DIALOGUES-Second Critical Studies Conference-Marginalities Justice-2

Abstract

The punishments provided for in a system shows the seriousness attached to law and its enforcement in that system. The system might claim to be retributive, deterrent or reformative. But whether it is so in practice can be determined only from the punishments awarded to the criminal. To illustrate, a reformative system cannot permit capital punishment to be awarded in its system. Thus the sentencing stage of a trial is as important if not more to the justice delivery system. Even if conviction is confirmed by the judge, an ineffective or disproportional sentence will render the entire process a waste. Thus the sentence mirrors the degree of condemnation the law and the society has for a particular crime.

Factors affecting sentence

Should the mere commission of a crime be sufficient to give the prescribed maximum punishment or should there be a gradation of the punishment awarded? In the former case law will end up to be a mathematical formula leading to a fixed result. Law should be tailored to the situation of the case and there should be flexibility in its application. This should however not allow irrelevant considerations to creep in. The existing case laws indicate that the age, circumstances when the crime was committed and social background are usually looked into for consideration. However there has been misapplication of these considerations in cases where the crime is an intentional one conscious of its effects. In such cases should any of these considerations play any role is a point that will be analysed in this article. Also the defense of self preservation, which affects the conviction itself, should definitely influence the sentence given. More importantly the question which arises at this stage is ‘Is motive important in the determination of sentence?’. It is to be constantly pondered whether all factors which have contributed to the crime being committed should have a bearing in the sentence or not.

Ill-effects of not having a sentencing policy

The judge is bound by a few flexible provisions of the CrPC and the IPC which are not binding at all times on the judge. The discretionary powers given to the judge in deciding the sentence is very wide and if not used properly can render the conviction and the preceding trial infructuous. Also if a greater sentence is given for a less serious crime, this will lead to judicial arbitrariness and lack of faith in the justice delivery system. Thus the doctrine of proportionality has to be kept in mind while framing the sentence or the concerned guidelines. This quantum of discretion can also lead to corruption and counter react to complete disregard to the system leading to disorder and chaos in the country.

Need for sentencing guidelines

To avoid the above effects and to provide with more predictability and rationality to the system it is necessary to have the guidelines in black and white. This way there will also be more accountability and effectiveness in the system. This paper will therefore concentrate on the existing drawbacks in the Indian criminal justice system due to lack of sentencing policy and try to provide a solution in the form of sentencing policy with the background of the sentencing policies in other common law systems like the UK and USA.

Bionote

Niruphama is a IV year Student at NALSAR University of Law, Hyderabad. I have co-presented a paper in the International Critical Legal Conference, 2006.

Abstract

Despite lofty proclamations of the ‘sovereign, democratic republic of India solemnly resolving to secure social, political and economic justice’ to all its citizens, the Honorable Indian judiciary has acquired the dubious distinction of reinforcing and reproducing the powerful patriarchal control exerted over female sexuality by the caste system through the centuries. A brief perusal of Supreme Court decisions in the field of rape(S.375 of the Indian Penal Code) in 2006 would establish that ‘honor’, ‘modesty’, ‘chastity’, ‘shame’ and ‘virtue’ of the ‘Indian’ woman still form an integral component of the ratio decidendi of rape cases. This failure to award justice on a neutral basis of the violation of the rule of the law brings to the fore, the startling fact that this bastion of democracy has still not created the discursive space for the articulation of gender rights. Now it has been generally understood that the rule of law reflects the minimum expectations of the society from which emerges. Thus when a sacred pillar of democracy deems it just to award justice to rape victims based on their conformation to a hierarchical and unequal social order, naturally the ability of society to even view certain acts as violative of the rule of the law in every day lives would remain doubtful.
The most visible impact of such judicial shortsightedness and its consequent societal laxity, is actively manifested in the continued sexual harassment of women commuting through the public transport corporation buses in the capital city of Tamil Nadu-Chennai. In a social setting which comes down heavily on even the airing of views on pre-marital sex, prohibits the intermingling of the two sexes and imposes and enforces a strict dress code for women students in professional educational institutions, even the articulation of the grievance of sexual assault has been silenced under societal norms of blasphemy. As a result the thousands of women who are sexually assaulted as a matter of routine, everyday, have been denied the fundamental human right of even deliberating on the issue, and have begun accepting the normalcy of sexual assault as an integral part of traveling by the public transport buses in Chennai.
This paper uses the results of an intensive field study in Chennai metropolitan buses, conducted over a period of two months, to bring out how the cultural, patriarchal perceptions of Tamil society have been instrumental in the total exclusion of even the articulation of sexual assault as violative of bodily integrity and thus has been encouraging the massive violations of the fundamental rights to life, to equality and against discrimination guaranteed by the constitution. Thus in light of the inherent link between law and society, this paper argues that the creation of the necessary social space recognizing the criminality of sexual assault perpetrated in the public transport buses, would inevitably change the perception of sexual assault as viewed by the judiciary and ensure justice to victims of sexual assault, through the formal legal mechanism in the Indian democracy.

Bionote

Shritha is presently pursuing my third year of B.A.B.L. (Hons.) at NALSAR University of Law. The concept of “Spheres of Justice” has become an imperative in today’s strife torn world, with powerful nations blatantly using their brute power to impose their hegemony and therefore the creation of space for the articulation of grievances- be they against excesses committed by nation states or international players has become one of the few tools with which humanity can actually tackle armed, naked aggression perpetuated under the garb of the rule of the law.