A crime free society is a myth we can all agree on this point. But the rate at which the crime graph is increasing puts every aspect of law and order in question. The basic aim of a welfare state is to give its citizen a safe and sound environment in which they can live and contribute to the betterment of the nation. And the criminal justice system has completely failed to achieve this basic aim of the welfare state. As a result there is gradual decline of Public faith in the criminal justice system over a period of time.
Sentencing can be said as the face of Justice, as it is a post conviction state of Criminal Justice System, where the accused is brought before the Court for imposition of penalty i.e., when a accused is convicted, the event that follows the decision is called Sentencing. Generally speaking the primary goal of sentencing are punishment, deterrence, incapacitation, and rehabilitation.
CURRENT SCENARIO OF SENTENCING POLICY IN INDIA
As we all are aware of the fact that in India there is no proper guideline for Sentencing. There are no such well structured and strict guidelines regarding the sentencing policy, though the Government and the Judiciary have taken steps on making certain guidelines. For instance in 2003 the ‘Malimath Committee’ formulated guidelines to curb the uncertainties in awarding sentences. The committee recommended that there should be a permanent statutory committee to prescribe sentencing guidelines. It further stated that where the crime does not involve interest of society, the law should prefer settlement without trials as prescribed by the law commission. The committee also proposed to review the Indian Penal Code with respect to the punishment keeping in mind the new emerging methods of crimes.
The Judiciary also laid down certain guidelines while delivering Judgments in form of orbiter dictum. The concept of balancing ‘Aggravating and Mitigating factors’ has been put to test in Bachan Singh v. State of Punjab, and the court held that by virtue of the amendment to the Code of Criminal Procedure and thus the offence of murder should be punished with the sentence of life imprisonment. And if the court departs and renders sentence to death then it is required to give reasons for such action.
The issue has been pointed out very clearly and unambiguously in the case of Soman v. State of Kerala that giving punishment being the heart of the criminal justice system should be most powerful part of the system, but in our country it is the weakest part of the system. And in absence of any legislative or judicial guidelines in regard to the issue the trial courts finds it difficult to give just punishment to accused after he is held guilty.
IMPORTANCE OF PUBLIC OPINION IN SENTENCING POLICY
The above mentioned committee’s response and from the judicial observations it can be rightly said that a strict and absolute Sentencing Policy is the need of hour. The more delay in making the policy the more decline of public faith in Judiciary. We know that the isolation of Judiciary from the public is considered legitimate and necessary as it imparts a sense of authority to it. Also in India there is enormous power in the hand of Judiciary in the form of interpretation of law and to stretch its meaning which sometimes causes hindrance in the working of the State.
The importance of Public Opinion is that it imparts legitimacy to the Criminal Justice System and more specifically the Sentencing Policy. But what is public opinion, so public opinion should not be confused with those Opinion Polls which are done by the Media nowadays, as they far away from reality and rationality. Here also the deformity does not lies with the public but it lies with the media, as the media puts the matter in issue before the public in such a manner that it gives rise to some emotional angle. Thus resulting in an unreasonable opinion poll which is totally unreliable. So in order to get accurate and reasonable Opinion Polls the information put before the public should be relevant and factual and also accompanied with the constraints and possible ramifications. Then the deliberation among the public will play an important role which will result in transformation of individualistic view into a rationale Public view on Sentencing Policy.
Now ‘Isolationism’ and ‘Populism’ are the two extreme views which can be used in deciding the Sentencing Policy. In Isolationism view the Policy makers will make the rules and are not concerned with the public opinion. This view can be held undemocratic and may take an autocratic form which will result in loss of public faith in judiciary. On the other hand, Populism describes a situation where public will get driven by the Media, which may be steered by some political motive.
That’s why the prudent way lies somewhere in between. As said earlier that the public first must be educated and then constructive debates should go in order to reach a consensus on policy. The law officials and Judges should outreach the people through seminar or workshops and educate them regarding the true nature and requirement of the policy.
In order to conclude I would like to say that the public opinion is important if we see from the angle of the policy making. It will help in giving more insight towards the formulation of policy regarding Sentencing and will introduce alternative reforms, which will help in rendering the judgments faster. And the society will accept these reforms when they will get involved in the discussions. And just by increasing the severity of the punishment a valid deterrence may not be created in the mind of the wrongdoer. For example, the public often ask for hanging the rape accused. But the policy makers should make them understand that the Death sentence rendered in rarest of rare cases and a quite high burden of proof is required.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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