SENTENCING

The purpose of criminal law and the purpose of punishment are two sides of the same coin.
That being said, the purpose of punishment has always been for the benefit of society and not
to protect the individual interests of the accused. Punishment, therefore, is an expression of
society's disapproval of the act, and the magnitude of punishment reflects the extent of the
indiscretion. However, due to the rise of human rights, we see humanization of punishments
based on individual interests which in turn is based on reformative theory.

After the guilt of the accused is established, the courts will go on to impose a punishment.
The imposition of punishment is called sentencing. The Indian law on sentencing is unclear
in its theoretical justifications. That is to say that the theory of punishment often varies in
different cases. For instance, a Judge may follow the theory of individualization and consider
factors like age, health, antecedents, etc. On the other hand, another judge may follow the
theory of just deserts and consider factors like the nature of the offence and its impact on
society. This highlights the inconsistencies in the sentencing process in India, which is
largely based on judicial discretion

During the sentencing hearing, the court takes into consideration various factors while
deciding the extent of punishment. India does not have a sentencing policy or guidelines, and
the sentencing procedure is largely governed by the Indian Penal Code (IPC), Code of
Criminal Procedure (CrPC) and judicial discretion. Punishments are also provided under
special statutes like the Prevention of Corruption Act, 1988. The role of legislation in Indian
sentencing law is thus essentially one of providing powers and laying down the outer limits
of their use. The law indicates the gravity of the act by the maximum penalty provided for its
punishment, and the courts will have to consider how far the crime committed falls short of
the maximum punishment and what, if any, are the mitigating circumstances justifying the
adoption of a lower punishment than the maximum provided.

Sections 53 to 75 of IPC lay down the general provisions relating to punishments. The
punishments under IPC are based on substantive laws, and Section 53 of the IPC provides for
five types of punishments. This includes death penalty; life imprisonment; imprisonment that
can be rigorous, simple or solitary; forfeiture of property; and fine. The sentencing procedure
is covered under the CrPC and provides various procedural safeguards to the convict. For
instance, Section 235 provides for a mandatory hearing of the convict during sentencing.
Provisions also provide for giving reasons during sentencing and also mandate to assign
reasons and special reasons for the death penalty in support of sentence.

THEORETICAL BASIS FOR SENTENCING

A. Retributive Theory: According to this theory, the purpose of imposing punishment is

to take revenge. That is to say, that is based on the idea that the offender must suffer.
It is the oldest theory and can be traced back to Hammurabi's code. This theory is
populist and is nothing but a form of legitimate mob revenge. According to Kant,
retribution is the right of the sovereign as the supreme power to inflict pain upon a
subject on account of a crime committed by him
B. Deterrent Theory: The idea behind this theory is to deter any other member of society
from committing the crime. This theory has a two-prong purpose. First, to instil fear
in the mind of the offender and secondly to warn others on the consequences that
could befall them if they committed the crime. In the quest for deterrence, harsh
punishments can be imposed, which are often disproportionate. The basis of the
deterrent theory has been most aptly summed by saying that the punishment is not for
stealing a goat, but to prevent other goats from being stolen.
C. Reformative Theory: This theory looks at sanction as an instrument of rehabilitation
and tries to mould the behaviour of criminal on the premises that criminal is not born
but made by the environment of society. Therefore, it is the responsibility of society
to reform him by adopting certain suitable methods. This approach rejects the
deterrence and retributive elements of punishments and impeccably advocates
reformative approach on the simple idea that, 'we must cure our criminal, not kill
them.
D. Theory of Just Deserts: This can also be said as the theory of proportionality.
According to this theory, criminal sanctions should be proportional with the
seriousness of the offense. The basis on which one is expected to decide the quantum
of punishment is crucial to understanding this theory. Therefore, according to just
deserts both aggravating and mitigating circumstances which throw light on the
culpability of the offender and seriousness of the offence would be taken into
consideration for the purpose of imposing punishment.

The Indian judiciary is highly inconsistent when dealing with the sentencing process. It is
divided between retribution and reformation. This can be illustrated by comparing the court's
dictum in State of U.P. vs Kishan1 wherein it was observed that "In operating the sentencing
system, law should adopt the corrective machinery or the deterrence based on factual matrix."
On the other hand, we have someone like Justice Krishna Iyer, who believes in the
reformation. Justice Iyer has observed that every saith has a past, every sinner has a future,
and the humanistic approach in imposing punishments should not become obscure. This
approach can be seen in the case of Mohd. Giasuddin V. State of AP3 , wherein the Supreme
Court held that crime is a pathological aberration. The criminal can ordinarily be redeemed,
and the state has to rehabilitate rather than avenge."

Treading towards a more humane approach in the 1970s and 1980s the Supreme Court in the
case of Bachhan Singh v. State of Punjab4 laid down that sentencing should be done by
balancing the aggravating and mitigating circumstances, after taking the circumstances
relating to the crime as well as criminal. However, the court failed to define what is
aggravating and what is mitigating. Should the courts focus on the effect of the crime on the
society and the nature of the offence or should they focus on socio-economic conditions of
the offender. This is highly subjective and led to the debate of standardization versus
individualization.

STANDARDIZATION V. INDIVIDUALIZATION

There are two schools of thought which define what the aggravating and mitigating factors
arethese are standardization and individualization of punishment.

Standardization: This concept basically argues for equal punishment of everyone convicted of
the same offence. The proponents argue to limit the judicial discretion in the hands of judges
by the legislature, which can impose certain standards and limitations within which judges
need to decide the sentences to the offenders. The supporters of the theory of just deserts and
the principle of proportionality insist on standardization of the sentencing practices.
According to this, the legislature ought to bring in sentencing policies to uniformity in
sentencing. The standardization of sentencing is possible by broadly categorizing offences
based on the nature of the offence and the victim; the offender and by tabulation of
aggravating and mitigating circumstances.

Individualization: This basically acts as a counter to standardization as it ==does not adopt

correctional practices, and the reformation may not be possible by standardized punishments.
The essence of individualization of the punishment is to take the factors relating to the
offender into consideration for fixing the term of the imprisonment. Such factors may include
age, social background, education, occupation, circumstances in which the offence was
committed, the possibility of his reformation, antecedents, character etc. of the offender.
Above all, individualization of the sentencing process requires that the sentencing judge shall
be vested with discretion to select the form and the quantum of punishment that can be
imposed.

Apart from the Indian Penal Code which is the launching pad of punishment, progressive and
welfare legislations like Probation of Offenders Act, 1958, admonition provision under Code
of Criminal Procedure, 1973 and Juvenile Justice Act 2015 also empower the sentencing
judge to sentence the accused in concessionary way. The choice of these benefits, however,
depends a lot on the personality of the judges. Orthodox and conservative judges may not use
such salutary provisions though on the other hand, progressive, liberal and reformatory
judges may often have recourse to such beneficial provisions6 . Though uniformity in all
forms of sentencing is expected as constitutional mandate, nothing much is lost in respect of
small sentences if disparity persists. However, disparity in sentences where accused is
sentenced for long incarcerations, the life and liberty may be arbitrarily lost. The power to fix
sentences to run sentences concurrently or consecutively has also conferred wide discretion
on the sentencing courts resulting in disparity in the sentences as in Section 31 of IPC. The
powers of remissions and pardon have also been central point of attack in respect of arbitrary
exercise of powers. The disparity and arbitrariness in sentencing has brought a sense of
dissatisfaction towards the institution of judiciary so much so that the discretion in sentencing
has even been criticised as fertile ground for corruptions.

In Raj Bala v. State of Haryana & Ors. Etc. for conviction under Section 306 IPC, the
sessions court sentenced the convict for rigorous imprisonment for a period of three years
each with a fine of Rs.3,000/- each and in default of payment thereof to undergo R.I. for six
months. On appeal the High Court gave the stamp of approval to the conviction but as
regards the sentence it felt that the ends of justice would not be met if the accused were sent
to jail. Expressing displeasure at the appreciation of the case the Supreme Court observed that
“…it is really unfathomable how the High Court could have observed that no useful purpose
would be serve[d] by sending the accused persons to jail for undergoing their remaining
sentences of imprisonment, for the High Court itself has recorded that the appellants therein
had remained in custody only for a period of four months and twenty days…” “…The
approach of the High Court, as the reasoning would show, reflects more of a casual and
fanciful attitude…”

In case of rape and murder of a 7-year-old girl in State of Punjab v. Bawa Singh (2015), the
Sessions Judge sentenced the appellant to death, which conviction and death penalty was
confirmed by the Madhya Pradesh High Court. It is interesting to note that High Court
denounced the judge centric approach to death penalty yet adhered to “society centric view”
and upheld the death penalty. On appeal, Supreme Court commuted the sentence to rigorous
imprisonment for the remainder of his natural life and observed: “Time and again this court
has held that the imposition of the death penalty should be the only option available to the
Court and the question of any another sentence must be unquestionably foreclosed so as to
justify the extreme penalty.”

The Ministry of Home Affairs, established the Malimath Committee, in 2000. This
committee went on to emphasize on the discretionary power of the judges while deciding
sentences. They too, felt the need to regulate such power and a uniform sentencing policy. It
is not only the judges who posses this wide discretionary power. Section 360 and 361 of the
IPC authorizes and governs release of convicts and offenders on the basis of their good
conduct whilst imprisoned. Due to the absence of a sentencing policy and a set definition of
‘good conduct’, a convict’s release would depend on the discretion of his respective jail
authorities.

Establishment of sentencing council, true, requires the complete overhauling of sentencing

policy in India. The fact that India had enough opportunity to go for sentencing councils yet
did not take any steps towards that directions itself indicate that, the water is still being tested
Pre-sentencing reports work wonder for they provide the social milieu to punishment
intended. The importance of such report has been underlined way back in 1979 in Dilbag
Singh v. State of Punjab. Delhi High Court has, of late, made pre-sentencing report
compulsory in respect of death penalties.11 Only after obtaining the pre-sentencing report
that bench would decide the death penalty reference. This procedure can be generalized for
all offences. A suitable amendment can be carried out to Criminal Procedure Code, 1973 to
that effect. Pre-sentencing report can be made compulsory until comprehensive sentencing
policy is brought to force in India

It is therefore, clear that whether a particular offence should be punished with the minimum
or maximum penalty prescribed for it, or somewhere from between the gap, depends solely
on the judge’s discretion. Section 354(1)(B) of the CrPC directs judges to record reasons
behind awarding a particular sentence, and according to Section 354(3), whenever any
sentence authorizes life imprisonment or death penalty, special reasons must be laid down.
Despite the above provisions, it is undisputable that the absence of a sentencing policy in
India, leaves the judges and the judiciary with a lot of power.

INTERNATIONAL SENTENCING

Punishing human rights violations with penalties proportionate to the gravity of their crimes
has become a norm of international law.1 The penalties provisions of the agreements creating
the ICTY, ICTR and the ICC reflect this norm.2 The ICTY and ICTR, however, operate with
scant additional formal guidance, causing sentencing practice at these two most established
international courts to appear unsupported, confused, and cluttered.

The appropriate punishment for serious human rights violations, including international
crimes, is a term of imprisonment commensurate with the gravity of the crime. International
criminal law began reflecting this proportionality following World War II and continues to do
so. The statutes creating the ICTY, ICTR, and ICC call on each court to consider the
“gravity” of the crime in determining an appropriate penalty.3 International law provides
little further guidance on proper sentencing for international crimes. This relative lack of
guidance springs from the fact that international crimes have gone largely unprosecuted and
unpunished. Also, most human rights crimes that are prosecuted are heard by national courts;
thus, domestic systems handle sentencing, employing their own criteria. Finally, fostering
agreement between states on why and how to punish is extremely difficult.

To determine appropriate sentences, tribunals should impose penalties that reflect the gravity
of the crime, while considering “the individual circumstances of the convicted person.” They
may also look to “practice regarding prison sentences” in the state where the crimes were
committed.4 The tribunals’ Rules of Evidence and Procedure contain additional provisions,
but again guidance is scant. The Rules allow consideration of aggravating and mitigating
“circumstances” but do not offer definitions other than to characterize “substantial
cooperation with the Prosecutor” as mitigating.5

Sentencing appears to vary greatly as a result of these brief provisions. Decisions typically
account for a crime’s gravity, many even explicitly invoke proportionality.6 Yet despite
employing identical provisions on gravity’s role, the tribunals have approached its
determination differently. Emphasis on gravity suggests that retribution is the major
theoretical underpinning behind international punishment, but the tribunals also consider
other theories. They often look to deterrence, particularly general deterrence.9 Other theories
are linked to consideration of “individual circumstances.” Rehabilitation is sometimes a
consideration.10 As in domestic systems, the impact of these theories on resulting sentences
remains unclear.

In practice, sentencing relies heavily on evaluating aggravating and mitigating circumstances.

With little guidance on these factors, the jurisprudence defines which circumstances to
consider and what these circumstances are. Aggravating circumstances include the position of
the convicted; his or her degree of involvement in the crime; premeditation; the nature of the
act; and the victims’ status and vulnerability. Mitigating circumstances include entering a
guilty plea; displaying remorse; acting under duress; surrendering voluntarily; and the
convict’s age and personal circumstances.

Against this background, observers have written much about international sentencing’s
deficiencies. Most criticism starts from the premise that international sentencing criteria are
limited and underdeveloped. At the root of the criticism is concern that international penalties
do not adequately reflect the gravity of the crimes, either because international courts
inconsistently punish similar crimes14 or because they are per se lenient.15 The extreme
gravity of international crimes only heightens this concern

International sentencing’s critics are comprised of practitioners and academics of varying

nationalities. Their criticism falls into two categories. First, observers criticize the lack of a
coherent theory of punishment.16 Although consideration of gravity suggests a retributive
theory, the Statutes— particularly their reference to “individual circumstances”—raise
alternate theories. The tribunals’ jurisprudence has fueled criticism by seemingly relying on
every potential theory of punishment at different points.

Second, observers criticize the tribunals for not developing or inconsistently applying a
hierarchy of crimes.17 The absence of a hierarchy complicates the ability to penalize in a
manner commensurate with gravity. This critique questions the use of individual
circumstances.” Some judges interpret “individual circumstances of the convicted” as an
element contributing to a crime’s gravity—the circumstances of the crime and the criminal
can heighten or lessen the gravity of the crime itself. Others interpret this wording to mean
that crimes have inherent gravity, independent of subjective circumstances. This split mirrors
the difference between the ICTY’s and ICTR’s approaches to determining gravity.