The article is an edited excerpt from the Judgment of Justice Krishna Iyer.
Modern penology regards crime and criminal as equally material when the right sentence has to be picked out. It turns the focus not only on the crime, but also on the criminal and seeks to personalise the punishment so that the reformist component is as much operative as the deterrent element. It is necessary for this purpose that facts of a social and personal nature, sometimes altogether irrelevant if not injurious, at the stage of fixing the guilt, may have to be brought to the notice of the court when the actual sentence is determined.
Factors in Determining a Proper Sentence
A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances extenuating or aggravating-of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. These factors have to be taken into account by the Court in deciding upon the appropriate sentence.
Judicial Discretion in Sentencing
It will thus be seen that there is a great discretion vested in the Judge, especially when pluralistic factors, enter his calculations. Even so, the judge must exercise this discretionary power, drawing his inspiration from the humanitarian spirit of the law, and living down the traditional precedents which have winked at the personality of the crime doer and been swept away by the features of the crime. What is dated has to be discarded. What is current has to, be incorporated. Therefore innovation, in all conscience, is in the field of judicial discretion.
Limitations of the Indian Penal Code
Unfortunately, the Indian Penal Code still lingers in the somewhat compartmentalised system of punishment viz. imprisonment simple or rigorous, fine and, of course, capital sentence. There is a wide range of choice and flexible treatment which must be available with the judge if he is to fulfil his tryst with curing the criminal in a hospital setting. Maybe in an appropriate case actual hospital treatment may have to be prescribed as part of the sentence.
In another case, liberal parole may have to be suggested and, yet in a third category, engaging in certain types of occupation or even going through meditational drills or other courses may be part of the sentencing prescription. The perspective having changed, the legal strategies and judicial resources, in their variety, also have to change. Rule of thumb sentences of rigorous imprisonment or other are too insensitive to the highly delicate and subtle operation expected of a sentencing judge. Release on probation, conditional sentences, visits to healing centres, are all on the cards.
We do not wish to be exhaustive. Indeed, we cannot be.
Sentencing as a Form of Social Justice
Sentencing justice is a facet of social justice, even as redemption of a crime-doer is an aspect of restoration of a whole personality. Till the new Code recognised statutorily that punishment required considerations beyond the nature of the crime and circumstances surrounding the crime and provided a second stage for bringing in such additional materials, the Indian courts had, by and large, assigned an obsolescent backseat to the sophisticated judgment on sentencing. Now this judicial skill has to come of age.
Prison Reform and Humanization of Punishment
The sentencing stance of the court has been outlined by us and the next question is what ‘hospitalization’ techniques will best serve and sentencee, having due regard to his just deserts, blending a feeling for a man behind the crime, defence of society by a deterrent component and a scientific therapeutic attitude at once correctional and realistic. The available resources for achieving these ends within the prison campus also has to be considered in this context.
More than this is expected in this decade, when jail reforms, from abolition of convict’s costume and conscript labour to restoration of basic companionship and atmosphere of self- respect and fraternal touch, are on the urgent agenda of the nation. Our prisons should be correctional houses, not cruel iron aching the soul.
Indeed, the direction of prison reform is not towards dehumanization but dehumanization, not maim and mayhem and vulgar callousness but man-making experiments designed to restore the, dignity of the individual and the worth of the human person. This majuscule strategy involves orientation courses for the prison personnel. The State will not hesitate, we expect, to respect the personality in each convict, in the spirit of the Preamble to the Constitution and will not permit the colonial hangover of putting people ‘behind the bars’ and then forget about them. This nation cannot-and, if it remembers its incarcerated leaders and freedom fighters-will not but revolutionize the conditions inside that grim little world.
Spiritual Dimension in Penology
We make these persistent observations only to drive home the imperative of Freedom-that its deprivation, by the State, is validated only by a plan to make the sentencee more worthy of that birth right. There is a spiritual dimension to the first page of our Constitution which projects into penology. Indian courts may draw inspiration from Patanjali sutra even as they derive punitive patterns from the Penal Code (most of Indian meditational therapy is based on the sutras of Patanjali).
Compensation for Victims
The further direction for making over the fine to the deceivees also needs a small explanation. There is nothing in principle, as Lord Parker pointed out in R. V. King (1970 2 AR. E. R. 248) to prevent a court from imposing a fine even when imposing a suspended sentence of imprisonment. ‘Indeed, in many cases it is quite a good thing to impose a fine which adds a sting of course, the fine should not be altogether beyond the sentences means.
As to whether it is wrong to make a sort of compensation order in a case of a convicted person without much means, again, Lord Parker in R. V. Ironfield (1971 1 All. E. R. 202) has observed
“If a man takes someone else’s property or goods, he is liable in Law to make restitution, or pay compensation… A victim…. need not be put to the additional trouble and expense of independent proceedings, and certainly cannot be required to forego his rights in order to facilitate the rehabilitation of the man who has despoiled him.”
Reference
Mohammad Giasuddin vs State Of Andhra Pradesh (1977 AIR 1926)