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In India neither the legislature nor the judiciary has issued structured sentencing guidelines.  Several governmental committees have pointed to the need to adopt such guidelines in order to minimize uncertainty in awarding sentences.  The higher courts, recognizing the absence of such guidelines, have provided judicial guidance in the form of principles and factors that courts must take into account while exercising discretion in sentencing.

I.  Absence of Structured Sentencing Guidelines

Currently India does not have structured sentencing guidelines that have been issued either by the legislature or the judiciary.  In March 2003, the Committee on Reforms of Criminal Justice System (the Malimath Committee), a body established by the Ministry of Home Affairs, issued a report that emphasized the need to introduce sentencing guidelines in order to minimize uncertainty in awarding sentences, stating,

[t]he Indian Penal Code prescribed offences and punishments for the same.  For many offences only the maximum punishment is prescribed and for some offences the minimum may be prescribed.  The Judge has wide discretion in awarding the sentence within the statutory limits.  There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case.  Therefore each Judge exercises discretion accordingly to his own judgment.  There is therefore no uniformity.  Some Judges are lenient and some Judges are harsh.  Exercise of unguided discretion is not good even if it is the Judge that exercises the discretion.  In some countries guidance regarding sentencing option[s] is given in the penal code and sentencing guideline laws.  There is need for such law in our country to minimise uncertainty to the matter of awarding sentence.  There are several factors which are relevant in prescribing the alternative sentences.  This requires a thorough examination by an expert statutory body.[1]

The Committee advised further that, in order to bring “predictability in the matter of sentencing,” a statutory committee should be established “to lay guidelines on sentencing guidelines under the Chairmanship of a former Judge of Supreme Court or a former Chief Justice of a High Court experienced in criminal law with other members representing the prosecution, legal profession, police, social scientist and women representative.”[2]  In 2008, the Committee on Draft National Policy on Criminal Justice (the Madhava Menon Committee), reasserted the need for statutory sentencing guidelines.[3]  In an October 2010 news report, the Law Minister is quoted as having stated that the government is looking into establishing a “uniform sentencing policy” in line with the United States and the United Kingdom in order to ensure that judges do not issue varied sentences.[4]

In 2008, the Supreme Court of India, in State of Punjab v. Prem Sagar & Ors., also noted the absence of judiciary-driven guidelines in India’s criminal justice system, stating, “[i]n our judicial system, we have not been able to develop legal principles as regards sentencing.  The superior courts[,] except [for] making observations with regard to the purport and object for which punishment is imposed upon an offender, had not issued any guidelines.”[5]  The Court stated that the superior courts have come across a large number of cases that “show anomalies as regards the policy of sentencing,”[6] adding, “[w]hereas the quantum of punishment for commission of a similar type of offence varies from minimum to maximum, even where [the] same sentence is imposed, the principles applied are found to be different.  Similar discrepancies have been noticed in regard to imposition of fine[s].”[7]  In 2013 the Supreme Court, in the case of Soman v. State of Kerala, also observed the absence of structured guidelines:

Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice.  There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges.[8]

However, in describing India’s sentencing approach the Court has also asserted that “[t]he impossibility of laying down standards is at the very core of the Criminal law as administered in India, which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment.”[9]

Sentencing procedure is established under the Code of Criminal Procedure, which provides broad discretionary sentencing powers to judges.[10]  In a 2007 paper on the need for sentencing policy in India, author R. Niruphama asserted that, in the absence of an adequate sentencing policy or guidelines, it comes down to the judges to decide which factors to take into account and which to ignore.  Moreover, he considered that broad discretion opens the sentencing process to abuse and allows personal prejudices of the judges to influence decisions.[11]

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II.  Crimes and Judicial Sentencing Guidance

In the Supreme Court’s judgment in Soman v. Kerala, the Court cited a number of principles that it has taken into account “while exercising discretion in sentencing,” such as proportionality, deterrence, and rehabilitation.[12]  As part of the proportionality analysis, mitigating and aggravating factors should also be considered, the Court noted.[13]

In State of M.P. v. Bablu Natt, the Supreme Court stated that “[t]he principle governing imposition of punishment would depend upon the facts and circumstances of each case.  An offence which affects the morale of the society should be severely dealt with.”[14]  Moreover, in Alister Anthony Pareira v. State of Maharashtra, the Court held that

[s]entencing is an important task in the matters of crime.  One of the prime objectives of the criminal law is imposition of [an] appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of [the] crime and the manner in which the crime is done.  There is no straitjacket formula for sentencing an accused on proof of crime.  The courts have evolved certain principles: [the] twin objective of the sentencing policy is deterrence and correction.  What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.[15]

A.  Murder

The punishment for murder under India’s Penal Code is life imprisonment or death and the person is also liable to a fine.[16]  Guidance on the application of the death sentence was provided by the Supreme Court of India in Jagmohan Singh v. State of Uttar Pradesh, where the Court enunciated an approach of balancing mitigating and aggravating factors of the crime when deciding on the imposition of capital punishment.[17]  However, this approach was called into question first in Bachan Singh v. State of Punjab where the Court emphasized that since an amendment was made to India’s Code of Criminal Procedure, the rule has changed so that “the offence of murder shall be punished with the sentence of life imprisonment.  The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so.”[18]  The Court also emphasized that due consideration should not only be given to the circumstances of the crime but to the criminal also.[19]  However, more recently the Court in Sangeet & Anr. v. State of Haryana, noted that the approach in Bachan has not been fully adopted subsequently,[20] that “primacy still seems to be given to the nature of the crime,” and that the “circumstances of the criminal, referred to in Bachan Singh appear to have taken a bit of a back seat in the sentencing process.”[21] The Court in Sangeet concluded as follows:

  1. This Court has not endorsed the approach of aggravating and mitigating circumstances in [the 1971 case of] Bachan Singh.  However, this approach has been adopted in several decisions.  This needs a fresh look.  In any event, there is little or no uniformity in the application of this approach.

  2. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal.  A balance sheet cannot be drawn up for comparing the two.  The considerations for both are distinct and unrelated.  The use of the mantra of aggravating and mitigating circumstances needs a review.

  3. In the sentencing process, both the crime and the criminal are equally important.  We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing.

  4. The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.

  5. The grant of remissions is statutory.  However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in the statute.  These need to be faithfully enforced.[22]

B. Theft

The punishment for theft is up to three years’ imprisonment, a fine, or both.[23]  No judicial guidance was found regarding sentencing for theft.

C.  Manslaughter

Causing death by negligence is punishable by imprisonment of up to two years, a fine, or both.[24]  Other crimes similar to manslaughter include punishment for culpable homicide not amounting to murder, addressed in section 304 of the Penal Code:

Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with [a] fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.[25]

The Supreme Court looked at the question of sentencing involving sections 304 and 304A in a drunken driving case and found that punishment must be commensurate with the crime and that deterrence was a primary consideration when deciding on the severity of the sentence where rash or negligent driving was involved.[26] 

D.  Rape

Recent changes have been made to the crime of rape in India’s Penal Code.  Absent any aggravating factors, the section stipulates a minimum punishment of imprisonment for seven years up to a maximum of life, and a mandatory fine.  In situations where certain aggravated situations occur, punishment is for a minimum term of ten years up to a maximum of life imprisonment, and a mandatory fine.  The new amended section on rape reads as follows:

Punishment for rape.

           376. (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

         (2) Whoever,—

                  (a) being a police officer, commits rape—

  • (i) within the limits of the police station to which such police officer is appointed; or
  • (ii) in the premises of any station house; or
  • (iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or

   (b) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

 (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

 (l) commits rape on a woman suffering from mental or physical disability; or                                                                              

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.[27]

In the previous section on the crime of rape, there was a proviso that empowered the Court to award a sentence that was less than the minimum for adequate and special reasons stipulated in the judgment.  The Supreme Court provided direction in several cases on how such discretion should be exercised.[28]

E.  Trafficking of Persons

The level of punishment under the new trafficking of persons crime set forth in section 370 of the Penal Code depends on the number of persons that have been trafficked, whether the victim was a minor, and whether the assailant was a public official:

  • (2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
  • (3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
  • (4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
  • (5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine.
  • (6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
  • (7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.[29]

Other sections of the Code may also be used to prosecute traffickers, including sections 366A and 372.  Section 5B of the Immoral Trafficking Prevention Act (ITPA) also punishes trafficking in persons with “rigorous imprisonment for a term which shall not be less than seven years and in the event of a second or subsequent conviction with imprisonment for life.”[30]

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Tariq Ahmad
Legal Research Analyst
April 2014


[1] I Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System Report 170 (Mar. 2003), http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_ system.pdf.

[2] Id. at 171.

[3] Id. at 18–19.

[4] Govt for a Uniform Sentencing Policy by Courts, ZeeNews (Oct. 7, 2010), http://zeenews.india.com/news/nation/ govt-for-a-uniform-sentencing-policy-by-courts_660232.html.

[5] State of Punjab v. Prem Sagar & Ors., (2008) 7 S.C.C. 550, para. 2, http://judis.nic.in/supremecourt/imgs1. aspx?filename=31541.

[6] Id. para. 8.

[7] Id.

[8] Soman v. State of Kerala, (2013) 11 S.C.C. 382, http://judis.nic.in/supremecourt/imgs1.aspx?filename=39837.

[9] Jagmohan Singh v. State of Uttar Pradesh, (1973) 2 S.C.R. 541, para. 26, available at http://indiankanoon.org/doc/1837051/.

[10] Code of Criminal Procedure, No. 2 of 1974, available at http://www.oecd.org/site/adboecdanti-corruption initiative/46814340.pdf.  Sentencing is covered under section(s) 235, 248, 325, 360 and 361 of the Code.

[11] For a discussion on the deficiencies of the sentencing framework established in the Code, see R. Niruphama, Need for Sentencing Policy in India: Second Critical Studies Conference – “Spheres of Justice” Paper Presentation (Sept. 20–22, 2007), http://www.mcrg.ac.in/Spheres/Niruphama.doc.

[12] Soman v. State of Kerala, (2013) 11 S.C.C. 382, para. 13.

[13] Id. para. 14.

[14] State of M.P. v. Bablu Natt, (2009) 2 S.C.C. 272, para. 13, http://judis.nic.in/supremecourt/imgs1.aspx? filename=33425.

[15] Alister Anthony Pareira v. State of Maharashtra, (2012) 2 S.C.C. 648, para. 69, available at http://indiankanoon.org/doc/79026890/.

[17] Jagmohan Singh v. State of Uttar Pradesh, (1973) 2 S.C.R. 541, available at http://indiankanoon.org/doc/1837051/.

[18] Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684, para. 165, available at http://indiankanoon.org/doc/909940/.

[19] Id.

[20] Sangeet & Anr. v. State of Haryana, (2013) 2 S.C.C. 452, paras. 29 & 52–54, http://judis.nic.in/supremecourt/ imgs1.aspx?filename=39731 (citing the subsequent case of Machhi Singh and Others v. State of Punjab, (1983) 3 S.C.C. 470, http://judis.nic.in/supremecourt/imgs1.aspx? filename=9766, a post-Bachan decision that reaffirmed the balance sheet approach of weighing aggravating and mitigating circumstances of the crime).

[21] Id. para. 34.

[22] Id. para. 80 (citing Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684).

[23] Pen. Code § 379.

[24] Id. § 304A.

[25] Id. § 304 (footnote in original omitted).

[26] Alister Anthony Pareira v. State of Maharashtra, (2012) 2 S.C.C. 648, para. 86–98, available at http://indiankanoon.org/doc/79026890/.

[27] Pen. Code § 376, amended by Criminal Law (Amendment) Act, 2013, Gazette of India, section II(1) (Apr. 2, 2013), http://indiacode.nic.in/acts-in-pdf/132013.pdf.

[28] State of M.P. v. Bablu Natt, (2009) 2 S.C.C. 272, para. 14, available at http://www.indiankanoon.org/doc/1155765/.

[29] Pen. Code § 370, amended by Criminal Law (Amendment) Act, 2013, Gazette of India, section II(1) (Apr. 2, 2013), http://indiacode.nic.in/acts-in-pdf/132013.pdf.

[30] Immoral Trafficking (Prevention) Act (ITPA), No. 104 of 1956, http://wcd.nic.in/act/itpa1956.htm.

 

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Last Updated: 11/03/2014