Sentencingdenotes the culmination of judicial process which begins with the detection,enforcement of the law, prosecution and adjudication.
Thus the importance ofSentencing lies in the fact that it becomes the face of Justice and a futuredeterrent for the prospective offender of law.Thedetermination of appropriate punishment after the conviction of an offender is oftena question of great difficulty as it always requires a careful consideration.Though the law prescribes the nature and the limit of the punishment permissiblefor an offence, it is the Court which has to determine in each case a sentencesuited to the offence and the offender.
The maximum punishment prescribed bythe law of any offence is intended for the gravest of its kind and it is rarelynecessary in practice to go up to the maximum. The Code provides for widediscretionary powers to the judge once the conviction is determined. The Codetalks 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 intendedfor the gravest of its kind and it is rarely necessary in practice to go up tothe maximum. The measure of punishment in any particular instance depends upona variety of considerations such as the motive for the crime, its gravity,character of the offender, his age, antecedents and other extenuating oraggravating circumstances.Aglance at the sentencing procedure upon conjoint reading of the Constitution,Indian Penal Code and Code of Criminal Procedure, 1973 will show that thediscretion provided for under the existing procedure is guided by vague termssuch as ‘circumstances of the crime’ and ‘mental state and age’. Though thesecan be determined, the point at which they will have an effect on the sentenceis the question left unanswered by the legislature.
For instance, every crimehas accompanying circumstances but which ones qualify as mitigating andaggravating circumstances is something which is left for the judge(s) todecide. Therefore if one judge decides a particular circumstance as mitigatingthis would not prevent another judge from ignoring that aspect as irrelevant.InSuresh Chandra Bahri v. State of Bihar1,the Apex Court held that “the variation in quantum of sentencing is bound tooccur because of the varying degrees of seriousness in the offence and/orvarying characteristics of the offender himself. Moreover, since no twooffences or offenders can be identical the charge or label of variation asdisparity in sentencing necessarily involves a value based judgment. i.
e.,disparity to one person may be a simply justified variation to another. It isonly when such a variation takes the form of different sentences for similaroffenders committing similar offences that it can be said to desperatesentencing.”Thislack of consistency has encouraged a few judges to misuse the discretion on thebasis of their personal prejudices and biases. For instance, in the case of Gentela Vijayavardhan Rao v. State of AndhraPradesh2,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 ofthe lower court was death penalty for convict A and 10 years of rigorousimprisonment for convict B. This was challenged by the convict. The apex courtquoted from the judgment Dhananjoy Chatterjeev. State of West Bengal3 tosupport its view to uphold the judgment:”Impositionof appropriate punishment is the manner in which the courts respond to thesociety’s cry for justice against the criminals.
Justice demands that Courtsshould impose punishment befitting the crime so that the courts reflect publicabhorrence of the crime.”Thisjudgment reflects the principles of deterrence and retribution. But this cannotbe categorized as wrong or as right for this is a product of the belief of thejudges constituting the bench.
Onthe other hand, in Mohd Chaman v. State4, thecourts have shockingly reduced the sentence of death penalty to rigorousimprisonment of life due to the belief that the accused is not a danger to thesociety and hence his life need not be taken. The accused in this case hadgruesomely raped and murdered a one and a half year old child. The lower courtshaving seen the situation as the rarest of the rarest cases imposed deathpenalty. This was reversed by the apex Court as it was not convinced that theact was sufficiently deserving of capital punishment.Howeverrecently the Court in Sangeet & Anr.v. State of Haryana5, soundeda note of caution and observed that in the sentencing process, both the crimeand the criminal are equally important.
We have, unfortunately, not taken thesentencing process as seriously as it should be with the result that in capitaloffences, it has become judge-centric sentencing rather than principledsentencing. An individual may err but reasoned principle can’t err. Theneed for a standard and fixed sentencing guidelines proves to be the need ofthe hour as the present procedure as pointed out by J Krishna Iyer is based onthe concept that “Every saint has a past, every sinner has a future.”Itis evident from few pronouncements that the judiciary in itself has felt theneed 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 processis the lack of uniformity in the quantum of punishment given by differentcourts for the same or similar offences” and it also pointed out that theproblem of disparity had not been solved satisfactorily so far.Later,the Supreme Court in Mohd.
Chaman v. State7taking 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 sentencingdiscretion of a judge or jury in the strait-jacket of exhaustive and rigidstandards. Nevertheless, these decisions do show that it is not impossible tolay down broad guidelines as distinguished from iron – cased standards, whichwill minimize the risk of arbitrary imposition of death penalty for murder andsome other offences under the penal code.In2013 the Supreme Court, in the case of Somanv. State of Kerala8,expressed its concern on the absence of structured guidelines. It observed thatgiving punishment to the wrongdoer is at the heart of the criminal justicedelivery, but in our country, it is the weakest part of the administration ofcriminal justice.
There are no legislative or judicially laid down guidelinesto assist the trial court in meting out the just punishment to the accusedfacing trial before it after he is held guilty of the charges.Apartfrom the judicial pronouncements there are also few Committees that havesuggested for having uniform sentencing guidelines. In March 2003, the MalimathCommittee, issued a report that emphasized the need to introduce sentencingguidelines in order to minimize uncertainty in awarding sentences, statingthat,”theIndian Penal Code prescribed offences and punishments for the same. For manyoffences only the maximum punishment is prescribed and for some offences theminimum may be prescribed. The Judge has wide discretion in awarding thesentence within the statutory limits. There is now no guidance to the Judge inregard to selecting the most appropriate sentence given the circumstances ofthe case. Therefore each Judge exercises discretion accordingly to his ownjudgment.
There is therefore no uniformity. Some Judges are lenient and someJudges are harsh. Exercise of unguided discretion is not good even if it is theJudge that exercises the discretion. In some countries guidance regardingsentencing 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 matterof awarding sentence.
There are several factors which are relevant inprescribing the alternative sentences. This requires a thorough examination byan expert statutory body.”9TheCommittee advised further that, in order to bring “predictability in the matterof sentencing,” a statutory committee should be established “to lay guidelineson sentencing guidelines under the Chairmanship of a former Judge of SupremeCourt or a former Chief Justice of a High Court experienced in criminal lawwith other members representing the prosecution, legal profession, police,social scientist and women representative.”Subsequentlyin 2007 the N.
R. Madhava Menon Committee reasserted the need for sentencingguidelines in the following words:- “In short, sentences and sentencing requireurgent attention of policy planners if criminal justice is to retain its credibilityin the public mind.”10CurrentlyIndia does not have structured sentencing guidelines that have been issuedeither by the legislature nor the judiciary. There have been few CommitteeReports that has recommended for framing of uniform sentencing guidelines sothat the offenders of like kind of offences do not go with different sentences.Strikinga fair balance between uniformity and judicial discretion of sentencing is ofutmost importance in imposing the most suitable degree of punishment on anoffender for a crime. The wide disparities of sentencing for similar offencesreveal that the criminal justice system of India has failed in this regard.Sentencing policy, which is the most vital link in Criminal Justice system andwhich signifies the rule of Law in a State must be put forward by theLegislature or Judiciary.
This is because, it is not just that there isdisparity in sentencing, or in cases of death penalty or rape but there areother offences in the IPC which clearly brings similar disparities into light.It is time that we should imbibe the finer aspects of the successful JusticeSystem in various parts of the world and make our Criminal Justice System strongerand more efficient. As a part of conclusion, it is stated that, (i) a clarifiedset of guidelines with regard to sentencing policies must be put forward by thejudiciary; and (ii) “imprisonment for life without commutation or remission”for specific offences which do not require death sentence but a relativelystronger punishment must be given for.
Thispaper has been designed in such a way that it points out the present procedurefor sentencing and the need for judicial sentencing guidelines citing thedrawbacks of the present system. STATEMENT OF PROBLEMSentencingis decidedly the final and important stage of the Criminal justice system. Itgives a psychological effect of closure of having justice served properly. Butthe fact that the determination of appropriate punishment in our country restsmainly on certain vague terms such as aggravating or extenuating circumstancesor on its gravity does not serve the purpose of administration of CriminalJustice system.Admittedlythe wide discretionary power conferred on the judges under criminal justiceAdministration system, viz, to award any sentence of imprisonment less than 7years or any sentence of imprisonment between 7 to 10 years or any sentence ofimprisonment exceeding 10 years to any imprisonment including life imprisonmentand most importantly discretion in sentencing accused to either lifeimprisonment or death sentence.Similarlythe wide discretionary power conferred on the judges under criminal justice Administrationsystem in the matter of imposition of penalty as a part of sentencing requiresto be delved upon so as to mitigate arbitrary, unreasonable exercise ofjudicial power.
In order to avoid this disparity insentencing a clarified set of guidelines with regard to sentencing policiesmust be put forward. OBJECTIVES OF THERESEARCHThe 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 conferredon the judges under Criminal Justice Administration system amounts to arbitraryand unreasonable exercise of power vis-à-vis the Constitution.3. To put forth the need for criminal law to offer more alternatives in thematter of punishments instead of limiting the option merely to fines andimprisonment4.
In respect of the quantum of punishments, the need for constant reviewto ensure that it meets the ends of justice and disparity is reduced in similarsituations.5. To point out the need for structured sentencing guidelines with the helpof judicial precedents and Committee Reports. 6. To suggest some illustrative set of guidelines with regard to sentencingso as to avoid the disparity in sentencing LITERATURE REVIEWAndrewvon Hirsch, 1992, book “Principled Sentencing” offers students of law, legalphilosophy, criminology and criminal justice a wide-ranging selection of theleading scholarship on contemporary sentencing. The volume offers readerscritical readings relating to the key moral, philosophical and policy issues insentencing today.AndrewAshworth , 1992, book “Sentencing andcriminal justice” provides an analysis of English sentencing policy andpractice provides unrivalled coverage of one of the most high-profile stages inthe criminal justice process taking into account criminological research,statistical trends and theories of punishment.
NoraV. Demleitner, 2013, book “Sentencing Law and Policy: Cases, Statutes, andGuidelines” is a leading text incriminal law, co-authored by leading scholars in the field, Sentencing Law andPolicy draws from extensive sources to present a comprehensive overview of allaspects of criminal sentencing. Online integration with sentencing commissions,thorough treatment of current case law, and thought provoking notes andquestions stimulate students to consider connections between disparateinstitutions and examine the purposes and politics of the criminal justicesystem.
ChristinePiper and Susan Easton, 2005, book on “Sentencing and Punishment: The Quest forJustice” provides an accessible account of recent developments in sentencingand punishment from the standpoint of penal theories, policy aims, punishmentpractice, and human rights. It also gives a comprehensive review of sentencinglaw, penal policy, and penal justification.LynnS. Branham, 2005, book, “The Law and Policy of Sentencing and Corrections”gives this leading casebook covers both sentencing and correctional law andpolicy. SidharthLuthra & Supriya Juneja, 2017, article on “Crime & Sentencing” emphasizes that Sentences must beimposed in a way that it reflects the philosophical rationale and purposebehind its imposition. Disparity in sentencing adversely impacts both thevictim and convict and creates doubts as to the efficacy of the Criminaljustice system. Courts must see that the public does not lose confidence in thejudicial system, and imposing inadequate sentences would do more harm to thejustice system and may lead to a state where the victim loses confidence in thejudicial system and resorts to private vengeance.
RogerK. Warren, 2007, article on “Evidence-Based Practices and State Sentencing Policy:Ten Policy Initiatives to Reduce Recidivism” summarize how greater reliance onevidence-based practices would allow the state courts to improve theeffectiveness of state sentencing outcomes, reduce recidivism, and, at the sametime, reduce over-reliance on incarceration and promote the utilization ofcommunity-based alternatives for appropriate offenders. Moreover it also outlineten policy initiatives which the state courts could pursue in order to fullyincorporate evidence-based practices into state sentencing policy.
RashmiGoyal et al, article on “Judicial Discretion” discusses the scope of the discretionarypower 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 powersby the courts and the judicial pronouncement of the Hon’ble Supreme Court andHon’ble High Courts on the exercise of such power. RESEARCH METHODOLOGYThe study will be doctrinal in nature, and will make useof both primary and secondary sources available on the subject.This study is about Sentencing policy in India: A discoursefrom legal perspectives.
So, this will cover primarily the cases which wereadjudicated by Supreme Court followed by judgements concerning sentencingpolicy under foreign jurisdictions, if any. Moreover, it will also cover thereports of the Law Commission and concerned Committees as well as Articleswritten by scholars in this regard.The prominent primary sources will be the Constitution ofIndia, 1950 Article 14, 21; Indian Penal Code, 1860 Section 53, 75; Code ofCriminal 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 ofthe supreme court. Secondarysources will include books and articles by several individuals who havecontributed to the jurisprudence of sentencing policy. Significance of research SentencingPolicy is one of the most important topics in contemporary India, the topic isespecially relevant as abuse of discretion is becoming more rampant. In theinterests of establishing a welfare state, it is vital that the judiciary beless burdened by inequality and disparity in sentencing for a similar set offacts. This paper can be used to fuel discussion on the need for a sentencing policyby identifying and deliberating upon not just the need for sentencing policybut also the enforceability of the same.Scope & LimitationsWhilediscussing the need for a sentencing policy, the researcher will discuss theextent of abuse of discretion, sentencing policies of other nations and the opinionsof various individuals and groups on why India needs a sentencing policy.