B.B.A.LL.B. (HONS.

)
Session-2022-2023

NAME OF THE STUDENT - VAISHNAVI SHARMA

SEMESTER- 8TH ____ ENROLL NO. - DL1901109
UNIVERSITY EXAM ROLL NO.___________________
STATUS : REGULAR\ATKT- REGULAR
ASSIGNMENT SUBJECT- PENOLOGY AND VICTIMOLOGY
ASSIGNMENT TOPIC- “PUBLIC OPINION IN SENTENCE
POLICY- THE NEED OF THE HOUR”

SUBMITTED TO – ASS. PROF. DR. SHIKHA DUBE

SUBMITTED BY- VAISHNAVI SHARMA { 8TH SEM}
DATE-__________
MARKS OBTAINED-_____
SIGNATURE-
 ACKNOWLEDGEMENT

I have put in efforts in this assignment. However, it would not have been possible
without the kind support and help of many individuals and organizations. I would
like extent my sincere thanks to all of them.

I thank my God for providing me with everything that I required in completing this
assignment.

I am highly indebted to the Teacher in Charge Ass. Prof. DR. SHIKHA DUBE for
guidance and constant supervision as well as for providing necessary information
regarding the assignment and also for her support in completing the assignment.

I would like to express my gratitude towards my parents for their kind co-operation
and encouragement which helped me in the completion of this assignment.

My hearty thanks and appreciations go to my classmates in developing the

assignment and to the people who have willingly helped me out with their abilities.

Student Name –VAISHNAVI SHARMA

 CERTIFICATE OF AUTHENTICITY

This is to certify that Vaishnavi Sharma student of 8TH semester has successfully
completed the below mentioned assignment under the guidance of Ass. Prof. DR.
SHIKHA DUBE during the year 2022-23.
“PUBLIC OPINION IN SENTENCE POLICY- THE NEED OF THE
HOUR“

Student Name- Vaishnavi Sharma

 DECLARATION

I hereby declare that the project work entitled “PUBLIC OPINION IN

SENTENCE POLICY- THE NEED OF THE HOUR” submitted for
fulfilling the essential criteria of INDORE INSTITUTE OF LAW, is a record of
an original work done by me under the guidance of ASST. PROF. DR. SHIKHA
DUBE in B.B.A. LL.B. (HONS.) 8TH semester, Indore Institute of Law for the
Academic session 2022-23.

Vaishnavi Sharma
B.B.A.LL. B (HONS.)
8TH SEMESTER
 RESEARCH METHODOLOGY

Due to absence of authentic literature sources, the author has primarily referred to online sources
that are available for the purpose of research work on the subject. The research has its orientation
towards the governmental portals and the authentic legal websites along with the articles in the
blogs of legal experts. The research has begun from exploring the history of arbitration in India
and has gradually progressed through the emergence of laws and the changes experienced them
in the light of need of the hour. The content available online is in its full capacity can be regarded
as authentic and duly recognized in this research paper work. For any reference, the footnotes
can be looked into.
 INDEX

1. INTRODUCTION
2. HISTORICAL PERSPECTIVE OF PUNISHMENT
3. BASIC PURPOSE OF PUNISHMENT
4. TYPES OF PUNISHMENT
5. IMPORTANCE OF PUBLIC OPINION IN SENTENCING
POLICY
6. CASE LAWS RELATED TO IT
7. IN INDIA: SUCCESS OR FAILURE? AN EVALUATION
8. SUGGESTIONS
9. CONCLUSION

UNIQUENESS REPORT
Words 1000

Date 28/05/2023
Characters 4517 Exclude URL

11% plagiarism

89% unique Content checked for plagiarism

The modern attitude towards Sentencing is that, it is an individualised treatment process and a
sure response to every events of crime. The question, what Sentence is, cannot be distinguished
from who is the offender and what are his offending act. The modern Criminologists are inclined
to analyse not only the bio-socio-politico-cultural phenomenon but also psycho-pathological and
most recently the genetic phenomenon of the person. Crime is a deviation from social norm and
reason for this deviation lies in bio-psycho-genetic and eco-socio-cultural phenomenon.
Therefore the main object of sentencing should be reformative rather than punitive so as to
facilitate the return of offender to normal life and serving the ultimate goal of prevention of
crime. Justice Krishna Iyer, observed that:

“The retributive theory has had its day and is no longer valid. Deterrence and reformation are the
primary social goals which make depreciation of life and liberty reasonable as penal
panacea.” [iii]

Basic Purpose of punishment:

There are two basic dimensions to punishment namely the purpose that justify punishment and
the proportionality of nature and quantum of punishment in relation to the nature and seriousness
of the crime. The basic purpose of punishment may be attributed to: [iv]

Retribution:

Retribution is based on the assumption that causing pain to the offender or making them face
other unpleasant consequences is right and proper. Man is instinctively inclined to retaliate and if
this urge is not satisfied there is the likelihood that the party affected by crime may take law and
order in to their own hands spelling doom to the society. Though it seems to be of primitive
nature but its presence can always be felt in the Criminal Justice system.

ABSTRACT-

This chapter examines rationales for taking account in sentencing guidelines of public attitudes
to punishment– such as the pursuit of institutional legitimacy in the eyes of the public. It
discusses possible approaches to the assessment and incorporation of public opinion in these
guidelines. It argues that there should be a degree of alignment between sentencing practice and
public opinion, but that the aim should be to secure public tolerance of court practice, rather than
a close coupling of sentencing practice to public opinion. It argues for structured approaches to
the measurement of public opinion, using sample surveys. The chapter presents findings from
three empirical research projects that illustrate survey-based approaches to assessing public
opinion.

Keywords: Public attitudes to sentencing, sentencing guidelines, legitimacy, surveys

INTRODUCTION

“Any action or practice that has costs-and which does not? -needs to pay its way in
countervailing benefits or else it cannot be defended.”

Prof. H.L.A.Hart
The basic aim of all modern welfare States in the world is to provide a safe and secure
environment to its citizen, so that they can flourish and contribute towards the betterment of the
society and its future at large. But the ever increasing graph of crime is a blatant proof that
Criminal Justice system has failed miserably to fulfil this cherished dream. Criminal Justice and
more specifically Criminal Punishment system requires huge investment in terms of money, time
and energy. Therefore, there must be compensating benefits to justify this exorbitant burden on
public exchequer. We had better know that what they are and establish whether they are
sufficient or not.

Two criteria to be considered while Sentencing should be: Crime eliminated during incarceration
and Post-incarceration behaviour of the criminal towards the society. The main aim of the
Sentencing policy should be to use scarce resources intelligently, on one hand and to give a fair
chance to the accused to start a new life after he has served his term, on the other, so as to
achieve the basic aim of crime reduction. There has been a gradual but sure decline of Public
faith in the Criminal Justice system, over the period of time which give us a well-deserved
opportunity to revisit and formulate a robust and truly democratic Sentencing policy. In this
respect, the inclusion of a well informed and legitimate Public Opinion in Sentencing policy will
not only increase its acceptance but also the much required transparency in the system.

“If the Criminal Law as a whole is the Cinderella of jurisprudence, then the Law of Sentencing
is Cinderella’s illegitimate baby”

Nigel Walker

Introduction:

Historical Perspective:

When we look at the history of India, we will find that the concept of Penology is embedded in
it, right from the beginning. It developed under the connotation of danda-niti which literally
means principle of punishment.[i] Manu, the great law-giver of India, emphasised
that Danda was created as a derivative of Dharma [ii]. Though Criminology is a modern growth
in the West but in reality it was a fully developed subject in our country before the dawn of
Christian era. We have an abundance of literature on danda-niti or criminology contained in
our Dharmashastras such as Vedas, Smritisastras, Kautilya’s Arthasastras. The first phase of
ancient civilisation in India, when Dharma was supreme, the offender was shown maximum
tolerance, but was gradually ousted by political authority of the State in the following Mughal
and British periods.

Meaning:

Sentencing of a convict basically embarks the culmination of the judicial process which begins
with the detection, enforcement of the law, prosecution and adjudication. Thus the importance of
Sentencing lies in the fact that it becomes the face of Justice and a future deterrent for the
prospective offender of law. There is no doubt in the fact that Criminal Courts have championed
in the art of fact finding and law applying but when it comes to the process of Sentencing, there
lies the lacuna. The success in former is mainly due to unemotional and objective approach while
failure in later owes to emotional and subjective reaction towards the circumstances surrounding
the convict. This situation is further aggravated due to the lack of well-defined sentencing policy.

The modern attitude towards Sentencing is that, it is an individualised treatment process and a
sure response to every events of crime. The question, what Sentence is, cannot be distinguished
from who is the offender and what are his offending act. The modern Criminologists are inclined
to analyse not only the bio-socio-politico-cultural phenomenon but also psycho-pathological and
most recently the genetic phenomenon of the person. Crime is a deviation from social norm and
reason for this deviation lies in bio-psycho-genetic and eco-socio-cultural phenomenon.
Therefore the main object of sentencing should be reformative rather than punitive so as to
facilitate the return of offender to normal life and serving the ultimate goal of prevention of
crime. Justice Krishna Iyer, observed that:

“The retributive theory has had its day and is no longer valid. Deterrence and reformation are the
primary social goals which make depreciation of life and liberty reasonable as penal
panacea.” [iii]

Basic Purpose of punishment:

There are two basic dimensions to punishment namely the purpose that justify punishment and
the proportionality of nature and quantum of punishment in relation to the nature and seriousness
of the crime. The basic purpose of punishment may be attributed to: [iv]

Retribution:

Retribution is based on the assumption that causing pain to the offender or making them face
other unpleasant consequences is right and proper. Man is instinctively inclined to retaliate and if
this urge is not satisfied there is the likelihood that the party affected by crime may take law and
order in to their own hands spelling doom to the society. Though it seems to be of primitive
nature but its presence can always be felt in the Criminal Justice system.

Prevention:

This theory authorises the infliction of pain in order to prevent future crimes. General prevention
aims at dissuading members of the society, who have not committed those crimes, from
committing them and creating a fearful environment for those who have proclivity for
committing crimes.

Deterrence:
This theory assumes that man is a rational being who has a free will. But it can be countered with
the argument that the human beings and their behaviour is too unpredictable to reduce to a
mechanistic formula. Often punishments are made severe so as to convey the message that
anyone committing crimes will be similarly dealt with thus acting as a deterring force.

Rehabilitation:

It is based on the assumption that criminality of human being depends upon external and internal
forces which can be predicted by experts in order to prevent future crimes. It is severely
criticized because the emphasis has shifted from Courts to Prison Authorities.

Prevailing Scenario:

In India there is glaring absence of much required and anticipated Sentencing policy. Neither the
Government nor the Judiciary have led down any structured guidelines regarding it. Meanwhile
several Government committees have recommended the laying down of Sentencing guidelines at
the earliest. In 2003 the ‘Malimath Committee’ laid down the guidelines to minimize the
uncertainties in awarding sentences. It stated that:

“The Indian Penal Code prescribed offences and punishments for the same. For many offences
only the maximum punishment is prescribed and for some offences the minimum may be
prescribed. The Judge has wide discretion in awarding the sentence within the statutory limits.
There is now no guidance to the Judge in regard to selecting the most appropriate sentence given
the circumstances of the case. Therefore each Judge exercises discretion accordingly to his own
judgment. There is therefore no uniformity. Some Judges are lenient and some Judges are harsh.
Exercise of unguided discretion is not good even if it is the Judge that exercises the discretion. In
some countries guidance regarding sentencing option[s] is given in the penal code and
sentencing guideline laws. There is need for such law in our country to minimise uncertainty to
the matter of awarding sentence.” [v]

Even then Law minister Mr. Veerappa Moily said that “We are working on the uniform
Sentencing policy which is on the lines of ones in place in United States and United
Kingdom”[vi] Courts have laid down guidelines regarding Sentencing in several Judgements in
the form of obiter dicta. Supreme Court of India has laid down the guiding principle of Death
Sentence in Jagmohan Singh v. State of Utter Pradesh[vii] where the court gave the concept of
balancing ‘Aggravating and Mitigating factors’[viii] while awarding Capital punishment. This
approach was put to test in Bachan Singh v. State of Punjab[ix] where the court said that:

“Since an amendment was made to Indian Code of Criminal Procedure, the rule has changed so
that the offence of murder shall be punished with the sentence of life imprisonment. The court
can depart from that rule and impose the sentence of death only if there are special reasons for
doing so” [x]
More recently the well-publicised ‘Priyadarshini Mattoo Case’ has proved to be an eye-opener
for the whole Criminal Justice system of our country. In Trial Court Additional Sessions Judge
G.P. Thareja said of Santosh (convict) that “though he knew that he is the man who committed
the crime, he was forced to acquit him, giving him the benefit of doubt.”[xi] Under
unprecedented public pressure and media publicity the Government had to file an Appeal in
Delhi High Court, where the main accuse was convicted and awarded Capital punishment. The
verdict criticized Justice G.P. Thareja’s original judgment: “The trial judge acquitted the accused
amazingly taking a perverse approach. It murdered justice and shocked judicial
conscience.”[xii] In 2010 an Appeal[xiii] was filed by Santosh in Supreme Court where it was
argued by him that the decision given by the lower court is under excessive pressure of ‘Media
Trial’ which have made the popular Public Opinion against him. The Court upheld his conviction
by the Lower Court but commuted his Death Sentence to Life Imprisonment. This decision was
widely criticized by the family in particular and Public at large.

In State of M.P. v. Bablu Natt, the Supreme Court observed that:

“The principle governing imposition of punishment would depend upon the facts and
circumstances of each case. An offence which affects the morale of the society should be
severely dealt with.” [xiv]

In Soman v. State of Kerala, Supreme Court observed that:

“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.” [xv]

In Alister Anthony Pareira v. State of Maharashtra, the Supreme Court observed that

“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.” [xvi]

Importance of Public Opinion in Sentencing Policy:

From the above mentioned cases and judicial observations it can be concluded that there is an
absolute requirement of Sentencing Policy in India. Judiciary is going through a phase of lack of
confidence because of an established model which is opaque, non-responsive and devoid of
accountability. Judiciary is believed to be an elite class and its isolation from Public is
considered to be legitimate and essential because it imparts a sense of authority to it. In India the
Courts have got exclusive privilege to interpret the Law and to stretch its meaning to such an
extent which sometimes causes interference in the working of other instrumentalities of the State.
Now the question arises how far the basic meaning be extended so that it do not lead to the
breakage of social network.

To impart legitimacy to the Criminal Justice system and more specifically the Sentencing policy,
it is necessary to give due importance to the Public Opinion. Public Opinion is often confused
with Media dominated reactionary utterances of people, popularly known as Opinion Polls,
which is far away from accuracy and reasonableness. The response given by the people is mostly
based upon his socio-politico-cultural affiliation and is largely emotional in nature. The problem
lies not in the Public but the way in which the problem is being put forward before them. Media,
which nowadays represent large business conglomerates, generally take up some ongoing
controversies and gives an emotional angle to it before putting it in public domain, which make
them highly unreliable. This practice is fundamentally wrong because it defeats the very purpose
of Opinion Polls right at its nascent stage. The practice should be, to first of all give relevant
factual description along with constraints and possible ramifications and then take a well
‘Informed’ Opinion Poll. In the exercise of Informed Opinion Poll, ‘deliberation’ plays a very
important role. [xvii] The target of Informed Public can be achieved by initiating a well-
managed Public debate. This will help in transformation of individualistic view into a rationale
Public view on Sentencing policy.

Two extreme views can be adopted while deciding the Sentencing policy- one based on
‘Isolationism’ and another based on ‘Populism’[xviii]. In Isolationistic view Public has little or
no knowledge of Sentencing policy and the Policy Makers are also not concerned about it. The
main criticism of this approach would be that it is highly undemocratic and will create
disconnect and disenchantment among Public. Furthermore, since there is no Public role in
policy forming, it will give chance to the Politicians to put an undue pressure on the Judiciary as
and when required, and in case of any unpopular decision by Court, the Public will stand against
Judiciary.

In case of Populist view the Public will not understand the underlying principle behind the
Sentencing policy. The Public perception will depend upon Media driven promulgation which in
turn may be controlled by some Political motive or some emotional narration presented to them.

The prudent approach lies somewhere in between. The Public should be first educated and then
consulted on the policy matter. A constructive debate should be initiated so that a consensus on
the policy can be arrived at. The Judges and other Law officials should outreach the people, like
taking seminar, because in most of the cases the Public is being misrepresented about Sentencing
policy.
Public Opinion is much more complex as it is being perceived by the Policy Makers. Very often
they will come across a wide range of views regarding a particular prospective policy decision
regarding Sentencing. It is a boon in disguise because it gives ample opportunity to them to
introduce alternative Sentencing reforms, which if introduced will not only make decision
process faster but also reduce the economic burden of the policy. These reforms can be made
acceptable to the society by involving them in discussions which might not be acceptable to them
individually. It is not always necessary that just by increasing the severity of the Sentence a valid
deterrence can be created in the mind of prospective convict. For example after recent Nirbhaya
case [xix] a popular demand which have been vindicated by Media and Public is that to award
Death Sentence to the rape convict. But the Policy Makers should make them understand that
Death Sentence falls in ‘rarest of rare’ category and burden of proof so required will be quite
high. Thus it may lead to lesser conviction. Only by involving Public in discussions this stand
can be made clear.

Conclusion:

Sentencing policy is the most vital link in Criminal Justice system which signifies the rule of
Law in a State. In this respect Public Opinion is an indispensable asset which should be utilised
in a proactive and step-wise manner by the Policy Makers. Informed Public Opinion should be
involved right at the beginning of the formation of Sentencing policy so that a consensus can be
arrived at about its actual objective. In the following stages of its implementation, if some
anomaly arises regarding its interpretation, a well-managed Public debate should be initiated by
the authorities on various platforms. It is very important to carry out the economic audit of the
Sentencing policy and the ensuing result must be communicated to the Public so that they can
understand its future implications. Inclusion of Public Opinion in Sentencing Policy will not only
help to remove the Iron Curtain between the Courts and the society but will also improve the
level of acceptance of the Court’s decision regarding sentencing by the people at large.