Sentencing Policy In India

1. SENTENCING POLICY IN INDIA
SEBI.S
GOVT. LAW COLLEGE
ERNAKULAM.

2. INTRODUCTION
 Criminal justice is the delivery of justice to those
who have committed crimes. The criminal justice
system is a series of government agencies and
institutions which performs three basic functions.
The functions include:
 It defines what a ‘crime’ is, it adjudicates guilt of
crimes and it imposes punishment for crimes.
 The object is to suppress criminal enterprise and
punish the guilty. Every criminal trial is a voyage of
discovery in which truth is the quest.
 Goals include the rehabilitation of offenders,
preventing other crimes, and moral support for
victims.

3. Every criminal trial is essentially divided
into two stages- the conviction and
sentencing. Conviction is where the guilt
of the accused is determined. The
sentencing thus, comes at a stage after
the person has been found guilty.
As the fundamental validation of any
criminal justice delivery system is
determined based on the kind of
punishment given for various offences,
therefore the sentencing must be just
and proportional.

4. DIFFERENCE BETWEEN SENTENCING
AND PUNISHMENT
 Sentences are statements in judgements which
lay out what the punishment for a particular
offence will be according to the law. When the
same is put in action, and is operationalised, it
would be called the punishment. Thus, it can be
said that the sentence is the predecessor to the
actual inflicting of punishment.
 Sentencing is simply about the imposition of
punishment on individuals who have been found
guilty of criminal behaviour and does the work of
stating and defining the punishment in the law of
land.
 Sentencing is not only what happens at the trial
and what punishment the convict is awarded with,
it is also about how the legislature deals with
particular criminal phenomena.

5. SIGNIFICANCE OF SENTENCING AND
SENTENCING POLICY.
 Sentencing, usually, is understood as one of the most vital
aspects of the penal laws which is believed to be a most
powerful and invasive technique of the State.
 Sentencing is not only significant for the accused before the
Court but also for his family, friends, the victims of the
crime, and the society or community as a whole.
 Sentencing can be perceived as an idea that is dependent on
moral and social values existing in a given society at a given
point of time.
 Sentencing guidelines are a set of standards that are
generally put in place to establish rational and consistent
sentencing practices within a particular jurisdiction.
 The sentencing policy is necessary to promote a particular
just society, protection of rights of both the victim and the
convict.
 The sentencing policy simply reflects the measure of
judgement and the rationale, the society has for a certain
crime and can be considered as a formula for calculating what
is right for a particular crime.

6. GOALS OF SENTENCING POLICY.
 Rational and Consistent Sentencing Standards:
Sentencing decisions should be well-reasoned, and
based on clearly-articulated sentencing standards.
 Proportionality:
Punishment severity should generally be proportionate
to the seriousness of the offense, while taking into
account the unique characteristics of each case.
 Uniformity:
Similar offenders who commit similar crimes should
receive similar sentences.
 Ensuring Public Safety:
The recommended punishments should serve public
safety and that the recommended punishments address
not only the punishment the offender deserves, but also
the punishment that will aid in the offender’s
rehabilitation and reintegration with society.

7. TYPES OF SENTENCING
 A concurrent sentence is served at the same time
with another sentence imposed earlier or at the
same proceeding.
 A consecutive (or cumulative) sentence occurs
when a defendant has been convicted of several
counts, each one constituting a distinct offense or
crime, or when a defendant has been convicted of
several crimes at the same time. The sentences
for each crime are then "tacked" on to each
other, so that each sentence begins immediately
upon the expiration of the previous one.
 A deferred sentence occurs when its
implementation is postponed until some later time.
 A final sentence puts an end to a criminal case.
It's distinguished from an interlocutory
or Interim sentence.

8.  A determinate sentence is the same as a fixed
sentence: It's for a fixed period of time.
 An indeterminate sentence, rather than stating a
fixed period of time for imprisonment, instead
declares that the period shall be "not more than"
or "not less than" a certain prescribed duration
of time. The authority to render indeterminate
sentences is usually granted by statute in several
states.
 A life sentence represents the disposition of
a serious criminal case, in which the convicted
person is sentenced to spending the remainder
of their life in prison.
 A maximum sentence represents the outer limit
of a punishment, beyond which a convicted
person may not be held in custody.
 A straight or flat sentence is a fixed sentence
without a maximum or minimum.

9.  A mandatory sentence is created by state or
federal statutes and represents the
rendering of a punishment for which a judge
has no room for discretion. Generally it
means that the sentence may not be
suspended and that no probation may be
imposed, leaving the judge with no
alternative but the "mandated" sentence.
 A minimum sentence represents the minimum
punishment or the minimum time a convicted
person must spend in prison before becoming
eligible for parole or release.
 A suspended sentence actually has two
different meanings. It may refer to a
withholding or postponing of pronouncing a
sentence following a conviction or it may
refer to the postponing of the execution of a
sentence after it has been pronounced.

10. AGGRAVATING AND MITIGATING
FACTORS OF SENTENCING.
• Aggravating circumstances refers to factors that
increases the severity or culpability of a criminal act.
Typically, the presence of an aggravating circumstance
will lead to a harsher penalty for a convicted criminal.
It include heinousness of the crime, lack of remorse, and
prior conviction of another crime.
• A mitigating factor is the opposite of an aggravating
circumstance, as a mitigating factor provides reasons
as to why punishment for a criminal act's ought to be
lessened.
Common mitigating factors include:
 Lack of a prior criminal record.
 Minor role in the offense; Culpability of the victim.
 Circumstances at the time of the offense, such as
provocation, stress, or emotional problems that might
not excuse the crime but might offer an explanation.
 Mental or physical illness; and Genuine remorse.

11. INDIAN CONSTITUTION AND
SENTENCING POLICY
 The Constitution of India being the fundamental
law of the State has conferred the power upon
both the Central and the State governments to
make laws concerning regulation of crimes,
enactment of criminal procedure, and preventive
detention laws.
 The power to pass a sentence must be granted by
the law, which is usually vested in judiciary, and
the same must be exercised in accordance with
the law.
 Arts. 13, 14, 20 and 21 of the Constitution of
India limits and governs the legislative power of
the Legislatures.
 Arts. 72 and 161 of the Constitution of India
confers upon appropriate Executives the powers
to pardon, respite, remit or commute sentences.

12. SENTENCING POWERS AND PROCEDURAL LIMITATIONS
Sentencing in India is governed by substantive
criminal laws, special legislations creating special
offence, procedural laws, major among which is
Criminal Procedure Code 1973 and the judicial
interpretation and guidelines laid down by the
superior courts.
LOWER JUDICIARY
 Lower courts in the sentencing process work in
hierarchy in terms of power to pass sentences.
 The judicial magistrates have limited powers to
sentence that the judicial magistrate second class
can only sentence up to one year, Judicial
Magistrate First Class can sentence up to three
years.
.

13. Lower judiciary
 Power to take cognizance of offence is vested
with judicial magistrates even though such
crimes may be tried by the court of sessions.
 Chief Judicial Magistrate cannot pass sentence
of imprisonment exceeding seven years.
 An Assistant Sessions Judge may pass any
sentence up to ten years.
 A Sessions Judge or Additional Sessions Judge
may pass any sentence including death.

14. HIGH COURT
A High Court may pass any sentence authorised by law.
Every death sentence awarded by the session’s court
has to be confirmed by the High Court.
The powers of the courts are however unfettered by
virtue of inherent powers and therefore High Courts
have been trying out of the box sentence to
individualise the punishments.
The controversy of whether High Courts can choose
between life imprisonment and death penalty and
award life imprisonment with fixed term of 20, 25,
30 or 35 years has been constitutionally settled.
High courts, equally with powers of Supreme Court, can
now award term life imprisonment where High Courts
would fix the minimum term of life imprisonment
before the expiry of which executives cannot
exercise remission powers.

15. HIGH COURT
In the interest of justice, High Court can
also quash the FIRs where amicable
settlement has been reached by the
parties.
On the appellate side, High Courts can
reverse, modify, enhance or reduce the
sentence awarded by the lower courts
including enlarging the accused on bail if his
confinement is otherwise not warranted
for.
The role of the High Courts in India to a
greater extent has been of a ‘modifier’ and
‘moderator’ of lower court sentence.

16. SUPREME COURT
The Supreme Court plays the role of a
moderator of High Court as the High Court
checks proportionality and legality of
sentences passed by the lower courts.
 Certain guidelines have been issued by the
Supreme Court to check arbitrary sentencing
by lower courts and smaller benches.
Apart from this traditional sentencing
structure, few legislations establish separate
courts for trial of special offences.
Such special courts are also bound by criminal
procedure code, 1973 unless specially so
excluded.

17. THE SENTENCING PROCEDURE UNDER
CRIMINAL PROCEDURE CODE, 1973
The Code talks about sentencing chiefly in S.235,
S.248, S.254, S.325, S.354, S.360 and S.361.
Section 235
S.235 is a part of Chapter 18 dealing with a
proceeding in the Court of Session.
It directs the judge to pass a judgment of acquittal
or conviction and in case of a conviction to follow
clause 2 of the section. Clause 2 of the section
gives the procedure to be followed in cases of
sentencing a person convicted of a crime.
The section provides a hearing to ensure that the
convict is given a chance to speak for himself and
give an opinion on the sentence to be imposed on
him.

18. This section plainly provides that every
convicted accused must be given a
chance to put forth his viewpoint post
conviction about the kind of punishment
which deserves to be imposed.
The reasons given by the convict may not
be pertaining to the crime or be legally
sound.
It is just for the judge to get an idea of
the social and personal details of the
convict and to see if any of these will
affect the sentence. Facts such as the
convict being a breadwinner might help
in mitigating his punishment or the
conditions in which he might work.

19. The section just does not stop at allowing
the convict to speak but also allows the
defence counsel to bring to the notice of the
court all possible factors which might
mitigate the sentence and if these factors
are contested then the prosecution and
defence counsel must prove their plea.
Section 248
Section 248 comes under Chapter 19 of the
Code dealing with warrants case.
The provisions contained in this section are
very similar to the provisions under S.235.
However this section ensures that there is
no prejudice against the accused.

20. For this purpose it provides in clause 3 that in
case where the convict refuses previous
conviction, then the judge can, based on the
evidence provided determine if there was
any previous conviction.
Section 354(3)( offence punishable with
death or with life imprisonment)
Section 354(3) of the Code of Criminal
Procedure, 1973, makes it obligatory in
cases of conviction for offences punishable
with death or with imprisonment for life to
assign reasons in support of the sentence
awarded to the convict and further ordains
that in case the Judge awards death
penalty, “special reasons” for such sentence
shall be stated in the judgment. Thus, the
Judge is under a legal obligation to explain
his choice of the sentence.

21. The legislature in its supreme wisdom thought
that in some “rare cases” for “special
reasons” to be recorded it will be necessary
to impose the extreme penalty of death to
deter others and to protect the society and
in a given case even the sovereignty and
security of the State or country. It,
however, left the choice of sentence to the
judiciary with the rider that the court may
impose the extreme punishment of death for
“special reasons”.
The sentencing court has, therefore, to
approach the question seriously and make an
endeavour to see that all the relevant facts
and circumstances bearing on the question of
sentence are brought on record.

22.  It is only after giving due weight to the
mitigating as well as the aggravating
circumstances, that it must proceed to impose
the appropriate sentence.
Section 31(1)
 Section 31(1) of the Code vests discretion in the
Court to direct the punishment to run
concurrently or consecutively when a person is
convicted at one trial of two or more offences.
 The Court may sentence the accused for such
offences to the several punishments prescribed
there which such Court is competent to inflict.
 Such punishments would consist of imprisonment
to commence the one after the expiration of the
other in such order as the Court may direct
subject to the limitation contained in Section 71
of the Indian Penal Code.

23. INDIVIDUALIZATION OF PUNISHMENT: THE ANCHOR
OF INDIAN SENTENCING POLICY
 Sentencing in the common law world has long
been characterised by its discretionary
nature.
 Sentencing in India falls squarely within the
tradition of common law jurisdictions: courts
are provided with wide discretion to
determine a fit sentence.
 The modern trend in penology and sentencing
procedures is to emphasise the humanist
principle of individualising punishment to suit
the offender and his circumstances.

24.  The principle is given effect to in the Cr.P.C by
providing for post conviction hearing under
sections 235(2) and 248(2).
 Under section 235(2), if the accused is
convicted, the judge shall hear the accused on
the question of sentence and then pass the
sentence on him according to law.
 Under section 248(2), opportunity is given to
both parties, to bring to the notice of the court,
facts and circumstances which will help
individualise the sentence from a reformative
angle.
 A sentencing process without discretion may be
more consistent but will also be equally arbitrary
for ignoring relevant differences between cases.
 Courts themselves have acknowledged that
sentencing discretion needs to be regulated
failing which disparity in sentencing cannot be
ruled out.

25. HEARING ON SENTENCE AND REASONS FOR
THE SENTENCE- THE TWIN SAFEGUARDS
 The sentencing policy in India basically rests on the
procedure of hearing on the sentencing and reasons
provided in the judgment by judges. In the absence of
structured guidelines, these twin safeguards serve the
purpose of just sentencing.
Section 235
 Section 235 imposes a duty on the court to hear the
accused on the sentence to be imposed.
 It may so happen that the consideration which did not
weigh in favour of accused at the time of proving guilt
may play vital role in deciding quantum of punishment.
 Section 235, therefore, serves dual purposes, namely,
(i) it acts as the rule of natural justice inasmuch as it
gives the offender an opportunity of being heard on the
question of sentence and (ii) it seeks to assist the
Court in determining the appropriate sentence.

26.  The reasons for the sentence unfold the
choice of punishment and reasons behind
it. Therefore, the judicial officer cannot
wantonly sentence anyone.
 He has to bestow his mind to the case,
assess all aggravating and mitigating
factors, and then settle on a particular
approach and pass the sentence.
 All this exercise is seen from his
speaking orders and judgments.
 Such reasons furnish enough material to
the Apex Courts to correct sentence if
passed arbitrarily or disproportionately.

27. The section also casts additional
obligations
(i) to give the offender an opportunity to
make a representation on the question
of sentence and
(ii) to take into consideration such
representation while determining the
appropriate sentence to be awarded to
the offender.
Section 354 further supplements section
235 by mentioning that the court shall
record the reason for sentence awarded
and, in the case of sentence of death,
the special reasons for such sentence.

28. ALTERNATE SENTENCING POLICY
 Alternative Sentencing, on the other hand, is a policy
which is based on the premise that the offenders can be
reformed, reclaimed, re-assimilated and rehabilitated in
the social milieu.
 The introduction of alternative sanctions in Indian
sentencing policy, therefore, has been one of the most
important developments in sentencing policy in the last
few decades.
 In order to de-congest prisons, the alternatives to
imprisonment such as ‘Probation’ and ‘Parole’ ‘Community
Service’, ‘forfeiture of property’, ‘payment of
compensation to victims’, ‘public censure’ etc have been
introduced in India.
 Alternative sentencing has received international
recognition and has been widely in practice though
forms and formats differ from one jurisdiction to
another. In India, alternatives to imprisonment are
available at all the three stages: pre-trial stage;
sentencing stage; and post sentencing stage.

29.  Apart from the trial and sentencing as
prescribed by the Criminal Procedure Code, 1973,
other welfare legislations prescribe differential
sentencing policy in respect of certain crimes and
criminals.
 To speak of such crimes, crimes committed on
weaker sections of the society like crimes against
women, children and schedule castes etc are
dealt with differently prescribing different
punishments.
 Crimes against the weaker sections of the
society are dealt with on a higher plane with
highest possible punishments.
 The recent enactment of Protection of Children
from Sexual Offences Act, 2012, Amendment to
the Atrocity Act, and Criminal Law Amendment
Act 2013, prescribe highest punishment for the
offences which offences otherwise carry lighter
sentences under Indian Penal Code 1860.

30. SENTENCING IN JUVENILES
Certain offenders are to be dealt with differentially.
A juvenile cannot be put into the machine of ordinary
laws nor can a first offender be mixed with hardened
criminals.
To arrange for this, therefore, Indian criminal justice
provides for different sentencing policy for certain
individuals as different from other crimes. Children
below eighteen years of age are termed ‘juveniles’ if
they conflict with law.
A separate sentencing policy for juveniles is prescribed
under newly re-enacted Juvenile Justice (Care and
Protection of Children) Act, 2015 wherein offences by
juveniles have been classified on the basis of
seriousness as petty offences, serious offences and
heinous offences.
For first two offences a complete rehabilitative package
is made available wherein such juveniles escape rigours
laws in the process of rehabilitation. However, for
heinous offences, a mixture of term imprisonment and
rehabilitation is prescribed to take care of symptoms
of recidivism and prospects of rehabilitation.

31.  Probation of offenders Act, 1958 has a pivotal role to
play in individualisation of punishment and rehabilitation
of offenders.
 Offenders below 21 years cannot be punished unless
compelling reasons weigh up with the courts. Offenders
who have committed offences punishable with less than
2 years cannot be punished and shall have benefits of
admonition, unless of course, court is otherwise of
different opinion.
 Using powers under probation Act, 1958, lower and
high courts are experimenting unstated forms of
punishments such as community services etc.
 Releasing persons under supervision of probation
officers for offences punishable with less than life
imprisonment is contemplated.
 The disqualifications attached with convictions are
taken care of by section 12 of the Act.
 Under the Code of Criminal Procedure, 1973 some
alternate sentencing and alternatives to sentencing are
prescribed.

32.  Private complaint too can be withdrawn if a
mutual disposition is arrived at.
 Offences of private nature are allowed to be
compounded facilitating parties to avoid the
legal enigma. Even the government is
empowered to withdraw the case in
circumstances warranting public interest.
 Sui generis plea bargaining is also provided
wherein the parties and prosecutor can strike
a mutual disposition and bargain for
punishment that suits the crime.
 Courts are sufficiently empowered to deal
with first offenders under section 360 of
the Criminal Procedure Code, 1973.

33.  Victim compensation and restitution of victims
had been on back foot in Indian sentencing
system for a long time.
This predicament is the result of two reasons.
Firstly, legislature laid more emphasis on the
retributive part of the punishment where it
prescribed rigorous punishment but turned blind
eyes to victim compensation.
Secondly, judiciary also did not press for
rehabilitation schemes in spite of few
legislations speaking for compensation and
rehabilitation.
 However, we have a changed scenario now, where
both the institutions are focusing primarily on
the rehabilitation of the victims apart from
sternly dealing with criminals in the form of long
incarceration.
 Compensation is increasingly being used as
alternative to imprisonment and additions to
imprisonment.

34. SAFEGUARDS IN SENTENCING POLICY
Sentences passed by the courts are
safeguarded by multiple methods. Except
few all sentences are appealable.
Multiple layers of appeals are provided
under the code. Courts have the powers
to review their own judgments also.
Sentences passed by the judiciary can be
tempered with mercy by the executive.
A unique interplay is contemplated
between judiciary and executive in
Indian sentencing policy.
Clemency powers are vested with
constitutional dignitaries i.e., President
and Governors.

35. SAFEGUARDS IN SENTENCING POLICY
Clemency powers include power to wipe out
sentences or modify sentences. Apart from
clemency powers, executives have also been
empowered to cut short sentences passed by the
judiciary in the form of remission and
commutations.
Section 432 and 433 of Cr.P.C
Section 432, 433 of the Criminal Procedure Code
1973, provide exercise of remission powers,
occasionally and or periodically, to reassess the
crime, repentance and productivity of such
criminals. However the remission and
commutation powers are again subject matter of
judicial review.

36. COHERENT PHILOSOPHY OF SENTENCING.
There are many philosophies behind sentencing
justifying penal consequences. The
philosophical/jurisprudential justification can be
retribution, incapacitation, specific deterrence,
general deterrence, rehabilitation, or restoration.
Any of the above or a combination thereof can be
the goal of sentencing.
In India, there is no single unifying sentencing aim
that judges must give priority to when passing
sentences. Instead, Indian judges may choose any
of the different sentencing aims including
deterrence to suit the offender.
This leads to the proposition that different judges
can legitimately adopt different sentencing
approaches when sentencing the same case.

37. In other words, they can treat like cases
differently and can justify their decisions
according to sentencing law.
Society’s cry for justice has also held the
field especially for heinous crimes. It has
played decisive roles in sentencing policy.
Example is the Nirbhaya Amendment Act,of
2013. However, in the absence of stated
sentencing aims judges would be following
their own perception about the philosophy
behind the prescription of certain specified
penal consequences for particular nature of
crime.”
 “The humane art of sentencing [therefore]
remains a retarded child of the Indian
criminal system”

38. COMMON DEFECTS IN SENTENCING POLICY:
 The highest punishment awarded is death penalty and
the second highest is life imprisonment there is no
punishment in between as it is in the USA
“imprisonment without remission or commutation”
 The fines incorporated under the Code need to be
revised as value of money has increased 50 times
compared to the year 1860.
 The court requires the prosecution to either prove
beyond reasonable doubt or else the accused will be
acquitted whether or not he is guilty. This undermines
the confidence of the public in the system of law and
order.
 The aggravating and mitigating factors must be
applied uniformly to all cases and must have a specific
framework.
 Imposition of punishments by the trial courts without
recording adequate reasons and in a manner which
appears to be arbitrary and unjust.

39. CHALLENGES IN SENTENCING POLICY IN INDIA
 The fact that the phrase sentencing policy covers array
of sentencing dimensions ranging from legislature to
executive via judiciary, hundreds of problems affront
when one charts the problems of sentencing policy in
India.
 Right from the appointment of judges to the integrity of
a judge, from legislative malice to the executive
inefficiency, everything can be contributing factor in the
quality of sentence dispensed.
 The problem of disparity in sentencing is chosen for a
reason that right from the judiciary to legislature and
from the criminal to common, everybody has
acknowledged that sentencing disparity is hunting the
justice delivery system and therefore checks and
balances should be introduced at the earliest.
 India lacks coherent sentencing policy coupled with
legislative or judicial regulations.

40. ABSENCE OF STRUCTURED SENTENCING GUIDELINES
 In USA, England and Wales, the sentencing councils
have laid down statutory aggravating and mitigating
factors that need to be taken into consideration
mandatorily by the courts before they proceed to
sentence. In these countries guidance regarding
sentencing options is given in the penal laws or
sentencing guideline are provided with.
 In India neither legislative guidelines nor judicially
developed guidelines are available to the judiciary to
base their decisions on.
 As a consequence, it is fair to say that Indian judges
exercise a relatively broad sentencing discretion in
the context of a virtual legislative vacuum.
 There is need for such law in our country to
minimise uncertainty to the matter of awarding
sentence.

41. LACK OF COMPREHENSIVE SENTENCING
POLICY REGARDING DEATH SENTENCE
AND LIFE IMPRISONMENT.
 India lacks comprehensive sentencing policy
in respect of death penalty in absolute sense
bringing the highest impartial institution into
embarrassment of highest order.
 Death sentences have been totally read to be
Judge centric as there is no standards
prescribed by the legislature or judiciary .
 The alternative of life imprisonment to death
penalty can be assumed safe when the
disparity in death sentence is so apparent.
However, the shift from death penalty to life
imprisonment also shifted the controversy
when judiciary started fixing the meaning of
life imprisonment.

42.  Traditionally, life imprisonment in India is
taken to be indeterminate where executive
would remit the sentence normally after 14
years on the basis of rehabilitative
jurisprudence.
 EXECUTIVES CONTROL OVER
SENTENCING POLICY.
 Benefits of remission and short sentencing are
at the command and mercy of the executive
which exercise can also be subject matter of
disparity in the same way the judiciary has
been accused of.
 This prerogative of executive has been
circumscribed by the judiciary wherein it fixes
the ‘term’ for life convicts who cannot be
released before actually serving such term.
This has led to a new chapter in sentencing
policy being argued as ‘judicially fashioned’ but
‘executively shunned’!

43. JUDICIAL VARIABILITY
 The personal philosophy of the Judges also adds to the
uncertainty and inconsistency in views. Inconsistency in
sentencing is likely to happen in India because of judicial
variability.
 Judicial variability refers to the individual differences
between judges in terms of their approach to sentencing
that occur naturally by virtue of their own individuality.
 A certain amount of judicial variability will always exist in
every sentencing system.
 Penalties like life imprisonment and death sentences have
been dependent upon the prediction of judges to the
greater extent.
 In respect of life imprisonment, few judges have handed
down life imprisonment of 20/21/25/30/35 years in some
cases whereas in other similar cases other judges have
specifically mentioned that life imprisonment shall be
subject to remission.

44. RESTORATIVE SENTENCING
 Restoration and rehabilitation are the
emerging facets of the sentencing policy.
Presently, Indian judiciary have shed their
traditional sentencing policies and
experimenting milder forms of sentences such
as community sentences. However, we do not
find uniformity in this exercise either.
The sentencing policy in respect of juveniles
and young offenders is mostly based on the
restorative approach.
 The interpretation of section 357 of Criminal
Procedure Code 1973 in recent past has
rekindled the compensatory jurisprudence in
India.

45. OBSERVATION BY THE MALIMATH COMMITTEE
The Committee on Reforms of Criminal Justice System
(the Malimath Committee) 2003, a body established by
the Ministry of Home Affairs, issued a report that
emphasized the need to introduce sentencing guidelines
in order to minimize uncertainty in awarding sentences.
The Indian Penal Code prescribes offences and
punishments and for many offences only the maximum
punishment is prescribed and for some offences the
minimum may be prescribed.
The Judge has wide discretion in awarding the sentence
within the statutory limits.
There is now no guidance to the Judge in regard to
selecting the most appropriate sentence given the
circumstances of the case.
Each Judge exercises discretion accordingly to his own
judgment and there is therefore no uniformity. Some
Judges are lenient and some Judges are harsh.

46.  The Malimath Committee further observed that, in
order to bring “predictability in the matter of
sentencing,” a statutory committee should be
established “to lay guidelines on sentencing guidelines
under the Chairmanship of a former Judge of
Supreme Court or a former Chief Justice of a High
Court experienced in criminal law with other members
representing the prosecution, legal profession, police,
social scientist and women representative.”
OBSERVATION BY MADHAVA MENON COMMITTEE.
 In 2008, the Committee on Draft National Policy on
Criminal Justice (the Madhava Menon Committee),
reasserted the need for statutory sentencing
guidelines.
 The Law Ministry in many an instances stated that
the government is looking into establishing a “uniform
sentencing policy” in line with the United States and
the United Kingdom in order to ensure that judges do
not issue varied sentences.

47. SUPREME COURT REGARDING THE NEED
FOR A SENTENCING POLICY
State of Punjab v. Prem Sagar & Ors .
In 2008, the Supreme Court of India, noted the absence
of judiciary-driven guidelines in India’s criminal justice
system, stating, in our judicial system, we have not
been able to develop legal principles as regards
sentencing. The superior courts except for making
observations with regard to the purport and object for
which punishment is imposed upon an offender, had not
issued any guidelines.”
The Court stated that the superior courts have come
across a large number of cases that “show anomalies as
regards the policy of sentencing,” adding, “whereas the
quantum of punishment for commission of a similar type
of offence varies from minimum to maximum, even
where the same sentence is imposed, the principles
applied are found to be different. Similar
discrepancies have been noticed in regard to imposition
of fines.”

48. Soman v. State of Kerala
The observation of Supreme Court regarding the
absence of structured guidelines:
“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. There are no legislative or judicially laid down
guidelines to assist the trial court in meting out the
just punishment to the accused facing trial before it
after he is held guilty of the charges .”
The Supreme Court has also asserted that the
impossibility of laying down standards is at the very
core of the Criminal law as the judges are invested
with wide discretionary powers.
 It can be asserted that, in the absence of an adequate
sentencing policy or guidelines, it comes down to the
judges to decide which factors to take into account
and which to ignore. Moreover, they opined that broad
discretion opens the sentencing process to abuse and
allows personal prejudices of the judges to influence
decisions.

49. Alister Anthony v. State of Maharashtra
 In this case, the Court held that sentencing is an
important task in the matters of crime. “One of
the prime objectives of the criminal law is
imposition of an appropriate, adequate, just and
proportionate sentence commensurate with the
nature and gravity of the crime and the manner in
which the crime is done. There is no straitjacket
formula for sentencing an accused on proof of
crime. The courts have evolved certain principles:
The twin objective of the sentencing policy is
deterrence and correction.”
 What sentence would meet the ends of justice
depends on the facts and circumstances of each
case and the court must keep in mind the gravity
of the crime, motive for the crime, nature of the
offence and all other attendant circumstances.

50. MODALITIES TO ARREST ARBITRARINESS
IN SENTENCING
 Though sentencing disparity has equally hunted
all the jurisdictions, common law countries such
as Canada, Australia, New Zealand and South
Africa, have not implemented a formal guidelines.
 On the other hand, many countries have tried to
regulate sentencing discretion by evolving their
own standard – standards some of which have
stood the test of time whereas many have
withered away with passing time.
 Four techniques have been used to reduce
disparity and promote consistency in judicial
sentencing namely establishing statutory
sentencing principles secondly establishing
sentencing guidelines thirdly re-imposing
judicial self regulation and lastly prescribing
mandatory minimum sentencing.

51. IS MINIMUM MANDATORY SENTENCE
POSSIBLE IN INDIA?
Critical analysis
 Separation of power between the judiciary and the
legislature is one of the basic structure of the
constitution of India and any attempt by the legislature
to fix a single, specific and mandatory punishment will
be per say arbitrary.
 The accused and the angle of the crime from the point
of view of the accused and other mitigating factors are
an important aspect while deciding the period of
sentence. If mandatory sentencing is there the court
may not be able to exercise discretion in sentencing
which itself is again arbitrary.
 It is also impossible for the legislature to think of or
prescribe an exact punishment or take into account
various factors of the crime, the specific facts of the
accused, interest of society at large, the specifications
of a given case, and other relevant factors which cannot
be put in any straitjacket formula.

52.  Any law depriving the judiciary from its discretion in
awarding a proportionate sentence and mandating it to
pass an award as required by the legislature is equal to
passing a decision without any reasons, without hearing
the aggrieved party or any other violation of the
fundamental principles of judicial process.
 Mandatory sentences and/or minimum mandatory
sentences can be said to grossly disproportionate to the
actual crime committed if it will be cruel, unusual or
excessive and / or if such punishment will not serve any
penological purpose and thus violative of Article 14 & 21
of the Constitution of India.
Mithu v. State of Punjab
 The Constitution bench in Mithu v. State of Punjab,
(1983) 2 SCC 277 has struck down a similar provision
which prescribed mandatory death penalty without any
alternative whatsoever for being violative of Article 14
and 21 of the Constitution of India.

53. Dadu v. State of Maharashtra
 The Hon’ble Supreme Court of India in the matter of
Dadu v. State of Maharashtra, (2000) 8 SCC 437 and
State of Punjab v. Dalbir Singh, (2012) 3 SCC 346 have
struck down similar provisions which denied judicial
discretion in awarding sentences.
 The real controversy arises when the legislature has
provided an alternative mandatory punishment.
 For example life imprisonment in alternative to death
sentence and/or when legislature has provided a
structure of punishment to run in between the minimum
and maximum period of imprisonment.
 In this instance the Judiciary is compelled to sentence
the minimum mandatory punishment i.e. either
mandatory life imprisonment, which is in alternative to
death sentence or the mandatory specified number of
years of imprisonment, which is the minimum
punishment for a particular offence which is arbitrary.

54. CONCLUSION
 Indian judiciary has come of age and deserve
appropriate sentencing policy.
 Individualization, non-uniform or random
sentencing status in India needs to give way for
certainty and logicality in the award of sentence.
 There are several issues concerning sentencing
policy in India of which tackling subjective
judicial determinations of sentencing is
prominent and it requires the attention of the
Legislatures and Judiciary as well.
 Though establishing objectivity in sentencing is a
difficult task it must be attempted by the
Legislature by considering and addressing the
existing challenges in the present legal system.

55. THANK YOU