No Deterrence, No Reformation, Disproportionate Retribution: The Dismal State of Indian Penal Policy | Vishal Sinha

Vishal Sinha

The Gujarat Legislative Assembly recently passed the Gujarat Animal Preservation (Amendment) Act, 2017. The amendment prescribes a harsh punishment for cow-slaughter with the offence being declared as non-bailable and punishment with a maximum term of lifetime in jail.

To put its extremity into perspective, the punishment for trafficking minors for the purposes of prostitution is punishable with a maximum term of 10 years. Publishing or transmitting of child pornography is punished under the POCSO Act with a term of up to seven years of imprisonment. Human trafficking under the Indian Penal Code (hereinafter IPC) is punishable with a term of seven to ten years of imprisonment. Kidnapping is punishable with a maximum term of seven years in jail.

Do we, as a society, consider slaughtering of cows a greater offence in degree than grave offences such as prostitution, human trafficking and slavery? (One may also note that crimes are considered to be wrongs against the society at large. In that case, does cow-slaughter fit the bill of being a wrong against the society, since a sizeable section of the Indian society feels otherwise for a spectrum of reasons?)

Imposition of large terms in jail has been the preferred approach of the Central and the State governments in recent times to demonstrate the gravity they attribute to certain offences and causes. For example, the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 punishes several incidents of tax evasion and non-disclosure of financial information with terms of seven to ten years in prison.  This Act puts these offenses at par with offences of rape and human trafficking, punishable under the IPC.

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These Acts and changes in the scheme of punishment are recognized as the response of the legislature towards new ‘threats’ to the society, sought to be remedied by these special legislations. They carry within themselves the power to oust themselves from the general criminal framework practiced in the country. A short-term analysis of these legislations may justify the increased levels of punishments: they are meant to deter offenses which cause substantial social harm as viewed by us at this point of time.[1] However, this trend practiced by Central and State Governments increasingly leaves us with foundational questions about how we view punishments in our country, and how we’re failing the goal of moving towards reformation.

 Consistency in criminal justice as we view it:

The moment a question of consistency finds its way into a criminal reform debate, all focus is put upon the unbridling of judicial discretion. The convenient solution offered is to lay down sentencing guidelines for the judges. Even when judicial decisions[2] have considered the lack of consistency of sentencing, Judges remain restricted to the realm of courts in their assessment and point at the lack of sentencing guidelines for judges and go on to formulate such guidelines of their own.[3] No or negligible attention is put upon the responsibility of the legislature to prescribe uniform punishments across statutes and offenses. Questions of proportionality, relativity, and social impact of the punishments prescribed in statutes are never addressed. The standard and type of punishment prescribed in a statute is never questioned or explained, let alone considerations of it having characteristics of reformative theories.

Developments in Criminal Reforms:

The question of a policy on criminal justice had gathered public attention previously as well. The Central Government formed the V.S. Malimath Committee on Reforms of Criminal Justice System[4] and the N.R. Madhava Menon Committee to Draft a National Policy on Criminal Justice[5] (“Menon Committee”) to look into possible reforms. Both the Committees recommended several measures to facilitate consistency in sentencing. Their solution was the drafting of a penal policy by the legislature. The Menon Committee also suggested reforms such as looking at alternatives and substitutes to punishment, review of quantum of punishment to increases consistency, prevent overcrowding in prisons and setting ‘institutions’ to lay down guidelines for sentencing and punishment.

None of these reforms have been actively pursued by the Government. Furthermore, the fact that the Parliament is paying no heed to the questions of proportionality and uniformity across criminal statutes makes it clear that these specialist reports are not being given the attention they should.

 No Movement to Reformation:

The purpose of the criminal justice system since its inception has been clear. For any harm caused to the society, the ‘offender’ should be punished. This punishment is to be decided based on the social harm caused and then using the tools of proportionality. Further academic literature and judicial systems have acknowledged that there are more than one objectives of punishment, including deterrence, retribution, rehabilitation, and restoration. The punishment is prescribed by a judge after recognizing the extent of play of these theories and deciding upon the just and fair punishment for those set of facts.[6] Rehabilitation and reformation are just as important considerations while deterring criminals as is a fair punishment to retribute the harm caused.[7]

However, criminal statutes in India do not reflect the same. Since 1990s, most statutes prescribe two ways of punishment – imprisonment and fines. Little or no discretion is enjoyed by the courts to look beyond the conventional modes of punishment and award reformative sentences. The movement towards recognizing and incorporating the principles of rehabilitation in the criminal justice system is to be ensured not just by the judiciary in the judgments they pass, but also by the legislature in the statutes they make.

 Defying Fair Retribution:

Even if retribution is the most pivotal factor in determining punishments in statues, the same cannot be practiced by the legislature disproportionality. A core tenet within the retribution theory is the principle of “just deserts”. The principle emphasises on prescribing a punishment ‘deserved’ by the offender, that is to say in proportion to the social cost imposed by his actions.[8] It provides that “severity of punishment should be commensurate with the seriousness of the wrong” and every punishment should “fit the crime”.

Indian criminal justice system, as it is practiced today, has no answers to these concerns. Punishments prescribed in statutes are not appropriate and proportionate. Arbitrary years of imprisonment are prescribed by the legislature depending on the seriousness they want to attribute to a wrong at that point of time. Such a short-term analysis is adding up to the foundational defects prevailing in the Indian criminal justice system. Until the same is given its due attention, fair and just punishment will remain a question of luck rather than a right.

References

[1] Making the Punishment Fit the Crime, February 25, 2017  http://www.epw.in/journal/2017/8/commentary/making-punishment-fit-crime.html

[2] Soman v State of Kerala, (2013) 11 SCC 382; State of Punjab v Prem Sagar, (2008) 7 SCC 550.

[3] Sentencing Guidelines: India, https://www.loc.gov/law/help/sentencing-guidelines/india.php

[4] Committee on Reforms of Criminal Justice System, Ministry of Home Affairs, http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_system.pdf

[5] Report of the Committee on Draft National Policy on Criminal Justice, Ministry of Home Affairs, http://mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/DraftPolicyPaperAug.pdf

[6] Explaining India’s New Anti-Rape Laws, Soutik Biswas, BBC News, 28 March 2015, http://www.bbc.com/news/world-asia-india- 21950197

[7] Satto v State of Uttar Pradesh (1979): SCC, SC, 2, p 628.

[8] The Retributive Theory of “Just Deserts” and Victim Participation in Plea Bargaining, Summer 1992, http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1445&context=ilj

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