CONTENTS

DECLARATION i
CERTIFICATE ii
ACKNOWLEDGEMENTS iii-iv
CONTENTS v-xv
ABBREVIATIONS xvi-xvii
LIST OF CASES xviii-xxxix
LIST OF STATUTES xl-xlii

CHAPTER -I 1-19
INTRODUCTION
1.1 Problem Statement/ Research Question 15
1.2 Hypotheses 16
1.3 Objectives of the Study 17
1.4 Methodology 17
1.5 Importance of the Study 17
1.6 The Scheme of the Study 17

CHAPTER-II 20-38
CONCEPTUALISING SENTENCING POLICY IN INDIA:
PROBLEMS AND PERSPECTIVES

2.1 Introduction 20
2.2 The Matrix of Punishment in India 21
2.3 Sentencing Powers and Procedural Limitations 24
2.4 The Sentencing Procedure Under Criminal Procedure Code, 1973 25
2.5 Individualization of Punishment: The Anchor of Indian Sentencing 27
Policy
2.6 Hearing on Sentence And Reasons for the Sentence- The Twin 29
Safeguards
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2.7 Alternate Sentencing Policy 30

2.8 Safeguards in Sentencing Policy 32
2.9 Coherent Philosophy of Sentencing- A Vital Miss-Out 33
2.10 Challenges in Sentencing Policy In India 35
2.11 Conclusion 37

CHAPTER - III 39-98

SENTENCING DISCRETION IN INDIA: ARBITRARY
SENTENCING AND MODALITIES TO ARREST
ARBITRARINESS- A COMPARATIVE STUDY

3.1 Introduction 39
3.2 Theorizing Sentencing ‘Disparity’, ‘Discrimination’, and 41
‘Inconsistency’
3.3 Patterns of Discretion 47
3.4 Sources of Inconsistency and Disparity in the Indian Sentencing 49
System
3.4.1 Individualised Sentencing System 50
3.4.2 No Coherent Sentencing Aims 50
3.4.3 Judicial Variability 52
3.4.4 Lack of Guidance 52
3.5 Examples of Disparity and Arbitrary Sentencing – Routine and 53
Exceptional
3.6 Defending Discretion- Individualization of Punishment: 64
Manifestation of Sentencing Discretion
3.7 Judicial Underscoring for Rational Sentencing Policy 68
3.8 Modalities to Arrest Arbitrariness in Sentencing 71
3.8.1 Sentencing guidelines 72
3.8.1.1 Presumptive Sentencing Guidelines 73
3.8.1.2 Statutory Sentencing Guidelines 74
3.8.1.3 Advisory or Voluntary Sentencing Guidelines 74
3.8.2 Guideline Judgments 74
3.8.3 Minimum Mandatory Sentences 76
3.9 Attempted Reforms in India 77
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3.9.1 Minimum Mandatory Punishments 77

3.9.2 Gravity of Offence vs. Gradation of Punishment 77
3.9.3 Second convictions- sui generis three strike laws 79
3.9.4 Guideline Judgments 80
3.10 Sentencing Practice in Two Models 81
3.10.1 Position in United States 82
3.10.2 Position in England and Wales 87
3.10.3 How binding are the Sentencing Guidelines 91
3.11 What India can Borrow 92
3.11.1 India can try Sentencing Councils 93
3.11.2 India needs to try Mandatory Pre-Sentencing Reports 94
3.11.3 Choice of Punishment – Needs re-hauling 96
3.11.4 Stated Philosophy of Punishment 97
3.12 Conclusion 98

CHAPTER- IV 99-165
A CRITICAL ANALYSIS OF CAPITAL SENTENCING:
RIDDLES, RIDERS AND RESOLUTIONS

4.1 Introduction 99
4.2 Death Penalty: Introduction, Survival and Re-introduction 102
4.3 ‘Rarest of Rare’ Doctrine: A Rolling Snowball Of Bleeding Disparity 107
4.4 Disparity in Death Sentence: Individual and Institutional 118
4.5 Disparity in Assessing Variables 123
4.6 Same Facts Different Appreciations: Across Institutional Disparity 128
4.7 Safeguards to be followed in imposition of Death Penalty 133
4.7.1 Legal Representation 133
4.7.2 Representation by Amicus Curie 136
4.7.3 Right to Appeal 138
4.7.4 Decisions by Minimum Five Judges’ Bench 140
4.7.4.1 Bench of five judges 140
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4.7.4.2 Differences of opinion must compulsorily result in 141

life imprisonment
4.7.4.2.1 Indian practice 141
4.7.4.2.2 Practice in other countries 145
4.7.5 Safeguards under Shatrughan Chauhan ruling 147
4.7.6 Review Hearing in open courts 148
4.8 Riders and Resolutions on Death Penalty 149
4.8.1 Unquestionably Foreclosed Test- seeking unquestionable 149
Answers
4.8.2 Bifurcated hearing on ‘quantum of sentence’ 151
4.8.3 “Special reasons clause” in death sentences 156
4.8.4 Pre-Sentencing Report 158
4.8.4.1 Importance of Pre-Sentencing Report 159
4.8.4.2 Probation Officer- role of in death penalties 160
4.8.5 Sentencing for life imprisonment with term rider- Via Media 162
4.8.6 Mercy ‘to be’ and ‘to be in time’ 163
4.9 Why death Penalty Jurisprudence matters elsewhere in Sentencing 163
Policy
4.10 Conclusion 164

CHAPTER - V 166-210
LIFE IMPRISONMENT AND SENTENCING POLICY:
JUDICIAL CODIFICATION OF LIFE IMPRISONMENT
AND FALLOUTS THEREOF
5.1 Introduction 166
5.2 Life Imprisonment – Meaning of 167
5.3 Ordinary Misconceptions and Misinterpretations ordinarily made 168
5.4 Judicial Reading of Life Imprisonment 171
5.5 Types of Life Imprisonment 173
5.6 Judicial Codification of Life Imprisonment-Towards Determinate 176
Sentencing
5.6.1 Phase I- Jagamohan Ratio 177
5.6.2 Phase II - Dalbir Singh v. State of Punjab Ratio 177
5.6.3 Phase III- Swamy Shradhanada Ratio 178
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5.6.4 Phase IV- Union of India v. Sriharan @ Murugan & Ors 181
Constitutional Bench (2015)
5.6.4.1 Swamy Shraddananda (2) Ratio doubted 182
5.6.4.2 Swamy Shraddananda ratio affirmed 182
5.6.4.3 Ray of hope argument – overruled 182
5.6.4.4 Courts empowered to structure life sentences 183
5.6.4.5. Sangeet and Anr. v. State of Haryana- 184
Overruled
5.7 Judicial Codification of Life Imprisonment- Illustrations 184
5.7.1 Rest of life without remission 184
5.7.2 Term sentences 185
5.8 Consecutive Life Sentences – As Via Media Punishment 188
5.9 No two or more consecutive life sentences be imposed- Constitutional 192
Bench (2016): earlier position revisited.
5.9.1 Term sentences and consecutive life sentences can be imposed 193
5.9.2 Subsequent life imprisonment on already life convict- 194
consequences
5.10 Legislative Reintroduction of Determinate Life Sentences 196
5.10.1 Life imprisonment with combination of not less than 7 years 196
imprisonment but which may extend to imprisonment for life
5.10.2 Life imprisonment with combination of not less than 7 years 196
imprisonment but which may extend to imprisonment for life
5.10.3 Life imprisonment with combination of not less than 14 years 197
imprisonment but which may extend to imprisonment for life
5.10.4 Life imprisonment with combination of not less than 20 years 197
imprisonment but which may extend to imprisonment for
reminder of life
5.10.5 Imprisonment for the remainder of that person's natural life 198
5.10.6 Life imprisonment as only punishment 198
5.11 Difficulties in Working Out Life Sentences 198
5.11.1 Powers only to be exercised by the Apex Courts 198
5.11.2 Another lethal lottery 200
5.11.3 The purpose of indeterminate sentence is out of place 201

5.11.4 Difficulties in counting punishment for attempts to commit 202

crimes
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5.11.5 Term life imprisonment only when death is awarded 203

5.11.6 Would term life imprisonment give scope for bargain? 203
5.11.7 Fixed life imprisonment in addition to already undergone 203
sentence is devastating
5.11.8 Costing of life imprisonment 204
5.11.9 Government would have ultimate control over the sentence 204
5.11.10 Re-engineered calculation of life imprisonment is ill 205
Founded
5.11.11 The Structured Life Imprisonment may violate Article 21 206
5.11.12 Life imprisonment without possibility of early release is 206
dangerous than Death penalty
5.11.13 Judicial inconsistency beyond comprehension- no different 207
from another death penalty
5.11.14 Judicial inconsistency beyond comprehension- no different 207
from another death penalty
5.11.15 Inconsistency in new legislations 208
5.11.16 Structured life sentences blur the separation of powers and 208
undermines correctional institutions
5.11.17 Life without possibility of release is contrary 209
to international jurisprudence
5.12 Conclusion 210

CHAPTER – VI 211-263
CLEMENCY, CONCESSIONARY AND SHORT
SENTENCING: EXECUTIVE INTERFERENCE IN JUDICIAL
PROCESS; TWO SIDES OF THE SAME COIN OR TUG OF
WAR BETWEEN
6.1 Introduction 211
6.2 Sentencing Policy- Relationship between Judicial Sentencing and 215
Executive Interference

6.3 Sources of Clemency, Concessionary and Short Sentencing 217

6.4 Constitutional Clemency – Power of Pardoning 218
6.4.1 Need for Mercy 221
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6.4.2 Nature of Mercy 225

6.5 Controversial Conundrum of Constitutional Clemency 228
6.5.1 Absence of guidelines 228
6.5.2 Personal views and errors 231
6.5.3 Utmost disregard for its own Policy 233
6.5.4 ill equipped machinery for clemency exercise 234
6.5.5 Delay in execution: Constitutional complications and answers 235
Thereof
6.6 Judicial Review of Constitutional Clemency 238
6.7 Remission and Commutation under substantive and Procedural Codes 240
6.7.1 Power to suspend and remit sentences 240
6.7.2 Nature of Remission 243
6.7.2.1 Remission does not override Judicial Sentencing 244
6.7.2.2 Difference between Constitutional Clemency and 245
Statutory Remissions
6.7.2.3 Remission and Pardon -Parallel Powers 246
6.7.2.4 Statutory Exclusion of Remission Powers 247
6.8 Section 433A- Special and Overriding Restriction on Power of 247
Remission

6.8.1 Relationship between 433 and 433A 248

6.8.2 Overriding effects of section 433A 249
6.9 Abuse of Mandatory Restrictions: Instances and Intrusions 249
6.10 Overlap of Remissionary Powers between Centre and State: 251
Sections 434 and 435

6.11 Short Sentencing 253

6.12 Practices of different States in Allowing Remission - Consistency and 256
Inconsistencies

6.13 National Human Rights Commission 260

6.14 The Model Jail Manual 2016 – Requirements and Implications 261
6.15 Conclusion 263
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CHAPTER-VII 264-315
ALTERNATE SENTENCING, ALTERNATIVES TO
IMPRISONMENT AND REHABILITATIVE SENTENCING:
TOWARDS RESTORATIVE JUSTICE
7.1 Introduction 264
7.2 Conceptualizing ‘Restorative Justice’ and ‘Alternate Sentencing’, 265
Alternatives to Imprisonment and Rehabilitative Sentencing

7.3 Alternatives to Sentencing I – Pre-Trial Process 268

7.4 Alternatives to Sentencing II– During -Trial Process 268
7.4.1 Release on Admonition 268
7.4.2 Release on Probation 269
7.4.3 Customized Community Sentences 270
7.5 Alternatives to Imprisonment (Sentencing) III– Post- Trial Process 270
7.6 Compounding of Offences 272
7.6.1 Relationship between compounding of offences and quashing 275
of FIR under Inherent Jurisdictions
7.6.2 Where compounding is impressible- reduction of sentence as 277
Alternative
7.7 Mutual Disposition – Sui Generis Plea Bargaining 277
7.7.1 Process of Plea Bargaining and sentencing 278
7.7.2 When can Plea Bargain be invoked? 280
7.7.3 Process of working out Mutually Satisfactory Disposition 281
7.7.4 Guidelines for Mutually Satisfactory Disposition 282
7.7.5 Minimum Sentencing and Plea Bargaining 283
7.7.6 Difference between Plea Bargaining and mutual disposition 284
7.8 Community Service 285
7.8.1 Community Service and Indian courts: some even and uneven 286
practices
7.8.2 Towards codified Community Service 289
7.9 Accidental Offenders and Sentencing Policy: Benefits of Probation 291
Act

7.9.1 Sentencing Policy for Accused below 21 Years 291

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7.9.2 Sentencing policy for first time petty offences 292

7.9.3 Sentencing policy and benefits of probation in deserving cases 293
7.10 Sentencing Policy and Juvenile Justice: Restoration and 296
Rehabilitation

7.10.1 Background of JJ Act 2015 296

7.10.2 Juvenility- Re-classification 297
7.10.3 Classification of offences- A new entrant 299
7.10.4 Principles governing Sentencing 300
7.10.5 Juvenile Justice Board- a crucial forum 301
7.10.6 Trial of petty offences and serious offences 302
7.10.7 Sentencing petty and serious offences 302
7.10.8 Sentencing heinous crimes 304
7.10.9 Special protection for child in conflict with law 306
7.10.10 Rehabilitation and Social Re-Integration 307
7.10.11 Special role of Probation Officer 308
7.11 Sentencing Young Offenders – Mandates of New Model Jail Manual 310
2016

7.12 Rehabilitative Sentencing 311

7.13 Conclusion 314

CHAPTER-VIII 316-351
COMPENSATION IN CRIMINAL CASES- AN
INDISPENSABLE EXERCISE IN SENTENCING POLICY-
EMERGING LEGISLATIVE TRENDS AND
JUDICIAL EXPOSITIONS

8.1 Introduction 316

8.2 Compensation in Criminal Cases- A State Obligation 318
8.2.1 Theorizing state obligation 318
8.2.2 Three patterns of compensation 319
8.2.2.1 Pattern I 320
8.2.2.2 Pattern II 321
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8.2.2.3 Pattern III 322

8.3 Victim Compensation as State Responsibility: Distinction Between 322
Constitutional and Civil Remedy Blurred
8.4 Legislative Trends in the Development of Compensation in Criminal 326
Cases
8.4.1 Section 357 of CrPC - Order to pay compensation – an ice 326
breaker yet short of restorative and reparative aspirations

8.4.2 Insertion of Section 357A – assuming 'Parens patriae’ 329

8.4.3 The Criminal Law (Amendment) Act, 2013 Insertion of 331
Section 357B- Reaffirmation of Rehabilitative Rights

8.5 Judicial Expositions 333

8.5.1 Power of Courts to award compensation is not ancillary to 334
other sentences but it is in addition thereto

8.5.2 Section 357 CrPC confers a power coupled with a duty on the 336
Courts to apply its mind to the question of awarding
compensation in every criminal case

8.5.3 Interim Compensation for Immediate Relief 339

8.5.4 Judiciary crossing ceiling of maxim fixed by various 340
Compensation Schemes

8.6 Recovery of and Default in Payment – Sentencing Policy 341

8.6.1 Fine and compensation - distinction 341
8.6.2 Can a compensation order impact the severity of the sentence 341
imposed?

8.6.3 Quantification and Recovery of compensation and whether 342

imposition of a default sentence for default in payment
of compensation is permissible

8.6.4 Impact of undergoing default sentence on liability for payment 344

of fine/compensation

8.7 Cost of Litigation and Sentencing Policy 345

8.8 Mandatory Fine and/or Compensation- A New Legislative Trend of 347
Sentencing Policy

8.9 Conclusion 351

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CHAPTER-IX 352-374

CONCLUSION AND SUGGESTION

9.1 Conclusion 352
9.2 Hypotheses Tested 367
9.3 Suggestions 369

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