Guest Post: On Community Service as Punishment — A Proposal Not Thought Through

(This is a guest post by Ashwani Singh)

The newly proposed penal code, Bharatiya Nyaya Sanhita Bill 2023 (the 2023 Bill), introduces ‘community service’ as a new punishment for petty offences. However, the Bill does not state what qualifies as a community service, or who makes that decision. It seems that judges will enjoy a wide discretionary power to decide what community service (nature and duration of work) they want to impose, and how to monitor that sentence. The question is whether such wide judicial discretion is in the interest of criminal justice. Interestingly, and contrary to many news reports, this is not the first attempt to introduce community sentence in India. The Indian Penal Code (Amendment) Bill, 1978 sought to introduce community sentence. The Bill was passed in the Rajya Sabha but lapsed with the dissolution of the Lok Sabha in 1979 (see paras 9.12 and 10.07, 156th LC Report). I argue that such wide judicial discretion is antithetical to the success of community sentencing in India. The community service provisions in the 2023 Bill are unclear and unfair. Further, the law should prescribe the nature of work, its duration, and other details for imposing and monitoring community sentences. I must clarify that all references to community sentence in this post should be read as references to ‘community service’ only and no other form of community sentence, unless mentioned/suggested otherwise.

An Attempt at Community Sentencing from the 70s, and the Reaction from 90s

The 70s attempt was slightly more thought-through than what the current (though yet ongoing) attempt has been so far. The 1978 Bill, for instance, provided the minimum (forty) and maximum (one thousand) hours of community service (see para 2.12). It also required the judges to be sure that the person sentenced is suitable to perform the community service they are being asked to, and that the state or local authority has made proper arrangements in the work area. We can infer that the state and local authorities were expected to work the courts to ensure proper implementation and monitoring of community sentence. One may argue that these are obvious and the law need not specify these details. However, the lack of proper statutory prescription could mean that either courts will take years before they get it right or they give up before they get it right. Further, a few of the objectives of community sentence are to reduce judicial burden and the cost of punishment. If we leave too much judicial discretion, we leave too much to be argued, contested, and finalised. It creates a possibility of arbitrary judicial decision-making. That does not eventually help in achieving the two objectives mentioned earlier. There are also other concerns which I will come to in the next section.

The 156th Law Commission Report responded to the IPC (Amendment) Bill, 1978 and prospects of introducing community sentence in India. The Report noted that community service may not be practicable and ‘may not amount to punishment’. It preferred open air prison system over community sentencing. Though the Commission was not very explicit in their reservations on community sentencing, it seems they anticipated community service orders (CSOs) would take up more judicial time than what the legislature expected it would. This can be inferred from Para 2.13 of the report, which noted—referring to the clause that allowed the court to modify or revoke CSOs in some specific circumstances—that the mere-reading of the clause would confirm the difficulties in enforcing such orders. Another unsubstantiated objection was that community service may not amount to punishment. Was that a theoretical objection, or practical? Given the report only refers to the realistic possibility of implementing an effective framework of community sentencing, the Commission was probably concerned whether community service orders would be as effective as fine or imprisonment. The practical difficulties may have led the Law Commission to question if community service would even amount to punishment.

A Feeble Attempt from 2020s

Unlike the 70s attempt and the 90s report, this new attempt so far seems rather feeble. The 2023 Bill, which has been drafted after ‘extensive consultation’, does not provide any relevant details on community sentencing. The Select Committee Report on the Bill notes the absence of details as well (pg.20). Community service is an optional punishment for five offences (sections 200, 207, 224, 353, and 354), and mandatory for first-time theft offenders where value of stolen property is less than INR 5000 (section 301(2)). Section 8(5), which is supposed to prescribe terms of punishment in default of community service, seems unclear and unfair. It states that:

“Section 8: ……. (5) If the offence is punishable with fine or community service, the imprisonment which the Court imposes in default of payment of the fine or in default of community service shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine or in default of community service, shall not exceed for any term not exceeding,—

(a) two months when the amount of the fine shall not exceed five thousand rupees; and

(b) four months when the amount of the fine shall not exceed ten thousand rupees, and for any term not exceeding one year in any other case.”

There is no specific instruction on the maximum imprisonment possible on default of a community service order when community service is the only punishment imposed. Consider two hypothetical cases: first, Person A is found guilty of defamation and fined INR 9000; second, Person B is also found guilty of defamation and issued with a community service order (say, 20 hours of community work). Person A may be imprisoned with a term extending to four months but not more than that. Person B, who only had a CSO against them, could possibly be imprisoned for a year. Some may argue that judges nonetheless need to comply with section 8(4) which requires that the imprisonment in such cases ‘be of any description to which the offender might have been sentenced for the offence’. In our hypothetical examples, the maximum imprisonment that may be imposed is two years (section 354(2)). That means, if Person B is indeed imprisoned for a year, it will be within the prescription of the penal code, which as I have shown seems unfair. Could judges overcome these legislative errors? Yes, possibly but not always. There is indeed a realistic possibility of such unfair application at least in some cases. Why must we invest precious judicial time in correcting errors that should not be there in the first place? Further, it is more likely that an unfair application, like the one shown above, will go unnoticed. Unfortunately, this is the cost of a rushed criminal reform.

The 2023 Bill also does not state what happens when a person punished with community services defaults and there is no other form of punishment prescribed for the offence they were convicted. The proviso to sub-section (2) of section 301 [theft] makes for such a case, it states:

“in cases of theft where the value of the stolen property is less than five thousand rupees, and a person is convicted for the first time, shall upon return of the value of property or restoration of the stolen property, shall be punished with community service.”

Concluding, What Should the Law Prescribe?

Many foreign jurisdictions provide for community sentencing. Most prescribe or suggest the nature of work, and provide minimum and/or maximum hours of community work (see, England and Wales, the State of Victoria, New Zealand). Both England and Wales and New Zealand have an extensive legislative framework for community sentencing. They specify, for instance: first, the nature and duration of work; second, the details to be provided in a community order; third, responsibilities of supervising authorities/agencies; variation and/or cancellation of a community order; and many other details that are significant for the success of such a scheme. They also provide for a wide range of community sentences, unlike the 2023 Indian Bill which provides for community service only. If the Indian law makers genuinely intend to introduce community sentences, they first need to question the purpose of community sentences. Is it that only community work, and not any other community sentence, would meet their objective? They must also consider adopting a detailed framework for imposing, monitoring, reviewing, and modifying community sentences. Courts may be required to positively consider community sentence, where applicable, over other forms of punishment. Otherwise, and especially in the absence of a comprehensive framework for community sentence(s), judges will have fewer incentives to pass a community order.

Another concern is the social structure. How likely is that an offender, who comes from a privileged and reasonably rich family, would comply with a community sentence order? Would they prefer paying a fine, which often is not huge for petty offences, instead of doing community service? If that is indeed the case, it is likely that offenders complying with community service orders would be poor and unprivileged. It is not irrational to fear how they would possibly be treated by supervising organisations/officials/agencies and (in some cases) judges. The concerns discussed in this post, and many other objections raised against the new codes by others, also confirm how unprepared we are to bring these criminal reforms.

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: Exploring The Failure of Restorative Thought in the Indian Criminal Justice System

(This is a guest post by Hrishika Jain)

The recent execution of Akshay Singh, Mukesh Singh, Pawan Gupta and Vinay Sharma for the 2012 Delhi rape marks a significant step away from India’s 1980s’ de-facto abolitionist jurisprudence. The death penalty, having no basis in deterrence or reformation, serves no goal other than retribution. In this sense, every deployment of death as punishment, strengthens the hold of the retributive model on a justice system, and weakens any restorative and reformative pretenses. This is particularly true of the state response to the 2012 rape. The 17 year-old juvenile involved in the 2012 case was sent to a correction home for 3 years, triggering backlash against the ‘leniency’ of Juvenile Justice Act’s [‘JJ Act’] rehabilitative frameworks. Consequently, the state responded, not only by executing the 4 convicts, but also by substantively destroying the JJ Act, 2000 – it was repealed, and replaced by a new Act in 2015 which allows minors between ages 16-18 to be tried as adults for heinous crimes.

To me, this series of events poses a larger, more abstract question – about the consistent failure of non-retributive, rehabilitative thinking about justice in India. This failure manifests variously. The 2000 Act, however crucial, was one facet of non-retributive justice which was hastily abandoned. Other examples are: scaling back of the anti-death penalty jurisprudence; public support for ‘encounter’-killings of 4 alleged rape accused in Hyderabad; cases of lynchings of suspected child-kidnappers; inadequate focus on reformative schemes in prison; and a general rise of ‘tough on crime’ legislations with compromised procedures, that extend criminal penalties to pre-criminal or ‘anti-social’ conduct.

In this post, I address one potential cause for this failure. Our current criminal justice policy aims at carving out rehabilitative niches (like the JJ Act 2000, or sporadic rehabilitative programs run at the discretion of jail administrations), within a dominantly retributive framework. I argue that the failure of restorative models is guaranteed because of the sheer impossibility of a truly ‘integrated’ criminal justice system that can reconcile retribution and restoration within itself. I further argue that these efforts for integration in turn are driven by a misunderstanding of what restoration means.

Essentials of Restoration

Any inquiry into the reconcilability of retributive and restorative models first requires clarity about what a restorative model entails. Armstrong argues that the lack of consensus around the core elements and philosophical goals of restoration, renders any claim about the (im)possibility of reconciling restorative with retributive goals, suspect. Thus, according to Armstrong, the debate over reconciliation will remain inconclusive, unless the theoretical uncertainties are resolved. Without this certain agreement over the essentials of restorative models, he argues, the various policy proposals incorporating restoration in an otherwise retributive system run into one of two problems.

First, they may commodify individual practices seen in restorative models, and incorporate them within a retributive paradigm without importing its underlying philosophy. What passes as ‘restoration’ in retributive systems that centre around punishment, are often ‘alternative punishments’, and not ‘alternatives to punishment’. For example, community service under the JJ Act, in a model that does not import its underlying purpose of offenders’ reintegration and moral reform, is effectively only an alternative punishment. Similarly, juvenile special homes—though required to be places of reform, skill-development, re-education and psychosocial care—focus their budgets on security and surveillance instead. This causes tangible lack of reformative care in these supposedly reformative niches, and is in line with the suspicion of the “Otherised” criminal encouraged by retributive paradigms these homes operate in.

Alternatively, second, the policies may discard retributive frameworks, but adopt goals that stretch ‘restoration’ beyond any identity with its original philosophy. An example of this is the community-led justice systems like Nyaya Panchayats. Promoting these systems as inherently ‘restorative’ assumes a Gandhian-utopian idea of village communities, and ignores their casteist and patriarchal outcomes. Such systems may involve non-retributive responses to the offender, like in cases where Panchayat resolves rape cases by marrying the victim and the offender. However, equating such non-retributive systems to ‘restoration’ negates the essentials of restorative justice, as I argue below.

I agree with Armstrong’s thesis that policy proposals that mix-and-match restoration and retribution in India have run into the above two problems. However, Armstrong argues that these problems are a result of theoretical uncertainty over what ‘restoration’ even means, and that, given this uncertainty, the question of whether integrating restoration with retribution is possible is fundamentally inconclusive. Here, I disagree, and argue that retribution and restoration are conclusively incompatible frameworks. I further propose that this inherent incompatibility, and not academic uncertainty over meanings of restoration, is the cause of the two problems outlined above.

I believe Armstrong’s conclusion that the reconcilability cannot be determined, stems from his particular formulation of the minimal elements of restoration as that, per him, relative consensus exists on. He relies on Marshall’s understanding of restoration as “a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future”. (p. 363) It is notable that this formulation has no objective metric for assessing a successful outcome, beyond the participatory nature of the process itself. Basically, the outcome is assumed to be restorative, if the process involved collective deliberation by stakeholders. I argue that, while disagreements exist on a full definition, Armstrong’s adopted formulation does not fully encapsulate even those minimal essentials of restorative justice that relative consensus exists for. By neglecting an outcome-based element, as proposed by Walgrave (p.622), the formulation neglects the distinct philosophical goals that form the very essence of restoration - healing social bonds and renewing consensus around the violated social/legal norm (Wenzel et al., p.381, 383). Incorporating these goals in understanding the minimal elements of restoration achieves two purposes. It exposes the incompatibility of restorative and retributive practices even without exhaustively defining the former, and further demonstrates how understanding restoration devoid of its philosophical goals has led to the two problems identified above.

Consider an example where all stakeholders voluntarily resolve that the best recourse after a rape, is to wed the victim and the offender. Victim’s consent in such situations is superficial. Family honour and modesty, reduced self-worth due to victim-blaming, financial dependence, even the guilt of sending a member of the community to prison - coax, without necessarily forcing, consent. A process-based understanding of ‘restoration’ would be compelled to accept this as ‘restorative’. However, introducing goals of healing social bonds, and renewing consensus around the violated norm, changes this analysis. This resolution, while being voluntary, would not renew consensus around the norm against non-consensual sex. Instead, such resolutions would further dilute this consensus each time. This is because, when marriage is understood as resolving the harm caused by rape, it indicates that it is not the victim’s right to bodily autonomy/consent, but her unmarried status or the damage to her ‘modesty’, which makes rape immoral.

Ignoring the philosophical goals of restoration changes its essence, like in the case above. It also risks partial integration of individual restorative practices into a retributive model without importing the philosophy of healing that underlies that practice, such as with community service.

Now that I have established that incorporating an outcome-based element would resolve the problems highlighted by Armstrong and is thus desirable - I will argue why restoration, as understood with its philosophical goals, is necessarily incompatible with retribution.

Incompatibility of Retributive and Restorative Goals

Societal ideas of justice and morality are strongly informed by and inform legal institutions - with different forms of institutions encouraging different social norms, and vice versa. Retributive legal institutions, thus, feed off and feed a retributive society, resting on a clear dichotomy between both the victim and the criminal-Other, and society and the criminal-Other (p.704). This Otherisation of criminality and the criminal can be best explained through Nussbaum’s notion of ‘projective disgust’– disgust projected onto a particular class of people, in order to externalise insecurities about one’s own impurities and moral failings. Ultimately, here lies the appeal of a retributive society that Otherises criminals and paints them like monsters or deviants from (as opposed to products of) human norms. Painting the Delhi rape convicts as the Other, essentially different from the Self, allows everybody else upholding patriarchal structures that justify violence against women, to externalise their own moral failings onto specific particularly egregious acts done by the Other. The Other then becomes the monster-deviant deserving of the worst forms of retribution including the death penalty, in over-compensation for the impunity granted to the Self. Retribution, in other words, becomes a mode of projecting disgust onto the Other - externalising one’s impurities, rendering oneself morally ‘pure’ in the process. Punitive prison systems, for example, help the un-imprisoned to draw a clear moral difference between the incarcerated criminals, and their free selves. So does the death penalty.

This dominant retributive sentiment, and the baggage it comes with, is inherently incompatible with restorative institutions and the kind of society they would arise in and engender. Implicitly, forgiveness is a central moral feature of a restorative society, given its goal of healing social bonds (Wenzel et al., p.377). Theoretically, forgiveness and punishment may perhaps co-exist as compatible notions of justice. However, reconciling these two in a society already deeply invested in retribution and drawing clear boundaries between society and the criminal-Other, will create distortions. Forgiveness is necessarily tied to a wholly different system of social mores – mores that recognise and seek to heal the offenders’ own victimisation at the hands of, inter alia, psychological, socio-economic, and life-history factors, while encouraging the offender to take moral responsibility for his conduct (p.7). This necessitates rejection of the idea of the criminal as an ‘Other’ – instead, it would understand crime as the combined product of a broken society, and individual agency operating within it. The development of these fundamentally different social mores, that is required for any restorative practice to succeed, would remain suppressed under the stronger tendencies to Otherise of the better-established retributive frameworks that restorative practices are embedded in.

This necessary link between retribution and the idea of the criminal-Other also risks creating some distortive consequences when restorative and retributive systems are integrated. Imagine an integrated model that allows victims a choice between penal and restorative remedies. Given the general tendency to construct the criminal as an ‘Other’, what would determine the victim’s choice between restoration or retribution in an integrated model? Wenzel et al. argue that social-psychological factors like the victim’s and the community’s ability to construct a sense of identity with the offender, play an important role in choice of remedy (p.383). This ability to identify with the offender will be particularly critical where restorative options are integrated within a retributive society. This is because, whether an offender faces retributive or restorative remedies, will often be determined by whether the general Otherisation that all offenders face in retributive systems is negated by other factors that allow a sense of identity with the offender. This was reflected during the #MeToo movement in college campuses, where social reactions ranged from ostracisation to forgiveness, and seemed to partly depend on the perception of belongingness of the offender in a largely elite, upper class/caste community. This fallout of integrating retributive and restorative justice is often unaccounted for - the co-existence of the two senses of justice is likely to exacerbate the current discriminatory penal outcomes. While a sympathisable-offender may be humanised and reintegrated, the punitive tendencies will continue to disproportionately further Otherise the offender with whom the victim/the community cannot already identify with. The latter will disproportionately be persons who are already-victimised by structural prejudice - widening the current class/caste/race gap in our criminal justice institutions. This is because the non-marginalised victim is more likely to be able to access justice effectively, as was observed in the #MeToo movement. This means, overwhelmingly, it will be the non-marginalised offenders benefiting from the sense of identity with the victim that allows restoration to succeed – while marginalised offenders are more likely to face retributive remedies. For restorative practices to not exacerbate inequities of the penal system, they must be embedded in a restorative framework that generally allows space for recognition of the victimhood of offenders and their identity with the larger society, regardless of socio-economic factors.

There is another concern with such an integrative paradigm. While victim satisfaction surveys indicate positive results for restorative options, they leave another question unanswered - whether restorative practices installed in retributive societies will satisfy the society. The purpose of criminal law is not only to remedy the harm to the victim, but also to reinstate society’s sense of security. Thus, arguably, state-reaction to crimes must also ensure that the criminal justice system, in general, nurtures society’s sense of security. This is not to say that judges validly account for public opinion during sentencing in specific instances. Rather, the criminal justice machinery as a whole must inspire faith in the community – and thus, has to match the community’s notion of justice. Why is it important that the community feels secure, and has faith in the criminal justice system? Where legal system’s attitude to crime is seen as inadequate, crime can lead to more violent crime as a mode of privately dispensing justice. Further, a society that is insecure about its safety, is also likely to generate unsafe conditions for its Otherised/marginalised sub-sections. For example, the discourse of ‘security’ around terrorism, has been politically used to engender insecurity – this, in turn, has led to a rise in tolerance for Islamophobia and violence against Muslims. None of this is to say that retributive societal norms justify a retributive legal system. However, given the importance of criminal justice systems nurturing this sense of security, restorative practices will remain ineffective, without changing surrounding retributive mores.

Thus, finally, the question is whether the shift from punishment to healing as our idea of justice, first need us to be a fundamentally different society? I answer this in the affirmative. Naturally, however, this is a chicken-and-egg question – should reform in legal institutions drive the change in social mores, or the other way around? This is a common dilemma in questions about law and society and the way they influence each other. To me, the most pragmatic answer is that reform in both must go hand-in-hand.

Conclusion

The question remains, what does this inherent incompatibility between restorative and retributive justice mean? It certainly does not mean that we give up on reform, in face of the retributive mores that pervade our society and law. What this incompatibility does mean, however, is that all facets of our interaction with crime needs to forego retribution as even one aspect of their goals, and focus on reform, rehabilitation, and restoration. These facets range from social education about crime, to prevention policies, to policing institutions, to criminal courts, and finally, post-conviction legal responses.

I will begin with post-conviction legal responses. While restorative models will incorporate alternatives to incarceration, they are not, I believe, theoretically inconsistent with the institution of prison. Practically, however, things change. Prisons in India are governed by the arcane Prisons Act, 1894 and respective state Prison Manuals. The 1894 Act contains no provisions for mandatory rehabilitative/reformative programmes – making prisons tools for inflicting punishment, not facilitating reform. Similarly, there are no uniform provisions made that encourage linkages with the community outside – despite such linkages being integral to restoration by healing social bonds. In the absence of provisions in the 1894 Act, attempts towards offenders’ restoration are isolated and discretionary – such as the gala bhet initiative started by Maharashtra that allows prisoners to meet their families without a dividing barrier. This is again a mere commodification of a restorative-like practice, in a prison system that is otherwise harshly punitive. The only way to systematically transform prisons into institutions of development, reform, and restoration, not punishment, is by shifting to open prisons, allowing prisoners to maintain their social and economic ties with the least hindrance on their liberty. Further, any idea of prisons as restorative spaces must also adequately provide post-release counselling and aid – check-ins to help the offender integrate back into society, financial assistance, career-counselling to enable the offender to economically support himself and forge a new life.

However, it is clear that any shift towards restorative justice in post-conviction legal responses will suffer from the problems pointed out in this paper, unless there is a parallel shift in all other spheres of criminal discourse and regulation. For example, media-reporting on crimes is sensationalised and deeply emotive – often evoking the imagery of ‘monsters’ and ‘evil’ while talking about crime and criminals. Negating the Otherisation that fuels retribution will necessitate media sensitivity guidelines and suitable changes to graduate curriculum in media courses – given the critical role of mass media in social education about crime. Further, media-reporting that attempts to humanise the perpetrator, highlighting his own victimhood, his life before the crime, while still not simply denying his agency in his conduct - will actively help in a shift towards a restorative society. Similarly, incorporating sociological understandings of the causes of crime and criminality, in police/judge manuals and training will initiate a shift towards kinder policing/judicial institutions.

The hope is that we move away from the isolated islands of restoration within retributive paradigms that characterise current criminal justice reform. Instead, we must aim for a holistically restorative system that detaches itself from retributive goals, and shifts to frameworks based on healing and forgiveness.

There are No Right Answers: The Supreme Court and the Purity / Mixture Debate under the NDPS Act

On April 22, 2020, a Three Justices' Bench of the Supreme Court decided a reference made to it in Hira Singh [Crl. Appeal No. 722 of 2017, decided on 22.04.2020]. The primary issue before the Court was the correctness an earlier decision by a Two Justices' Bench of the Supreme Court, E. Micheal Raj v. Intelligence Officer [(2008) 5 SCC 161, "E. Micheal Raj"]. There, it had been held that determining whether one was carrying "small" or "commercial" quantity of a drug depended exclusively upon the quantity of the "actual" or "pure" drug content, as opposed to the total quantity of the mixture that was seized. In Hira Singh, the Three Justices' have unanimously held that the view taken in E. Micheal Raj was incorrect, and that the determination of quantities for the purposes of the Narcotic Drugs & Psychotropic Substances Act 1985 ["NDPS"] depends upon the total quantity of the item seized. 

This post explains the issues present in this debate about how to judge a "mixture" of drugs under the NDPS Act. As the title suggests, I argue that the approaches taken in E. Micheal Raj and Hira Singh are both problematic for the administration of the law, for ultimately, the problem is an arbitrariness inherent in the NDPS Act itself. Even so, I conclude by critiquing the decision in Hira Singh for its surprisingly unreasoned, uncritical, and unsympathetic acceptance of an alternative which places the lives of many persons under the sceptre of harsh mandatory sentences.   

The Quantification Approach and Effects of Punishment

The NDPS Act is one of the most stringent laws present in the statute book of India today. Birthed as a result of the "War on Drugs" that captured the international imagination during the 1980s, thanks in no small part to the U.S.A, the NDPS Act sponsored a highly punitive approach towards drug crime. The law sponsored high mandatory minimum sentences, even for possession based crimes, took away the possibility of probation for first-time offenders, made getting bail extremely hard, and explicitly reversed the burden of proof. 

As the global community reckoned with the failure of punitive approaches as a sustainable solution for drug crimes, with the heavy punishments clearly not serving as effective deterrents, the world began to tone down the harshness of these laws. The 2001 amendments to the NDPS were the result of this global trend. They brought in a new scheme for administering the law by introducing a classification of "small" and "commercial" quantities, and varying punishments on the quantity of the drugs involved (An old notification detailing such quantities is here). The amendments also recognised that a one-size-fits-all approach that merely criminalised all drug related issues was not the answer, and brought forth a new process to recognise "Addicts" and treat them differently in the law (how successful this has been is a different issue altogether).

E. Micheal Raj and the Problems of a Purity-Based Approach  

This quantification regime was the focus of the decision in E. Micheal Raj, which involved quantities of heroin seized from an accused person. Lab testing showed that the heroin content of the mixture recovered during investigation fell in the "small quantity" category, while the weight of the entire mixture fell in the "commercial quantity" bracket. This mixture was not of two different drugs but of a drug and a neutral substance. The Supreme Court reversed the finding of the High Court, and held that the accused was only liable to be punished for holding a "small quantity" of the drug in question. This emphasis on the purity of drug content was, according to the Court, a direct consequence of the 2001 amendments and the "rationalising" of the punishment system that they sought to achieve.

The problems of such an approach which focuses on the "actual" drug content in a mixture is that it can defeat the oppressive purposes that the NDPS Act was enacted for in the first place, and which the legislature has not explicitly disavowed as yet. As the Court in Hira Singh has emphasised (more on that in the next section), an approach solely committed to identifying the actual drug content will end up being too lenient on suppliers, especially if the street practices entail that certain narcotics are only ever going to be sold as mixtures with small drug content. 

Hira Singh's return to a Total Weight Approach and its Problems

The opinion in Hira Singh suggests that there were several reasons to disagree with E. Micheal Raj — the Court disagreed with how the legislative intent was inferred and also suggested that this aspect of the opinion in E. Micheal Raj was entirely obiter and based on a misapplication of the law and facts. Having done so, the Court in Hira Singh unanimously and unequivocally rejected the actual drug content approach of E. Micheal Raj and approved of an approach that looked at the total weight of the seized items. This approach, the Court held, was in consonance with the legislative intent behind the NDPS Act. 

The reason was simple: An approach focused entirely upon actual drug content did not sufficiently address local practices of how the drug trade worked. Thus, we are told not only about how some kinds of drugs are more popularly sold as mixtures, but also about how some mixtures are in fact much more harmful and addictive than the pure drug itself. The court uses the example of "smack", a popular drug made by combining heroin with other substances such as chalk powder and zinc. An approach concerned with the actual drug content would allow for misplaced leniency in the system as the dealers of smack and other such deadly substances would not get a sufficiently stiff jail term for their conduct.

This criticism of the actual drug content approach is a fair one. But, at the same time, focusing on the total weight of a mixture brings its own problems which the Court all too conveniently ignores. This is the problem of manifest arbitrariness that, if anything, is now amplified in how the NDPS structure will operate. One side of this arbitrariness problem was aptly highlighted in Hira Singh, which I will call the problem of misplaced severity. Thus, the law now allows for the person who carries 4 grams of pure heroin to be punished for carrying a "small quantity" of narcotics, for a person carrying 249 grams of heroin to be punished in the "intermediate" category, while a person carrying a mixture weighing 251 grams, with 249 grams of neutral substance and 2 grams of heroin, will be punished for carrying a "commercial quantity" of heroin. 

This problem of misplaced severity has a twin — the problem of misplaced leniency — which can be understood in context of the American experience of punishing the trading of the drug LSD. The U.S. Supreme Court in Chapman v. United States had such an issue, where appellants were convicted and sentenced to a mandatory ten-year term for distributing LSD weighing around 1 gram. The appellants argued that they had sold blotter paper which, while weighing around 1 gram as a whole, had a much lower LSD content and would avoid the mandatory prison term. The Court held in favour of a total weight approach and upheld the mandatory sentences. 

Chapman was cited approvingly by the counsel for Union of India in Hira Singh. Sadly though, what was not mentioned before the Court was the problems that Chapman created for the law (succinctly explained in this piece). The problem was simple: As a normal dose of pure LSD only weighed about 0.05 milligrams, the total weight approach of Chapman allowed a person to escape the mandatory sentence even if she engaged in thousands of trades for pure LSD. But at the same time, it gave the mandatory ten-year sentence to those who made even one trade for LSD through the medium of blotter paper. Focusing on the total weight of a mixture, then, also brought with it misplaced leniency for drug offenders. 

Hira Singh — A Critique

These are serious problems and potentially invite a constitutional challenge to the sentencing regime under the NDPS Act — the kinds of issues, you would think, are what a Three Justices' Bench of the Supreme Court ought to be addressing. It is excruciating, then, to see the Court in Hira Singh totally avoid any discussion about the arbitrariness issue and offer its uncritical affirmation to the merits of adopting a total weight approach in the NDPS Act context. 

And here, perhaps a word must also be said about the unreasoned manner in which the Court reached at its final destination of upholding the total weight approach. Thus, as mentioned above, the Court notes the potential deadliness of mixtures such as smack and uses this to justify a rejection of the actual drug content approach [Paragraph 8.3]. But what is the basis for these observations? No reports of any government department or any international body are cited. Surely, details of the drug trade cannot be be assumed as matters of which judicial notice can be taken and thus do not require any material in support. Keen googling skills suggest that rather than government sources, the opinion has possibly relied upon a rather unaccredited source for these observations which, if true, would only serve to delegitimise the strength of these observations. 

And then there is Paragraph 8.5, which justifies adopting a total weight approach by (i) referring to the problem of "drug addicts" and in the same sentence refers to the devious workings of the "mafia" internationally, and; (ii) claiming that the "use of drugs by the young people in India has increased" and that "drugs are being used for weakening of the nation", to finally conclude that "the guilty must be in and the innocent must be out". It is nothing short of remarkable that while Hira Singh held the judgment in E. Micheal Raj as having wrongly read the legislative intent of the NDPS Act, it suggests drug addiction is a problem, which is a direct negation of the intent behind the 2001 amendments. If this was not enough, then a series of stereotypes and bald assertions about immorality and national strength are offered to serve as legal justifications. Thus, what are, at best, pleas by prosecutors to deny bail and, at worst, coffee-table rants by senior citizens, have been given the exalted status of legal reasons justifying why a harshly penal regime must be read in a broad, expansive, and potentially arbitrary manner. 

Conclusion

Hira Singh has taken the law on how to assess the quantities of drugs seized in an NDPS case to the position before the intervention made in E. Micheal Raj. In no uncertain terms, the Supreme Court has held that the total value of the seized items will be considered to decide whether or not the case was one of "small" or "commercial" quantities. But while the legal position has merely reverted to what it was a decade ago, the manner in which the Court has arrived at this conclusion is nothing short of extraordinary. The Court failed to address the one serious issue it was presented with — if the total weight approach rendered the NDPS sentencing regime arbitrary — and instead offered a litany of unreasoned assertions to justify its conclusions. After reading Hira Singh, I was left thinking that the Court appeared to have forgotten that underneath all this rhetoric of action and bluster in the context of drug laws, there are actual lives which are seriously affected by the interpretive choices that are being made. It is this lack of compassion that marked Hira Singh as a truly odious opinion.  

Amendments to the Prevention of Corruption Act: Corporate Criminality

The previous post discussed amendments to Section 8 of the Prevention of Corruption Act, 1988 [PC Act], which will now punish giving bribes as a standalone offence rather than a case of abetting bribe taking by the public servant. The post did not discuss one proviso that the amended Section 8(1) carries: providing that when an offence under Section 8 is committed by a "commercial organisation", it is punishable by fines. This is my gateway to discuss the new regime on corporate criminal liability that the PC Act will introduce, the fulcrum of which is amended Sections 9 and 10. This second post in the series focuses on what this new regime is, and its potential positives and pitfalls. 

Prosecuting Corporate Corruption: The New Text 

Before moving to the text, let's take a step back and cover some basics on the criminal liability of commercial organisations [called "corporation" hereafter]. Corporations are purely legal creatures, so to hold them criminally responsible we need to use the conduct and mental state of some humans. So far so good. But which humans are to be considered? Some jurisdictions, like the U.K., recognise a narrow basis for affixing liability to corporations. Commonly called the "alter-ego" or "directing-mind" theory, under this rule only the acts of humans in management roles or other decision-making capacities can be the basis for imputing liability to corporations. Contrary to this, other jurisdictions - most prominently the United States, adopt a much broader rule where the conduct of any employee can be imputed to a corporation, as long as this resulted in some benefit to the corporate entity.

When the Indian Supreme Court recognised criminal liability for corporations it chose to follow the U.K. model and adopted a narrow basis of liability. Because of this, corporate prosecutions in India needed allegations against management-level persons for the case against a corporation to stick. In what is a seismic shift, the legislature has marked a break away from this position for corruption offences in the recent amendments. India will now follow a model more akin to the U.S., potentially making it much easier to prosecute corporations. Let's turn to the text:

Section 9. (1) Where an offence under this Act has been committed by a commercial organisation, such organisation shall be punishable with fine, if any person associated with such commercial organisations gives or promises to give any undue advantage to a public servant intending -  

(a) to obtain or retain business for such commercial organisation; or 

(b) to obtain or retain an advantage in the conduct of business for such commercial organisation: 

Provided that it shall be a defence for the commercial organisation to prove that it had in place adequate procedures in compliance of such guidelines as may be prescribed to prevent persons associated with it from undertaking such conduct [to be created under Section 9(5) read with Section 29A].

Some further points of interest:

• While "an offence under this Act" indicates this regime applies to all offences under the PC Act, Section 9(2) clarifies that it is unnecessary for the human to be prosecuted under Section 8 for the Section 9(1) offence to stick against a corporation. 

• Section 9(3) explains various terms, such as "commercial organisation" [Section 9(3)(a)], "business" [Section 9(3)(b)], and "person associated ..." [Section 9(3)(c)].

• A person is "associated" with the corporation if she performs "services for on or behalf" of the corporation, which shall be determined by looking at all the relevant facts and not merely the nature of relationship between the two [Section 9(3)(c), Explanation 2]. 

• The "person associated" need not be an employee, and can equally be an "agent or subsidiary" of the corporation [Section 9(3)(c), Explanation 1]. 

• Lastly, if the "person associated" is an employee, it is presumed that she performed "services for or on behalf of" the corporation [Section 9(3)(c), Explanation 3].    

Before moving on, note that Section 9 is not the only relevant provision in context of corporate crime. Section 10 goes after management level officers after Section 9 cases are proved in court:

Section 10. Where an offence under Section 9 is committed by a commercial organisation, and such offence is proved in the court to have been committed with the consent or connivance of any director, manager, secretary or other officer ... such [person] shall be guilty of the offence and shall be liable to be proceeded against and shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years.

The Promises and Pitfalls of Reform
A directing-mind test can prove too limiting in a corporate context where decision-making authority is increasingly decentralised. Not only this, it also offers an easy escape hatch to avoid corporate liability by concentrating focus on a select corps of officers. Recognising both of these problems, many jurisdictions - even the U.K. - moved away from the rule in the corruption context. The 2010 U.K. Bribery Act carries a "Failure to Prevent Bribery" offence under Section 7, which seems to have inspired our legislature the most. More recently, Argentina and Malaysia both took radical steps to move away from a directing-mind approach for corruption cases, to impute corporate liability based on acts of any employee. In finally shedding the alter-ego in Section 9, the Indian statutory regime better reflects the realities of the modern corporate context and offers a potentially more robust tool to prevent and prosecute corporate corruption in the country.

The shift to a broader basis of liability carries a downside: law enforcement agencies get extremely powerful tools to regulate corporate conduct which can be misused. By making offences cognizable and empowering police to arrest "persons associated" with corporations, the problem becomes more stark. Naturally, then, we need some corresponding protections for corporations to protect against abuse and ensure a degree of fairness in legal enforcement. The global norm seems to be having protections for corporations that install adequate compliance procedures. The U.K., Argentinian, and Malaysian examples mentioned above all have such provisions. The new Indian amendments also provide corporations this kind of protection in the proviso to Section 9(1), as extracted above.

But there is a catch. Having a defence at a criminal trial is not a protection against prosecution, and the difference can be huge in the corporate context. Installing adequate compliance procedures is a cost, and the bigger the corporation, the higher that cost is bound to be. For the corporation to make these expenditures, it needs incentives to do so. Since potential prosecutions for management level personnel under Section 10 have been pegged to the corporate crime under Section 9, there is certainly some incentive to install adequate compliance regimes. But is that enough? I would argue that it isn't. Effectively, the law is telling corporations to spend the money, but that more money will still have to be spent in facing a criminal trial for years, where eventually it can plead innocence by pointing to compliance procedures.

Nobody, especially corporations whose reputation carries considerable financial value, want to go to court and have their name dragged through mud. Which is why globally, it is more common for the legal system to reward those corporations with adequate compliance regimes by helping them avoid prosecutions altogether. They do not get a get-out-of-jail-free card, mind you, and still end up having to cooperate with investigators, paying fines, and being monitored for a few years afterwards under Deferred Prosecution or Non Prosecution Agreements. In the United States, the Department of Justice has been issuing "Principles of Federal Prosecution for Business Organizations" that implement this regime. Similarly, in the U.K., the Crown Prosecution Service is instructed to not prosecute cases where it finds corporations met the Statutory Guidance. Within India itself, this idea of avoiding prosecutions exists in context of the Information Technology Act, 2000, which triggers legal action only if online platforms do not pull down objectionable content within 36 hours after a takedown notice or court order. Since the statutory rules on compliance under the PC Act are yet to be drafted, I expect the powerful corporate lobby in India will try and push for a regime which avoids prosecution altogether. In the event that comes to pass, it will be fascinating to see what follows: will India start seeing innovations of the kinds seen in the U.S., or will corporations be getting a clean chit. 

The Big Lapse on Sentencing Reform

At the end of the day, what matters most is the eventual punishment. What happens to corporations if they are found guilty of paying bribes? Do they fear hefty penalties, or a situation like the infamous case of Arthur Andersen in the United States - the accounting firm that went bust facing criminal charges? Not really. The new amendments to the PC Act leave untouched the sentencing formula of the earlier system, where penal provisions only provide for a "fine" to be imposed on corporations. This is not statutorily linked to wrongful advantage gained by the paying bribes, nor is there any clear authority to revoke corporate licenses or impose curbs on business activities if the corporation is found guilty (such powers seem to exist for charitable organisations). Sentencing will remain entirely dependent on the judges' discretion. From my limited experience of seeing corruption trials with corporate defendants, I saw three scenarios most commonly play out: judges either levied no separate fine on corporations, imposed the same fine as the human defendant, or simply doubled the amount of fines imposed. In all of these, often no explanation was offered for how the amounts were fixed. 

This is where the tendency to ape foreign legislation can become problematic. Yes, Section 7 of the U.K. Bribery Act also only stipulates a fine to be imposed. But the U.K. has an entirely different sentencing regime to that of India. Not only are courts mandated to explain their reasons for awarding the sentence, but the Sentencing Council issues Guidelines for courts to follow in figuring out how to arrive at that sentence as well. In 2014, the Council published Guidelines for Fraud, Bribery and Money Laundering Offences that requires courts to consider ten different factors to fix a sentence for Section 7 offences, in which removing all gains from corruption is almost a pre-requisite. 

By retaining the old system, the amendments have seriously missed out an opportunity of ushering in much-needed reforms. It means that the significant deterrent and regulatory force that anti-corruption legislation carries ends up lost on other bad actors in the field, undermining one of the main reasons for creating corporate criminal liability in the first place. Thus, despite having a broader scope for corporate liability, it might remain worryingly common that corporations brush off corruption charges and continue to engage in illegal acts.

Conclusions and Next Post

The PC Act amendments have ushered in a new regime for holding corporations criminally liable for engaging in corruption offences, one which theoretically renders it easier to prosecute corporations than before. Having moved to this legal theory in the corruption context, one wonders whether the Indian legal system will witness an en masse shift abandoning the old alter-ego theory altogether. As discussed in the post, once the amendments come into force, there is probably going to be immense lobbying as corporates try to create rules that gives them more benefits than merely a legal defence at trial after making costly outlays for installing a compliance regime to check bribery. In the long run, it might also result in disrupting how India regulators prosecute corporate bribery, encouraging more conversations between regulators and corporate defendants to keep a case away from court. Having now discussed two of the major new avenues explored by the PC Act, the next post returns to more familiar terrain for the law and discusses changes made by the 2018 amendments to prosecuting public servants for corruption.

Guest Post - Same Day Sentencing in Death Penalty Jurisprudence

(I am happy to host this Guest Post by Ms Nivedita Mukhija, an advocate practising in New Delhi)

Section 235 of the Code of Criminal Procedure [CrPC] states as follows:

235. Judgment of acquittal or conviction.(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.

This provision is an explicit recognition of the idea that the relevant considerations for sentencing are different from that for conviction/acquittal, and thus, sentencing should be treated as a separate phase in a trial. It has assumed considerable significance in death penalty jurisprudence, where lower courts often downplay the importance of hearing, in detail, all aggravating and mitigating factors awarding the death penalty, erroneously assuming that these factors have already been sketched out during the trial. Bachan Singh v. State of Punjab [(1980) 2 SCC 684] called Section 235(2) as something enabling a “bifurcated trial”, wherein the accused submits evidence possibly without bearing on the crime, but which may still be linked to the “special reasons” to be provided while awarding a death penalty as per Section 354(3) of the CrPC. 

Conflicting Lines of Judicial Opinion

The question, however, is whether a separate phase implies that a different date be set for hearing on sentencing, or, whether sentencing can be conducted right after the determination of guilt has been concluded. There seem to be two lines of cases emanating from the Supreme Court. One states that Section 235(2) cannot be done justice to unless a different date is set, to afford ample time for the accused to prepare a case on sentencing. The second holds that Section 235(2) merely implies that the accused must be effectively heard, which does not require setting a different date for hearing. I argue here that sentencing should always be deferred to a later date in death penalty cases to grant an effective hearing to the accused. I also contend that if this has not been done, the appellate court should remand the case, as a fact-intensive exercise like sentencing should be done by a court of first instance, which also rightly extends the right to appeal against that decision to an accused. While doing so, the appellate court must ensure that the case is disposed off in a timely manner by the lower court to maintain judicial efficacy and reduce the suffering of the accused through further delays.

Set One: Mandatory Separation of Trial and Sentencing Phases

With respect to the first line of cases, the most prominent example is perhaps Allauddin Mian and Ors. v. State of Bihar [(1989) 3 SCC 5], where three judges of the Supreme Court recognised the importance of giving the accused an effective opportunity of placing all relevant mitigating factors, antecedents and background information, and other extenuating factors on record. The bench held in context of Section 235(2) that as “… a general rule the trial courts should after recording the conviction adjourn the matter to a future date ...”. It was believed that the accused must be allowed to absorb and overcome the shock of conviction before being heard on sentence. Since this was not done in that case, the Supreme Court went on to convert the death sentence into life imprisonment, finding insufficient material on sentencing to warrant awarding the death penalty. This decision was followed in Malkiat Singh v. State of Punjab [(1991) 4 SCC 341], where another three-judge bench noted that usually a failure to give sufficient time to adduce evidence on sentencing would lead to remanding the case. However, in that case, the Court held that given the long period of incarceration (it had now been six years since the accused was first convicted), it was more expedient to convert the death penalty into life imprisonment.

Set Two: Same Day Sentencing

The second line of cases is concerned more with hearing the accused sufficiently on sentence, and holds this can be done on the same day as well. On the point of remanding the case, these cases suggest that sentencing hearings need not involve remands. These views take their root in yet-another three judge bench decision in Dagdu v. State of Maharashtra [(1977) 3 SCC 68], wherein the Court held that a failure to be heard on sentence would not automatically entail a remand, and the appellate court could hear the accused on sentence at the later stage as well. The Court called remand the exception, in the interests of judicial efficacy.

A slew of recent decisions has come in support of same-day sentencing, to which I now return. In 2016, yet another three judge bench held in B. A. Umesh v. State of Karnataka [2016 (9) SCALE 600] that there was no mandate under Section 235(2) to fix a separate date for hearing on sentence, and the Court was required to determine whether an effective hearing was granted after looking the facts and circumstances of a given case instead. Merely because no separate date was fixed was no ground to allow the review petition, the Court held in the death penalty matter. The Court also noted that the parties had not objected to not being given a separate date of hearing in the lower courts, and since then several courts including the Supreme Court had heard the parties on the question of sentence in sufficient detail. This was reiterated by three judges in Vasanta Sampath Dupare v. State of Maharashtra [2017 (5) SCALE 724]. 

Neither B. A. Umesh nor Vasanta Sampath Dupare explain the inconsistencies arising by comparing their logic with the Allauddin Mian line of cases. Instead, they simply rely on Dagdu. Recently, in Mukesh and Ors. v. State of NCT of Delhi and Ors. [2017 (3) SCALE 356], the Court over-simplified the conundrum by stating that these decisions reflect two modes that can be afforded to the accused to present a case: either to remand it before the High Court, or be heard on sentence before the Supreme Court itself [the Court believed, in that case, that “regard being had to the nature of the case”, the second mode was preferable].

Making the Case for 'Bifurcation of Trial' 

It is submitted that this second line of decisions disregards the ‘bifurcation-of-trial’ approach adopted by Bachan Singh. These decisions do not explain why the exercise of sentencing, which is governed by different considerations, and may involve new evidence and witnesses requiring different preparation altogether, should be undertaken on the same day. While many of these decisions rely on rhetoric of ensuring an accused has been granted ‘effective hearing’, the Courts must also recognise that adequate time to prepare on a different limb of a trial is a pre-requisite to effective hearing.

The recent decisions I highlighted are also problematic on another level: they imply that the failure of the lower court to hear effectively on sentencing is remedied when an appellate court hears the same. However, our judicial system clarifies that the lower Courts are the courts of evidence with such exercises being exceptional during appellate hearings. Thus, original evidence must as per rule first go through the lower Courts, which are better equipped to deal with the same. Further, under Article 131 and the Supreme Court Rules, 2013, original jurisdiction is only limited to civil suits between the union and the states, or inter se states. For a factually-intensive exercise such as sentencing, often requiring cross-examination, the Supreme Court is not the ideal place for a first (and often final) determination. (On this, see, http://lawandotherthings.com/2017/05/death-penalty-sentencing-the-supreme-court-as-the-first-and-final-arbiter-of-facts/#_ftnref7).

Another important reason to question the second approach is that an automatic bypass in such cases would deny an accused a right to appeal against the ruling in the sentencing stage before the Supreme Court (see http://indianexpress.com/article/opinion/columns/death-penalty-in-india-supreme-court-cases-law-mitigating-evidence-4551607/). This leads to there being no chance of re-appreciation of evidence on sentencing in case of an error in judicial reasoning. In a death penalty case, where the stakes involved in the sentencing process are highest, we must ensure that there is the protective layer of multiple levels of Courts having the option of hearing on sentence.

Conclusions and Some Ways Out of the Bind

Since B. A. Umesh states that same day sentencing was not an issue there because it was not raised before lower courts, defence lawyers should ensure that the need for a separate date for sentencing is adequately highlighted before the lower court itself. Defence lawyers can perhaps also use the caveat given in Malkiat Singh, and argue that prima facie errors in sentencing coupled with lengthy delay for someone on death row should result in converting those cases to life imprisonment, instead of conducting a mini-trial for sentencing yet again. The Supreme Court's current treatment of 'delay' as a factor requires more nuance but. Consider Yakub Abdul Razak Memon v. State of Maharashtra [(2013) 13 SCC 1], where the Court concluded that sentencing hearings must involve remand unless it is likely to cause delay. But, I ask, given the pervading backlog in case-disposal, when would remand not involve some delay? Moreover, the lack of nuance uses delay to take away a right of appeal at the cost of judicial efficacy. Bland arguments suggest delay only lengthens the suffering of those on death row. Of course delay is bad, but it does not entail cutting corners to arrive at the end. This trade-off is unconscionable. Thus, I conclude with suggesting it is time that the Supreme Court clarifies the inconsistency between the two lines of cases by stating the true scope and import of Section 235(2), and while doing so pays heed to the adverse effects of not remanding a case in a case where the judicial power to take a life is at stake.

Supreme Court Affirms Death Sentence for December 16 Incident - Some Thoughts

The Supreme Court yesterday affirmed the death sentence awarded by the Trial Court, and confirmed by the High Court, in the case resulting out of the gang-rape incident that occurred in New Delhi on December 16, 2012. The decision was lapped up by raucous applause we are told, as "justice had been done". Seeing the circus that followed on national television led to some thinking and this post follows. The comments are frankly unoriginal, and are merely confirming what many of us know and understand. 

Criminal Law in the Age of Consumerism

Perhaps history will remember the first decades of the 21st century as the apogee of the age of consumerism and service-oriented thinking. Consumerist ideology has affected all facets of life, most notably government and governance. Good governance manuals now emphasise that this is a service being offered to citizens, and citizens have grievance redressal mechanisms galore akin to making complaints at a shopping mall. 

How has this affected the traditional understanding of criminal law? Significantly. There are books (David Garland's The Culture of Control an excellent one) which discuss this phenomenon. One thing that the present incident puts in the spotlight is how the consumerist ideology has brought victims in the spotlight. Criminal law classes begin by telling us how here the state is the victim - which is why most cases are prosecuted by state agencies. Crime is about harm to society, and the victim was not really given much importance. Slowly, though, this changed. If security is a service offered by the state, of which the criminal law was a facet, then it made sense to accede to victims demands for greater inclusion in the decision-making process. This would increase satisfaction with the system. This, like most other things, accelerated drastically with 24 hour television cycles. It became obvious that crime sells, and so maniacal reporting with amazing graphic (more on that later), little insight, and opinion polls through SMS came here to stay. Obviously, all this is class-specific, so the security concerns of the rich and middle class naturally get more air-time and attention than those affecting the poor. 

The legislative changes are there to see - India has allowed for victims to appeal against acquittals for some time now. This was unimaginable around thirty years ago. The present incident and the media coverage surrounding it just shows how far we've come down the road. Here, there is little else but the victim's perspective that is commented upon everywhere. 

Justice seems to have become rather One-Sided

A very wise lawyer once told me that our statutes created courts of law and not courts of justice, and so I should not lament over seemingly bad decisions. But what really is justice? If I was to take a shot at it, justice best serves as an adjective, describing decisions by looking at the means and ends both. A just decision is not only one arrived at in terms with proper processes of law, but also one that takes into account the rights and interests of every party involved. Given how scholars since Aristotle have been taking a shot at this, I'm pretty certain that my crude understanding is rather inadequate. Still, the idea of justice being something wholesome is something that can be found across philosophers, and can serve as one of the markers.

That wholesomeness seems to have been entirely abandoned in the present case. Nearly every news outlet ran pieces titled Justice for Nirbhaya. These ran with images of the adult perpetrators being crossed out with Hanged (eerily similar to the montage in the first Death Race film which was based on a system of lawlessness). Possible arguments advanced by the defence, on both conviction and sentencing, were brushed aside summarily. The bloodlust was chilling, but hardly novel. In all such cases, wherever there is extensive media coverage and sympathy for the victim, it becomes anathema to raise arguments supporting the rights of an accused person. This is mots extreme in terrorism trials, where persons are routinely denied fundamental human rights but those issues are airbrushed because of the threats to national security. 

In this regard, the Supreme Court deserves to be lauded for the effort it took to hear arguments on sentencing. The Court accepted specific affidavits addressing mitigation factors to consider whether the case fell within the rarest of rare standard (something which was not done in either of the courts below).

Extreme Cases and Lessons to Learn

Make no mistake, this case was extreme in terms of its brutality and violence. Extreme cases often lead to extreme reactions, so it is said, and therefore must not be used as markers to gauge a system. There is much merit in this. It is also valid to argue that extreme cases bring out latent tendencies and show exactly what each of us expects from the criminal justice system. Reactions to the present case leave me with little doubt that debates on abolishing the death sentence in India are a tad redundant. This is saddening, for there is nothing as arbitrary as the infliction of the death sentence in India. Perhaps more disturbing is the perception that those arguing for the defence are somehow bogeymen, delaying the inevitable. Such a view distorts the crucial role that the defence plays in ensuring that justice is not only done but in fact seen to be done. Alas, it would seem that the idea of justice, itself, may no longer be the same.