Sentencing is that “stage of the criminal justice system where the judge decides the actual punishment of the convict”. While being inextricably linked to punishment, sentencing is often considered a ‘deterrent’ for the wrong-doers. It serves as a tangible guarantee of justice delivered by the court to the aggrieved entity. It is central to the maintenance and enforcement of law and order.
Sentencing in India has long been the subject of controversy because India does not have structured sentencing guidelines that have been issued by either the legislature or the judiciary. Hence, this paves path for an undue amount of discretion while awarding sentences.
This article endeavours to examine the current issues and challenges in Indian sentencing policy. Towards the end, a general discussion on judge’s discretion in determining the factors for sentencing with reference to various case laws, challenges posed by judge’s discretion, will be looked at. The need and criteria for a statutory sentencing policy and a comparative assessment of sentencing policy in other countries from the author’s side will be presented.
In India, sentencing guidelines incepted its roots from the case of Bachan Singh v. State of Punjab. The court observed that the death penalty’s constitutionality by holding that the discretion was not unguided, but interpreted ‘special reasons’ under Section 354(3) of the Code of Criminal Procedure (CrPC) to create the framework for guiding judicial decision-making. It was laid down that the factors for determining the award of sentence would be based on Judge’s discretion. It would be based after balancing all the aggravating and mitigating circumstances of the crime. It was also observed that whilst awarding death sentence, aggravating factors should outweigh the mitigating factors.
- Challenges faced in sentencing policy of India
Some of the challenges faced due to a lack of statutory framework for sentencing policy in India are as follows:
Lack of consistency in awarding sentences: In Indian context, the courts award different sentences for the same offence, using different reasoning for it. This leads to inconsistency and contradictions in awarding sentences. The case of Modi Ram v. State of Madhya Pradesh is an example of this inconsistency. In this case, the trial court had sentenced the convicted person one-year rigorous imprisonment by saying that the victim’s act was provocative in nature, which leads to the commission of the crime. The high court in appeal enhanced the punishment to eight years rigorous imprisonment, stating that while the victim’s act was provocative, the trial court had been too lenient on the accused. On appeal to the Supreme Court however, the court reduced the sentence to three years rigorous imprisonment. It is to be noted that the similarly situated equivalent cases, two distinct aspects of sentencing are revealed which are connected to the factor of inconsistency:
A) The quantum of sentences and the rationale changes radically up and down the judicial system’s hierarchy. This means that the trial court, high court, and the Supreme Court often differ in their sentencing, thereby causing confusion and ambiguity. In State of Punjab v. Prem Singh and Ors., the Supreme Court observed that the Apex court often comes across cases where the sentencing policy is animalized. It is reported that the High Court overturns over 90% of the convictions by the trial courts.
B) Courts at different levels interpret the weight of mitigating and aggravating circumstances very differently. In Mohd. Chaman v. State of NCT Delhi, in which a 30-year-old man was accused of raping and murdering a one-and-a-half-year-old girl, the high court held that the aggravating factors (i.e. the gruesome nature of the crime) outweighed the mitigating factors and hence sentenced the accused to death. However, on appeal to Supreme Court, the court commuted the sentence to life imprisonment. In doing so, the Supreme Court placed greater emphasis on the mitigating factors – it found that it was difficult to hold that the appellant is such a dangerous person that to spare his life will endanger the community, and hence, held that the offence committed was not the “rarest of the rare”.
Lack of binding force on the sentencing guidelines: While the court in Bachan Singh v. State of Punjab, attempted to create a framework to prevent arbitrary award of sentences and limit discretion of judges; the majority bench however observed that judicially mandated guidelines would go against legislative intent. That is why, the guidelines were designed to be indicative and not exhaustive in nature. Therefore, courts have not always strictly followed its own sentencing guidelines primarily because these are expressed as obiter dicta. The courts’ decisions exemplify this in Rajendra Pralhadrao Wasnik v. the State of Maharashtra , in which the court acknowledged these principles also held that the judiciary tap its feet into the matter as these cannot be considered as absolute rules. Furthermore, in the State of Madhya Pradesh v. Mehtab , the court even considered these principles as an obstruction for fair justice.
Lack of reliable standards of proof: Indian courts have not established reliable standards of proof when it comes to producing sentencing material for the court to rely upon while awarding the sentence to the accused. This is contrast with the United States, in Blakely v. State of Washington
Eliciting sentencing material: In India, the courts have often placed the burden of eliciting sentencing material on the parties. Considering not producing sentencing material, the courts have not hesitated to take one-sided decisions based on a narrow set of factors. This was exemplified in the Khushwinder Singh v. State of Punjab, in which death penalty was upheld because the defence could not produce sentencing material on mitigating factors concerning the accused, and hence the decision was delivered solely based on aggravating factors.
It can be inferred from the above-presented material that the sentencing policy in India is marked by unguided discretion, discrepancy, lack of immediacy, arbitrariness, and inconsistency. The question is not whether there is a need for reform. Instead, whether to what extent should judicial discretion be guided, and whether the focus of sentencing should be solely on deterrence or whether it has to have a reformative purpose. Reviewing the available material at their disposal, it was found that there was indeed a need for greater control over judicial discretion. Towards this end, some of the US and UK’s sentencing policy aspects can be adopted in India also. India should endeavour to bring about a similar act of parliament (as is present in the UK) and institute a Sentencing Commission along the US’s lines to achieve the aforementioned ends. It was also found that while the sentencing policy should retain deterrence as a primary purpose, it should also serve a reformative purpose to prevent recidivism. This was explicitly recognized in Shubham Suresh Thorat v. State Of Maharashtra. The introduction of non-custodial punishments such as those envisaged in the UK can be implemented in India too, along with open and semi-open prisons along Finland’s lines. Hence, it can be concluded that India’s sentencing policy needs immediate structural reform to effectively deliver criminal justice.
 Bachan Singh v State of Punjab  AIR 1980 SC 898
 Modi Ram And Lala vs The State Of Madhya Pradesh  AIR 1972 SC 2438
 State Of Punjab vs Prem Sagar & Ors  <https://indiankanoon.org/doc/1889684/>
 Mohd. Chaman v/s State (NCT of Delhi) 
 Rajendra Pralhadrao Wasnik v. State of Maharashtra,  4 SCC 37
 State Of M.P vs Mehtaab  <https://indiankanoon.org/doc/100230239/>
 Blakely v. Washington,  542 U.S. 296
 Khushwinder Singh vs The State Of Punjab  <https://indiankanoon.org/doc/38427131/>
 Nitish Kashyap, ‘Purpose Of Rehabilitative Sentencing Is To Reform The Offender As A Law Abiding Citizen Again; Bombay HC Grants Bail To 20-yr-old Boy In POCSO Case’ (Live Law, 29 Dec 2020 10:43 AM)
Symbiosis Law School , Noida