as the other alternative to death penalty in the same
offence for reasons based on the discretionary powers of
the Judges which has been left open as the intention of
the legislature while framing the laws. However the
discretionary powers used by the judges introduced
disparity in awarding sentences. Allegations of
lawlessness and sentencing reflect concerns about both
disparity and discriminations. Although these terms are
sometimes used interchangeably they do not mean the
same thing. Disparity is a difference in treatment or
outcome that does not necessarily result from
intentional bias or prejudice. Discrimination on the
other hand is a differential treatment of individuals
based on irrelevant criteria such as race, gender or social
class. Applied to the sentencing process, disparity exists
when similar offenders are sentenced differently or when
different offenders receive the same sentence. It exists
when Judges impose different sentences on two offenders
with identical criminal histories who are convicted of
the same crime or when Judges impose identical
sentences on two offenders whose prior records and
crimes are very different or when the sentence depends on
the Judge who imposes it or the jurisdiction on which it
is imposed. In the scenario described at the beginning of
this article the fact that Rajkumar would receive a
significantly harsher sentence for theft of a meager
amount to satisfy his hunger from Judge A, the hardliner,
than he would from Judge B, who believes in
reformation, is an example of sentencing disparity.
NEED FOR SENTENCING GUIDELINES AND PUBLIC
OPINION!
On the basis of the above illustration, do we actually
need sentencing guidelines in India to reduce the
disparity? The recommendation of the Malimath
committee on reforms of criminal justice system and the
Dr. Prof Madhav Mennon committee suggested that since
the enactment of the IPC many developments have taken
place, new forms of crime have come into existence,
punishment for some crimes are proving grossly
inadequate and the need for imposing only fine as a
sentence for smaller offences has failed. The committee
specifies that IPC prescribes only maximum punishment
for the offences and in some cases minimum punishment
is also prescribed. Judges exercised his wide discretion
within the statutory limits. They are no statutory
guidelines to regulate his discretion. The committee is
therefore in favour of a permanent statutory committee
being constituted for the purpose of prescribing
sentencing guidelines. The Supreme Court has
emphasized on the fact that superior courts except
making observations with regard to the purport and
object for which punishment is imposed upon an offender
had not issued any guidelines. Other developed countries
had done so. In a recent case of Narendra Singh v. State
of Punjab, the Supreme Court has emphasized the need of
sentencing guidelines stating that there are provisions,
statutory or otherwise in other countries, which may
guide judges for awarding specific sentence. However, in
India we do not have such sentencing policy till date.
The Supreme Court also stated that the prevalence of
such guidelines may not only aim at achieving
consistency in awarding sentences in different cases, such
guidelines normally prescribe the sentencing policy as
well. Namely, whether the purpose of awarding
punishment in a particular case is more of deterrence or
retribution or rehabilitation? The Supreme Court in
Mohd. Chaman v. State taking note on a decision of the
Supreme Court of USA in Gregg V. Gorgia, the court
observed – critically examined, demonstrate the truth of
what we have said earlier, that it is neither practicable
nor desirable to imprison the sentencing discretion of a
judge or jury in the strait-jacket of exhaustive and rigid
standards. Nevertheless, these decisions do show that it
is not impossible to lay down broad guidelines as
distinguished from iron – cased standards, which will
minimize the risk of arbitrary imposition of death
penalty for murder and some other offences under the
penal code.
To reduce the fear of crime a policy maker may seek to
impose higher punishments on certain categories of
crime. An assessment of levels of fear would then be
required. In India the moral seriousness of killing a
human being varies with differential reasons. Prevalence
of caste based society and a strong system of caste and
religion among masses creates controversies far beyond
the regular control of a sovereign. The Gujarat riot is a
prime example of that. Only an indirect measure of
moral seriousness can help qualify public opinion as a
legitimate point in determining sentencing policy.
SENTENCING GUIDELINES IN VOGUE IN THE US
AND THE UK
Prior to 1980, the federal courts used an indeterminate
sentencing system, which allowed imposing sentences
entirely at their discretion. Research, however, shows
that this system created sentencing disparities in which
different criminals received very different sentences for
the same crime. In the bi-partisan reform effort, the
congress passed the Comprehensive Crime Control Act of
1984, which provided for sentencing guidelines. The
National Crime Rate shows a marked decrease in
comparison to before the introduction of the U.S. Federal
Sentencing Guidelines in 1984. Both in the U.S. and the
U.K. statistical analyses of sentencing shows that
sentencing is patterned. Both these countries sentencing
are structured by the application of Determinate
Sentencing Scheme or Guideline. Therefore, the
Legislature declares that “the elimination of disparity
and the provision of uniformity of sentencing can be best
achieved by determinate sentences fixed by statute in
proportion to the seriousness of Hٙ