SENTENCING DISPARITY IN INDIA:
NEED FOR COMPREHENSIVE
SENTENCING GUIDELINES
~Adv. Pallab Das [Odisha High Court] & Paras Padhi [KIIT Law School, Bhubaneshwar]
Justice is a relative concept which changes with time.
Since the codification of substantive criminal law in
1860, to the modernized India in 2015, the judicial
court rooms have produced judgments which have
shaken the spines of criminals and have given justice
to the much needed victims while others have called
for sharp criticism. No matter what it is the Judge’s
stroke of ink that has created a pattern in which
sentencing is given in India. The Indian penal code u/s
53 has divided punishments into various kinds based
on the theories of punishment. Some crimes call for
simple imprisonment, some rigorous imprisonment,
some crimes call for just fines while others call for
capital punishment. In Indian criminal jurisprudence
the maximum and minimum punishments have been
prescribed giving the judges wide discretionary powers
to decide on the quantum of sentence. Under such
situation there are conflicting sentencing given by the
judiciary wherein similar crime has been committed
but different sentences have been rendered. This article
analyses the concept of disparity and discrimination
in the sentencing method and if there is a need for a
sentencing guideline in India.
SENTENCING DISPARITY
Nettlesome by poverty, Rajkumar, pick-pocketed a
meager amount of money to satisfy his hunger. In
Legal parlance, Rajkumar has committed a crime of
theft and for the offence of theft there is a punishment
of imprisonment of either description which may
extend to 3 years, with fine or both according to Indian
penal code. Based on the gravity of the crime
Rajkumar could also be placed on probation.
According to the Act, considering the circumstances of
the crime, the offender can be released on probation or
after due admonition. Because it has been considered
according to progressive interpretation of criminal law
that person having no criminal records and tendency,
who are first offenders shall not be put in situation
which will bring connection with obdurate criminals
which will result in increasing the criminal tendency
in any individual. The above illustration goes on to
show that if Rajkumar is sentenced by Judge A, a
hardliner, who believes that theft is a crime on the
increase in India, he will receive the maximum penalty
of 3 years in prison. If Judge B sentences him who
believes that imprisonment is not an effective
punishment for petty offences and will be placed on
probation according to the probation of offenders act
1958. Is this fair? Should the sentence Rajkumar
receives depend on the Judges who impose it? Should
the sentence depend on a Judge’s philosophy of
punishment
or
personal
beliefs
about
the
perniciousness of crime? Or should it be based on an
objective evaluation of the seriousness of crime and
the offender’s prior criminal record.
Judges often impose different sentences on similarly
situated offenders or identical sentences on offenders
whose crime and prior criminal history are different.
Echoing judge Marvel Frankel (1972a) the critics
suggest that unconstrained discretion leads to
lawlessness in sentencing. In plethora of cases
Supreme Court of India has cited a number of
principles that should be taken into account while
exercising discretion in sentencing such as
proportionality,
deterrence,
seriousness
and
rehabilitation. Mitigating and aggravating factors
should also be considered. In Mohd. Chaman vs State
the accused was charged under section 376 and 302 of
IPC for committing rape and then murder of a one and
a half year old child. The learned trial judge came to
the conclusion that this is a fit case in which extreme
penalty of death should be awarded. The high court
confirmed the death penalty saying it to be the rarest
of the rare case. However the Supreme Court reversed
the capital punishment imposed against the appellant
to rigorous imprisonment for life. Similarly, in the case
of Gurdev Singh & Anr. V. State of Punjab the
appellants were convicted of murdering 15 individuals
being part of an unlawful assembly and were
convicted by high court and were awarded death
penalty. They then approached the Supreme Court on
three different special leave petitions out of which two
of them were upheld for death penalty. Analyzing
both the case