This article is written by Sahil Aggarwal, pursuing B.A.LLB. (Hons) from NALSAR University of Law, Hyderabad. This article explores the domain of sentencing policy in the context of socio-economic offenses and emphasizes its need for the present criminal justice system.
Table of Contents
Introduction
The concept of punishment, its justifications, and its implementation in society as a response to crime, create a descriptive picture of the society itself. Hence, the importance of a justifiable and legitimate penal system. In this respect, this article explores one of the most significant and relevant aspects of the interaction between the legislature, the judiciary, and the penal system of our country, which is the sentencing policy. This article locates the sentencing policy in India in a specific context of socio-economic crimes and emphasizes its need for a better society.
Sentencing policy in India
In its most fundamental understanding, a sentencing policy can be defined as a standard or set of standards to determine the kind of punishments awarded for various kinds of offenses. However, it involves multiple aspects that are important for both an individual as well as a society, in the sense that it not only provides certainty as to the consequence of an individual’s action but also characterizes the approach that society prefers for a convict, in turn characterizing the nature of society.
Hence, the sentencing policy becomes important, mainly because it supplies certainty at many levels in a penal system, for instance, it determines the focus of the punishment in terms of a rehabilitative, deterrent, retributive, or reformative or it also guides the judicial discretion as to the quantum and nature of punishment given to a convict, assuring that a single punishment is meted out to the similarly situated convicts for the same crime, and consequently, ensuring justice. Hence, it can easily be deduced that the criminal justice system needs to have a uniform sentencing policy, especially when sentencing forms such a crucial stage in any trial. However, India does not have such a sentencing policy, although one can say that there have been unavailing attempts made in that direction.
In this context, this article is an attempt to reiterate the importance of uniform sentencing policy, especially in the context of socio-economic offenses, since they pose an increasing gravity of danger in a developing nation like India, and the absence of such policy in cases involving socio-economic offenses may hamper the integrity of our criminal justice system.
Concept of socio-economic offenses
The concept of socio-economic offenses has been, perhaps, most efficiently defined by distinguishing it from white-collar offenses. This is because its origin and growth in modern times go hand in hand with the growth of society in terms of its cultural, economic, and social values, rendering it broader in its scope than that of white-collar crimes. For instance, the 47th Report of the Law Commission of India explains this distinction by an example, a big manufacturer of drugs produces and sells lower quality of drugs, such an offense since it was committed by a person from the upper strata of society, can be categorized as a white-collar offense. On the other hand, in a case where a person belonging to the middle or lower class in society smuggled multiple sets of costly televisions, such an offense cannot be categorized as a white-collar crime but is included in the category of a socio-economic offense.
Hence, in other words, the phrase ’socio-economic’ implies that firstly, this category of crimes involve an economic aspect (like trade, business, tax, etc.) abused by any person, irrespective of his status in society. Secondly, the perpetration of such offenses is inspired by non-emotional reasons in the sense that the perpetration is not an emotional reaction against a particular victim. It involves non-emotional triggers such as avarice and rapaciousness instead of hate, vengeance, or lust as found in traditional crimes, like murder, rape, etc. Thirdly, such crimes majorly affect the health and material of the society at large instead of that of an individual. The latter three implications are found in both socio-economic and white-collar offenses, but the former does not characterize a white-collar offense, making it a narrower category than that of socio-economic offenses.
Subsequently, it is also relevant for our purpose to discuss the suggestions made by the 47th Report of the Law Commission of India in terms of penal reforms for socio-economic offenses. Along with suggesting a reform to do away with the concept of mens rea and shifting the burden of proof, the Report suggested the following reforms for the penalty aspect of socio-economic offenses:
- Increase in maximum punishment.
- Increase in the minimum punishment.
- The relaxing powers of the courts should be removed or some restrictions must be placed on the discretion of courts.
- Provision of the appeal on the ground of inadequacy of the sentence.
It has been argued that these suggestions can be interpreted to suggest that commission, by increasing the minimum punishment, was preferring its application except in some peculiar circumstances. This is to say that the Commission provided for a mandatory minimum sentencing model for the socio-economic offenses. The mandatory minimum sentencing model essentially implies that the convicts will be, regardless of the peculiar facts and circumstances of the cases, subjected to the determined punishment by statute. This model has found a prominent place in statutes related to socio-economic offenses in India. However, as the report itself suggests, this model was presented as a solution to the ongoing problem of improper exercise of discretion by the judges by awarding below the minimum, or in other, inadequate punishment. In further sections, this article will explore the relation of sentencing policies and socio-economic offenses in the context of India.
Laws regarding socio-economic crimes in India
Since there can be innumerable instances of socio-economic offenses, in order to understand their relationship with the sentencing policy provided around them by the Indian laws, we will look into five major statutes that govern some of the major socio-economic offenses in India, from the perspective of penal provisions provided in them.
The Prevention of Corruption Act, 1988
Section 7-16 in Chapter III of the Prevention of Corruption Act, 1988, (hereafter, PCA) deals with the offense and consequent penalties. In PCA, the legislature has provided for a range of minimum and maximum punishment for almost all offenses, leaving it on the discretion of courts to decide the sentence within the respective range. This also implies that the courts are not free to decide any punishment below the given minimum, hence reflecting the mandatory minimum sentencing model. For instance, Section 7 of the PCA provides for a minimum of three years of punishment in cases where a public servant is shown to be benefiting from bribery. On the other hand, Section 5 of the Prevention of Corruption Act, 1947 provided the judges, the discretion to impose below the minimum punishment in certain circumstances.
This is known as a presumptive model of punishment where, in the mitigating or aggravating circumstances of the case, it leads to a decrease or increase in punishment respectively. Indeed, this model affords a greater space for the arbitrary imposition of punishment by the judges. However, in this case, the courts are empowered only to decide the punishment below the minimum in certain circumstances. For instance, in P.S. Rao v. State of Andhra Pradesh, the Supreme Court reduced the punishment of the convicts to three months after considering that they have already undergone much of the punishment given by the High Court during the trial. This implies, even in the grave offenses, lenient punishment was given.
Similarly, in B Noha v.State of Kerala, the Supreme Court reduced the punishment of the convicts in light of the nature of the charges placed under Section 7 and Section 13(1)(d) read with Section 13(2) of the PCA,1988. This means that although factors like the passage of time and loss of a job, the convicts’ financial situation, were still considered while deciding the punishment, the courts cannot go below the mandatory minimum provided by the statute. At one level, this seems to be an unconducive change, since this implies that even in the cases where the person guilty of bribery of an insignificant amount may be equally punishable as the person convicted for bribery of a relatively significant amount. However, from a more general perspective, this seems to reduce disparity in terms of punishment given to the different convicts situated in similar circumstances, although this is also to a limited extent. Further, after the 2014 amendment introduced through the Lokpal and Lokayuktas Act, 2013, the minimum and maximum punishments in several sections of PCA,1988 has been increased, while continuing the mandatory minimum punishment model.
The Food Safety and Standards Act, 2006
Penal policies involve both physical as well as economic penalties like fines. For some offenses, the legislature prefers heavy economic penalties instead of penalty offenses because of various reasons, one such statute in which such penalties are mentioned in the Food and Safety Standards Act, 2006. For instance, in Section 50 of the Act, the penalty for selling food of quality or substance other than the demanded attracts the penalty not exceeding Rupees two lakhs. Similarly, Section 51 and 52 attract a penalty of an amount not exceeding Rupees five lakhs and Rupees three lakhs respectively. This implies that there is no minimum requirement as to the penalty, hence, the Adjudicating Officer or the tribunal, while deciding the quantum, may adjudge the case on the basis of specific facts of the cases.
On the other hand, in Section 59, the Act also provides for imprisonment and fines both, considering the gravity of the crime. It has been argued that it creates an effective mechanism to restore the sense of responsibility of the offender and also assure the protection of public health. Section 49 of the Act, lists the considerations to be paid by the officials while deciding the quantum of penalty. This forms a good example of legislative guidelines for judicial discretion. It has also been claimed as a welcome step to introduce clarity and certainty in the sentencing policy. It has been argued that such provisions should be found in other socio-economic statutes as well.
The Dowry Prohibition Act,1961
Dowry is not a unilateral crime, rather it becomes a source of multiple abominable crimes like domestic violence, bride burning, female foeticide, etc. In response to the increasing rate of these crimes, the Dowry Prohibition Act, 1961 was enacted that aimed to prohibit the taking as well as giving of Dowry. Under Section 3 of the Act, it has been provided that the person engaging in giving, taking, or abetting dowry would be penalized with not less than five years of imprisonment with a fine which shall not be less than Fifteen thousand rupees or the amount of dowry itself. However, it also provides that the courts may impose the sentence less than five years by citing adequate and special reasons for it. A similar provision finds its place in Section 4 which penalizes the offer made for dowry.
It has been argued that the legislature has, in this Act, given consideration to the fact that the institution of dowry finds its place in Indian cultural and social practices for indefinite years. Additionally, it is also in close relation to the institution of marriage itself, hence in appropriate cases, the courts may find it reasonable to provide minimal punishments and also protect the relationship between the parties themselves. But as suggested before, the institution of dowry can beget possible perpetration of more horrifying crimes. Then, the leniency granted by the Courts may provide another opportunity to the dowry-taker to abuse, harass, or even murder the victim.
However, this is not to say that the courts may never consider the possibility such as an amicable settlement made between the parties, may actually not result in adverse consequences. In those cases, for instance, the better option which parties adopt is the quashing of criminal proceedings by making an application to the High Court under Section 482 of the Code of Criminal Procedure, for instance in Jitendra Raghuvanshi and Others v. Babita Raghuvanshi and Another, the Supreme Court reiterated that the criminal proceedings can be quashed in appropriate cases to make the ends of justice meet.
The Immoral Traffic (Prevention) Act, 1956
The Act penalizes the trafficking of women and children for commercial sexual exploitation. Section 3 of the Act deals with the punishment for keeping a brothel or allowing premises to be used as a brothel. In that, for the first conviction, the minimum punishment has been given as rigorous imprisonment for not less than one year and the maximum is three years with a fine which may extend to two thousand rupees. In case, the convict subsequently commits the same offense, the minimum sentence increases to three years of rigorous imprisonment and a maximum of five years with a fine of Rupees two thousand. In this provision, hence, the legislature has incorporated a mandatory minimum sentencing policy, as well as enhanced punishment for a subsequent conviction.
However, Section 6 of the Act provides that for the offense of detaining a person on premises where prostitution is being carried on, the minimum sentence is seven years and the maximum sentence is life imprisonment. But subsequently, it also empowers the courts to impose a sentence of fewer than seven years in certain cases while giving adequate and special reasons for doing so. Hence, it can be said that in this Act, the legislature has not followed any single model for the penalty, rather it has included different models for a variety of crimes. It can be understood that the legislature was guided by different factors like the gravity of the offense, repeat offenses, social circumstances in prescribing the quantum of punishment as well as the policy against the offenses.
The scheduled castes and scheduled tribes (Prevention of Atrocities Act), 1989
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter, SC/ST Act), is relatively more social than economic in nature. However, it affects the parties involved socially as well as economically in a considerable manner. This is reflected in the preamble of the statute itself which provides that the SC/ST Act aims to prevent the commission of offenses of atrocities against the members of Scheduled Caste and Scheduled Tribes and provide relief and rehabilitation of the victims in matters incidental to the offenses.
Under Section 3 of the Act, it provides minimum punishment of six months of imprisonment and maximum punishment as five years of imprisonment against a variety of offenses of atrocities. Under Section 4 as well, the Act provides minimum punishment as six months and maximum as one year for the neglect of duties by a public servant. This means that the Act has mainly subscribed to mandatory minimum sentencing in its penalizing policies.
In Jai Singh and another v. Union of India and others, the Rajasthan High Court while agreeing that different judges impose punishment for different purposes and that there is no consensus among the Judges as to what criteria are to be taken into account and what weight is to be given to each criterion while imposing sentence, observed that these are matters, however, for the Judicial Officer to decide. In the same case, the court also observed that Section 3 and 4 are not ultra vires, and upheld the severity of punishments provided for various offenses.
Sentencing policy in the context of socio-economic offenses
In the above sections, we looked at penal policies and related judicial pronouncements in different statutes dealing with certain socio-economic offenses. While we look at these laws, we see that the legislature has most consistently opted for a mandatory minimum sentencing policy in which the courts cannot go below that prescribed punishment. However, in some provisions, the legislature has adopted a presumptive mode as well, but majorly in the form of the proviso which allows the court to depart from the minimum punishment.
Although there is a proposition that India does not have a uniform sentencing policy, however, when we closely look at the policies followed in the context of socio-economic offenses, we see that there is a discernible trend of using ranges of punishment for every offense. This is to say that, either in the form of a presumptive model or in the form of mandatory minimum sentencing, the legislature empowers the judiciary to rely upon its own discretion to impose the punishment on the convicts. But what are the reasons for this trend? When we look at history, we realize that even the drafting committee of the Indian Penal Code had, in multiple offenses, which are not heinous, fixed a minimum and maximum punishment. The committee was of the opinion that, considering the general terms in which the various offenses were defined, it would be inexpedient in most cases to fix a minimum punishment. Accordingly, it altered the IPC to leave the minimum punishment for all the offenses except those of grave nature, to the discretion of judges. It was, however, presumed that in each case the judges would test the character of the offender and the circumstances, whether aggravating or mitigation, under which the crime was committed.
Hence, it follows that both the models discussed above as well as the history of using such models were restricted to one aspect, that is, the discretion of the judges. It is not a coincidence that the Law Commission of India while turning down the proposal for the Santhanam Committee for a new chapter in the IPC for bringing together all the socio-economic offenses having the provisions of minimum punishment recommended that there should be separate penal laws in regard to them. This is because the task of checking crimes in general and of white-collar crimes, in particular, is a complex one. While deliberating the causes of crimes, the Law Commission of India states in its report that crime is not a legal problem but a social and economic one. Consequently, the sanctions which can effectively operate to check crime are not legal only. Therefore, despite the provisions having the minimum punishment provision and the maximum prescribed in the socio-economic offenses related statutes, it is the obligation of the courts to exercise their discretion by considering all the relevant circumstances of the offense and offenders.
Attempts at sentencing guidelines in India
As provided earlier, the judicial discretion is subject to so much disparity that it can affect the rights of the convict considerably. Then the issue becomes, what can be done to bring uniformity in judicial discretion? Here, we need to keep in mind that the punishments given by the judges are inevitably subjected to their subjective opinions regarding the gravity of the offense, the conditions of the convict, and other factors. Hence, the purpose is not to bring complete uniformity, rather make it relatively more uniform than it is now, and also to make the process of giving punishments more efficient. These two obvious benefits and other subtle benefits may be achieved when there is a guide to regulate the judges’ discretion. For instance, while discussing Section 49 of the Food Safety and Standards Act, 2006, we noted that the provision simply outlines the consideration to be kept in mind by the judges while deciding the quantum of the punishment against the offense.
Let us briefly look at the attempts made in the direction of creating sentencing guidelines in India. In 2003, the Committee on Reforms of Criminal Justice System (the Malimath Committee), issued a report that emphasized the need to introduce sentencing guidelines in order to minimize uncertainty in awarding sentences. For this purpose, the report also suggested the creation of a statutory committee endowed with the task to formulate sentencing guidelines represented by experts from various fields such as the prosecution, legal profession, police, social scientist, and women representative. Subsequently, in 2008, the Committee on Draft National Policy on Criminal Justice (the Madhava Menon Committee), reasserted the need for statutory sentencing guidelines. In 2010, the Law Minister stated that the government is looking into establishing a “uniform sentencing policy” in line with the United States and the United Kingdom in order to ensure that judges do not issue varied sentences.
Moreover, the Supreme Court of India, in State of Punjab v. Prem Sagar & Ors, also noted the absence of judiciary-driven guidelines in India’s criminal justice system and observed that it is known that the quantum of punishment for the commission of a similar type of offense often varies from minimum to maximum for the convicts, but in many cases, where the same sentence is imposed, the principle applied is found to be different. This is true for the imposition of fines as well. In Alister Anthony v. the State of Maharashtra, while emphasizing the need for the imposition of a just and adequate sentence in criminal law, the court observed that there is no straitjacket formula of sentencing an accused, however, the twin objective of the sentencing policy should be deterrence and correction. Similarly, in Soman v. State of Kerala, observed the absence of structured guidelines. In addition, the court opined that giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial Courts in meting out the just punishment to the convicts. However, even lawyers, social activists, and scholars opine the indispensable need for such guidelines. Unfortunately, India still does not have any such prerogative in terms of uniform sentencing policy.
Possible solution
As provided earlier, this is not the first time that the need for sentencing guidelines in this respect has been emphasized. However, again, the need for sentencing guidelines becomes crucial when we look at the characteristics of socio-economic offenses. As pointed out earlier, these offenses are broader in concept than that of white-collar crimes itself, meaning thereby they include the convicts from economically and socially weaker strata of the society, and when the disparity in punishments given to them or the minimum mandatory punishments fixed from the perspective of offenses are given to them, without taking into account the peculiar factors involved in the cases, it may lead to injustice to them. As noted by the Law Commission of India, socio-economic crimes are not to be looked at from the legal perspective only, but from the social land economic perspective as well. Hence, it is need of the hour that India took a step ahead in the formulation of uniform sentencing guidelines to usher judicial discretion in a justifiable way.
Conclusion
In sum, it can be said that uniform sentencing policy is indispensable to the criminal justice system, especially in the case of socio-economic offenses because, firstly, they are very grave in nature since they impact the health and material of society at large. Secondly, because it is comparatively larger in its scope, such that it increases the possibility of injustice being dished out to many lower strata convicts. Thirdly, it serves as an effective criterion and helps in adjudicating the matters related to punishments quickly. And lastly, it will help in streamlining the purpose of punishments given in India in terms of retributive, deterrent, rehabilitative, etc. Hence, it is required from the governments to come, to take substantial measures in bringing a uniform sentencing policy in India.
References
- https://books.google.co.in/books?hl=en&lr=&id=5RolWJg5eVcC&oi=fnd&pg=PR17&dq=Minimum+Mandatory+sentencing+Policy+in+India&ots=nWNUNDDbt-&sig=vwlwfvGo3VdOtepn6WqRYOiqwFA#v=onepage&q=Minimum%20Mandatory%20sentencing%20Policy%20in%20India&f=false
- https://plato.stanford.edu/entries/punishment/
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