An oddity in sentencing discretion for attempts to commit rape?

The reform of India's rape law in the wake of the Verma Committee Report led to an overhauling of how the core of the offence was defined. It also led to a recognition of fresh kinds of aggravated forms of the rape offence depending on various circumstances, with varying punishment schemes in place to properly sentence offenders for such crimes. 

One such example is Section 376(3) of the Indian Penal Code 1860, which states that:

"Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine ..." [Emphasis supplied]

So, there is a mandatory minimum of twenty years in prison for committing rape on a woman below the age of sixteen years, and the maximum possible sentence is that of life imprisonment.

The insertion of a mandatory minimum punishment in any kind of offence has been the subject of intense debate and scrutiny across the globe. What I am interested in here is not that debate, but the peculiar set of consequences that clauses such as Section 376(3) have when considered from the prism of attempts to commit crimes.

Section 376 does not separately punish attempts to commit rape. Therefore, resort must be had to Section 511 of the Penal Code, which states that:

"Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both." [Emphasis supplied]

If you are wondering how do you calculate one-half of life imprisonment, look no further than Section 57 of the Penal Code, which states that for calculating fractions of punishment, life imprisonment shall be reckoned as equivalent to imprisonment for twenty years.  

This poses an interesting quandary for cases where the allegation is an attempt to commit offences such as Section 376(3) [or, for that matter, Section 4(2) of the Protection of Children from Sexual Offences Act 2012]. Reading Section 376(3) with 511 confers the judge with discretion to convict someone for a term which may extend to one-half of twenty years, so theoretically a figure anywhere between 0 to 10 years in prison. But, because Section 376(3) carries a mandatory minimum term of twenty years imprisonment, conferring any sentence below one-half of that prescribed limit would, technically, offend that mandatory minimum. 

Effectively, then, does the judge have any discretion to award a sentence other than ten years in prison for attempts to commit the offence under Section 376(3) IPC, no matter how different they all might be? If we read Section 376(3) IPC read with the attempt clause in this manner which eliminates all possibility of sentencing discretion, then would it not fall foul of the rule laid down by the Supreme Court in Mithu [AIR 1983 SC 473] that vesting discretion with the judge is what makes sentencing just, fair and reasonable from the perspective of Articles 14 and 21 of the Constitution?

If anyone can point to more discussion on this then that will be great!

Guest Post: Understanding the Interface between Statutory and Constitutional Powers of the Executive to Remit, Commute, or Suspend Sentences

(This is a guest post by Pradhyuman Singh)

Introduction

On 18th May 2022, the Supreme Court ordered the release of A.G. Perarivalan, a conspirator in the assassination of former Prime Minister, Rajiv Gandhi by exercising their inherent power under Article 142 of the Constitution. Perarivalan having been found guilty on a number of charges, the State of Tamil Nadu wished to issue a pardon in his favour. To this effect, the Council of Ministers of Tamil Nadu advised the Governor to issue a pardon. The power of the Governor of a State to issue pardons is traceable to Article 161 of the Constitution. As granting pardons is a function of the Governor, it is also pertinent to read this power/function with Article 163 of the Constitution. Article 163 requires the Governor to exercise her functions on the aid and advice of the Council of Ministers. Therefore, the Governor is mandated to act on this advise being the nominal Executive Head of the State. 

In this case, the advice of the Council was tendered on September 9, 2018 and no action was taken by the Governor. Instead, the Governor submitted the matter to the President for his consideration. The Governor used this reason as a justification for the delay in implementing the mandatory advice of the Council. The Supreme Court held that such abstinence was in violation of the Governors duty under the Constitution. Thus, to do complete justice the Supreme Court itself ordered the grant of pardon in favour of Perarivalan, resulting in his release. 

Predictably there has been considerable publicity on this order of the Supreme Court. Amongst the various opinions on the order, (Retd.) Justice V. Parthiban, an erudite judge of the High Court of Madras has also expressed his criticism on many fronts. One particular criticism was that the Supreme Court did not consider the attraction of Section 435 of the Code of Criminal Procedure, 1973 (“CrPC”) to the case. This specific contention will be the focus of this post.

Sections 432-434 of the CrPC provides a statutory power to the President/Governor to remit, commute or suspend punishment of offences. Section 435, provides that if the State Government (i.e. the Governor, as per Section 3(60), General Clauses Act, 1897) wishes to exercise power under Section 432 or 433, and-

1. The offence in question has been investigated by the Central Bureau of Investigation; or 

2. The offence involved damage to property of the Central Government; or

3. The offence was committed by an employee of the Central Government, 

the Governor would be obligated to exercise such powers only after “consultation” with the Central Government. “Consultation” here has been interpreted to mean concurrence by the Supreme Court (Union of India v. V. Sriharan). In the facts of this case, the investigation of the offences was carried out exclusively by the Central Bureau of Investigation, thus attracting Section 435 of the CrPC.

At first sight, it may seem that such powers of the Governor under the Constitution stand on a different footing from the statutory power. In no manner can the provisions of the CrPC control the ambit of Article 161 of the Constitution (which stipulates no such requirement of consulting/concurring with the Central Government). However (Retd.) Justice Parthiban emphasises that the decision rendered by the Supreme Court in Sriharan (by a Constitution Bench nonetheless) requiring mandatory concurrence of the Central Government would then be rendered completely nugatory. All that would be required is for the Governor to claim that her power is being exercised under the Constitution and not the CrPC. The entire scheme of statutory powers of the Governor/President to remit, commute or suspend sentences would become redundant. 

Further, the Supreme Court in another occasion (K.M Nanavati v. State of Bombay) has also held that Articles 72 and 161 embody the “prerogative power” of the President/Governor. Since there is no express provision in the Constitution saving these provisions from legislative interference, the English common law as to Prerogatives applies to the pardoning power under our Constitution. As a result of this, these powers may be fettered and controlled by legislation. Thus, what would otherwise be a simple matter of examining the relationship between statute and the Constitution becomes complex. This is due to the scheme of the CrPC historically having analogous powers of remission, commutation and suspension of sentences ever since its recognition in the Code of Criminal Procedure, 1898 (the predecessor to the present CrPC). 

This post will enquire into the context with which parallel powers of remission, commutation and suspension exist in our statutory framework, despite our Constitution exhaustively providing for the same. Accordingly, we may determine the relationship between these laws and the legal implications that follow.

History of the Code of Criminal Procedure

The Code of Criminal Procedure, 1898 (“Code”) first recognised the power of the Governor General of British India to remit, commute and suspend punishments of offences. This power found expression in the form of Section 401 and 402 of the said Code. At the time, there existed no grundnorm resembling the Constitution, and so the power of the Governor General was exclusively governed by the aforementioned provisions of the Code. 

This changed with the eventual enactment of the Government of India Act, 1935 with the enactment of Section 295. Section 295 was the template for the drafting of Article 72 and 161 of the Constitution, which vested the power to suspend, remit or commute a sentence with the Governor General as well. The phraseology adopted by Section 295 is as follows-

“Where any person has been sentenced to death in a Province, the Governor-General in his discretion shall have all such powers of suspension, remission or commutation of sentence as were vested in the Governor-General in Council immediately before the commencement of Part III of this Act…” [Emphasis Supplied] 

Thus, the Government of India Act, 1935, a legislation passed in the British Parliament gave deference to ordinary laws to regulate the powers of the Governor General in this respect. The intent behind such a provision in the Government of India Act, 1935 was to merely give passive recognition to the power of the Governor General (which was to continue to operate through the statute, i.e. The Code of Criminal Procedure, 1898) and to make clear that such powers would not interfere with the Kings power to issue pardons or remit, commute or suspend sentences (as provided in Section 295(2)). In this manner, the statutory framework of the Code had a functional purpose in recognising the power of the Governor General. The provisions of the Code worked in perfect harmony with the Government of India Act, 1935. 

Such was the arrangement until the enactment of our Constitution. Section 295 of the erstwhile Government of India Act, 1935 was significantly changed to give us what we have as Article 72 and 161 today. As is clear from the language of these Articles, the power of the President/Governor to remit, commute or suspend sentences was expressly recognised in the Constitution itself. Marking a clear departure from the previous position, there was no deference given to any statutory framework that would determine the powers of the President/Governor. However, the makers of the Constitution chose to still passively recognise the statutory powers of the Governor to remit, commute or suspend sentences. This was in the form of Article 72(3) which provides- 

“Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.” [Emphasis Supplied] 

The purpose of this clause is to clarify that the power of the President conferred by Article 72(1)(c) should not be construed to exclude the power of the Governor in any manner. However, in stating so, the makers chose to express that the power of the Governor under “any law” was not to be affected. It was equally open for the draftspersons to make a direct reference to Article 161 of the Constitution in this provision. Rather, a conscious decision was made to also recognise any statutory powers vested in the Governor. The implications of this will be examined in the following section of the post. 

Moving along, once the Constitution was brought into force, the provisions of the Code were also amended. Article 72(1)(c) of the Constitution recognised the power of the President to remit, commute or suspend the sentence of death.Ordinarily, the President exercises powers with respect to offences in the Union List and the Governor in the State List respectively. An exception is made in the case of death where both the President and Governor exercise concurrent powers. To accommodate this concurrent power, Section 402A was introduced in the Code vide an amendment. This Section too recognised the concurrent powers of the President and Governor in line with the Constitution. 

The next important milestone in the development of law on this issue came in the year 1969. The Law Commission of India was tasked to review the entirety of the Code and recommend comprehensive changes to the law of criminal procedure. This took shape in the form of the 41st Law Commission Report published in September 1969. This report examined Section 401 and 402 of the Code. It expressly noted how the statutory powers of the Government were ancillary to the Constitutional powers (Refer Page 248, Para 29.1). Interestingly, it also opined that it would be legally impermissible for the Code to be inconsistent with the Constitution (Refer Page 249, Para 29.4). However despite these findings, they expressed a concern with the State Governments power to remit, commute and suspend sentences. It was felt that certain offences significantly affected the interest of the Central Government (offences involving the employees and property of the Central Government and offences investigated by the CBI). If a free hand was given to the State Government to exercise powers in respect of such offences, it would result in “difficulties of administration” for the Central Government, according to the Report (Refer Page 252, Para 29.13).

This formed the basis for them to recommend the insertion of a draft Section 402B in the Code. This Section would require the State Government to consult the Central Government if it wished to remit, commute or suspend sentences in the offences described above. This recommendation was accepted by the Parliament when the Code was replaced with new CrPC enacted in the year 1973 in the form of Section 435 of the CrPC. 

Having a brief idea of the context of this provision, we may now examine the relationship between the CrPC and the Constitution.

Relationship Between the CrPC and the Constitution 

The Constitutions passive recognition of the statutory power of the Governor may have one of two implications- 

A. The Statutory Power is merely a formal recognition of the power of a Constitutional authority. It stands on a different footing from the Sovereign power of the Executive Head. As a consequence, it does not dilute or affect the Constitutional powers of the Governor in any manner. Any statutory provision that would be inconsistent with the Constitution would be void. 

B. The Constitutional power is an expression of the Prerogative power of the Executive. Finding its origin in English Common Law, Article 72 and 161 may still be controlled and subject to legislative provisions that may be made to this effect. (This was the reading adopted by the majority in Nanavati)

The first of these two readings would result in the statutory powers of the Governor being completely redundant. If it would be open to the Governor to exercise the exact same powers to remit, commute or suspend sentences in its Constitutional capacity, any restrictions or mandatory procedures imposed in the statute (such as Section 435, CrPC) may be bypassed. Despite such redundancy, reading “A” would still be a more suitable reading of the law. This is due to the following reasons-

1. It is correct that historically, the power of remission, commutation and suspension of sentences lies with the Executive Head. These are Prerogative powers that identify the source of authority from English Common Law. However, these conventions have been crystalised in the form of express Constitutional provisions. There are various other examples within the Constitution, where principles of common law find express mention. For instance, Article 129 of the Constitutions declares the Supreme Court as a Court of Record. The powers of a Court of Record in English Common Law would include the power to punish for contempt of itself. Despite this, the framers chose to expressly also recognise the Supreme Courts power to punish for contempt in Article 129. The consequence of this express recognition of common law norms is that such principles get the status of Constitutional law. It would follow that such principles/law are granted the protection of the highest law of the land which could only be altered by a Constitutional amendment. Therefore, Articles 72 and 161 are by themselves sources of power for the President/Governor to exercise power. It would not be correct to state that they are a reflection of the Prerogative powers which find their authority outside the Constitution. 
2. Article 245 of the Constitution confers power on the Legislature to make laws. The provision begins with a subject clause stating, “Subject to the provisions of this Constitution…”. This makes it abundantly clear that any ordinary law cannot be in contravention of any Constitutional provision. Further, there is nothing in the context of Articles 72 or 161 that would suggest that is straightforward interpretation of Article 245 should not be followed in reading them. 
3. The language of Article 72 and 161 marks a clear departure from their predecessor in the form of Section 295 of the Government of India Act, 1935. The regime before the Constitution in express terms gave deference to the statutory regime of the Code which dictated the extent of powers exercisable by the Governor General. This position no longer stands after independence where the prerogative power has been given Constitutional status. If ordinary legislations may be allowed to control Articles 72 and 161, it would result in the said provisions themselves becoming redundant. 
4. As mentioned earlier, Article 74/163 requires the President/Governor to exercise their functions only on the binding aid and advice of the Council of Ministers. The powers under Article 72/161 being one such function, would also have to be performed only on the aid and advice of the Council. 

If reading “B” of the law is adopted and ordinary laws could independently guide the power of the President/Governor, it may not be necessary to act on the aid and advice of the Council of Ministers. The statutory framework under which the President/Governor would function, would then allow them to act in their personal discretion free from their Constitutional obligations. This would be in clear violation of the mandate of Articles 74 and 163 of the Constitution which are a reflection of the principles of Executive accountability. The violation of these provisions in this manner would be contrary to the role of the President/Governor envisaged by the framers as nominalExecutive Heads of State. 

For these reasons, the decision of the Supreme Court in Nanavati is incorrect. The passive recognition of the Governors statutory powers in Article 72(1)(c) is only indicative of a parallel legal framework within which the Governor may operate. It cannot be construed to mean that it would be open to the Legislature to dilute and control Article 72 and 161 by an ordinary legislation. Indeed, at the time of commencement of the Constitution, the Parliament made efforts to ensure that no provisions in the Code conflicted with the Constitution. To this effect, Section 402A recognising concurrent powers of the President and Governor to remit, commute or suspend sentences of death was introduced. 

Despite the view of the Court in Nanavati, the Supreme Court has subsequently moved away from this approach. In the case of Maru Ram v. Union of India, a Constitution Bench considered the validity of Section 433A of the CrPC, 1973. This provision disallowed the President/Governor to exercise powers under Section 432 and 433 (for convicts sentenced to a certain class of sentences) if the convict had not served at least fourteen years of imprisonment. The Court held that Section 433A would not be attracted when the Governor exercised powers under Article 161. Both provisions stood on a different footing and it would not be open for a statute to control the Executive Power conferred by the Constitution in absolute and unqualified terms. 

This position was reiterated by the Supreme Court in the case of State of Punjab v. Joginder Singh which involved the interpretation of paragraphs 516-B and 631 of the Manual for the Superintendence and Management of Jails in Punjab. These provisions required Jail Superintendents to submit applications for remission to State Governments after the convict served fourteen years of imprisonment. In the course of interpretation, the Court enquires into the relationship between the said Rules and Section 433A of the CrPC. By relying on Maru Ram, it too came to the conclusion that no legislative scheme (in this case, the Prison Manual) may be inconsistent with the Governors powers under Article 161. 

For these reasons, the Constitutional powers must be read to exist independent of the CrPC. The statutory powers may not serve any functional purpose by existing parallelly and ought to be understood in the historical context with which they find their place. At the time of the commencement of the Constitution, the provisions of the Code were modified to perfectly align with the Constitution. Thus, it was always the intent of Parliament for both these powers to harmoniously co-exist.

Accordingly, Section 435 of the CrPC too cannot be construed such that it controls the absolute powers of the Governor under Article 161. The Governor would not be required to concur (or even consult) the Central Government for the purposes of issuing any pardons in furtherance of Article 161. In this light, the Supreme Court was correct to not consider the involvement of any provisions of the CrPC in the case of A.G Perarivalan.

Guest Post: Rethinking the Conviction Model for Non-Homicidal Repeat Sexual Offences

[I am happy to present this guest post by Ms. Ashna D., a third year law student in the undergraduate program at NUALS, Kochi.]

When the Supreme Court in Mithu Singh v. State of Punjab [1983 SCR (2) 690] struck down as unconstitutional the mandatory death sentence for murders committed by life convicts, the Court made its position very clear – “The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death.” 

This view was echoed by the Justice Verma Committee Report when it specifically opted against prescribing a maximum sentence of death for repeat offences of rape. Despite this, Parliament in the Criminal Law (Amendment) Bill, 2013 chose to mete out harsher punishments in certain cases and argued that if a person repeatedly commits the sexual offence of rape, the punishment has to be death.

Recently, India has been witnessing a disturbing glorification of the death penalty as a proportionate punishment for heinous sexual offences. This dangerous rhetoric seems to have wriggled its way into the sentencing process with the Supreme Court allowing the “collective conscience” to influence the quantum of punishment. This post highlights a need to reassess the constitutionality of Section 376E of the Indian Penal Code [IPC] which adopts a ‘conviction model’ that is vague, disproportionate and arbitrary. It argues that such a provision unthinkingly forecloses the possibility of reform and rehabilitation of convicts and victims respectively, by placing two glaringly different classes of offences on the same footing. For, as Lord Macaulay noted in his ‘Notes on Punishment’ on the Penal Code, “To the great majority of mankind, nothing is so dear, as life”.

A Misguided Interpretation of Enhanced Punishment

The outrage that followed the 2012 Delhi gang-rape led to the passing of a slew of amendments pertaining to the offence of rape. Apart from broadening the definition of rape to include oral and digital penetration, another amendment provided that persons who had already been convicted of rape under Sections 376, 376A or 376D of the IPC shall suffer an enhanced punishment under Section 376E IPC, which would either be imprisonment for the rest of his life or the death penalty as well. A literal reading of the Section only requires a previous conviction in order to impose the death penalty, and deviates from the ‘chronology of offences’ model followed under Section 75 IPC.

The rationale behind Section 75 is founded on the principle that criminal law affords limited patience to repeat offenders who have failed to “learn their lessons from the initial punishment”, and is borrowed from American criminal jurisprudence. It can be argued that it is wrong to keep imposing increasingly severe penalties for each new offence. This is because such provisions give too much weight to persistence and violate the principle of proportionality, creating a systemised gradation of punishments that fail to understand the enormously differing motives and circumstances underlying each individual crime.

Nonetheless, a criminal justice system that allows for recidivist provisions must at least ensure their fair implementation. This is precisely what was argued for by the petitioners in the case of Mohd. Salim Mohd. Kudus Ansari [Writ Petition No. 1181 of 2014, Decided on 03.06.2019 (Bombay High Court)], where the accused was sentenced to death upon ‘subsequent conviction’ despite the trials for the first and second alleged offences of rape being conducted almost simultaneously. By adopting the ‘conviction model’, the Bombay High Court not only turned a blind eye to the marginal time difference between the two convictions, but it also arbitrarily deprived the accused of his single opportunity to seek reform. This confusion surrounding the term ‘subsequent conviction’ makes its application inherently vague and may trap the innocent by not providing for an adequate warning.

Faulty Foundations

It is only reasonable to assume that crime is deterred not by increasing the gravity of punishment, but by ensuring its certainty. Nonetheless, a criminal justice system must consciously adhere to the principle of proportionality. That is to say that it does not allow punishment of the innocent; for, any punishment in excess of what is deserved for the criminal conduct is punishment without guilt. The logic followed by Section 376E IPC is principally unsound on two grounds. Firstly, barring Section 376A IPC which itself requires the causing of death, imposing a sentence of death for non-homicidal offences is antithetical to Articles 14 and 21 of the Constitution and therefore in gross violation of the principle of proportionality.

As was observed by the Supreme Court of the United States in Coker v. Georgia, rapes are no doubt barbaric crimes that deserve serious punishment. However, the Court opined that the death penalty is a needless and purposeless imposition of pain and suffering on a rapist who, as such and as opposed to the murderer, does not unjustifiably take human life. While the depravity and sheer inhumane nature of countless crimes may push us to make demands for the capital punishment its severity and irrevocability must be kept in mind. To equate the two would therefore be manifestly unjust.

Secondly, the objective of Section 376E IPC, to provide for enhanced punishment of repeat offenders, can only be achieved if the punishment awarded under this section exceeds the punishment awarded for the first conviction of rape under Section 376 (only rape), 376A (causing death or resulting in persistent vegetative state of victim) or 376D (gang rape). Ergo, if the first sentence is one of life imprisonment, for the second conviction to be an enhanced punishment it cannot be a second life imprisonment. This is by virtue of Section 427(2) of the Criminal Procedure Code which provides that that a subsequent sentence of life imprisonment imposed will run concurrently with the previous sentence. Thus, the ultimate purpose of Section 376E will be defeated if the enhanced punishment, by necessary implication, is not capital punishment. Such a position not only runs the risk of erroneous executions but is also in direct violation of the dictum laid down in Mithu Singh and the ‘rarest of rare’ doctrine propounded in Bachan Singh v. State of Punjab [(1980) 2 SCC 684].

On Rehabilitation and Reformation

By robbing judicial discretion in the sentencing process and pursuing our thirst for revenge, we are forgetting that a criminal is a victim of his circumstances in a society that has failed him. If the recent rise in sexual crimes is any indication, it is a telling tale of a nation that still perpetuates patriarchal notions and accepts the power and dominance of a man over a woman’s bodily autonomy. Our governments cannot offer society false hope that by killing sexual offenders via a death penalty we can eradicate sexual violence. By conveniently enlarging the scope of penal provisions to provide harsher punishments for repeat offenders, the State is shirking its responsibility of creating a strong framework to rehabilitate survivors of sexual offences within which various stakeholders must continuously assist them in rebuilding their lives.

Concomitantly, the State also owes to convicts a rightful chance to reform. This duty entails reforming the manner in which the practice of life imprisonment is implemented. Issues such as overcrowded and understaffed prisons, physical and mental torture of inmates, and inadequate recreational facilities have long lasting impacts on the lives of prisoners in ways that hinder reform and render their reintegration into society extremely problematic. Add to this the innumerable years convicts spend languishing in these very prisons with the prospect of death hanging over the heads. In a broken criminal justice system such as ours within which the very administration of the capital punishment is so intrinsically fallible, to extend its application to non-homicidal offences is to commit the gravest form of injustice disguised as the law. 

Govindaswamy v. State of Kerala

It has been an interesting week. On one hand critics and moviegoers alike have been heaping praise on Pink, dubbed the first film to raise the issues of female sexual autonomy and choice in post-1991 India. On the other, the Supreme Court set aside the conviction for murder under Section 302 IPC and the attendant death sentence in Govindaswamy v. State of Kerala [made infamous by the deceased victim’s name, which this comment desists from using]. I argue here the decision is a brave one. But as much as my biases make me support it, its reasoning is not beyond reasonable doubt.

There is little to gain by recounting but the most essential facts. An adult woman was found lying grievously hurt near train tracks near Shornur, Kerala, on the night of 1st February, 2011. She was found at the insistence of two people who believed they saw her falling from the train, convinced the fellow passenger travelling with them was wrong in saying that she had willingly jumped and fled. Her condition when they found her convinced the witnesses that she had been attacked by the suspicious one-handed man lurking about the compartment. Subsequent medical treatment proved insufficient, and the victim succumbed to her injuries on 6th February. 

The Fast Track Court convicted the accused of Murder (Section 302 IPC), Rape (Section 376 IPC) and other offences. The death sentence was recommended which the High Court confirmed. As we know, the Supreme Court altered only one aspect of the decision – the conviction and sentence for Murder. What does a conviction for murder require, then, that the Supreme Court found the ingredients lacking? Section 300 IPC defines murder (punished by Section 302 IPC). Broadly, it explains that a Culpable Homicide (defined in Section 299 IPC) can amount to Murder in certain cases, where:

1. If the act causing death is accompanied by the intention of causing death, or
2. If the act causing death is caused with intention of causing such injury that the offender knows is likely to cause death of the person to whom the harm is caused, or
3. If the act is done with the intention of causing injury, and the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
4. If the offender knows the act is so imminently dangerous that it must, in all probability, cause death or such injury likely to cause death, and commits such an act without any excuse for incurring the risk.

The first three categories require an intention, while the last can be satisfied with knowledge. To prove I intended on doing something is more onerous than proving that I knew something will happen i.e. I had foresight of the consequences of my actions. This is justified. It should not be easy to label someone as a murderer and inflict upon them the harshest sanctions of life imprisonment or death. There is a slight relaxation in the third clause – I intend the injury and not the consequence of death but a conviction is possible as long as the injury is sufficient in the ordinary course of nature to cause death. The Trial Court and High Court decisions suggest this was how the case for Murder was made out. There was no direct evidence to show that the Accused caused the injuries, though, but both courts found the circumstances clinching. 

Proving a case on circumstantial evidence is tricky business. A testifying to seeing X killing Y with a knife is quite different from A testifying to seeing X with a knife 500 meters from where Y was found dead, and then convicting X for murder. Courts acknowledge this and there is a long line of decisions holding that a conviction on circumstantial evidence can only stand if the ‘chain of circumstances’ does not allow for any other conclusion other than guilt. Let’s take this case. The Supreme Court culls out three sets of injuries suffered by the victim. The first was injuries inflicted inside the train, the second those suffered from the fall on the railway tracks, and the third was the injuries associated with the sexual assault. The medical evidence was clear that a combination of the injuries suffered from the fall on the tracks with the subsequent sexual assault is what caused death. 

So the question, then, was whether the chain of circumstances only allowed for one conclusion here: that the accused intentionally inflicted injuries which were sufficient in the ordinary course to cause death. The three judges unanimously held it was not so. There was doubt whether the accused pushed the victim off the train or she fell herself. Therefore, it was also doubtful whether he intended the injuries resulting from the fall at all. Notice how the Supreme Court framed the issue: “However, so far as Injury No. 2 is concerned, unless the fall from the train can be ascribed to the accused on the basis of the cogent and reliable evidence, meaning thereby, that the accused had pushed the deceased out of the train and the possibility of the deceased herself jumping out of train is ruled out, the liability of the accused for the said injury may not necessarily follow.” The State argued the effects of the first injury could be seen as causing the victim to fall from the train, connecting the injuries to the accused. But the Supreme Court expressed reservations about this being the only conclusion, since a passenger near the compartment door said the victim had “made good her escape” by jumping.

Two related complaints can arise from this reasoning. First, when the medical evidence conflicted the escape theory (it could not be said the victim ‘made good her escape’), why give precedence to unverified oral testimony? Second, did it really matter whether the accused pushed the victim or she fell herself? The injuries to her head from the fall, as per medical evidence, were caused because the victim was dazed and had dulled reflexes owing to earlier injuries (not doubted as being caused by the accused). That being so, could the latter injuries from the fall not be considered as being caused by the initial attack by the accused? There is nothing to negative this causal connection on the facts. Of course the law does not allow X to walk away innocent by simply desisting from delivering the blow and causing Y to harm herself instead. But can we say that X intended those injuries or that X merely knew they are foreseeable? That, is the question.

I called this a brave decision because the Court could easily have maintained the conviction and reduced the sentence if it had doubts. Such a compromise might have been seen more appropriately in some quarters. But the Court went a step further. In doing so, it displayed a commitment to procedural rules not always easy in the face of ghastly facts. Judges are only human after all, and the perceived harshness of courts in sexual assault cases does display a tendency of playing to the pulpit, with the Supreme Court no exception. Nonetheless, the issues have not been thoroughly considered. Kerala has made a statement that it plans to file a Review Petition challenging the decision. As this comment argues, there may be enough material to warrant one.

[Thanks to Sonali Malik for her inputs]

No Consecutive Life Sentences in India

A Constitution Bench of the Supreme Court clarified a very important question in a reference made to it in the batch of appeals led by Muthuramalingam v. State [Crl. Appeal No. 231-33/2009 decided on 19.07.2016]. The question was whether courts order life sentences to run consecutively or must such terms always run concurrently? The unanimous answer is that two life terms must run concurrently. The issue arose because of contradictory decisions having been passed by benches of lesser strength in the Supreme Court. The clarification was necessary and welcome. Such sentences are obviously contrary to the idea of reformation through sentencing and must not be part of a system like India's which professes to support those values.

The reasoning and analysis do not hit the mark, though, and it appears too simplistic especially when the same logic is repeated in the decision itself. For the Constitution Bench, the simple reason behind this conclusion is that it is absurd for a convict to be serving a sentence after he has already died, for life terms in India mean prison terms that run for the natural life of a convict. The Court relies on Section 427(2) of the Cr.P.C. to point out how the code mandates that those serving life sentences, if sentenced to another life term, shall serve the two sentences concurrently.

Last time I checked, the United States, Canada, and South Africa (to name prominent commonwealth jurisdictions) allow for a back-to-back life sentence. So there may be some reason behind the decision to allow such judicial discretion. Could the five judges, perhaps, have delved deeper into issues of sentencing theory and the symbolic value of multiple life terms? In an era where the role of the victim has been heightened in the criminal process the Court could have considered the symbolic importance of the convict serving different sentences for the injury suffered by the different victims. A perusal of the decisions mentioned in Muthuramalingam where sentences post life terms were given earlier show how courts were sensitive to the nature of the crime - acknowledging the communicative aspect of the sentence. It is an argument that does carry weight. But, the decision never gets past beyond the absurdity of a convict being sentenced to a sentence after his life is over. 

In India we don't have a conventional parole system as might be seen in the west. Convicts may seek a remission, but they don't become entitled to an early release after a certain period of time. They can seek a release in the middle of their prison term for a limited period, and this process is called 'furlough' and 'parole'. Furlough is a potentially longer release for it allows convicts a limited time out of prison each year. So, given that we have these rules, what about furlough then? A convict serving concurrent life terms in Delhi needs to have served three years to be entitled to some release on furlough [the Delhi rules are accessible here]. This calculation would double if sentences were imposed consecutively, making it at least six years for a double life term. Isn't that an interest that the court ought to have considered? This argument is also often used in the United States, and the Court could have benefitted sentencing theory in India by engaging with the argument. 

Unfortunately, then, while the decision is excellent in the end-result achieved, the means leave much to desire. Sentencing theory in India is possibly the least critically examined branch of the criminal law at every level. This decision only serves to reinforce that observation.