Author: Aniket Sachan

Introduction – Sentencing Guidelines

Punishment being the grim societal response against crime must be administered with certainty and uniformity. The complex system of police investigations and criminal inquiries becomes obsolete if sentencing is not applied equitably. As per our penal code, sentences can be inflicted in the form of imposition of fine, simple or rigorous imprisonment, forfeiture of property, life imprisonment and death penalty. Various panels have been named to recommend suggestions to decrease the existing vagueness in sentencing but all efforts have been nugatory. Judiciary also has actively tried to fill the void, which exists due to the absence of statutory guidance. In Ambi Ram vs. State of Uttarakhand, the court endorsed the view of Justice T.S. Thakur that determining the adequacy of a sentence is as difficult as evolving a uniform sentencing policy. However, the courts in India neither have attempted to exhaustively enumerate the considerations required for the determination of the quantum of sentence nor do they have laid down the weight that these considerations carry in the given myriad situations.

Courts while sentencing a person has to not only consider the impact of sentence but also has to recognize society’s collective consciousness i.e. certain ideas or moral ethics that act as a unifying force within society. Sentences must be implemented in such a manner that it represents the intent and the metaphysical meaning behind its implementation. The discrepancy in sentencing process is evident when a person committing similar offences is sentenced differently or when punished with an identical sentence in spite of commission of a different crime. Insufficient penalties only bias the legal system and drive the victim to private vengeance. The desirable uniformity of the sentencing though appears hard to achieve yet the urgent need of the hour impels us to strive harder for its accomplishment.

Principle of Just Desert

Sentencing sometimes is the result of the feelings of the judges and not the strict implementation of statutory provisions. The principle of proportionality between the crime and punishment i.e. “just deserts” serves the foundation of the sentencing policy under the Indian criminal jurisprudence. The following principle breeds the very idea of punishment to be in consonance with the crime. According to Tim Scanlon, Just Desert is characterised as an idea to make a person suffer the loss equal to the wrong committed by that person.  Proportionality means retribution, which is fair and just. Disproportionate punishment leads to injustice and violates the very idea of justice that it should not only be done but also seem to have been done. Often there has been a clash between the theory of Just Desert and individualisation of punishment. The former refers to the wrongs committed while the latter only concerns with deterrence. Nevertheless, such has been the importance of these theories that these are taken into consideration by courts while deciding the quantum of punishment.

Flaw in the Existing Procedure-

In 2003, the committee headed by Justice Malimath released a report advocating the need for sentencing rules to reduce ambiguity in the award of sentences. In India, we follow the reformative system of punishment therefore the quantum of punishment varies for various offences in spite of being classified as similar offences. The Indian Penal Code, 1860 provides maximum punishment as well as minimum punishment for many offences due to which, the Judges use their discretion while choosing the punishment, which is tailored in accordance to facts and the circumstances of cases. Every Judge thus renders his or her own decision accordingly and thus uniformity is not available. Further, in 2008, the Committee headed by Mr Madhava Menon reaffirmed the need for substantive sentencing rules.

Supreme Court of India has also highlighted the inconsistency in sentencing. The higher courts save for their opinions on the intent and matter of sentencing have not laid down any sentencing guideline. In Suresh Chandra Bahri vs. State of Bihar, the court held that the variance in punishment is expected to exist as the criminals themselves are varied in their severity. Sometimes the variation and inconsistency in the sentencing procedure results in different outcome of case. Though the penalty levied is the same, the standards are inconsistent as the punishments range from minimal to maximum. The absence of guidelines provides the Judges very wide discretion in fixing the degree of punishment, which leads to misconduct and whims and fancies manipulate the outcome of judgement. Huge sentencing discretion leads to non-uniformity and violation of principle of Just Deserts. Sentencing in India is invariably a Judge-Centric function rather than being a principle based function.

Discordant Factors for Sentencing

Several factors play a very vital role in establishing the guilt of the accused. The 47th Law Commission of India report specifically talked about the factors such as the nature of the offence, the mitigating or aggravating facts, the background of the offender and the prospect for the rehabilitation of the offender. The court has to very keenly observe Mitigating and Aggravating factors of the particular case, the proportionality of the crime and punishment and the deterrence effect of the punishment and rehabilitation. In Dhananjay Chatterjee vs. State of West Bengal, the court ruled that the measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the unprotected state of the victim. Justice demands that courts should impose punishment fitting to the crime. In Lehna vs. State of Haryana, the Supreme Court held that a judge while announcing sentence has to balance the personality of the offender with the facts and circumstances of the case. Without straightjacket formulation, a strong degree of continuity and uniformity in sentencing is impossible.

In Santa Singh, the court in order to bring consistency and coherency in the sentencing procedure emphasized the need to train judicial officers in sentencing procedures and penology. In State of Madhya Pradesh vs. Surendra Singh, the court held that laying down a universal application of sentencing is difficult to achieve. The sentence awarded should not be inconsistent as, “Undue sympathy to impose inadequate sentence would do more harm to justice system to undermine the public confidence in the efficacy of law and society could no long endure under such serious threats.” Supreme Court in Brajendra Singh vs. State of Madhya Pradesh held that the court should cumulatively consider the mitigating and aggravating circumstances and must not ignore the importance of any one of them. It must reach to a conclusion incorporating a perfect balance between the two factors. Imposing a grossly inadequate sentence, especially against the legislative mandate, is an injustice not only on the victims but also on society.

The infliction of punishment becomes futile if the impact on society is not served. Certain parameters need to be followed and courts must abide by certain considerations while laying down sentence. A direct method to compute sentence is difficult as sentencing depends on numerous factors, which fluctuate from time to time and from society to society.

Issue with Capital Punishment

Supreme Court has outwardly stayed death penalties in certain cases considering the vagueness and advocated the choice between death sentence and life imprisonment. Some landmark judgements went against death penalty and advocated for it only in ‘rarest of rare case’. Right to Life being one of the fundamental right mentioned under Article 21 can be withdrawn only by the procedure established by law. The Indian penal code though provides for death penalty yet Indian Judiciary has always intervened to prevent capital punishment as a routine affair. The court emphasized on maintaining harmonious equilibrium to balance mitigating and aggravating factors of the crime while deciding capital punishment. However, recently in Sangeet vs. State of Haryana, court held that courts approach of considering mitigating and aggravating factors requires reconsideration as it lacks uniformity in application. In regards to capital punishment, courts follow judge-centric sentencing rather than principled sentencing. The Supreme Court should now recognize the unconstitutional gap owing to contrary judgements and must refrain from taking recourse to capital punishment until the Legislature develops clearer criteria for the sentencing.


Presently India does not have any structured guidelines on criminal sentencing. Since law cannot anticipate the exactness of the punishment, it has vested judges with discretion to ensure the proper administration of the criminal law. The judicial decisions are often the product of unobtrusive observations instead of conscious assumptions focused on a transparent and objective inquiry. The object of sentencing must be fulfilled at every cost and crimes should not be left unpunished as disparity raises questions regarding the validity of the structure of the criminal justice system. Efforts should be made towards uniformity in sentencing.

The guidelines must be framed with urgency and they must be in proportion to the nature of the offence. In formulating quantum of punishment the ethnicity, sex, gender, economic or social standing of the perpetrator or victim should not be considered. Both aggravating and mitigating circumstances must be taken into consideration before the final penalty is imposed. The Judge’s discretion should be very cautiously exercised after duly examining the facts and circumstances of the case. Although it is difficult to create objectivity in terms of sentencing, the Legislature should recognize the obstacles in criminal justice system.

There can be neither a straightjacket formula nor a solvable theory in mathematical exactitude. Neither the personal perception of a judge nor the self-adhered moralistic vision nor hypothetical apprehension should be allowed to have any play. Sentences needs to be pronounced on the touchstone of nature of crime and other concomitant factors declared in various pronouncements. Uniformity can be accomplished by a shared interpretation and acceptance of the relevant process in our present scheme. The judiciary must respond to the constant appeal to redress the needs of society. The guidelines if laid down will definitely address individualisation of punishment and minimize the uncertainties surrounding the sentences in India.

About the Author: Aniket is a third-year B.A.LL.B(Hons) student at Dr Ram Manohar Lohiya National Law University, Lucknow.

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