Journal of Law and Legal Research Development

ISSN: 3048-5045

Sentencing Disparity in The Indian Criminal Justice System

A. S. Kowshikaa*
*
Assistant Professor, Saveetha School of Law, SIMATS, Chennai - 600077, Tamilnadu, India.

Article History Abstract

Sentencing disparity in the Indian criminal justice system is a pressing issue that has
Received: July-2024 significant implications for the principles of fairness and equality before law. This
Revised: July-2024 disparity arises when similar cases receive different sentences, often due to subjective
Accepted: July-2024 judicial discretion. In India, where the Judiciary enjoys considerable autonomy, the
Published: July-2024 absence of standardized uniform sentencing guidelines exacerbates this problem of
sentencing disparity. Various judicial pronouncements on similar offences with
Keywords different punishments stand as irrefutable proof that the judicial autonomy and judicial
discretion is the major contributing factor towards this problem. The Penal Code and
Sentencing Disparity various other penal laws and provisions provides for a range of punishment for a
Judicial Discretion particular offence and the Judiciary is at liberty to decide the appropriate quantum of
Sentencing Guidelines punishment allowing judges considerable discretion. This flexibility can be
Aggravating Factors advantageous in considering the unique circumstances of each case. But on the other
Mitigating Factors
hand, it opens the door to inconsistencies and potential biases. Efforts to address
sentencing disparity include the proposal of sentencing guidelines and the
establishment of sentencing commissions to ensure more uniform application of the
law. These efforts are still taking baby steps and addressing this particular issue in India
requires a multifaceted approach.
Corresponding Author:
Mrs. A. S. Kowshikaa, BBA; LL.B.(Hons.)., LL.M
Assistant Professor, Saveetha School of Law, SIMATS, Chennai - 600077, Tamilnadu, India.
[email protected]
This article is under the CC BY- NC-ND licenses
Copyright @ Journal of Law and Legal Research Development,
available at www.jllrd.com

1. INTRODUCTION judge formally imposes a sentence on the offender at the

sentencing phase of a court hearing. “The main purpose of the
Sentencing Disparity is a type of unequal treatment in sentencing broadly stated is that the accused must realize that he
the process of imposing criminal punishment that is completely has committed an act which is not only harmful to the society of
unjust and has negative effects. In other words, sentencing which he forms an integral part but is harmful to his own future
disparity is that all criminals are treated unfairly and unequally, both as an individual and as a member of the society 1." The
and the punishment is not proportional to their crime. It is decision of quantum or period of sentencing is the process
awarded only on the basis of sentence disparities, which is depending upon the judges' discretion. Judges are always thought
completely against the basic principles of the legal system as it to be well-trained professionals who make fair rulings. As a
states: "All are equal before the law, and no one is above the law." result, the procedure of sentencing is ultimately up to the judges'
Disparity is a variation in treatment or outcome that is not caused discretion. The Court mentioned in Soman vs. State of Kerela2
by prejudice or intentional bias. Disparities emerge in the that in order to protect the judges' discretion, concepts including
sentencing process when similar criminals receive different proportionality, rehabilitation, and deterrence must be
sentences and different offenders receive the same sentence. The considered. However, there is where the actual issue arises: if the

1G. Kameswari & V. Nageswara Rao, The Sentencing Process – IND. L. INST. Institute 452, 452-59 (1999).
Problems and Perspectives, 41 J.
2 Soman vs. State of Kerala (2013) 11 SCC 382

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judges' judgment is as fair as one would want. The rise of sentencing guideline affects the Indian Criminal Justice System
discrepancy in sentencing policy, which has proven to be and it also helps in arriving at possible solutions for the defect.
unfavorable and unreasonable, is the main reason for this
important issue. The prevalence of various forms of judicial 4. SENTENCING POLICY IN INDIA - AN
interpretation is one cause for the growing inequality. The OVERVIEW
Supreme Court declared that the imposition of principles is According to the OXFORD Dictionary7, Sentence
subject to the circumstances, facts, and questions of the individual means punishment allotted to a person convicted in a criminal
case in question. As a result, diverse approaches to a case are trial. Sentencing is the most crucial stage in the process of
taken by judges3. For instance, sentencing disparity is evident in criminal trial. The sentencing process contains the essence of the
cases of murder where the gap between the minimum and the criminal trial as the ultimate success of it lies in awarding the
maximum punishment have never been established by legislation. appropriate sentence to the convict. If the balance between the
The quantum of sentence in murder cases and the reasoning nature of crime committed and the amount of punishment given
behind the decision has always been subjective and different from is not maintained, then it fails the entire purpose of the criminal
case to case. The main reason behind this existing disparity is the trial and the mere purpose of the principles of the criminal justice
absence of established sentencing guidelines which is tried to be system. In India, punishments are defined in Chapter III - Section
substituted by judicial discretion and judicial interpretation. This 53 of the Indian Penal Code, 1860. The types of punishments
research paper establishes the existing disparity in sentencing mentioned under the Law of India includes death, imprisonment
process especially in murder cases and puts forth the impending for life, simple imprisonment, rigorous imprisonment, forfeiture
need to frame uniform sentencing policy and guidelines. of property and fine. Every offence under the Penal code has a
minimum and maximum punishment that can be awarded.
2. OBJECTIVES Finally, it is the discretion of the sentencing Judge whether the
● To analyze and understand the existing sentencing certain offence has to be awarded with minimum or maximum
policy in India. punishment. This decision is usually made to decide on the
● To analyze the sentencing disparity. quantum of punishment considering the nature and impact of the
● To understand the disparity in sentencing with the aid of offence and facts and circumstances of that particular case in
judicial precedents. hand. The offence and the punishment should be proportional.
● To emphasize the need for uniform sentencing There is no uniform punishment regime in India. No such
guidelines as recommended by various law commission guidelines have been released, though courts have occasionally
reports. spelled forth specific principles and considerations that judges
should consider when imposing sentences, acknowledging the
3. REVIEW OF LITERATURE need for such a policy. For instance, in Soman vs. State of Kerela,
In “Need for reforms in criminal justice system in the Supreme Court acknowledged the lack of a policy for the
India with special reference to punishment and sentencing sentence process. “Giving punishment to the wrongdoer is at the
policy4”, the Researcher Ivneet Kaur Walia establishes the heart of the criminal justice delivery, but it is the weakest
absence of sentencing policy creates huge ruckus in the Indian component of the administration of criminal justice in our nation.
Criminal Justice System and there is an impending need to reform There are no legislative or judicially established rules to help the
the punishment and sentencing policy in India. trial court in imposing the appropriate punishment on an accused
In “A critical analysis of law and policy relating to who is found guilty of the charges 8. In order to maintain law and
sentencing in India5”, the Researcher Patil Praveen Balagouda order in society, the court system follows a set of procedures
puts forward a perspective about the problems existing in the based on the principle of natural justice for a fair and just trial in
concept of sentencing in the Indian scenario and it compares the criminal cases. After providing information to the police under
existing arbitrary sentencing in different offences and how the section 1549 of the Cr.P.C. or to the magistrate taking cognizance
judiciary interprets and imposes different sentences in different under section 19010 of the Cr.P.C, there is a procedure of
cases involving same offences and puts light on what could be the investigation and cognizance, followed by a trial that may result
alternative solution to solve this disparity and arbitrariness in the in acquittal or conviction.
process of sentencing.
In “Disparity in Sentencing Policy in India6”, it is 5. IPC AND SENTENCING
reiterated that how it is important to have an est listed sentencing In IPC, there are five theories of punishment among
policy for a society to implement its laws especially the penal which India has adopted reformative and retributive theory as the
laws in complete and true sense and how the absence of fixed strong belief in India is that the major purpose of punishment is
to reform and rehabilitate the offender rather than creating fear

3 7
State of MP vs. Bablu Natt (2008) 9 SCC 281 The Concise of Oxford Dictionary, P-058. Oxford University Press,
Calcutta. P.58
4 http://hdl.handle.net/10603/201779
8 Supra Note 2.
5 http://hdl.handle.net/10603/220795
9 Information in Cognizable cases.
6 INTERNATIONAL JOURNAL OF LAW MANAGEMENT &
10
HUMANITIES Cognizance of offences by Magistrates.

[ISSN 2581-5369] Volume 3 | Issue 4

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and imposing stringent punishment. Thus most of the sentencing for an offence, the court must first analyse the
punishments provided under the Indian Penal Code are of this seriousness of the offence based on the offender's behaviour. It is
nature and the severe punishment like death sentence is only a well-known truth that judges are affected by various
imposed in very rare cases where the nature of the offence circumstances during the course of a case's procedures. It can also
committed is grave and impact created by the offence is dreadful. be deduced from the 2003 Malimath committee's
It is evident that the Code only clearly lists out the kinds of recommendations (Page 171), which recommended the
punishments but it did not provide for the guidelines to be formation of a statutory committee to establish sentencing
followed in the process of sentencing. guidelines, chaired by a former Supreme Court judge or former
Chief Justice of the High Court, with members representing the
6. CRPC AND SENTENCING prosecution, legal profession, police, social scientists, and
The process of using a judge's discretion when deciding women's representatives. They recruited a diverse group of
on a sentence for an offender is clearly reflected in the criminal people to ensure that sentencing guidelines are not impacted as
code under section 354 clause (1)(b), which states that a judge much as possible and that significant stakeholder perspectives are
must record the reasons for his decision. Also, clause 3 of the represented. To make an appropriate decision, there came the
same section states that when the sentence involves death or life concept of aggravating and mitigating factors whose presence
imprisonment, the judge must use his discretion. In reaction to the helps in deciding the quantum of punishment. An aggravating
foregoing, the law, in resolving the case and supporting their factor can lengthen a prospective sentence, whereas a mitigating
position on the penalty imposed, created logics such as factor can shorten it. Not every aggravating and mitigating factor
aggravating and mitigating circumstances. present in a case will automatically result in a sentence increase
or decrease. Depending on the facts of the case, the relative
7. JUDICIAL DECISIONS AND SENTENCING relevance of each aspect will change. Promoting a young
“Giving punishment to the perpetrator is at the heart of offender's rehabilitation, for example, may be considered more
the criminal justice system, but in our nation, it is the weakest important than the principles of general deterrence (that is, the
aspect of the administration of criminal justice.11” The Supreme deterrent effect of a sentence on others in the community who
Court, in commenting on its sentencing power, stated that the might consider committing such a crime) and public
state of criminal law reflects society's social consciousness, and condemnation in the case of young offenders. Pre-planning,
that any system of law adopted for the administration of criminal offence committed in a brutal way, offender having prior history
justice, whether based on corrective mechanisms or deterrent of convictions are few of the aggravating factors whereas the
approaches, should ensure social security because the state's perpetrator suffering from severe mental or emotional distress,
primary function is to protect people and their property. Judges the chances of the offender being rehabilitated for good, the
must ensure that the punishment meted out to the criminal is victim provoked the offender are few of the many mitigating
appropriate for the seriousness of the offence12. factors.
Legislation and court judgments have shaped sentencing
principles (common law). They serve as the foundation for 9. JUDGES’ ROLE IN SENTENCING PROCESS
sentence decisions. These principles include: A review of our country's criminal legislation reveals
• Parsimony - the punishment must be no harsher than is that the distribution of penalties is left totally to the discretion of
necessary to achieve the sentencing goals judges for almost all charges, and as a result, sentences handed
• Proportionality — the entire penalty must be proportionate to down by two different judges for nearly the identical offences are
the seriousness of the offence. frequently wildly unequal. Only the maximum penalty periods
• Parity - For similar offences committed by criminals in similar have been specified because the offences have been characterized
circumstances, similar punishments should be imposed. in broad terms. As a result, within the stipulated limits, judges
• Totality — where an offender is sentenced to many terms, the must apportion the amount of the penalty based on the gravity or
total punishment must be just and appropriate in light of the otherwise of the individual violations. Two main things expected
overall offending behaviour. by any judge to abide by or follow while deciding a case are
 Immediacy
8. INFLUENTIAL FACTORS  Consistency
To decide the appropriate quantum of punishment in a The Judge has all rights and liberties to interpret the law
particular case, the sentencing judge is required to take into relating to the particular offence and case and can decide the case
consideration certain factors that would either propose the based on the evidences produced, arguments put forward by both
maximum punishment prescribed or would stand for the the sides and his own intellect without any prejudice. The only
minimum punishment. The factors which influence the decision limitation imposed is that whatever decision he may make, it
on the quantum of punishment can be grouped under two heads should be consistent with the present scenario and with the law of
as aggravating factors and mitigating factors. The former the land and should protect the rights of the parties involved in
amounts to the presence of certain circumstances or factors in a the case and also the society as a whole and thus render justice.
particular case that puts the judge in a place to decide on imposing To make this decision and to decide the quantum of punishment,
the maximum punishment prescribed. The latter reduces the the Judge can take into consideration the aggravating and
wrong on the part of the offender which puts the judge to decide mitigating factors involved in the case and the presence of these
on the minimum punishment. In determining the proper factors influence the decision on the quantum of punishment.

11 12
Supra Note 2 Sailesh Jaswanthi vs. State of Gujarat - (2006) 2 SCC 359.

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Judges have difficulty adhering to basic principles when they are  The penalty imposed by the Code must be changed
called upon to do so. As a result, there has been a gap in the because the value of money has increased by 50 times
sentences handed down by different courts for specific types of since 1860.
offences, frequently without recourse to the rules established to  The prosecution must either establish beyond a
minimize inequalities. The Indian Penal Code, 1860, or any other reasonable doubt or the accused will be acquitted,
substantive statute with a contractual impact on judges does not whether he is guilty or not. The public's trust in the legal
expressly state such principles. They've also adhered to certain system is eroded as a result of this.
criteria under their own direction; there's no system in place for  The aggravating and mitigating elements must be
daily judges' conferences, and differences in techniques aren't utilised consistently and within a specified framework in
addressed or reconciled. The disparity between maximum and all circumstances.
minimum sentences has a significant impact on the criminal  The imposition of sentences by trial courts without
justice system's sentencing regime. The large disparity between recording acceptable justifications in an arbitrary and
this and the judges' concentration area while issuing sentencing. unjust manner. The role of various employees in the
They have a lot of authority when it comes to making decisions. criminal justice system has been questioned by the
Judges' discretion is required to determine which cases merit the higher judiciary on several occasions14.
least and which cases warrant the maximum. In India, judges
consider numerous elements governing the case, such as severity, 11. SENTENCING DISPARITY IN LIGHT OF
responsibility, and guilty mind, before imposing a sentence. This JUDICIAL PRECEDENTS
sentence appears to be entirely the result of the judge's thinking, The Indian Penal Code defined the offences and
prejudices, and concerns. This process of using a judge's penalties to be imposed. For many offences, only the maximum
discretion when deciding on a sentence for an offender is clearly punishment is specified, whereas for others, only the minimum is
reflected in the criminal code under section 354 clause (1)(b), specified. Within the statutory boundaries, the Judge has a lot of
which states that a Judge must record the reasons for his decision. leeway in deciding on the sentence. There is no longer any
Also, clause 3 of the same section states that when the sentence direction for the Judge in determining the most appropriate
involves death or imprisonment for libel, the judge must record punishment in light of the facts of the case. As a result, each Judge
the reasons for his decision. In reaction to the foregoing, uses discretion in accordance with his or her own judgment. As a
the law, in resolving the case and supporting their position on the result, there is no consistency. Some judges are forgiving, while
penalty imposed, created logics such as aggravating and others are harsh. “The inability of laying down standards is at the
mitigating circumstances. When an offender is convicted, very core of the Criminal law as administered in India, which
balancing is expected. It is necessary to strike a balance between invests the Judges with a very wide discretion in the subject of
the rights of the accused and the needs of society as a whole. It fixing the degree of punishment,15” the Court said in discussing
would also be a difficult task to maintain citizens' trust while India's sentencing system. This discretionary power vested with
employing the courts' authority to convict or execute. It is also a the Judges gives rise to the major problem i.e sentencing
difficult task for the condemned to be found guilty and so disparity. When judges impose different sentences on offenders
executed with a proper penalty without any infallible procedure. with identical criminal histories or similar penalties on offenders
The sentence meted out to the criminal should be appropriate and with distinct criminal histories, it is known as sentencing
consistent with the heinousness with which the criminal act has disparity. Consistency is required under criminal law, and
taken place. Apart from all these influential factors in deciding discretion in sentencing leads to unwarranted disparities. When
the quantum of punishment, there is another side to the Indian all of the ingredients are present in both circumstances and the
Judiciary that proves that the Indian Judiciary is not victim based sentences differ in an evidently unjustified way, there is an
and has decided certain cases in a way to protect the rights of the unjustifiable disparity. For instance, the offender’s age which
accused considering the conduct and character history of the taken into account as mitigating factor in one situation 16 and is
victim as well. It was demonstrated in Raju vs. State of considered irrelevant in another17. This difficulty in deciding the
Karnataka13 that the Indian judiciary is not victim-centered; the quantum of punishment is commented upon the Apex Court in
convict's sentence was lowered solely on the basis of the victim's Soman v. State of Kerela18 as Punishing the wrongdoers is at the
alleged immoral character in the eyes of the law. heart of criminal justice delivery, but it is the weakest aspect of
our country's criminal justice administration. There are no
10. COMMON DEFECTS IN SENTENCING POLICY legislative or judicially established rules to help the trial court in
 The death sentence is the harshest punishment, followed imposing the appropriate sentence on an accused who is found
by life imprisonment; there is no punishment in guilty of the charges. The Supreme Court has stated in State of
between, as there is in the United States, which is known Madhya Pradesh v. Surendra Singh19 that “undue sympathy to
as "imprisonment without remission or commutation." inflict inadequate sentences would cause more harm to the justice
system and destroy public confidence in the efficacy of law,"

13 17
1994 SCC (1) 453 Dhananjoy Chatterjee vs. State of West Bengal (1994) 2 SCC 220.
14 State of M.P. vs Gyan 1992 CriLJ 192 18 Supra Note 2.
15 19
Jagmohan Singh vs. State of Uttar Pradesh AIR 1973 SC 947 AIR 2015 SC 3980
16 Jai Kumar vs. State of Madhya Pradesh (1999) 5 SCC 1.

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based on the proportionality approach. It was held by the Apex guidelines suitable to the Indian scenario which would reduce the
Court20that, the presence of various types of judicial interpretation is judicial discretion.
one explanation for the growing inequality. The imposition of
principles is contingent on the circumstances, as well as the facts and 15. CONCLUSION
issues of the case at hand. As a result, diverse approaches to a case To ensure ‘justice' in every case, deliberations outside the
are taken by judges. As a result, disparity is a discrepancy in nature of the crime committed and surrounding circumstances are
sentencing that is determined by one's sentencing theory. However, required. Sentences are widely left up to the discretion of the judge.
the public's trust in the system is eroded as a result of all of this. The use of judges' discretion is not the best criminal justice policy.
The Malimath Committee Report on Criminal Law Reform (2003)
12. CAUSES recommended that sentencing guidelines be incorporated to assist
Some factors that can be considered as sources of judges in determining suitable sentences. The Indian judiciary has
inconsistency or disparity in the Indian Sentencing System include matured, and suitable punishment policies are due. Individualization,
 Individualized sentencing. non-uniform or random sentencing must be abandoned in India in
 Inconsistent sentencing goals. favour of certainty and rationale in sentencing. With sentencing
 Discrepancies in judicial decisions. standards in place, the courts will be able to react to the community's
 A lack of direction or guidelines. daily cries for justice. Several government-appointed bodies have
emphasized the significance of developing and/or implementing
13. NEED FOR SENTENCING REGULATION sentencing guidelines in India. This is a reiteration of that call.
Punishing the accused for the actus reus is the important Individualization of punishment will be addressed, and the
aspect of criminal law. This process is to be guided by the sentencing uncertainty surrounding the allocation of penalties in India would be
policy. There are no established sentencing guidelines in India and reduced.
without the sentencing guidelines the process is jeopardized resulting
in sentencing disparity which is against the basis of criminal law. In 16. FUNDING
India, judges have the authority to choose the term of a sentence at This article did not get any explicit financial support from
their discretion. The courts have handed down disparate penalties for any public, private or non-profit funding sectors.
comparable offences. The sentencing, on the other hand, is subject to
the judges' discretion. There is little consistency in sentence, even for 17. CONFLICT OF INTEREST
the most heinous offences. "In certain cases, murderers are Conflict of interest declared none.
sentenced to 14 years or more in prison, while others are sentenced
to life in prison. It fluctuates depending on the circumstances." 18. REFERENCES
Unsurprisingly, there is a growing desire for particular sentencing 1. International Journal of Law, Management and Humanities
criteria. Experts point out that India's absence of structured 2. Abha Shukla, Sentencing Discretion in India: Arbitrary
sentencing results in a vast difference in the delivery of justice. Sentencing and Modalities to Arrest Arbitrariness - A
Neither the legislature nor the judiciary in India have established Comparative Study
formal criminal sentence guidelines too far. This frequently results 3. https://www.telegraphindia.com/opinion/different-strokes-
for-different-folks/cid/1443368
in a miscarriage of justice. K.T.S. Tulsi, a Supreme Court lawyer,
4. G. Kameswari & V. Nageswara Rao, The Sentencing Process
adds “The judge's subjective opinion should not be used to determine
– Problems and Perspectives, 41 J. IND. L. INST. Institute
justice. We require thorough sentencing rules21”. According to legal 452, 452-59 (1999).
experts, the IPC merely stipulates the maximum or minimum 5. Alfred Blumstein, et al. Research on Sentencing: The search
punishment for many crimes. The judge is the one who determines for Reform, Volume II (1983), p.9.
the severity of the penalty. The maximum and minimum 6. Sentencing by Courts in India, first edition, 1975.
punishments are vastly different. Tulsi feels that establishing 7. Indian Penal Code, 1860
guidelines will serve as a deterrence to criminal activity. “It will also 8. The Criminal Procedure Code, 1973
lower crime since people will be aware of what crimes will result in 9. The Bharatiya Nyaya Sanhita, 2023
what punishment. Now that they are aware that there is no specific 10. The Bharatiya Nagarik Suraksha Sanhita, 2023
punishment, they have plenty of room to escape” he declares. 11. Shodhganga
Currently, a judge can impose any sentence that falls between the 12. Soman vs. State of Kerala (2013) 11 SCC 382
maximum and minimum bounds, which is arbitrary and 13. State of MP vs. Bablu Natt (2008) 9 SCC 281
unpredictable. Many lawyers also claim that due to personal 14. Sailesh Jaswanthi vs. State of Gujarat (2006) 2 SCC 359
preconceptions, this extensive discretion leads to abuse of the 15. Raju vs. State of Karnataka 1994 SCC (1) 453
sentencing process". Provided all the above reasons and factors, 16. State of M.P. vs Gyan 1992 CriLJ 192
small behavior of the accused inside the Court which perceived as 17. Jagmohan Singh vs. State of Uttar Pradesh AIR 1973 SC 947
inappropriate to the Judge can be an aggravating factor and there is 18. Jai Kumar vs. State of Madhya Pradesh (1999) 5 SCC 1
19. Dhananjoy Chatterjee vs. State of West Bengal (1994) 2 SCC
no rule book available as to what to be done and what not.
220
20. State of Madhya Pradesh v. Surendra Singh AIR 2015 SC
14. SUGGESTION
3980
The ambiguity and disparity in sentencing process can only
be negated by the establishment of a fixed regime of sentencing

20 21
Supra Note 3. Available at https://www.telegraphindia.com/opinion/different-
strokes-for-different-folks/cid/1443368

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