By Adv. Gaurav Srivastav, Bombay High Court
1. Mandatory sentences and minimum mandatory sentences as punishment in law has been commonly prescribed by the legislatures worldwide. However, recently the judiciary across the world have developed a tread towards its Constitutional commitment of proportionality in punishment with the actual crime committed. The Apex Courts of several countries such as Cananda, USA, Australian, South Africa and also the European Court have struck down mandatory life imprisonment and/or minimum mandatory sentences. Canadian Courts have actively struck down minimum mandatory sentence and recently a 9 Judges bench in R. v. Safarzadeh_Markhali, 2016 SCC 14, reiterated its Constitutional commitment for proportionality in sentences. The Supreme Court of United States which had actively struck down mandatory death sentence since early 20th Century have recently in Miller v. Alabama, 132 S.Ct. 2455 (2012) by 5:4 judges ratio struck down imposition of mandatory life sentence for juveniles for being violative of the Eight Amendment. Similarly, the European Court have on several occasions struck down mandatory life imprisonment by applying the “grossly disproportionate test,” few recent cases are Harkins and Edwards v. United Kindom , 2012 ECHR 45 and Murray v, Netherlands, 2016 ECHR 408. Even in Australia, which does not have a Bill of Rights or Constitution, like Canada, USA or India, has struck down minimum mandatory punishment for infringing the principle of separation of power; a recent example can be found in Magamiing v. The Queen, (2013) 253 CLR 381.
2. This Article explore the constitutional validity of the pre and post constitutional Statues in India which provides for Mandatory sentences and minimum mandatory sentences and power of the Judiciary to award punishments dehors the Statutes. This can be broadly explored by attempting to explore the following issues:
(i) Does mandatory sentences and/or minimum mandatory sentences for an offence infringes the principle of Separation of Power embodied in the Constitution of India?
(ii) Can mandatory sentences and/or minimum mandatory sentences for an offence be said to grossly disproportionate to the actual crime committed if it will be cruel, unusual or excessive and / or if such punishment will not serve any penological purpose and thus violative of Article 14 & 21 of the Constitution of India.
(iii) Can an alternative punishment or a minimum mandatory punishment for a particular offence also be unconstitutional for being grossly disproportionate to the actual crime committed or for being cruel, unusual or excessive or for infringing the principle of Separation of Power?
I. Separation of Power between the Judiciary and the Legislature is one of the basic structure of the Constitution of India and any attempt by the legislature to fix a single, specific and mandatory punishment will be per say arbitrary
3. Apart from the crime, the accused and the angle of the crime from the point of view of the accused and other mitigating factors are an important aspect while deciding the period of sentence. Few examples of such relevant factors relating to the accused can be his (a) prior criminal record, (b) his age, (c) the actual crime committed, (d) educational background, (e) human life, (f) sobriety & social adjustments, (g) emotional and mental condition, (h) prospect of his returning to the normal patch in conformity with the law while deciding the quantum of sentence. (i) blameworthiness of the offender; (j) the harm caused by the crime (k) the degree of guilt of the accused and its relation with the length of imprisonment (l) the personality characteristics of the offender, (m) the peculiar circumstances of the case, (n) the conduct of the accused in those circumstances (o) the intention or lack of intention to commit the crime. It is the duty of the Court to balance these factors along with other mitigating factors and award an appropriate sentence. However, if no discretion is given to the Courts, the Courts will have no option other than to completely ignore these factors.
4. Thus it can be argued that it is impossible for the legislature to think of or prescribe an exact punishment or take into account various factors of the crime, the specific facts of the accused, interest of society at large quo the specifications of a given case, and other relevant factors which cannot be put in any straitjacket formula;
5. Thus when the legislature only fixes one punishment which is mandatory in nature then these aspects would be completely ignored by the legislature and a single, specific and mandatory punishment of life imprisonment without any alternative punishment, which is prescribed solely at the will of the legislature, who does not have the adequate determining principles to determine as to what would be a proportionate sentence in the fact of a given case;
6. Moreover, a single, specific and mandatory punishment does not even provide an appropriate structure or yardstick of punishment by prescribing a minimum and maximum period of imprisonment, giving the Judiciary some room of discretion to determine the appropriate sentence after judicially examining all aspects and factors relating to the crime and the accused.
7. The Legislation has traditionally in all the provisions of the Indian Penal Code as well as any other Penal Statutes have provided a structure of punishment to run in between the minimum and maximum period of imprisonment as it deemed that only the Judiciary is fit to take into consideration every relevant factors, mitigating or aggregating, relating to a given case and pass a proportionate sentence within that parameters. Even for the most heinous crimes, the Parliament has in all statutes provided alternative punishments.
8. It is the judiciary which is the only institution who is fully and appropriately equipped with the necessary knowledge of law, experience and infrastructure to study the details of each case based on the legally acceptable material evidence and after applying the legal principles and guidelines of exercise of discretion from judiciary pronouncements. More so when the judiciary has not even given an alternative option which it may award taking into account such mitigating factors.
9. It has been reiterated in a series of judgements by the Supreme Court, that the Court has to award a punishment which is proportionate to the crime committed. The Code of Criminal Procedure specifically provides for wide discretionary powers to the judge once the conviction is determined in S.235, S.248, S.325, S.360 and S.361. It is for this reasons that a fix set of sentencing guidelines is not yet a part of Indian criminal jurisprudence and exercise of judicial discretion within the guidelines evolved by judicial precedents has been the traditional criminal system in Indian and sentencing proportionate sentences has essentially been a function of the judiciary, which has a direct link with the public confidence in the judicial system.
10. Any law depriving the judiciary from its discretion in awarding a proportionate sentence and mandating it to pass an award as required by the legislature is equal to passing a decision without any reasons, without hearing the aggrieved party or any other violation of the fundamental principles of judicial process. This by itself will be in the teeth of Article 14 of the Constitution of India.
11. It can thus certainly be stated that the Judiciary is the only Organ of the State which should determine the sentences and if the power of the Court to award lesser punishment is take away by the Legislature then it will infringe the principle of separation of power which form a basic structure of the Constitution of India.
12. Mandatory sentences and/or minimum mandatory sentences can be said to grossly disproportionate to the actual crime committed if it will be cruel, unusual or excessive and / or if such punishment will not serve any penological purpose and thus violative of Article 14 & 21 of the Constitution of India.
13. Article 21 of the Constitution of India has been interpreted by various judgments of the Supreme Court to incorporate the Eighth Amendment (1791) to the Constitution of the United States, which was virtually incorporated from the English Bill of Rights (1689). The Eighth Amendment which has been now read into as being a part of Article 21 of the Indian Constitution reads as follows:-
”Excessive Bail shall not be required nor excessive fines imposed, nor cruel and unusual or excessive.”
14. In other words, the Eighth Amendment provided that no person shall be subjected to a punishment which is grossly disproportionate to the actual crime committed nor shall it be subjected to any punishment which can be recorded as cruel or unusual or excessive.
15. The 8th amendment though may not require the Court apply strict proportionality between the crime and the sentence in every case but only for cases where the sentence prescribed seems grossly disproportionate;
16. This principle that the punishment should be proportionate to the offence is recognized as a fundamental principle in jurisdictions worldwide and the Court in every jurisdiction have held that this principle of proportionality is applicable to sentence of imprisonment as much as it applies to capital sentence. Therefore, even a single day in prison may be held to be disproportionate in certain circumstances ;
17. Whether a sentence of imprisonment is a disproportionate to the offence allegedly committed by the Accused the Court must look into (a) gravity and magnitude of the offence and the harshness of the punishment, (b) the sentence imposed on other criminals in the same jurisdiction, (c) the sentences imposed for commission of the same crime in other jurisdictions, (d) whether similar crimes are subjected to same or lesser penalties (d) whether there is a legitimate aim or compelling reason for such a drastic measure, (e) whether such a drastic measure is suitable to achieve the aim, (f) what is the decree of evidence which is required to achieve such a drastic measure, (g) whether there can be any less onerous way of achieving the legitimate aim or whether the drastic measure is the only way to achieve the aim, (h) whether such a drastic measure is reasonably considers the competing interest of different groups, (i) blameworthiness of the offender; (j) the harm caused by the crime (k) the degree of guilt of the accused and its relation with the length of imprisonment (l) the personality characteristics of the offender, (m) the peculiar circumstances of the case, (n) the conduct of the accused in those circumstances (o) comparison of the said conduct with other offenders (p) the intention or lack of intention to commit the crime (q) whether a particular offender deserves to be rehabilitated or (r) whether the public needs to be protected from a particular offender.
18. Similarly, if no penological purpose is served by the punishment or the penological purpose of the punishment can effectively achieved with a lesser punishment i.e. a lesser period of imprisonment then it clearly establishes disproportionality. Deterrence, Retributive, Incapacitation, Reformative/rehabilitative theory and/or absolute deterrence or utilitarian theory are the relevant penological theories.
19. The Constitution bench in Mithu V/s State of Punjab, (1983) 2 SCC 277 has struck down a similar provision which prescribed mandatory death penalty without any alternative whatsoever for being violative of Article 14 and 21 of the Constitution of India. Similarly, The Hon’ble Supreme Court of India in the matter of Dadu V/s. State of Maharashtra, (2000) 8 SCC 437 and State of Punjab V/s. Dalbir Singh, (2012) 3 SCC 346 have struck down similar provisions which denied judicial discretion in awarding sentences.
20. The Hon’ble Supreme Court in the matter of Sharaya Bano V/s Union of India reported in (2007) 9 SCC 1 while considering Mithu’s case (supra) held that in Mithu’s case, the provision prescribing mandatory death sentence was not only struck down on the ground of violating Article 21 of the Constitution of India but was also struck down on the ground of it being manifestly arbitrarily and violative of Article 14 of the Constitution of India.
21. Whether alternative punishment or a minimum mandatory punishment for a particular offence can be unconstitutional for being grossly disproportionate to the actual crime committed or for being cruel, unusual or excessive or for infringing the principle of Separation of Power?
22. The real controversy arises when the legislature has provided an alternative mandatory punishment for example life imprisonment in alternative to death sentence and/or when legislature has provided a structure of punishment to run in between the minimum and maximum period of imprisonment.
23. Thus whether the Judiciary is compelled to sentence the minimum mandatory punishment i.e. either mandatory life imprisonment, which is in alternative to death sentence or the mandatory specified number of years of imprisonment, which is the minimum punishment for a particular offence if even the Judiciary does not want to?
24. When the legislature prescribes such minimum / alternative mandatory sentence, by literal interpretation, the Judiciary will be compelled to award the only alternative punishment or the minimum punishment prescribed by the legislature even when after considering various factors, which were not available to the legislature, the Court in its discretion would have preferred a lesser sentence. In other words, does the Judiciary stands completed deprived of its discretion if an alternative or minimum mandatory punishment is prescribed by the Legislature ?
25. The Supreme Court in Vikram Singh v. Union of India, (2015) 9 SCC 502 while considering challenge to the award of death sentence for an offence under Section 364-A IPC, considered various decisions on the issue of punishment. It considered some American decisions holding that fixing of prison terms for specific crimes involves a substantive penological judgment which is properly within the province of legislatures and not courts and that the responsibility for making fundamental choices and implementing them lies with the legislature and conduced as under:
“52.2. Prescribing punishments is the function of the legislature and not the courts.
52.3. The legislature is presumed to be supremely wise and aware of the needs of the people and the measures that are necessary to meet those needs.
52.4. Court show deference to the legislative will and wisdom and are slow in upsetting the enacted provisions dealing with the quantum of punishment prescribed for different offences.”
26. The case of Vikram Singh, (2015) 9 SCC 502 was recently considered by the Constitution Bench in Union of India v. V. Sriharan, (2016) 7 SCC 1 in the descending opinion of Lalit J & Sapare J. The relevant portions are reproduced as below:
50. Having thus noted the relevant provisions in the Constitution, the Penal Code, the Criminal Procedure Code and the DSPE Act, we wish to deal with the questions referred for our consideration in seriatim. The first question framed for the consideration of the Constitution Bench reads as under: (V. Sriharan case [Union of India v. V. Sriharan, (2014) 11 SCC 1 : (2014) 3 SCC (Cri) 1] , SCC p. 19, para 52)
52.1. Whether imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code meant imprisonment for rest of the life of the prisoner or a convict undergoing life imprisonment has a right to claim remission and whether as per the principles enunciated in paras 91 to 93 of Swamy Shraddananda (2) , a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?
27. The Minorty held as under:
“273. Section 302 IPC prescribes two punishments, the maxima being the death sentence and the minima to be life sentence. Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] proceeds on the footing that the Court may in certain cases take recourse to the expanded option, namely, the hiatus between imprisonment for 14 years and the death sentence, if the facts of the case so justify. The hiatus thus contemplated is between the minima i.e. 14 years and the maxima being the death sentence. In fact going by the punishment prescribed in the statute there is no such hiatus between the life imprisonment and the death sentence. There is nothing that can stand in between these two punishments as life imprisonment, going by the law laid down in Godse case [Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 : (1961) 1 Cri LJ 736 : (1961) 3 SCR 440] is till the end of one’s life. What Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] has done is to go by the practical experience of the life imprisonment getting reduced to imprisonment for a period of not more than 14 years and assess that level to be the minima and then consider a hiatus between that level and the death sentence. In our view this assumption is not correct. What happens on the practical front cannot be made basis for creating a sentence by the courts. That part belongs specifically to the legislature. If the experience in practice shows that remissions are granted in unsound manner, the matter can be corrected in exercise of judicial review. In any case in the light of our discussion in answer to the question in para 52.6, in cases of remissions under Sections 432/433 CrPC an approach will necessarily have to be made to the Court, which will afford sufficient check and balance.”
“277.Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] does not proceed on the ground that upon interpretation of the provision concerned such as Section 302 IPC, such punishment is available for the Court to impose. If that be so it would be available to even the first court i.e. Sessions Court to impose such sentence and put the matter beyond any remissions. In a given case the matter would not go before the superior court and it is possible that there may not be any further assessment by the superior court. If on the other hand, one were to say that the power could be traceable to the power of confirmation in a death sentence which is available to the High Court under Chapter XXVIII CrPC, even the High Court while considering death reference could pass only such sentence as is available in law. Could the power then be traced to Article 142 of the Constitution?”
“280. Further, in theory it is possible to say that even in cases where court were to find that the offence belonged to the category of the “rarest of rare” and deserved death penalty, such death convicts can still be granted benefit under Sections 432/433 CrPC. In fact, Section 433-A contemplates such a situation. On the other hand, if the court were to find that the case did not belong to the “rarest of rare” category and were to put the matter beyond any remissions, the prisoner in the latter category would stand being denied the benefit which even the prisoner of the level of a death convict could possibly be granted under Sections 432/433 CrPC. The one who in the opinion of the court deserved death sentence can thus get the benefit but the one whose case fell short to meet the criteria of the “rarest of rare” and the court was hesitant to grant death sentence, would languish in jail for the entirety of his life, without any remission. If absolute “irrevocability of death sentence” weighs with the court in not awarding death sentence, can the life imprisonment ordered in the alternative be so directed that the prospects of remissions on any count stand revoked for such prisoner. In our view, it cannot be so ordered.”
28. However, the majority opinion of the Constitutional Bench held as under:
“178. We hold that the ratio laid down in Swamy Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] that a special category of sentence; instead of death can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative.”
29. This article does advocates that if a special category of punishment can be created to put the put the punishment of imprisonment for life or for a term exceeding 14 years beyond application of remission then similarly the Judiciary can create a special category of punishment below the minimum mandatory punishment be it a specific number of imprisonment or life imprisonment as alternative to death sentence for the reasons stated below.
30. A legislation which compels the judiciary to implement any government or legislative policy or determination by confining the court’s adjudicative process without following the ordinary judicial process deprives the judiciary of its independent and impartial character. This effectively amounts to letting members of the executive or the parliament to determine the quantum of sentence for particular offenders.
31. The principle of separation of power as applied to the criminal justice system serves the purpose of reducing this risk of arbitrary exercise of power by any arm of the government including the legislature. The legislature enacts laws relating to crime and provide guidelines for appropriate sentences for persons who commit such crimes. The executive enforces these laws and it is the judiciary that determines whether or not a person is guilty, whether the persons has been accorded procedural fairness, and what punishment the offender should receive for committing the crime.
32. Exercising power to sentence a person in confinement for his or her entire life is the highest form of power in existence and it must be only exercised when justified according to the traditional criminal system i.e. by the judiciary after reviewing the details of each case based on the legally acceptable material evidence and after applying the legal principles and guidelines of exercise of discretion from judiciary pronouncements.
33. It can thus certainly be stated that the Judiciary is the only Organ of the State which should determine the sentences and if the power of the Court to award lesser punishment is take away by the Legislature then it will infringe the principle of separation of power which form a basic structure of the Constitution of India.
34. This issue after the decision of Vikram Singh, (2015) 9 SCC 502 was no longer res integra, where the Supreme Court answered the same in Negative. However, after the decision of the Constitution Court in Union of India v. V. Sriharan, (2016) 7 SCC 1 the issue has possibly reopened and infact the Supreme Court has held that the Judiciary can create a different category of punishment de hors the statute.