[mks_dropcap style=”letter” size=”52″ bg_color=”#ffffff” txt_color=”#81d742″]J[/mks_dropcap]ustice is a relative concept which changes with time. Since the codification of substantive criminal law in 1860, to the modernized India in 2015, the judicial court rooms have produced judgments which have shaken the spines of criminals and have given justice to the much needed victims while others have called for sharp criticism. No matter what it is the Judge’s stroke of ink that has created a pattern in which sentencing is given in India. The Indian penal code u/s 53 has divided punishments into various kinds based on the theories of punishment. Some crimes call for simple imprisonment, some rigorous imprisonment, some crimes call for just fines while others call for capital punishment. In Indian criminal jurisprudence the maximum and minimum punishments have been prescribed giving the judges wide discretionary powers to decide on the quantum of sentence. Under such situation there are conflicting sentencing given by the judiciary wherein similar crime has been committed but different sentences have been rendered. This article analyses the concept of disparity and discrimination in the sentencing method and if there is a need for a sentencing guideline in India.


Nettlesome by poverty, Rajkumar, pick-pocketed a meager amount of money to satisfy his hunger. In Legal parlance, Rajkumar has committed a crime of theft and for the offence of theft there is a punishment of imprisonment of either description which may extend to 3 years, with fine or both according to Indian penal code. Based on the gravity of the crime Rajkumar could also be placed on probation. According to the Act, considering the circumstances of the crime, the offender can be released on probation or after due admonition. Because it has been considered according to progressive interpretation of criminal law that person having no criminal records and tendency, who are first offenders shall not be put in situation which will bring connection with obdurate criminals which will result in increasing the criminal tendency in any individual. The above illustration goes on to show that if Rajkumar is sentenced by Judge A, a hardliner, who believes that theft is a crime on the increase in India, he will receive the maximum penalty of 3 years in prison. If he is sentenced by Judge B who believes that imprisonment is not an effective punishment for petty offences and will be placed on probation according to The probation of offenders act 1958. Is this fair? Should the sentence Rajkumar receives depend on the Judges who impose it? Should the sentence depend on a Judge’s philosophy of punishment or personal beliefs about the perniciousness of crime? Or should it be based on an objective evaluation of the seriousness of crime and the offender’s prior criminal record.

Judges often impose different sentences on similarly situated offenders or identical sentences on offenders whose crime and prior criminal history are different. Echoing judge Marvel Frankel (1972a) the critics suggest that unconstrained discretion leads to lawlessness in sentencing. In plethora of cases Supreme Court of India has cited a number of principles which should be taken into account while exercising discretion in sentencing such as proportionality, deterrence, seriousness and rehabilitation. Mitigating and aggravating factors should also be considered. In Mohd. Chaman vs State the accused was charged under section 376 and 302 of IPC for committing rape and then murder of a one and a half year old child. The learned trial judge came to the conclusion that this is a fit case in which extreme penalty of death should be awarded. The high court confirmed the death penalty saying it to be the rarest of the rare case. However the Supreme Court reversed the capital punishment imposed against the appellant to rigorous imprisonment for life. Similarly, in the case of Gurdev Singh & Anr. V. State of Punjab the appellants were convicted of murdering 15 individuals being part of an unlawful assembly and were convicted by high court and were awarded death penalty. They then approached the Supreme Court on three different special leave petitions out of which two of them were upheld for death penalty. Analyzing both the case laws, the offence is the same but the aggravating and the mitigating circumstances are different. There are catena of case laws in which Supreme Court has given death penalty for the same offence of rape and murder while imprisonment for life as the other alternative to death penalty in the same offence for reasons based on the discretionary powers of the Judges which has been left open as the intention of the legislature while framing the laws. However the discretionary powers used by the judges introduced disparity in awarding sentences. Allegations of lawlessness and sentencing reflect concerns about both disparity and discriminations. Although these terms are sometimes used interchangeably they do not mean the same thing. Disparity is a difference in treatment or outcome that does not necessarily result from intentional bias or prejudice. Discrimination on the other hand is a differential treatment of individuals based on irrelevant criteria such as race, gender or social class. Applied to the sentencing process, disparity exists when similar offenders are sentenced differently or when different offenders receive the same sentence. It exists when Judges impose different sentences on two offenders with identical criminal histories who are convicted of the same crime or when Judges impose identical sentences on two offenders whose prior records and crimes are very different or when the sentence depends on the Judge who imposes it or the jurisdiction on which it is imposed. In the scenario described at the beginning of this article the fact that Rajkumar would receive a significantly harsher sentence for theft of a meager amount to satisfy his hunger from Judge A, the hardliner, than he would from Judge B, who believes in reformation, is an example of sentencing disparity.


On the basis of the above illustration, do we actually need sentencing guidelines in India to reduce the disparity? The recommendation of the Malimath committee on reforms of criminal justice system and the Dr. Prof Madhav Mennon committee suggested that since the enactment of the IPC many developments have taken place, new forms of crime have come into existence, punishment for some crimes are proving grossly inadequate and the need for imposing only fine as a sentence for smaller offences has failed. The committee specifies that IPC prescribes only maximum punishment for the offences and in some cases minimum punishment is also prescribed. Judges exercised his wide discretion within the statutory limits. They are no statutory guidelines to regulate his discretion. The committee is therefore in favour of a permanent statutory committee being constituted for the purpose of prescribing sentencing guidelines. The Supreme Court has emphasized on the fact that superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender had not issued any guidelines. Other developed countries had done so. In a recent case of Narender Singh v. State of Punjab, the Supreme Court has emphasized the need of sentencing guidelines stating that there are provisions, statutory or otherwise in other countries, which may guide judges for awarding specific sentence. However, in India we do not have such sentencing policy till date. The Supreme Court also stated that the prevalence of such guidelines may not only aim at achieving consistency in awarding sentences in different cases, such guidelines normally prescribe the sentencing policy as well. Namely, whether the purpose of awarding punishment in a particular case is more of deterrence or retribution or rehabilitation? The Supreme Court in Mohd. Chaman v. State taking note on a decision of the Supreme Court of USA in Gregg V. Gorgia, the court observed – critically examined, demonstrate the truth of what we have said earlier, that it is neither practicable nor desirable to imprison the sentencing discretion of a judge or jury in the strait-jacket of exhaustive and rigid standards. Nevertheless, these decisions do show that it is not impossible to lay down broad guidelines as distinguished from iron – cased standards, which will minimize the risk of arbitrary imposition of death penalty for murder and some other offences under the penal code.

To reduce the fear of crime a policy maker may seek to impose higher punishments on certain categories of crime. An assessment of levels of fear would then be required. In India the moral seriousness of killing a human being varies with differential reasons. Prevalence of caste based society and a strong system of caste and religion among masses creates controversies far beyond the regular control of a sovereign. The Gujarat riot is a prime example of that. Only an indirect measure of moral seriousness can help qualify public opinion as a legitimate point in determining sentencing policy.


Prior to 1980, the federal courts used an indeterminate sentencing system, which allowed imposing sentences entirely at their discretion. Research, however, shows that this system created sentencing disparities in which different criminals received very different sentences for the same crime. In the bi-partisan reform effort, the congress passed the Comprehensive Crime Control Act of 1984 which provided for sentencing guidelines. The National Crime Rate shows a marked decrease in comparison to before the introduction of the U.S. Federal Sentencing Guidelines in 1984. Both in the U.S. and the U.K. statistical analyses of sentencing shows that sentencing is patterned. Both these countries sentencing are structured by the application of Determinate Sentencing Scheme or Guideline. Therefore, the Legislature declares that “the elimination of disparity and the provision of uniformity of sentencing can be best achieved by determinate sentences fixed by statute in proportion to the seriousness of the offence as determined by the Legislature to be imposed by the Court with specified discretion. Indian Judiciary has time and again through its judgments commented on the fact that there is a pervasive need of a patterned sentencing guideline on the basis of which sentencing disparity can be eliminated. In Swamy Shraddananda alias Murali vs State of Karnataka the court went to say that “coupled with the deficiency of the criminal justice system is the lack of consistency in the sentencing process even by this court. It is noted that Bachchan Singh laid down the principles of rarest of rare cases. Machchi Sinch for practical application crystallized the principle into five definitive 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 principle nor the Machchi Singh categories were followed uniformly and consistently”. But the courts have rigidly said that it is the in the purview of the Legislature to form guideline and not the Judiciary.


The prolonged loggerhead between the two pillars of our Constitution   is nothing but buying time for themselves at the cost of the lives of innocent. Because once a death penalty is awarded to an innocent based on imperfect facts and non-designated mitigating circumstances, his life would come to an end. It is not just that there is disparity in sentencing, or in cases of death penalty or rape but there are other offences in the IPC which clearly brings similar disparities into light. It is time that we should imbibe the finer aspects of the successful Justice System in various parts of the world and make our Criminal Justice System stronger and more efficient.