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THE EXIGENCY OF
SENTENCING POLICY IN INDIA
Rithvik Mathur
15010125385
1st year BBA. LLB.
Division D

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I. Introduction
The stage where the punishment to be meted out to a convict is decided by the judge is
referred to as sentencing. Being the stage where the penalty that is to be implemented to
rehabilitate or correct a convict and to deter others from carrying out the same, it can be
considered one of the most important stages in the endeavour to uphold law and order.
In the Republic of India, the primary legislation dealing with sentencing is the Code of
Criminal Procedure, 1973. The capacity of various judicial officers to deliver sentences in the
aforementioned legislations have been chiefly discussed under section 235, section 325,
section 335, section 348, section 360 and section 361. Having no guidance prescribed neither
by the Legislature nor the Judiciary, judges have a wide scope for discretion in the sentencing
of a convict. This has led to widespread uncertainty in the matter of awarding sentencing.

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What this paper points is to advance quickly the requirement for a sentencing strategy. The
issue with the current system as accommodated in the Criminal Procedure Code is the variety
in the outcome got from the same or similar set of facts.
The judges are permitted to reach the decision in the wake of listening to the parties.
However the elements which ought to be considered while deciding the judgement and those
which ought to be avoided from is not indicated anyplace. This is the place the judge is
required to utilize his/her own discretion to alter the sentence. This attentiveness in the long
run gets mishandled in countless because of superfluous thought and use of individual
preferences. This is the essential explanation behind supporting a sentencing arrangement or
rules.
This paper will start the discourse by clarifying the strategy for sentencing in India and its
practical application. This will be trailed by a discourse of different suppositions on
sentencing policy; their advantages and disadvantages. The necessities to the extent India is
concerned will be discussed in the backdrop of the Sentencing guidelines in UK and USA.

II. Background
The lack of a Sentencing Policy is a vital issue that has not been adequately addressed. Due to
that fact, there lies immense scope for a research paper on the matter, hence the sentencing
policy was selected to be the subject matter of this research paper.
The judges are permitted to reach the decision in the wake of listening to the parties.
However the elements which ought to be considered while deciding the judgement and those
which ought to be avoided from is not suggested either by the Legislature nor the Judiciary.
This enables the judge to utilize his/her own discretion to alter the sentence. Due to personal
biases and superfluous thought, this discretion is often abused or misused, leading to a
disparity in sentencing. This is the essential explanation behind supporting a sentencing
policy or guidelines.
This paper will start the discourse by clarifying the strategy for sentencing in India and its
practical application. This will be trailed by a discourse of different suppositions on
sentencing policy; their advantages and disadvantages. The necessities to the extent India is
concerned will be discussed in the backdrop of the Sentencing guidelines in UK and USA.

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III.Literature Review
The Malimath Commission report affirms that sentencing without guidelines in not
advisable, even if it is a judge making the decision, they emphasise the need for a
guidelines to be made by a statutory body. Due to personal biases, some judges may be
liberal with sentencing and some harsh, this disparity does not necessarily arise from
discrimination, nevertheless it is not an acceptable flaw in the judicial system.
Apart from the personal biases and prejudice the idea of what constitutes justice and what
is the purpose of punishment varies from person to person. For instance, in the case of
Gentela Vijayavardhan Rao v. State of Andhra Pradesh 1, the appellant had with the
motive to rob burnt a bus full of passengers, resulting in the death of 23 passengers. The
sentence provided by the judges of the lower court was death penalty for convict A and 10
years of rigorous imprisonment for convict B. This was challenged by the convict. The
apex court quoted from the judgment Dhananjoy Chatterjee v. State of West Bengal 2 to
support its view to uphold the judgment:
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.
This judgement reflects the principles of deterrence and retribution. But this cannot be
categorised as wrong or as right for this is a product of the belief of the judges constituting
the bench.3 Similarly in the case of Gurdev Singh v. State of Punjab4 the court confirmed the
death penalty imposed on the appellant keeping in mind the aggravating circumstances. 5
Though on the face of it this might be nothing but a brutal revenge for the crime done by the
convicts, on a deeper study one can realize from the judgment that the act was absolutely
1 AIR1996SC2791
2 (1994)2SCC220
3 The rationale of the judges was that though their ultimate motive was wealth, the
convicts had chosen a highly vicious means to attain it. Therefore the amount of
cruelty demands such a punishment.
4 AIR2003SC4187

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unforgivable for the judges. This cannot be stated to be the inability of the judges to feel
sympathy. This is just a reflection of their values.
On the other hand, Mohd Chaman v. State6 the courts have shockingly reduced the sentence
of death penalty to rigorous imprisonment of life due to the belief that the accused is not a
danger to the society and hence his life need not be taken. The accused in this case had
gruesomely raped and murdered a one and a half year old child. The lower courts having seen
the situation as the rarest of the rarest7 cases imposed death penalty. This was reversed by the
apex Court as it was not convinced that the act was sufficiently deserving of capital
punishment.
The question to be addressed here, having the inability to adjudge the situations objectively,
how do we decide which is the most preferred judgment. Had the same issue be addressed in
a vice versa manner, the former convict would have been in the prison and the latter would
have died.
How helpful would a guideline be to this scenario? A guideline if laid down would
principally have a primary rationale8 for punishing (whatever this rationale may be 5 The aggravating circumstances of the case, however, are that the appellants,
having known that on the next day a marriage was to take place in the house of the
complainant and there would be lot of relatives present in her house, came there on
the evening of 21.11.1991 when a feast was going on and started firing on the
innocent persons. Thirteen persons were killed on the spot and eight others were
seriously injured. The appellants thereafter went to another place and killed the
father and brother of PW-15. Out of the thirteen persons, one of them was seven
year old child, three others were at the threshold of their lives. The post-mortem
reports show their age ranged between 15 to 17 years.
6 2001CriLJ725
7 The Indian Judiciary had strongly felt the need to have a sentencing guideline at
least to the extent of imposition of death penalty. Therefore in the cases of Bachan
Singh v. State of Punjab and subsequently in the case Machhi Singh v. State of
Punjab, the Court laid down the rarest of the rarest test by which death penalty
should be imposed in only exceptional situations and such exceptional reasons must
be recorded. This was followed in numerous cases both to save the life of the
accused and to validate the imposition of the death penalty.
8 Andrew Ashworth, Sentencing and Criminal Justice, 2005 4th ed.. One of the main
criticism of this primary rationale principle is that it does not provided for all
scenarios and results in stereotyping all situations into one. It is the opinion of the

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retribution is the underlying purpose or rehabilitation and reclamation is the ultimate goal).
This primary rationale would help the judges determine what exactly needs to be achieved of
the punishment.

IV.

Objectives

The objective of this paper is to initiate discussions on the exigency of Sentencing Policy in
India, on several occasions the Supreme Court, the Law Commission and other august
entities have noted the need for Sentencing Policy, followed by supporting arguments.
However, the feasibility has not been deliberated upon.

V. Scope
While discussing the need for a sentencing policy, the researcher will discuss the extent of
abuse of discretion, the opinions of various individuals and groups on why India needs a
sentencing policy and the sentencing policies of other nations

VI. Hypothesis
For the purposes of this paper the Researcher has adopted the following hypothesis:
There is a pressing need for Sentencing guidelines in India

VII. Research Methodology

The Researcher will primarily adopt a doctrinal method of research for this paper. The
Researcher will be heavily relying on literature authored by the Supreme Court, the Law
Commission and online sources.
Secondary sources will include books and articles by several individuals who have
contributed to the jurisprudence of sentencing policy.

author that there can always be an exception to the rule and hence having a rule per
se for the sake of guidelines and equality is not harmful. This would only reduce the
arbitrariness in the system.

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VIII.

Significance

Sentencing Policy is one of the most important topics in contemporary India, the topic is
especially relevant as abuse of discretion is becoming more rampant. In the interests of
establishing a welfare state, it is vital that the judiciary be less burdened by inequality and
disparity in sentencing for a similar set of facts. This paper can be used to fuel discussion on
the need for a sentencing policy by identifying and deliberating upon not just the need for
sentencing policy but also the enforceability of the same.

IX. Scope for Further Research

This area of research is of extreme importance in contemporary times and the Researcher
hopes that it will prompt more Indian academicians to research on other aspects of
Sentencing policy such as the flexibility of the policy, whether it should be binding on
judicial officers and other aspects of its nature.

X. Bibliography
Books referred

Andrew Ashworth, Sentencing and Criminal Justice, 2005 4th ed., Cambridge
University, UK

CK Boyle & MJ Allen, Sentencing Law and Practice,1985 1st ed., Sweet &
Maxwell, London

Cyrus Tata & Neil Hutton (ed.), Sentencing and Society International
Perspective, 2002 1st ed., Ashgate Publishing Ltd., England

Martin Wasik, Emmins on sentencing, 1998 3rd ed., Blackstone Press Ltd.,
London

Philip C. Stenning, Accountability for Criminal Justice, 1995 1st ed.,

University of Toronto Press, Toronto

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R.V.Kelkar, Criminal Procedure, 2001 4th ed., Eastern Book Company,

Lucknow

Reports

35th Report of Law Commission of India, 1967

John Halliday, Making Punishment Work- Report of a Review of the Sentencing

Framework for England and Wales, 2001

Justice for All, 2002

Silvia DAscoli, EUI Working Group on International Criminal Law, 2005

The Madhav Menon Committee Report 1st edition, 2008

The Malimath Committee Report 1st edition, 2003

Case Laws
State Of Punjab vs Prem Sagar & Ors on 13 May, 2008
K.P. Singh v. The State of NCT of Delhi
State vs Raj Kumar Khandelwal on 8 May, 2009
Gentela Vijayavardhan Rao v. State of Andhra Pradesh