In the absence of clear and organised sentencing guidelines, contemporary penal policy in India is marred by unguided judicial discretion. While this may be a matter of independent inquiry, it is an inevitable consequence of flawed legislative prescriptions regarding sentences under criminal law. The arbitrariness in prescribing maximum sentences in criminal laws is an issue that has received inadequate attention.
Dramatic increases in prescribed punishments have become a preferred method for the central or state governments to demonstrate that they are committed to a cause. The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015,1 for example, punishes a range of offences related to non-disclosure and tax evasion with periods of imprisonment varying from seven to 10 years. This puts the offences under the act at par with some of the graver offences under the Indian Penal Code (IPC) such as human trafficking and rape. Similarly, the enhancement of punishment for certain sexual offences along with the inclusion of the death penalty for certain types of repeat offenders have triggered heated debates on standards of punishment (Section 376E of the IPC).2 Such changes are usually responses to new “threats” and “risks,” often in the form of special legislations, and accompanied by the creation of exceptions to general criminal procedural safeguards (Agamben 2005; Feeley and Simon 1994).
If one takes a short-term view of the matter, some of these increases in penalties seem justified; they are attempts to deter wrongs that cause significant societal harm. However, the growing trend of indiscriminate increases in the maximum penalties prescribed leaves us with troubling questions around the meanings of punishment. Do we, as a society, consider an offence punishable with 10 years (for example, possession of certain drugs) more serious than an offence punishable with seven years (for example, publishing or transmitting child pornography)? Will awarding rigorous imprisonment of two years for a person guilty of solemnising a child marriage deter him and others from committing that offence, or constitute a full payment of his debt to society? So far, there is little evidence to suggest that the determination of the nature and periods of punishments in criminal statutes is a deliberative process, let alone one that takes into account theories of criminal justice, or studies the actual impact of such changes.
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