Guest Blogger

Bikram Jeet Batra

In August 2008, I had written a short note on this blog about the Swamy Shraddananda judgment. This was part of a series of judgments in which the Supreme Court while sentencing the accused to imprisonment for life (LI) directed that he would be ineligible for any execution remission/commutation of sentence and would have to remain in jail for the rest of his natural life. The previous note focused on the constitutionality of such directions and raised concerns about the Court overstepping into executive terrain. Although it referred to penological concerns, those were not really discussed.

Last week’s judgment by the Supreme Court in Haru Ghosh brings such penological questions to the forefront. This was a case where the appellant had been sentenced to death for a double-murder and this sentence was confirmed by the High Court. The Supreme Court bench of Justices V.S. Sirpurkar and Deepak Verma also noted that at the time of the murders the appellant had been sentenced to LI in another case but was out on bail while the appeal was before the High Court. Although the bench decided against confirming the death sentence, they sentenced the appellant to LI with a minimum term of 35 years. This is the first such sentence I am aware of (although there have been a number of previous sentences where 20 year minimum terms have been laid down).

The constitutionality of all such sentences (20/35 years/ whole life) is debatable and is already being considered by the Supreme Court in an ongoing review petition. The lackadaisical approach of the bench in this judgment is familiar – the present judgment does not even provide facts of the appellant’s existing LI sentence. We do not know whether this was an LI sentence to which Section 433A, CrPC (a minimum 14 year term) is applicable or whether the appellant was sentenced for an offence in which LI was maximum punishment and where remission could lead to sentences lesser than 14 years. It is also not clear whether the judges were aware of this – they merely observe that sentencing the accused to LI “would be no punishment, as he is already under the shadow of sentence of imprisonment for life”.

However, put aside all these technical concerns and consider the manner in which the court arrived at this unprecedented 35 year sentence. There is absolutely no discussion on why the Court decided on 35 years instead of the previously encountered (although equally incorrect) 20 year or ‘whole life’ terms. Why not 25 or 30 or 40 years? Nothing in the judgment sheds light on that. Even assuming that such minimum terms were legally permissible, can such wide discretion in sentencing be allowed to judges?

Nearly three decades ago, when section 433A and the 14 year minimum term was challenged by almost 2000 ‘lifers’ in the Supreme Court, the result was the landmark Maru Ram judgment. Although the constitutionality of Section 433A and the 14 year term was upheld, the Maru Ram majority judgment observed: “If we had our druthers we would have negatived the need for a fourteen-year gestation for reformation. But ours is to construe, not construct, to decode, not to make a code.” In thirty years the Supreme Court has traveled a long way – from doubting the efficacy and requirement of the 14 year minimum terms towards “whole life”, 20 and now 35 year terms.

It is most disheartening that such a journey has been made without any discussion, study or reflection on the broader object and goals of imprisonment itself, much less the conditions of our prisons. What is the percentage of recidivism in cases of lifers? What leads the court to believe that increasing the term to 20 years would bring about reformation that 14 years would not? Is reformation even a significant object of Indian prisons today (ironically some are now being labeled ‘correctional facilities’)?

In 1980, Maru Ram included a significant discussion on penology and the question of reformation. This was perhaps unsurprising since the majority judgment was written by Justice Krishna Iyer (for himself, Chief Justice Chandrachud and Justice Bhagwati). However opposing views on reformation were also visible in the concurring judgments written by Justices Murtaza Fazal Ali and AD Koshal. A healthy debate on the relevance of reformation in our penal system was visible. This was completely missing in the dramatic move towards ‘whole life’ and 20 year minimum sentences. Haru Ghosh too suffers from the same.

At one level, this pitiful situation reflects the general lack of interest in prison issues in Indian ‘civil society’. Even civil-liberties groups have restricted themselves largely to the domain of the ‘political’ prisoner while the few NGOs that work on prisons limit their interventions to humanitarian instead of human rights concerns. At another level however the approach taken by the judiciary in such judgments is only one part of a broader ‘part casual-part cowboy’ approach of the judiciary with respect to criminal law. In the judiciary’s crusade against ‘crime’, procedure, technicalities and precedent have become expendable and even reasoning has become optional. In this sense, Haru Ghosh is merely the latest in a series of irresponsible judgments over the past two decades that require detailed examination from the perspective of (lack of) judicial discipline and accountability.