July 8, 2007
Use Norms – Not Discretion – To Punish Crime: ARC
By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Government experts have called for guidelines ”so that sentencing across the country for similar offences becomes broadly uniform.”
Inconsistency in punishments judges award is among issues figuring in the latest report of the 2nd Administrative Reforms Commission on Public Order.
”To effectively deter crime, penalties must not be discretionary,” Commission Chairman M Veerappa Moily told United News of India Special Correspondent Mukesh Jhangiani.
According to the findings Moily gave Prime Minister Manmohan Singh last week, ”there is a view that in India there is a real problem arising from a lack of consistency in sentencing practices across the country.
”This is also compounded by broad executive discretion in commuting sentences and granting pardon,” the Commission said.
With Dr Singh’s approval, a 12-member Group of Ministers headed by External Affairs Minister Pranab Mukherjee was set up three months ago to consider the recommendations.
Feedback is yet to come.
The first such Commission headed by Morarji Desai functioned during 1966-70, but some of its key recommendations are yet to be implemented.
The Moily Commission underscored that sentencing guilty persons is an important and ultimate phase of the criminal justice system.
The trouble, experts say, is that not all laws specify a minimum punishment, which gives judges the leeway to let the guilty off with a slap on the wrist– undermining deterrence.
Thus offences like bribery and cheating are punishable under the Indian Penal Code with imprisonment ”which may extend to one year.” The fact that they are among the commonest crimes is a reflection of the level of deterrence law effects.
The IPC was enacted in 1860. But even the Biological Diversity Act 2002 makes contravention punishable with imprisonment ”which may extend to five years.” No minimum punishment.
”Criminal laws normally provide for a maximum sentence that may be imposed if an offence is proved,” the Commission said, adding that a minimum punishment is prescribed in only ”a certain category of offences.
”The courts have a wide discretion in deciding the quantum of punishment,” according to the Commission.
Advocates of such discretion say it ”is necessary in order to enable the judge to impose a punishment depending upon the circumstances of each case.” They say criminal courts do not have ‘total discretion’ in deciding the sentence and, for subordinate courts, the rulings of the High courts and the Supreme Court also act as guidelines.
They also argue that in a big and diverse country like India it may not be possible to codify each and every situation, and may be best to leave it to the courts’ judgement.
But critics say ”there are instances when such wide discretion has resulted in varying punishments for similar crimes in similar circumstances.”
They say there should be statutorily-backed guidelines to help judges arrive at the quantum of punishment in each case.
The Commission has recommended that the Law Commission lay down guidelines for Trial Courts ”so that sentencing across the country for similar offences becomes broadly uniform.” It has also recommended strengthening the training for trial court judges ”to bring about greater uniformity in sentencing.”
Western experience is that guidelines help ensure ”certainty and fairness” and avoid ”disparities” among defendants with similar records and criminal conduct, while allowing flexibility for mitigating factors.
Britain, for instance, set up a Sentencing Guidelines Council to frame or revise sentencing guidelines to which ”every court must… have regard.” In the United States, a Sentencing Manual and Table lay down a range in months within which the court may sentence defendants based on nature of their offence and criminal history.
Originally mandatory, the guidelines were made discretionary two years ago by a US Supreme Court decision, which cited Americans’ constitutional right to trial by jury.
Starting June 2006, the 2nd Commission has so far submitted five Reports:
— Right to Information – Master Key to Good Governance;
— Unlocking Human Capital – Entitlements and Governance – a case study;
— Crisis Management;
— Ethics in Governance; and
— Public order.
The Commission proposes to submit nine more and has been given a 7-month extension by the Union Cabinet up to March 31, 2008.
- Drawing Line Between Trial And Punishment ! – By Mukesh Jhangiani (mukeshjhangiani.wordpress.com)
- Law Minister Acknowledges Need To Make System Credible – By Mukesh Jhangiani (mukeshjhangiani.wordpress.com)
- Victims of anti-social behaviour to ‘decide how offenders are punished’ (standard.co.uk)
- Historic book naming convict prostitutes sent to Australia set to fetch thousands of pounds at auction (dailymail.co.uk)
- Professor Frase guest-blogging on “Just Sentencing” (sentencing.typepad.com)
- Just Sentencing # 2: Existing sentencing theories are inadequate (sentencing.typepad.com)
- Just Sentencing # 3: A restated and expanded limiting retributive model (sentencing.typepad.com)
- How long should they get? (bbc.co.uk)