The 47th Report of the Law Commission of India , Report by the Committee on Reforms of Criminal Justice, Chaired by Dr. Justice V.S. Malimath, (2003), Report by the Committee on Draft National Policy on Criminal Justice, Chaired by Dr. N.R. Madhava Menon and decisions rendered by Supreme Court may be referred to indicate an emerging need for a distinct sentencing policy.
47th Report of the Law Commission of India
CHAPTER 7
DESIRABILITY OF AMENDMENTS – SUBSTANTIVE
POINTS COMMON TO ALL THE ACTS CONSIDERED
“7.44. A proper sentence is a composite of many factors, including the nature of the offence, the circumstances- extenuating or aggravating- of the offence, the prior criminal record, if any, of the offender, the age of the offender, the professional and social record of the offender, the background of the offender with reference to education. home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospect for the rehabilitation of the offender, the possibility of a return of the offender to normal life in the community, the possibility of treatment or of training of the offender, the possibility that the sentence may serve as a deterrent to crime by this offender, or by others, and the present community need, if any, for such a deterrent in respect to the particular type of offence involved.”
Report by the Committee on Reforms of Criminal Justice System, Chaired by Dr. Justice V.S. Malimath, Vol. I March (2003)
“14.4 NEED FOR SENTENCING GUIDELINES
14.4.1 The 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 who exercises the discretion. In some countries guidance regarding sentencing option and sentencing guideline laws are given in the penal code. 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.
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14.4.5 Sometimes the courts are unduly harsh while at other times they are liberal. We have already adverted to aspects which Supreme Court said are relevant in deciding as to what are the rarest of the rare cases for imposing death sentence. However, even in such matters uniformity is lacking. In certain rape cases acquittals gave rise to public protests. Therefore in order to bring about certain regulation and predictability in the matter of sentencing, the Committee recommends a statutory committee to lay guidelines on sentencing under the Chairmanship of a former Judge of Supreme Court or a former Chief Justice of a High Court experienced in criminal law with other members representing the Prosecution, legal profession, Police, social scientist and women representative.”
Report of the Committee on Draft National Policy on Criminal Justice, Chaired by Prof. (Dr.) N.R. Madhava Menon, July, 2007
“5.5 PUNISHMENTS AND SENTENCING
5.5.1 Given the limited options in the choice of punishments now available in the statutes and the inadequate deterrence in the sentence often imposed, there has to be some serious rethinking on the philosophy, justification and impact of sentencing in criminal justice administration. The quantums of fines were prescribed more than a century ago. Imprisonment in practice is reduced to a much shorter period through a variety of practices even when it is for life. Equality in sentencing is not pursued vigorously and there is no serious attempt yet to standardize the sentencing norms and procedures. The objects of punishment are not served in many cases as a result of such incoherent sentencing practices.
5.5.2 What are the policy choices in the matter of punishments and determination of its quantum to achieve the goals of criminal justice? Can community service be made an effective punishment and how is it to be organized? How to make probation a dominant part of disposition in criminal cases? How to achieve equality and fairness in sentencing? These and many related questions are not even raised in India seriously with the result the system seems to be functioning as an end in itself. There has to be a radical change in the law and practice of sentencing if punishment should serve the cause of criminal justice. A set of sentencing guidelines may be statutorily evolved to make the system consistent and purposeful. Fixing mandatory minimum sentences may not be a worthwhile solution. More importantly, the policy should be to increase the choices in punishment and make the other functionaries of the system (like probation service and correctional administration) to have a voice in the sentencing process and administration.
In short, sentences and sentencing require urgent attention of policy planners if criminal justice is to retain its credibility in the public mind.
5.5.3 A national policy on sentencing shall seek to address the following issues:
(i) The need for criminal law to offer more alternatives in the matter of punishments instead of limiting the option merely to fines and imprisonment.
(ii) In respect of the quantum of punishments, the need for constant review to ensure that it meets the ends of justice and disparity is reduced in similar situations.
(iii) A policy to avoid short-term imprisonments and to prevent overcrowding of jails and other custodial institutions, to be rigorously pursued at all levels.
(iv) The need for specific sentencing guidelines to be evolved in respect of each punishment.
(v ) Also the need for an institutional machinery involving correctional experts for fixing proper punishment.”
Precedents
Dhananjoy Chatterjee v . State of W.B., (1994) 2 SCC 220
“14. In recent years, the rising crime rate – particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system’s credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.
15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”
Swamy Shraddananda (2) v . State of Karnataka, (2008) 13 SCC 767
“48. That is not the end of the matter. Coupled with the deficiency of the criminal justice system is the lack of consistency in the sentencing process even by Supreme Court . It is noted above that Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] laid down the principle of the rarest of rare cases. Machhi Singh [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] , for practical application crystallised the principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope for imposing death penalty. But the unfortunate reality is that in later decisions neither the rarest of rare cases principle nor the Machhi Singh [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] categories were followed uniformly and consistently.
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50. The same point is made in far greater detail in a report called “Lethal Lottery, The Death Penalty in India ” compiled jointly by Amnesty International India and People’s Union for Civil Liberties, Tamil Nadu & Puducherry. The report is based on the study of the Supreme Court judgments in death penalty cases from 1950 to 2006. One of the main points made in the report (see Chapters 2 to 4) is about the Court’s lack of uniformity and consistency in awarding death sentence.
51. The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by Supreme Court depends a good deal on the personal predilection of the Judges constituting the Bench.
52. The inability of the criminal justice system to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked imbalance in the end results. On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by Supreme Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the criminal justice system. Thus the overall larger picture gets asymmetric and lopsided and presents a poor reflection of the system of criminal administration of justice. This situation is a matter of concern for Supreme Court and needs to be remedied.”
Soman v . State of Kerala, (2013) 11 SCC 382
“15. 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 State of Punjab v . Prem Sagar [(2008) 7 SCC 550 : (2008) 3 SCC (Cri) 183] Supreme Court acknowledged as much and observed as under: (SCC p. 552, para 2)
“2. In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender, have not issued any guidelines. Other developed countries have done so. At some quarters, serious concerns have been expressed in this behalf. Some committees as for example Madhava Menon Committee and Malimath Committee have advocated introduction of sentencing guidelines.”
Reference
Sunita Devi v. State of Bihar (2024)