The US is known for very long sentences: Dudley Wayne Kyzer was awarded 10,000 years imprisonment for brutally murdering his wife; Juan Corona was given 25 consecutive life sentences for the murder of 25 migrant farm workers; Ariel Castro was sentenced to life plus 1,000 years for kidnapping; Chamoy Thipyaso in China was given 1,41,078 years of imprisonment for corporate frauds; Moses Sithole, a serial killer and rapist, was given 2,410 years imprisonment in South Africa. Prabhakaran was sentenced to 200 years of imprisonment, in absentia, in Sri Lanka for bombing a truck which led to the killing of 91 persons. Should India follow these extremely bad precedents?
A five-judge apex court bench decision of December 2, 2015 not only goes against the ideals of federalism and rewriting of the Constitution as to the remission powers of the Governors but also revives retribution as the sole aim of punishment. Instead of hating the sin, the court now favours hating the sinner as it has created a new sentence of life imprisonment for entire life without remission. Public debates on Yaqoob Memon, Delhi gang-rape and grant of remission by the Tamil Nadu government to Rajiv Gandhi’s assassins demonstrated our savagery and rejection of the idea that ‘every saint has a past and every criminal has a future’ as a guiding principle of our sentencing policy.
Crime is inevitable in any human society since some deviations from the prescribed norms of human behaviour are bound to occur. What to say of humanity, even a society composed of angels would not be completely free from violations. Retribution is fast emerging as the main goal of Indian penology. It seems we continue to believe that harsher punishments like death penalty or life imprisonment do annul the crime and successfully restore the social balance disturbed by the convict. This outdated view makes a case for the convict to receive as much pain as was inflicted by him on his victim to assuage the justified angry sentiments of the victim and today, of anchors of some TV channels and the larger community.
The constitutional bench decision that even where court is convinced that the case does not fall within the ‘rarest of rare’ category and thus, the court cannot send the convict to gallows, they still impose a life sentence without remission. This, in fact, denies a right to a person, who has been given the lesser sentence of life imprisonment, because even a death penalty convict may still get the benefit of clemency powers. It is argued that criminal law stands to the passion of revenge in much the same relation as marriage to sexual appetite. It is better that one man should die, than the whole people should perish because if legal justice perishes, then it is no longer worthwhile for men to remain alive on this earth. But on the contrary, critics of retribution say that if individuals have no moral right to extract retribution, how can a group of individuals in the society, who constitute the state, acquire such a moral right. We do not live in society in order to condemn though we may condemn in order to live. In today’s world, the idea of punishment based on revenge or deterrence has been rejected. Utilitarians on the contrary see punishment as a means to certain ends not an end in itself. Life imprisonment in its pure and simple form is a kind of punitive reaction which deprives the convict of his liberty and seriously damages his life. He is forced to live in the worst possible conditions of the prison. He loses his personal identity and his name gets replaced with a number. The lifer as he is called becomes a unit to be processed by the jail authorities as he is perceived simply as a job, rather than a human with distinctive interests, tastes and habits.
This leads to social debasement in his own eyes and unlike a convict put to death, he dies every day and the life imprisonment is thus harsher than the death penalty which gives only momentary pain and thereafter complete relief from all pains and sufferings. He becomes an impersonal entity with no ray of hope. Just because the Tamil Nadu government due to some considerations wanted to remit life term of killers of Rajiv Gandhi, the Supreme Court in a highly regressive decision has now laid down that even the hope of remission after 14 years should be denied to him. This shows our hate for the criminal. Harsher sentences are not necessarily deterrent nor the release of life convict puts society in great peril. Until 1948, lifers in England could be and were, released under the royal prerogative. Release was generously exercised. Most lifers were released on licence after 10-13 years’ imprisonment.
Between 1900 and 1949, 15 lifers served less than a year and 53 served only one to three years. One served 22 years and one served longer than that. By the end of 1948, only five of 112 lifers released in last two decades had been reconvicted of another serious offence, and only one of them had been reconvicted of murder. By 1953, it was exceptional for anyone to serve more than 15 years and the usual sentences were much shorter.
In fact, life imprisonment has been effectively abolished in a number of countries. European countries such as Serbia, Croatia, and Spain have abolished all forms of indefinite imprisonment. Portugal provides for the maximum sentence at 25 years. Similarly, Honduras, Nicaragua, El Salvador, Costa Rica and several other countries have also abolished life imprisonment. Even in the United States, a 2009 sentencing project report suggested that life imprisonment without parole should be abolished. There is near unanimity amongst scholars that criminal justice policy is largely irrelevant in reducing incidence of crimes. Incarceration rates are higher in countries whose capacities for regulating the macro economy and containing inequality are weak. The ‘culture of control’ is a product of the dynamics of liberal market economies.
We in India continue to follow the ‘culture of control’. Pardoning and remission powers are to be exercised in all civilised nations as an act of grace and humanity. Absence of clemency powers would make a country imperfect and deficient in its political morality. Pardon does not overrule the judicial decision, it merely mitigates or sets aside the punishment. The majority judgment is clearly flawed as it takes away the remission powers which have been given to the Governor under the Constitution. The court cannot go beyond the text of the Constitution to restrict its exercise.
Similarly, by holding that the Central government’s opinion shall have primacy and ‘consultation with Central government’ in granting remission means ‘concurrence’ goes against the spirit of federalism. Moreover, just because a case was investigated by the CBI does not mean that Central government would have overriding powers in the grant of remission. The decision of the court that life imprisonment may mean imprisonment for life without remission clearly amounts to rewriting of the Constitution as court does not have the power to dictate that the executive shall not exercise its powers of remission. Moreover, law already prescribes maximum sentences, giving the judge discretion to any sentence within the maximum provided in law. This innovation of creating a life term without remission is an act of judicial adventurism and is clearly beyond the powers of the Supreme Court. Justice UU Lalit’s powerful dissent correctly lays down the law.
Majority opinion seems to favour the ‘deprivation model’ wherein prisoners are to be deprived of all their rights. Similarly, ‘Penal harm movement’ favours increasing the misery associated with punishment. It is regressive thinking that we should harm prisoners in meeting justice to hardened criminals. Stiffer life-term sentencing policies would mean further increase in the number of poor, minorities and Dalits in our jails.
The government should undertake relative cost and benefit analysis of imprisonment under the new concept of ‘zemiology’. Indian prisons are hitherto a closed world. It is necessary to open them and prisoners be given rights in respect of preserving their street identities with permission to wear street clothes and hairstyles. Recent tendency of becoming blood thirsty is taking us back to the bygone era and we are returning to vengeance and revenge.
The author is Vice-Chancellor of NALSAR University of Law, Hyderabad.