With death sentence becoming an exception, there may be an urgent need to revisit the scheme of punishments to keep deterrence intact, as the next most stringent sentence of life imprisonment generally gets reduced after remission to a jail-term of mere 14 years or a little more.

READ: Law panel wants abolition of death penalty with exception in terror cases

Though a constitution bench of the supreme court recently reserved orders on striking a balance between punishment and remission, the problem can best be solved by the legislature which, in a sense, fuelled the imbalance by making changes in the code of criminal procedure (CrPC) mandating life imprisonment as against death penalty as the normal punishment without making appropriate changes in provisions relating to punishment in the 1860 Indian penal code (IPC). Till death sentence was the normal punishment, life term, even if it meant 14 years, was not much of a concern for courts as it was to be imposed only in special cases deserving leniency. But problems in sentencing came to the fore with the judiciary limiting death to the rarest of the rare cases after taking note of the modern approach in sentencing and changes in the CrPC.

“Sentencing is the prerogative of the court... How does the court exercise its prerogative if it is of the view that death is not warranted and 14 years imprisonment is insufficient?,” a supreme court bench, which faced the problem during the hearing of the Swami Shraddhananda case in 2008, observed.

The bench finally decided to narrow down the gap between life imprisonment and death by barring remission for the remaining natural life of Shraddhananda. This meant he would remain in jail till his death.

Though the apex court under its law-making power was empowered to fill a vacuum in law, this was a case which had raised eyebrows as the court had barred exercise of power of remission specifically granted to the executive by a statute.

While the judicial engineering in the Shraddhananda case failed to condense as a clear precedent in the past seven years, a similar switchover was scripted with ease with legislative intervention in England. The Murder (Abolition of Death Penalty) Act 1965, which abolished death sentence for murder, made life imprisonment the punishment for murder while empowering the court to declare a minimum period which should elapse before the executive ordered the release of the convict. The country has now further proceeded to completely abolish death penalty.

Though the Shraddhananda formula was followed as a precedent in a number of cases where varied terms of 20 years, 25 years and 30 years imprisonment without remissions were ordered, the correctness of the judgments was questioned by a supreme court bench in 2012.

Justice Madan B Lokur observed in a judgment in 2012 that the remission power had effectively been nullified by awarding sentences of 20 years, 25 years and in some cases sentences without any remission. “Is this permissible? Can this court (or any court for that matter) restrain the appropriate government from granting remission of a sentence to a convict?” the bench comprising justice Lokur asked.

Though the bench suggested elaborate discussion for an authoritative answer to the query, it stressed that it was of the opinion that “this is not permissible”. “The appropriate government cannot be told that it is prohibited from granting remission of a sentence,” it said.
Section 432 of the CrPC empowers the executive to suspend the execution of a sentence or to remit the whole or any part of the punishment of a convict.

Such a power had always been there but the problem has arisen on account of changes in CrPC replacing death sentence with life imprisonment as the key punishment. The scheme of punishment under the IPC, which remains unchanged, envisages life only as an alternative punishment for offences punishable with death. Section 53 IPC lists five forms of punishments including death, imprisonment for life, imprisonment and fine for offences under the penal code.

As against the 1898 CrPC which mandated award of death unless there were reasons to justify life, the 1973 code made it mandatory to give reasons if death was chosen in place of life. This legislative move was taken forward by the judiciary by limiting death to rarest of the rare cases.

With only three hangings (all terrorists) having taken place after August 2004, the system of sentencing is under strain. The maximum period of imprisonment for ordinary criminals is virtually 14 years. If a judge feels that is too little, his discretion ought to be directed towards death sentence. In a sense, it ideally leaves a judge with the narrowest possible discretion if there is no viable alternative to death penalty.
While quashing section 303 of IPC for not leaving any discretion for the judge by providing for a mandatory death sentence, the supreme court in the 1983 Mithu case had stressed that a discretion (in the form of a viable alternative) was necessary as it tempered even the “ruthless rigour of the sentence of death”.

While it is clearly not for the judiciary to modify the statutorily-provided scheme of punishment, it can only remove hurdles in its way till the legislature makes holistic changes. And if death penalty is abolished, a legislative intervention may become necessary as several offences would have life imprisonment as the sole punishment which would be against the scheme of punishment in IPC. Besides, this could fall foul of the ruling in the Mithu case which upheld judicial discretion in the matter of sentencing as the right of the accused.

With hardly any doubt that death penalty is on its way out for ordinary penal offences, the government would do well to redefine life imprisonment which is listed as punishment for at least 51 offences in the IPC. Ironically, it is understood to be the same, i.e., 14 years, for all offences irrespective of the fact that it is listed as the minimum punishment for offences attracting death and the maximum in the rest.
The government also needs to reformulate the power of remission to ensure that life imprisonment serves as a deterrent with fear of death already waning out for ordinary criminals.

While stressing that efficacy of transportation (which was replaced with life imprisonment in 1956) was the terror of separation, Lord Macaulay, the architect of IPC, had stated that the fear “would be greatly weakened if transported convicts should frequently return, after an exile of seven or 14 years, to the scene of their offences, and to the society of their former friends”.

A similar fear was expressed, years later, during a debate in the constituent assembly on November 30, 1948. Referring to remissions making premature release a near certainty, K Hanumanthaiya said: “If a man who kills another is assured that he has a chance of being released after seven or eight or ten years, as the case may be, then everybody would get encouragement to pursue the method of revenge, if he has got any.” Hanumanthaiya was convinced that life term without assured remissions would be as effective a deterrent as death sentence.

With death sentence leaving behind a void, the gaps in the scheme of sentencing can only be effectively filled by the legislature. Besides, it cannot be denied that the argument that the statutory power of remission can only be curbed by the legislature is not without merit.
True, the decision of the constitution bench would make it clear if courts could quantify life imprisonment to ensure that not all convicts, irrespective of the gravity of the crime, got a chance for remission after 14 years.

Whatever be the decision of the constitution bench, the legislature might have to step in sooner or later. Such broad discretion on a judge to fix sentences ranging from 14 years to the natural life span of a person without any statutory guideline could breed arbitrariness.
Lord Camden, a noted English judge, had said in a judgment in 1867 that “the discretion of a judge is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper and passion.”

He was right. On November 21, 1985, a Rajasthan high court judge ordered public hanging in the Lichhmadevi case. “We direct that in order to make the punishment more effective deterrent and exemplary there should be public hanging of the accused Smt. Lichma in the stadium grounds of Jaipur or Ramlila grounds of Jaipur, after due notice to the people by media.” Eight days later, the judge passed a similar order in another case. The hangings were stayed after the then attorney general approached the supreme court.


(The column appears in the September 1-15, 2015 issue)