Is sentencing an art or science? A look into Salman Khan’s and Lalu Prasad’s harsh sentences
“If the criminal law as a whole is the Cinderella of jurisprudence, then the law of sentencing is Cinderella’s illegitimate baby”, said British criminologist Nigel Walker. Sentencing is an instrument of social defence as well as re-socialisation of the criminal. It seems our judges pay no heed to Gandhi’s view of ‘hate the sin not the sinner’. Lalu Prasad’s recent non-concurrent sentences for the same set of offences in the fodder scam not only go against the reformative theory of punishment but are in clear violation of decisions of the Supreme Court.
Bollywood actor Salman Khan has been given five years’ imprisonment in the blackbuck poaching case. Was it ‘just desert’ for him? Has he paid the price of his stardom? Should his social works been taken into account? Is sentencing an art or a science?
The Wildlife Protection Act,1972, provides a minimum of one year and maximum of six years’ imprisonment for the offence committed by Khan. In a country where people were given the death penalty to satisfy the collective conscience of the community, critics have questioned Khan’s harsh sentence due to overwhelming public support for him and spontaneous celebrations organised by his fans on the grant of bail.
Sentencing is the least understood area of the criminal justice system in India and is certainly not a mechanical or mathematical function.
We have an indeterminate sentencing policy under which law provides maximum punishments and in some exceptional cases even minimum punishments. A mid-point sentence is generally to be given under what is called the tariff system. In Khan’s case thus sentence should not have been more than three years.
Surprisingly, unlike western countries, we neither have a sentencing Act nor any statutory guidelines for the judges. In sentencing functions, judges make an attempt to juggle objects of various sizes while walking a tightrope which is being shaken at both ends. The judge has to balance the interest of the accused, his/her family, the victim and his/her family and the society at large. Balancing being the central concern of sentencing, it is called an art or intuition.
There has to be a counter-balance between the goals of sentencing, i.e. retribution, deterrence and reformation. Retributive theory which has long been rejected was revived by Andrew von Hirsch with concept of ‘just desert’ ie the notion of deserved punishment. In ideal terms justice can never be retributive. Just desert’ should thus mean nothing more than principle of proportionality. The absurd demand for a mandatory death sentence in cases of child rapes shows that we as a nation have no idea about the penology as the intensity of punishment has no deterrent effect. Lately our judges have been showing more inclination towards retribution and deterrence rather than reformation and rehabilitation. Liberalism faces a threat here as well.
Deterrence is nothing more than fiction. The problem with the theory of general deterrence is that it justifies passing of harsher sentences against the convict so that others in future get deterred. This is a superficial appeal. The utility of general deterrence has not been proved in any authentic scientific study. It is the certainty not the intensity of punishment which may have some (if at all) deterrent value.
Since Indian jails are described as universities of criminality, no graduate from such universities is likely to become a better human being after serving his/her term. In fact the best prison reform would be to close down prisons.
Personal mitigation is a globally recognised principle and includes admission of guilt by the accused, assisting criminal justice system, voluntary payment of compensation to the victim or his/her family, contribution to society etc. Reportedly Khan does lot of social work and gives lakhs of rupees in charity.
Equality demands that the elite too should not be unfairly treated. The court should not punish harshly anyone just because he is a celebrity, such as Salman Khan, or a political leader, such as Lalu Prasad.
The denunciation and rebuke faced by Khan already had the desired effect. His image had got a beating and except for his diehard fans, he is no more their idol. In fact, for such criminals even shorter terms of imprisonment involve much greater deprivation and pain.
Faizan Mustafa is vice-chancellor, NALSAR University of Law
The views expressed are personal