Sentencing guidelines

The contradiction between makers of law and those who interpret and implement it remains unsolved, highlighting the need to codify sentencing practices.

AMIDST all the controversies over how to tackle violent crime, there is a raging debate now on, in the United Kingdom on the manner in which criminal courts in the country hand out sentences. Recent media reports suggest a near-confrontation between the executive and the judiciary. David Blunkett, the country's forthright and action-oriented Home Secretary, does not mince words. He is convinced that there is vagueness in the system that needs to be eliminated if crime is to be controlled, and the initiative for this will have to come from Parliament. He feels that incorrigible and dangerous criminals are being let off by courts with soft penalties. A statement attributed to him - "Life means life" - perhaps accurately explains what he stands for. He pleads for very long terms of incarceration that will keep active and reckless offenders away from the streets. As I said in my last column, while crimes related to property in the U.K. have shown some encouraging drop, the frequency of offences against the human body is still high enough to cause concern. The Economist (April 24, 2003) believes that while a crime-ridden America could bring down homicides, the U.K. has lost control over the situation. There were less than 500 murders in 1977; the figure went up to 750 in 1995 and to 850 in 2001. This trend is probably one that has swung the Home Secretary into action.

In Blunkett's view, there is no consistency in sentencing practices across the country. It is because of this that he has proposed a few vital amendments to the Criminal Justice Bill that is now before Parliament. One of these seems to raise jail sentences for murders by ten years. (The U.K. had abolished capital sentence way back in 1965.) The changes to the Bill would ensure that those found guilty of the most serious offences such as abduction and murder of children, terrorism-related murders, and multiple murders that are premeditated, sexual or sadistic, will be locked up for life. A person already undergoing a jail term for murder if convicted of a second murder (as in the case of killing a fellow-inmate) will also suffer the same fate. Also proposed is a minimum of 30 years' imprisonment for those convicted of killing police and prison officials as well as murders committed with the help of firearms or explosives. It must be remembered that currently many of these categories will attract a minimum term of 20 years, and this is what is generally awarded by most of the judges.

Not many in the U.K. are impressed with Blunkett's logic or motives. There is a view that courts may still choose to ignore the law on minimum sentences and impose a penalty that they deem fit. If the government goes on appeal in any case where it feels the sentence is inadequate, the Court of Appeal, except in a blatantly weak judgment, is unlikely to interfere. Also, some traditionalists believe, for right reasons, the threat of longer sentences may not deter a determined killer or one who is suddenly provoked into the heinous act. Times columnist Ferdinand Mount does not, however, agree with this cynical view, and points out how the incidence of homicides had gone up sharply since the abolition of death sentence. I consider it ingenuous to attribute a rise in crime over a long period of 30 years solely to the lowering of penalties. I believe that it is the certainty of punishment - something that all of us know does not exist in India - more than the quantum of punishment that can influence crime rates.

Mount detects a political motive in Blunkett's fulminations. No government would like to be seen to be soft on crime. Viewed against this hard reality of politics, Blunkett is going to embarrass the successor government. How much more can the latter do to convince the common man that it is tougher than the predecessor? Nevertheless, any government worth its salt would, within the limited options, strive to reiterate the accepted tenets of democracy, namely, it is the government that frames the law for the judiciary to apply unerringly. This desire for pre-eminence or one-upmanship often places the two arms of democracy on a collision course. We are all too familiar with the similar crossing of swords and clash of egos between the legislature and the judiciary in our country. The conflict is never going to be resolved as long as all of us have egos!

Here one must remember how much the judiciary can sometimes be out of sync with popular opinion. This was very much in view in the U.K. earlier this year when Lord Chief Justice Woolf, while disposing of an appeal, said that when dealing with a first-time burglar who had not indulged in violence, it was sufficient that he was awarded community sentence rather than the prescribed 18-month prison term. He was probably justifying his lenience when he also expressed his anguish over the increasing overcrowding of prisons. (Prison population has gone up in the U.K. to more than 65,000 from a mere 50,000 in 1988. This has influenced the Court of Appeal to emphasise repeatedly on shorter prison sentences.) Lord Woolf's observation triggered widespread protest, especially among the people who were alarmed by what they regarded as growing number of burglaries. The Daily Mail quipped: "If jails are full, build more of them." The Daily Telegraph wrote saying that the government, through such pronouncements as those of Lord Woolf, was receiving a "mixed message". While they wanted tough handling of gun crime, they were being asked to be kind to those who break into private houses for dishonest purposes. This episode highlights the continual contradiction between lawmakers and those who interpret or implement law. Interestingly, Ferdinand Mount, writing in the Times, describes the two opposing positions as nothing but "a battle of tariffs, like that between two rival restaurants offering much the same menus but at wildly differing prices".

This brings us to the important question of how to resolve this situation which one jurist described as " law without order ". How do we bring about uniformity in the infliction of penalties prescribed by law? Do we leave it to the caprice and philosophies - read idiosyncrasies - of individual judges, or do we give them certain guidelines that will ensure less arbitrariness and subjectivity? There is often the fear that the more a legislature reduces the discretion enjoyed by the judiciary, the more circumspect and parsimonious will the judiciary become in ordering convictions. This is a worrying prospect in countries like ours where conviction rates are already abominably low. This is one argument against codifying sentencing guidelines that is hard to ignore.

The United States opted for a Sentencing Commission as early as 1984 following the passing of the Sentencing Reform Act that year. The Commission was entrusted with the task of formulating guidelines for judges to use while taking a decision on the penalty once a charge is proved. When challenged, in 1989, the U.S. Supreme Court upheld the constitutionality of the Sentencing Commission. By and large, the experiment has worked reasonably well in enhancing the predictability of judicial orders at the end of criminal trials. As a result, it is known that sentences in the country are linked mainly to the severity of the crime and the offender's criminal record. In my view, these are two criteria that are by and large fair and reasonable. U.S. judges have been using various options, including alternatives to prison such as probation, community service and home detention which, incidentally, is facilitated by electronic surveillance. Split sentences that combine imprisonment and intermediate sanctions are also not unknown.

The U.K. does not have a Sentencing Commission. There is instead a Sentencing Advisory Panel set up in 1999 in pursuance of the Crime and Disorder Act of 1998. It frames guidelines on its own initiative or at the request of the Home Secretary or Court of Appeal. In doing so, it is required to consult an approved list of organisations that have a stake in the process. Studies on the working of this panel speak of its research role and its penchant for statistically driven conclusions and recommendations. More significant have been government efforts since the creation of the panel to lend weight to the philosophy behind penology. For instance, the Criminal Justice Act 1991 was categorical that desert, that is, sentence should be proportional to the seriousness of a crime, was the principal rationale of punishment. (One jurist described this exercise at enlightening judges as teaching the grandmother to suck eggs!) Critics believe that this was in a way contradicted by a subsequent legislation, that is, the Crime (Sentences) Act 1997 which prescribed an automatic life and a presumptive sentence for repeat drug dealers and house burglars. The redeeming features of this Act were, however, the insistence on restorative justice (compensation to victims) and protecting the public from violent or sexual offenders while deciding on the nature of sentence. The Powers of Criminal Courts (Sentencing Act) 2000 was another landmark law that aimed at clarifying the salient features of the English sentencing law. Blunkett is contemplating a Sentencing Guidelines Council that will be created as soon as the Criminal Justice Bill becomes law. The council will give representation to victims of crime as well as the police.

WHAT is the position in India? We do not have a Sentencing Commission. As far as my knowledge goes, we do not even have an advisory body like the one in the U.K. There could be a few local outfits here and there that provide some inputs to the lower judiciary. I would welcome a reader feedback on this that will help build public opinion. Generally speaking, India's judges at all levels enjoy a lot of latitude, although they are bound by the mandatory minimum sentence prescribed by the various statutes, especially the Indian Penal Code (IPC). Judgments of superior courts very often carry obiter dicta that serve as guidelines for the lower courts. How much are the latter bound by these is a matter for debate. There are a handful of adventurous Sessions Judges who flout them at will for a variety of reasons. A majority, however, fall in line with High Court and Supreme Court observations, thus introducing an element of predictability.

The executive has also a vast area of discretion in ordering commutation or granting pardon. For instance, in the context of Blunkett's dictum "Life means life", readers may be aware that in India, normally, the government is competent under the IPC to commute life sentence to a prison term of not more than 14 years. This will not be music to Blunkett's ears!

Murder and rape are offences that have lent themselves to some variance in practice across courts in India. The vocal anti-capital punishment lobby props this up in its campaign. It also refers to the increasing number of offences, such as terrorist violence, that invite the irreversible punishment as yet another reason why death penalty should be removed from statutes. While this may not sound all that plausible, the widely differing perceptions of judges at the trial and appeal stages and the fact that they are not infallible are reasons enough for the debate to go on. For instance, the Supreme Court has for more than three decades made its position more or less clear (especially through the Bachan Singh and Machhi Singh cases) that death penalty was to be awarded in the rarest of rare cases and that the trial judge will have to weigh both the aggravating and mitigating circumstances before opting for such an extreme punishment. Some lower courts still unwittingly do not adhere to this prescription either because of overzealousness or pressures of public opinion and the media.

I can recall one such case in 2001 in which the Delhi High Court reversed the death sentence and commuted it to life imprisonment. The accused had been charged with murder of two children of a woman with whom he had had an illicit relationship. The trial judge while awarding death said: "... the special reasons for imposing death sentence are that the murders were premeditated; that the manner of commission of the murders was brutal and diabolical and shocks the judicial conscience... " The Division Bench of the Delhi High Court disagreed with the sentence, stating that it was not in conformity with the Supreme Court's guidelines. Such reversals are too many to recall here. Also relevant are occasions in which members of the same Bench in the High Court or the Supreme Court have differed on the quantum of penalty for each of the several accused. For instance, a question that has been raised here is, if a majority in the Bench favours death, and the minority decides on a life sentence, whether the majority award of death is ethical.

There are also widely differing views on how much does a rapist deserve and under what circumstances could the prosecution story be believed. For the benefit of readers I should recall the famous Mathura case of 1972. Here, a 16-year-old tribal girl, Mathura, was raped by two policemen of Chandrapur district of Maharashtra. The Sessions Court disbelieved the victim and acquitted the two accused. The Nagpur Bench of the Bombay High Court turned down the acquittal on the ground that passive submission to an intercourse out of fear was in fact culpable and sentenced the accused to two different terms. When the case went up to the Apex Court, the sentence was quashed for two reasons: the victim had not raised an alarm; and she did not bear signs of injury on her body. The Supreme Court's decision caused an uproar and a nationwide debate, which ultimately brought about an IPC amendment, enhancing the minimum penalty and prescribing an in camera trial. While, strictly speaking, this is not germane to the issue of sentencing, it does pinpoint the differences in appreciation of evidence that ultimately impinges on conviction and the quantum of punishment. Relevant here, however, is the recent debate generated by the Central government expressing its inclination to consider amending the IPC so as to provide for the death penalty in certain circumstances to those guilty of rape. It has evoked mixed responses. While some believe that this would deter rapes, there are many who are clear that a death penalty would require a much higher standard of evidence, as a result of which many offenders will go scot free. I am inclined to agree with the latter. Even with a much lower penalty, the percentage of conviction in such cases is dismal. We should not do anything that will aggravate the situation. The Malimath Committee on criminal justice reforms has rightly rejected the proposal. Many women's organisations have also taken a similar stand.

Do we need a Sentencing Commission or an advisory body that will formulate guidelines? Or, are we content with the pronouncements of the higher judiciary? If we opt for the status quo, can we think of strengthening the training component for judges that will address itself specifically to the task of bringing about greater uniformity in sentencing practices? Whatever we do, the emphasis should be on balance and sobriety. We should not be swayed by individual occurrences that influence disproportionate media attention. I should sign-off by referring to a very recent press report - hilarious from this safe distance - according to which an attempt was made to attack a lady judge of Amaravathi (Maharashtra) as soon as she pronounced her judgment in a murder case. Her fault was that she awarded life sentence to three of the accused while letting off the fourth with a five-year imprisonment. The hapless judge had possibly the right reasons for the differential treatment, but the aggrieved accused obviously thought otherwise!