Sentencing policy in India

As per the National Crime Records Bureau, India's Court conviction rate stands at 46.9%. This average has been arrived at after an analysis of a spectrum of offences including but not limited to sexual offences and socio-economic offences amongst others. It is pertinent to mention that all these offences have been considered in toto and have not been bifurcated with respect to the nature/type of the offences. This means that the gravity and nature of these offences vary along with the sentence that is likely to be imposed for the same. Interestingly, the Indian Judiciary does not have a prescribed guideline that regulates the sentencing policy across the country. Although there have been judicial pronouncements wherein the Courts have attempted to lay down a precept for the lower courts to follow in terms of sentencing, yet they are being regularly flouted. As on date, there exists no comprehensive guidelines that modulate the sentencing policy across all jurisdictions. In March 2003, the Malimath Committee recommended in its report the need to introduce sentencing guidelines in order to minimize uncertainty in awarding sentences, stating as follows:

'[t]he Indian Penal Code prescribed offences and punishments for the same.  For many offences only the maximum punishment is prescribed and for some offences the minimum may be prescribed.  The Judge has wide discretion in awarding the sentence within the statutory limits.  There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case.  Therefore each Judge exercises discretion accordingly to his own judgment.  There is therefore no uniformity.  Some Judges are lenient and some Judges are harsh. Exercise of unguided discretion is not good even if it is the Judge that exercises the discretion.  In some countries guidance regarding sentencing option[s] is given in the penal code and sentencing guideline laws.  There is need for such law in our country to minimise uncertainty to the matter of awarding sentence.  There are several factors which are relevant in prescribing the alternative sentences.  This requires a thorough examination by an expert statutory body.”

The Committee further recommended the establishment of a statutory body for the purposes of laying down guidelines on sentencing. Despite the reaffirmation of this by several competent bodies, no such guideline exists even today. This difficulty has been recognized by the Supreme Court in several cases including Soman v. State of Kerela [(2013) 11 SCC 382] wherein the Hon'ble Apex Court observed as follows:

'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”

The fundamental issue plaguing this scenario is the discrepancy and variance in imposing punishments. There have been a large number of cases wherein on the same or similar set of facts and for the commission of similar type of offences, the punishment meted out by the Judges has varied. While the statute imposes a minimum and or maximum punishment, it leaves the ambit of the duration within such bracket up to the discretion of the Judges. The Hon'ble Supreme Court in the case of State of Punjab v. Prem Sagar & Ors[(2008) 7 SCC 440] duly acknowledged the aforementioned and observed that [w]hereas the quantum of punishment for commission of a similar type of offence varies from minimum to maximum, even where [the] same sentence is imposed, the principles applied are found to be different.  Similar discrepancies have been noticed in regard to the imposition of fine[s].

When a Judge imposes a punishment on an accused person, it is presumed that the Judge is acting in his wisdom and is upholding the principles of natural justice. But this balance seems skewed when there is an incongruity in the sentencing of same offences based on similar or same facts. It is ultimately upon the Judges to decide which factors are to be taken into consideration at the time of sentencing. This might potentially pave the way for prejudice in the mind of a Judge and create mischief. The greatest repercussion of such a situation would be the lack of trust reposed in the impartiality of the Judiciary and would hinder the just, proper and correct adjudication of matters in the country. 

Indeed, there are several factors that weigh the mind of a Judge while deciding on sentencing and a standardized system of sentencing may not necessarily be best suited in all situations but it is inescapable that some guidelines are needed to regulate the sentencing policy. The imposition of punishments or fine have a grave impact on the future of any convict and decided the course of his life. Such a crucial decision cannot be based entirely on the discretion of a Judge who may sometimes act according to his own whims and fancies. It will ultimately disable the proper dispensation of justice and violate the principles of natural justice. 


Harpreet Kalsi 
on 28 March 2019
Published in Criminal Law
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