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LAW

Criminal Justice Administration Sentencing: Theory and Practice

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DESCRIPTION OF MODULE

Items Description of Module

Subject Name Law

Paper Name Criminal Justice Administration

Module Name/Title Sentencing: Theory and Practice

Module Id Law/CJA/XVII

Objectives

Learning Outcome:

To understand interplay between theories of punishments and sentencing and how the theories influence the sentencing in our country;

To provide knowledge of sentencing practices of the courts to students ;

To make students appreciate various justifications for punishment and the sentencing practices in India;

To understand nuances of the debate on capital

Role Name Affiliation

Principal

Investigator

Prof. (Dr.) Ranbir

Singh

Vice Chancellor,

National Law

University, Delhi

Co-Principal

Investigator

Prof. (Dr.) G.S.

Bajpai

Registrar, National

Law University

Delhi

Paper Coordinator Mr. Neeraj Tiwari Assistant Professor,

National Law

University Delhi

Content Writer Mr. Pattabhi

Ramarao K.

Assistant Professor,

National Judicial

Academy, Bhopal

Content Reviewer Mr. Neeraj Tiwari Assistant Professor,

National Law

University Delhi

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punishment ; To understand latest developments relating to the

punishment of life imprisonment.

Prerequisites For understanding the module, basic

understanding of the provisions of Code of

Criminal Procedure, 1973 and peripheral view of

theories of punishment is required.

Key words Theories of Punishment, Sentencing Practices,

Standardisation and Individualisation of the

Punishments, capital sentence, Life Imprisonment

Module Overview: Sentencing the offenders is an important function of the criminal courts. It is

now accepted that the theories of punishment influences the sentencing patterns. There are two

schools of thought on sentencing process, one favouring absolute discretion to the judges in

deciding the quantum and form of the punishment and the other arguing for prescribing certain

standards and limitations within which judges need to decide the sentences to the offenders. The

former one is called Individualisation and the later as Standardisation. The courts in India have

been deliberating on the above issues and the views are being changed from time to time. At

present the Supreme Court is relying on the principle of proportionality and just deserts, which

are related to the retributive theory. But the Supreme Court has been emphatically denying it’s

adherence to the retributive theory of punishment. This module makes the students to understand

the interplay between the theories of punishment and sentencing, the debate on capital

punishment in India and the new trends in this regard, predominant opinion of the Supreme

Court on sentencing by critical analysis of recent case law.

I. INTRODUCTION

Punishing the wrong doer or treating him appropriately is one of the vital functions of the

criminal justice administration. Many penal statutes prescribe the maximum punishment for

offences, leaving the discretion to the courts to determine the quantum of sentence that can be

imposed on the offender. In many jurisdictions law also provides for alternative methods to

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punishments, such as release after admonition or on probation of good conduct for certain

categories of offences and offenders. The Indian Penal Code, 1860, the chief penal statute in our

country provides for the maximum punishment that can be awarded to the different offences and

only for few offences minimum punishment is prescribed. The special and local criminal statutes

also are not different from Indian Penal Code, 1860, in this regard. Thus Indian judges are

endowed with enormous discretion in determination of quantum as well as form of the

Punishment to the convicts. The only general provision which caps the discretion of the

sentencing judges to a very limited extent can be found in section 354 (3) of the Code of

Criminal Procedure, 1973 which requires that in all cases punishable with the imprisonment of

more than one year a minimum of three months imprisonment shall be awarded if there exist no

special reasons.1 As far as form of punishment is concerned, the punishments that are mentioned

in section 53 of the Penal Code only are to be imposed.

The process of sentencing is of considerable significance in criminal justice system

and thus it is rightly described as a judgment on conviction of crime.2 Fixing the exact

1 Section 354(3) of Cr.P.C. reads as follows:

(4) When the conviction is for an offence punishable with imprisonment for a term of one year of more, but the

Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for

awarding such sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was

tried summarily under the provisions of this Code. 2 State of Punjab vs. Prem Sagar, (2008) 7 SCC550

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quantum of punishment is a highly difficult task. Great legal philosopher Hegel in his

'Philosophy of Right' pithily put the difficulty as follows:

Reason cannot determine nor can the concept provide any principle whose

application could decide whether justice requires for an offence (i) a corporal

punishment of forty lashes or thirty nine, or (ii) a fine of five dollars or four

dollars ninety three, four, etc., cents, or (iii) imprisonment of a year or three

hundred and sixty-four, three, etc., days or a year and one, two, or three days, And

yet injustice is done at once if there is one lash too many, or one dollar or one

cent, one week in prison or one day, too many or too few.3

A properly crafted legal frame work is needed to meet the challenging task of appropriate

sentencing. But our judicial system could not develop any legal principles that can be applied in

determination of appropriate sentences. Nor there exists any legislative frame work in this

regard. This resulted in colossal liberty for Indian judges, and made the entire process largely

judge centric. The situation is rightly described by the Supreme Court in Swami Shraddanandda

@ Murali Manohar Mishra vs State of Karnataka4 thus:

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 this 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 lop-sided and presents a poor reflection of the system of

criminal administration of justice.

The unguided sentencing discretion led to unwarranted and huge disparity in sentences awarded

by the courts of law, which is contrary to the basic principle of even handed administration of

criminal law. Though blind uniformity in sentencing cannot be insisted, disparate sentences are

3 Quoted by the Supreme Court in Ramashraya Chakravarthy vs. State of M. P.,(1976)1 SCC281

4 (2008)13SCC767

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considered to be violation of the principle of equality. In the long run disparate sentencing may

have adverse effect of erosion of the public trust and confidence in the justice delivery system.

Indian Supreme Court recognized the problem more than four decades ago when it found that in

two identical cases, punishment of imprisonment 4 years in one case and mere three months jail

term in another case is imposed.5 Another example is a case in which a one day jail term

awarded by the trial court was enhanced to seven years by the High Court and subsequently

modified to three years by the Supreme Court.6 The Supreme Court in Dananjoy

Chatterjee@Dhana vs. State of West Bengal7 observed that “Today there are admitted

disparities. Some criminals get very harsh sentences while many receive grossly different

sentences for an essentially equivalent crime and a shockingly large number even go unpunished,

thereby encouraging the criminals and in the ultimate make justice suffer by weakening the

system's credibility. Though it is recognized that punishing the wrong doer is at the heart of

criminal justice delivery, in our country it is weakest part of administration of criminal justice.”8

Neither the courts nor the legislature can devise any formula for determination of appropriate

sentences because of the limitation that none can visualize every potential situation, relating to

sentencing the offender that may arise before the courts and provide guidelines to deal with all

such situations. There is no straight jacket formula for sentencing the accused on proof of crime.

Legal scholarship on sentencing developed basing on the theories of punishment and hence it is

apposite to understand the inter play between the theories of punishment and sentencing process.

II. THEORIES OF PUNISHMENT AND SENTENCING PROCESS

Ideally, any punishment imposed by the court shall be justified either by it’s purpose or

the goal. Penologists all over the world pondered over the justifications for punishing the

criminals. On careful analysis punishment is inflicted on offender for achieving any of the

following purposes, namely –

5 Rameshwar Dayal vs. State of U. P., (1971) 3 SCC924

6 Raju vs, Stae of Karnataka , (1994) 1 SCC453

7 (1994) 2 SCC220

8 Soman vs. State of Kerala, (2013)11 SCC382

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The above justifications can be found in theories of punishment known as (a) Retributive theory

(b) Deterrent theory (c) Preventive theory and (d) Reformative theory. Theories of punishment

thus offer justifications for punishing the offenders and the purpose that is to be achieved by

imposing the punishment. Traditionally theories of punishment have been either consequentialist

(i.e concerned with the supposed effects of the punishment) or deontological (i.e concerned with

moral considerations other than consequences).9 Philosophy of Jeremy Bentham arguing for

penal utilitarianism and Immanuel Kant, supporting the retributive sanctions provided fertile

platform for the rival theories of punishment. Benthamites argue for such punishment which has

some utility and Kantinians support that the persons who committed an offence has to suffer the

punishment because they have chosen their actions which are punishable and no other

justification is necessary to punish them.

9 Andrew von Hirsch, Proportionality in the Philosophy of Punishment, Crime and Justice, Vol. 16 (1992), pp.

55-98, http://www.jstor.org/stable/1147561

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Indian criminal justice system offers an example of influence of the theories of punishment on

sentencing. During the British regime and the first two decades after independence with

Victorian age values in the ambiance, Indian courts were more concerned with deterrent and

proportionate sentences. In Emperor vs, Maiku, 10

, the Allahabad High Court observed that “It is

an elementary proposition in criminal jurisprudence that sentence in each case should be

proportionate to the nature and gravity of the crime.” Similar observation was made by the

Calcutta High Court in Emperor vs. Yar Muhammad.11

In Mohomed Hanif vs. Emperor12

the

Bombay High Court observed regarding sentencing the offenders as follows:

In the first place, it is necessary to pass a sentence upon him which will make him

realise that a life of crime becomes increasingly hard, and does not pay. In the

second place, the sentence should serve as a warning to others who may be think-

ing of adopting a criminal career. In the third place, the public must be protected

against people was show that they are going to ignore the rules framed for the

protection of society.

10

AIR 1930 All 279 11

AIR 1931 Cal 448 12

AIR 1942 Bom 215,

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The above passage indicates that deterrence and protection of society were considered to be the

objectives of punishment. Though proportional and deterrent sentences were advocated, harsh

and inappropriate punishments were seriously objected.13

The reformative theory had it’s sway

for nearly two decades commencing from mid-seventies. For some time, “Gandhian axiom that

crime is like disease, and correction, not cruelty, has dominance in the sentencing calculus”14

.

The Supreme Court religiously advocated for reformation in the process of punishment. In

Mohammed Giasuddin vs. State of Andhra Pradesh15

the Court observed as under:

If every saint has a past, every sinner has a future and it is the role of law to

remind both of this. The Indian legal genius of old has made a healthy

contribution to the world treasury of criminology. The drawback of our criminal

process is that often they are built on the bricks of impressionist opinions and

dated values, ignoring empirical studies and deeper researches.

The court further opined thus:

Progressive criminologists across the world will agree that the Gandhian

diagnosis of offenders as patients and his conception of prisons as hospitals-

mental and moral-is the key to the pathology of delinquency and the therapeutic

role of 'punishment' The whole man is a healthy man and every man is born good.

Criminality is a curable deviance. The morality of the law may vary, but is real.

The basic goodness of all human beings is a spiritual axiom, a fall-out of the

advaita of cosmic creation and the spring of correctional thought in criminology.

In Santa Singh vs. State of Punjab16

the Supreme Court observed that

The modern concept of punishment and penology has undergone a vital

transformation and the criminal is now not looked upon as a grave menace to the

society which should be got rid of but is a diseased person suffering from mental

13

See, Emperor vs. Sakinabai Badruddin, AIR 19431 Bom 70, In re, Ramalingayya.AIR 1942 Mad 723, Dulla vs.

State AIR 1958 All 198. 14

Satto vs. State of U.P. (1979)2SCC628 15

(1977)3SCC287 16

(1976) 4 SCC190

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malady or psychological frustration due to subconscious reactions and is,

therefore, to be cured and corrected rather than to be killed or destroyed.

In Maru ram vs Union of India17

, a judgment of five judge bench of the Supreme Court Justice V

R Krishna Iyer speaking for majority18

made the following observation:

We feel that correctional strategy is integral to social defence which is the final

justification for punishment of the criminal. And since personal injury can never

psychically heal, it is obdurate obscurantism for any legislative criminologists to

reject the potential for prisoner re-socialisation from the calculus of reformative

remission and timely release.

While this trend in favour of reformation continued for about two decades, in recent years

the focus appears to have shifted from the reformative approach to deterrent sentences on the

principle of proportionality. This approach pushed back the reformative approach. In Mahesh vs.

State of Madhya Pradesh19

the Supreme Court deprecated the practice of taking a lenient view

and not imposing the appropriate punishment observing that it will be a mockery of justice to

permit the accused to escape the extreme penalty of law when faced with such evidence and such

cruel acts. The court held that "To give a lesser punishment to the appellants would be to render

the justice system of this country suspect. The common man will lose faith in the courts. In

Sevaka Perumal vs. State of Tamilnadu 20

the Supreme Court opined that:

“Undue sympathy to impose inadequate sentence would do more harm to the

justice system to undermine the public confidence in the efficacy of law and

society could not long endure under such serious threats. It is, therefore, the duty

of every court to award proper sentence having regard to the nature of the offence

and the manner in which it was executed or committed etc.”

17

(1981) 1 SCC107 18

Justice S. Murtaza Fazal Ali and Justice A.D. Koshal rendered separate judgments disagreeing with the

proposition that the reformation is the only purpose of the punishments. 19

( 1987 ) 3 SCC 80 20

( 1991 ) 3 SCC 471

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In Jashubha Bharatsinh Gohil and Ors. vs. State of Gujarat 21

the apex court opined that

Protection of society and deterring the criminal is the avowed object of law and that is

required to be achieved by imposing appropriate sentence. In the case of Hazara Singh vs. Raj

Kumar22

the apex Court has observed that:

“The punishment awarded should be directly proportionate to the nature and the

magnitude of the offence. The benchmark of proportionate sentencing can assist

the Judges in arriving at a fair and impartial verdict. This Court further observed

that the cardinal principle of sentencing policy is that the sentence imposed on an

offender should reflect the crime he has committed and it should be proportionate

to the gravity of the offence.”

In State of Madhya Pradesh vs. Bablu23

after considering and following the earlier decisions,

this Court reiterated the settled proposition of law that one of the prime objectives of criminal

law is the imposition of adequate, just, proportionate punishment which commensurate with

gravity, nature of crime and the manner in which the offence is committed. One should keep in

mind the social interest and conscience of the society while considering the determinative

factor of sentence with gravity of crime. The punishment should not be so lenient that it

shocks the conscience of the society.

Thus the last two decades witnessed a paradigm shift in the approach of the Supreme

Court in sentencing practices and perhaps the changing social conditions and growing rate of the

crime might have caused the change in the attitude of the courts in our country. The courts seem

to have almost abandoned the reformative approach and in State of M.P. vs. Bala @Balram24

the

Supreme Court observed that “It is true that reformation as a theory of punishment is in fashion

but under the guise of applying such theory, courts cannot forget their duty to society and to the

victim.” Further it is to be noticed that the apex court in many recent cases did not deliberate on

any particular theory of punishment and has been repeatedly following the principle of

proportionality. The conceptual development of “Just Deserts” which is an outcome of the

Kant‘s penal philosophy of retribution is the foundation of the proportionality principle.

According to the principle the punishment shall fit the gravity of the crime and the offenders

21

(1994) 4 SCC 353 22

(2013) 9 SCC 516 23

2014(9)SCALE678 24

(2005)8 SCC1

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shall be punished because they deserve punishment. Andrew Von Hirsch, the modern exponent

of the principle argues that proportionate punishment is requirement of fairness. Another

argument in favour of the standardisation finds support on the rationale of rule of law. It is

argued that the rule of law in this context means that judicial decisions should be taken openly

and by standards declared in advance.25

On the other hand the preachers of utilitarianisms argue

that the punishment shall yield some result either deterrence or reformation. They consider

punishment as an evil and only the sentence required to deter the offender and the community

need to be imposed. Against the idea of standardisation of the punishment, they argue for the

absolute discretion to be given to the sentencing judges to decide appropriate form and quantum

of punishment. The argument is that the judges have to fix the quantum that can reform, deter

and rehabilitate the offenders.

Theories of punishment influence the approach of the courts towards sentencing. One

might expect that sentencer’s views on the principles of sentencing would be closely related their

opinion on the aims of punishment.26

A proper understanding of theories of punishment

particularly in the absence of the sentencing guidelines, help the judges to fix the quantum and

form of the punishment that can be imposed on offender. As the justifications for punishment

advocated by the supporters of different theorists are not in watertight compartments a sentence

awarded by the court may have different effects. A sentence to have the effect of general

deterrence at times shall be more severe than a retributive and it may even remove the desire to

commit the crime from the mind of the offender and he may become incapacitated to do the

crime. It cannot be said that the sentencing judge shall determine the quantum of the sentence

basing on any particular theory of sentence and it is not possible to undertake such exercise.

Nevertheless the punishment awarded by a judge unguided by any principles reflects his personal

penal philosophy. The judge who believes in retribution theory imposes the sentence, which

satisfies the vengeance of the victims and the one who believes in deterrent theory, fixes the

quantum of punishment which will have the effect of general as well as individual deterrence.

The judge who believes in incapacitation may award long time custodial sentence or deprivation

of the property. In the process care shall be taken to avoid the dominance of personal philosophy

of the judges. Though sentencing disparity cannot be eliminated altogether yet efforts can be

made for reducing it to minimum level.27

25

Raz, Joseph, The Authority of Law, Oxford University Press (1979), See, Chapter 11 26

Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press (2010)at p.46 27

Syed Mohammad Afzal Qadri, Criminology and Penology, Eastern Book Company (2009) at p.431

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III. SENTENCING IN PRACTICE: TWO SCHOOLS OF THOUGHT

Sentencing is considered to be the end product of most law enforcement and

prosecutorial efforts. Though the common man sees crime reduction as objective of sentencing,

the judges and jurists have altogether different views in this regard. Few of them, are of course

share common man’s perception, but as the sentencing dynamics disclose, a number of factors

are considered by the judges in deciding sentence. The crucial issue is regarding the factors that

can be considered by the judges while imposing the sentence. Justice P.N. Bhagwati in Santa

Singh vs. State of Punjab28

observed thus:

“a proper sentence is the amalgam of many factors such as the nature of the

offence, the circumstances extenuating or aggravation of the offence, the prior

criminal record if any, of the offender, the age of the offender, the record of the

offender as to employment, the background of the offender with reference to

education, home life, society and social adjustment, the emotional and mental

condition of the offender, the prospects for the rehabilitation of the offender, the

possibility of return of the offender to a normal life in the community, the

possibility of return of the offender to a normal life in the community. The

possibility of treatment or training of the offender, the possibility that the sentence

may serve as a deterrent to crime by the offender or by other and the current

community need, if any, for even a deterrent in respect to the particular type of

office”.

The apex court and High Courts, while deciding the cases developed certain principles and made

observations in the judgments as how the discretion is to be exercised. Penologists and jurists

also contributed their scholarship as to how the judges have to exercise the sentencing discretion.

Though such observations are loosely referred to as “sentencing policy” and “theories of

sentencing”, in fact they only indicate sentencing practices by the courts and various factors that

are to be considered by the courts while sentencing the offenders.

Disparity in the practices can be noticed in the observations made by the courts and this is

largely because of the tussle between two rival schools of thought on sentencing, one arguing for

a kind of uniformity in the sentencing which requires identical disposition of all persons

28

(1976) 4 SCC190

14

convicted of the same offence and other demanding individualisation of the punishment basing

on the character and antecedents of the convict by standardisation of sentencing process. The

argument for uniformity in sentencing by standardisation of the sentences finds support in the

philosophy of retributive and deterrent theories of punishment where as the individualisation of

the punishment is based on reformative approach.

A. STANDARDISATION OF SENTENCING PRACTICES

It is argued that the imposition of disparate sentences up on the offenders with similar

characteristics convicted of similar crimes hinders correctional methods and that the convicts

who receive severe sentences than the sentence imposed on fellow convicts of similar offence

and circumstances develop antagonism towards society. It may adversely affect the public trust

and confidence in the justice system. The supporters of the “Just Deserts” and the principle of

Proportionality insist on standardisation of the sentencing practices. The rule of law doctrine also

requires that the discretion of the sentencers shall be guided discussion with the rules for

sentencing framed in advanced. Though the constitutional permissibility of disparate sentences

is debatable, there cannot be any disagreement to oppose the arbitrary and unreasonable

exercising of sentencing discretion conferred on the judges. What is insisted is that the

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distinctions in sentencing shall be on sound reasons rooted in significant factual differences

which have made the two cases substantially different. To achieve the kind of uniformity,

standardisation of sentencing process is suggested. The standardisation of sentencing is possible

by broadly categorizing:

(a) Offences such as offences against women, economic offices, white caller offences,

regulatory offences etc.

(b) Offenders, such as adults, juveniles, women, youth etc and

(c) By strict tabulation of aggravating and mitigating circumstances.

In the process of the standardisation, the legislature shall prescribe minimum and

maximum range of penalty, be it imprisonment or time, for each category of the offences qua

each category of the offenders. Such fixation reduces the disparity in sentencing. The emphasis

while determining the sentence is on crime and not the circumstances or the traits of the criminal.

In Bachan Singh vs. State of Punjab 29

a five judge Constitution Bench of the Supreme Court

dismissed the suggestion for standardisation as well-nigh possible for the following reasons30

:

(1) There is no agreement amongst jurists and penologists as to what information about

the crime and criminal is relevant for fixing the dose of punishment for person

convicted of a particular offence.

(2) Criminal cases do not fall in to set behaviour patters and categorization is not

possible.

(3) Standardisation of the sentencing process leaves no room to take account of variations

in culpability within single offence category cases.

The Supreme Court further opined that standardisation of punishment is a policy decision falling

within the legislature power of the State and the judiciary shall not make any endeavour in this

regard.31

B. INDIVIDUALISATION OF SENTENCING PROCESS

29

(1980)2SCC684 30

Bachan Singh vs. State of Punjab, (1980)2SCC684 Paragraphs 171-178 31

Bachcn Singh vs. State of Punjab, (1980)2SCC684 Paragraphs 175-176

16

The second school of thought on sentencing is for individualisation of sentencing process,

against the standardisation. The argument is that the standardisation of the sentencing practices

does not adopt correctional practices and the reformation may not be possible by standardized

punishments. While commenting on a judgment in which the youngsters were sentenced to jail

term, Justice V R Krishna Iyer said:

The present case is an illustration of judicial habituation to prescribing sentences

conditioned by the offence and its milieu, forgetting the fundamental fact that the

human delinquent, not the criminal deviance, is the cynosure of punitive

processing.32

The essence of individualisation 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 back ground, education, occupation, circumstances in which the offence was

committed, the possibility of his reformation, antecedents, character etc of the offender. Above

all individualisation of 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. Sections

235(2)33

(applicable to the trial of sessions cases ) and 248(2)34

(applicable to the trial of warrant

cases by magistrates ) of the Code of Criminal Procedure, 1973, facilitating hearing the accused

before passing the sentence, indicate the inclination of the legislature towards the pesonalisation

of sentences. As remarked by the supreme Court in Santa Singh,35

these provisions reflect the

contemporary thinking that sentencing is an important stage in the criminal justice and it should

be given due place in the system. The Law Commission of India in it’s fourty-seventh report

favoured individualisation of the punishments. It observed thus:

32

Satto vs. State of U.P., (1979)2SCC628 33

235. Judgment of acquittal or conviction –

(1) xxxxxx

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360

hear the accused on the question of sentence, and then pass sentence on him according to law. 34

248. Acquittal or conviction -

(1) xxxxxx

(2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in

accordance with the provisions of section 325 or section 360, he shall, after hearing the accused on the question of

sentence, pass sentence upon him according to law. 35

(1976) 4 SCC190

17

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

the education, home-life, sobriety and social adjustment, the emotional and

mental condition of the offender, the prospect of 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 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.

Though the above recommendation of the Law Commission on sentencing suggests both the

crime and criminal are important the dominant tone is demonstratively reformative and the

suggestion is a reflection of the sentiments expressed in a numerous judgments delivered during

the mid-seventies and early eighties. The exhaustive sentencing process contemplated by the

Law Commission requires exercising of wide discretion by the sentencing judge. Though the

recent judgments of the Supreme Court favour the principle of proportionality and deterrence

few judges prefer wide discretion and reformative approach. Justice S B Sinha in Santosh Kumar

Satishbhushan Bariyar vs. State of Maharashtra36

strongly advocated for sentencing discretion.

He observed:

For an effective compliance of sentencing procedure under Section 354(3) and

Section 235(2) Cr.P.C, sufficient discretion is a pre-condition. Strict channeling of

discretion would also go against the founding principles of sentencing as it will

prevent the sentencing court to identify and weigh various factors relating to the

crime and the criminal such as culpability, impact on the society, gravity of

offence, motive behind the crime etc.

In a recent judgment Justice Madan B Lokur opined that while awarding the punishment the

principle of rehabilitation and the humanizing mission must not be forgotten.37

Thus the tussle

36

(2009) 6 SCC 498 37

State vs. Sanjiv Bhalla, 2014(8)SCALE 377

18

between the two schools of thought on sentencing appears to be never ending one in the Indian

sentencing jurisprudence.

IV.PRE SENTENCE HEARING

A criminal trial and evidence offer various factors relating to the crime and the manner

in which it was committed. But the adversarial system of trial provides narrow scope for the

information regarding the character and the antecedents of the convicts. In any scientific system

which turns the focus, at the sentencing stage, not only on the crime but also the criminal, and

seeks to personalise the punishment so that the reformatory component is as much operative as

the deterrent element, it is essential that facts of a social and personal nature, sometimes

altogether irrelevant if not injurious at the stage of fixing the guilt, may have to be brought to the

notice of the Court when the actual sentence is determined.38

Sections 235 (2) and 248(2) of the

Code of Criminal Procedure, 1973 provides scope for hearing the accused before sentencing.

There was no such provision in previous statutes prescribing criminal procedure. The meaning of

the word “hearing” in this case fell for judicial consideration in Santa Singh vs. State of Punjab39

in which it was opined that:

The hearing contemplated by Section 235(2) is not confined merely to hearing

oral submissions, but it is also intended to give an opportunity to the prosecution

and the accused to place before the court facts and material relating to various

factors bearing on the question of sentence and if they are contested by either

side, then to produce evidence for the purpose of establishing the same.

In practice the hearing in a number of cases is confined to oral hearing and the courts are not

furnished with required information regarding the criminal. There is no provision for pre-

sentencing investigation or inquiry or pre sentence reports. Some of the information relating to

crime can be culled out from the phase prior to the hearing on sentencing. The information

would include aspects relating to the nature, motive and impact of crime and culpability of

convict etc. 40

What is lacking is the information regarding social and economic back ground of

the accused and his character and antecedents. The court has to hear the accused and pass the

sentence basing on the hearing. Even in the light of the extended meaning of the word hearing as

38

Ediga Annamma vs, State of Andhra Pradesh, (1974) 4 SCC 443 39

(1976) 4 SCC 190 40

Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra ,(2009) 6 SCC 498

19

provided in Santa Singh, it is difficult to collect information regarding the criminal. About three

decades ago the Supreme Court in Pyarli K. Tejani vs. M.Ramachandra Dange41

observed that

unfortunately, the meaningful collection and presentation of penological facts bearing on the

back ground of the individual, the dimension of damage, the social milieu and what not-these are

not provided for in the Code and we have to make intelligent hunches on the basis of materials

adduced to prove guilt.” This remains true even to this day. In Ramashraya Chakravarthy vs.

State of Madhya Pradesh42

the apex court opined that the trial courts in this country already

overburdened with work have hardly any time to set apart for sentencing reflection. In Ved

Prakash vs. State of Haryana43

the Court observed that “it is the duty of the sentencing Court to

be activist enough to collect such facts as have a bearing on punishment with a rehabilitation

slant” and “even if the Bar does not help, the Bench must fulfill the humanizing mission of

sentencing implicit in such enactments as the Probation of Offenders Act.” The Supreme Court

had an occasion to reprimand the session judge for deciding the quantum of sentence on the same

day on which conviction was recorded.44

The Supreme Court however did not refer to the third

proviso of section 309(2) of the Code of Criminal Procdure,1973 which mandates that no

adjournment shall be granted to for the purpose only of enabling the accused person to show

cause against the sentence proposed to be imposed on him.45

The a incongruity of the legislative

policy, giving an opportunity to the accused to be heard on the proposed sentence and not

allowing an adjournment for the purpose of hearing on sentence can be explained as a precaution

to avoid procrastination of the proceedings by the convicts. But it can be safely argued that there

is no appropriate legislative frame work for the “hearing of the accused before sentencing” as

interpreted by the Supreme Court in Santa Singh. Even to this day it is not clear whether the

appellate courts while modifying or imposing sentence are bound by the requirement of section

235 (2) of the Code of Criminal Procedure, 1973 . The Supreme Court confronted with such a

question while considering the judgment in which High Court reversing the acquittal by the trial

court imposed the sentence without hearing the accused,. But the court did not answer the

question as in that particular case the court restored the order of the acquittal by the trial court.46

V. DEBATE ON CAPITAL PUNISHMENT

41

(1974)1 SCC167 42

(1976)1 S C C281 43

(1981)1 SCC 447 44

Anshad and Ors. Vs. State of Karnataka (1994)4SCC381 45

Inserted by Act 45 of 1978 (w.e.f. 18-12—1978 46

Padmanabham Vijaykumar vs. State of Kerala, 1994 SCC (Cri) 892

20

The world on the issue of death penalty is divided. Despite rigorous campaign against

death penalty many countries including India did not abolish the death penalty. But legislative

policy in our country has undergone substantial change. Prior to 1955 as per the Code of the

Criminal Procedure 1898, it was obligatory for a court to give reasons for not awarding death

sentence. An amendment to the Code of the Criminal Procedure 1898 this requirement was done

away with and later under the Code of the Criminal Procedure, 1973 the court has to record the

reasons for awarding death sentence. Thus earlier for the offence of murder, death sentence was

the rule and life imprisonment was an exception and after the amendments life imprisonment is

the rule and death as exception. Though the constitutional validity of the death penalty was

upheld by Jagmohan Singh vs. State of U.P.47

during the period when reformative was swaying

the judiciary in a number of judgments the Supreme Courtt expressed it’s aversion the death

penalty. The judgments of Supreme Court in Ediga Annamma vs State of A.P.48

Raghubir Singh

vs. State of Haryana49

and State of U.P. vs. Rajendra Prasad50

almost pointed toward abolition

of death punishment. Rajendra Prasad was a fractured verdict with Justice Krishna Iyer and

Justice Desai, for majority favouring commutation of death penalty to life imprisonment and

Justice A.N. Sen writing a powerful dissent. In due course of time, this eventuated in to reference

of the question of the constitutional validity of the death sentence to a larger Bench in Bachan

Singh vs. State of Punjab.51

Upholding the constitutional validity of the death sentence, the five

judges Constitution Bench of the Supreme Court has seized the opportunity to make the rules

clear. With 4-1 majority the court has evolved the test to determine whether the case falls within

the category of rarest of rare case, by balancing the aggravating and mitigating circumstances,

after taking the circumstances relating to the crime as well as criminal.

Bachan Singh continued to be the guiding precedent in deciding whether a case falls

within the category of the rarest of rare case warranting awarding death sentence. However

during the course of time it was realized that the decision on capital punishment is becoming

judge centric and leading to miscarriage of justice. In Santosh Bariyar the Supreme Court opined

47

(1973) 1 SCC20 48

(1974) 4 SCC443 49

(1975) 3 SCC37 50

Three cases were decided in the judgment reported in (1979) 3 SCC646. The other two cases were Kunjukunju

Janardhan vs. State of Kerala and Sheo Shankar Dubey vs. State of U.P. 51

(1980) 2 SCC684

21

that death sentence was awarded erroneously in few cases.52

The Supreme Court in some of its

judgments has highlighted the instances of erroneously decided cases which pose serious concern

in adjudication of death penalty cases. These instances reflect the extreme fragility in application

of the ‘rarest of rare’ principle making the decision on death sentence too Judge-centric.53

The

growing criticism against the subjectivity in awarding the death sentence made the Supreme

Court to look for alternatives to death penalty as well as life imprisonment simpliciter (the

sentence which can be sized down to 14 year term) and one such alternative found by the

Supreme Court is awarding life imprisonment without remission or awarding life imprisonment

for a fixed term without remission. This exploration started with the experiment in Swamy

Shraddanand54

in which the apex court has sentenced the convict to remainder of his natural life

(without remission). The Court by invoking “the vast hiatus between 14 years’ imprisonment

and death” has significantly expanded the range of “alternative options” which need to be

exhausted before opting for death.55

A study of death sentence cases in the post- Swamy

Shraddhanand verdict reveals that many cases which normally would have resulted in award of

52

Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra (2009) 6 SCC 498. Justice Sinha in para 63 of

Bariyar case held that Ravji case was rendered per incuriam and contrary to the binding dictum of ‘rarest of rare’

category propounded in Bachan Singh’s case and opined that in the cases in which Ravji case has been relied upon

the Supreme Court has not considered the mitigating circumstances or a circumstances relating to criminal while

imposing the sentence. In Bariyar Supreme Court declared that Ravji @ Ram Chandra vs. State of Rajasthan,

(1996)2SCC175 and Suraj Ram vs. State of Rajasthan, (1996)6SCC271 are erroneously decided. Ravji and Suraj

Ram were executed on May 4, 1996 and April 7, 1997 respectively. 53

In Swamy Shraddananda) vs. State of Karnataka [(2008) 13 SCC 767] Aftab Alam, J., writing the judgment for

the Three-Judge Bench observed that

“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 this Court depends a good deal on the personal predilection of

the judges constituting the bench.”

In Santosh Kumar Satishbhushan Bariyar vs.. State of Maharashtra (2009) 6 SCC 498 it was observed by the

Supreme Court that

“…[T]he balance sheet of aggravating and mitigating circumstances approach invoked on a case-by-case basis has

not worked sufficiently well so as to remove the vice of arbitrariness from our capital sentencing system. It can be

safely said that the Bachan Singh threshold of the ‘rarest of rare cases’ has been most variedly and inconsistently

applied by the various High Courts as also this Court. ”

Recently in Sangeet v. State of Haryana (2013)2SCC452 another Division Bench of Supreme Court has reiterated

the subjectivity involved in death sentence cases making them Judge-centric. (See para 33 of the Report). 54

Shraddananda (2) v. State of Karnataka (2008) 13 SCC 767

55 See, Working paper prepared by Pattabhi Rama Rao Kovuru and Niraj Tiwari, Life without remission: India’s

Death Penalty? (Submitted for publication)

22

death sentence to the convicts of such cases, have got the benefit of various ‘alternative options’

between life sentence simpliciter to a sentence of full life.56

It can also be noticed that the post

nirbhaya incident agitations made the parliament to amend the law relating to rape, prescribing

the life imprisonment without remission (remainder of natural life of the offender) as punishment

for aggravated form of rape.57

Thus the life sentence without remission has attained legislative

recognition as an alternative to death penalty.

Though Bachan Singh58

still continues to be a binding precedent, it’s ratio is not spared

from attack. There is no unanimity of the opinion on the factors which can be considered as

aggravating or mitigating. In Sandesh alias Sainath Kailash Abhang vs. State of

Maharashtra59

the Supreme Court considered that “absence of normal behavior” and “ voluntary

intoxication” as mitigating circumstances and later the court required to clarify in a review

petition60

that those “observations may not be construed to generally mean that drunkenness of

an accused is a mitigating factor in the award of punishment. In Sangeet vs. State of Haryana61

,

Justice Madan B Lokur questioned the method of balancing of aggravating and mitigating

circumstances opining that the aggravating circumstances are relating to the crime and mitigating

circumstances relate to criminal and they cannot be compared or balanced. But in Sunil Dutt

Sharma vs. State (Govt of NCT of Delhi)62

in which the Supreme Court has dealt with sentencing

jurisprudence at length, opined that the principles of sentencing evolved by the Court over the

years, on aggravating and mitigating circumstances, though largely in the context of the death

penalty, will be applicable to all lesser sentences so long as the sentencing judge is vested with

56

See Gurvail singh @ Gala v. State of Punjab (2013) 2 SCC 713 (30 years without remission); Sanjay Kumar

(2012) 8 SCC 537; Brajendra Singh (2012) 4 SCC 289 (21 years); Sandeep v. State of U.P. (2012) 6 SCC 107 (30

years without remission); Neel Kumar (2012) 5 SCC 76 (30 years without remission); Ram Naresh (2012) 4 SCC

257 (21 years); Dilip Premnarayan Tiwari v. State of Maharashtra, (2010)1SCC775 (accused 1 and 2 for 25 years

without remission and accused 3 for 20 years), Haru Ghosh v. State of West Bengal, (2009)15SCC551 (minimum 35

years term), Ramraj @ Nanhoo @ Bihnu v. State of Chhattisgarh, (2010)1SCC573 (20 years term), Mulla v. State of

Uttar Pradesh, (2010)3SCC508 (Rest of life subject to remission), Sebastian @ Chevithiyan v. State of Kerala

(2010)1SCC58 (Rest of Life). 57

See, Sections 376(2),376A, 376D and 376E of the Indian Penal Code,1860 58

(1980) 2 SCC684 59

(2013)2SCC479 60

Review Petition (Crl.) No.D8875 of 2013,which is not reported in any leading law journals or on Supreme court

web site, but referred to in Bhagwan Tukaram Dange vs. State of Maharashtra (2014)4SCC270 (paragraph 10) 61

(2013)2SCC452 62

(2014)4SCC375

23

the discretion to award a lesser or a higher sentence. The lone voice of Justice Lokur in Sangeet63

did not get any support in subsequent judgments of the Supreme Court. However, in Shankar

Kisanrao Khade vs. State of Maharashtra64

, the Supreme Court evolved a three prong test –

known as Crime Test, Criminal Test and Rarest of Rare Case Test (R R Test). According to test

to consider a case as a rarest of rare case the Crime Test shall be 100%, the Criminal Test shall

be 0% (no mitigating circumstances) and in addition the case shall pass RR test warranting it to

be considered as a rarest of rare case which according to the court shall be society centric i.e

basing on the perception of the society towards the punishment to the crime under consideration.

This test is a further development of Bachan Singh principle and requires to stand the test of

time.

VI. SUPREME COURT ON SENTENCING

The shift in the approach of the Supreme Court as regards to sentencing the offenders from

the idea of reformation through correctional process to the retribution through the principle of

proportionality, though incomplete, made the Indian sentencing jurisprudence hallow and

inconsistent. Incongruity in sentencing practices and the ideas expressed by the Supreme Court

in various judgments is quite apparent and becoming a cause of concern and confusion. Though

the attempts of the Supreme Court to make punishment fit to the crime basing on the principle of

proportionality are incoherent, the movement is towards stnadardisation of the sentencing

practices. As rightly remarked by Prof. K N Chandrasekharan Pillai, “in the standardisation

syndrome, no theorization is involved.”65

The present sentencing practices of the Supreme Court

are becoming incoherent for the following reasons:

1. The Supreme Court has no consistent view on the theory that is to be followed in

sentencing. In Jashubha Bharatsinh Gohil. vs. State of Gujarat66

the Supreme Court opined that

“ Protection of society and deterring the criminal is the avowed object of law and that is required

to be achieved by imposing appropriate sentence.”In Hazara Singh vs. Raj Kumar67

the apex

court opined that the cardinal principle of sentencing policy is that the sentence imposed on an

offender should reflect the crime he has committed and it should be proportionate to the gravity

63

(2013)2SCC452 64

(2013)5SCC546 65

Pof K N Chandrasekharan Pillai,The Quagmire of Confusion in Sentencing, (2013) 3 S C C(Journal) 1 66

(1994) 4 SCC 353 67

(2013)9SCC516, See, Soman vs. State of Kerala, (2013)11 SCC382

24

of the offence. In State TR.P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda 68

it was observed

that “Law demands that the offender should be adequately punished for the crime, so that it can

deter the offender and other persons from committing similar offences.” In State of M.P. vs.

Babulal69

the court observed that “One of the prime objectives of criminal law is the imposition

of adequate, just, proportionate punishment which is commensurate with the gravity and nature

of the crime and manner in which the offence is committed. The most relevant determinative

factor of sentencing is proportionality between crime and punishment keeping in mind the social

interest and consciousness of the society.” Though these observations indicate following of the

principle of proportionality an off spring of retributive theory, the Supreme Court in Shatrughan

Chauhan vs. Union of India70

alerted the courts below against retribution saying that “Remember,

retribution has no Constitutional value in our largest democratic country. In India, even an

accused has a de facto protection under the Constitution and it is the Court's duty to shield and

protect the same.” This observation reflects the confusion of the Supreme Court in application of

the theories of punishment. It is noteworthy to remind the judgment in an earlier case71

in which

the Supreme Court recognized that in India, the view always has been that the punishment must

be proportionate to the crime, but it was more skeptical when it said that applicability of the said

principle in all situations, however, is open to question. In this case the court held that the

sentencing must have policy of correction.

2. In Bachan Singh72

the Supreme Court clearly indicated that the standardisation or making

policy on sentencing is clearly out of judicial arena and it is only the parliament which can do it.

In many the subsequent cases the supreme Court has not followed this dicta and has made

attempts to formulate sentencing policy on it’ own In Sangeeth the court has delineated the

development of sentencing policy at different phases. Such making of sentencing policy is

questionable in the light of restraint exhibited by the constitution Bench in Bachan Singh. It is

also to be noted that in Bachan Singh itself the court enumerated the aggravating and mitigating

circumstances and cautious enough not to call it as policy. In a number of later cases the

Supreme Court made unhesitant efforts to describe some random thoughts on death penalty as

sentencing policy.

68

(2012)8SCC450 69

(2013)12 SCC308 . See, also Alister Anthony Pareira vs. State of Maharashtra, ( 2012 ) 2 SCC 648 70

(2014)3SCC1 71

State of Punjab vs.Prem Sagar , (2008)7 SCC 550 72

(1980) 2 SCC 684

25

3. The Supreme Court has been often quoting that the punishment shall reflect public opinion. In

Surja Ram vs. State of Rajasthan73

it was held that the punishment must also respond to the

society's cry for justice against the criminal. In State of Madhya Pradesh vs. Ghanshyam Singh74

it was held that the Courts would operate the sentencing system so as to impose such sentence

which reflects the conscience of the society and the sentencing process has to be stern where it

should be. State of U.P. vs. Shri Kishan75

it was opined that the punishment to be awarded for a

crime must not be irrelevant but it should conform to and be consistent with the atrocity and

brutality with which the crime has been perpetrated, the enormity of the crime warranting public

abhorrence and it should "respond to the society's cry for justice against the criminal". There are

difficulties in comprehending this principle. First of all, it is not known as to how the sentencing

judge perceives the “collective conscience of the society” and “cry of the society.” It may

encourage, apart from the danger of substituting “judge’s perception” to “societal perception”,

the media sentencing. In Om Prakash vs. State of Haryana76

Justice K.T. Thomas, deliberated

on the apparent tension between responding to "cry of the society" and meeting the Bachan

Singh dictum of balancing the "mitigating and aggravating circumstances." The court was of the

view that the sentencing court is bound by Bachan Singh and not in specific terms to the

incoherent and fluid responses of society. In Santosh Kumar Bariyar77

the court made the

following observed that Public Opinion may also run counter to the Rule of law and

constitutionalism. Andrew Ashworth and Michael Hough observed that to construct sentencing

policy on this flawed and partial notion of public opinion is irresponsible. The learned authors

further observed:

Unfortunately, the concept of public opinion in relation to sentencing practices is

often employed in a superficial or simplistic way. In this short article we have

identified two major difficulties with the use of the concept. First, members of the

public have insufficient knowledge of actual sentencing practices. Second, there is

a significant but much-neglected distinction between people's sweeping

impressions of sentencing and their views in relation to particular cases of which

they know the facts.78

73

(1996) 6 SCC 271 74

(2003) 8 SCC 13 75

(2005) 10 SCC 420 76

(1999)3SCC19 77

(2009) 6 SCC 498 78 Andrew Aswoth and Michael Hough, Sentencing and the Climate of Opinion, (1996) Criminal Law Review

26

Summary

Appropriate sentencing of the offenders is an important function of the courts. The tussle

between the rival arguments on stndardisation and individualisation of sentencing process seems

to have not come to an end. Even in the jurisdictions where sentencing guidelines exist in the

legal frame work, the sentencing disparity still exists. By and large Indian Supreme Court, at

present, is in favour of the principle of proportionality and attempting standardisation of

sentencing by narrating the aggravating and mitigating factors for considering in fixation of the

appropriate sentencing. However, attempts of the Supreme Court to formulate sentencing policy

ended up in additions and deletions to the list of aggravating and mitigating circumstances and

could not make out the suitable theory of its choice. In Indian context the Supreme Court shall

theorise the sentencing practices to guide all the courts which may reduce the disparity in

sentencing.