Written by Karan Mishra
Fourth Year, BA LLB. Symbiosis Law School, Noida
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
A Sentence refers to punishment awarded by the competent judicial authority to the person found guilty of a crime, Sentencing an offender with punishment is at the heart of the Criminal Justice System, the objective should be to impose an appropriate, adequate, just and proportionate sentence that commensurate with the nature of crime, but in our Country, it is the weakest part of the administration of the Criminal Justice System.
There are two schools of thought that guide the sentencing process, Individualization and Standardization. Former favors absolute discretion to the learned judges in deciding the term and form of punishment while the latter means to prescribe a standard law formulated by the Legislature which will limit and regulate the powers and discretion of judges in awarding sentences.
With regards to the latter school of thought, there is no structured sentencing policy established either by the Legislature or Judiciary. In Indian Criminal Justice System, there are various punishments that can be awarded to the convicts by the Courts, namely, a death sentence, imprisonment for life, simple or rigorous imprisonment or imposition of fine. Apart from the five above-mentioned sentences, the Apex Court has also introduced a Sentence of Community Service as a punishment to the convict which is to be arranged by Ministry of Social Justice and Empowerment, or as the court may order from time to time.
The Indian Penal Code prescribes offences with minimum and maximum punishments but for some sentences, only maximum punishment is prescribed and for some, only minimum sentences, the wide range of punishment between these statutory limitations provide huge discretion to the judges, some judges are harsh in their approach while others are lenient. To bridge this gap, there is a need for a structured Sentencing policy.
The Statutory limitation: Section 354(1)(b) of the Criminal Procedure Code, directs judges to record reasons behind awarding a particular sentence, and according to Section 354(3) of the Code, whenever any sentence authorizes life imprisonment or death penalty, special reasons must be laid down. This provision mandates the Judges to record special reasons for their decision when awarding life imprisonment or capital punishment.
Despite the above provisions, it is undisputable that in the absence of sentencing policy in India, there is still a lot of discretion with the judiciary and due to which there are instances of passing of inadequate and irregular sentences.
Issues in absence of Sentencing Policy:
Inadequate sentences cause more harm than justice and undermines the public confidence in the proper justice delivery mechanism. In a case, a trial court sentenced a person to one day’s jail term and the same was enhanced by the High Court to seven years and subsequently modified to three years by the Apex Court, this points that there is a huge variance in sentences from court to court. The Judiciary has taken notice of the disparities and stated that there are admitted disparities, some criminals get harsher punishments while others receive largely varied sentences for an equivalent crime and many even go unpunished.
The sentencing process gives unguided discretion which leads to huge disparity in sentences awarded by the Courts of law, which is contrary to and in violation of the principle of equality and human rights. Disparate sentencing has adverse effects on the offenders making it difficult for their reformation and rehabilitation after serving the sentence and the public loses trust and confidence in the Criminal Justice System. A convict who gets a harsher sentence than his fellow convict placed under similar circumstances develops a kind of antagonism against the society, furthering inequality and injustice. In the long term, disparate sentences cause more harm and result in people losing faith in the criminal justice delivery system.
A judge of one jurisdiction may sentence a convict with a minimum sentence whereas a Judge of another jurisdiction may prescribe for a maximum sentence. In absence of structured sentencing policy, such conundrums are bound to occur. This issue was also brought to light in the report of Malimath Committee, 2003, the Committee advised that guidelines be laid down under the chairmanship of a former Judge of Supreme Court or former CJI of High Court and various other members. A similar approach was recommended in foreign jurisdictions with respect to sentencing policy, there, a committee was advised to be set up as judicial oversight committee which would provide its insights and recommendations in the matters of inadequate sentences. Further, in 2007, Madhava Menon Committee reiterated the need for sentencing policy for Indian Criminal Justice System in line with the USA and UK.
More Acquittals than Convictions:
In absence of the structured sentencing policy, the intent and objective of the legislature is not fulfilled with respect to Criminal Amendments.
Prior to the Criminal Law Amendment Act, (CLA) 2013, a minimum sentence of 7 years was to be awarded and only if the court finds sufficient and adequate reasons, such a sentence could be reduced. Perusing this clause, many courts reduced sentences and awarded punishments below the minimum punishment mandate, this caused an inadequacy of passing appropriate sentences. The Apex Court reprimanded the Sessions and the High Court judges for giving inadequate sentences in such cases. After the CLA, 2013 this clause was repealed and the judge’s discretion was thus limited.
The CLA, 2013 widened the definition of rape and introduced a minimum sentence of seven years for the offence of Rape, another amendment in 2018, introduced the mandatory minimum sentence to ten years and also provided for capital punishment for rape of children below twelve years of age. This caused the judges not to award minimum sentences as opposed to earlier where they can reduce sentences in certain cases and instead grant acquittals. This resulted in higher acquittal rates, causing unintended repercussions, like reduction in convictions under the new amendment. This was entirely opposite of what the legislature intended to achieve from the amendments. From the year 2013-2018, out of 909 cases of rape under the CLA 2013, only 52 cases (5.72%) resulted in conviction. Amendments in criminal law will not achieve fruition unless a structured sentencing policy is established by the legislature to complement the new provisions introduced.
Procedure for Appellate Courts and Judge’s Discretion:
There is no procedure laid down for hearing the accused or offender before imposing or modifying sentence by the Appellate Court. The Supreme Court did not give the answer to this grey area of law and it remains unclear whether the Appellate Courts while modifying or imposing sentences are bound by their requirement of Section 235(2) of the Criminal Procedure Code, 1973.
The Judge’s discretion is what decides the quantum and form of punishment one should receive; a detailed sentencing policy will ensure that there is no excessive enumeration of discretion.
Suggestions & Conclusion
Time and again, Judiciary and Governmental Committees have emphasized on the need for sentencing guidelines, with growing crime rates, the need for it is dire. A judicial oversight committee, just like in foreign jurisdictions may very well work with Indian Criminal Justice System.
In presence of a structured sentencing policy, a Judge’s discretion will be better equipped and sentencing disparity shall be reduced with respect to sentencing a convict with an adequate, just and reasonable sentence. Contemplating between not awarding a harsh minimum sentence to a person found guilty of a crime and instead acquitting him altogether is gross injustice to the victims and the society at large, as was the case in post-amendment of criminal law. Thus, the Courts should balance the interest of victims, convicts and the society and therefore for more appropriate guidance on the same, a structured sentencing policy would pave the way for better administration of the Criminal Justice System.
 Alister Anthony Pareira vs State of Maharashtra AIR (2012) SC 3802  Ibid.  Dananjoy Chatterjee @ Dhana vs State of West Bengal (1994) SCC 2 220  Shraddanannada @ Murali Manohar Mishra vs State of Karnataka (2018) 13 SCC 767  Indian Penal Code, 1860, s. 53.  State TR.PS, New Delhi vs Sanjeev Nanda (2012) 8 SCC 450  Sevaka Perumal vs. State of Tamil nadu (1991) 3 SCC 471  Supra note 3 at 1  Report of the Malimath Committee on Reforms of the Criminal Justice System, 19th September, 2003.  Fiona O’Connell, Comparative Research into Sentencing Guidelines Mechanism NIAR 610-10 (2011)  Report of the Committee on Draft National Policy on Criminal Justice, 31st July, 2007.  The Criminal Law (Amendment) Act 2013, s.9.; The Criminal Law Amendment Act 2018, s.5.  Preeti Pratishruti Dash, Rape adjudication in India in the aftermath of Criminal Law Amendment Act, 2013: findings from trial courts of Delhi, Indian Law Review, 4:2, 244-266 (2020)  Padmanabhan Vijaykumar vs State of Kerela (1994) SC Cri 892  Rajendra Pralhadrao Wasnik vs. State of Maharashtra AIR (2012) SC 1377