Neither the legislature nor the judiciary should be allowed to frame and pronounce punishment disproportionate to the crime as compared to other contextual offences’
Since time immemorial, human civilisation has maintained social order by framing rules and regulations which are implemented through various mechanism of imparting justice to people. Justice by its very nature represents something that is just and right. What is just may depend on the context but being fair, impartial and right is essential to the idea of justice. Professor Henry Sidgwick, a 19th century British jurist known for his ethical theory had opined that the best indicator of a nation’s political success is to see how it administers justice.
In primitive societies punishment was targeted to evoke fear by subjecting offenders to brutality. This was supposed to act as a lesson and deterrent for others. However, with development and social evolution, punishment is now a subject of human rights with greater focus on reforming the wrongdoers, instead of tormenting them.
India as a welfare State has also adopted a reformative approach where the primary aim is to rehabilitate the offender. For instance, then IG (Prisons) Kiran Bedi took her reformist vision to Tihar Jail in 1993 and initiated a programme for the welfare of the inmates in the notorious prison, totally transforming the conditions inside Tihar. The reform policy had several aspects like changing prisoners’ attitudes through education, meditation and yoga; imparting vocational skills; making the prison administration accountable; involving prisoners through mobile petition boxes, various panchayats and daily mass sabhas; providing a better diet and improving living conditions; assisting addicts through drug de addiction centres and undertrials through legal aid cells. Similarly, the introduction of the Model Prison reforms by the Government in 2016 was a major step which brought uniformity in laws, rules and regulations governing prisoners.
However, there remains a major gap when it comes to the structure and uniformity of sentencing guidelines. Despite this being raised by various committees from time to time, neither the legislature nor the judiciary has issued any structured sentencing norms. The Malimath Committee on Reforms of the Criminal Justice System that was set up by the Ministry of Home Affairs, in its report submitted in 2003, emphasised the need to introduce sentencing guidelines in order to minimise uncertainty in awarding sentences. A few years later the Madhav Menon Committee, too, reasserted the need for a sentencing policy in India. In 2010, the then Law Minister stated that India was planning to establish a “uniform sentencing policy” on the lines of the guidelines followed in the US and the UK. However, no progress has been made in this direction till date. Instead, the recent amendments proposed in the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2020, (COTPA 2020) signal a movement in the reverse direction.
COTPA 2020 amendments prescribe new excessive penalisation for petty street vendors or hawkers selling tobacco products. Exemplifying this is a seven-year imprisonment or a fine of Rs 1 lakh for violations which involve immense subjectivity. Further, these violations are proposed to be made cognisable offences, which means police officers have the unilateral power to arrest these vendors, without a warrant or permission of a court and a bail will require appearance in front of a Magistrate.
These violations include selling tobacco products to a person below 21 years of age and selling tobacco within 100 meters of an educational institute. Even selling loose cigarettes, which has been an age-old system, is going to abruptly become a crime attracting a jail term.
In a country where an 18-year-old is a legal adult with the right to vote or marry, this is regulatory overreach. A section of these petty retailers sell their goods on foot and we don’t have a fixed definition of educational institutes which can vary, from a school to a private tuition centre. This proposal makes petty retailers look like heinous criminals who will be subjected to the whims and fancies of local police officers, many of whom can be compulsively corrupt.
Compared to other sentences and imprisonments prescribed under the Indian Penal Code (IPC), these are disproportionate and excessive. For instance the law prescribes a maximum punishment of six months’ jail for sale of adulterated drugs (IPC 275); up to six months in prison for rash or dangerous driving (IPC 279); maximum two years for rioting (IPC 147); three years for extortion (IPC 384); three years for voluntarily causing hurt with a dangerous weapon (IPC 324); five years for voluntarily throwing acid (IPC 326B) and seven years for kidnapping (IPC 363).
This move has rightfully caused widespread consternation among small retailers who are being made to look like criminals. The potential social harm caused by the sale of a bidi or a cigarette to an 18-year-old adult with fundamental rights to make informed choices, does not equal to the acts of kidnapping or throwing acid or even sale of adulterated drugs which can kill or maim. If tobacco is a legal product with the Government earning hefty revenues, how can selling it to lawful adults become a crime? This raises pointed questions on the process behind the framing of such rules. Is it the poor quality of research by bureaucrats drafting such proposals where they did not compare this with other existing provisions? Or is there an emotional overdrive to control tobacco consumption too fast? These retailers also sell other items of daily consumption like tea, water, juices, soft drinks, biscuits, savoury items and confectionary besides tobacco products. Their presence on every street corner forms the very character of India’s urban retail activity and is a sign of self-reliance and microentrepreneurship among people at the bottom of the pyramid.
The critics of the Government might draw controversial conclusions and say this is a larger move to attack unorganised retailers and kill micro retail activity to benefit large business groups or networks seeking organised retail activity. NGOs might even term it a bid by foreign firms to push more international tobacco into India through smuggled and illicit products at the cost of Indian tobacco farmers. However, this is a clear case of loss of balance that legislators and the judiciary need to maintain while framing sentencing guidelines. Neither the legislature nor the judiciary should be allowed to frame and pronounce punishment, which is disproportionate to the crime as compared to other contextual offences. Otherwise the belief of the people in the rule of law will erode.
In the past there have been instances of disproportionate sentencing being overturned by the judiciary. In the Soman vs. State of Kerala case, 2012, the Supreme Court reversed the imprisonment sentence imposed on the accused by the High Court, who was a liquor retailer charged with selling spurious alcohol which eventually led to the death of six people. Here the Supreme Court observed that: “Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice.” The court cited the need to consider a combination of three factors while directing the quantum of sentence: Proportionality, deterrence and rehabilitation, among which the principle of proportionality assumes highest prominence. A sentence must be commensurate with the seriousness or gravity of the crime. Here, the seller was the last and the weakest link in the supply chain of adulterated liquor comprising of an illicit manufacturer, the distributor and finally the retailer. Hence the court felt that reduction of the sentence from five years of imprisonment to three years was a fair decision.
While there is no debate on the harmful effects of tobacco and an ongoing reduction in its use should be pursued, shockingly disproportionate draft rules make a mockery of the system and create a legal paradox, thereby raising questions about the law-making procedure in the country. Such rules, affecting the livelihoods of many, need more debate and should be reviewed by expert committees comprising of judicial experts, socialists and industry representatives, before being put up for public review. If allowed, these will adversely affect the sense and sensibilities of judges who will have a dilemma while pronouncing sentences, given their disproportionate nature as compared to other crimes.
(The writer is president, not-for-profit organisation PRAHAR. The views expressed are personal.)
