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║ChapterV║

Determination of Sentences: Principles, Policy and Practice

| Determination of Sentences: Principles, Policy and Practice | 293 |

Chapter V

Determination of Sentences: Principles, Policy and Practice

5.1 INTRODUCTORY

Sentencing is about the way courts deal with a person after he or she

has pleaded guilty or has been found guilty, in other words, it is

about what happens from the moment when a person charged with

an offence ceases to be merely ‘the accused’ and becomes ‘the

offender’.1There is no statutory or case law definition of ‘Sentence’.

Certainly, it must include the punishment, such as fine or a

custodial sentence, which the court imposes upon an offender for the

offence. It should also include orders imposed upon the offender on

conviction which cannot properly be described as punishments. For

instance, the ancillary orders are made against the offender to

benefit individuals who have suffered loss or have been put to

expense by reason of the offence like compensation orders.2 The

objectives of sentencing, to which the courts are required to have

regarded when dealing with the offenders, are:3

• Punishment of offenders

• Reduction of Crime • Reform and Rehabilitation of offenders

1 Martin Wasik, Emmins on Sentencing, Oxford University Press, New York,

(2007), p. 2. 2 Id., p. 6. 3 The City Law School (London), Criminal Litigation and Sentencing, Oxford

University Press, New York, (2009), p. (292).


• Protection of the public • Making of reparation by offenders to persons affected by their

offences.

There has been a view that sentencing is ‘an art not a science’, that it

has to be absorbed through the experience of doing it, rather than

being addressed by way of set of principles.

5.2 MOVEMENT TOWARDS RATIONALE SENTENCING

The significance of the sentencing process is to be appreciated in the

context of individualization in the administration of criminal justice.

Individualization means that instead of fitting the offence, the

criminal sanction should fit the offender. The first movement towards

rational sentencing was launched by the English classical school as

a reaction against the arbitrary nature of the punishment prescribed

for a variety of offences. In eighteenth century England, over 200

crimes ranging from pickpocketing to murder were punishable with

the death sentence. In other words, far from fitting the offenders, the

punishments did not fit even the offences. Bentham sought to

achieve some element of rationality in the penal policy by advocating

punishments of different magnitudes for different kinds of offences.

He provided the following guidelines for the gradation of offences in

terms of different punishments:

1. That the value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence.

2. When two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.

3. The punishment should be adjusted in such manner to each particular offence that for every part of the mischief there may be a motive to restrain the offender from giving birth to it.


4. The punishment ought in no case be more than what is necessary to bring to into conformity with the rules here given.

The other rules propounded by Bentham laid down that the

quantum of punishments prescribed should be in inverse

proportion to the possibility and time factor involved in the

infliction of punishment. In other words, punishment ought to be

greater in situations where detection of the offence and the

consequent punishment is either uncertain or remote in terms of

time.4

Regarding the fixation of punishment in the range permissible by

law, Bentham said that the quantum should vary according to the

offender's capacity to suffer. He then enumerated thirty-two

variables of capacity for suffering, ranging from sex, age, physical

and mental health to climate, religion and lineage which, in the

words of Nigel Walker, was an astonishingly modern piece of

writing for an eighteenth-century penologist. The classical school,

therefore, paved the way for distinguishing the various crimes

according to their gravity and the prescription of different

punishments for them. The Indian Penal Code, 1860 is an

example of the influence exercised by Benthamites in relation to

the penal legislation in the nineteenth century and afterwards in

various countries. The grading of the various offences is based on

their gravity as understood by the legislature; and the gravity of

an offence is generally assessed in terms of social danger, alarm,

social disapproval, harm and wickedness involved in it.

5

4 S.M. Afzal Qadri, Criminology: Problems and Perspectives, Eastern Book

Company, Lucknow, (2005), pp. 350-351. 5 Rupert Cross, The English Sentencing System, Butterworths, London,

(1975), p. 139.


5.3 SENTENCING AS A HUMAN PROCESS

In 1997 John Hogarh published his study ‘Sentencing as a Human

Process’. As the title indicates, he perceived sentencing not only as a

stage in the legal process but a place in which the human actor

played a decisive role by differentiating facts, legal criteria, attitude

and perceptions of the decision maker. He not only explained

difference in sentencing pattern but displayed the effect varied

attitude and perceptions on specific out come. Another aspect of

sentencing which may yet be an important one is the slow shift from

principles of deterrence and rehabilitation to the undoing of harm

done by means such as restitution, compensation etc., which has by

and large moved towards the ambition of reduction in crime.6 But it

is pertinent to note that victims have always played a subservient

role mainly as a witness and have never had major role to play in

trial or proceedings.7

Most judges have little or no background or training required for the

selection and imposition of effective sentences. Sentencing decisions

had always reflected personal value of the prosecutor or judge rather

than being based on scientific considerations. James v. Benett,

Former Director of Federal Bureau of Prison, USA, testified that some

judges are arbitrary and sadistic in their sentencing process. The

evidence is conclusive from the fact that the discretion mete out with

divergent sentences where divergences and variations are result of

change amongst judges and not by material difference in defendants

6 Brian A. Grosman, New Directions in Sentencing, Butterworth, Toronto,

(1980), p. 24. 7 In United States, Victim Impact and Victim Opinion Statements are used to

inform and to give the victim some say over the sentencing process. In Britain, Victim Personal Statements were deliberately so named in order to distance them from the American Model of giving the Victim a say in sentencing. Indeed, British sentencers are directed not to take into account any views as to sentence that might be expressed by the victim.


or their crimes. It is also to be noticed that sometimes by being able

to impose a severe sentence which they know will be curtailed by

Parole, the courts are set to cater both to the public demand for stiff

and vengeful dispositions and to the more reasonable requirements

of justice. Yet the sentenced offender remains uncertain regarding

the terms of his imprisonment. His compelling hope is to convince

some prison or parole board that he has been rehabilitated.8

In the context of sentencing again, sentencers think that they chose

or delivered the correct sentence. Sometimes, this is done intuitively

rather than according to a set of rules. When asked to account for

their decision, they do so by reciting the facts and the circumstances

but without explicitly or logically relating these to a calculus of

sanctions. Sentencers perceive themselves to be making complex,

difficult and sensitive decisions. They do so by drawing on their

experience and professional knowledge but they find it difficult to

articulate the elements of these competences. Moreover, it is believed

that judges organize their thinking about sentencing not in terms of

a series of abstractions but as a series of reactions to a particular

cases (for example, in situations like media trial of a murder case).

Now this can be related to the Bourdieu’s concept of Habitus which

means, ‘the durably installed generative principle of regulated

improvisations which produce practices’. This sits easily with

sentencers own perceptions of sentencing as intuitive and artful.

Bourdieu’s intention is however not to take habitus for granted, but

to examine it in context and describe its elements and properties.

Also, Sentencers give decisions about cases which have already been

constructed by the work done by other agencies. Their sentencing

options are to some extent constrained by decisions made by

8 Marvin E. Frankel, Criminal Sentences: Law without Orders, Hill and Wang,

New York, (1973), p. 69.


prosecutors, or negotiated between prosecutors and defence agents,

and by reports prepared for the court by probation officials, social

workers and other professionals. Sentencers will also anticipate the

way in which their decision will be interpreted by others, most

considerably, the courts of appeal, but also by the offenders, victims

and their families, and the local and national media. Local courts

culture would also generate conditions which affect sentencing

decisions. In the courts at district or sub divisional level, shared

understandings and discussions with the colleagues provide an

informal resource for sentencing decisions.9

No doubt that judges must give objective, impartial and impersonal

judgements. Such judgements must be arrived at in a spirit of

humility and in full consciousness of the limitations which are

inherent in every decision, the judge cannot shirk the responsibility

of giving what might turn out to be an unpopular decision, of course,

he must be bold enough to accept criticism, both informed and

uninformed. But it must also be realised that judges are not

computers or slot machines, where you press a button and the same

answer will be thrown up each time. Also, that every judge would

award the same punishment on each offence is not even supported

by evidence. Such ‘mechanical jurisprudence’ is a myth

10

The sentencing decisions are relatively autonomous and not subject

to the accounting practices of others. The judges have successfully

avoided political interference with sentencing. Yet, some of the

decisions may get affected because of the corrupt practices if any is

followed by the judge. One more important point which needs

.

9 Sarah Armstrong and Lesley Mc Ara, Perspectives on Punishment: The

Contours of Control, Oxford University Press, New York, (2006), pp. 162-164.

10 Rani DhavanShankardass, Punishment and the Prison: Indian and International Perspectives, Sage Publications, New Delhi, (2000), p. 173.


attention in such cases is that the decision comes first and the

judges work backwards to construct a justification and to

demonstrate that the sentence ‘fits’ the case. Thus, understanding of

sentencing from this perspective is an understanding of the range of

legitimate accounts which judges can construct to justify their

sentence. Thus, it can be boldly stated and accepted that the only

institutional check on sentencing decisions is the appeal process.

Sentences are only likely to be overturned if they are manifestly

unjust or out of line. The Court of Appeal mostly describes broad

boundaries of acceptability. And it is most unlikely due to

subordination that a judge from state judiciary will approach the

high court judges to prevent their decision from being overruled.11

The reductivist approach is that the imposition of hardship through

punishment is justified whenever certain benefits are achieved by

that punishment, and where those benefits outweigh the hardship

and make its imposition, on balance, worthwhile. This is the

principle of utility, expounded by Jeremy Bentham. In particular,

the imposition of punishment is here designed to reduce the overall

incidence of offending within society. There are different lines of

5.4 APPROACHES TOWARDS SENTENCING

Traditionally, sentencers were largely free to pursue the sentencing

approach which seemed to them most appropriate, on a case by case

basis, and there was little attempt to regulate this. Indeed it has

often been argued by sentencers themselves that the formulation of

sentencing policy is a matter peculiarly within the ambit of the

judiciary.

5.4.1 The Reductivist Approach

11 Supra Note 9, p. 164.


thought in this regard firstly, the punishment will act to deter the

person sentenced, so that the person will desist from offending

through fear of repetition of the penalty in future. Secondly, the

punishment will deter other likeminded people. They will decide not

to commit an offence when they see what penalty has been inflicted

on the offender on this occasion for doing so. Thirdly, by imposing a

sentence of a particular type, such as lengthy prison term or a

driving disqualification, the offender will be prevented from

committing further offences in the future, at least for a limited period

of time. Fourthly, the sentence handed down by the court will bring

about a change of attitude on the part of the offender, so that he will

desist from offending in future, not through fear of further

punishment, but through a deeper realisation of the anti-social

nature of defending. The argument about reductivist sentencing is

not solely about whether it can be shown to work. Under

consideration there is then the issue of the injustice on imposing a

sentence which is more severe than the offender deserves in an

attempt to achieve a general effect.12

A second view can be seen in contrast to the reductivist one. The

desert approach to sentencing emphasises the moral requirement of

maintaining a proper proportion between offence and punishment. It

states that punishment involves censuring the offender for his

wrongful behaviour. Thus, prime determinant of sentencing should

be to ensure that the punishment imposed is that which is deserved

for the offence and the degree of offender’s culpability. It should be

understood that, in contrast to the various recidivist approaches,

desert principles do not require that sentencing practice should

5.4.2 The Desert Approach

12 Supra Note 1, pp. 44-48.


affect overall crime levels. The view is that the ‘crime problem’ in

society can and should be tackled by a combination of strategies

including economic policy, social policy, housing policy,

environmental design and education, but only to a rather limited

extent through sentencing practice13

Following considerations must be kept in mind while evaluating the

merits of a particular approach

.

14

• Proportionality: A sentence should fit the crime

:

• Individualism: A sentence should reflect the offender’s criminal history and the threat posed to society

• Disparity: The sentences for a particular offense should be uniform; “like cases should be treated alike.”

• Predictability and Simplicity: The Sentence to be imposed for a particular offense should be clear and definite and should not be dependent on the personality or biases of the judge. It should be relatively easy for a judge to determine the appropriate sentence.

• Excessiveness: A sentence should not inflict unnecessary and needless pain and suffering.

• Truthfulness: An offender’s sentence should reflect the actual time served in prison.

• Purpose: A Sentence should be intended to achieve one or more of the purposes of punishment.

5.5 FORMAL SOURCES OF SENTENCING DECISIONS

The formal sources of sentencing law may be said to provide a kind

of outer framework for sentencing decisions, and within that some

internal rules, principles and standards, but it is plain that a

13 Id, p. 48. 14 Matthew Lippman, Contemporary Criminal Law, Sage Publications, New

Delhi, (2007), p. 61.


considerable amount of flexibility is left in the hands of the court in

many cases. The two main formal sources of sentencing are:15

(1) Legislation: The legal sources that frame and direct the sentencing decision are more numerous and more contradictory in nature. Legislation is an increasingly important means by which the parliament establishes the formal framework of sentencing law by setting out the respective powers of the judges. It is also the means by which Parliament exerts authority over the sentencing process by imposing restrictions upon the judicial exercise of discretion

16. Statutes passed by the parliament establish the framework of sentencing principles. Statutes set a maximum sentence for almost every offence. All these provisions have to be interpreted by the courts, and some of the cases which go on appeal raise a particular point of statutory interpretation (about the extent of the courts’ power) rather than any general issue of principle (as to how the courts should exercise their powers). The role of legislation as a source of sentencing law has therefore largely been one of providing powers and setting outer limits to their use. Within those outer boundaries, sentencing practice has been characterized by considerable discretion subject to the general superintendence of the higher courts and to growing influence of sentencing policy. It is held in an English case of Bright17 that the “Statutory maximum is reserved not for the worst possible case which can realistically be conceived, but for cases which in the statutory context are identified as cases of the utmost gravity”. The practical difficulties for courts are increased by the dispersal of sentencing law across several statutes. However, it must be observed that the important policy objectives cannot be accomplished without legislation; and that fairer sentencing outcomes may not come about if maximum discretion is left to judges and magistrates, despite their claims to the contrary.18

(2) Judicial Decisions: Judges have long since attempted to develop their own sources of guidance and self restraint. Guideline judgments are derived from judicial decisions at the appellate

15 Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University

Press, Cambridge, (2010), p. 41. 16 Lucia Zedner, Criminal Justice, Oxford University Press, New York, (2004),

p. 174. 17 [2008] 2 Cr App R(S) 578, at pp.588-589. 18 Supra Note 15, p. 26.


review. The judgments are intended to be binding upon the lower courts and have been regarded as such by the subordinate judges. As Ashworth observes: ‘this method of guidance seems to have caused less judicial opposition.....probably because it has been developed by the judges, for the judges.19 A body of decisions worthy of being called jurisprudence has grown up. For example, Criminal Law Reporters, All India Reporter, builds on the series of reports by collating decisions and arranging them according to subject matter, providing judges and practitioners with a ready source of reference on most issues of sentencing law.20

5.6 MODELLING THE SENTENCING PROCESS

Little is known about the social practice of sentencing. Sentencers in

many jurisdictions enjoy wide discretion in their decision making.

While every jurisdiction has complex procedural regulation which

must be followed to ensure that sentences are lawful, few have rules

which generate the ‘correct’ sentence from a given set of facts and

circumstances. One important way of understanding patterns in

sentencing is to look at the aggregate sentencing figures and use

statistical tools to analyse the patterns that emerge from these. The

analysis looks for factors or combinations of factors which appear to

predict sentencing outcomes with some degree of accuracy. Thus, for

example, if one possessed certain information about an offence and

about the criminal history of the offender, one could use these

analyses to predict the sentence that would be passed in a particular

court.

The most elaborate form of such analysis would produce a ‘model’ of

sentencing which would take into account a wide range of relevant

factors and measure the effect which these have on sentencing

outcomes. Perhaps the most rigorous and comprehensive attempt to 19 Maguire, Morgan and Reiner, The Oxford Handbook of Criminology, Oxford

University Press, Oxford, (2002), p. 1094. 20 Supra Note 15, p. 34.


produce a model of sentencing is described in a book published in

1989 by Austin Lovegrove. His analysis explains that two factors,

case seriousness and criminal history are the best predictors of

sentencing outcome. Beyond these two factors, others have much

smaller and much less accurately predictable effects on outcome. It

is pertinent to note the fact that there is a pattern which does not

necessarily imply a rational model of sentencing being operated

unconsciously by sentencers. From an interpretive perspective,

sentencers are social actors. They perceive for themselves while

making decisions and making choices, albeit within certain

boundaries. It is argued that these patterns are constructed because

judges are reproducing structures of professional knowledge and

practices learned through experience. Nevertheless, Lovegrove’s

argument is that these statistical patterns reveal what he calls

‘applied’ sentencing policy. Even if judges are not able to articulate a

sentencing policy, what they actually do in practice constitutes a de

facto sentencing policy. One can accept that sentencing policy is

‘what judges do’ but this does not entail that what judges do is

therefore systematic or consistent.21

There are three basic models of sentencing- the legislative, judicial or

administrative model. These are so called in recognition of the

institution or the group of policy makers and exercise the power to

imprison and to determine the length of imprisonment:

5.6.1 Three Basic Models of Sentencing

22

• Legislative Fixed Model: In the legislative fixed model, the legislature determines that conviction for a given crime and warrants a given term of imprisonment. There is no judicial or

21 Supra Note 9, p. 155. 22 Alan M. Dershowitz, Fair and Certain Punishment, Mc Graw-Hill Book

Company, New York, (1976), pp. 79-80.


administrative discretion under this model; the legislature has authorized one sentence. In practice there is still discretion at various points in this process. The police and prosecutor generally have wide discretion to determine the charge. Also the executive generally has discretion to commute or pardon. In theory, however, the legislatively fixed sentence is the least discretionary in the sense that the sentence is determined in advance of the crime and without knowing the identity of the criminal. But since the legislature has enormous discretion to determine which crimes deserve what punishments and since it is widely known what kinds of persons generally commit what kinds of crimes, racial and other kinds of prejudice tend to play a role in determining punishments for different typical crimes.

• Judicially Fixed Model: In judicially fixed model, the legislature determines the general range of imprisonment for a given crime. The sentencing judge must fix a determinate sentence within that range. Once this sentence is fixed it cannot be increased or reduced by any parole board or authority; the defendant must serve the sentence. This model does not consider good time provisions or other relatively automatic reductions, nor does it consider commutation or pardon. Under this model, discretion is vested in the sentencing judge; how much is vested, depends on the range of imprisonment authorised by the legislature. On the day he is sentenced, however, the defendant knows precisely how long he will serve; there is no discretion vested in the parole boards or prison authorities.

• Administratively Fixed Model: In administratively fixed model, the legislature sets an extremely wide permissible range of imprisonment for a given crime. The sentencing judge must or may impose the legislatively determined sentence. The actual duration of the sentence is decided by an administrative agency while the prisoner is serving his sentence. Under this model, vast discretion is vested in the administrative agency and in the prison authorities. On day he is sentenced, the defendant does not know how long he will have to serve, although he probably can make an educated guess based on past practices.

The administrative model could be more accurately characterized as

a mixed discretionary model, since enormous discretion is still vested


in the sentencing court as well as in the administrative release

authority. In general the legislature determines the general range of

sentences for a particular crime, the judge may select any sentence

within the range and the parole board may then release him after a

specific percentage of his sentence has been served.

5.6.2 Underlying Consideration in Sentencing

Principles act as a constraint on the pursuit of the rationales of

punishment. They limit, for example the temptations to impose

harsh sentences in the hope that they will deter or in order to mirror

exactly the severity of the most heinous crime and they limit highly

differentiated sentencing from the interest of the victim or the

rehabilitative needs of the offender. Ashworth observes, ‘it would be

extravagant to claim that there is a settled core of these principles

and policies... the reality is that they form a fluctuating body at

different stages in penal history, and are invoked selectively as the

tides of penal politics ebb and flow.”23

It acts as an important limiting constraint upon penalties that are

degrading or inhumane. It effectively outlaws certain types of penalty

altogether. It prohibits inhumane or degrading treatment or

punishment. It also prohibits unwarranted intrusion upon rights to

privacy, religious freedom, freedom of expression, and freedom of

assembly. What is regarded as inhumane or otherwise intrusive is

not fixed. However, Penalties involving bodily punishment or the

infliction of physical pain are generally deemed unacceptable.

The principles that require

consideration are:

The Principle of Respect for Human Dignity

23 Supra Note 15, pp.79-80.


Penalties that impact upon the mind rather than the body tend to be

more readily accepted.24

The principle requires that the offender enjoy equality before the law

and that the penalties they suffer are of equal impact. The first of

these demands, that irrespective of class, caste, wealth, gender or

race, offenders should be treated equally. Wealthy offenders should

not be allowed to buy their way out of imprisonment nor should

middle class offenders be treated differently on the grounds of their

particular sensibilities. The principle of equality before the law is

challenged however, by those cases where equal treatment would

have differential impact. For instance, the mother responsible for

rearing a young family, or the offender who will lose a hard earned

job if imprisoned etc. The difficulty is how to respond

compassionately in these cases without risking discrimination

against those without children or job.

The Principle of Equality

25

The principle of parsimony suggests that since punishments involves

inflicting pain; it should be used as sparingly as possible. As a

general principle this requires that penalties should be minimally

intrusive in the lives of the offenders, though this may lead to

conflicts with the demands of desert, deterrence, and incapacitation

and so on. Imprisonment for example, should be employed only when

it can be shown that lesser penalties have been considered and

deemed insufficient.

The Principle of Parsimony

26

24 Supra Note 16, p. 179. 25 Id, p. 180. 26 M. Wasik and A. Turner, “Sentencing Guidelines for the Magistrates

Courts”, Criminal Law Review, (1993), p. 350.

Bentham argued for a principle of frugality in


punishment: in all cases the lowest sufficient punishment should be

chosen. Noval Morris developed a similar principle of Parsimony. It

could be regarded as a principle applicable to policy makers of the

principle of restraint in the use of custody, perhaps phrased in terms

of minimum intervention. This would recognize the punitive effects of

the criminal process and publicity on many offenders, and would

argue for the greater prominence of formal cautions and other

diversionary measures for less serious forms of crime. It would also

support the approach of reserving community penalties for cases

that are too serious for a fine or conditional discharge. Alternatively,

or even additionally, the principle of parsimony could be regarded as

a principle for the sentencers in individual cases.

The Principle of Economy

The principle recognises that the State has limited funds and that

the money spent on punishment could well be spent on health or

education or other social goods. Since punishment is a drain on

precious, the principle of economy demands that the least expensive

option is preferred. But it is also argued that economy might suggest

that cheapest response to the most serious offences is capital

punishment but economic considerations cannot be allowed to

trump the demands of the humanity27


. Governments always have an

eye to public expenditure. Regard must always be given while

framing sentencing guidelines, to’ the cost of different sentences and

their relative effectiveness in preventing reoffending. Government

must develop policies and realise that present high custodial

population is falling high on expenditure.

The Principle of Respect for Rule of Law Values and Fundamental Rights


This is a principle with both formal procedural and substantive

implications. The rules of law may be taken to require ‘rules which

are fixed, knowable and certain’, thereby enhancing liberty and

reducing arbitrariness in the exercise of state power. As a matter of

principle, both the courts and the legislature should ensure that

those rights are respected and not sidestepped or marginalized in the

sentencing process.

The Principle of Restraint in the Use of Custody

In recognition that imprisonment is a severe deprivation for most of

those incarcerated, there has been widespread formal acceptance

that it should be used with restraint. Draft Resolution VIII of the

Eighth United Nations Congress on the Prevention of Crime and the

Treatment of Offenders recommended that ‘imprisonment should be

used as a sanction of last resort’. Most of the pronouncements

reaffirm the government’s view that ‘ prison is the right place’ for the

most serious, dangerous and persistent offenders, whereas ‘

prevention and punishment in the community should be used ‘ for

less serious offenders, for whom custodial sentences are not

appropriate.

The Principle of Equal Impact

This principle argues that sentences should be so calculated as to

impose an equal impact on the offenders subjected to them. The

most obvious application of the principle is to fines, which ought to

be adjusted to reflect the different means of different offenders.

Another application may be to imprisonment for offender’s who have

some special mental or medical condition which may make custody

significantly more painful, although there may be an alternative


justification based on comparison rather than equality of impact of

sanctions.

The Proportionality Principle

The principle of proportionality means that sanctions be

proportionate in their severity to the gravity of offences which

appears to be a requirement of justice. People have a sense that

punishments which comport with the gravity of offences are more

equitable than punishments that do not.28

The principle of individualisation of punishments is gaining

importance today. The legislature acting before the commission of

crime cannot obviously consider the character of the offender nor the

varying circumstances surrounding commission of the criminal act.

No one can possibly conjecture all possible permutations and

combinations of situations getting involved in or attendant on the

offence. Any attempt at that is impossibility and is beyond human

ingenuity. The system of punishment cannot be based exclusively on

the nature of crime committed but must be conditioned by the

personality of the offenders. The same kind of crime may be

committed by entirely different types of criminals.

5.7INDIVIDUALISATION OF PUNISHMENTS

29

28 Andrew Von Hirsch, Censure and Proportionality, A Reader on Punishment,

Oxford University Press, New York, (1994), p. 115. 29 Kirpal Singh, Quantum of Punishment in Criminal Law in India, Publication

Bureau Panjab University, Chandigarh, (1970), p. 132.

Sheldon Glueck

writes on this aspect, “The minute splitting up of offences into

degrees and the distinguishing attempts from completed criminal

acts with the meticulous setting down of supposedly appropriate

dosages of punishment belong to an era when punishment based


upon degrees of vicious will was thought to be the only or best means

of coping with anti-social behaviour.”30

In this essential role of being the ultimate arbiter in sentencing, the

court, representing civilised society, is itself often on trial.

Accordingly, in sentencing the individual the judge must have the

capacity, the resources and the time to weigh the circumstances of

the individual standing for sentence. There cannot be the same

punishment imposed upon all offenders regardless of their

background; their circumstances; their intelligence; its effect on their

means of livelihood or family situations. That would be treating

unequals equally. Accordingly, punishment must be assessed on

individuals, upon the specific person then before the court. The

whole concept of making an individual an example to others is

fallacious. The public must of course be educated to obey the law,

but that education cannot occur at the expense of a specific

individual. Nor should the concept of punishment involve

punishment in the moral sense. The court cannot equate itself with

any form of divine purpose in the reformation of a sinner. The law

does not punish sinners as transgressors of the moral law; it

punishes those who have been convicted of breaching the code or

lawfully enacted statutes. There are multitude of sins that are not

unlawful by Statute. Some judges have developed the policy of

treating all offenders convicted of similar or identical offences alike.

This is a practice which should not be condoned. It is the offender,

not the offence which should dictate what penalty should be imposed

in the circumstances. The court must stand firm in dealing

humanely with wrongdoers, young or old, native or alien; white or

30 R. E. Knowlton, “Punishment Provisions in the Penal Code”, Burma Law

Journal, 1960, p. 13.


coloured, all as individuals. Revenge or retribution are no part of a

court’s function31

The first issue which a court has to decide after finding an accused

person guilty is to determine whether the offender needs to be dealt

with through ‘individualization’ or by penal sanction. The term

‘individualization’ includes in this context preventive as well as

rehabilitative measures, and an approach different from the concepts

of retribution and general deterrence. After making the choice

between the two conflicting approaches, the court has to select the

appropriate mode out of the available devices in the particular

approach. If the choice made is ‘individualization’ the further issue is

to choose between alternatives like probation and suspended

sentence. If the punitive approach is chosen, the alternatives

available are fine, imprisonment or death sentence in extreme cases.

It is obvious that in case of the imposition of imprisonment or fine,

the quantum of the sanction shall also have to be fixed. The various

parts of the sentencing decisions are referred to as the primary and

secondary decisions.

.

32

The Criminal Procedure Code, 1973 incorporated some provisions

which can be put to use in order to personalise the sentence from

various angles. These provisions reflect the contemporary thinking

that sentencing is an important stage in the administration of

criminal justice and it should be given its due place in the system.

33

31 Supra Note 6, pp. 303-304. 32 Ahmad Siddique, Criminology: Problems and Perspectives, Eastern Book

Cmpany, Lucknow, (2005), p. 354. Also see, Thomas, Principles of Sentencing, Heinmann, London, (1970).

33 Santa Singh v. State of Punjab, (1976) 4 SCC 190.

There is a long range of factors which must be looked into by a court

while making up its mind on the issue of sentencing. The Law

Commission identified the various considerations to be made in its


Forty Seventh Report and they have been cited with approval by the

Supreme Court in its subsequent rulings.34

It is evident that the sentencing authority must have sufficient

information regarding the various personal factors of the accused if

the primary and secondary decisions are to proceed on any scientific

premises. The need for making detailed information about the

offender available to the court has therefore been felt in all the

modern penal systems. The significance and importance of the pre

sentence report has been described by Sheldon Glueck thus: “A pre-

sentence investigation is helpful even if one clings to the conviction

that the chief aim of the criminal law is painful punishment with a

view to general and specific deterrence; all the more necessary it is if

one believes its main objective to be the reform and the rehabilitation

of the offender. Not only is the pre-sentence report is valuable as a

basis for sentence and treatment in the individual case but the

The Commission

summed up the issues relating to sentencing as, “A proper sentence

is a compromise of many factors, including the nature of the offence,

the circumstances- extenuating or aggravating of the offence, the

prior criminal record, if any, of the offender, the age of the offender,

the professional and official record of the offender, the background of

the offender with reference to the education, home, life and social

adjustment, the emotional and the mental condition of the offender,

the prospect of the rehabilitation of the offender, the possibility of the

return of the offender to normal life in the community, the possibility

of treatment or of training of the offender, the possibility that the

sentence may serve as a deterrent to crime by this offender or by

others, and the present community need, if any, for such a deterrent

in respect to the particular type of offence involved.”

34 Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287.


accumulation and the study of many pre sentence reports can lead

to a realistic, rather than a merely theoretical, re-examination of the

entire philosophy of punishment.”

The Congress of the Institutional Penal and Penitentiary Commission

in Brussels held in 1951 recognised the utility of pre-sentencing

reports and some of the resolutions reproduced below indicate the

scope and content of such reports likely to be helpful in the

sentencing process:

1. In the modern administration of criminal justice, a pre sentence report covering not merely the surrounding circumstances of the crime but also the factors of the constitution, personality, character and socio-cultural background of the offender is a highly desirable basis for the sentencing, correctional and releasing procedures.

2. The scope and the intensity of the investigation and report should be adequate to furnish the judge with enough information to enable him to make a reasoned disposition of the case.

3. In this connection it is recommended that criminologists in various countries conduct researches designed to develop prognostic methods.

4. It is further recommended that the professional preparation of judges concerned with peno-correctional problems include training in the field of criminology35

In India, however, there is no such provision in the laws relating to

the administration of criminal Justice except those relating to

juvenile offenders. The issue was considered by the Indian Jails

Committee which opposed the kind of arrangement as in the USA in

view of the peculiarities of the Indian Context in the following words:

“Objection to this is that apart from duplication of the work which it

involved, it would be too early to judge the effect of conviction and of

.



yet unpronounced sentence of the accused. In some States of

America an attempt has been made to get over this difficulty by

appointing in every court an officer whose duty it is after the

previous guilt has been established to make inquiries and to furnish

the judge with the information including a report on his mental

condition which will enable to award punishment wisely and

equitably. The system is said to work satisfactorily in the USA

although even there it was admitted that attempts had been made,

though successful, to influence the court’s officers in favour of or

against the prisoner. In this country we do not think that such a

system would have any chance of success. The many religious and

social gaps which exist in India would inevitably lead to an

unevenness in the officers reports even if direct corruption could be

guarded against and we do not think that it would be wise to imitate

the American system in this respect. At the same time, it does seem

possible through the instrumentality of the public prosecutor,

generally an Advocate of long standing and position to lay before the

court, after the questions of the prisoner’s guilt has been determined,

such reliable information as would enable the court to adjust its

sentence to the needs of the case.”

In the absence of any pre-sentence reports, courts in India have to

fix the punishments on the basis of whatever inadequate information

they receive about the offender in the course of the actual trial. The

Supreme Court has lamented more than once over this kind of

unsatisfactory state of affairs. In the case of P.K. Tejaniv. M.R.

Dange36

36 (1974) 1 SCC 167.

held that, “Finally comes the post-conviction stage where

the current criminal system is the weakest. The court’s approach has

at once to be socially informed and personalised. Unfortunately, the


meaningful collection and presentation of Penological facts bearing

on the background of the individual, the dimension of damage, the

social milieu and what not- these are not provided for in the code

and we have to make intelligent hunches on the basis of materials

adduced to prove guilt..” Referring to the lack of opportunities for the

consideration of sentencing issues in trial courts, the Supreme Court

observed in RamashrayaChakravartiv. State of M.P.37

There is no doubt that the punishment has been liberally fixed in the

code and the pure and simple basis is over deterrent attitude. Its

draconian nature has been voiced against by many authorities on

the subject. Even the authors of the code were conscious of over long

terms of punishment and anticipated revision thereof shortly. The

question that when prescribed punishments are generally only

maximum and in consequence leave scope for adjustment to different

thinking and different circumstances of individual cases, can we not

allow these to stand, may well be anticipated. In this connection, the

researcher feels that Beccaria has given a very sound argument by

way of reply. He says that the very severity of punishment leads man

to dare so much the more to escape it, according to the greatness of

that, “Trial

Courts in this country already overburdened with work have hardly

any time to set apart for sentencing reflection. This aspect is missed

or deliberately ignored by the accused lest a possible plea for

reduction of sentence may be considered as weakening his defence.

In a good system of administration of justice, pre- sentence

investigation may be of great sociological value.”

5.7.1 Rationale behind Maximum Punishment

37 (1976) 1 SCC 281.


the evil in prospect and many crimes are committed to avoid the

penalty of a single one.38

When maximums are at a high level the judge is naturally to use his

discretion for deciding individual cases. Unfortunate thing, however,

is that no guiding principles have been laid down whereby this

discretion may be exercised. So can it be possible that some judge

may misuse his discretion? Say for example, a corrupt judge comes

to occupy the chair and the offender does not meet the expected

demand of the judge. In such circumstances the possibility of the

abuse of power cannot be ruled out and the judge may impose

unnecessarily heavy punishment simply because the maximum laid

down in the code enables him to do so. In view of this, it does not

seem advisable to leave wide discretion, specially when no directives

for use thereof have been specified.

When punishment provision is high the natural urge with the

offender is to sweep away the evidence of the crime so that he is not

detected and put to punishment. Instead of stopping short at lower

crime, say for stealing away money, he may kill the person who has

seen him stealing or has caught him red handed. Since such

situations cannot be ruled out, it will not be a wise policy to keep the

maximum at very high level and thereby take risks which can be

avoided.

39

38 Beccaria, On Crimes and Punishment, W.O. Little and Co., Albany, (1872),

p. 43. 39 Sutherland and Cressy, Principles of Criminology, Rowman and Littlefield

Publishers, Oxford, (1992),p. 382.

5.7.2 Sentence Hearing


Under the Criminal Procedure Code, 1973, Sessions Courts and

magistrate trying warrant cases have to give hearing to the accused

on the question of sentencing after finding him guilty of the offence40

The nature and scope of the provision of Section 235(2) of the

Criminal Procedure Code, 1973, which deals with presentencing

hearing, was explained by the Supreme Court in Santa Singh v. State

of Punjab.

.

Though the system based on pre-sentence reports is yet to come, the

new provisions may at least give some scope to the sentencing issues

in criminal courts in India.

41

40 Section 235 and 248 of Code of Criminal Procedure, 1973. Section 235 of

Code of Criminal Procedure, 1973 states that, “Judgment of acquittal or conviction.

(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

Section 248 of the Code of Criminal Procedure, 1973, If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.

Where, in any case under this Chapter, the Magistrate finds the accused guilty, hut does not proceed in accordance with the provisions of section 325 or section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.

Where, in any case under this Chapter, a previous conviction is charged under the provisions of Sub-Section (7) of Section 211 and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused, take evidence in respect of the alleged previous conviction, and shall record a finding thereon;

Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under Sub-Section (2).

41 (1976) 4 SCC 190.

It was held that the provision was mandatory and failure

to give a hearing to the accused before the sentence is pronounced

vitiates the sentence and it is not just an irregularity curable by

Section 465 of the Criminal Procedure Code. The hearing implies

opportunity to place full and adequate material before the court and,


if necessary, to lead evidence. Despite the mandatory provisions

contained in Section 235(2) of the Code of Criminal Procedure, 1973

and the above cited ruling of the Apex court, the courts quite often

take up the pre sentencing exercise in a somewhat casual manner as

if it was just a meaningless formality. In Anshad v. State of

Karnataka42

Criminal Sentencing specifies the form in which justice shall be

meted out to convicted defendants. Today it is characterized by what

appears to be arbitrary disparities. Some criminals get very harsh

sentences; many receive grossly different sentences for essentially

equivalent crimes; and a shockingly large number go unpunished.

Moreover, the decisions of the courts and of parole boards have gone

largely unmonitored. These conditions have weakened the system’s

credibility and nurtured cynicism among defendants.

, the Supreme Court criticised the sessions judge for

giving the sentencing decision on the day of conviction itself and even

this was done in a cryptic manner in just one paragraph of the

judgment. As pointed out by the court, the trial judge completely

ignored the purpose of Section 235(2) which displayed lack of

sensitiveness on his part as regards sentencing.

5.8 CONSIDERATION FOR DETERMINING PUNISHMENT

43

One difficult problem relating to the sentencing process is the lack of

uniformity in the quantum of punishment given by different courts

for the same or similar offences. Obviously, it would be unreasonable

to expect uniformity of a very high degree since penology is not the

kind of discipline where a readymade formula for a precise nature

can be applied to meet the various situations, nor do all judges and

42 (1994) 4 SCC 381. 43 Report of The Twentieth Century Fund Task Force on Criminal Sentencing,

Fair and Certain Punishment, McGraw-Hill Book Company, New York, (1976), p. vii.


magistrates possess the same attitude while sentencing, since they

are bound to be influenced by their own values and personalities. In

this connection the following observations of Sheldon Glueck are also

pertinent, to mention that, “… it is naïve self-confidence that makes

a judge, or criminologist, or psychiatrist, or probation officer assume

that he can detect the minutest details of difference of personality,

character, motivation, socio-economic background and other subtle

factors and forces that distinguish one offender from another, and on

top of that determine the exact nature and amount of correctional

rehabilitative treatment suited to the individual’s case and to that

case alone. Only God can do that; and since judges are not gods, we

get the following practical results in the ‘individualisation of

sentences.”44

In the matter of punishment for offence committed by a person, there

are many approaches to the problem, keeping in mind the purposes

and theories related to punishment. On the commission of crime,

three types of reactions may generate; the traditional reaction of

universal nature which is termed as punitive approach. It regards

the criminal as a notoriously dangerous person who must be inflicted

severe punishment to protect the society from his criminal assaults.

Under the punitive approach, the rationalization of the punishment

is based on retributive and utilitarian theories. Deterrent theory

which is also a part of the punitive approach proceeds on the basis

that the punishment should act as a deterrent not only to the

offender but also to others in the community. The court in the case

of State of M.P. v. Kashiram,

45

44 Supra Note 32, pp. 398-399. 45 2009 Cri.L.J 1530 SC.

observed that, ‘the Court will be failing

in its duty if appropriate punishment is not awarded for a crime

which has been committed not only against the individual victim but


also against the society to which the criminal and victim belong. The

punishment to be awarded for a crime must not be irrelevant but it

should conform to and be consistent with the atrocity and brutality

with which the crime has been perpetrated, the enormity of the crime

warranting public abhorrence and it should “respond to the Society’s

cry for Justice against the criminal”.

The other approach is the therapeutic approach. It regards the

criminal as a sick person requiring treatment, while the third is the

preventive approach which seeks to eliminate those conditions from

the society which were responsible for crime causation. The

therapeutic approach aims at curing the criminal tendencies which

were the product of a diseased psychology. There may be many

factors, including family problems. We are not concerned with those

factors as therapeutic approach has since been treated as an

effective method of punishment which not only satisfies the

requirements of law that a criminal should be punished and the

punishment prescribed must be meted out to him, but also reforms

the criminal through various processes, the most fundamental of

which is that in spite of having committed a crime, he should be

treated as a human being entitled to all the basic human rights,

human dignity and human sympathy. It was under this theory that

the Apex court in a stream of decisions, projected the need for prison

reforms, the need to acknowledge the vital fact that the prisoner,

after being logged in jail, does not lose his fundamental rights or

basic human rights and that he must be treated with compassion

and sympathy.46

46 Sunil Batra (I) v. Delhi Administration, AIR 1978 SC 1675, Charles Sobraj v.

Superintendent, Central Jail, Tihar, AIR 1978 SC 1514.


Here in India, statutory provision for psychotherapic treatment

during the period of incarceration in the jail is not available, but

reformist activities are systematically held at many places with the

intention of treating the offenders psychologically so that he may not

repeat the offence in future and may feel repentant of having

committed a dastardly crime. It was also stated in the case of Rijov.

State of Kerala,47 that, “of course, criminals should be punished.

Therefore, complete therapeutic approach may not be possible.

Moreover, there are no sufficient facilities available to adopt that type

of approach in full measure”. In the case of Gurmukh Singh v. State

of Haryana48

(a) Motive or previous enmity;

in a conviction the Supreme Court laid down the

following principles for awarding punishment: “these are some

factors which are required to be taken into consideration before

awarding appropriate sentence to the accused. These factors are only

illustrative in character and not exhaustive. Each case has to be

seen from its specific perspective. The relevant factors are as under:

(b) Whether the incident had taken place on the spur of the moment;

(c) The intention/knowledge of the accused while inflicting the blow or injury;

(d) Whether the death ensued instantaneously or the victim died after several days;

(e) The gravity, dimension and nature of injury;

(f) The age and general health condition of the accused;

(g) Whether the injury was caused without premeditation in a sudden fight;

47 2010 Cri.L.J 1315 Ker (DB). 48 2010 Cri.L.J 450 SC.


(h) The nature and size of the weapon used for inflicting the injury and the force with which the blow was inflicted;

(i) The criminal background and adverse history of the accused;

(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but death was because of shock;

(k) Number of other criminal cases pending against the accused;

(l) Incident occurred within the family members or close relations;

(m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/deceased to the hospital immediately to ensure that he/she gets proper medical treatment?

It has been very aptly indicated in Dennis CouncleMCG Dauthav.

State of California,49

49 402 US 183: 28 l d 82D 711.

that, ‘no formula of a full proof nature is possible

that would provide a reasonable criterion in determining a just and

appropriate punishment in the infinite variety of circumstances that

may affect the gravity of crime. In the absence of any full proof

formula which may provide any basis for reasonable criteria to

correctly assess various circumstances germane to the consideration

of gravity of crime, the discretionary judgment in the facts of each

case, is the only way in which such judgment may be equitably

distinguished’.

5.8.1 Factors Relevant for Sentencing

The Sentencing process requires consideration of both aggravating

and mitigating factors. At its most basic, it involves considering:

- What sentence does seriousness of the offence itself merit?


- Can that sentence be reduced in light of mitigation relating to the offender?

- Role of Discretion

- Considering the proportionality Quotient etc.

5.8.1.1 The Classification and Measurement of Seriousness

Seriousness determines whether either of the sentencing thresholds

has been crossed; indicates whether a custodial, community or other

sentence is the most appropriate; and is the key factor in deciding

the length of a custodial sentence, the onerousness of requirements

to be incorporated in a community sentence and the amount of any

fine imposed50

Sr. No.

.

In modelling the sentencing guidelines the major problem which

seeks concern is how to design categories which accurately reflect

case ‘seriousness’. The concern is how the contents of one box differ

from the contents of the next box or how does one ‘level’ or ‘type’ of

robbery differ in seriousness from another? The table below displays

the methods of assessing seriousness in few countries:

Country Determining Seriousness

1. United States A software programme, developed to implement the United States Federal Sentencing Guidelines, which calculates a seriousness score for each case, taking into account a formidable range of data.

2. European Jurisdictions They have narrative descriptions of the factors which affect the seriousness written into sentencing legislation.

3. England and Wales David Thomas in 1999 compiled a huge loose leaf compendium which can be read as jurisprudence of how judges in the jurisdiction have assessed seriousness. Morrison in 2000 produced a similar encyclopaedia for Scotland



More recently, the Sentencing Guidelines Council has issued Final Guidelines on the Overarching Principles of Seriousness.

There are very large numbers of factors which may be taken into

account in assessing seriousness. There is considerable

disagreement internationally about what factors are and how they

should be taken into account. Some jurisdictions, such as England

and Wales, allow judges considerable discretion in assessing

seriousness. At the other extreme, the Federal Sentencing Guidelines

produced by the US Sentencing Commission have effectively

produced an objective definition of seriousness by limiting the range

of factors which can be taken into account and quantifying the effect

on sentence of these factors. It is argued that the guidelines have

produced injustice by treating all different cases in a uniform

pattern. Many judges and academicians are unhappy with the

guidelines because of its quantitative approach to seriousness which

fails to consider the relevant factors involved51

Culpability is the initial factor in determining the seriousness of an

offence. There are generally four levels of culpability:

.

Culpability as a Factor in Determination of Seriousness

52

(a) Intention to cause harm

(b) Recklessness as to whether harm is caused

(c) Knowledge of specific risks entailed by actions but does not intend to cause the harm that results

(d) Negligence

Culpability is greater if: Culpability is lower if:

(i) The offender deliberately (i) A greater degree of provocation 51 Supra Note 9, p. 159. 52 Supra Note 3, p. 294.


causes more harm than is necessary for the commission of offence; or

(ii) The offender targets a victim who is vulnerable

than normally expected

(ii) Mental illness or disability

(iii) Youth or age, where it affects the responsibility of the individual defendant

(iv) The fact that the offender played a minor role in the offence.

Previous Conviction as a factor in Determination of Seriousness

It is argued that the court must treat each previous conviction as an

aggravating factor if (in the case of that conviction) the court

considers that it can reasonably be so treated having regard, in

particular, to53

(a) The nature of the offence to which the conviction relates and its relevance to the current offence, and

(b) The time that has elapsed since the conviction.

In other words, an offence is to be regarded as more serious if

committed by someone with relevant previous convictions (relevance

depending on how old the previous convictions are, and how similar

in type are to the present offence). It remains the case that a

custodial sentence may be imposed because of previous failures to

respond to non-custodial sentences. It was held in an English case of

Bowles54

Opinions about Offence-Seriousness are:

that, ‘it should be borne in mind, however, that even if the

offender has a bad record, the defence may argue for a non custodial

sentence to give the offender ‘one last chance’ to break the cycle of

offending.

55

53 Id, p. 297. 54 [1996] 2 Cr App R (S) 248. 55 Supra Note 15, pp. 105-107.


• Violent offences are usually rated as most serious, followed by property, offences against individuals and then white collar crimes.

• Older people and woman tended to regard all crimes as somewhat more serious than younger people and men.

• People with less formal education and living in smaller communities tend to regards all crimes as more serious.

• Crucial difference may be that between premeditated or planned offences and sudden or Impulsive offences. These differences in culpability exert a powerful effect on sentencing practice and may well influence people’s judgment of crime.

Public opinion offer general assistance to any policy maker pondering

on the comparative seriousness rankings of different offences. Some

offences have come to be regarded as much more serious due to

greater publicity. One such example is causing death by rash and

negligent driving: at one time this was treated as a mere motoring

offence, but increasing realization of the loss and devastation has led

to public concern to which the courts have responded by increasing

levels of sentence.

5.8.1.2 Role of Discretion in Sentencing

There is an absence of articulated criteria for determining sentences.

Judges are given vast discretion in sentencing offenders, and the

parole boards have like discretion in releasing them. Under the

current sentencing system, the state legislature rarely decides what

sentence a “typical” violator of a criminal statute should receive.

Instead they generally determine only what maximum and minimum

sentence for a given offence will be.56


5.8.1.2.1 Judicial Discretion


What is construed as fair or just depends on dominant ideas about

social justice and on the theoretical approach which is taken to

understanding the notion of punishment itself. The principles of laws

most likely to lead to the ‘best’ justice are, consequently, a matter of

continual debate but there is a consensus that it would be unjust if

an agency or individual could use their power to impose and

implement whatever punishment they wished to impose. Justice in

sentencing then, requires at the very least that those individuals who

undertake the sentencing of convicted criminals are constrained by a

set of principles, be they moral, legal or religious and by framework

of rules. Further, in a democracy, sentencing may not be perceived

as just if those rules and principles are not acceptable to the

electorate. The proper control and exercise of discretion is

consequently, crucial in the quest for justice in sentencing and

punishment57

The force of Justice Cadozo’s statement is as applicable to the

judiciary as to anyone else: ‘the great tides and currents which

engulf the rest of the men do not turn aside in their course and pass

the judges idly by’.

: “Discretion is one of the most contentious concepts in

criminal justice and related circles because it is so important and yet

so difficult to define…Indeed it is the day to day discretionary action

of police officers, prosecutors, defence lawyers, judges, psychiatrists,

prison, probation and immigration officers among others, which are

‘stuff of justice’ and which makes for justice or injustice”.

58

57 Susan Easton and Christine Piper, Sentencing and Punishment: The Quest

for Justice, Oxford University Press, New York, (2005), p. 30. 58 Supra Note 10, p. 173.

If we consider discretion to be operating on a

continuum from complete to no discretion available to those who

must make sentencing decisions in individual cases, it can be argued


that outcomes at both ends are unjust. At one extreme, sentencing is

unjust because there are no constraints whatsoever on the sentence

who has complete discretion to make decisions, if he so wishes,

based on personal prejudices and whims.

Since K.C. Davis published Discretionary Justice in 1969 a strand of

academic thinking has regarded discretion, as he did, as the major

source of injustice and something to be confined, structured and

checked. At the other end of the spectrum is the sentence who has

no discretion because the rules and principles are so tightly drawn,

with all potential factors accounted for, that the sentence is simply

the technician who feeds in the data and reads the answer, in this

case the sentence. This too might be viewed as potentially unjust in

that it could not take account of any individual circumstances that

had not been foreseen. The logical conclusion is that justice is to be

seen between the two ends of this discretion spectrum59

Magistrates and other judges enjoy a considerable discretion as to

the choice of sentencing aim, to assessment of seriousness of the

offence, to the admission of mitigating and aggravating factors, and

to the choice of penalty. Discretion is founded upon the immensely

powerful, though arguably mythical, notion of judicial independence:

a notion that in most countries require only that government should

not interfere in the individual case. In various jurisdictions it has

been inflated, at least in the minds of the judiciary, to suggest that

any attempt by government to influence sentencing is

unconstitutional. Despite the double validity of this extreme

interpretation of judicial independence, it has been acted as an

important bulwark against legislative attempts to limit or structure

judicial powers of sentencing. Even where structures have been

.



erected they leave sentencers with considerable latitude to determine

exactly how any given sentence should be implemented. The moment

of sentencing has an important dramatic impact that might be lost in

the intricacies of justifying one penalty over another or cataloguing

the factors taken into account in mitigation or aggravation.60

Generally, there are few if any rules, standards or guidelines,

formally established through mandatory legislation, rule making, or

regulation, to guide the exercise of judicial or administrative

sentencing discretion. Judicial discretion is thus very broad in most

jurisdictions, with judges having considerable flexibility to tailor the

sentence to individual defendant. It is also believed that in those

jurisdictions where the sentencing structure is more indeterminate,

judicially imposed sentences tend to be longer. The area over which

the administrative discretion may be exercised is also very wide.

Almost every state has a parole or early release system in which an

administrative agency is granted discretionary authority to release

the prisoner from confinement after a specific part of his judicially

imposed term or maximum has been served or at any time after the

prisoner has begun serving his sentence. The difference between the

earliest possible time a prisoner becomes eligible for release and the

latest possible time he may be released under a given sentence tends

to be vast, especially where long sentences are imposed by the

courts. Also, to mention a large proportion of offenders are placed on

probation simply because there is no room for them in overcrowded

prisons. Those whom the judge decides should be imprisoned are

often given sentences with relatively high maximums, on the

understanding that the parole boards will release them earlier if the

circumstances warrant it. The passing of the responsibility for the



length of the sentence to the parole board gives the board significant

flexibility to tailor, it is presumed, that the length of the confinement

to the prisoner’s needs and performance.61

How far rules should constrain the sentence is a matter of debate.

There are constitutional issues about the independence of the

judiciary on the one hand and the implementation of democratically

decided policy on the other, but the idea that discretion is the

opposite of formal justice, arising from debates around the concept of

the rule of law, ‘has spawned a series of by now familiar criticisms’.

Foremost among the criticisms is the argument that a wide

sentencing discretion leads to inconsistency of sentencing.

62

61 Supra Note 22, pp. 13-15. 62 Supra Note 57, p. 32.

A

further argument against the availability of wide discretion is that

discretion diminishes the possibility of accurately predicting

sentence outcome: sanctions cannot give a clear deterrent message

to past or potential offenders, solicitors and barristers are unable to

advise their clients effectively. Further, if judges or magistrates tend

to sentence at the top end of what is legally permissible, ‘over

sentencing’ occurs. This can lead to a crises of resources for the

government. Too wide a sentencing discretion could also make it

difficult for a democratically elected government to impose its desired

sentencing policy. In practice, sentencing discretion and resulting

sentencing outcomes must be a government concern: the policy

imperatives and the constraints- the techniques and the tools by

which sentencing discretion is ‘structured’ can take many forms. The

more obvious ones are the rules relating to the availability and choice

of punishments, and to the maximum and minimum amounts of


punishment allowed in a particular jurisdiction. They might also be

financial or administrative constraints63

Lord Reid suggested in D.P.P v. Ottewell

.

The problematic nature of this exercise also contributes to the

difficulty of undertaking research in this area. One solution has

been to analyse cases in terms of particular factors accepted as

important in sentencing to see whether courts are imposing

similar sentences on similar kinds of offender. A problem arises if

differences are ‘proven’: it is vacuous to conclude that disparity

has been discovered and that a uniform policy must be adopted if

there is no indication of what the right policy is. Research results

are also countered with the argument that no two cases are the

same and that research cannot pick up the crucial differences.

On the other hand, ‘Magistrates and judges… place a particular

value upon their experience in sentencing. Now if this experience

is to be of value, then all cases cannot be unique, they must be

comparable in some respects.’ Whatever the result of such

exercises and whether they focus on geography, race, gender or

class, whether disparity is proved to ‘actually’ happen or whether

there is only a perception that it does, the policy concern is the

same, whether the legitimacy of the sentencing process is being

undermined in the eyes of the public.

64

63 Id, p. 33. 64 1968 (3) All E.R.

, that every judge would

award the same punishment of each offence is not supported by

evidence. It was rather tentatively suggested by the Attorney General

that there is a ‘tariff’ for each kind of offence which is varied upwards

or downwards according to the circumstances of the offence and the

character of the accused. Offences of a particular kind of offence


which is varied upwards or downwards according to the

circumstances of the offence and the character of the accused.

Offences of a particular kind, however vary so vastly in gravity that

there cannot and should not be any ‘normal’ sentence and there is

no workable standard by which to judge whether any particular

sentence is extended beyond what is ‘normal’.

Sometimes, particular sentences are passed by judges according to

their assessment of what will be of benefit to the public generally.

Lord Donovan expressed it thus:

“Judges have always felt, themselves entitled to deal with a persistent offender by increasing the sentence which they would have passed if he were not. This is not to punish the offender again for his past crimes. Nor is it always primarily for the protection of the public. It may simply be because in the judge’s view the sentences passed for previous offences have proved to be an insufficient deterrent and that the effect of a longer sentence must be tried perhaps in the offender’s own interest; or it may be that repetition has itself increased the gravity of the offence. Eventually in some cases a stage is reached where it becomes clear that progressively increasing sentences are not a deterrent; and the protection of the public against a persistent offender then comes to the forefront of the considerations which the judge must take into account.”

Many a time, judges award sentences that may be called exemplary

punishment for the same crime simply because such ‘crimes’ have

become prevalent. There may be confrontations with the police or

trade union activities like ‘bandhs’ (Lockouts) which, in the opinion

of the judge, need to be curbed in the interest of law and order. This

could end up being plain unjust. Lord Asquith has an interesting

comment to make on this: “… this may be expedient; it may even be

imperative. But one thing it is not: it is not just. The guilt of the man

who commits a crime when it happens to be on the increase is no

greater than that of another man who commits the same crime when


it is on the wane. The truth is that in such cases the judge is not

administering strict justice but choosing the lesser of two practical

evils. He decides that a moderate injustice to the criminal is a lesser

evil than the consequences to the public of a further rise on the

crime-wave.” This kind of value judgment also affects the difference

in approach between one judicial decision and another.65

Aggravating circumstances surrounding the crime itself

5.8.1.2.2 Range of Judicial Discretion in Considering Aggravating and Mitigating Factors

The sentencing judge shall conduct a sentence hearing for purposes

of establishing mitigating and aggravating factors set forth by the

defence and the prosecution. The decisions about mitigating and

aggravating factors actually define the detail of any sentencing

framework grounded in proportionality. It is the ways in which

sentencing practice deviates from the principle that the punishment

should fit the crime that constitutes the interesting Penological

questions.

(1) Aggravating Factors given Consideration by Judges

large number of victims, particularly vulnerable victim (e.g., blind old newsstand operator, etc.), desire for personal profit, pleasure-seeking ("thrills"), leadership of the criminal enterprise, unwillingness to make restitution, large sum of money (or value of goods) stolen, victim treated particularly cruelly during course of offense.

Aggravating circumstances relating to the criminal's background

on probation or parole at time of crime, organized crime connections, large number of prior offenses, large number of prior incarcerations, prior violations of probation and/or parole, defaults on prior court appearances, social class.

Aggravating circumstances relating to the criminal's conduct at and about the time of

perjury at trial, insistence on going to trial, refusal to cooperate with authorities,

65 Supra Note 10, pp. 179,181.


the trial contemptuous behaviour at trial, refusal to testify against co-defendants, refusal to cooperate in making future cases (testifying before grand jury, etc.), high sentence recommendation by district attorney, unsympathetic recommendation by probation department, lack of contrition.

Aggravating circumstances relating to the criminal's future dangerousness

other similar crimes committed after this one (while on bail), continuing drug problem, refusal to participate in therapy, relative youth of offender, race, need to deter others in community from engaging in similar conduct, desire to incapacitate particular offender for protracted period.

Some other relevant factors which aggravate offence seriousness:66

1. The defendant played a minor role in the crime.

(a) Where the victim is especially vulnerable (b) Breach of Trust (c) Premeditation and Professionalism (e) Group Offending (f) Offending whilst on bail (g) Offence Prevalence (h) Racially Motivated Offending

(2) Mitigating Factors

The following may be considered by the sentencing judge as

mitigating factors:

2. The defendant committed the crime under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his conduct.

3. The defendant exercised extreme caution in carrying out the crime.

4. The victim or victims provoked the crime to a significant degree by their conduct.

66 Supra Note 1, pp. 57-58.


5. The defendant believed he had a claim or a right to the property.

6. The defendant was motivated by a desire to provide necessities for his family or himself.

7. The defendant was suffering from a mental or physical condition that significantly reduced his culpability for the offense.

8. The defendant because of his youth or old age, lacked substantial judgment in committing the crime.

9. The amounts of money or property taken were deliberately very small and no harm was done or gratuitously threatened against the victim or victims.

10. The defendant, though technically guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated his conduct.

5.8.1.3 Consistency as an Important Value in Sentencing

All judges would accept that it is an important aim of justice that like

cases be treated alike. Judges do not refer to data about the past

sentencing practices of the court; they only occasionally refer to

other decided cases. Judges do not articulate what makes the case

the same and what makes it different. The reasons for the same

are67

(a) They do not do it because there is no formal requirement for them to do so.

:

(b) More importantly, it is an impossible task because there is no systematic structure to which they can refer for assistance.

(c) Consistency is an overarching norm or principle and judges are uncomfortable with this.

5.8.1.4. Proportionality Principle



The core of proportionality doctrine is ‘how deserved sentences

should be decided in ordinary cases’. Proportionality Principle has a

major role in sentencing guidelines: the penalties grossly

disproportionate in relation to the gravity of the offence were

perceived as unfair.

5.8.1.4.1 Rationale of Proportionality

The theory holds that, the primary basis for scaling punishments,

should be the principle of proportionality requiring the severity of the

penalty to be proportionate to the seriousness of the criminal

conduct of which the defendant has been convicted. A variety of

possible justification have been suggested, some based on crime

prevention, and others based instead on fairness grounds related to

the censuring features of punishment.68

The argument for proportionality involves the following three steps:

69

1. The State’s sanctions are against proscribed conduct should take a punitive form; that is visit deprivation in a manner that expresses censure or blame.

2. The severity of a sanction expresses the stringency of the blame.

3. Hence, punitive sanctions should be arrayed according to the degree of blameworthiness of the conduct.

Also, Von Hirch allows some increases of penalty for past crimes on

the rationale that penalties for a first offence should be somewhat

less than is deserved. Because a first offence may be out of character

and result from extenuating situational conditions, first offenders

may be less blameworthy than it appears and should be given the

68 Andrew Von Hirsch, Proportionate Sentencing, Oxford University Press, New

York, (2005), p. 132. 69 Supra Note 28, p. 125.


benefit of the doubt. For some number of subsequent offences, a

gradually disappearing discount may be appropriate. Thereafter,

each offence should receive its full deserved, proportionate

punishment.70

The first account of the principle of proportionate sanctions was

utilitarian, and was provided over two centuries ago by

CesareBeccaria and Jeremy Bentham. These theorists advocated a

tariff of graded penalties, based on objective of crime prevention,

especially general deterrence. When people offend, Beccaria and

Bentham argued, it is preferable that they commit lesser offences

rather than serious crimes. Hence, the State should grade its

prescribed sanctions according to the seriousness of offences, so that

potential offenders would be induced (to the extent that they decide

to offend at all) to prefer petty thefts over burglaries, burglaries over

violent crimes and so forth, Failure to observe the principle of

proportionality in sentencing would result in a misdirected structure

of disincentives: those choosing to offend might as soon commit

grave crimes as lesser ones. When the proportionality principle is

thus defended on grounds of crime preventive efficacy and nothing

more, it loses its status as an independent ethical requirement and

remains subject to whatever dilutions appear to be needed in the

name of crime control.

5.8.1.4.2 Beccaria and Bentham’s Deterrence Argument

71

70 M. Tonry, “Proportionality, Parsimony, and Interchangeability of

Punishments”, A Reader on Punishment, Oxford University Press, New York, (1994), p. 143.

71 Supra Note 68, pp. 132-133.

5.8.1.4.3 The Inhibition-Reinforcement Argument


Continental penologists, even when utilitarian in general outlook,

have tended to recognize the limitations of general deterrence as a

guide to sentencing policy. As an alternative, they have stressed the

role of punishment as a reinforcer of citizens, moral inhibitions

against crime. The criminal sanction, Johannes Andenaes asserts, is

a 'concrete expression of society's disapproval' of criminal acts, and

thereby 'creates conscious and unconcious inhibitions against

crime'. The norm-reinforcing function is sometimes said to provide

the basis for the principle of proportionality. The German criminal

law scholar Claus Roxin contends, for example, that a penalty

structure in which penalties are kept commensurate with the gravity

of crimes will be perceived as more just, and being so perceived, will

better strengthen citizens self-restraint and respect for law.

Disproportionate sanctions are said to risk weakening the moral

influence of the penalty structure72

The principle of proportionality does not, in our judgment, rest

primarily on crime prevention consideration. It is grounded, instead,

on the blaming character of punishment. Punishing someone

consists of inflicting a deprivation on him, because he has

purportedly committed a wrong, under circumstances and in a

manner that conveys disapprobation of the offender for his wrong.

The visitation of censure, is a central justifying feature of

punishment. The requirement of proportionate punishment is,

instead, derived directly from the censuring implications of the

criminal sanction. Once one has created an institution with the

.

5.8.1.4.4 The Censure Argument



condemnatory implications that punishment has, then it is a

requirement of justice, not merely of efficient crime prevention, to

punish offenders according to the degree of apprehensibility of their

conduct. Disproportionate punishments are unjust not because they

possibly may be ineffective or counterproductive, , but because they

purport to condemn the actor for his conduct and yet visit more or

less censure on him than the degree of blameworthiness of that

conduct would warrant73

BRITAIN

Criminal Justice Act 2003- Section 143(1)

.

The argument in favor of the principle of proportionality is, in brief,

the following: since punishment does and should covey blame, its

amount should reflect the degree of blameworthiness of conduct.

This argument, however, needs to be articulated more fully. Stated

schematically, the case for proportionality involves the following

three steps:

Step 1: The state's sanctions against specified kinds of injurious conduct should take a punitive form; that is, visit deprivations in a manner that expresses censure or blame.

Step 2: The severity of a sanction expresses the stringency of the blame.

Step 3: Hence, punitive sanctions should be arrayed according to the degree of blameworthiness (i.e. seriousness) of the conduct.

TABLE: COMPARISON OF PROPORTIONALITY PRINCIPLE PROVISIONS

In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.

UNITED STATES Construction of sentencing grids which classify offences into various groups and

73 Id, pp. 134-135.


then assign guideline sentences to them, leaving the courts with more or less discretion.

FINLAND

Article 6 of Penal Code

Punishment shall be measured so that it is in just proportion to damage and danger caused by the offence and to the guilt of the offender manifested in the offence.

SWEDEN

Swedish Criminal Code- Chapter 29

Sentences should be based on the penal value of the offence: the penal value is determined with special regard to the harm, offence or risk which the conduct involved, what the accused realized or should have realized about it, and the intentions and motives of the accused.

5.8.1.4.5 Scaling Proportionate Sanctions

Professor Morris's view is one he calls 'limiting retributivism' a mixed

model somewhere between full retributivism and pure penal

utilitarianism. Desert, he contends, supplies only the upper (and

possibly lower bounds) on the severity of the penalty that can justly

be levied; within these bounds, crime prevention aims (eg. deterrent,

incapacitative or rehabilitative considerations) should be decisive.

Desert thus can serve only as a limiting, not a determining principle.

In his words:

‘Desert is not a defining principle; it is a limiting principle. The

concept of 'just deserts' sets the maximum and minimum of the

sentence that may be imposed for any offence and helps to define the

punishment relationships between offences; it does not give any

more fine-tuning to the appropriate sentences than that. The fine-

tuning is to be done on utilitarian principles’.74

Ordinal Scaling: it relates to comparative punishments, and its

requirements are reasonably specific. Persons convicted of crimes of

like gravity should receive punishments of like severity. Persons

74Id, pp. 137-138.


convicted of crimes of differing gravity should receive punishments

correspondingly graded in their degree of severity. The requirements

of ordinal proportionality are not mere limits, and they are infringed

when persons found guilty of equally reprehensible conduct receive

unequal sanctions on ulterior grounds (i.e Crime prevention). Ordinal

proportionality involves three broad requirements:75

(a) The first is Parity- when offenders have been convicted of crimes of similar seriousness they deserve penalties of comparable severity. This requirement does not necessarily call for the same penalty for all acts within a statutory crime category- as significant variations may occur within that category in the conduct’s harmfulness or culpability. But it requires that once such within category variations in crime seriousness are controlled for, the resulting penalties should be of the same degree of onerousness.

(b) Rank Ordering: punishment should be ordered on the penalty scale so that their relative severity reflects the seriousness-ranking of the crimes involved.

(c) Spacing: spacing depends upon how precisely comparative gravity can be calibrated- and seriousness gradations are likely to be matters of rather inexact judgments.

Parameters of Ordinal Proportionality

1. The foremost modern attempt to establish some parameters for ordinal proportionality is that of Andrew von Hirsch and Nils Jareborg. Their approach, which deals only with crimes against individual victims, is to determine the effect of the typical case of particular crimes on the living standard of victims. The first question to be asked is what interests are violated or threatened by the standard case of the crime, and they identify four generic interests:

(i) Physical integrity: health, safety and the avoidance of Physical Pain;

(ii) Material support and Amenity: includes nutrition, shelter and other basic amenities;



(iii) Freedom from humiliation or degrading treatment; and (iv) Privacy and autonomy

2. Once the nature of the interest violated has been settled, the second step is to assess the effect of violating that interest on the living standards of the typical victim. These effects are branded into four levels:

(i) Subsistence: survival with maintenance of elementary human functions- no satisfactions presupposed at this level;

(ii) Minimal well being: maintenance of a minimal level of comfort and dignity

(iii) Adequate well-being: maintenance of an ‘adequate’ level of comfort and dignity

(iv) Significant enhancement: significant enhancement in quality of life above the merely adequate level.

3. A further step is to integrate into the calculation a judgment of culpability, which in some instances may have a considerable effect on the ultimate ranking of an offence. In terms of culpability therefore, one question is the degree of purpose and awareness which the offender had (intention, knowledge etc.) and another question is the magnitude of the harm or wrong to which that mental element related. If the offender intended an assault but caused a death, one should not treat it as an intentional causing of death.

4. A further component is the remoteness of the offence from the occurrence of the harm. The law contains several offences which do not require the actual infliction of the harm concerned, such as offences of attempt. And preparatory offences (possession of an offensive weapon). A scale of offence- seriousness should discount the level of particular offences according to their remoteness from the resulting harm, but the extent of that discounting is likely to be a matter of controversy.

Therefore, characteristics which can be best considered and be applied to any conduct prohibited by the criminal law:

(i) Four or more harm dimensions: physical integrity, material support and amenity, freedom from humiliation, privacy/autonomy, integrity of the administration of justice;


(ii) Living standard impact or benefit in the typical case: subsistence, minimal well being, adequate well being, enhanced well being

(iii) Map on to a seriousness scale of for example five levels (iv) Culpability: planned, impulsive, knowing, reckless,

negligent and so on; adjust level on seriousness scale accordingly

(v) Remoteness: completed, attempted, risked, preventive offence; degree of involvement or participation in the offence; adjust level on seriousness scale accordingly

(vi) Aggravation and Mitigation: assess the various factors, and adjust the level on seriousness scale accordingly; and transfer from seriousness scale to commensurate sentence

Cardinal Proportionality: There may be limits on the severity of

sanction through which a given amount of disapproval may be

expressed, and these constitute the limits of cardinal or non-relative

proportionality. Consider a scale in which penalties are graded to

reflect the comparative seriousness of crimes, but in which overall

penalty levels have been so much inflated that even the lowest

ranking crimes are visited with prison terms. Such a scale would

embody a convention in which even a modest disapproval

appropriate to low ranking crimes is expressed through drastic

intrusions on offenders’ liberties. The distinction between the ordinal

and the cardinal proportionality explains, however, why

proportionality becomes a significant constraint on the ordering of

penalties. Once the anchoring points and magnitude of the penalty

scale have been fixed, ordinal proportionality will require penalties to

be graded and spaced according to their relative seriousness, and

require comparably severe sanctions for equally reprehensible acts76

There are at least five difficulties in application of enforceability

.

77

76 Id, p. 129. 77 Supra Note 70, p.145.

:


1. Strong proportionality conditions require objectification of categories of offenders and offences that are oversimplified and over inclusive.

2. Proportionality arguments are often premised on objective legal measures of desert, typically current and past crimes, rather than on the subjective degree of moral culpability expressed by the offender, under particular circumstances and conditions.

3. Strong proportionality conditions run head on into ‘just deserts in an unjust society.

4. Strong proportionality conditions presuppose that imposition of offenders deserved punishments is an overriding moral imperative rather than one of several competing ethical considerations. Punishment schemes that attach high value to proportionality necessarily ignore the differing material conditions of life, including poverty, social disadvantage etc.

5.8.1.4.6 Proportionate Non-Custodial Sanctions

Imprisonment and particularly, imprisonment for significant

durations is a severe penalty. Under a proportionality-oriented

scheme, this sanction should therefore be reserved for crimes of a

serious nature. Other, less serious offences should ordinarily be

punished by less onerous non-custodial sanctions. A properly

constructed penalty system therefore requires norms and principles

guiding the use of such sanctions.

Martin Wasik and Andrew von Hirsch sketched a model. The Wasik-

von Hirsch scheme contains the following main elements:

• Non- custodial sanctions would be graded and arranged to reflect the degree of seriousness of the crime of conviction. 'Intermediate sanctions' – that is, non custodial sanction of the middle range severity – could be employed only for crimes of medium seriousness, and not for lesser crimes.

• Substitution would be permitted among sanctions of comparable onerousness, but with policy-based limitations on how extensive that substitution may be.


• There would be significant restrictions on the severity of the back-up sanctions that may be used against offenders who violate the conditions of a non-custodial sanction.

5.9 GUIDING PRINCIPLES FOR SENTENCING

Study of penal laws of our country shows that the apportionment of

the sentence is left entirely to the discretion of the judges for almost

all offences and it, therefore, happens that the sentences sometimes

passed for nearly alike offences by two different judges are grossly

disproportionate. Since the offences have been defined in general

terms, only maximum terms of punishments have been indicated.

Therefore, the judges have to apportion the quantum of punishment

according to the gravity or otherwise of the various offences within

the prescribed maximum. The judges in deciding the quantum often

find themselves in a quandary, as to the principles by which they

should regulate their discretion. The result has been inequality of

punishments awarded by different courts for the similar type of

cases, sometimes in the disregard of the established principles which

are intended to reduce inequality to a minimum. These principles are

deliberately not stated in the Indian Penal Code, 1860 or any other

statutory law so as to have binding effect on judges. Therefore, they

have adopted different principles for their own guidance; there being

no system of regular conferences for judges, differences in approach

are not discussed or reconciled. There is need to develop basic

parameters to regulate the judicial discretion.

Changed objective of punishment has created further problems in

the matter of determination of punishment. Our criminal law

especially penal code was framed in neo-classical age and its

objective was deterrence. It has now lost its former position and

engulfed by the reformatory theory. As a matter of fact, the emphasis


has shifted from crime to criminal in the matter of fixing the

sentence. Sir John Buckmill said, “It is now recognized that the

hardest and the most difficult task of those who are set as judges

over the crimes of misdemeanor of their fellowmen is that most

important question i.e. what is the proper penalty. Few however, I

hear make serious study of this almost unwritten branch of criminal

jurisprudence to adjust the punishment so as to make it appropriate

should be the aim and to balance it, so that it justly fits the gravity of

the offence but does not shock the public conscience is no easy

task.”

5.9.1 Rules Governing Sentence of Death

There is no way to remedy the occasional mistake that results in the

execution of the innocent because life taken away cannot be brought

back. There is withering danger of executing the innocent. It is also

the case of the abolitionists that some people are executed despite

strong mitigating circumstances like the following:

(i) That the offence was committed under the influence of extreme mental or emotional disturbance.

(ii) The age of accused; if the accused is young or old, he shall not be sentenced to the death;

(iii) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;

(iv) The probability that the accused can be reformed and rehabilitated. The state shall by evidence prove does not satisfy the conditions;

(v) That the accused acted under the duress or domination of another person;


(vi) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct78

Besides the mitigating factors, the following are the reasons for not

awarding death sentence:

.

1. The offender being under eighteen years of age.

2. There has been no intention to commit murder, the offence falling under the fourth clause of Section 300, Indian Penal Code, 1860.

3. The murder, though intentional, having been committed without premeditation, and in the heart of passion, without special brutality.

4. The murder having been committed upon grave provocation, the provocation not being both grave and sudden so as to reduce the offence to culpable homicide not amounting to murder.

5. Reasonable doubt as to the sanity of the offender at the time of committing murder, actual insanity not being proved.

6. Where murder has been committed by more than one person, and it appears that the offender acted under the instigation of another, and did not take a principal part in committing the murder.

Reasonable doubt about the age of the accused on the date of the

offence is also stated to be one of the considerations". This is not

intended to be an exhaustive statement of reasons for not passing a

capital punishment. In each case the trial judge must exercise his

own discretion with deliberation. The extreme penalty of the law

should be reserved for cases of deliberate murder, for cases where

murder is committed to facilitate the commission of some other

78 Retrieved From <http://crime.about.com/od/death/a/mitigating.htm>

Last visited on 26th March 2013 at 1:43 IST.


offence or to avoid arrest for an offence, and for other heinous cases

of murder.79

Death sentence is neither an unreasonable restriction on right to life

nor is impermissible for violation of due process of law under Article

21 of the Constitution. Capital punishment or death sentence cannot

be described as unusual because that kind of punishment has been

with us from ancient times right up to the present day. The Law

The authors of the Indian Penal Code, 1860 had also wisely placed

death sentence for certain heinous crimes. The authors of the code

stated: "We are convinced that it ought to be very sparingly inflicted,

and we propose to employ it only in cases where either murder or the

highest offence against the State has been committed ... to the great

majority of mankind nothing is so dear as life, and we are of the

opinion that to put robbers, ravishers and mutilators on the same

footing with murderers is an arrangement which diminishes the

security of life.... Those offences are almost always committed under

such circumstances that the offender has it in his power to add

murder to his guilt.... As he has almost always the power to murder,

he will often have strong motive to murder, in as much by murder he

may often hope to remove the only witness of the crime which he has

already committed. If the punishment of the crime which he has

already committed be exactly the same with the punishment for

murder, he will have no restraining motive. A law which imprisons

for rape and robbery and hangs for murder, holds out, indeed, if it be

rigorously carried into effect, a strong motive to deter men from rape

and robbery, but as soon as a man has ravished or robbed, it holds

out to him a strong motive to follow up his crime with a murder."

79 Retrieved from

<http://civilliberty.about.com/od/capitalpunishment/f/penalty_murder.htm> last visited on 26th March 2013 at 14:24 IST.


Commission of India, in its 35th

(a) Basically, every human being dreads death.

Report, after carefully sifting all the

materials collected by them, recorded their views regarding the

deterrent effect of capital punishment as under: In our view, capital

punishment does act as a deterrent, the main points that have

weighed with us in arriving at this conclusion:

(b) Death, as penalty, stands on a totally different level from imprisonment for life or any other punishment. The difference is one of quality, and not merely of degree.

(c) Those who specifically qualified to express an opinion on the subject, including particularly the majority of the replies received from State Government, Judges, Members of Parliament and Legislators and Members of the Bar and police officers – are definitely of the view that the deterrent object of capital punishment is achieved in a fair measure in India.

(d) Whether any other punishment can possess all the advantages of capital punishment is a matter of doubt.80

In the leading case of Bachan Singh the Supreme Court was called,

upon to decide the constitutional validity of death sentence. The

Constitution Bench, by a majority of 4:1 upheld the validity of capital

sentence but held that only in exceptional and rarest of rare cases,

death sentence can be imposed. The court laid down that in certain

and rarest rare cases, death sentence can be imposed.

The court laid down certain principles which were explained in a

subsequent decision of Machhi Singh81

1. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;

which may be summarized as

under:

80 Retrieved from < http://www.studymode.com/subjects/death-penalty-

from-a-sociological-perspective-page1.html> last visited on 26th March 2013 at 14:27 IST.

81 (1983) 3 SCC 470.


2. Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the crime;

3. Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;

4. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weight and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In Bachan Singh Case82

1. if the murder has been committed after previous planning and involves extreme brutality; or

Constitution bench considered the following

circumstances as aggravating circumstances which may call for

imposition of death penalty:

2. if the murder involves exceptional depravity; or

3. if the murder is of a member of any of the armed forces of the Union or of a member of any police force of any public servant and was committed:

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of duty as such member or public servant whether at the time of murder, he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

4. If the murder is of a person who had acted in the lawful discharge of his duty under section 43 of the Code of Criminal

82 (1980) 2 SCC 684.


Procedure, 1973, or who had rendered assistance under section 37 and section 129 of the said Code.

The constitutional validity of death sentence has been challenged

before the Supreme Court also. In Jagmohan Singh v. State of U.P83

In EdigaAnamma v. State of A.P.

.

it was argued that the 'right to live' was basic to the freedoms

guaranteed under Article 19 of the Constitution. The Supreme Court

rejected the contention and held that capital punishment cannot be

regarded as unreasonable per se or not in the public interest and

hence could not be said to be violative of Article 19 of the

Constitution. Again in Bachan Singh Case larger Bench of the

Supreme Court (majority view) held that the death sentence as per

provisions in section 302 of the Penal Code and section 354(3) of the

Criminal Procedure Code, 1973 was not violative of Articles 14, 19

and 21 of the Constitution. Justice Bhagwati (as then he was)

dissented and held: "The death penalty provided under S. 302 of the

Penal Code read with Section 354 sub-sec. (3) of the Cr.P.C. (1974) is

unconstitutional, void and is totally arbitrary and unreasonable."

The majority view has been affirmed in many cases. The present legal

position appears to be a balanced one. To have it on the statute book

but to use it rarely seems to be the best compromise between the

extreme attitudes of the retentionists and abolitionists of the capital

punishment. However, there has been a gradually expanding opinion

against capital punishment. Justice Krishna Iyer has strongly stood

for abolition. His strong aversion to it may be clearly seen in his

numerous judicial pronouncements as well as academic writings.

84

83 (1973) 1 SCC 20. 84 AIR 1974 SC 799.

the Supreme Court stated its

preference for life imprisonment to capital punishment. Justice

Krishna Iyer, speaking for majority made following observations: "We


assume that a better world is one without legal knifing of life, given

propitious social changes. Even so, to sublimate savagery in

individual or society is a long experiment in spiritual chemistry

where moral values, socio-economic conditions and legislative

judgement have a role. Judicial activism can only be a signpost, a

weather vane, no more. We think the penal direction in this

jurisprudential journey points to life prison normally, as against

guillotine, gas chamber, electric chair, firing squad or hangman's

rope. 'Thou shall not kill' is a slow commandment in law as in life,

addressed to citizens as well as to states, in peace as in war.

In the State of U.P. v. Rajendra Prasad85

1. 'Special reasons' necessary for imposing death penalty must relate not to the crime as such but the criminal and inspite of the crime being shocking in a particular instance the criminal may not deserve death sentence.

" the majority judgement

given by Justice Krishna Iyer indicates a strong attempt towards

abolition of capital punishment. The Supreme Court went to the

extent of asserting that it had the right to evolve the 'supplementary

principles' if the legislative text was 'too bold to be self acting', and

even if this appeared to possess the flavour of law making.

Thus Supreme Court while reducing the death sentence to life

imprisonment, though very heinous nature of murders were

committed, laid down the following important points:

2. The correct approach is to read into Section 302, I.P.C. and section 354, Cr.P.C. the human rights and human trends in the Constitution. If the murderous operation of a die-hard criminal jeopardizes social security is a persistent, planned and perilous fashion, then his enjoyment of fundamental rights may be rightly annihilated. So, one test for imposition of death sentence is to find out whether the murderer offers such a

85 [1979] 3 S.C.R. 78.


traumatic threat to the survival of social order. (Examples: A manufacturer of drug mixing poison in the drugs; a trader responsible for causing death by adulteration for his private profit; murderous band of dacoits committing armed robbery).

3. In the case of a murder if the public prosecutor informs the court at the stage of sentence hearing under section 235(2) of the Cr.P.C. that the State as prosecutor is of the opinion that the case is not one where extreme penalty is called for and if the sessions judge agrees with the submission, the matter should end there. If on the other hand the public prosecutor states that the case calls for the extreme penalty prescribed by law, the court would be well advised to call upon the public prosecutor to state and establish, if necessary by leading evidence, facts for seeking the extreme penalty of death sentence.

In BishnuDeo Shaw v. State of West Bengal86 and Dalbir Singh v.

State of Punjab87

86 (1979) 3 SCC 714. 87 (1979)3 SCR 1059.

The Supreme Court speaking through Justice

Krishna Iyer reaffirmed the principles laid down in Rajendra Prasad's

case. However, the ruling in Rajendra Prasad's case has not been

accepted unanimously. In Bachan Singh case of Punjab the Supreme

Court diluted the view of the court in Rajendra Prasad's case about

the awarding of the death sentence. It was observed: "From a reading

Ss. 354(3) and 235(2) and other related provisions of the Code of

1973, it is quite clear that for making the choice of punishment or for

ascertaining the existence or absence of "special reasons" in that

context, the court must pay due regard both to the crime and the

criminal. What is the relative weight to be given to the aggravating

and mitigating factors, depends on the facts and circumstances of

the particular case. More often than not, these two aspects are so

intertwined that it is difficult to give a separate treatment to each of

them. This is so because 'style is the man'.


In many cases, the extremely cruel or beastly manner of the

commission of murder is itself a demonstrated index of the depraved

character of the perpetrator. That is why, it is not desirable to

consider the circumstances of the crime and the circumstances of

the criminal in two separate water-tight compartments. In a sense, to

kill is to be cruel and therefore all murders are cruel. But such

cruelty may vary in its degree of culpability and it is only when the

culpability assumes the proportion of extreme depravity that "special

reasons" can legitimately be said to exist.

There are numerous other circumstances justifying the passing of

the lighter sentence; as there are countervailing circumstances of

aggravation. It cannot be over emphasised that the scope and the

concept of mitigating factors in the area of death penalty must

receive a liberal and expansive construction by the courts in

accordance with the sentencing policy writ large in section 354(3).

Judges should never be blood-thirsty. Hanging of murderers has

never been too good for them. Facts and figures, albeit

incomplete, furnished by the Union of India, in the instant case,

show that in the past, courts have inflicted the extreme penalty

with extreme infrequency – a fact which attests to the caution and

compassion which they have always brought to bear on the

exercise of their sentencing discretion is so grave a matter. It is,

therefore, imperative to voice the concern that courts, aided by

the broad illustrative guidelines indicated ' will discharge the

onerous function with ever more scrupulous care and humane

concern, directed along the high road of legislative policy outlined

in S. 354(3), viz., that for persons convicted of murder, life

imprisonment is the rule and death sentence an exception. A real

and abiding concern for dignity of human life postulates

resistance to taking a life through law's instrumentality. That


ought not to be done save in the rarest of rare cases when the

alternative option is unquestionably foreclosed."

Following the formula laid down in the Bachan Singh's case, the

Supreme Court held that the death sentence should not be

passed except in rarest of the rare cases. In a subsequent case

the Supreme Court has laid down some further guidelines on the

question of imposing death sentence: "The extreme penalty of

death need not be inflicted except in gravest cases of extreme

culpability. Before opting for the death penalty the circumstances

of the 'offender' also required to be taken into consideration along

with the circumstances of the 'crime'. Life imprisonment is the

rule and death sentence must be imposed only when life

imprisonment appears to be an altogether inadequate

punishment having regard to the relevant circumstances of the

and provided, and only provided, the option to impose sentence of

imprisonment for life cannot be conscientiously exercised having

regard to the nature and circumstances of the crime and all the

relevant circumstances.

A balance sheet of aggravating and mitigating circumstances has

to be drawn up and in doing so the mitigating circumstances

have to be accorded full weightage and a just balance has to be

struck between the aggravating and the mitigating circumstances

before the option is exercised. In order to apply these guidelines

inter alia the following questions may be asked and answered: (a)

Is there something uncommon about the crime which renders

sentence of imprisonment for life inadequate and calls for a death

sentence? (b) Are the circumstances of the crime such that there

is no alternative but to impose death sentence even after


according maximum weightage to the mitigating circumstances

which speak in favour of the offender?

If upon taking an overall global view of all circumstances in the

light of the aforesaid proposition and taking into account that

answers to the questions posed hereinabove, the circumstances of

the case are such that death sentence is warranted, the court

would proceed to do so. In a case the accused killed his wife as he

could not provide money for operation. He killed his two children

also as he felt that they would be neglected after their mother.

The crime was committed out of poverty and not actuated by any

lust, vengeance and gain. In these circumstances life

imprisonment was awarded and not death sentence. But where

murder was committed with extreme brutality death, sentence

was imposed. Where predetermined and cold blooded murder of

entire family including the innocent children was committed with

lethal weapon when they were fast asleep it was held that

imposition of death sentence on accused was not inappropriate.

The murder of Smt. Indira Gandhi, then Prime Minister of India by

security guards was considered by the court as a rarest of rare case

and accordingly the death sentence awarded to the assassin and his

conspirator was held just and proper. Delay in execution of death

sentence was held by Supreme Court in some cases as a ground for

commutation of death sentenced to life imprisonment. In one case

where there was delay in the execution of death sentence of more

than 2 years, the accused was allowed to invoke the aid of Article 21

of the Constitution and death sentence was commuted to life

imprisonment. "Prolonged detention to await the execution of a

sentence of death is An unjust, unfair and unreasonable procedure


and the only way to undo the wrong is to quash the sentence of

death.

The dehumanising factor of prolonged delay in the execution of a

sentence of death has the constitutional implication of depriving a

person of his life in an unjust, unfair and unreasonable way as to

offend the constitutional guarantee that no person shall be

deprived of his life or personal liberty except according to

procedure established by law. The appropriate relief in such a

case is to vacate the sentence of death. Delay exceeding two years

in the execution of a sentence of death should be considered

sufficient to entitle the person under sentence of death to invoke

Article 21 and demand the quashing of the sentence of death. The

cause of the delay is immaterial when the sentence is death.

Whatever the cause for the delay, the time necessary for appeal

and consideration of reprieve or some other cause for which the

accused himself may be responsible, it would not alter the

dehumanizing character of the delay. Article 14, 19 and 21 of the

Constitution are not mutually exclusive. They sustain, strengthen

and nourish each other. They are available to prisoners as well as

free men. Prison walls do not keep out Fundamental Rights. A

person under sentence of death may also claim Fundamental

Rights. The rule of Article 21 is that any procedure which

deprives a person of his life or liberty must be just, fair and

reasonable. Just, fair and reasonable procedure implies a right to

free legal services where he cannot avail them. It implies a right to

a speedy trial. It implies human conditions of detention,

preventive or punitive. "Procedure established by law" does not

end with the pronouncement of sentence; it includes the carrying

out of sentence. However in a subsequent case this principle has

been overruled. It has been held that delay in execution of death


sentence exceeding two year by itself does not entitle person

under sentence of death to demand quashing the sentence and

converting it into sentence of life imprisonment.

A prisoner who has experienced living death for years, on end is

entitled to invoke the jurisdiction of the Supreme Court for

examining the question whether, after all the agony and torment

he has been subjected to, it is just and fair to allow the sentence

of death to be executed. That is the true implication of Article 21

of the Constitution. Prolonged delay in the execution of a death

sentence is unquestionably an important consideration for

determining whether the sentence should be allowed to be

executed. But no hard and fast rule can be laid down that delay

exceeding two years in the execution of a sentence of death

should be considered sufficient to entitle the person under

sentence of death to invoke Article 21 and demand the quashing

of the sentence of death on the basis that two years are sufficient

for appeal and consideration of reprieve. The present trend of the

Court is greatly liberalised and is towards minimising death

sentence. The death sentence is allowed only in those cases where

there is not the slightest trace of any extenuating circumstances.

5.9.1.1 Uncertainty in Sentencing System

From the above discussion we have, therefore, seen that there has

been uncertainty in the sentencing system in India. In every

judgement where death sentence or life imprisonment is to be

imposed every judge has to discover the 'special reasons' to bring a

case in the category of 'rarest of rare' and in this process where there

are no 'specific guidelines' in the statute, there is every possibility of

an error of judgment. And once an error of judgment is committed


the man goes to gallows. And once death sentence is executed, it

cannot be recalled, and it will amount to violation of Articles 14 and

21 of the Constitution of India. Jeeta Singh's case is a living example

where the two accused got commutation of life imprisonment, when

one accused Jeeta Singh had already been sentenced to death. And

the Supreme Court in its judgement had to make the following

observations: "The fate of Jeeta Singh has a posthumous moral to

tell. He cannot profit by the direction while we propose, to give

because he is now beyond the process of human tribunals."

In the words of Justice Chinnappa Reddy, 'the death penalty' rather

than deterring murder actually deters the proper administration of

criminal justice.... Human justice can never be infallible. The most

conscientious judge is no proof against sad mistakes. Death penalty

is the brooding giant in the path of reform and treatment of crime

and criminals inevitably sabotaging any social or institutional

programme to reformation. It is the 'fifth column' in the

administration of justice. The burden of capital punishment therefore

falls more frequently upon the ignorant, the impoverished and the

underprivileged."

Former Chief Justice of India, Justice P.B. Gajendragadkar said: "A

judge is yet to be born who has not committed a mistake." Whereas

Justice Krishna Iyer has made the following observations on judicial

'adhocism: "judicial adhocism or judicial impressionism dominate the

sentencing exercise and the infliction of death penalty suffers from

the vice of arbitrariness and caprice."

While awarding or refusing to award death sentence shows how some

factors weigh with one judge, some with another some with the third

and so on resulting in chaotic arbitrariness in the imposition of


death penalty. Justice Krishna Iyer therefore suggested that Death

Sentence must be dissolved and life sentence substituted. And

similar views have been expressed by another activist Judge Justice

P.N. Bhagwati, "Death Penalty in its actual operation is

discriminatory, for it strikes mostly against the poor, and the

deprived sections of the community and the rich and the affluent

usually escape from its clutches." In Bachan Singh's dissenting

judgement, Justice Bhagwati emphatically said: "It violates Article 14

of the Constitution. It eliminates reformative purpose. I am morally

against death penalty. Death penalty does not serve any social

purpose or constitutional value."

5.9.1.2 Disparity Reduction

Though sentencing disparity cannot be eliminated altogether, yet

efforts can be made for reducing it to the minimum level. The

strategies indicated are the better training of judicial personnel and

the coordination of sentencing policies through sentencing councils.

It has also been suggested that the job of sentencing should be taken

away either wholly or partly from judicial personnel and the same

should be entrusted to boards consisting of experts trained in

disciplines like social work, psychiatry and allied disciplines.

Provision for appellate review of sentences is also made in criminal

laws which go a long way in reducing the disparities. Improving

sentencing skills should be an important part of any scheme which

aims to make sentencing practices more consistent. The trial judge

should be made well-conversant with all the alternative sentences

and their application in appropriate situations. He should be trained


to evaluate pre-sentence and psychiatric reports in cases where they

are made available to him88

Certain suggestions are put forth for the imposition of penalties as

deduced from principles laid down in plethora of cases

.

5.9.2 Imposition of the Sentence of Imprisonment

89

Court shall impose the penalty of Imprisonment in the following cases

:

The following grounds while not controlling the discretion of the court shall accord weight in favor of withholding the sentence of Imprisonment.

(a) when the offence committed is of violent and abhorrent nature.

(b) when the offender has voluntarily joined a group and committed in their company a serious crime

(c) when there is undue risk that other penalty or measure of control over the offender will not stop him from committing another crime

(d) when the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution

(e) When probation and fine have been tried earlier and have remained ineffective in stopping him from crime.

(a) Offence is of technical nature and not criminal in character.

(b) Offender is a pregnant woman or has a new born baby

(c) Offender voluntarily surrendered to the investigating agency and expressed sincere repentance before discovery of the offence.

(d) Offender is youthful or is of old age

(e) the offenders conduct neither caused nor threatened serious harm

(f) the offender acted under strong provocation

(g) there were substantial grounds tending to excuse or justify the offender’s criminal conduct, though not complete defense under general exceptions given in IPC

(h) the offender has restored the property in respect whereof the offence was committed, or has compensated or will compensate the victim of his criminal conduct, for damage or injury sustained.

5.9.3 Criteria for Imposing Fine

88 Supra Note 32, p. 401. 89 Supra Note 29, p. 223.


If in view of the above considerations, the court feels that the

offender does not need imprisonment, the court shall impose fine90

The Model Penal Code of the American Law Institute has laid down

the following criteria for the imposition of fines

:

1. The offence is the result of culpability of the offender.

2. The court is of the opinion that a fine is specially adapted to deterrence of the crime involved or to the correction of the offender.

3. The offence is not grave and its punishment by imprisonment is alternated with fine in penal code.

4. The offence is of technical nature and not criminal in character.

91

90 Supra Note 32 pp. 383-384. 91 Article 702 of the Model Penal Code of the American Law Institute.

:

1. The court shall not sentence a defendant only to pay a fine, when any other deposition is authorized by law, unless having regard to the nature and circumstances of the crime and to the history and character of the defendant, it is of the opinion that the fine alone suffices for protection of the public.

2. The court shall not sentence a defendant to pay fine in addition to a sentence of imprisonment or probation unless:

(a) the defendant has derived a pecuniary gain from the crime; or

(b) the court is of opinion that a fine is specially adapted to deterrence of the crime involved or to the correction of the offender

3. The court shall not sentence a defendant to pay a fine unless:

(a) the defendant is or will be able to pay the fine; and (b) the fine will not prevent the defendant from making

restitution or reparation to the victims of the crime

4. In determining the amount and method of payment of fine, the court shall keep in view the financial resources and the nature of burden that its payment will impose on the offender.


5.10 NEED FOR COMPREHENSIVE POLICY

The sentencing codes of most jurisdictions do not expressly adopt a

particular theory of punishment, and where sentencing objectives are

declared, they are often inconsistent.92 In no area of contemporary

criminal law is there as much controversy, as much doctrinal

movement and as much diversity of approach throughout the

country as there is in matters relating to sentencing.93

Under current system, state legislatures rarely decide what sentence

a ‘typical’ violator of a criminal statute should receive. Instead, they

generally determine only what the minimum and maximum sentence

for a given offense will be. As a consequence, attention has focused

primarily on extremes cases that warrant extremely different

punishments, legislatures tend to set the minimum and maximum

sentences at very great distances from each other. Since the range of

legislatively authorised punishment will be same for all acts coming

within that statute, the difference between the lowest and the highest

sentence for a given crime tends to be vast, even for relatively minor

offenses. Generally, there are few if any rules, standards or

Thoughtful consideration of sentencing problems and possible

reforms cannot proceed without an initial acknowledgment of the

conditions in our nation’s penal institutions. It is the belief of that

structural reforms in sentencing should not lead to an increase in

the already large population inhabiting the nation’s prisons. The

imposition of sentence is, “probably the most critical point in the

administration of criminal justice”.

92 MirkoBagaric, Punishment and Sentencing: A Rational Approach, Cavendish

Publishing Ltd., London, (2001), p. 11. 93 Sanford H. Kadish, Stephen J. Schulhofer and Carol S. Steiker, Criminal

Law and its Processes, Wolters Kluwer, Aspen Publishers, New York, (2007), p. 1044.


guidelines, formally established through mandatory legislation, rule

making or regulation, to guide the exercise of judicial or

administrative sentencing discretion. Nor are discretionary decisions

on sentencing generally subject to judicial review, except in cases of

clear abuse, which reviewing courts are reluctant to find. Similarly,

the courts have not articulated guidelines for sentencing typical

offenders. Every judge has his own notion of what a fairly typical

crime “deserves”- and these notions are of course disparate in the

extreme.94

The primary reason for establishing a sentencing guideline system is

to maximize the application of the rule of law to decisions which are

of great significance to the public insofar as they convey the degree of

censure of the offender for the offence, to victims and to the offender

themselves. These decisions may involve considerable deprivation of

liberty, restrictions on liberty, or deprivation of money or assets. It is

therefore absolutely right that the rule of law should apply to them

so far as possible: although the sentencing decision will always

require an element of judgment, that judgment should be exercised

within a framework of rules, applying principles and guidelines set

out in advance, such that court decisions are consistent in their

approach and reasonably predictable. However, these are not

persuasive reasons against a structured framework that includes

sentencing guidelines set out the main criteria and the courts apply

them, this should deliver some consistency of approach, while

leaving an element of discretion to be exercised, within the

framework, in individual cases. How consistent and predictable the

sentencing outcomes are then depends on more detailed factors such

as (i) the narrowness of the sentencing ranges, and (ii) how many



other factors (mitigating or aggravating) are allowed to operate

without significant constraint. These are the matters to which close

attention should be paid during the process of developing sentencing

guidelines. It is vital to preserve room for the sentencer to exercise

judgment in applying the principles and guidelines to the facts of the

particular cases, but it is equally important not to use this as an

argument against having sentencing guidelines. The key issue is the

extent of the discretion versus the extent of constraint from the

framework.95

The essence of guidelines is to provide different ranges of sentence

for different levels of seriousness of each type of offence and within

each range. The aim of the technique is to structure judicial

discretion- not to take it away, but to provide a framework within

which the court can locate the particular offence with which it is

dealing and then reflect the facts of that case (the aggravating and

mitigating factors) by placing it appropriately within or outside the

relevant range. There are sound constitutional reasons for

introducing such a framework. Sentencing decisions are of great

significance to the public (insofar as they convey the degree of

censure of the offender for the offence, to victims and to the other

offenders). Alike England, there is a need to set up the Sentencing

Advisory Panel which devise draft guidelines, to consult members of

the public and its statutory consultees about them and prepare its

advice. The advice then is presented before the Sentencing Guideline

Council, which is empowered to issue ‘definitive guidelines’.

96

Sir Igor Judge sounded warnings against interpreting guidelines in a

mathematical fashion, whereby each individual ingredient should

95 Supra Note 15, pp. 417-418. 96 Id, p. 28.


increase or reduce the notional sentence by a prescribed amount, he

stated, “The reality, however, is that the sentencing decision requires

the judge to balance all the ingredients of the case, whether

aggravating or mitigating in order to produce the appropriate

sentence. There is no grid plan. There is no point system. Although,

whether provided by this court or the Sentencing Guidelines Council

in accordance with its responsibilities, remain guidelines.97

The judicial approach to sentencing should be one of compassion

and understanding, all doubts should be resolved in favour of the

offender; reformation and rehabilitation should be the main target of

a sentencing process. Nevertheless, while a judge should be

compassionate and understanding, he must not lose sight of the fact

that the whole criminal process is for the protection of the public and

that the criminal law must be administered and enforced to attain

that purpose and at the same time, maintain the confidence and

respect of the public.

”

98

There are certain sentencing reform suggestions which have been

proposed, which doesn’t find a rational standing, these proposals

are:

99

(a) Flat Time Sentencing: It simply means that the legislature would define one sentence for each crime or degree of crime, that the sentence would be imposed by the judge, and that the sentence would be served in full without any discretion on the part of the parole board to order early release. A number of variations on the theme of flat-time sentencing have been suggested, some with modicum of flexibility at the judicial or administrative stages. Notwithstanding, all flat-time proposals have in common the elimination of all or most judicial and administrative discretion in sentencing and the return to the

97 Martin [2007] 1 Cr App R (S) 14, at [18]. 98 Supra Note 6, p. 301. 99 Supra Note 43, pp. 17-20.


legislature of control over the determination of sentences. The criticism for such type of sentencing is that, by requiring every single defendant convicted under the same statute to serve the identical sentence, it threatens to create a system so automatic that it may operate in practice like a poorly programmed robot.

(b) Mandatory Minimum Sentence: As the term implies, this proposal would eliminate all discretion to go below a certain minimum that must be served, while retaining broad discretion to exceed that minimum up to a statutory maximum. Most proposals for mandatory minimum are limited to certain specific crimes, categories of crime or categories of criminals. There is an objection to Mandatory minimum sentences, that there are certain extremely serious crimes for which imprisonment should be required without regard to the circumstances.

(c) Presumptive Sentencing: The underlying presumption here is that a finding of guilty of committing a crime would predictably incur a particular sentence unless specific mitigating or aggravating factors are established. The process with initiate with the legislature, which would break crimes into several categories. Only in extraordinary and unanticipated circumstances would the judge be permitted to deviate from the presumptive sentence beyond the narrow range permitted by an ordinary finding of aggravating or mitigating factors. Any deviation would be justified in a reasoned opinion subject to a searching review on appeal.

Cases on Sentencing Policy

Sr. No.

Name of the Case/Citation Observation

1. RajendraPralhadraoWasnikv. State of Maharashtra, (AIR 2012 SC 1377).

“Stated broadly, there are the accepted indicators for the exercise of judicial discretion but it is always preferred not to fetter the judicial discretion by attempting to make the excessive enumeration, in one way or another. In other words, these are the considerations which may collectively or otherwise weigh in the mind of the Court, while exercising its jurisdiction. It is difficult to state, it as an absolute rule. Every case has to be decided on its own merits. The judicial pronouncements, can only state the precepts that may govern the exercise of judicial discretion to a limited extent. Justice may be done on the facts of each case. These are the factors which the Court may consider in its endeavour to do complete justice


between the parties”.

2. State of Madhya Pradeshv.-Mehtab, (Cri. Appeal no. 290/2015, dated 13.02.2015)

“we find force in the submission, it is the duty of the court to award just sentence to a convict against whom charge is proved. While mitigating and aggravating circumstance may be given due weight, mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also the victim and the society.”

3. Alister Anthony Pareira v. State of Maharashtra(AIR 2012 SC 3802)

“Sentencing policy is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing and accused on proof of crime. The courts have evolved certain principles: twin objectives 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. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”

4. Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), ( AIR 2013 SC (Cri) 2342)

The Hon’ble Apex Court has dealt with sentencing jurisprudence at length and opined that the principles of sentencing evolved by this Court over the years, though largely in the context of the death penalty, will be applicable to all lesser sentences so long as the sentencing Judge is vested with the discretion to


award a lesser or a higher sentence.

5. Mohd. Arif @ Ashfaq v. The Registrar, Supreme Court of India, (2014 Cri.L.J. 4598),

The Hon'ble Apex Court observed that Crime and punishment are two sides of the same coin. Punishment must fit to the crime. The notion of 'Just deserts' or a sentence proportionate to the offender's culpability was the principle which, by passage of time, became applicable to criminal jurisprudence. It is not out of place to mention that in all of recorded history, there has never been a time when crime and punishment have not been the subject of debate and difference of opinion. There are no statutory guidelines to regulate punishment.

6. State of Madhya Pradesh v. Surendra Singh, (AIR 2015

SC 3980,

Based on the theory of proportionality, it is laid down by Hon'ble Apex Court that, “Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter productive in the long run and against the interest of the society. One of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity, nature of crime and the manner in which the offence is committed. one should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers. Imposition of sentence must commensurate with gravity of offence”.

7. Sangeet&Anr. v. State of Haryana[(2013) 2 SCC 452

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

5.11 CONCLUSION


A criticism is often made that uncertainty in awarding sentences

reinforces the public’s perception that cases before judges are not

decided on the basis of certainties of principle, or have no sure legal

foundations but are settled merely at the whim of the sentencing

judge, and this seriously undermines the administration of the

criminal justice. Suggestions about ways and means of evolving a

sentencing system which will point to some certainties in the

sentencing principles and patterns, thereby reducing the unfair

disparity of sentences, undoubtedly needs careful and helpful

consideration and study by all who are interested in a humane penal

system. But in the ultimate analysis, it has to be accepted that under

our judicial system the personality and the philosophy of the judge

concerned will continue to play a decisive role. There is no way that

the judges can avoid having to make choices. The development of

jurisprudence will suffer seriously if judges shy away from making

choices out of a fear of supposed adverse reaction from conservative

public opinion and inactive legislatures.100

There are certain implications for Sentencing Reforms, such as:

In India, neither the

legislature nor the judiciary has issued structured sentencing

guidelines. Several governmental committees have pointed to the

need for adoption of such guidelines in order to minimize uncertainty

in awarding sentence.

101

1. A range of research techniques are required to understand how sentencing operates as a social practice. These range from an examination of statistical pattern of sentencing, reading and listening to judicial accounts of sentencing, and an analysis of sentencing as a form of legal decision making. None of these on their own allows us to provide a grand theory of sentencing, nor to build a robust model of sentencing that would enable us to predict sentencing decisions accurately. They can, however,

100 Supra Note 10, p. 183. 101 Supra Note 9, pp. 172-173.


provide an account which helps us to understand the social practice of sentencing and which might help to understand the obstacles to reform of sentencing as well as the mode of reform which has the best chance of working in practice.

2. Judicial accounts of sentencing typically relate a narrative of facts and circumstances, from which a sentence emerges through an intuitive process. This discourse of individualized sentencing allows cases to be distinguished from each other as there is an almost limitless range of relevant factors which can be taken into account and no rules which set out with precision how these factors should affect the calculation of the sentence. This discourse recognizes the value of consistency in sentencing, but provides an almost limitless range of ways in which one case can be distinguished from another which effectively means that no rational consideration of consistency is possible.

3. Where judges resist reform they do so not just to defend their power and social capital, not just because they perceive the reform to threaten the pursuit of justice, but also because the reform attempts represent an alien way of thinking about sentencing. The different approaches to reform, narrative guidelines, numerical guidelines or sentencing information systems, all attempt to provide a language for addressing the issue of consistency in sentencing.

4. Reformers need to find ways of convincing judges that there is an alternative to antiquarian way of individualized sentencing.

Thus, formulating a sentencing guideline is not an easy task. It

requires an amalgamation of different thoughts and philosophies.

Discretion must judiciously be exercised as it provides rationale to

the sentencing norm. No numerical guidelines or set standards can

be made mandatory. But suggestive guidelines can be prepared,

which would act as a checklist to ensure fair and just sentence

sentence has been pronounced. Reasoning and Discretionary power

cannot be jotted down in black and white because in a country like

India, diversity brings in a lot of factors. The customs, traditions and


legislations go hand in hand to decide, the legality or illegality of the

act. It may not only vary amongst the class or community but it may

also vary from State to State.

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