Dr.

Ram Manohar Lohiya National Law University

“CODE OF CRIMINAL PROCEDURE PROJECT”

“DEFICIENCIES, IRREGULARITIES AND EXTRANEOUS

CONSIDERATIONS IN CRIMINAL JUSTICE ADMINISTRATION:
DISPARITY AND DISCRIMINATION IN SENTENCING

SEMESTER- V

SUBMITTED BY: SUBMITTED TO:

Dr. Prem Kuman Gautam

SHATAKSHI ARYA

200101125
 ACKNOWLEDGEMENTS

On the successful completion of this project, it is our privilege to acknowledge our immense
gratitude towards the people who have guided and supported us in this endeavour.
I would like to acknowledge our indebtedness to Dr. Prem Kumar Gautam for providing
us with the incredible opportunity to delve further into this research topic and for his
constant guidance and support.
We would further like to acknowledge the IT Department, for providing us the required
remote platform that enabled us to obtain relevant information and access online databases
and articles.
We would also like to thank our seniors and friends who have been constantly supportive and
have always encouraged us to strive forward.
 OBJECTIVES OF THE RESEARCH

The following are the objectives of the present research paper:

1. To analyze the existing sentencing policy in the Indian Criminal Justice System

2. To examine the existence of disparity in the current system and the study the reasons
behind its rise.

3. To examine the existence of discrimination in the sentencing system and evaluating

its reasons

4. To identify the various procedural defects in the sentencing process

5. To study the Indian sentencing process and compare with the current global scenario

6. To propose remedies for addressing disparities in the existing system and policies
and identifying the scope of improvement.

RESEARCH QUESTIONS:
1. What are the major causes behind existing disparities and discrimination in the current
sentencing process in India?

2. What are the various procedural deficiencies in the sentencing process and what is its
scope of improvement?
 TABLE OF CONTENTS

1. INTRODUCTION ................................................................................. 5

2. SENTENCING POLICY ANALYSIS IN INDIAN CRIMINAL

JUSTICE SYSTEM ............................................................................... 9

3. EXISTENCE OF DISPARITY IN THE CURRENT SYSTEM AND

THE REASONS BEHIND ITS RISE ................................................. 13

4. EXISTENCE OF DISCRIMINATION AND THE REASONS

BEHIND ITS RISE .............................................................................. 16

5. PROCEDURAL DEFECTS IN THE SENTENCING PROCESS .... 18

6. GLOBAL SCENARIO OF DISPARITY IN SENTENCING POLICY

..................................................................................................................22

7. REMEDIES FOR DISPARITIES AND SCOPE OF

IMPROVEMENT ................................................................................ 24

8. CONCLUSION .................................................................................... 26

9. ANNOTATED BIBLIOGRAPHY ...................................................... 27

 TABLE OF STATUTES

1. The Code of Criminal Procedure, 1973, No. 2, Act of Parliament, 1974

(India). ................................................................................................... 20
2. The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974
(India). ................................................................................................... 19
3. The Indian Penal Code, 1860, § 53, No. 45, Acts of Parliament, 1860
(India). ..................................................................................................... 8
 TABLE OF CASES

1. Alister Anthony Pareira v. State of Maharashtra Criminal Appeal Nos.

1318-1320 OF 2007 ............................................................................... 14
2. Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684, para. 165 ............. 9
3. Delhi Domestic Working Women’s Forum v. Union of India (1995) 1 SCC
14. .......................................................................................................... 18
4. E.K. Chandrasenan v. State of Kerala (1995) 2 SCC 99. ........................ 19
5. Jagmohan Singh v. The State of U. P (1973) AIR 947. ............................ 7
6. Mohd. Chaman vs. State(NCT Of Delhi), (2000) 234 SCC 34. .............. 23
7. Municipal Committee, Ambala vs Basakhi Ram AIR 1963 P H 175. ....... 7
8. Narsingh Prasad Singh v. Raj Kumar Pappu (2001) 254 SCC 23 ........... 24
9. Rameshwar Dayal and Ors. v. State of Uttar Pradesh (1978) 3 SCR 59. 19
10.Sangeet & Anr. v. State of Haryana, (2013) 2 S.C.C. 452. ....................... 9
11. Soman v State of Kerala Criminal Appeal Nos. 1533-1534 of 2005. ...... 14
12. State of Karnataka v. Krishna alias Raju (1987) 1 SCR 1103. ................ 19
13. State of Karnataka v. Krishna alias Raju 1987 AIR 861. ........................ 13
 INTRODUCTION

Sentencing, the final phase in a case hearing, encompasses the formal legal implications of a
conviction.1 It refers to the court’s declaration of consequences of conviction once guilt is
determined.

The aim of a sentence is for the offender to understand that he has done something that is not
only detrimental to the society in which he exists, but also to his own prospects as a person and
as a member of society.2 As observed by Justice Krishna Iyer, “sentencing is a means to an
end, a psycho-physical panacea to cure the culprit of socially dangerous behaviour and hence
the penal strategy should strike a balance between sentimental softness towards criminal,
masquerading as progressive sociology and terror-cum-torment-oriented sadistic handling of
criminal, which is the sublimated expression of judicial severity, although ostensibly imposed
as deterrent to save society from further crimes”.3

Further, it is an instrument of ensuring the building of a just and equitable society in which the
rights and interests of both offenders and victims are preserved . Theorists of criminal law have
”

opined that the process serves the dual purpose of a deterrent to the commission of crimes and
provides appropriate punishment or “retribution” for an offense.

Any outcome that arises from a conviction can be considered a sentence. It has been considered
an integral part of the judicial process by virtue of it being instrumental in promoting social
security and offender rehabilitation.

While sentencing is closely related to the concept of punishment, they are not one but distinct
notions. Sentencing is essentially the process of putting the punishment into effect.

The present paper shall endeavor to analyze sentencing disparity and discrimination in India
and the discrepancies and irregularities in the sentencing framework. It shall further try to
delineate the causes between sentencing disparity and discrimination. While these concepts are
often used synonymously, they are distinct. Sentencing disparity occurs when broader
problems such as the severity of the offence, the judges' discretionary authority, and the

1
Sentencing, US Law www.law.cornell.edu/wex/sentencing.
2
G. Kameswari & V. Nageswara Rao, The Sentencing Process – Problems and Perspectives, 41 J. IND. L.
INST. Institute 452, 452-59 (1999).
3
Krishna Iyer J. Perspectives in criminology Law and Social Change 85-86 (1980).
offender's personal background are taken into account, while discrimination occurs when
manmade aggravated issues such as race, class, gender, caste, and so on are taken into account
during the sentencing process.

This paper shall further delve into procedural defects in the sentencing process and study it in
a global context. Finally, it shall suggest some remedies that may be taken to improve the
current scenario and framework regarding sentencing in India.
 SENTENCING POLICY ANALYSIS IN INDIAN
CRIMINAL JUSTICE SYSTEM

The concept of ‘punishment’ is dealt with in Chapter III of the Indian Penal Code (IPC). Section
53 delineates “the various punishments to which offenders are liable. These include-

i. Death
ii. Imprisonment for Life
iii. Imprisonment which has two descriptions
a. Rigorous imprisonment
b. Simple imprisonment
iv. Forfeiture of property
v. Fine”4

Further, certain factors are to be taken into account for the purpose of mitigation of punishment.
These include, “(1) the minority of the offender; (2) the old age of the offender; (3) the
condition of the offender e.g., wife, apprentice; (4) the order of a superior military officer; (5)
provocation; (6) when offence was committed under a combination of circumstances and
influence of motives which are not likely to recur either with respect to the offender or to any
other; (7) the state of health and the sex of the delinquent.”

Bentham had mentioned the following factors in alleviation of punishment, “(1) absence of bad
intention; (2) provocation; (3) self-preservation; (4) preservation of some near friends; (5)
transgression of the limit of self-defence; (6) submission to the menaces; (7) submission to
authority; (8) drunkenness; (9) childhood.”5

This list is by no means comprehensive. Various precedents have shown a multitude of other
factors that have been considered. For instance, the Punjab High Court in Municipal
Committee, Ambala vs Basakhi Ram6 had ruled that a long delay in the resolution of a case
can be a reason in the sentence being reduced.

4
The Indian Penal Code, 1860, § 53, No. 45, Acts of Parliament, 1860 (India).
5
Jagmohan Singh v. The State of U. P (1973) AIR 947.
6
Municipal Committee, Ambala vs Basakhi Ram AIR 1963 P H 175.
The Code of Criminal Procedure of 1973 gives the courts the authority of sentencing in India.
The offences can be classified into two categories. viz.:

1. “Offences under the Indian Penal Code (IPC)

2. Offences under the Special Laws”

Any violation under the IPC can be prosecuted in the High Court, the Court of Session, or any
other court included in the I Schedule of the Criminal Procedure Code as triable. Any other
rule-enforced violation may be prosecuted under the court designated by legislation.

In most circumstances, the maximum penalty that can be applied on a violation has been
determined, and the offences under the IPC have been specified with ample consistency. In
some instances, the section sets the maximum amount of penalty that can be levied. The fine
is infinite if it is not defined, but it should not be unreasonable. 7

While sentencing remains dependent on the discretion of the judges, judicial precedents have
evidenced that certain requirements must be adhered to in the process of sentencing. Such
requirements may include those of proportionality, society’s welfare, deterrence, etc.

In Soman vs. State of Kerala the court noted the necessity to consider “a combination of
different factors while exercising discretion in sentencing, that is proportionality, deterrence,
rehabilitation, etc.” Proportionality in sentencing is essentially analyzing whether a sentence is
commensurate and appropriate for the offense committed.

In case the discretion provided to judges is not exercised appropriately, the matter may be
brought before a superior court to review and correct the same. Certain aggravating factors may
also be taken into consideration during the sentencing process. These factors influence the
degree of severity and include the following-

“The manner in which the offence is perpetrated; whether it be by forcible or fraudulent means,
or by aid of accomplices or in the malicious motive by which the offender was actuated, or the
consequences to the public or to individual sufferers, or the special necessity which exists in
particular cases for counteracting the temptation to offend, arising from the degree of expected
gratification, or the facility of perpetration peculiar to the case.”8

7
Kameswari, supra note 2.
8
22 RATANLAL, THE CODE OF CRIMINAL PROCEDURE (Lexis Nexis 2017).
I. JUDICIAL PRECEDENTS IN CONTEXT OF SENTENCING GUIDELINES

Various precedents have provided guidance for sentencing in the backdrop of a lack of a
definitive sentencing policy. For instance,the apex court gave guidance on the execution of the
death penalty in Jagmohan Singh v. State of Uttar Pradesh, where the Court outlined a method
for weighing mitigating and aggravating aspects of the offence when deciding on the
enforcement of death penalty.9

This approach was challenged in Bachan Singh v. State of Punjab10, where the Court stated
that the law has changed after an amendment to India's Code of Criminal Procedure was
created, stating that "the crime of murder shall be punishable with a term of life imprisonment."
Except in exceptional circumstances, the court shall not deviate from this provision and
execute a death sentence.

However, subsequently in Sangeet & Anr. v. State of Haryana 11, the Court observed that the
Bachan solution has not been thoroughly followed since that “primacy seems to be given to the
nature of the crime,” and that the “circumstances of the criminal, referred to in Bachan Singh
seem to have taken a bit of a back seat in the sentencing process.”

II. EFFORTS FOR INTRODUCING STRUCTURED SENTENCING GUIDELINES

I. THE MALIMATH COMMITTEE

The "Committee on Reforms of the Criminal Justice System (the Malimath Committee)," a
panel formed by the Ministry of Home Affairs, released a report in March 2003 that highlighted
the necessity for sentencing guidelines to reduce ambiguity in sentencing. Justice V.S.
Malimath, former Chief Justice of the Karnataka and Kerala High Courts, led the body. The
committee stressed the broad discretion judges had in determining cases and saw the need to
limit that independence by limiting law and, to some degree, judges' authority. The committee
stated that an expert committee should conduct a thorough investigation into the issue. Apart

9
Singh, supra note 4.
10
Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684, para. 165.
11
Sangeet & Anr. v. State of Haryana, (2013) 2 S.C.C. 452.
from cognizable and non- cognizable offences, the committee proposed a new framework for
classification of offences.
The report brought out stated the following,
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
12
statutory body.

II. THE MADHAVA MENON COMMITTEE

In 2008, the Madhav Menon committee recognized the significant need for India's sentencing
framework. In 2010, India's then-law minister announced that the country intends to implement
a “uniform sentencing policy” similar to that of the United States and the United Kingdom.
Despite any of these guidelines, however, little effort has been made to actually create it.

According to the report, offences should be divided into four codes depending on the severity
of the injury. “A social welfare offences code (SWOC) for civil offences, a correctional
offences code (COC) for crimes punishable by up to three years in prison or a fine, a penal
code (PC) for graver crimes punishable by more than three years in prison, and an economic
offences code (EOC) for specific cases that fell under the Indian Penal Code and related
economic laws would make up the proposed four-part system”.13

12
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.
13
Prasad Dharaskar, Menon Committee on Criminal Justice Reform, Law and Other Things (Aug. 3, 2007),
lawandotherthings.com/2007/08/menon-committee-on-criminal-justice/
 EXISTENCE OF DISPARITY IN THE CURRENT
SYSTEM AND THE REASONS BEHIND ITS RISE

Sentencing Disparity is a form of disparate treatment in the delivery of criminal punishment

that is unfair and has unfavourable implications. When judges give a punishment to a convict,
sentencing disparities occur due to a variety of unexplained conditions.

Although they are often misunderstood and used synonymously, disparity occurs when broader
problems such as the severity of the offence, the judges' discretionary authority, and the
offender's personal background are taken into account, while discrimination occurs when
manmade aggravated issues such as race, class, gender, caste, and so on are taken into account.

The present paper shall focus on unjustified disparities that may arise in the sentencing system.

Unjustified disparity in sentence occurs where all requirements are met evenly in both cases
but punishments vary in a seemingly unreasonable manner. Thus, if age or the possibility of
reformation is considered a mitigating factor in one instance but not in another, an unjustified
discrepancy has been established.

There are a number of causes that may be taken into account while analysing the existing
disparities in the sentencing system. Such causes may include the following-

1. India follows an individualised sentencing system where facts and circumstances of

that individual case are taken into consideration during deciding punishment and
sentencing. This system is borrowed from the English legal system.
2. In formulation of a sentence, there is no particular factor that is given precedence. There
is no delineated goal of sentencing and therefore a sentence is susceptible to influence
of various factors. This leaves the process to the judges’ discretion
3. There is a palpable inconsistency in judicial pronouncements due to a lack of a proper
sentencing policy or guidelines that courts may rely upon during sentencing. A judge
can individualise a sentence by modifying the maximum and minimum conditions of
an indeterminate sentence, distinguishing between prisoners based on his own views
of what conditions are applicable to the sentence. A substantial amount of
independence is thus granted to judges to individually influence the outcome of a
case. While a minimum or maximum punishment may have been specified by law,
 there is clear absence of definite penalties for particular offences, resulting in
inconsistent judgements.

The primary challenge plaguing the current criminal code in the context of sentencing is a lack
of a proper, rigid sentencing policy to implement the goals of deterrence envisioned by criminal
law.

There are no prescribed sentencing rules in India and neither the legislature nor the judiciary
have provided them. Several government commissions have emphasised the need for certain
recommendations to be adopted in order to reduce ambiguity in sentencing. No sentencing
policy is currently in existence that satisfactorily determines and defines as clearly as
legislation on punishment does.

While both punishment and sentencing are two-fold, interrelated yet distinct concepts that are
equally important under criminal law, sentencing policy in India is posed with challenges such
as inconsistency and ambiguity and calls for an urgent reform to set a determinate framework.

An analysis of the procedure and legislation in relation to sentencing in various offences reveals
a series of discrepancies and disparities. While the code provides for minimum and maximum
penalty in most instances, the lack of a definite punishment for a particular offence or violation
may provide for a scenario of ambiguity and shall adversely affect the sentencing framework.
It can allow huge discretion to judges in different cases and can therefore lead to uncertainty
without proper checks on potential abuse and may expose the sentence to personal
preconceptions and prejudices.

A series of unpredictable precedents may provide evidence for such inconsistencies.

In the case of State of Karnataka v. Krishna alias Raju 14, the defendant was found guilty and
sentenced to a fine of Rs.250 for being responsible for the death of one individual and injury
to another by reckless and careless driving under section 304-A. The Supreme Court ruled that
the punishment imposed was inexcusably lax, and this had the effect of turning the conviction
and sentencing into a sham; that the High Court made an error profoundly in declining to
increase the sentence; and that considering undue sympathy in such circumstances would not

14
State of Karnataka v. Krishna alias Raju 1987 AIR 861.
only amount to a perversion of justice, but would also damage the public's faith in the
effectiveness of the justice system.

In Mohd Chaman v. State15, the accused had violently raped and murdered a one-year-old child.
The capital punishment was levied by the lower courts, which saw the matter as the rarest of
the rare cases, but when the case was appealed, the supreme court overturned the lower court,
ruling that the offender did not pose a serious threat to humanity or the society and lowered the
sentence.

In Soman v. State of Kerala, the Supreme Court noted the following:

“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”.16

Over time, the Indian courts have implicitly brought out the necessity for a sentencing policy
through contradictory verdicts and flawed justification.

In Alister Anthony Pareira v. State of Maharashtra,17 the Court held that

“Sentencing 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.”18

15
Mohd Chaman v. State Appeal (crl.) 68-69 1999
16
Soman v State of Kerala Criminal Appeal Nos. 1533-1534 of 2005.
17
Alister Anthony Pareira v. State of Maharashtra Criminal Appeal Nos. 1318-1320 OF 2007.
18
Sentencing Guidelines: India, Law Library of Congress (Dec. 30, 2020), www.loc.gov/law/help/sentencing-
guidelines/india.php.
 EXISTENCE OF DISCRIMINATION AND THE
REASONS BEHIND ITS RISE

“Discrimination, is differential treatment of individuals based on irrelevant criteria, such as

race, gender, or social class”.19 Factors affecting such sentencing is legally immaterial.
Examples of this can be male offenders facing harsher penalties for the same offence
committed by similar female offenders or wealthier offenders receiving lenient punishment in
comparison to a poor offender.

Sentencing discrimination may be observed to manifest in various forms. According to Walker,

Spohn, and DeLone. discrimination exists on a spectrum ranging from "pure justice," defined
as “no discrimination at any time or place of the criminal justice system” to “systematic
discrimination,” defined as “discrimination that occurs at all levels in the criminal justice
system, at all ways, and at all times.”20

Other forms of discrimination studied include, institutional discrimination that “results from
even-handed application of policies or procedures”, contextual discrimination that “occurs in
some contexts or under some circumstances” and individual acts “decisions made by a few
individuals within the system”.21

Various studies have demonstrated racial and gender bias in sentencing. Individual judges that
conclude that members of a certain race are exceptionally harmful and prone to reoffending
may inflict stricter penalties on these people than on generally similar criminals from another
race.

A particular study used the Implicit Association Test (a test that establishes a person's positive
or negative correlations with some physical characteristics) to come up with some insightful
findings.

- State and federal judges alike have clear racial prejudices toward Asians and Jews.
Asians were linked with undesirable moral stereotypes such as selfish, manipulative,

19
Damayanti Bhattacharjee, Disparity in Sentencing Policy in India, 3 IJLMH (2020)
20
SAMUEL WALKER ET. AL., THE COLOR OF JUSTICE: RACE, ETHNICITY, AND CRIME IN
AMERICA (Wadsworth/Thomson Learning, 2004).
21
Id.
 and conniving when compared to Caucasians (who the judges associated with positive
moral stereotypes such as trustworthy, loyal, and generous).
- Similarly, as opposed to comparisons relating to Christians, most judges correlated
Jews with unfavorable moral perceptions.22

In India, a report titled, “Criminal Justice in the Shadow of Caste” states, “While Dalits and
Adivasis account for about 24 per cent of the country’s population, they constitute 34 per cent
of prisoners”. The study identifies many factors that contribute to this disproportionality,
including profoundly rooted caste inequalities among police, judiciary, and prison officials,
as well as a lack of sufficient recourse to legal redress and resources for Dalits and
Adivasis.23

Studies have also highlighted two other forms of discrimination. Direct discrimination is may
be observed in instances where “race, ethnicity, or gender affects sentence severity when
crime seriousness and prior record are held constant” and indirect discrimination can be
observed where “race, ethnicity, or gender affects sentence severity through some other
factor”.24

22
Justin D. Levinson, Mark W. Bennett, and Koichi Hioki, Judging Implicit Bias: A National Empirical Study
of Judicial Stereotypes, 69 Fla. L. Rev. 63 (2017).
23
CRIMINAL JUSTICE IN THE SHADOW OF CASTE (NDMJ-NCDHR)
24
Spohn, C. 2009. Sentencing Disparity and Discrimination: A Focus on Gender. In: 2009. How do Judges
Decide?: The Search for Fairness and Justice in Punishment, 2nd edn, Thousand Oaks.
 PROCEDURAL DEFECTS IN THE SENTENCING
PROCESS

In Indian Context, the sentencing power of the courts is derived from the Code of Criminal
Procedure 1973 (CrPC). The offences can be divided into two groups namely:

3. Offences under the Indian Penal Code (IPC)

4. Offences under the Special Laws.

The quantum of Punishment is left to the discretion of judges by IPC. The judges have the
sole discretion in forming the opinion as to the aggravating or mitigating circumstances of the
offence and the character of the offender. The policy of law in giving a very wide discretion in
the matter of punishment to the judges has its origin in the impossibility of laying down rigid
and inflexible standards. Any attempt to lay down the standards as to why in one case, there
should be more punishment and in the other, less punishment to the judges has its origin in the
impossibility of laying down rigid and inflexible standards. Any attempt to lay down the
standards as to why in one case, there should be more punishment and in the other, less
punishment would be an impossible task. On balancing the aggravating and mitigating
circumstances as disclosed in each case, the judge has to judicially decide what would be the
appropriate sentence. To a certain extent, it is a subjective exercise, which might depend, inter-
alia upon the penal philosophy of the judge also. 25

In judging an adequate sentence, the nature of the offence, the circumstances of its commission,
the age and character of the offender, the injury to the individuals or to the society, whether the
offender is a habitual, casual or a professional offender, effect of punishment on the offender,
delay in the trial and the mental agony suffered by the offender during prolonged trial, an eye
to correction and reformation of the offender are some amongst many factors that have to be
taken into consideration by the courts. In addition to these factors, the consequences of the
crime on the victim and the members of his or her family have also to be taken into
consideration while fixing the quantum of punishment because, one of the objects of
punishments is doing justice to the victim.

25
Bhattacharjee, supra note 19.
This aspect, however, is completely ignored in the substantive criminal law as well as by the
courts. The Cr.PC under Section 35726 however provides that the court while imposing fine
or sentence of which fine forms a part may order the whole or any part of the fine to be paid as
compensation to the victim or his/her family. In the case of Delhi Domestic Working Women’s
Forum v. Union of India27, the Supreme Court recognised the right of the victim for
compensation by providing that it shall be awarded by the court on conviction of the offender,
subject to the finalisation of scheme by the Central Government.

Coming to the sentence of fine, it is forfeiture of money by way of penalty. It was justified by
the Law Commissioners on the ground of its universality, though they admitted that its severity
should be proportionate to the means of the offender, since the sentence not only affects him,
but also his dependants. The profits of the offence, the value of the thing which is the subject
matter of the offence, the amount of injury and the fortune of the offender have to be taken into
account while fixing the amount of fine. While imposing fine, it is necessary to have as much
regard to the pecuniary circumstances of the accused person as to the character and magnitude
of the offence. Where a substantial term of imprisonment is inflicted, an excessive fine should
not be added to it, save in exceptional circumstances.

Regarding the offences punishable under special laws like the Essential Commodities Act, The
Prevention of Corruption Act, The Prevention of Food Adulteration Act, The Dowry
Prohibition Act, The Protection of Civil Rights Act, The Immoral Traffic (Prevention) Act and
the like, the trend of legislation as well as judicial approach to such offences have been casual.
The punishment imposable for these offences has been imprisonment for a term. In certain
cases, minimum sentence has been prescribed by the IPC but the courts are empowered to
award less than minimum in special cases after recording the reasons. Imprisonment imposable
in these cases may be of either description and the court is empowered to decide whether the
offender has to undergo rigorous imprisonment or simple imprisonment. Thus, wide
discretionary powers are vested in the courts regarding awarding sentences in the case of socio-
economic offences. While dealing with this type of offences, it is the duty of the courts to
understand the nature of those offences and the aims and objects of the State in enacting laws
in respect of them and to enforce them so as to carry out those objects effectively and properly
and not by imposing light sentences.

26
The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).
27
Delhi Domestic Working Women’s Forum v. Union of India (1995) 1 SCC 14.
The modern trend in penology and sentencing procedures is to emphasise the humanist
principle of individualising punishment to suit the offender and his circumstances. The
principle is given effect to in the Cr.PC by providing for post- conviction hearing under sections
235(2)28 and 248(2)29. Under section 235(2), if the accused is convicted, the judge shall hear
the accused on the question of sentence and then pass the sentence on him according to law.
Under section 248(2), opportunity is given to both parties, to bring to the notice of the court,
facts, and circumstances which will help individualize the sentence from a reformative angle.
The State Government and the Central Government in respect of cases investigated by the
Delhi Special Police Establishment or any respective Public Prosecutors to the High Court
against the sentence imposed on the ground of inadequacy of such sentence. Under Article 142
of the constitution, the Supreme Court can suo-motu enhance the sentence.30 The power of
judicial review of sentences by the appellate and revisional courts is intended to mitigate to a
certain extent, the problem of disparity in sentences because this disparity creates hostile
attitudes in the mind of the offender and reduces the chances of his resocialisation as he would
feel that he is being discriminated.31

The question of sentence is normally at the discretion of the trial judge. The trial court should
collect materials necessary to help award a just punishment in the circumstances of the case.
The personal factors and social background of the offender are very relevant and the trial court
is duty bound to be activist enough to collect such facts as have a bearing on punishment with
a rehabilitation slant. The trial courts in India are already overburdened with work and hardly
have any time to set apart for reflection on sentencing. There is no uniformity of approach
among trial judges. Some tend to give maximum penalty and some, the minimum. Some
penalise certain types of crime severely, while others do the opposite. They have neither
consistent policy nor thorough and scientific analysis of the behavioural problems of individual
offenders.

In the case of Rameshwar Dayal v State of Uttar Pradesh32, the Supreme Court noticed two
different cases where, on identical facts, the punishment in one case was 4 years and in the
other 3 months. Similarly in State of Karnataka v. Krishna alias Raju,33 the respondent was

28
The Code of Criminal Procedure, 1973, No. 2, Act of Parliament, 1974 (India).
29
The Code of Criminal Procedure, 1973, No. 2, Act of Parliament, 1974 (India).
30
E.K. Chandrasenan v. State of Kerala (1995) 2 SCC 99.
31
Bhattacharjee, supra note 19.
32
Rameshwar Dayal and Ors. v. State of Uttar Pradesh (1978) 3 SCR 59.
33
State of Karnataka v. Krishna alias Raju (1987) 1 SCR 1103.
tried and convicted for causing death of one person and injuries to another by rash and negligent
driving under section 304A and was sentenced to a fine of Rs. 250. The Supreme Court,
describing the sentence inflicted as unconscionably lenient or a ‘flea bite’ sentence held that
this had the effect of making the trial and conviction a mere farce; that the High Court gravely
erred in refusing to enhance the sentence under Section 377, Cr. PC and that consideration of
undue sympathy in such cases would not only lead to miscarriage of justice, but will also
undermine the confidence of public in the efficacy of criminal justice system.

As observed by Justice Krishna Iyer, sentencing is a means to an end, a psycho-physical

panacea to cure the culprit of socially dangerous behaviour and hence the penal strategy should
strike a balance between sentimental softness towards criminal, masquerading as progressive
sociology and terror-cum-torment-oriented sadistic handling of criminal, which is the
sublimated expression of judicial severity, although ostensibly imposed as deterrent to save
society from further crimes.
GLOBAL SCENARIO OF DISPARITY IN SENTENCING
POLICY

The Global Scenario of the Disparity in sentencing policy in the Criminal Justice System is
now changing the mindset of the people and it is slowly becoming a threat to the whole nation
around the world. Practice of juvenile system, practice of death penalty and also the law
favouring a Particular community creating disparity in sentencing policy which brings cruelty
in the minds of the accused towards the society and the government which is in itself a wide-
reaching threat.

With the evolution and emergence of the Sentencing Disparity, sentencing disparity also
emerges into various branches or we can say it in various forms like- Inter jurisdictional, Intra
jurisdictional and Intra judge34. Now taking into consideration the first form, in this, judges
in different jurisdictions sentence similarly situated offenders differently. Moving to the further
forms, In the second one, judges in the same jurisdiction sentence similarly situated offenders
differently and in the third one, an individual judge makes inconsistent sentencing decisions.
And all these forms create a lot of chaos in the criminal justice system and finally leads to the
disparity in the sentencing policy.

The source of such disparities is deeper and more systematic than explicit racial discrimination.
The U.S. operates two different criminal justice systems: one for wealthy people and one for
the poor people and the people of color. The rhetoric of the criminal justice system sends the
message that our society protects everyone’s constitutional rights, but in practice the rules
assures that law enforcement prerogatives will generally prevail over rights of the minorities
and the poor.

In order to do analysis of the above research and the objectives and the linked problem,
Qualitative method of analysis is being used for better analysis of this emerging problem i.e.
Disparity of sentencing policy in the criminal justice system.

In the latest year, the largest fall in the volume of prosecutions and the convictions for
indictable offences was seen in the Asian Group, down by 22% and 20% respectively,

34
Stephen J Schulhofer, Assessing the Federal Sentencing Process: The Problem is Uniformity, Not Disparity,
29 AM. Crim. L. Rev. 833 (1991-1992)
https://heinonline.org/HOL/LandingPage?handle=hein.journals/amcrimlr29&div=41&id=&page=.
Prosecution and convictions fell by 18% and 16% for black defendants and 13% each for white
defendants35. Asian and Chinese or other offenders had the highest custody rate for in 2018 at
37% each, compared to 33% for white offenders.36 The proportions of stop and searches
conducted on white suspects decreased from 75% in 2014 to 59% in 2018-19 and increased for
all the minority ethnic groups.37

The sentencing disparity that is a form of unequal treatment in criminal punishment that is often
of unexplained cause, unfair and disadvantageous in consequence. In this doctrinal research,
disparity is shown by linking with the race and ethnic in the criminal justice system and shows
racial biases with the help of example at a global level. Racial biases mostly spread and the
country which is affected by this bias is the United States and this analysis on the part of the
author is a good attempt. In this Doctrinal research, different forms of the disparity on the level
of the judgment given by the judges is also highlighted.

Hence, a very important point which is to be noted with respect to this is that, the rhetoric of
the criminal justice system sends the message that our society protects everyone’s
constitutional rights, but in practice the rules assures that law enforcement prerogatives will
generally prevail over rights of the minorities and the poor.

35
Id.
36
Id at 10.
37
Id at 10.
 REMEDIES FOR DISPARITIES AND SCOPE OF
IMPROVEMENT

According to Lombroso’s theory38 “nobody is born as a criminal and it is the society that makes
a person criminal” and on this concept, punishment rational was evolved. Though, punishment
in itself is institutionalized violence executed by the state. However, it is justified by its
deterrence effects on society and the possibility of rehabilitation of the offender. Thus,
punishment in itself is institutionalized violence executed by the state. However, it is justified
by its deterrence effects on society and the possibility of rehabilitation of the offender.

Thus, punishment requires more vigilant look over by the judges as excessive punishment
defeats the object of law in ensuring the rehabilitation of the offender while unconscionably
lenient sentencing would result in the miscarriage of justice and will negate the deterrence
effect. Therefore, to achieve the primary purpose of law these two aspects are required to
implement 1. The immediacy of punishment 2. Consistency of Punishment.39

Many commentators and commissions of inquiry have identified appellate jurisdiction as a

means of ensuring consistent sentencing. 40Any structured guidelines or statutory provisions
wherein the range of punishment could be find explicitly mentioned should be the ideal choice
for India rather than depending on the judicial principles as in absence of any guidelines, parties
don’t feel justified and they then consequently appeal to higher courts to seek the remedy. This,
in turn, delays the judgment of the court and results in the absence of immediacy in providing
swift justice.

The continuous appeal from the lower to higher court leads to the disparity in sentencing which
often results in the lack of consistency while awarding it. For example, in Mohd. Chaman v.
State (N.C.T. of Delhi)41 the accused brutally raped and killed a one-year-old girl. The trial
court found this under the category of rarest of rare cases and sentenced him to the death penalty

38
Kaveri Sharma, Trends in sentencing relating to offences against marriage in India, 34 Maharshi Dayanand
University (2016) http://hdl.handle.net/10603/208202.
39
Adria J. Trotman, Implementation of a Contingency Management-Based Intervention in a Community
Supervision Setting: Clinical Issues and Recommendations, 50 J Offender Rehabil (1999)
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3253349/
40
Julian V. Roberts, Umar Azmeh, Structured Sentencing In England And Wales: Recent Developments and
Lessons For India, NLSIR Vol. 23 (2011)
https://www.jstor.org/stable/44283737?seq=1#metadata_info_tab_contents
41
Mohd. Chaman vs. State(NCT Of Delhi), (2000) 234 SCC 34.
which was later overturned by the high court on the ground that the accused didn’t pose any
threat to the society. In NarSingh Prasad Singh v. Raj Kumar Pappu42 the court in appeal
reduced the sentence of the accused without giving any reasons and without considering the
crime which was prevalent in the society for unjustified demand of dowry. We already have
discussed how despite having the same fact and circumstances, the court has given different
decisions as far as quantum of punishment is concerned. The Supreme Court has acknowledged
that the superior court often comes across a large number of cases that show anomalies
regarding the sentencing policy.

This lack of immediacy and consistency of punishment emboldens the offender as it gives them
“

a thought of escape which might lead to an offence in future as well. Hence, in order to
summarise the same : ”

1. Sentencing and hence recognising the length and nature of the sentence should
ultimately rest upon the seriousness of the crime. Other factors like nature of the crime,
personality of the offender, list of previous offences, danger of such offences etc. should
also be taken into consideration,
2. A major issue which exists is the lost rationality during sentencing, especially during
“

the sentencing of high maximum terms. While the presence of high maximum terms is
primarily to arm the court and keep the society free from dangerous offenders, these
terms have also been imposed on those offenders who neither need or deserve them.
This in turn takes away their opportunity for growth in future. If offences are not
classified it takes away the rationality from them. Though while “a limitation on
”

sentence length would narrow the scope of judicia discretion, but only reduce the
possibilities for disparity.”43

42
Narsingh Prasad Singh v. Raj Kumar Pappu (2001) 254 SCC 23.
43
Bhattacharjee, supra note 19.
 CONCLUSION

Disparities have become a major part of sentencing in judicial systems across the world. As
one can conclude from the above paper it depends on a variety of factors and while justified
disparity is approved of, it is the unjustified disparity which has been plaguing our society.

While at the beginning one could blame the non-existence of a structured sentencing policy to
be the main reason behind there being disparities in the first place, when compared to that of
USA, one finds that even with the existence of a structured sentencing policy, disparities are
still present. Upon further research, one can conclude that several factors like individualised
sentencing system, existence of no coherent sentencing aims, judicial variability, lack of
guidance, discretionary power of the judges etc. are behind the existence of such disparities;
this can be done by taking into consideration, factors like the seriousness of the crime
committed, the background of the criminal, bringing about rationality in the system of
providing maximum terms to offenders etc.

The prolonged loggerhead between the two pillars of our Constitution is nothing but buying
time for themselves at the cost of the lives of innocent. Because once a death penalty is awarded
to an innocent based on imperfect facts and non-designated mitigating circumstances, his life
would come to an end. It is not just that there is disparity in sentencing, or in cases of death
penalty or rape but there are other offences in the IPC which clearly brings similar disparities
into light. It is time that we should imbibe the finer aspects of the successful Justice System in
various parts of the world and make our Criminal Justice System stronger and more efficient.
 ANNOTATED BIBLIOGRAPHY

1. G. Kameswari & V. Nageswara Rao, The Sentencing Process – Problems and

Perspectives, 41 J. IND. L. INST. Institute 452, 452-59 (1999)

This article delves into the sentencing process in India and the various problems
that plague it. It identifies the various factors taken into account, delineates the
mitigating and aggravating factors and analyses contrasting and inconsistent
verdicts pronounced by the Indian judiciary in cases with nearly identical
circumstances. It further highlights the discrepancies in the present framework
and calls for the introduction of proper, definitive guidelines to overlook the
process. It also contemplates the degree of discretion provided to judges in the
process.

2. I Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice

System Report 170 (Mar. 2003).

The Malimath Committee report stressed the broad discretion judges had in
determining cases and saw the need to limit that independence by limiting law
and, to some degree, judges' authority. The committee stated that an expert
committee should conduct a thorough investigation into the issue. Apart from
cognizable and non- cognizable offences, the committee proposed a new
framework for classification of offences.

3. I Government of India, Ministry of Home Affairs, Report of the Committee on Draft

National Policy on Criminal Justice (July. 2007).

This report recognized the significant need for India's sentencing framework.
According to the report, offences should be divided into four codes depending on the
severity of the injury. A social welfare offences code (SWOC) for civil offences, a
correctional offences code (COC) for crimes punishable by up to three years in prison
or a fine, a penal code (PC) for graver crimes punishable by more than three years in
prison, and an economic offences code (EOC) for specific cases that fell under the
Indian Penal Code and related economic laws would make up the proposed four-part
system.
4. SAMUEL WALKER ET. AL., THE COLOR OF JUSTICE: RACE, ETHNICITY,
AND CRIME IN AMERICA (Wadsworth/Thomson Learning, 2004).

This book analyzes the American Judicial System and implicit biases held
against individuals belonging to specific race and ethnicities. It explores
sentencing in the backdrop of various theories of economic inequality and
extends to study about police and discrimination. Further, it explains the
concepts of disparity and discrimination and brings out their various types and
defines them. Further, it provides an analysis of various verdicts laid down
African American, Hispanic, and White Judges and contrasts them. Finally, it
delves into the theme of race, justice and minorities.

5. Spohn, C. 2009. Sentencing Disparity and Discrimination: A Focus on Gender. In:

2009. How do Judges Decide?: The Search for Fairness and Justice in Punishment,
2nd edn, Thousand Oaks.

This study used the Implicit Association Test (a test that establishes a person's
positive or negative correlations with some physical characteristics) to come
up with some insightful findings. State and federal judges alike have clear
racial prejudices toward Asians and Jews. Asians were linked with undesirable
moral stereotypes such as selfish, manipulative, and conniving when
compared to Caucasians (who the judges associated with positive moral
stereotypes such as trustworthy, loyal, and generous). Similarly, as opposed to
comparisons relating to Christians, most judges correlated Jews with
unfavourable moral perceptions.

6. STEPHEN J SCHULHOFER, ASSESSING THE FEDERAL SENTENCING

PROCESS: THE PROBLEM IS UNIFORMITY, NOT DISPARITY (Crim. L. Rev.
833,1991-1992)

This article critiques Judge Gerald Heaney's methodology and conclusions

regarding his study of the impact of current mandatory Federal sentences and
sentencing guidelines. This article concludes that methodological problems
and imprecision about the concept of sentencing disparity undermine Judge
Heaney's statistical case. For both reasons, his claim that sentencing disparity
is worse under the guidelines is not substantiated.
7. DAMAYANTI BHATTACHARJEE, DISPARITY IN SENTENCING POLICY IN
INDIA, (International Journal of Law, Management and Humanities, 2020)

This article highlights the continuous development that has led to a disparity in
the sentencing policy. A disparity particularly exists depending upon the
discretion of the judges, i.e., their decisions and judgements. The aim of this
research paper is to delve into the existent disparities of the Indian justice
system and hence derive the possible remedies of this looming issue which has
been plaguing the Indian justice system since ages.

8. ADRIA J. TROTMAN, IMPLEMENTATION OF A CONTINGENCY

MANAGEMENT-BASED INTERVENTION IN A COMMUNITY SUPERVISION
SETTING: CLINICAL ISSUES AND RECOMMENDATIONS, (Offender Rehabil,
1999)

This paper describes the contingency management component of the treatment

and discusses, in detail, issues that arose throughout the course of the study.
Possible causes and solutions to the issues are discussed from a contingency
management perspective that can result in improved reinforcements to achieve
better probationer outcomes.

9. JULIAN V. ROBERTS, UMAR AZMEH, STRUCTURED SENTENCING IN

ENGLAND AND WALES: RECENT DEVELOPMENTS AND LESSONS FOR
INDIA, (NLSIR Vol. 23. 2011)

This article highlights the developments in the structured sentencing in

England and Wales and outlines the system of Indian Judiciary which follows
the traditional common law formula for sentencing. It has highlighted how the
state of affairs have changed in England and wales where courts are bound to
follow a system of guidelines which has slowly evolved over the past decade.