Sentencing: Choices and Dilemmas for a Judge

Article for Blog Post Writing Competition 2011 | by Priyanka Mukherjee

May 26th, 20112:06 pm

The courts have an exclusive privilege of interpreting laws yet, at times the judges have a fault of giving decisions which either stretch the law else trespass on fields which are reserved for the other instrumentalities.

It is of course true to say that judges need to give objective, impartial and impersonal judgements. Such judgements are to be made in a spirit of humanity and with full consciousness of the various limitations which are an inherent part of every decision given by any person. But as he is mandated to give a decision, he cannot shrug the responsibility of what maybe called out to be an unpopular decision- he must be stoic to accept criticisms. Judges should not hold in vain that the courts have answers to every problem that is to concern the society. They should not claim such infallibility. The interpretation and emphasis, by no doubt, depends on his/her different social, philosophical and political backgrounds. Therefore, the decision will also be affected by the judges’ idea of policies which respond to the social, economic and political factors. Accepting all these factors that it influences the judge’s decision may weaken the imaginary aura of the so-called judicial process, but to concealing it will give a wrong notion of the way the judiciary works.

Judges are objective and independent. Mostly the judges’ decisions are influence d by what is known as the “sociological jurisprudence”. There are various personal instances in which the convictions and the beliefs of the judges affect his decision making thereby his ‘judgements’.

A judges concern and anxiety about an immoral provision (for example, Section 309of IPC[1]) can only be expressed through his judgements.  The dilemma of a judge who thinks that prosecution under Section 309 is not just and cruel needs a place to determine such a statement. But it can also be added that no such dilemma was faced by any other judge of some other high court who thinks that such a provision is reasonable and constitutional. Therefore, ‘judicial reasons’ maybe given for different reactions of the same situation. The dictates of a judge’s conscience revolts against such provisions, such a view was taken in a two- judge bench of the Supreme Court in P. Rathinam Nagbhushan Patnaik v. Union of India and Anr[2], in which it was declared that Section 309 deserved to be wiped out from the statute book in order to humanize our personal laws plus it also violated Article 21 of the Constitution of India. But this was short-lived because this was overruled in Gian Kaur v. State of Punjab[3], which held that Section 309 is not violative of Article 14[4] or Article 21[5].

Usually the pattern of killing in rural areas is very different from that of urban areas. Such sociological knowledge helps resolve sentencing dilemmas more quickly. Every judge awarding the same punishment on each offence is not exactly supported by any kind of evidence. Offence of a particular variety may vary vastly in importance that there should not be any ‘normal’ sentence and there will not be any workable standard by which to judge whether a particular sentence is beyond what is ‘normal’. Particular sentences are passed by judges according to whom the public will be benefitted.

There is a part in the Indian Penal Code, where Indian judges face the dilemma around the subject of Section 377[6] of the Indian Penal Code. The situation arose in the year 1982 before the Supreme Court. The conviction of the accused under Section 377 was a sentence of three years which had been upheld by the High Court, the matter was then bought to the Supreme Court, where the conviction was still upheld, but the sentence was reduced to just six months. This is termed as one of those cases where the judges were uncertain about the popularity of retaining such an offence especially when in many countries it had ceased to be an offence. The dilemma could be understood through the fact that the judges could not bring themselves to let the sentence stand, considering that the Supreme Court only interferes only in rare and exceptional cases.

Sentencing without any conformity is a social injustice. It is regarded as a crucial factor and is what is best for all of the people. Many a time, judges award sentences which may be termed as exemplary punishment for the same crime because such crimes have become more prevalent. It has been recognized that prison is not the only way to deal with any offender. In India the Probation of Offender Act exists, which enables a judge in certain circumstances, not to send him to the prison but put him under ‘probation’ for particular period of time.

A serious rethink is required for punishing offenders, judges, lawyers, academicians and other experts need to put their heads together to review the exhausted principles and the overworked practices. Until such a thing happens, judges are the ones who need to perform a role in which their better judgement and conscience would play an active part.

Criticisms are often made on uncertainty in awarding sentences which reinforces public’s perception that cases before the judges which are not decided on the basis of the certainty of principles or have no legal foundations but are merely settled at the whim of the sentencing judge and that undermines the administration of justice. Certain suggestions about ways and means of evolving the sentencing principles thereby reducing unfair disparity in sentences, but ultimately it needs to be accepted that under the judicial system the personality and the philosophy of the judge concerned will still continue to play a critical role.

The scheme as to the Indian Penal Code bestows a wide freedom on the courts in the matters of awarding the appropriate punishments even though there are no general guidelines which are laid down by the Indian penal Code. Judicial discretion is guided by the principle that punishment must compensate the gravity of the offence. Criminal law allows significant discretion to judges to arrive at sentence in every case, and basically to permit sentences that reflect the considerations of culpability that are raised by the special facts of the cases. The discretion exercised by the trial court in matter of imposition of penalty must not be interfered by the Supreme Court unless it finds that the discretion has been exercised arbitrarily or on unsound principles or the sessions court or high court has failed to take into consideration important factors or when the sentence imposed is too harsh and unjust or when the high court dismissed the appeal without giving any reasons. The minimum penalties which have been fixed by the statutes where once the conviction is recorded, the court has no such discretion but to award the sentence prescribed.

[1] Section 309 of The Indian Penal Code reads: Attempt to commit suicide- Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year [or with fine, or with both.]

[2] P. Rathinam Nagbhushan Patnaik v. Union of India and Anr J.T. 1994 (3) SC 392

[3] Gian Kaur v. State of Punjab 1996 (2) SCC 648

[4] Article 14 of the Constitution of India: Right to Equality before Law- the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India.

[5] Article 21 of the Constitution of India: protection of Life and Personal Liberty- No person shall be deprived of his life except according to procedure established by law.

[6] Section 377- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with transportation of life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine

Article by-

Priyanka Mukherjee

2nd Year, National Law University, Orissa

[Submitted as an entry for the Blog Post Writing Competition, 2011]


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