DHARMASHASTRA NATIONAL

LAW UNIVERSITY, JABALPUR

SESSION - 2020/21

JURISPRUDENCE

TOPIC – Concept of Individualized justice in adjudication as a

recourse, outside the confine of ‘Is Law’

Submitted By – Under the guidance of –

Raman Singh Patel Dr. Manwendra Kumar Tiwari
BAL/098/19 (Associate professor of Law)
Mrs. Shruti Nandwana
(Assistant Professor of Law)

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 ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and
assistance from many people and I am extremely privileged to have got this all along
the completion of my project. All that I have done is only due to such supervision and
assistance and I would not forget to thank them.

I respect and thank Dr. Manwendra Kumar Tiwari for providing me an

opportunity to do the project work on ‘’ and giving us all support and guidance
which made me complete the project duly. I owe my deep gratitude to her, who took
keen interest on our project work and guided us all along, till the completion of our
project work by providing all the necessary information for developing a good
system.

I would not forget to remember our respected vice chancellor Prof. Balraj Chauhan
sir for his encouragement and more over for their timely support and guidance till
the completion of our project work.

I am thankful to and fortunate enough to get constant encouragement, support and

guidance from all Teaching staffs of Dharmashastra National Law University,
Jabalpur which helped us in successfully completing our project work.

Raman Singh Patel

BAL/098/019
Section – B
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Contents

Introduction ..................................................................................................................................... 4
Main Body ...................................................................................................................................... 5
Conclusion ...................................................................................................................................... 8

Cases

Bachan Singh v State of Punjab (1980): SCC, SC, 2, p 684 ........................................................... 6

Ishwari Lal Yadav v State of Chhattisgarh (2019): SCC, SC, 10, p 423 ........................................ 5

Miller v Alabama, 567 U.S.460 (2012) .......................................................................................... 6

State (Government of NCT of Delhi) v Jitender Kumar and Another (2013): ILR, 2, p 1168 ........ 5

State of Maharashtra v Damu S/o Gopinath Shinde and Others (2000): AIR, SC, p 1691 ........... 5

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Introduction

Generally we have black letter law/written/substantive law in our statute book to deal with any
sort of criminal or civil wrong and deciding the sentences for the person accused of such violation
of law. For Instances, The Indian Penal Code under Section 302 provides punishment for the
offence of murder. It is stated in the provision that ‘Whoever commits murder shall be punished
with death, or imprisonment for life, and shall also be liable to fine.’ And facilitate the courts to
adjudicate the matters relating to the offence of murder and decide the punishment. But the crucial
question of paramount importance arises here is, whether it is right to impose the same set of
punishment in every case of murder irrespective of the facts of case & other relevant circumstances
to the case. This project work tried to answer this question through various case laws in which the
Courts endorsed the Concept of Individualized Justice in adjudication as a recourse, outside the
confine of ‘Is Law’. This project work will analyze the reasons of various courts which emphasizes
upon the consideration of life, socio-economic, cultural-biological, aggravating-mitigating factors
of an accused in every individual case in order to determine the reasonable & appropriate
punishment for an accused, a punishment which must tailored in order to fit in the degree of
accused culpability.

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Main Body

“Individual sentencing, giving weight and consideration to circumstances relevant to the offence
and the offender, is an inseparable part of the process while adjudicating any case. In October
2019, a three-judge bench of the Supreme Court of India in the case of Ishwari lal yadav v Sate
of Chattisgarh,1 rightly held note that there cannot be any Hard-and-fast rule for weighing the
aggravating and mitigating circumstances, and each case must decided on its own merits. An
ordinary, law-abiding person may commit a crime solely because the values of their native culture
drive them to do so, and it is imperative that legal systems must place these individual within their
social context while seeking to punish them. That is the reason why the role of cultural defence in
criminal trials to reduce charges or acquit is highly contested, given that cultural values have to be
balanced against the maintenance of social order in enforcing the laws. However, within a
framework of individualised sentencing, where punishment must be tailored to fit the degree of
the accused’s culpability, these cultural factors must be accounted for appropriately. Moreover,
such factors can be used to mitigate the punishment for a crime without completely absolving the
defendant of guilt.2”

“In State of Maharashtra v Damu S/o Gopinath Shinde and others (2002), 3 the Supreme
Court considered the alienness of the belief system of the accused, his life history, culture &
social background, who had sacrificed five children in order to recover a mythical underground
treasure, and commuted the death sentence to life imprisonment which is absolutely essential to
the process of Individualization of justice through individualized sentencing. In State
(Government of NCTof Delhi) v Jitender Kumar and Another (2013),4 which was also a case
of human sacrifice where a death sentence had been imposed by the trial court, the Delhi High
Court commuted the death sentence on the basis of cultural and psychological factors relating to
the accused.”

“Because in the absence of adequately engaging with difficult questions of the individual case,
thecourt’s reasoning appears ill-informed of the crime that it seeks to punish.”

1
Ishwari Lal Yadav v State of Chhattisgarh (2019): SCC, SC, 10, p 423.
2
Choi, Carolyn (1990): “Application of a Cultural Defense in Criminal Proceedings,” UCLA: Pacific Basin Law
Journal, Vol 8, No 1, pp 80–90.
3
State of Maharashtra v Damu S/o Gopinath Shinde and Others (2000): AIR, SC, p 1691
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4
State (Government of NCT of Delhi) v Jitender Kumar and Another (2013): ILR, 2, p 1168.

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“The practice of invoking “similarity” to rely on a precedent and subsequently replicating the
outcome goes against individualized sentencing, which lies at the core of Bachan Singh5 case
framework. This precludes the possibility of identifying and considering mitigating factors that
might be exclusive to that particular case, leading to a standardization of sentencing process, which
the judgment in the Bachan Singh case categorically warned against. Using precedents based on
the similarity of the crime, leads to a situation where there is equality of outcomes, without any
equality in the sentencing process used to arrive at that outcome.”

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“The Supreme Court of the United States in the case of Miller v Alabama (2012), strongly
endorsed an individualized justice/assessment approach and strike down mandatory life without
parole (LWOP) sentences for juveniles convicted of homicides. Writing for the majority, Justice
Kagan did not bar states from imposing LWOP on juveniles who kill. She barred imposing these
sentences by rote, without bothering to consider the particular circumstances of the crime and the
offender's culpability, taking into account his age, his mental and emotional development, and his
familial background. States may continue to prescribe it for the worst juvenile offenders. What's
changed is the process by which LWOP will be applied - after an individualized assessment of the
offender and the crime. Justice Alito, minority judge in the instant case form conservative wing
objected strongly to this individualized approach to sentencing. "No one should be confused by
the particulars of the two cases before us," Alito admonished, in a remarkable rejection of
individualized justice when it arguably matters most, in the imposition of criminal sentences.”

“Should Alito ever be arrested, I imagine he'll expect and demand to be treated as an individual -
- not as a Catholic, or an Italian-American of a certain age, or a member of a conservative
SupremeCourt bloc, who might be sentenced for the sins of Justice Scalia (whatever they may be).
I suspecthe'll want to be treated as Samuel Alito, a particular person alleged to have committed a
particularcrime. Should he ever be arrested, Justice Alito will probably want police, prosecutors,
jurors and judges to pay close attention to his particulars, which I doubt he'll condemn as
"confusing."7”

5
Bachan Singh v State of Punjab (1980): SCC, SC, 2, p 684.
6
Miller v Alabama, 567 U.S.460 (2012).
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7
Wendy Kaminer, 2012, ‘ Juvenile Sentencing: Alito’s Misguided Dissent’, The Atlantic, June 27.

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“Concept of Individualized Justice in adjudication of the matter as a recourse, outside the
confines of “Is Law” needs proper consideration of anthropological, psychological, historical,
social, cultural & biological factors of the accused that should be playing a determinative role in
deciding the punishment. Particularized, Individualized justice is precisely what mandatory
sentences deny because it the ‘Is law’ which empowers the authorities to mandatory sentence a
person violates the individual liberty of that person. Sentences of any individual should not be
determined by the crime of the other person in his category because the approach is contrary to
the principle of individualized sentencing. Societal & cultural location of an accused which
influence his/her conduct should be taken into consideration while deciding the punishment.”

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Conclusion

“The concept of Individualized Justice in adjudication of the matter as a recourse, outside the
confines of “Is Law” needs comprehensive appreciation of both aggravating & mitigating factor
equally, holistic understanding of the cultural location of an accused & true nature of his life,
socio-economic conditions & societal background which influence him to indulge in the criminal
act. Interdisciplinary engagement with the anthropological and psychological dimensions of the
offender and the crime is essential to ground the relevance of mitigating circumstances and the
capacity for reform. In the absence of adequately engaging with such questions of the individual
case, the court’s reasoning appears ill-informed of the crime that it seeks to punish. The practice
of invoking “similarity” to rely on a precedent and subsequently replicating the outcome goes
against individualised sentencing, which lies at the core of Bachan Singh case framework. Using
precedents based on the similarity of the crime, leads to a situation where there is equality of
outcomes, without any equality in the sentencing process used to arrive at that outcome.”