By Abhishek Singhvi and Anish Dayal

There is a deceptively simple yet dark and dangerous mathematics behind the 14 year sentence handed down to Lalu Prasad by the Special CBI court in Ranchi. Judge Shivpal Singh aggregated two sentences of seven years (one in the IPC case of S 420, 468, 471, et al and the other in a Prevention of Corruption Act case arising out of the same set of facts) but directed them to run consecutively. Apart from its political ramifications, it is highly unusual on purely legal grounds. Indian courts have consistently deprecated the practice of handing down consecutive sentences when offences for which the person has been convicted arise out of the same transaction.

Simply put, this is the “Single Transaction Rule”. Two or more sentences can (and should) be directed to run concurrently. The Supreme Court in Mohd Akhtar Hussain’s case (1988) held that “if a given transaction constitutes two offences under two enactments generally … it is proper and legitimate to have concurrent sentences”.

Section 31 of the Criminal Procedure Code grants full discretion to the sentencing judge to run the sentences in multiple offences concurrently or consecutively. Which, however, is very different from justification for its use. That is why a three judge bench in Cherian’s case (2015) said: “When the prosecution is based on single transaction where it constitutes two or more offences, sentences are to run concurrently. Imposing separate sentences, when the acts constituting different offences form part of the single transaction is not justified.”

Lalu’s case did not merit this unprecedented verdict from the Ranchi judge. Firstly, Lalu is already convicted and sentenced in three previous fodder scam cases emanating contextually from the same set of circumstances. Secondly, he has already been handed down 3.5-5 years in those cases but those sentences have been directed to run concurrently.

Thirdly, for sentencing an offender already sentenced, S 427 of the CrPC provides a similar discretion to the judge to choose between consecutive and concurrent and there is nothing obligating him to choose the former. Fourthly, there are still two pending cases against him in the fodder scam trail and continued application of the “consecutive” model in those remaining cases would reduce it to a farce.

Fifthly, the 70-year-old Lalu is beset with serious health problems, already in hospital battling various scam cases, and concurrent sentences would have harmoniously and sufficiently married the punitive and rehabilitative aspects. Sixthly, possible valid considerations in a hypothetical case necessitating consecutive sentences (need to ensure that the convict does not rejoin society; certainty of non-rehabilitation and non-reform; danger to society; or a concurrent sentence amounting to an insignificant or de minimis term) are all conspicuous by their absence in the Lalu case.

A 2015 report by the Centre for Prison Reform titled ‘The Unsystematic Issuing of Consecutive Sentences in America’ severely criticised the American sentencing system. The US is in a minority (21%) that allows uncapped consecutive sentences for multiple crimes arising out of one act also termed as “charge stacking”. Most countries (46%) use concurrent sentences where the greater offence absorbs the lesser. Others (26%) allow consecutive sentences but cap them anywhere from 15 years to life.

The Lalu judgment notes the public prosecutor’s submission that “Lalu Prasad Yadav is a fit person who remains active 24 hours to organise rally against government. Recently, on 27.08.2017 they organised a Mega Show in Gandhi Maidan, Patna and they emerge as a head of all opposition parties and try to pull leg of State Government as well as Central Government” (sic). Without deliberating whether such arguments were worthy to tilt the decision in favour of consecutive sentencing, the judge merely directs so, leaving everything to imagination. No reasons are furnished.

Controversial as the man in the dock – Lalu – may be, there is no basis for violating his human and fundamental rights egregiously, which this sentence has clearly done. Instead, the judgment must accelerate our formulation of a clearer, unambiguous and consistent sentencing policy that eschews consecutive sentences, except where the rare tests stated above are established. Otherwise, the day is not far when this power itself may be declared unconstitutional.

Abhishek Singhvi is a national spokesperson for Congress. Anish Dayal is a practising advocate