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[This Article is authored by Adil Ameen, a 5th year B.A., LLB Hons student from Chanakya National Law University, Patna]

Introduction

India revamped its criminal justice system on July 1 2024, replacing colonial-era laws with new legislation. The Indian Penal Code, 1860 which defines and prescribes punishment for criminal offences, has been replaced by the Bharatiya Nyaya Sanhita (BNS) 2023. The objective of the new law is to deliver justice, not mere punishment within a maximum of three years, significantly impacting the criminal justice system. 

Under the new laws, the prescribed duration of imprisonment for 33 offenses has been extended, and ‘minimum mandatory punishment’ has been introduced for 23 offenses.  It means that for these offences, a lower limit of punishment has been prescribed by the statute specifically. Such mandatory punishment has been a part of the Indian criminal laws but its extension to additional offences needs closer scrutiny to analyze their impact on various components of the criminal justice system.

Such a change raises several key questions, including:

• What is Mandatory Minimum Sentencing?
• What are the advantages and challenges of mandatory minimum sentencing in the criminal justice system?
• How its introduction into the new criminal laws will impact the judicial discretion and the prison administration?

Mandatory Minimum Sentencing: An Overview

Once the offender’s guilt is proven, the next stage is fixing the sentencing, in terms of what the quantum, type, and duration of punishment is to be undergone by the convict. The punishment under Indian law broadly includes fine, forfeiture of property, imprisonment, death penalty, and community service.

Sentencing is the formal judgment of a convicted accused in a criminal case setting the punishment to be meted out. It is an integral part of the criminal justice system. In the words of Justice Krishna Iyer, it is “a means to an end, a psycho-physical panacea to cure the accused of socially reprehensible behaviour that caused the crime.” Indian criminal justice system provides a mixture of rules that govern sentencing, including mandatory minimum and maximum punishments, as well as discretionary fines. Such a system of mixed sentencing aligns with various legal systems worldwide, including those of the United Kingdom and the United States.

Sentencing under criminal law can be classified broadly into two types; one is mandatory maximum which gives an upper limit of punishment and leaves scope for judges and magistrates to determine the extent of punishment based on the facts of a particular case. In other words, this type of punishment allows judges to exercise discretion in determining the duration of the sentence. There is no specific formula of sentencing under the Indian legal system. Instead, it is the discretion of the judges and the circumstances of the case that mainly guide judges in determining the quantum of punishment for an offence which provides an upper or lower limit of punishment.

The other type of punishment, called Mandatory Minimum Sentence, refers to the prescribed punishment that a judge or magistrate is required to impose on an individual convicted of a specific offence. In mandatory minimum sentencing, the law itself prescribes a minimum punishment for an offense which, if a person is found guilty of, has to undergo. In offences prescribing mandatory minimum sentencing, the quantum of punishment cannot be reduced below the period fixed by the statute. In such an offence, the discretion of judges in determining the extent of the sentence remains absent.

Mandatory minimums used to be there in heinous crimes like murder and piracy in the seventeenth century but they became prevalent by the 1980s. The key motivation for harsher sentencing was to prevent trafficking and to combat sentencing disparity, although this goal remains unattained. Mandatory minimum sentences aim to ensure “just punishments, increasing effectiveness of deterrence, incapacitation of serious offenders, elimination of sentencing disparities and inducement of co-offenders to cooperate in investigations.”  Ensuring that individuals convicted of serious offenses serve significant time in prison will raise the cost of crime, create deterrence among the offender and, consequently enhance public safety by incapacitating organised criminals.  It results in “increased rates of incarceration”, which, however, is not proof of an effective justice system. Among other concerns, few argue that though Mandatory minimums offer an efficient and quick resolution of cases, the risk of injustice increases manyfold. Furthermore, it tends to bring uniformity, which at times sells out “individualisation for uniformity.” It is further argued that strict punishments do not always lead to the elimination of crime. Meanwhile, mandatory minimum disregards the distinction between first-time offenders and habitual ones, thereby ignoring the idea of proportionate punishment.

Impact of Mandatory Minimum Punishment:

Some of the offences where mandatory minimum punishment has been introduced under the new legislation are offense under s. 99 for buying of a child for the purposes of prostitution, s.105 culpable homicide not amounting to murder, s. 111(3) abetting, conspiring, or knowingly facilitating the commission of an organized crime, s. 111(4) for being a member of an organized crime syndicate, s. 117(3) an offense resulting in permanent disability or a persistent vegetative state and s. 139(1) kidnapping a child for the purposes of begging.

Most of these offenses are considered heinous and need a strict reaction from the state to bring deterrence. Also, it has been the policy of the Indian criminal justice system to punish heinous crimes severely as evidenced by the stringent penalties prescribed for such offences. Mandatory minimums for crimes and grave immoral acts of buying children for prostitution, murder, organized crime, and causing a permanent vegetative state of person will result in more deterrence and will strengthen public safety.  

The introduction of a mandatory minimum for heinous offenses under the new statute aligns with the aim of the Indian criminal justice system which gave importance to NAYAY i.e. justice. Additionally, it provides a significant level of consistency, predictability, uniformity, and deterrence while maintaining prudence and directing it toward a practical shape. Thereby the mandatory minimum sentence can help reduce organized crimes and create deterrence among organized criminals.

The issues associated with mandatory minimums can be addressed through guidelines to be followed while awarding sentences. It can guard against undue judicial leniency and issues like cliffs and excessive uniformity. The Malimath Committee Report and The Report of the Standing Committee on New Criminal Laws suggested the introduction of supplementary sentencing guidelines, which can be imperative in combating the challenges of mandatory minimum sentences. Two major components of the criminal justice system i.e. the Judiciary and the Prison will have a direct impact on such changes:

Impact on Judiciary

The introduction of mandatory minimum is directly connected with the court’s power and places a check on the discretionary power of judges. The discretionary power allows punishment to be determined based on the varying facts and circumstances of each case. The judge’s orientation towards the theory of punishment is reflected in the punishment awarded to the culprit, which makes the judicial process very subjective. Mandatory sentencing can play a crucial role in preventing the abuse of discretionary power of judges because its broad discretionary power has proved to be problematic in a society rife with inequality and class conflict. In the social context of India, where the majority of accused belong to marginalized sections and the system lacks sentencing guidelines, this change is supposed to prevent alleged biases and discrimination.

Further, it reduces the incentive for plea bargaining of prosecutors as they become unable to negotiate sentences, which results in longer trials which will be detrimental for the Indian judiciary with a huge backlog and pendency.

Impact on Prison

It has been argued that these changes can lead to problems of overcrowded jails and an increase in the associated costs for the state, which is already a serious issue in India. Mandatory minimum sentencing has led to a rise in the incarceration rate which directly affects the prison administration and causes the problem of  prison overcrowding, which is already a vital concern in the country as India ranks sixth in the world in the share of undertrial prisoners. In addition to that, data depicts an increase of 40.7% in its undertrial prisoner population in the last five years.

Conclusion

Predictability, uniformity and, deterrence offered by Mandatory minimum punishment align with the objective of new legislation which is to provide justice. However, issues like increased incarceration rates, prison overcrowding, and limitations on judicial discretion especially in the context of pendency and a significant undertrial population in India remain serious concerns. It offers a reduction in judicial biases and ensures proportionality at the risk of neglecting marginalized groups. Therefore, a clear sentencing guideline could be effective in mitigating these drawbacks.