Today, I am strongly of the opinion that criminal courts have achieved greater success in its fact-finding and law applying ability than its sentence inflicting function. Excellence in the former functions springs primarily from its unemotional, painstaking and objective approach, and its relative failure in choosing appropriate punishment, in the new context of the penology, arises from its emotional, expeditious and subjective reaction to the established offence and to the convicted criminal.
This approach to punishment did not matter in Blackstonian age. In the new developing ideas, the functioning of the court as a punishing authority, as distinct from its guilt finding authority, is a complicated art requiring the proper balancing of the several purposes of the criminal law such as retribution, deterrence, prevention, reformation and social rehabilitation of the offender. Traditional sentencing practices are not well suited to deal with crimes when they are regarded as behavioural problems and when a casual attitude replaces reliance on fear, blameworthiness and deterrence.
Judges can no longer afford to give to give only a few minutes to fixing the sentence; this demands now as much devotion and thought as guilt finding part of their function. "Thus for some offenders one purpose predominates, for other offenders other purposes will be in the forefront of the judge’s mind. In my view the essence of the aim of punishment is the concept of individualisation. Some criminals will hope to treat, some to deter, some to put in warehouse (for protective segregation); but to all we will seek to apply individually appropriate punishment. It is the blending of the means of expressing all these purposes into the punishment of the individual criminal that is the courts extremely difficult task". This can no longer be achieved by little attention being paid to this side by the court.
Illogical variations in punishments and non-attachment of importance to all relevant factors in determination of sentence have brought the courts under criticism. It is considered that the bench frequently lacks sufficient information and knowledge of the personality of the offender and the social group in which he lives, to be able to impose a rational sentence on him.
This involves two propositions - firstly; that the bench has at its disposal very little information regarding the offender, and secondly that it does not make the best use of such information as is available. One of the factors responsible is that we are all prisoners of our own personalities and one piece of evidence that the judge comes to attach greater importance in deciding what sentence to impose is his own reaction to the prisoner observed during the trial. Once an Additional Sessions Judge remarked that the whole bearing of the accused in the court indicates whether there is a chance for his reformation or not. Demeanour of the accused in the courtroom is given significant importance. It is however submitted that one piece of information which should, so far as possible, be excluded from the judge’s decision is the prisoners demeanour in the court. The more training and experience that one may acquire in psychology and sociology, the less one would rely on such deductions. But the judges rely upon these deductions with no formalised training in the assessment of personality. Thus illogical variations in punishments under these circumstances are more or less bound to be there.
If the discretion given to the judge in the matter of individualising punishment is to be effectively exercised, additional fact finding processes have to be resorted to by the judge. On theory, the problem of this pre-sentence examination of offenders was discussed in 1847 at Brussels, Congress of the International Penal and Penitentiary Commission. None dissented from the proposition that pre-sentence examination was an essential preliminary to a rational sentence for many types of criminals. The matter came up before the Indian Jail Committee also and it was stated: "Objection to this is that apart from duplication of the work which is involved, it would be too early to judge of the effect of conviction and of the yet unpronounced sentence on the accused." In some states of America an attempt has been made to get this over this difficulty by appointing in every court an officer. His duty is, after the prisoner’s guilt has been established to make inquiries and to furnish the judge with information including a report on his mental condition, which will enable to award punishment wisely and equitably.
The system is said to work satisfactorily in the USA although even there it was admitted attempts had been made, though unsuccessful, to influence the courts officers in favour of or against the prisoner. In this country I do not think that such a system would have any chance of success. The many religious and social cleavages that exist in India would inevitably lead to unevenness in the officer’s reports even if direct corruption could be guarded against, and I do not think that it would be wise to imitate the American system in this respect. At the same time, it does seem possible that more might be done seem possible that more might be done specially through the instrumentality of the public prosecutor, generally a vakil of long standing position to lay before the court after the question of the prisoners guilt has been determined such reliable information as would enable the court to adjust its sentence to needs of the case.
I feel that another criticism of this system is that the judge lacks sufficient information and knowledge of the penal system, which carries out its sentence, and of the effects of different types of punishments on different types of offenders. They have no liaison with prison authorities and there is no system of their regular visits to jails to see as to what facilities are available there and how the offenders are being treated and with what results. Accordingly no knowledge of the actual working of punishments and their effectiveness is available to courts. It is therefore necessary that some system of closer liaison between the judiciary and the penal authorities should be developed to meet with the criticism.
The next shortcoming, I believe is that the individual personality of the judge or the magistrate plays too large a part in the assessment of punishment; for example whether a given offender goes to jail for a protracted or retributive sentence or receives remedial treatment while living in the community often depends on the chance of which court happens to sentence him. There is, in other words, too great an illogical and fortuitous variation between sentences. It is undeniable that the courts have failed to develop any definite theory bearing on the task of sentencing. Reasons are rarely given for the sentences, which are imposed. If these were articulated it would have led to a rationalisation of sentencing since the sentencers would have to indicate the considerations, which in their view justified their decisions. This would have prevented them from being influenced by emotional reactions to the offender. This would also have lead to more consistency in sentencing policy.
In such a state of affairs of dissimilarities in the awards and illogicalities of punishments, bound, as these are to create distrust in the public and bickering and frustration in the mind of the offender, two types of suggestions have come to my mind for remedying the situation. First is that the judge should decide only guilty part of the offence and sentencing part should be attended to by a Sentencing Board comprising of Experts. This suggestion has not only been given by some of our modern day learned judges but is also said to be one which was known to our ancient law-givers and which has been quoted in Mrichhakatika, namely that the decision of the guilt or innocence is the function of the judge and the determination of sentence is for the king or the State.
Determination of sentence by ‘Board of Experts’ after making thorough checks of the offender and his back history is surely placing the offender in better hands from rehabilitative angle. However, being an administrative board, it cannot always be relied upon for objectivity of purpose and impartiality and unemotionality, which the public has come to expect from the judicial bodies. The danger of abuse of power by this executive body cannot be ruled out. Though the courts have developed means of protecting the individual who stands charged before them against the power of the State, they have not yet built up effective techniques of supervising administrative tyranny when that individual is a criminal. Shifting of this work from courts to sentencing Board is not yet readily acceptable proposition. Otherwise also, volume of work will require many boards and we have not so many experts for constituting them. The scheme does not therefore remain practicable at this stage on account of dearth of experts needed for it.
The other suggestion I put forward is one, which is also in line with views of some criminologists. Which is that there should be indeterminate sentence and cases should be reviewed from time to time and release ordered on the basis of progress achieved by the offender. At international level, the matter of indeterminate sentences came up before Cincinnati Conference 1870 and it was concluded that instead of pre-emptory sentences there should be indeterminate sentence. It was also recommended in Second international Congress of Comparative Law held at Hague in 1937 by a resolution "That the time of detention should be capable of being shortened or prolonged as a result of the consideration of a report on the progress of the recidivist made by some competent authority".
The indeterminate sentence is an effort to make punishment truly reformative. Its theory is that one who has been guilty of serious infraction of the criminal law should be imprisoned for such time as is necessary to cure him of his anti-social tendencies and should then be conditionally released on parole, with adequate supervision for such time as is necessary to restore him to the normal life of law abiding citizens of the community. Since it is impossible to forecast what term of imprisonment and supervision may be necessary to accomplish this result, sentence is not to be for a definite term but for such time as may necessary to rehabilitate the offender and to restore him to his place in the society.
In order, however, not to lose the beneficent effect which indeterminate sentence offers, and at the same time availing of the sprit of impartiality which the courts have and to which the public opinion attaches much value, I am of the view that when it is felt by the court that an accused deserves imprisonment, it should call for pre-sentence report through probation authorities and on basis thereof fix the maximum period of sentence considered necessary. By requiring pre-sentence report before the courts order maximum term of imprisonment, old system of arbitrary orders without having adequate knowledge of the personality and circumstances of the offender vanishes. The information furnished will be sufficient to justify decision as to whether there should be sentence of imprisonment; it may not be sufficient to take decision about exact date of release and that does not matter as the court is being expected only to fix the maximum period of detention and not the exact date of discharge. In so far as the court fixes maximum period, the object of deterrence would also be sufficiently served by this original sentence. The protection of the society will be secured by the indeterminate nature of sentence, termination being adjusted to reformative needs and response in the individual case. As the court shall do sentencing, the public’s demand about the sentencer’s impartiality too will be met.
Further, in this case, determination of exact period of detention has been left to a tribunal having a judge as its member, and since this is to be done on a reference made to a tribunal having a judge as its member, fear of tyranny of the executive body is properly safeguarded against. As this reference is to be after a certain specified period, this time should be sufficient for training or treatment and will enable collection of adequate information about all factors of personality of the offender as also about his response to the prison programme chalked out for him. This will enable the Tribunal to take a rational and calculated decision about correct period of imprisonment.
The court itself will determine sentence of fine and probation under the scheme. Since in cases not calling for imprisonment for specified time or more imprisonment is not to be imposed, a large number of cases will be disposed of by the court and the Tribunal will not be required to deal with rush of cases. Therefore, many Tribunals wouldn’t be required in a state. Problem of available experts also wouldn’t come in the way of work. The load of work not being very heavy, dealing will not become just a routine; proper individualisation will become a reality and quantum of punishment required for an individual prisoner will no more find illogicalities. This will pacify much of the criticism, which is today being put at the door of the court.
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