Sentencing Policy in India

Introduction

• Criminal justice is the delivery of justice to those who have

committed crimes. The criminal justice system is a series of govt
agencies & institutions which performs 3 basic functions.
• The functions include:
• It defines what a ‘crime’ is, it adjudicates guilt of crimes & it imposes
punishment for crimes.
• The object is to supress criminal behaviour & punish the guilty.
• Goals include rehabilitation of the offenders, preventing other crimes
& moral support for victims
• Every criminal trial is essentially divided into two stages- the
conviction & sentencing.
• Conviction determines the guilt of the accused.
• Sentencing comes after a 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 & proportional
 Difference between sentencing & punishment
Significance of sentencing & sentencing policy

• Sentencing is simply about the imposition of punishment on individuals who have been
found guilty of criminal behaviour& does the work of stating & defining punishment in
the law of land
• Sentences are statements in judgements which lay down what is the punishment for a
particular offence according to law. When the same is put in action, it is called
punishment.
• Sentencing, is understood as one of the most vital aspects of the penal laws which is
believed to be the most powerful & invasive technique of the state
• Sentencing is not only significant for the accused before the court but also for the
accused but also for his family , friends, the victims of the crime& the society &
community as a whole
• Sentencing guidelines are a set of standards that are generally put in place to establish
rational & 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 & the convict
 Goals of sentencing policy

• Rational & consistent sentencing standards

• Sentencing decisions should be well reasoned & based on clearly articulated
sentencing standards
• Proportionality
• Punishment severity should generally be proportionate to the seriousness of the
offence 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 not only serve public safety but also
punishment that the offender deserves which also help in his reintegration into
the society
 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 an accused has been convicted of several
offences, each one constituting a distinct offence or crime, or when the accused has been
convicted of several crimes at the same time. The sentences for each crime are tacked on to each
other, so that each sentence begins immediately upon the expiration of the previous one.
• A determinate sentence is the same as fixed sentence: its for a fixed period of time.
• An indeterminate sentence, rather than stating 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 the statute in
several states.
• A mandatory sentence is created by the state or federal statutes & represents rendering of
punishment for which a judge has no room for discretion. Generally it means that sentence may
not be suspended & that no probation may be imposed, leaving the judge with no alternative but
the mandated sentence.
 Aggravating & 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 & 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 offence; culpability of the victim
• Circumstances at the time of the offence such as provocation, stress or emotional
problems
• Mental or physical illness & genuine remorse
 Indian Constitution & sentencing policy

• The power to pass a sentence must be granted by the law, which is

usually vested in the judiciary & the same must be exercised in
accordance with law.
• Articles 13, 14, 20 & 21 limit & govern the legislative power of the
legislatures
• Articles 72 & 161 of the Constitution of India confers upon the
appropriate executive the powers to pardon, res
 Sentencing procedure under CrPC 1973

• The code talks about sentencing mainly in s. 235, s.248, s.254, s.325,s.354, s.360 &s. 361
• Section 235
• This section provides a hearing to ensure that the convict is given a chance to speak for himself &
give an opinion on the sentence to be imposed on him.
• It is just for the judge to get an idea of the social & personal details of the convict & to see if any
of these will affect the sentence. Facts such as convict being a breadwinner might help in
mitigating his punishment.
• Section 354(3) 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 &
further mandates that in case the judge awards death penalty, ”special reasons” for such
sentence shall be stated in the judgement.
• It is only after giving due weight to the mitigating as well as aggravating circumstances, that it
must proceed to impose the appropriate sentence
• 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 2 or more offences
 Individualisation of punishment

• Courts in India are granted wide discretionary power to determine a fit sentence.
• The modern trend in penology & sentencing procedures is to emphasize the humanist
principle of individualising punishment to suit the offender & his circumstances
• This principle is given effect in Crpc by providing post conviction hearing under sections
235(2) & 248(2)
• Under s.235(2), if the accused is convicted the judge shall hear the accused on the
question of sentence & then pass the sentence on him according to law.
• Under s.248(2) opportunity is given to both parties to bring to the notice of the court
facts & circumstances which will help individualise the sentence from a reformative
angle.
• S.354 says that the court shall record the reason for sentence awarded & in case of
sentence of death, the special reasons for such sentence
 Alternative sentencing

• Alternative sentencing is a policy which is based on the premise that the

offenders can be reformed, reclaimed & rehabilitated.
• The introduction of alternative sanctions in the Indian sentencing policy
has been one of the most important developments in the sentencing
policy.
• In order to de-congest prisons, the alternatives to imprisonment such as
probation & parole, community service, payment of compensation to
victims, public censure etc have been introduced in India.
• Apart from trial & sentencing prescribed under crpc, other welfare
legislations prescribe differential sentencing policy in respect of certain
crimes & criminals
• Crimes against weaker sections, women, children are dealt with seriously
 Challenges in sentencing policy

• In USA, England & Wales, the sentencing councils have laid down statutory aggravating &
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.
• In India neither legislative guidelines nor judicially developed guidelines are available to the
judiciary to base their decisions
• Thus we can say that Indian judges exercise a relatively broad sentencing discretion.
• India lacks comprehensive sentencing policy in respect of death penalty
• Death sentences have been totally judge centric as there are 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.
• The personal philosophy of the judges also adds to the uncertainty & inconsistency in views.
• 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.
 Observations of Various Committees

• Observations by Malimath Committee

• The committee on Reforms of Criminal justice system 2003 emphasized the need to
introduce sentencing guidelines in order to minimize uncertainty in awarding sentences.
• Similarly in 2008 Madhava Menon Committee reasserted the need for statutory
sentencing guidelines.
• Soman v. state of Kerala
• Giving punishment to the wrong doer is at the heart of the criminal justice system, but in
our country it is the weakest part of administration of 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. 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. The
broad discretion opens the sentencing process to abuse and allows personal prejudices
of the judges to influence decisions.
 Is minimum mandatory sentence possible in India?

• Separation of power between the judiciary and the legislature is one of the basic structure of the
Constitution and hence any attempt by the legislature to fix a single, specific and mandatory
punishment and mandatory punishment is arbitrary.
• The circumstances of the crime and other mitigating factors of the accused should be taken into
account while deciding the period of sentence which is again arbitrary.
• Any law depriving 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 fundamental principles of judicial
process. The SC in Dadu v. state of Maharashtra and State of Punjab v. Dalbir Singh 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 is 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 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, which is
arbitrary.
 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 and it
requires the attention of the legislatures and judiciary as well
• Though establishing objectivity is a difficult task it must be attempted
by the legislature by considering and addressing challenges in the
present legal system.