impression that reformationis to be achieved at a cost which the country is neither preparednor can be expected to bear. The too much individualisation ofthe process raises doubt as to whether reformation means mereliberalisation of punishment. Commenting upon the state ofaffairs, the Supreme Court itself observed:

"Finally comes the post-conviction stage where the currentcriminal system is weakest. The courts approach has atonce to be socially informed and personalised. Unfortu-nately the meaningful collection and presentation of peno-logical facts bearing on the background of the individual,the dimension of the damage, the social milieu and whatnot, these are not provided in the code and we have tomake intelligent hunches on the basis of materials adducedto prove guilt. In this unsatisfactory situation which needslegislative remedying we go by certain broad features."30

There is at least some truth in the objection that sentencingstage is practised as a mere matter of formality. The discretionis, in many cases, used to outlet the personal ideology of thesentencer. No doubt, uniformity and certainty can be sacrifiedbut only when it is otherwise unavoidable for a certain object.The Supreme Court itself stresses the need for maintaing uni-formity and upon an indiscriminate commutation of life impri-sonments to few years, it has recently held that life imprison-ment should not be commuted in any case for less than 14years.. 31 The question that remains unanswered in this context is,

Can we afford the luxury of sacrificing uniformity and cer-tainty for a mere speculation thtat at least in some cases thetask will yield results?

The reformative ideology in view of the poor performance (orno performance) of the correctional institutions appears to be

A.I.R. 1974 S.C. 228 at p. 236.Id. at p. 237.Maru Ram v. Union of India (1960) Cr. L. J. 1440.

278 COCHIN UNIVERSITY LAW REVIEW 1981

no more than liberalised punishments. The point is very muchillustrated with reference to death penalty. The Supreme Courtin Bachan Singh 32held that this punishment should be used inthe `rearest of rare cases.' Mr. Justice Sarkaria held recently,that the case of Sunil Batra - the cold blooded murderer, burglarer- is not such a rarest of rare cases because he is quite young.The judicial pardon to Sunil Batra, may very well be attributedto the liberal nature of Sarkaria J, because in an almost similarcircumstance the plea of Billa and Ranga was turned down bythe Supreme Court33 (though they were not old). This has ledan intelligent critique to observe,

"Future Sunil 'Batras can perhaps take heart in the fact thatprovided they are young and have otherwise clean crimerecords they can shoot, stab, or strangle to death a few oftheir fellow citizens and be secure in the knowledge thatthey will be asked to stay behind bars only for a relativelyshort spell of years... .the price paid for committing mur-der has obviously been given a super discount.34

The penal measures of a system must necessarily respond tothe social needs - individual ideologies cannot represent socialneeds, unless, it reflects the views of the majority and socio-economic conditions of the country permits its operation.

Do the present socio-economic condition in our countrypermits us to have the luxury of an undefined experimentin such a sensitive area as criminal justice?

The question cannot 'be answered without a proper study of thepublic opinion and existing conditions of correctional institutions.

The penal measures of a system is tested in its actual opera-tion and administration. No doubt law alone cannot do anythingand lawyers and judges lack expertise in the matter of correc-tional techniques. But what is the use of passing a sentence con-taining benevolent correctional aims if correction cannot be im-plemented in its spirit - it acts as a boomerang.

32. Bachan Singh v. State of Punjab A.I.R. 1980 S.C. 899.33'. India' Today Vol. 6 No. 3 (Feb. 1-15, 1981) p. 69.34. Ibid.

S. S. HEGDE 279

The correctional institutions in India, it appears, lack notonly expertise but also spirited and devoted efforts. The resolu-tions of the UNESCO for careful recruitment of trained men,training - inservice and pre-appointment, specialisation are yetto find the favour of the Government not in spirit but in pra-ctice. The reports on jail conditions and correctional institutionsby research scholars 35 focus the appalling conditions owing tolack of funds, exeprtise, lawlessness, corruption and what not.We have built up a reformative justice system (at least in thesense of liberalised light sentences) without preparing the groundfor its operation. Too much efforts are made to draw the atten-tion of the judges to the possibility of curing the criminals andtheir resocialisation - but too little ground is prepared for thatend. The result is but natural - it is no wonder if the inmates ofa Borstal, School submit memorandum alleging removal of theeyes from their sockets. Whether social justice demands us toshut our eyes to the existing realities? The remedy is, either weshould stop reformative experiments in sentencing or the prisonand correctional institutions must prove their worth. Which ofthe two alternative is more feasible? The real remedy is not justworking out a sentence but working out its administration. TheProbation Officers should not remain probationary for ever.

35. P. S. A. Pillai, "Prison freedom and undertrial prisoners." Prof.R. S. Thampi Commemoration Volume p. 9; J. P. S. Siroiri "Proba-tion Officer's Investigation Report in the realm of Criminal JusticeAdministration" (1979) 21 J.I.L.I. 313; Upendra Baxi. "Book Re-view of Ross. On Guilt, Responsibility and 1Purnislunent" (1979), 21

407; J. P. Ranakal, "institutional Service under the ChildrenAct" (1975') 17 37.

sentencing process — review of jural perspectives

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