INTRODUCTION
A rapid rise in crime rates marks the contemporary era, Footnote 1 including serious offences such as rape (Mishra and Pachauri Reference Mishra and Pachauri2018), murder and socio-economic financial offences (Chugh Reference Chugh2020). This rise, juxtaposed with falling societal standards, demands a comprehensive and effective law enforcement framework (Shivani Reference Shivani2022). This compelling need for reform is all the more crucial, as traditional punitive measures seem increasingly ill-suited to the complexities of modern crime. Our legal framework should be effective in curbing the current state of affairs and be adaptable to the constantly evolving dynamics of crime. However, amidst these challenges, our judicial system faces a complex conundrum.
Before delving into the heart of the matter, there is no straight-jacket formula for the curse of discipline, as each departure produces a unique set of results. Understanding the individualistic nature of crime leads us to a complex conundrum within our judicial system. Despite the diverse nature of crimes, an accused’s sentence is overwhelmingly determined by the specifics of his or her conviction. In India, the decline in the State’s conviction rate is also questioned in light of the “perfunctory investigations” conducted by the State investigation authority. Footnote 2 Due to the same issue, there is a backlog of cases being heard by the High Court to determine an individual’s sentence, while the accused spend decades in judicial custody while the trial has yet to commence (Chowdhury Reference Chowdhury2022).
A pending appeal while the convict is in judicial custody and has undergone certain years of sentence on a case-by-case basis violates his/her fundamental right as protected by Article 21 and is “cumbersome” to the larger bench determining his/her sentence. Footnote 3 Delving deeper into the issues marring our judicial system, we encounter the problematic stance of the government as well.
Following the “principle of analogical reasoning”, in a country where the government has a “recalcitrant attitude” toward appointing High Court judges, while the result of long pendency of cases results in inadequacies within the system on cases being heard, it directly adjudicates into the policy and practice for determination of sentence according to the discretion of the judicial system, taking into account the long pendency of cases. Footnote 4 This recalcitrant attitude breeds systemic inadequacies, leading to extensive delays in case hearings, affecting the determination of sentences. The longer these cases pend, the more discretion the judicial system is forced to exercise, often at the cost of consistency and fairness. To help the judicial system in the determination of sentencing, there is an urgent need for some form of guidelines (Frase and Mitchell Reference Frase and Lyn Mitchell2018). What further exacerbates the situation is the lack of clear-cut guidelines for sentence determination, leaving it largely subject to individual interpretation and thereby creating the potential for discrepancies.
In criminal law, “sentence” refers to the conduct of the Court during a prima facie trial in which the accused is presumed guilty despite the assumption of innocence (Lubitz and Ross Reference Lubitz and Ross2001). The situation in which a convict whose appeal is pending and who has already served a significant portion of his sentence in judicial custody also presents a serious concern. Consequently, any outcome that follows a conviction is a sentence. It is a well-debated topic that there is a need for legitimate sentencing rules to eliminate disparities in punishment (determination of sentencing).
A fair and balanced sentencing system is a cornerstone of any robust judicial structure. The predicament of a convict who has served a considerable part of their sentence while an appeal is yet to be decided places a burden on the larger bench responsible for sentencing decisions. This situation is not only cumbersome but also risks infringing upon the individual’s fundamental rights, as protected under Article 21, thereby underscoring the need for judicial efficiency and due process.
Judicial decisions such as those made in recent high-profile cases only underscore the variability of sentencing. The Honourable Supreme Court of India recently enhanced the sentence of Congress Leader Navjyot Singh Sidhu with a sentence of one year to be found guilty under Section 323 of the Indian Penal Code 1860 (IPC) Footnote 5 quoting, “The hand can also be a weapon by itself.” However, the Honourable Apex Court gave a different sentence to some other accused in different cases, where the accused was found guilty under Section 323 of the IPC. Footnote 6 The sentence of imprisonment was found fit to reduce it from six months to the period undergone, while the Honourable Apex Court underlined that “At the time of occurrence, they were not armed.” These disparate outcomes highlight India’s current approach and practice, where aggravating and mitigating factors are considered when imposing a sentence.
This can lead to different punishments for offenders who have essentially committed the same crime. The call for comprehensive, well-structured sentencing guidelines is more urgent than ever in light of these pressing issues. Such guidelines would provide a systematic approach to sentencing and promote transparency, fairness and efficiency within the judicial process, enhancing public trust in the legal system.
SENTENCING FUNCTION IN INDIA AND ITS INTERPRETATION
Two universal principles form the foundation of sentencing policy in every civilized society. One is the principle of “just deserts”; the other is “individualization”. The Indian judicial system, although quite comprehensive, has grappled with the lack of standard sentencing guidelines, leading to inconsistencies and discrepancies in the application of sentencing principles, particularly the principles of “just deserts” and “individualization”. First, the principle of “just deserts” Footnote 7 is based on the theory of penological retribution. The theory of retribution is founded on the maxim “an eye for an eye”. Footnote 8 According to the principle of just punishment, there should be strict guidelines for punishing offenders. There should be no discretion in prescribing identical punishments for identical offences. This principle holds that the perpetrator should be punished similarly if committing an offence.
The principle of “just deserts” is deeply rooted in retributive justice, emphasizing the belief that punishment should fit the crime. This principle argues for proportionality, where the severity of the punishment matches the severity of the crime. However, without established guidelines, applying this principle can lead to disparities. In essence, two offenders who commit the same crime might receive substantially different sentences depending on various extralegal factors, such as the individual judge’s beliefs or the particularities of the case.
Consider this example: Person “A” commits the theft of a bicycle, while Person “B” commits the theft of a vehicle. According to the principle of “just deserts”, both should receive the same punishment. However, would not it be unfair to punish them equally?
Section 379 of the IPC, which discusses the punishment for theft, gives the judge the discretion to impose a maximum of three years in prison, a fine, or both. Let us modify the example so that both individuals stole a “car”. A judge may impose varying punishments for the same serious offence, highlighting the role and impact of judicial discretion. This abundance of judicial discretion poses potential issues, especially regarding consistency and fairness. Footnote 9
It is remarkable that in India, a country of more than one billion people, we lack “sentencing acts” and statutory guidelines for determining sentences, given that most Western nations have them (Mustafa Reference Mustafa2018). In the past two decades, 71 blackbucks have been killed, but we are unaware of any other five-year prison sentences for “blackbuck hunting” other than the famous conviction of Bollywood superstar Salman Khan (Jain Reference Jain2018). Is it an art or a science to calculate a convict’s sentence? What elements do judges examine while deciding the most appropriate punishment? We will analyse the second foundation principle to understand the concept and policy better.
The other principle is that of “individualization”, which contrasts sharply with the principle of “just deserts”. Footnote 10 This principle states that individual factors like the intention of the criminal, how the crime was committed, the crime’s magnitude, the crime’s abhorrent effect, and other mitigating or aggravating factors should be kept in mind while sentencing. It is based on the utilitarian principle of the greatest good for the greatest number (Bentham Reference Bentham1907 [1789]). This theory provides discretion to the judges in laying down sentences for punishing the offenders and, according to Section 31 of the Code of Criminal Procedure, 1973 (CrPC), leaves full discretion with the Court to order sentences within the Indian jurisdiction. Footnote 11 Given these complexities, comprehensive sentencing guidelines could play a crucial role in harmonizing these two principles while ensuring fairness, transparency and consistency in the judicial process. This principle considers the offender’s personal circumstances and the crime’s specific context. By this principle, two individuals committing the same crime might receive different sentences based on differential factors like their background, intention during the crime, and the effect of the crime, among others.
While the “just deserts” and “individualization” principles often represent opposing viewpoints within criminal justice, most judicial systems, including India, seek to establish a delicate balance between them. Nonetheless, in the Indian context, the glaring absence of explicit sentencing guidelines magnifies the inherent tension between these two principles, frequently culminating in an inconsistent and potentially inequitable pattern of sentencing.
Under Section 235(2) of the CrPC, the presiding judge is obliged to provide an opportunity for the convicted party to be heard on the issue of sentencing after their conviction. This statutory provision enables the judge to contemplate and assess various factors relating to the offence and the offender. Nevertheless, without clear sentencing guidelines, this discretionary power vested in the judge may result in an erratic and inconsistent application of “just deserts” and “individualization” principles.
To illustrate, consider the case of theft. A judge who firmly adheres to the “just deserts” principle may advocate for identical punishment for all transgressors, irrespective of their circumstances. Conversely, a judge more inclined towards the “individualization” principle may dispense varying sentences depending on the defendant’s economic status, motivation or prior criminal records. As a result, the interpretation of the same law may yield divergent punishments across different courts, thus engendering a need for uniformity and predictability in sentencing.
Additionally, the principle of proportionality, inherent in the doctrine of “just deserts”, also finds its place in Article 21 of the Indian Constitution, securing the rights to life and personal liberty. The non-existence of sentencing guidelines may culminate in penalties that infringe upon this fundamental constitutional tenet, as it becomes challenging to gauge the proportionality of the punishment relative to the gravity of the crime without a defined standard.
Thus, the existing deficit of sentencing guidelines in India leads to an inconsistent application of the “just deserts” and “individualization” principles, creating the potential for inequity, unpredictability and contravention of constitutional rights. A robust implementation of comprehensive sentencing guidelines could offer a more structured framework that harmonizes these two principles, ensuring greater fairness, transparency and consistency in sentencing. Furthermore, such guidelines would bolster the credibility of the judicial process and sustain public confidence in the justice system.
THE NEED FOR SENTENCING GUIDELINES IN INDIA
The urgent necessity for comprehensive and well-structured sentencing guidelines in India cannot be overemphasized. As discussed earlier, the wide scope of judicial discretion and the absence of standardized sentencing policy often result in a wide discrepancy in the determination of sentences for similar offences. This, in turn, undermines the basic principles of justice – fairness, consistency and predictability. It is pertinent to note that the courts in India have repeatedly recognized the need for structured sentencing guidelines.
The Honourable Supreme Court of India has repeatedly observed that it is time for the legislature to revisit sentencing policy reflected within the country. This sentiment was echoed and clustered in numerous judgements of the Honourable Apex Court of the Country, whereby the punishment should act as a deterrent and is expected to be proportionate to the gravity of the offence. A penalty should serve as an adequate deterrent, not less than what is necessary to dissuade potential crimes. The common thread running through these judgements is the need for a comprehensive and objective sentencing policy that bridges the gap between the crime and its punishment.
An ideal sentencing guideline in India should seek to harmonize the principles of “just deserts” and “individualization” and also ensure a balance between retribution and rehabilitation. In light of the above, the following recommendations can be made.
Establishing a Sentencing Commission
It is incumbent upon the Government of India to contemplate the establishment of a Sentencing Commission analogous to the paradigmatic frameworks prevalent in the United Kingdom and the United States. Comprising eminent legal scholars, seasoned practitioners of law, astute social workers and distinguished retired judges, this Commission would be entrusted with formulating detailed and contextually pertinent sentencing guidelines. The elucidation of legal literature, conjoined with the analysis of empirical evidence, propounds the premise that initiating a Sentencing Commission can serve as a potent instrument in mitigating the prevalent inconsistencies and disparities plaguing the sentencing process (Tata Reference Tata2007). A case in point is the Sentencing Council for England and Wales, which has efficaciously promulgated comprehensive guidelines that hold binding authority over all courts within its jurisdiction (Roffee Reference Roffee2015). Similarly, the US Sentencing Commission has indelibly influenced the standardization of the sentencing process across the United States (Frase Reference Frase1999). It is of paramount importance to carefully consider the unique sociocultural tapestry that characterizes India while conceptualizing a Sentencing Commission. This body must meticulously navigate the delicate equilibrium between addressing issues of disparity in sentencing and maintaining an acute sensitivity towards the intricate and diverse nuances of Indian society. It is a pursuit that requires both judicious insight and an understanding of the distinctive characteristics of the Indian socio-legal landscape.
Standardizing the Principles of Sentencing
The sentencing guidelines should provide a clear and standard interpretation of the sentencing principles, including “just deserts” and “individualization”. This would eliminate ambiguity and ensure a uniform application of these. A plethora of legal scholarship underscores the necessity of standardizing the interpretation of sentencing principles. Clear guidelines that articulate the balance between the “just deserts” and “individualization” principles can minimize the potential for judicial discretion to result in inconsistent outcomes (Roberts Reference Roberts2005). “Just deserts”, which focuses on the proportionality of the punishment to the crime, is considered a cornerstone of fair sentencing. Conversely, the principle of “individualization” allows for consideration of individual circumstances, such as the offender’s record and the specific context of the crime (Tonry Reference Tonry2009). Striking a balance between these principles is complex, but ensuring that sentences are fair and equitable is crucial (Bagaric Reference Bagaric2000). Therefore, a standardized interpretation of these principles provides a consistent framework that guides judges in applying sentencing. It also provides predictability in the sentencing process, which enhances the criminal justice system’s legitimacy and upholds the public’s trust and principles across different courts (Roberts et al. Reference Roberts, Stalans, Indermaur and Hough2003).
Considering Aggravating and Mitigating Circumstances
The guidelines should list common aggravating and mitigating factors that must be considered while sentencing. This would ensure that all relevant factors are taken into account and would reduce the scope for individual bias. Such a methodology would ensure the holistic consideration of all germane factors, thereby curbing the potential for individual bias and promoting a more equitable and balanced application of justice. Aggravating circumstances typically refer to aspects of the offence or the offender’s past conduct that may increase the severity of the sentence. This may include, for instance, the use of a deadly weapon during the commission of the crime, the severity of the harm inflicted, the vulnerability of the victim, or a history of similar offences (Cassell and Luna Reference Cassell and Luna2011). Conversely, mitigating factors, such as lack of prior criminal history, evidence of remorse, or substantial cooperation with law enforcement, might reduce the severity of the sentence imposed (Frase Reference Frase2009). Articulating these factors in sentencing guidelines provides a reference point for judicial discretion, anchoring decisions within established norms (Roberts Reference Roberts2005). This transparency and structure are critical in ensuring that cases are treated alike, thus upholding the principle of equality before the law. They also provide nuanced consideration of individual circumstances, thereby balancing the principles of “just deserts” and “individualization” in sentencing (Tonry Reference Tonry2009). By delineating common aggravating and mitigating factors, sentencing guidelines can help foster consistency and fairness, while ensuring the punishment is proportionate and tailored to both the crime and the offender.
Guidelines for the Use of Discretion
The guidelines should provide a clear roadmap for exercising judicial discretion in sentencing. However, there have been judgements on all this while deciding the ambit of judicial discretion. The concept in itself is complicated with the peril in existence due to the change of factual matrix from case-to-case basis. The Sentencing Commission may highlight clear pretexts and categories of offences, which would prevent the arbitrary use of discretion and ensure a more balanced and fair approach to sentencing. The use of discretion is later discussed in the “Sentencing Deterrence and Denunciation” section below.
Regular Review and Update of Guidelines
The sentencing guidelines should not be static. A mechanism should be in place to regularly review and update the guidelines, considering the changing societal values and crime patterns.
Implementing comprehensive sentencing guidelines would help alleviate the current inconsistencies and disparities in applying sentencing principles. However, it must be noted that guidelines alone cannot solve all issues associated with sentencing. They must be complemented with other reforms, such as improving the efficiency of the judiciary, enhancing the transparency of court proceedings, and ensuring the independence and accountability of the judiciary.
SENTENCING DETERRENCE AND DENUNCIATION: POLICY AND PRACTICE
In India, it has been observed that a combination of both policies, deterrence and denunciation, must be implemented. Footnote 12 Both theories, with a combination, are superlatively suited for India’s societal demographics, and, as a result, there are guidelines for sentencing offenders, but they are not very strict and leave room for judges to apply their minds to the given facts and circumstances and determine the sentence (Roffee Reference Roffee2015). As a result, judges in India have too much discretion concerning punishment. Some judges base their decisions on the deterrence theory. At the same time, some follow the reformation theory (Premani Reference Premani2021). Therefore, the judge’s sentence would be based on the theory of punishment that the judge believes to be correct. Thus, we do not observe a unified theory of punishment. Consider, for example, the sedition law, for which Section 124A of the IPC specifies the punishment. The offence is punishable by between three years and life in prison. This gives the judge too much discretion.
Though given, this structure’s drawback is some arbitrariness, which academics and practitioners have repeatedly condemned. In March 2003, the Malimath Committee (the Committee on Reforms of Criminal Justice System) gave a report (Government of India, Ministry of Home Affairs 2003) that underscored the requirement for condemning rules to limit the vulnerability in granting sentences expressing that the IPC prescribes only the minimum and maximum punishments for offences without laying down any guideline for infliction of punishment in proportion to the crime. Therefore, each judge exercises discretion, resulting in a sentencing system that needs more uniformity. This requires a thorough examination by an expert statutory body (Government of India, Ministry of Home Affairs 2003:170).
Further, the Madhav Menon Committee, in the year 2008, repeated the fact that the nation is in dire need of a sentencing policy. Also, in the case of State of Punjab v. Prem Sagar & Ors Footnote 13 the Apex Court observed that we have failed to have a uniform sentencing system. On similar lines to the Malimath Committee report, the Supreme Court, in the case of Soman v. State of Kerela Footnote 14 stated:
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.
In the CrPC, according to Section 360, it is compulsory to have the sentencing hearing where all the mitigating and aggregating circumstances must be heard. However, in reality, only one hearing is done. Hardly a second hearing is held (Rashid Reference Rashid2014). Footnote 15
In the landmark case of Santa Singh v. State of Punjab, Footnote 16 while dealing with the true scope of Section 235(2) of the CrPC, the Supreme Court observed:
This provision is clear and explicit and does not admit of any doubt. It requires that in every trial before a Court of Sessions, there must first be a decision as to the guilt of the accused. In the first instance, the Court must deliver a judgment convicting or acquitting the accused. If the accused is acquitted, no further question arises. However, if he is convicted, the Court has to “hear the accused on the question of sentence, and then pass sentence on him according to law”. When a judgment is rendered convicting the accused, he is, at that stage, to be allowed to be heard concerning the sentence, and it is only after hearing him that the Court can proceed to pass the sentence.
A cumulative reading of the findings mentioned above highlights the numerous flaws in the Indian judicial system that require improvisation in the determination of sentencing laws. The IPC was enacted in 1860. It has almost been more than one century and six decades since its implementation. Consequently, the IPC’s fines and penalties are the same as they were introduced, and parallel amendments have not been done since then. In the criminal justice system, proof must be beyond a reasonable doubt. Footnote 17 Secondly, if the accused is to be proven guilty, his guilt must be proven beyond a reasonable doubt, or otherwise, he is presumed innocent. Footnote 18 The judge’s discretion in determining whether or not the defendant is guilty beyond a reasonable doubt undermines the Indian judicial system. This gives the judges arbitrariness and subjectiveness whether or not the guilt is established beyond a reasonable doubt. Effectiveness requires a framework for determining when and how to employ aggravating and mitigating factors to reach a conclusive and determinable decision concerning proof beyond a reasonable doubt. Footnote 19
To summarize the above discussion, let us take the example of sentencing in the case of death penalties and how the sentencing policy has developed in India. The first case that talked about the death sentence and that provided the base for further development was the case of Rajendra Prasad v. State of Uttar Pradesh, Footnote 20 where one accused, Rambharosay, was sentenced to life imprisonment and was out on parole. During the period out of jail, he murdered Mansukh. Footnote 21 He was tried for the murder of Mansukh and convicted of the same.
In the sentencing hearing, Justice Krishna Iyer emphatically emphasized that the imposition of the death penalty contravenes the provisions of Articles 14, 19 and 21 of the Constitution of India. Within the obiter dicta of the judicial decision, it was articulated that subjecting an individual to prolonged incarceration transforms their mental state into a vegetative existence, rendering executing such an individual futile and unjust. Moreover, Justice Iyer also highlighted the culpability of the prison authorities for their failure to facilitate the rehabilitation and reformation of the incarcerated individual (Swathi and Roja Reference Swathi and Roja2018).
Therefore, a discourse on the death penalty began from this judgement. The question of the constitutionality of the death sentence again arose in the case of Bachhan Singh v. State of Punjab. Footnote 22 This is the landmark judgement on the death penalty. This judgement stated that the death penalty should be given in rare cases. The death penalty should be given keeping in mind the following circumstances (Government of India 2015):
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(i) Manner of commission of crime,
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(ii) The motive for the commission of murder,
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(iii) Anti-social or socially abhorrent nature of the crime, the magnitude of the crime,
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(iv) The personality of a victim of crime.
These aspects, though, give a policy measure but do not curb discretion in any way. All these elements are subjective and subject to the satisfaction of the judge, which differs from judge to judge, their subconscious biases governing the decision. The example of the death penalty helps in highlighting the fact that it is just a misnomer that the statutes curb the discretion of the judges in sentencing, but, effectively, there are no curbing provisions. The policy guidelines laid down by the precedents provide a parameter for sentencing, but effectively they are of no good in curbing arbitrariness.
Generally, most of the sentencing provisions provide that the sentence may be provided in the prescribed parameter or as the judge may deem fit in the interest of justice, where the interest of justice is never defined and could never be defined. The interest of justice is so broad and includes many aspects within its ambit. There are no guidelines that prescribe what the ambit of interest of justice is. Therefore, defects in the sentencing measures should be corrected to curb arbitrary sentencing and provide uniform sentencing measures for offences and crimes committed similarly.
CONCLUSION
Law is a tool to govern society and maintain discipline. It should be applied fairly and squarely to all people alike, and there should be no room for personal discretions to seep in for its application. The law in contemporary times in India is full of discretion and arbitrariness. The sentencing policy of India is one of the prime examples of this. There need to be policy guidelines laid down in India to guide judges’ decision-making. Even though policy guidelines exist, they do not help lower the judges’ arbitrariness. The sentencing measures and guidelines should be more effective in providing for a substance that increases uniformity in giving sentences and should not be open-ended so that they are left to the complete discretion and satisfaction of judges. It is high time that the sentencing measures for the same crime should be made uniform, discrepancies must be removed, and the arbitrariness in sentencing measures ends.
Parth Singh is a distinguished professional in India’s legal fraternity. A graduate of O.P. Jindal Global University, he embarked on a diverse legal career, which included roles as the Law Clerk-cum-Research Assistant at the Honourable Supreme Court of India. His insights into India’s complex judicial system and dedication to the pursuit of justice led to his appointment as an Empanelled Counsel for the State of Punjab. Currently, he serves as an Associate to the office of the Ld. Advocate General of Punjab. Throughout his career, Advocate Singh has shown an unwavering commitment to analysing and improving the mechanisms of India’s judicial processes.
