Lakshmi Menon
We examine the Supreme Court’s decision in choosing between life sentences excluding remission in death penalty appeals.
Earlier this year, a three judge bench of the Supreme Court in Navas v. State of Kerala had altered a prisoner’s sentence of life imprisonment (excluding remission for 30 years), to a life sentence barring the same but for 25 years. This was a case pertaining to the murder of a family of three, where the trial court had sentenced the accused to death. The Kerala High Court had commuted the accused’s death sentence to life imprisonment excluding remission for 30 years. The Court upheld the commutation but imposed a sentence that excluded remission for 25 years (from 30 years). During this exercise, the Supreme Court directly addressed the need for a principle to guide the imposition of sentences within the range available under life imprisonment without remission, for the very first time. The decision then proceeds to identify proportionality (based on the gravity of offence, and the offender’s culpability, based on their age, mental health, socioeconomic status, adverse life circumstances etc) as the principle guiding the same under law.
I argue that Navas’ formulation of proportionality – which is otherwise central to sentencing– becomes misguided in the context of life sentences that exclude remission. The decision’s use of proportionality is based on precedent that does not speak to the question/gap raised in Navas. Most importantly, the discussion sidesteps the assessment of penological goals engaged when excluding remission. A more useful exercise would have seen the Court engage with precedent that speak to the principles of remission, and also accounted for the fact that the case at hand pertained to fixing sentences from a range (and not a choice) of punishments.
Understanding life sentences excluding remission
Life imprisonment sentences, under the law, entail imprisonment for the rest of a person’s life. However, the legal framework provides avenues for prisoners sentenced to life to be released from prison through routes such as remission under the CrPC/BNSS (where the executive releases prisoners on their discretion after a life prisoner has served at least 14 years), constitutional decisions of the President or the Governor etc. In death penalty appeals, the Supreme Court, through its decisions in Swamy Shraddhananda v. State of Karnataka (2008) and Union of India v. Sriharan (2015) created a category of life sentences that excluded the possibility of being considered by the Government for remission under the CrPC (either for a fixed number of years or their whole lives). Thus, in death cases, the courts may, while commuting from death, impose-
- Commutation to simple life imprisonment (making the prisoner eligible for remission after fourteen years)
- Commutation to life imprisonment excluding the possibility of remission either-
- Completely (whole life)
- Partially (usually between 18 years to 35 years)
In essence, sentencing in a death penalty commutation at the High Court or Supreme Court stage entails three steps- i) deciding between confirming death or commuting to life as per the rarest of the rare framework, ii) upon commuting the death sentence, choosing a sentence to impose between simple life and life excluding remission, and iii) deciding the period for which remission must be excluded, which can extend upto the entire natural life of the prisoner.
The framework guiding the decision-making to impose death sentences, laid down by the Supreme Court in Bachan Singh v. State of Punjab (1980) has been long criticised (here, here) for substantive gaps that have played a role in the arbitrariness of death penalty sentencing in India (here, here) and for its disproportionate imposition on groups marginalised by caste, economic status and religion. Judicial guidance in selecting between simple life and life excluding remission is even more sparse. In Swamy Shraddhananda, the Court merely holds that the sentence must not be disproportionately inadequate to the offence. Sriharan continues this emphasis on the offence and its gravity, and provides little penological guidance aside from a vague mention of the need for deterrence.
Until Navas, the Court had nothing to guide its imposition of Sriharan sentences- while some cases would result in life imprisonment for the whole of natural life, some others would result in remission being excluded for smaller or longer fixed terms without any rationale attached to it. In this context, the question that Navas raises becomes important- it asks how to fix a sentence between life sentences excluding remission from the lowest threshold of (18 years has been the lowest imposed thus far) to the highest (of full life). Unlike the choices in death penalty commutation and in Sriharan sentences, the choice in Navas involves a sentence range.
The central question in Navas
The jurisprudence around life imprisonment excluding remission sentences in death cases have sparked intense criticism, especially given the gravity of the punishment. Life imprisonment sentences without the possibility of any release have been characterised as cruel; held to be unconstitutional in some jurisdictions; denies the hope of release and presumes a person’s inability to reform. The vastness of the range of life without remission sentences- from 18 years to full life excluding the possibility of remission- has significant implications for a prisoner. A prisoner sentenced to a life sentence with a partial exclusion of remission still faces the hope of release, unlike cases where remission is completely excluded. Prior research has noted that hope of release is crucial to social reintegration and reformed behaviour for a prisoner. Given the stakes involved in such punishments, the question raised in Navas becomes particularly significant.
Navas formulates proportionality by requiring the court to examine circumstances of both offence and the offender at the time of offence. I argue that this formulation, and the focus on circumstances at the time of offence, is misguided because it does not speak to the purposes that underpin remission in the law or in principle. Secondly, Navas also provides no useful framework for choosing a sentence when it comes to a range.
Conceptual confusion in Navas
Navas’ formulation of proportionality- relating to crime and offender related circumstances at the time of offence is central to sentencing. To this end, Navas does a better job than its predecessors such as Shraddhananda, which formulate proportionality as relating to the crime alone.
However, unlike regular sentencing decisions and principles, Navas is concerned with whether remission must be partially or completely excluded, as opposed to how much punishment to fix. As mentioned before, life imprisonment sentences are meant as imprisonment for the whole life, and remission only offers release from prison in a life sentence based on the executive’s discretion. This means that a more appropriate principle to guide the question in Navas must stem from the purposes of remission itself, and whether there is anything on the record to demonstrate that the prisoner may not meet these requirements.
Remission- foundations in principle and law
The development of remission principles since the mid 20th century has been fraught with debate over its foundations. The normative framework and policy decisions on remission have entailed considerations of reformation, the risk of dangerousness, and the message that continued imprisonment may bring out to society for certain offences. Formulated as part of a larger correctional services approach to prisons and sentencing in the 1960s- remission was initially geared towards rehabilitation. Over time, discontent with the rehabilitation movement in sentencing led to a shift in the penological considerations from rehabilitation to risk assessments for dangerousness. Academic commentators have also tried to provide principled foundations for remssion by formulating a way for proportionality to play a meaningful role in premature release decisions. Even with multiple and contradictory purposes that underlie remission systems across the world, it offers a hope of release and reintegration into the community.
However, decisions regarding remission are governed by circumstances after the time of offence, and are more concerned with an offender’s actions post offence. These may include prisoner’s jail conduct, activities undertaken, improved relations with their families and social ties, the prisoner’s health etc. Indian law too recognises this in many ways. State rules and jail manuals for remission are often centred around the prisoner’s jail conduct. The Supreme Court has also held that it must be based not only on the gravity of offence, but also factors that speak to their jail conduct, their reform or the risk posed, whether a lengthy duration has been served in prison and whether there is any purpose to continued imprisonment.
These considerations must become heightened in the context of life sentences which excludes remission for the entirety of natural life – a sentence which may have the effect of erasing hope and social reintegration altogether. The purpose of this article is not to comment on the penological goals that must guide remission. Instead, this discussion points towards the range of considerations that should come into play for a sentencing court when deciding how much of the possibility of remission should be excluded. However, in Navas, the Court’s primary focus is on the circumstances at the time of offence (of both the offence and offender). While it mentions that aspects such as jail conduct can be relevant, the decision centres itself around circumstances at the time of offence.
Navas- a wasted opportunity?
By relying merely on precedent that only speaks to commutation of the death penalty, the Court ends up adopting a misguided approach. This is because- i) the cited cases offer little to no reasoning over why it chose to exclude remission when it imposes life sentences and ii) the reasoning is focused on why the death sentence should be commuted. Given that Navas asks a question that comes later in the sentencing process (of choosing between varying ‘life without remission’ sentences)- this reliance becomes misplaced. Further, it relies on the Sriharan and Shraddhananda judgments, which have been criticised for their failure to provide any guidance whatsoever. Using a combination of decisions that are- i) completely unreasoned on the rationale for imposing life imprisonment excluding remission and ii) judgments that provide sparse guidance asides a focus on the gravity of offence, Navas misidentifies the penological goals and circumstances to decide how much remission to exclude.
The judgment is also unable to assess how sentencing must be conducted where a range of sentences are available. The precedent that Navas relies on all relate to choices between two alternative sentences. Fixing a sentence across a range entails considerations such as the baseline sentence- should a Court’s assessment begin with the highest sentence of life excluding remission for full life and then decrease the sentence based on circumstances that mitigate the same? Should the assessment be vice versa, starting from the lowest point in the range? These questions are left completely unanswered in the decision.
Despite opening the floor to develop principle for an important and under-examined question, Navas misses its opportunity to address this question meaningfully. This failure stems from the Court’s lack of engagement with the characteristics of such sentences, and the considerations that come to play when excluding remission. The identification of a specific penological goal (proportionality) itself may not be the issue- this goal too can find relevance in remission. However, by focusing on the principles articulated by the Court in its reasoning to commute death sentences, the Court in Navas ends up confining the scope of decision-making to the offender’s culpability at the time of offence. This is despite the fact that remission engages the offender’ actions after the time of offence.
Conclusion
The Supreme Court in Navas raises significant questions for life without remission sentences in death penalty commutations, and holds some promise in attempting to expand the range of considerations in imposing life without remission sentences. Despite this start, Navas goes down the old (and problematic) road of the Supreme Court in formulating a principle for imposing remission barred life sentences, without acute recognition of its implications. Insufficient engagement with the punishment (and with remission that it seeks to exclude) in Navas raises questions on the decision’s ability to turn things around in developing a principled sentencing framework, and may perhaps not cause the dent intended by the decision.
Lakshmi Menon is Associate (Sentencing) at Project 39A, National Law University Delhi.
The opinions expressed in the Blog are personal to the authors. The University does not subscribe to the views expressed in the article/blog and does not take any responsibility for the same.
Image credits: Black Hole of Calcutta, Unknown (c. 1762)
