DHARMASHASTRA NATIONAL LAW

UNIVERSITY, JABALPUR

Session 2022-2023                                                                                                  Semester - VIII

Criminal process and Human rights

Topic:
Sentencing policy and human rights
Submitted to:
Mr. Animesh Jha (Assistant professor of law, DNLU Jabalpur)
Submitted by:
Nishka Singh
BAL/063/19
 Acknowledgement
“Gratitude is the most exquisite form of courtesy.”

The success and final outcome of this project required a lot of guidance and assistance from many
people and I am extremely privileged to have got this all along the completion of my project.
I respect and thank Prof. (Dr.) V. Nagaraj (Vice Chancellor of the University), Mr. Animesh Jha
(Assistant professor of Law) for providing me an opportunity to do the project work and giving me
support and guidance which made me complete the project duly.
I am thankful to and fortunate enough to get constant encouragement, support and guidance from
my Family which helped me in successfully completing my project work. Also, I would like to
extend my sincere esteems to all my friends for their valuable support.

Nishka singh,
DNLU, Jabalpur.
 Abstract
This research paper will start with discussion by clarifying the procedure for sentencing in India.
There is talk about the need of guidelines by Mali math committee. In this paper we will discuss
the Aggravating and Mitigating factors on which bases the judgments is given by court. There
is discussion about the different cases in which different type of sentence is given by lower
to higher court. The aim of this research is to show requirement of rules related to sentencing in
India and give sentence without effect from any type of factor. At the end we talk about the higher
courts Issue some guidelines, after saw the need for sentencing in India for reduce the
discretionary power in the hand of judges.
 INTRODUCTION

There is an alarming increase within the rate of crimes all-round the globe, and our nation isn't
any exception. In sight of this, there's no doubt about the very fact that a just criminal justice
system is required, and a really important aspect of legal code is imposition of suitable, just and
proportionate sentence. In India, the most legislations governing legal code and also the system
of sentencing and punishment are the Indian legal code, 1860 (hereafter stated because the
‘IPC’), The Indian Evidence Act, 1872 and therefore the Code of Criminal Procedure, 1973
(hereafter mentioned because the Cr.PC).

Keeping the subject in mind, it's important to tell apart between the terms ‘sentence’ and
‘punishment’. Though interconnected, they cannot be used interchangeably. ‘Sentences’ are
statements in judgments which lay out what the punishment for a selected offence are in line
with the law. When the identical is put in action, and is operationalized, it'd be called the
‘punishment’ Thus, it is said that the sentence is that the predecessor to the particular inflicting
of punishment.
The term sentencing refers to the punishment given to the convicts by the judges within the
criminal proceedings. In other words, we are able to say that it's the method of not only penalizing
the wrongdoer but also the way of avoiding future crimes. Within the legal aspect, punishment is
that the imposition of pain or loss upon the person for his misdeed. There are various styles of
punishments.
The most issue arises is that judges have wide discretion in awarding the punishment to the
offenders i.e. they need a good home in sentencing the punishment within the statutes. Unlike
England, Wales and America, in India there aren't any specific guidelines established regarding
the sentencing policy. Whereas, at the time of sentencing, the judges should think the Aggravating
and Mitigating factors in order that justice is completed to the victim. Also, while discretion
judges should follow the doctrine of Proportionality. During this research paper, we are going to
be addressing few sections referring to sentencing under The Code of Criminal Procedure
(CrPC), 1973 & Probation of Offenders Act (POA), 1958 & The Indian legal code (IPC), 1860.
We are going to be studying the reports submitted by the Mali math Committee and law
commission regarding criminal justice. The aim of the study is to grasp why it's important to line
up guidelines for sentencing by the legislature or the judiciary. supported my research,
meanwhile, the legislature or the judiciary should explore and pass some orders/laws on various
possibilities which may be exercised within the absence of the rules regarding the sentencing
policy and also concentrate on the requirement for establishing the precise directions regarding
the identical.

Therefore, sentencing is one of the difficult tasks that a judge may be facing. According to
Justice R.C. Lahoti “a judge while passing a sentence has also to be sociologist, psychologist,
socio therapist and administrator at all times. Above all, he has to be humane. Justice knows no
friends and has no foes. While law has to be administered with a hard hand, justice cannot be
divorced from mercy.” This would suggest that sentencing is quite a challenging task for the
judge and that he discharge this responsibility judiciously. The Constitution of India being the
fundamental law of the State has conferred the power upon both the Central and the State
governments to make laws concerning regulation of crimes, enactment of criminal procedure, and
preventive detention laws. 9 Articles like Article 13, 14, 20 and 21 of the Constitution of India
limits and governs the legislative power of the Legislatures. 10 Penal laws must be clear and
certain besides being reasonable, just, and fair. Article 72 and 161 of the Constitution of India
confers upon appropriate Executives the powers to pardon, respite, remit or commute sentences.
Lastly, it is important to note that power to pass a sentence must be granted by the law, which
is usually vested in judiciary, and the same must be exercised in accordance with the law. The
legality and correctness of the sentence passed by the lower judiciary may be challenged before
the higher courts as recognized by the penal laws.

HISTORICAL BACKGROUND

From ancient times, human civilization has been maintaining the social order in society by
developing rules and regulations which are ideally followed by the people. Just in case someone
breaches the relevant rule, he/she within the ordinary course of justice mechanism was to be
punished for the identical. Back then, punishment provisions were more stringent with its
major concentrate on deterrence effect by putting in place the instance of more brutal punishment
concerning their criminal nature. However, with human development and social change
punishment became more rational and its focus tilted towards the reformative
approach additionally.

India has also adopted the reformative approach with the first aim of rehabilitating the offender.
It can even be evident from model prison reform 2016 released by the govt. Despite such an
encouraging approach, a serious lacuna exists within the Indian legal code system which
hampers not only the very purpose of the criminal justice system but also raises major concerns
from an individual's rights perspective furthermore. A significant a part of criminal justice
revolves around punishing someone for an act and that there exists the sentencing policy. In
India, neither the legislature nor the judiciary has issued structured sentencing guidelines. The
necessity for well-thought guidelines has been realized on many occasions by different
committees. Even, the judiciary has observed that the absence of sentencing guidelines is leading
to wide discretion which ultimately ends up in uncertainty in awarding sentences. In this paper
we emphasized the necessity for structured sentencing guidelines in India. For this, we have
taken a dichotomy approach wherein first part they explained why there's a requirement for
structured guidelines during a country like India then within the second part they need given
strong reasons to implement such policy by drawing an analogy with the Coroners and Justice
Act, 2009{3}. In third part we show some guidelines issue by higher court.

Role of various committees

1. The government and the judiciary not issued any guidelines for sentencing so, 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 within the kind of principles and
factors that courts must take into account while exercising discretion in sentencing.
Currently India doesn't have structured sentencing policy or guidelines that have been
issued either by the legislature or the judiciary.
In March 2003, the Committee on Reforms of Criminal Justice System (the Mali math
Committee), a body established by the Ministry of Home Affairs, issued a report that
emphasized the need to introduce sentencing guidelines so as to attenuate uncertainty in
awarding sentences, stating, The Indian legal code prescribe offences and punishments for the
same. For many offences only the maximum punishment is prescribed and for a few offences the
minimum is prescribed. The Judge has wide discretion in awarding the sentence within the
statutory limits. There’s now no guidance to the Judge in relevancy selecting the foremost
appropriate sentence given the circumstances of the case. Therefore each Judge exercises
discretion accordingly to his own judgment. There’s therefore no uniformity. Some Judges are.
lenient and a few Judges are harsh. Exercise of unguided discretion is not good whether or not
it's 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’s need for such law in
our country to reduce uncertainty to the matter of awarding sentence. There are several factors
which are relevant in prescribing the alternative sentences. This needs a radical examination by
an expert statutory body.

The Committee advised further that, so as 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, bar, police, social Scientist and girl’s representative.”

In 2008, the Committee on Draft National Policy on Criminal Justice (the

Madhava Menon Committee), reasserted the necessity for statutory sentencing guidelines. In
an October 2010 write up, 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 so as to confirm that judges don't issue varied sentences. In India no
uniform sentencing policy exists and sentence awarded to an offender reflect the individual
philosophy of the judges. This is evident from the subsequent facts.

2. The subsequent statements given by the three prominent judges of India shows the
current condition of sentencing policy of India.
 “Every saint has a past, every sinner has a future.” Krishna Iyer J
 “Theory of reformation through punishment is grounded on the sublime
philosophy that every man is born good, but
circumstances transform him into a criminal.” K T Thomas J
 “Reformative theory is certainly important but too much stress to my mind cannot
be laid down on it that basic tenets of
punishment altogether vanish”. D P Wadhwa J

3. Types of punishments - Section 53, Chapter III of the IPC, lay down the various kinds of
punishments that can be bestowed by the courts for the various offences. They are listed as
follows:

 Death
 Imprisonment for life
 Rigorous imprisonment or simple imprisonment
 Forfeiture of property
 Fine

Every offence defined under the IPC has a minimum and a maximum penalty that can be
awarded to it.

4. The main objectives of the criminal justice system can be

categorized as follows: To prevent the occurrence of crime.
 To punish the transgressors and the criminals.
 To rehabilitate the transgressors and the criminals.
 To compensate the victims as far as possible.
 To maintain law and order in the society.
 To deter the offenders from committing any criminal act in the future.
 RULES AND REGULATIONS APPLY AT THE TIME OF SENTENCE

In case of an offender apart from a Juvenile, a Magistrate, under section 29 of Cr.P.C. may pass a
sentence of imprisonment for a term not exceeding 3 years or fine not exceeding ten thousand
rupees (fifty thousand as per Mah. State amendment) or of both. Here it's important to notice that
under many categories of offences punishment prescribed is more than the above prescribed
limit, however while passing sentence in such cases magistrate cannot exceed the sentencing
limits but he has an option under S. 325 Cr.P.C. to forward accused to the Chief Judicial
Magistrate. A sentence of imprisonment in default, as per S.30 Cr.P.C. should not be in far more
than power u/s 29 Cr.P.C. and will not exceed 1/4th of the term of imprisonment which the
magistrate is empowered to inflict. However, it's going to be additionally to substantive sentence
of imprisonment for the utmost term awarded by the Magistrate u/s 29. Just in case of conviction
of several offences at one trial, as per S.31 Cr.P.C. the court may pass separate sentences, subject
to the provisions of S.71 of the I.P.C. the mixture punishment and also the length of the period of
imprisonment must not exceed the limit prescribed by S.71 I.P.C.

S. 71 I.P.C. provides (1) that where an offence is formed from parts each of which parts is itself
an offence the offender may be punished just for one amongst such offences.

(2) That where an offence falls under two or more definitions of offences or where several acts,
each of which is an offence, constitute when combined a distinct offence, and then the
punishment might be awarded only for anybody of such offences.

These are rules of substantive law whereas S.31 Cr.P.C. could be a procedural law. In case of
several sentences to run concurrently it is not necessary to send offender for trial before higher
court just for the reason that aggregate punishment for several offences is in more than
punishment which the magistrate is competent to inflict on conviction of single offence.
However, proviso to S.31 Cr.P.C. Provides that (a) in no case shall such person be sentenced to
imprisonment for a longer period that 14 years (b) the combination punishment shall not exceed
twice the quantity of punishment which the court is competent to inflict for single offence.
 RELEVANT JUDGMENT

In Bachan singh vs State of Punjab (AIR 1980 SC 898) The hon'ble Apex court while
interpreting S. 354(3) and 235(2) Cr.P.C. elaborated two aspects, firstly that the intense penalty
can be inflicted only in gravest cases of utmost culpability and secondly, in making the selection
of sentence due regard must be paid to the circumstances of the offender also. In Machhi Singh
v. State of Punjab [(1983) 3 SCC 470], The hon'ble Apex court observed that the accused
appellants, as a results of a family feud and motivated by feeling of reprisal, committed as many
as 17 murders of men, women and kids. The Court, while justifying the death sentence imposed
on the appellants, recollected with approval the principles laid down in Bachan Singh and
supplemented them with some more elaborate guidelines regarding the test of 'rarest of rare'
cases as given below: (a) Is there something uncommon about the crime which renders sentence
of imprisonment for all times inadequate and incorporate a death sentence? (b) Are the
circumstances of the crime specified there's no alternative but to impose death sentence even
after according maximum weight age to the mitigating circumstances which speak in favour of
the offender? In the rarest of rare cases, when the collective conscience of the community is so
shocked that it'll expect the holders of the judicial power center to inflict execution no matter
their personal opinion as regards desirability or otherwise of retaining the death penalty, death
sentence will be awarded.

REASON BEHIND THE NEED OF SENTENCING POLICY

It is therefore, clears that whether a specific offence should be punished with the minimum or
maximum penalty prescribed for it, or somewhere from between the gap, depends solely on the
judge’s discretion. Section 354(1)(B) of the CrPC directs judges to record reasons behind
awarding a specific sentence, and in step with Section 354(3), whenever any sentence
authorizes incarceration (imprisonment of life) or corporal (death) punishment, special reasons
must be laid down. Despite the above provisions, it's undisputable that the absence of a
sentencing policy in India leaves the judges and therefore the judiciary with lots of power.

Needless to mention, not every judge has the identical frame of mind and considerations while
awarding sentences. Some general factors that every one judges take into consideration would be
the severity of an offence, the intention and therefore the liability. However, the
ultimate sentence is majorly supported a judge’s personal experience, prejudice and
considerations. A really important factor would be the competency of lawyers present on a
specific day before of a specific judge, who could away the judges in their favour. Every case
has different circumstances and factors, whether or not they aggravate the possible sentence that
might be decided, or mitigate it. This has also been recognized by the apex Court, which within
the case of State of M.P. v. Bablu Natt {5}, observed that:

“The principle governing imposition of punishment would depend on the facts and circumstances
of every case.”

The Ministry of Home Affairs, established the Malimath Committee, in 2000. This committee
went on to stress on the discretionary power of the judges while deciding sentences. They too,
felt the necessity to control such power and a regular sentencing policy. It’s not only the judges
who posses this wide discretionary power. Section 360 and 361 of the IPC authorizes and
governs release of convicts and offenders on the idea of their good conduct whilst
imprisoned. Because of the absence of a sentencing policy and a group definition of ‘good
conduct’, a convict’s release would depend upon the discretion of his respective jail authorities.

There exists immense discrepancy and disparity thanks to the absence of the same policy. Judges
might impose different sentences on offenders being tried for the identical offence. The
judges aren't entirely answerable here, because as mentioned earlier, every judge has their own
considerations. Every judge has different standards and whether a selected factor is an
aggravating or mitigating factor for a selected case. However, it ends up in an imbalance within
the criminal justice system as offenders spend unnecessary nonce imprisoned.

The Proceedings of courts is divided into two parts. First, during which the court decides the
liability of the offender. Second, during which it decides about the sentence of the offender in
light of provisions of Section 354, 361, 360 and 235 of the CrPC which makes mandatory for the
judges to require into consideration the demographic information of the accused minutely. This
ends up in overburden on the judiciary and cases takes longer than they ideally should. With the
pending cases of approx. 3.3 Crores, the over-burdened judiciary often compromises with the
second stage of proceedings i.e. deciding the quantum of punishment for the accused during
which the dearth of consistency in their approach is discernable. It may be evident from Modi
Ram and Lala v State of Madhya Pradesh‘s case. Here, the accused discontinue the nose and
male organ of the victim in vengeance after the victim married his wife. The judicature sentenced
him one-year rigorous imprisonment by saying that the victim’s act was provocative in nature
which ends up in the commission of the crime. (Para 2) The court in appeal changed this
sentence to eight years of rigorous imprisonment. The tribunal mentioned that though the
victim’s act was provocative in nature, it had been not sufficient to require the lenient approach
just like the judicature. (Para 3) Further, on special leave to the Supreme Court, the sentence was
reduced to 3 years of rigorous imprisonment. The Apex court tried to balance the severity of the
offence and circumstances of the case and later acknowledged that the act was provocative in
nature. (Para 4) The three concluding punishment by three courts manifests the anomaly within
the sentencing policy of India.
 SOME FACTORS WHICH AFFECT THE JUDGEMENT

It is an admitted fact that judges’ do get influenced by several factors during the proceedings of
the cases. It can also be deducted from the 2003 Malimath committee (Page 171)
recommendations wherein they advised for the establishment of a statutory committee to lay
down sentencing guidelines under the chairmanship of a former judge of Supreme Court or
former Chief Justice of High Court including members representing the prosecution, legal
profession, police, social scientist and women representative. They sought different members so
that sentencing guidelines cannot be influenced as much as possible and can hold major
stakeholder views as well.
Though the influence factor can vary, the authors here have taken only the social
background[i] factor of the offender to illustrate this. In Shakti Mills rape case, five men
including two juveniles raped a girl. The three accused were granted the death penalty under the
newly adopted section 376E of IPC. Here the court took a strict approach towards the accused
and allowed the death penalty on the ground that earlier also they raped a girl for which life
sentence was given to them, this was even though the men had not been convicted i the previous
rape case at the time the crime had occurred. Unsurprisingly, all the convicts hailed from lower
socio-economic backgrounds and had a history of juvenile delinquency. While, in 2006 Khairlanji
massacre, where a mob stripped the mother and daughter naked in the market and sexually
assaulted them, even inserted objects in their private parts and then ghastly murdered them. This
crime was no less heinous than Shakti mills case as it was not only against the victim but was
against the whole community. However, here accused were granted only life- sentence. Again, the
convicts belonged from the higher class while the victim was from a lower social background. In
the Bhanwari Devi case which resulted in the formation of Vishakha guidelines, the victim was a
social worker. She was gang-raped by five men belonging from higher social class while
attempting to prevent a child marriage during the course of her work. In this case, even the proper
verdict wasn’t concluded as only one hearing has been taken up by the court in appeal after the
acquittal of the accused from the trial court. Unsurprisingly, here also the victim hailed from
the lower socio-economic background. In addition to this state, initiative is also an effective
factor. For example, in unnerving Kathua rape case, wherein an 8 years old girl was raped on a
periodical basis in a temple after she was abducted. The heinousness of crime was no less heinous
than Nirbhaya Crime, wherein the accused belonged from the lower social background were
hanged to death as the state initiative for their death sentencing was huge with mass protests by
the people all across the nation. However, here the state initiative for death sentence wasn’t in
parallel to Nirbhaya or Shakti mill case and consequently, the court allowed only for a life
sentence.

One recent example is the rape case of Unnao which involved the name of the high personality
who was an ex-BJP MLA. He was convicted not only for the rape of a minor but also for
conspiring to kill her father. However, even then he was awarded only life sentence. Further, the
Supreme Court in Rameshwar Dayal case itself observed that there exist similarities between
cases but the quantum of the sentence that was awarded to the accused was different in both
cases.

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.
 Conclusion

The Code provides for wide discretionary powers to the judge once the conviction is determined.
The Code talks about sentencing chiefly in S.235, S.248, S.325, S.360 and S.361. S.235 is a part
of Chapter 18 managing a proceeding within the Court of Session. It directs the judge to pass a
judgment of acquittal or conviction and in case conviction to follow clause 2 of the
section. Clause 2 of the section gives the procedure to be followed in cases of sentencing
a person convicted of against the law. The section provides a quasi-trial to ensure that the convict
is given an opportunity to talk for himself and provides opinion on the sentence to be imposed on
him. the explanations given by the convict might not be per the crime or be legally sound. It is
just for the judge to urge a thought of the social and private details of the convict and to
determine if none of those will affect the sentence. Facts such as the convict being a breadwinner
might help in mitigating his punishment or the conditions within which he might work. This
section plainly provides that each person must run an opportunity to speak about the type of
punishment to be imposed. Thus, imposition of appropriate punishment is that the manner in
which the courts reply to the society’s take justice against the criminals. Justice demands that
courts should impose punishment befitting the crime in order that the courts reflect public
abhorrence of the crime. The courts must not only keep in view the rights of thecriminal but also
the rights of the victim of crime and therefore the society at large while considering imposition
of appropriate punishment. Therefore, undue sympathy to impose inadequate sentence would do
more harm to the justice system to undermine the general public confidence in the efficacy of
law and society couldn't long endure under such serious threats. It is, therefore, the duty of each
Court to award proper sentence having relevance the character of the offence and therefore the
manner during which it absolutely was executed or committed etc. Thus, the law on the issue of
sentencing policy can be summarized to the effect that punishment should always be
proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social
station of the accused or victim aren't the relevant factors for determining the quantum of
punishment. The court should decide the punishment after considering all aggravating and
mitigating factors and therefore the circumstances during which the crime has been
committed. Conduct and state of mind of the accused and age of the victim and therefore the
gravity of the criminal act are the factors of paramount importance. The court must exercise its
discretion in imposing the punishment objectively considering the facts and circumstances of the
case. the facility under the proviso isn't to be used indiscriminately in an exceedingly routine,
casual and cavalier manner for the reason that an exception clause requires strict interpretation.
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