Asia & Australia

April 15, 2017

“Gender Cannot Be A Ground For Leniency In Punishing Convict”: SC


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On April 12, a bench headed by Justice Arjan Kumar Sikri of the Supreme Court stated that gender cannot be a ground for leniency in punishing a convict. The bench said, “Women are competing (with) men in the criminal world; they are emulating them in all crimes; and even surpassing men at times… Therefore, concept of criminal justice is not necessarily synonymous with social justice.”

Setting aside an order of the Himachal Pradesh High Court, which had reduced the sentence of a woman convict with three minor children in an “attempt to murder case” from two-year imprisonment to a fine of Rs 30,000, the bench restored the convict’s two-year jail term saying that the trial court had taken a lenient view.

The bench then said that although the SC in the past used gender as a relevant consideration in awarding punishment, it would depend upon the facts of a particular case. Justice Sikri said, “Though gender is not a mitigating circumstance in awarding sentence, in Indian context, a woman can be shown leniency in some cases as the impact of jail term on her kids cannot be lost sight of. I may add that it would depend upon the facts of each case, whether it should be treated as a relevant consideration and no hard and fast rule can be laid down. For example, where a woman has committed a crime being a part of a terrorist group, mercy or compassion may not be shown.”

While the Indian Penal Code provides discretion to judges while awarding the sentence, the court will undoubtedly have regard to extenuating and mitigating circumstances.

Notably, the bench restored the punishment by the trial court saying, “There was no reason to show any further mercy by the HC. Further, removing the element of imprisonment altogether was, in any case, erroneous in law.”

Justice Sikri then said, “In many countries, gender is not a mitigating factor. Some jurists also stress that in this world of gender equality, women should be treated on a par with men even as regards equal offences committed by them.”

In a separate but concurring judgment, Justice Ashok Bhushan said that the IPC contained a carefully considered regime of punishment and that provision for fine was there only for lighter offences.

Justice Bhushan further added, "Appellate Court cannot exercise its power under 386(b)(iii) to alter the sentence of the imprisonment and fine into a sentence of only a fine, which shall be contrary to the statutory scheme. In event, such power is conceded to Appellate Authority to alter a sentence of imprisonment and fine with sentence only of a fine, the consequences will be unfair and unjust."

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