Sentencing
denotes the culmination of judicial process which begins with the detection,
enforcement of the law, prosecution and adjudication. Thus the importance of
Sentencing lies in the fact that it becomes the face of Justice and a future
deterrent for the prospective offender of law.

The
determination of appropriate punishment after the conviction of an offender is often
a question of great difficulty as it always requires a careful consideration.
Though the law prescribes the nature and the limit of the punishment permissible
for an offence, it is the Court which has to determine in each case a sentence
suited to the offence and the offender. The maximum punishment prescribed by
the law of any offence is intended for the gravest of its kind and it is rarely
necessary in practice to go up to the maximum. The Code provides for wide
discretionary powers to the judge once the conviction is determined. The Code
talks about sentencing chiefly in Sections 235,248, 325, 360 and 361 Cr. P. C,
1973. The maximum punishment prescribed by the law of any offence is intended
for the gravest of its kind and it is rarely necessary in practice to go up to
the maximum. The measure of punishment in any particular instance depends upon
a variety of considerations such as the motive for the crime, its gravity,
character of the offender, his age, antecedents and other extenuating or
aggravating circumstances.

A
glance at the sentencing procedure upon conjoint reading of the Constitution,
Indian Penal Code and Code of Criminal Procedure, 1973 will show that the
discretion provided for under the existing procedure is guided by vague terms
such as ‘circumstances of the crime’ and ‘mental state and age’. Though these
can be determined, the point at which they will have an effect on the sentence
is the question left unanswered by the legislature. For instance, every crime
has accompanying circumstances but which ones qualify as mitigating and
aggravating circumstances is something which is left for the judge(s) to
decide. Therefore if one judge decides a particular circumstance as mitigating
this would not prevent another judge from ignoring that aspect as irrelevant.

In
Suresh Chandra Bahri v. State of Bihar1,
the Apex Court held that “the variation in quantum of sentencing is bound to
occur because of the varying degrees of seriousness in the offence and/or
varying characteristics of the offender himself. Moreover, since no two
offences or offenders can be identical the charge or label of variation as
disparity in sentencing necessarily involves a value based judgment. i.e.,
disparity to one person may be a simply justified variation to another. It is
only when such a variation takes the form of different sentences for similar
offenders committing similar offences that it can be said to desperate
sentencing.”

This
lack of consistency has encouraged a few judges to misuse the discretion on the
basis of their personal prejudices and biases. For instance, in the case of Gentela Vijayavardhan Rao v. State of Andhra
Pradesh2,
the appellant had with the motive to rob burnt a bus full of passengers,
resulting in the death of 23 passengers. The sentence provided by the judges of
the lower court was death penalty for convict A and 10 years of rigorous
imprisonment for convict B. This was challenged by the convict. The apex court
quoted from the judgment Dhananjoy Chatterjee
v. State of West Bengal3 to
support its view to uphold the judgment:

“Imposition
of appropriate punishment is the manner in which the courts respond to the
society’s cry for justice against the criminals. Justice demands that Courts
should impose punishment befitting the crime so that the courts reflect public
abhorrence of the crime.”

This
judgment reflects the principles of deterrence and retribution. But this cannot
be categorized as wrong or as right for this is a product of the belief of the
judges constituting the bench.

On
the other hand, in Mohd Chaman v. State4, the
courts have shockingly reduced the sentence of death penalty to rigorous
imprisonment of life due to the belief that the accused is not a danger to the
society and hence his life need not be taken. The accused in this case had
gruesomely raped and murdered a one and a half year old child. The lower courts
having seen the situation as the rarest of the rarest cases imposed death
penalty. This was reversed by the apex Court as it was not convinced that the
act was sufficiently deserving of capital punishment.

However
recently the Court in Sangeet & Anr.
v. State of Haryana5, sounded
a note of caution and observed that in the sentencing process, both the crime
and the criminal are equally important. We have, unfortunately, not taken the
sentencing process as seriously as it should be with the result that in capital
offences, it has become judge-centric sentencing rather than principled
sentencing. An individual may err but reasoned principle can’t err.

The
need for a standard and fixed sentencing guidelines proves to be the need of
the hour as the present procedure as pointed out by J Krishna Iyer is based on
the concept that “Every saint has a past, every sinner has a future.”

It
is evident from few pronouncements that the judiciary in itself has felt the
need for standard sentencing guidelines. For instance, in Rameshwar Dayal v. State of U.P6,
the SC observed that, “One complex problem relating to the sentencing process
is the lack of uniformity in the quantum of punishment given by different
courts for the same or similar offences” and it also pointed out that the
problem of disparity had not been solved satisfactorily so far.

Later,
the Supreme Court in Mohd. Chaman v. State7
taking note on a decision of the Supreme Court of USA in Gregg V. Gorgia,
observed that it is neither practicable nor desirable to imprison the sentencing
discretion of a judge or jury in the strait-jacket of exhaustive and rigid
standards. Nevertheless, these decisions do show that it is not impossible to
lay down broad guidelines as distinguished from iron – cased standards, which
will minimize the risk of arbitrary imposition of death penalty for murder and
some other offences under the penal code.

In
2013 the Supreme Court, in the case of Soman
v. State of Kerala8,
expressed its concern on the absence of structured guidelines. It observed that
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.

Apart
from the judicial pronouncements there are also few Committees that have
suggested for having uniform sentencing guidelines. In March 2003, the Malimath
Committee, issued a report that emphasized the need to introduce sentencing
guidelines in order to minimize uncertainty in awarding sentences, stating
that,

“the
Indian Penal Code prescribed offences and punishments for the same. 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. Therefore each Judge exercises discretion accordingly to his own
judgment. There is therefore no uniformity. Some Judges are lenient and some
Judges are harsh. Exercise of unguided discretion is not good even if it is the
Judge that exercises the discretion. In some countries guidance regarding
sentencing options is given in the penal code and sentencing guideline laws.
There is need for such law in our country to minimize uncertainty to the matter
of awarding sentence. There are several factors which are relevant in
prescribing the alternative sentences. This requires a thorough examination by
an expert statutory body.”9

The
Committee advised further 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.”

Subsequently
in 2007 the N. R. Madhava Menon Committee reasserted the need for sentencing
guidelines in the following words:- “In short, sentences and sentencing require
urgent attention of policy planners if criminal justice is to retain its credibility
in the public mind.”10

Currently
India does not have structured sentencing guidelines that have been issued
either by the legislature nor the judiciary. There have been few Committee
Reports that has recommended for framing of uniform sentencing guidelines so
that the offenders of like kind of offences do not go with different sentences.

Striking
a fair balance between uniformity and judicial discretion of sentencing is of
utmost importance in imposing the most suitable degree of punishment on an
offender for a crime. The wide disparities of sentencing for similar offences
reveal that the criminal justice system of India has failed in this regard.
Sentencing policy, which is the most vital link in Criminal Justice system and
which signifies the rule of Law in a State must be put forward by the
Legislature or Judiciary. This is because, it is not just that there is
disparity in sentencing, or in cases of death penalty or rape but there are
other offences in the IPC which clearly brings similar disparities into light.
It is time that we should imbibe the finer aspects of the successful Justice
System in various parts of the world and make our Criminal Justice System stronger
and more efficient. As a part of conclusion, it is stated that, (i) a clarified
set of guidelines with regard to sentencing policies must be put forward by the
judiciary; and (ii) “imprisonment for life without commutation or remission”
for specific offences which do not require death sentence but a relatively
stronger punishment must be given for.

This
paper has been designed in such a way that it points out the present procedure
for sentencing and the need for judicial sentencing guidelines citing the
drawbacks of the present system.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

STATEMENT OF PROBLEM

Sentencing
is decidedly the final and important stage of the Criminal justice system. It
gives a psychological effect of closure of having justice served properly. But
the fact that the determination of appropriate punishment in our country rests
mainly on certain vague terms such as aggravating or extenuating circumstances
or on its gravity does not serve the purpose of administration of Criminal
Justice system.

Admittedly
the wide discretionary power conferred on the judges under criminal justice
Administration system, viz, to award any sentence of imprisonment less than 7
years or any sentence of imprisonment between 7 to 10 years or any sentence of
imprisonment exceeding 10 years to any imprisonment including life imprisonment
and most importantly discretion in sentencing accused to either life
imprisonment or death sentence.

Similarly
the wide discretionary power conferred on the judges under criminal justice Administration
system in the matter of imposition of penalty as a part of sentencing requires
to be delved upon so as to mitigate arbitrary, unreasonable exercise of
judicial power.

In order to avoid this disparity in
sentencing a clarified set of guidelines with regard to sentencing policies
must be put forward.

 

 

 

 

 

 

 

 

 

 

OBJECTIVES OF THE
RESEARCH

The whole idea behind this paper is

1.     
To point out the present system of determination of suitable punishment.

2.     
To examine whether the wide discretionary powers of sentencing conferred
on the judges under Criminal Justice Administration system amounts to arbitrary
and unreasonable exercise of power vis-à-vis the Constitution.

3.     
To put forth the need for criminal law to offer more alternatives in the
matter of punishments instead of limiting the option merely to fines and
imprisonment

4.     
In respect of the quantum of punishments, the need for constant review
to ensure that it meets the ends of justice and disparity is reduced in similar
situations.

5.     
To point out the need for structured sentencing guidelines with the help
of judicial precedents and Committee Reports.

6.     
To suggest some illustrative set of guidelines with regard to sentencing
so as to avoid the disparity in sentencing

 

 

 

 

 

 

 

 

 

 

 

LITERATURE REVIEW

Andrew
von Hirsch, 1992, book “Principled Sentencing” offers students of law, legal
philosophy, criminology and criminal justice a wide-ranging selection of the
leading scholarship on contemporary sentencing. The volume offers readers
critical readings relating to the key moral, philosophical and policy issues in
sentencing today.

Andrew
Ashworth , 1992, book  “Sentencing and
criminal justice” provides an analysis of English sentencing policy and
practice provides unrivalled coverage of one of the most high-profile stages in
the criminal justice process taking into account criminological research,
statistical trends and theories of punishment.

Nora
V. Demleitner, 2013, book “Sentencing Law and Policy: Cases, Statutes, and
Guidelines” is a  leading text in
criminal law, co-authored by leading scholars in the field, Sentencing Law and
Policy draws from extensive sources to present a comprehensive overview of all
aspects of criminal sentencing. Online integration with sentencing commissions,
thorough treatment of current case law, and thought provoking notes and
questions stimulate students to consider connections between disparate
institutions and examine the purposes and politics of the criminal justice
system.

Christine
Piper and Susan Easton, 2005, book on “Sentencing and Punishment: The Quest for
Justice” provides an accessible account of recent developments in sentencing
and punishment from the standpoint of penal theories, policy aims, punishment
practice, and human rights. It also gives a comprehensive review of sentencing
law, penal policy, and penal justification.

Lynn
S. Branham, 2005, book, “The Law and Policy of Sentencing and Corrections”
gives this leading casebook covers both sentencing and correctional law and
policy.

Sidharth
Luthra & Supriya Juneja, 2017, article on “Crime & Sentencing” emphasizes that Sentences must be
imposed in a way that it reflects the philosophical rationale and purpose
behind its imposition. Disparity in sentencing adversely impacts both the
victim and convict and creates doubts as to the efficacy of the Criminal
justice system. Courts must see that the public does not lose confidence in the
judicial system, and imposing inadequate sentences would do more harm to the
justice system and may lead to a state where the victim loses confidence in the
judicial system and resorts to private vengeance.

Roger
K. Warren, 2007, article on “Evidence-Based Practices and State Sentencing Policy:
Ten Policy Initiatives to Reduce Recidivism” summarize how greater reliance on
evidence-based practices would allow the state courts to improve the
effectiveness of state sentencing outcomes, reduce recidivism, and, at the same
time, reduce over-reliance on incarceration and promote the utilization of
community-based alternatives for appropriate offenders. Moreover it also outline
ten policy initiatives which the state courts could pursue in order to fully
incorporate evidence-based practices into state sentencing policy.

Rashmi
Goyal et al, article on “Judicial Discretion” discusses the scope of the discretionary
power of the courts and the restrictions if any on the exercise of such power.
To trace this we have to observe the trend of the exercise of discretionary powers
by the courts and the judicial pronouncement of the Hon’ble Supreme Court and
Hon’ble High Courts on the exercise of such power.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RESEARCH METHODOLOGY

The study will be doctrinal in nature, and will make use
of both primary and secondary sources available on the subject.

This study is about Sentencing policy in India: A discourse
from legal perspectives. So, this will cover primarily the cases which were
adjudicated by Supreme Court followed by judgements concerning sentencing
policy under foreign jurisdictions, if any. Moreover, it will also cover the
reports of the Law Commission and concerned Committees as well as Articles
written by scholars in this regard.

The prominent primary sources will be the Constitution of
India, 1950 Article 14, 21; Indian Penal Code, 1860 Section 53, 75; Code of
Criminal Procedure Code, 1973 Section 235, 248,
325, 360 and 361 as well as report of law commission and concerned committees.
In addition to that reference will also be made to the concerned judgement of
the supreme court.

Secondary
sources will include books and articles by several individuals who have
contributed to the jurisprudence of sentencing policy.  

Significance of research

Sentencing
Policy is one of the most important topics in contemporary India, the topic is
especially relevant as abuse of discretion is becoming more rampant. In the
interests of establishing a welfare state, it is vital that the judiciary be
less burdened by inequality and disparity in sentencing for a similar set of
facts. This paper can be used to fuel discussion on the need for a sentencing policy
by identifying and deliberating upon not just the need for sentencing policy
but also the enforceability of the same.

Scope & Limitations

While
discussing the need for a sentencing policy, the researcher will discuss the
extent of abuse of discretion, sentencing policies of other nations and the opinions
of various individuals and groups on why India needs a sentencing policy.

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