A Case Comment on Pushpanjali Sahu vs State of Orissa (2012 AIR SCW 5447) by Sohini Chatterjee
The Merchant of Venice has been immortalised by, among others, the courtroom scene in Act IV Scene I. In this timeless scene, Portia, dressed in the garb of a male lawyer, makes an eloquent speech on mercy. She ardently asserts that while justice is severe and iron-fisted, mercy is like “gentle rain from heaven”. Therefore, justice should be seasoned with mercy. While deciding the quantum of punishment to be served by an accused on his conviction, mercy is certainly desirable in some cases. Mercy, in the form of judicial leniency, might give an offender the chance to reform and rehabilitate. But what happens when this display of mercy leads to the rights of the victim getting compromised? This is the primary question I seek to answer in this post.
The facts of Pushpanjali Sahu vs State of Orissa might seem prima facie commonplace. The accused person was charged with the offence of rape. The Trial Court convicted the accused and directed him to serve a term of 7 years. Aggrieved by the order of the Trial Court, the accused appealed to the Sessions Court in Keonjhar, Orissa which instead upheld the Trial Court decision. The accused thus approached the High Court of Orissa. It is at this juncture that a travesty of justice takes place that leads to a Gilbertian situation. The High Court agrees with the decision of the Trial Court that the accused was indeed guilty of rape. Yet, the sentence of 7 years awarded by the Trial Court was reduced by the period already undergone by the accused, which was approximately one year.
This is an example of a common judicial occurrence of display of undue sympathy to accused persons by judges. Judges often reduce sentences in light of various considerations like nature of the crime, motive for the commission of the crime, age of the accused, financial status of the accused inter alia. This is due to a conflict of interests. On one hand, the purpose of the judicial process is to punish the offender by sentencing him to a punishment proportional to his crime. On the other hand, the modern trend exhibits a focus on reformation and rehabilitation of the offender.
What sets the Pushpanjali Sahu case apart is the pronounced emphasis the Supreme Court has placed on the principle of proportionality in the imposition of punishment. It is unequivocally stated that “undue sympathy to impose inadequate sentence would do more harm to the justice system”. The Supreme Court has reiterated the stance taken in Sevaka Perumal vs. State of Tamil Nadu, that it is the duty of every court to award a proper sentence “having regard to the nature of the offence and the manner in which it was executed”. Ideally, judges are expected to rationally examine the facts of the case, the gravity of the offence and the mitigating or aggravating factors which may justify the award of the lesser or the longer sentence. Even though it is generally accepted that punishment should fit the crime, in practise “sentences are determined largely by other considerations”. Judges are often swayed on compassionate grounds such as the accused being a young breadwinner of the family. Such factors would be present in most cases and ideally it should be irrelevant in the matters of sentencing. In State of Madhya Pradesh vs. Pappu (2008) 16 SCC 758, the Supreme Court commented on the noxious impact of undue sympathy displayed towards the accused in awarding sentences. According to the Bench, “imposition of inadequate sentence would do more harm to the justice system by undermining the confidence of society in the efficacy of law”. The Judiciary should note that it is the only organ of state in which the common man has managed to retain some faith. At this point if it is seen that Judges choose not to give convicted criminals the punishment they deserve due to unwarranted sympathy based on extraneous considerations, it will most certainly have the effect of shaking the very foundations of the faith in the Judiciary.
In order to understand the adverse effects of undue sympathy shown to the accused, it is essential to delve into two issues. First, why should a criminal be punished? Second, what should be the quantum of punishment? With regard to the first issue of why a criminal should be punished, penal philosophy furnishes various explanations. While Bentham provided a utilitarian explanation, Kant relied on a retributivist tradition. Most recently however, the “benefits and burdens” theory and “expressive” desert theories are gaining ground in an attempt to provide more concrete answers to the question of why an offender should be punished. The “benefits and burdens theory” views punishment as a medium of imposing an offsetting disadvantage on a person who obtains an unjust advantage by committing a crime. However, for the purpose of this post, I will rely only on the “expressive” desert theory which states that wrongdoers need to be punished to censure them and make them feel that they have indulged in wrongful conduct. The fact that society deprecates the conduct is made known to the criminal through punishment. According to this theory, punishment soothes the victims and society at large and communicates to them that the State acknowledges the violation of their rights. This is embodied in the Supreme Court’s judgment in the instant case where it says that if the trend of undue sympathy to impose inadequate sentence is not interrupted, the “common man will lose faith in courts” and it would “undermine the public confidence in the efficacy of law”. Ultimately, the Court fears that the social fabric will be weakened and society will not be able to endure “such serious threats”. As the Apex Court has stated in the Dhanonjoy Chatterjee case, the rights of the victim must be respected. It is through imposition of adequate punishment that the courts reflect “public abhorrence of the crime” and respond to society’s collective “cry for justice against the criminal”.
Now that we have addressed the issue of desirability of punishment, the second issue is regarding the quantum of punishment to be imposed upon a criminal. While the criminal law in our country largely adheres to the well entrenched principle of proportionality, it also provides adequate room for the judge to exercise his own discretion to arrive at a sentence. The principle of proportionality is based on the argument that if punishment is viewed as the result of censure for blameworthy behaviour, then the amount of punishment should depend on the degree of blameworthiness of the behaviour. If the principle of proportionality was to be connected to the “expressive” desert theory discussed above, then one could safely conclude that on a comparison of two crimes, if the first crime is punished more severely than the second crime, it conveys that society abhors the former conduct more than the latter. When the principle of proportionality is used, the sentencing policy is able to achieve its dual objective- deterrence and correction.
It is time that the courts check the trend of showing undue sympathy and leniency towards accused persons by imposing inadequate sentence. It not only leads to a mockery of justice but also tantamounts to treason against the victims and society. In the instant case, the High Court did not have sufficient cause to reduce the sentence of the accused to the term already served. In terms of the “expressive” desert theory, the High Court’s order was tantamount to condoning the offense of rape committed by the accused and trivialising the mental and physical trauma suffered by the victim. The Supreme Court rightly set aside the order of the High Court and directed the accused to serve a term of 7 years, in consonance with the Indian Penal Code. Thus, even though Portia magniloquently sings mercy’s praises in The Merchant of Venice, her words require greater scrutiny. Contrary to what she says, sometimes strict justice is needed more than undue mercy. Otherwise, not only does the victim suffer, the very foundations of the criminal law edifice are rendered shaky. The Supreme Court has succinctly presented the accurate stance in this case:
“By deft modulation the sentencing process should be stern where it should be, and tempered with mercy where it warrants to be.”
(Sohini Chatterjee is a third year student at NUJS, Kolkata)