This article has been written by Anumay Sethi and has been edited by Oishika Banerji (Team Lawsikho).

This article has been published by Sneha Mahawar.​​


In order for all citizens to be able to exercise their human rights, sovereign states must uphold the rule of law, promote respect for it, and maintain peace. States can fulfill this obligation by enacting the required legislative, executive, and judicial measures. But without appropriate preventive and punitive measures to either restrict or repair the individuals’ wrongful actions, such measures would be ineffective.

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Furthermore, it’s important to realise that wrongful actions have the potential to affect other members of society or society at large. As a result, it is the responsibility of the State to identify and detain the individual responsible for the unlawful behaviour or invasion, and then to subject that person to a fair trial, and, if found guilty, to punish the individual in accordance with the law.

In other words, we may say that each society has a certain amount of social control and that control has an ethical and moral justification. The basis of the concept of social control is justice. Any conduct that deviates in some way from this acceptable behaviour, social custom, or rule is met with a specific sort of punishment. This affliction will vary from society to society. The imposition of a proper, just, adequate, and proportionate penalty is one of the main goals of criminal law. This article aims to discuss the concept of sentencing with respect to India. 

What is meant by ‘sentence’

“Sentences” are declarations in judgments that specify the legal penalty to be applied to a certain offence. When the same is put in action, and is operationalized, it would be termed as ‘punishment’. A sentence is considered to be the predecessor of the actual inflicting of punishment if any. Any country that has sentencing laws has them in place to deter crime and punish offenders. The sentencing guidelines represent how society views and justifies a certain offence. Guidelines for sentencing can be viewed as a method for determining the appropriate punishment for a certain offence.

Both the legislature and the judiciary in India have not established formal sentencing guidelines. Numerous committees have realised the importance of well-considered guidelines. Recognizing the need for such a policy, the judiciary has occasionally laid out certain principles and criteria that courts should take into account when determining punishments. It has also been noted that the absence of sentencing guidelines is resulting in broad discretion, which ultimately results in uncertainty in the awarding of sentences.

Aim of sentencing

The main objective of a criminal trial is sentencing. When the victim is satisfied, justice through punishment serves as a symbol for the current and subsequent generations. Therefore, the ultimate focus of the sentencing policy is to keep an eye on crime and punish offenders.

The development of civilization brought about many forms of punishment that were sanctioned by various societies. For instance, the punishment for offences under Mohammedan law included blood, money, and revenge. For instance, the punishment for offences under Mohammedan law included blood, money, and revenge. According to Hindu law, discretionary punishment was required and favoured Brahmins. The use of harsh trials as a form of punishment was widely known in English law. But penology steadily changed as society developed. Several judicial systems began to explain their punishments, and they eventually came to a point where the emphasis was more on reforming the offender, than on deterring him.

The type of punishment imposed for various offences can be used to determine the underlying philosophy of any criminal justice delivery system. But it is impossible to expect everyone in a system like ours, with so many players, engaged besides the accused and victim, to respond to a specific crime in the same way. For example, the victim might display more emotion than the judge, who is an absolute stranger to both sides. The accused may also come to believe that his actions were justified by stressing the circumstances surrounding them. Judges and other legal professionals are appointed in order to reach an agreement over a certain incident. 

The decision here must consider not only whether a wrong was done or not, but also—and perhaps more importantly—what must be done in the event that a wrong was done. There are lots of choices. The best course of action in a victim-centred system would be to put the victim back in the same situation that existed before the mistake was committed. This is typically utilised in economic crimes and tort situations. In situations of physical, emotional, and psychic harm where rehabilitation is rarely achievable, this cannot be consistently applied. Retribution and rehabilitation are the two choices available in these situations.

In the former, the system focuses on condemnation of the crime as a more important rationale for penalising than any other. Rehabilitation, on the other hand, is more accusation-friendly and advocates reintegrating the subject into society at large. Deterrence, whose core principle is to stop the same event from occurring again, is another prevalent justification for punishment.

According to the White Paper (the sentencing policy, which was introduced into the British parliament), the object of sentencing guidelines should be “dissuading and safeguarding society from evils”. Not only does a lack of a fair conviction policy violate the rights of victims and convicts, but it also breaches the Constitution’s core human right – the right to be treated equally under the law. It is impossible to entirely eliminate the judges’ discretionary authority. However, certain guiding principles that limit a judge’s authority and establish a penalty-based principle can be adopted, allowing the Indian criminal justice system to take a more rights-based approach.

The aim of a punishment framework should be to reform juvenile delinquents or first-time offenders, while acting as a deterrent for repeat offenders or habitual offenders. It is important to strike a balance between the severity and leniency of these penal provisions. In addition, compensation to victims should be provided. The rationale of criminal laws may strike a balance between social norms that apply to both the individual and society as a whole.

Fundamentals of sentencing

Typically, sentencing is considered one of the most important components of criminal laws and is seen as the State’s most invasive and powerful tool. Sentencing is that stage of the criminal justice system where the actual punishment of the convict is decided by the judge. As a result, punishment and sentencing go hand in hand. The main purposes of punishment are to deter criminal activity and to repress antisocial elements in order to safeguard society. Theories of punishment suggest that there are four possible goals for punishment: retribution, prevention, reformation, and deterrence.

The Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872 make up the majority of the criminal justice system in India. A number of special and local laws, such as those prohibiting animal cruelty, defending civil rights, and counterterrorism, supplement the Indian Penal Code, 1860. It’s crucial to remember that substantive penal laws can be effective only when the procedural laws for enforcing them are efficient. The function of the criminal justice system is essentially this.

Although many factors must be taken into account when determining which acts or omissions are punishable, who should receive what punishment, and how severe it should be, these factors include the applicable law, the offender’s role in the commission of the crime, its nature or severity, the availability of evidence against the accused, how the judicial authorities will evaluate this evidence, the offenders’ criminal histories, and eyewitness testimony.

Judges should ideally be interchangeable and mutually consistent, rendering comparable judgments in comparable cases, preventing anyone from unfairly influencing the judge or the proceedings in any way. But because the law cannot foresee every circumstance or determine which laws may apply in a certain circumstance, some discretion is inevitable. Standard principles of justice and due process, reason, and the specifics of each case are expected to fill any gaps in the law’s guidance.

Sentencing in India

The reformative theory is used to administer punishment in India. The punishment imposed shouldn’t be so severe or so light that it fails to have an effect on the offender and serve as a wake-up call for others. It is believed that punishment should be administered in a way that results in changes to a person’s personality and way of thinking.

Penalties in India were defined under Section 53 of the Indian Penal Code of 1860.

The provision discusses the various punishments that the courts may impose for certain offences. The following is a list of them:

1.   Death

2.   Imprisonment for life

3.   Imprisonment, which is of two descriptions: Rigorous and simple

4.   Forfeiture of property

5.   Fine

The fundamental law of the country, the Indian Constitution, has given both the Central and State governments the authority to pass laws governing criminal justice, criminal procedure, and preventive detention. In accordance with Articles 72 and 161 of the Indian Constitution as well as Sections 432 or 433 of the Code of Criminal Procedure, 1973, the Government may commute, condone, or pardon any sentence, including capital punishment and life in prison, that has been imposed and affirmed by a court of law. Even a life sentence may be reduced to a sentence of no more than 14 years in prison.

The judges have complete discretion over how sentences are distributed, and it has been observed that this leads to drastically unequal sentencing practices. In addition, the Cr.P.C. 1973 gives the judge a lot of latitudes after the verdict has been reached. Sections 235, 248, 325, 360, and 361 of the Criminal Procedure Code deal with sentencing. 

To ensure that the offender is given the opportunity to speak for himself and offer input on the sentence to be imposed on him, this section offers a quasi-trial. The reasons given by the criminal might not be relevant to the offence or be legitimate under the law. It is merely for the court to gain a sense of the convict’s social and personal background and determine whether anything will have an impact on the sentencing. A sentence that does not follow Section 235 (2) may be overturned because it violates natural justice. However, this procedure is not required in cases where the sentencing is done according to Section 360.

The main part of judicial discretion comes in S.360 which provides for release of the convict on probation. When there is no immediate threat to society, the section’s goal is to attempt and reform those criminals. This is demonstrated by limiting the section’s application exclusively to situations in which the following circumstances exist:

1.   A woman convicted of offence the punishment of which is not death or life imprisonment

2.   A person below 21 years of age convicted of offence the punishment of which is not death or life imprisonment

3.   A male above 21 years convicted of an offence the punishment of which is fine or imprisonment of not above 7 years.

Additionally, the court may leave the convict without any punishment at all after a simple warning if the crime committed is of a nature that the maximum sentence allowable is 2 years or a simple fine. The court will take into account the different factors related to the convict in making this decision. The court may also order the offender to be arrested again if they fail to follow the rules established at the time of release as described in this section. The offender or the surety must reside or be regularly engaged within the court’s jurisdiction in order to be released under these requirements.

The application of Section 360 is mandated by the Code through Section 361, and in cases when an exception applies, it must be justified clearly. The judge must explain any instances where the punishment imposed falls short of the minimum required by the applicable laws. The failure to record the special reason is an irregularity that has the potential to overturn the judgment on the grounds of injustice. Only trials before the Court of Sessions and warrants cases are eligible under these rules.

Issues associated with the sentencing system in India

The Supreme Court observed, in Soman v. State of Kerala (2021) that “giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges.”

The discretion provided for under the existing procedure is guided by vague terms such as ‘circumstances of the crime’ and ‘mental state and age’. It is true that they can be determined, but the legislature has not specified when these determinations will affect the punishment. Every crime, for instance, is accompanied with circumstances, but the court has the discretion to determine which circumstances are mitigating and which serve as aggravating. Therefore, if one court finds a certain circumstance to be mitigating, another judge would still be free to disregard it as irrelevant (apart from its value as a precedent). Due to this inconsistent application of the law, some judges have abused their discretion on the basis of their personal prejudices and biases.

Judges in India consider many aspects of the case, such as severity, liability, guilt, and sentence. This punishment is solely the consequence of the judge’s thinking, personal bias, and judgment. Section 354(1)(b) of the Criminal Code states that a judge shall state the reasons for the judgment in an awarded sentence. The law’s solution to this question led to a specific logic, such as aggravating and mitigating circumstances, in the decision of the case and in supporting their position regarding the penalty imposed.

Multiple scholarly works on this subject assert that lawmakers should legislate even on such areas wherein the quantum of punishment to be meted out of the offence is prescribed. The majority of criminal laws specify the minimum and maximum punishment/fine that may be imposed in specific circumstances. Complete objectivity in this case, however, is also not acceptable. No two cases would have the same grounding in criminal law. This is because various cases may need different punishments depending on the circumstances surrounding the conduct of the offence, the presence of aggravating and mitigating elements, and other variables.

After the trial is completed, the need for a sentencing policy does not end. Section 360 and Section 361 govern the release of convicts for good behaviour, and the recording of special reasons in cases where the orders are passed by a Magistrate of the second class. Again, every prison authority, each prison circumstance and the type of crime committed by the offender depends on the concept of good.

The Malimath Committee, a panel created by the Ministry of Home Affairs, released a report in March 2003 that underlined the necessity to develop sentencing criteria in order to reduce ambiguity when imposing punishments. It stated, “The Indian Penal Code prescribed offences and punishments for the same. For many offences, only the maximum punishment is prescribed and for some offences, the minimum may be prescribed. The Judge has wide discretion in awarding the sentence within the statutory limits. There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case. Therefore, each Judge exercises discretion according to his own judgment. There is therefore no uniformity. Some Judges are lenient and some Judges are harsh. The exercise of unguided discretion is not good even if it is the Judge who exercises the discretion. In some countries, guidance regarding sentencing option[s] is given in the penal code and sentencing guideline laws. There is a need for such a law in our country to minimise uncertainty in the matter of awarding sentences. There are several factors that are relevant in prescribing alternative sentences. This requires a thorough examination by an expert statutory body.”

The Committee advised further that, in order to bring “predictability in the matter of sentencing,” a statutory committee should be established to lay guidelines on sentencing under the Chairmanship of a former Judge of the Supreme Court or a former Chief Justice of a High Court experienced in criminal law with other members representing the prosecution, legal profession, police, social scientist and women representative.

In 2008, the Committee on Draft National Policy on Criminal Justice (the Madhav Menon Committee), reiterated the necessity of developing a policy and prescribing sentence standards. The Law Minister was mentioned in an October 2010 news story as saying that the government is looking into establishing a “uniform sentencing policy” in line with that of the US and the UK to ensure that judges do not impose varying sentences.

The Supreme Court of India, in State of Punjab v. Prem Sagar & Ors (2008), also noted the absence of judiciary-driven guidelines in India’s criminal justice system, stating, “In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts, except [for] making observations with regard to the purport and object for which punishment is imposed upon an offender, had not issued any guidelines.” The Court stated that the superior courts have come across a large number of cases that “show anomalies as regards the policy of sentencing,” adding, “Whereas the quantum of punishment for the commission of a similar type of offence varies from minimum to maximum, even where the same sentence is imposed, the principles applied are found to be different. Similar discrepancies have been noticed in regard to the imposition of fines.”

No formula of a foolproof nature is possible that would provide a reasonable criterion in determining just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of punishment.

In Alister Anthony v. State of Maharashtra (2012), the Court held that sentencing is an important task in matters of crime. “One of the prime objectives of the criminal law is the imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of [the] crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles, the twin objective of the sentencing policy is deterrence and correction.” What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.

Graduation of punishments

The Indian Penal Code provides us with a broad classification and gradation of punishments. This has been further carved by various judicial decisions on sentencing. However, the following drawbacks apply to these court decisions:

  1. Facts specific: 

Although these rules are stated as Obiter Dicta, the application of such rules in the succeeding judgments is unclear. This argument is illustrated by the use of this test in the case of A. Devendran v. State of Tamil Nadu (1997). There were three murders in this case. The Supreme Court said that the trial court was not justified in issuing the death penalty as the accused had no premeditated plot to kill anyone and the primary goal was to commit robbery. This case should be compared with Gentela Vijayavardhan Rao v. State of Andhra Pradesh (1996), in which the appellant burned a bus full of passengers to death while acting with the intent to rob the vehicle. The sentence provided by the judges of the lower court was the death penalty for convict A and 10 years of rigorous imprisonment for convict B. This was challenged by the convict. The deterrence and retribution theories are reflected in this verdict.

In both cases, the motive is to rob the victim. However, it has been utilised as a mitigating factor in one case and an aggravating element in the other. This demonstrates how the same test has been used in conflicting ways.

  1. Not followed by lower courts: 

Lower courts do not adhere to these rules since they are not legally required to do so. Precedents are typically disregarded or distinguished from the current factual situation so as to give the judge his space to rule on the case.

  1. More of a legislative job: 

It is the job of the legislature to make rules and of the judiciary to interpret and enforce it. It would not be fulfilling or correct to expect and allow the judges to frame the rules by themselves.

  1. Another reason the judiciary should not frame the rules is that it once again comes down to the whims and fancies of the judge framing it. This would merely be a manifestation of the idea that one judge had superiority over all others.

Andrew von Hirsch proposed that while determining proportionality, the process can be divided into steps in order to reach a sentence. These four steps are:

1.   What interests—physical integrity, financial security and comfort, freedom from humiliation, privacy, and autonomy—are at risk or infringed in the typical criminal case?

2.   Effects of violating such interests on a typical victim’s standard of living: minimum well-being, adequate well-being, significant improvement

3.   Culpability of the offender

4.   Remoteness of the actual harm as seen by a reasonable man

Depending on which of the following methods one chooses, different factors determine responsibility.

1.   Determinism: When external causes, such as self-defence or duress, control a person’s behaviour. However, most people have enough autonomy to choose their own course of action, therefore this won’t always be true.

2.   Social and familial background: Low family income, large family, parental criminality, low intelligence and poor parental behaviour.

3.   Individuals are significantly impacted by economic, educational, and employment policies. They have negative effects including deprivation and marginalisation, which encourage the emergence of criminals in society.

The main criticism of this process is that it once more gives the judge broad discretion in evaluating the degree of culpability. The overall effect is that sentencing policy continues to be a mess, with several well-known cases simply elucidating general rules rather than offering courts a comprehensive standard by which to determine the wrongdoers. 

Need for sentencing in India

In India, there is no standard method for imposing sentences. A statute or set of guidelines that balances and outlines the consideration to be given as to the aggravating as well as the mitigating elements involved in the committing of an offence will enable the legal system in meting out the accused the appropriate penalty. Additionally, it will also be in parlance with the common law countries from where we have borrowed most of the laws.

Uncertainty of sentencing

Different provisions of the IPC  govern the punishment and sentencing aspects for various offences. The sections specify the minimum and/or maximum penalties that may be imposed for the offences. The difference between these two ranges, however, offers judges considerable room in deciding the punishment in cases where a sentencing range is available and broad discretion in cases where it is not, for instance, in cases of theft where no maximum punishment is specified. As a result, the sentencing process is unpredictable because some Judges are lenient while others are harsh in their judgment. Hence, there is no certainty or predictability in the quantum of punishment and sentencing that could be granted to the offender. The same was also recognised by the Malimath Committee in the year 2003, which was reasserted by the Madhav Menon Committee suggesting the need for a statutory framework for sentencing guidelines in India.


India has witnessed an increase in appeals as a result of the lack of any laws that regulate sentencing. The party appealing believes that the Judge may have had a prejudicial opinion while passing judgment on the issue of the sentence because of the broad discretion granted to judges, which is one of the reasons for doing so.

Affects the fundamental rights of the offender

All citizens in India are guaranteed the right to equality under the constitution. The right to equality, which ensures that everyone is treated equally before the law, as well as the right to a quick trial are both protected by Article 21 of the Constitution. However, in the absence of sentencing guidelines, the Judges may pass judgments where in the case of similar facts the consequences might differ thus affecting the offender’s entitlement to both rights.

A proper set of sentencing guidelines will therefore aid in guaranteeing uniformity and the administration of justice, thereby building public confidence in the legislature and the judiciary.

Sentencing in the UK and the US

The United States system

The Guidelines are the product of the United States Sentencing Commission and are part of an overall federal sentencing reform package that took effect in the mid-1980s. The Guidelines are now discretionary as a result of US v. Booker (2004), which means that judges may take them into account but are not obligated to use them as a guideline when deciding on a sentence. Despite this, when sentencing criminal defendants, federal judges nearly always utilise the Guidelines at least as a starting point. The judge must provide a written justification for each sentence that deviates from the recommended parameters. The two main considerations under the Guidelines to calculate punishments are:

  1. The conduct associated with the offence and,
  2. The defendant’s criminal history.

The relationship between these two criteria is illustrated by the Sentencing Table[xxviii] in the Guidelines Manual. The Table offers a sentencing range, in months, within which the court may sentence a defendant for each pairing of offence level and criminal history category. There are six criminal history categories and 43 offence levels, and each category carries a different number of criminal history points. For instance, the Guidelines suggest a sentence of 41–51 months for a person found guilty of an offence with a total offence level of 22 and a criminal history category of I. The Guidelines would suggest a sentence of 84–105 months, however, if a person with a significant criminal history (Category VI) committed the same crime in the same way in the same current timeline and not during the earlier guideline periods.

The statutory mission as stated in the 2005 Federal Sentencing Guideline Manual is “…deterring crime, incapacitating the offender, providing just punishment, and rehabilitating the offender. It delegates to the Commission broad authority to review and rationalise the federal sentencing process.” Once again discretion though guided is not completely removed in the case of the US as well.

The United Kingdom system

The Coroners and Justice Act, 2009 governs the sentencing process in the UK. The system provides a guiding principle for the judiciary to use when determining the appropriate level of punishment for a certain offence. The policy’s primary goal is to achieve uniformity while promoting public confidence and proportionality in sentencing.

The rules are strict in that they prevent judges from imposing sentences that fall outside of the range that is specified in the guidelines. However, the particular range is flexible because the courts have the option to diverge from it whenever necessary in the interest of justice.

Apart from the offence-specific guidelines for punishment, the guidelines also provide for general guidelines where the specific offence is not mentioned and the factors that ought to be taken into account by the courts while sentencing the offender. The rules promote clarity in sentencing with regard to the offences committed by the offender by incorporating provisions that ensure transparency in the sentencing process.

The Sentencing Council’s general guidelines contain guiding principles that work together with the offence-specific guidelines. These guidelines are in addition to the offence-specific guidelines, and their application would cover both offences for which there are offence-specific guidelines as well as offences for which there are not.

According to the guidelines, the court must consider Section 164 of the Criminal Justice Act of 2003 while determining the fine to be imposed on the offender. Section 164 states that the fine must be proportionate to the crime committed and must also convey the gravity of the offence. The fine should be set fairly and proportionately so that it justifies the purpose of the punishment and discourages the offender from committing similar offences or obtaining any financial benefit in lieu of such commission of offence. This means that it shouldn’t be less expensive to break the law than to follow it. The fine imposed must be quantified in a manner so as to obligate the shareholders to comply with the provisions of the law.

The Act’s sentencing guidelines have a prescriptive tone due to the way they are written. The courts are required under Section 59(1) of the Coroners and Justice Act, 2009, to adhere to the punishment range indicated in the guidelines while taking into account that justice is done. [10] As a result, the guidelines draw the judiciary’s focus to the significance of guidelines while still allowing the courts to use their discretion to impose an appropriate penalty.



The appointment of a permanent committee

The Coroners and Justice Act established the Sentencing Council, which has a variety of duties, including introducing new guidelines and determining whether existing guidelines are serving their intended purpose. Similar to the preceding suggestion, India may create an ongoing ad hoc group that would be tasked with duties resembling those of the Sentencing Council.

Preparation of a Table for certain offences as against the commission of offence

The General Guidelines should be supplemented with a table listing all of the offences, along with columns listing the possible sentences for each offence, including the maximum and minimum fines.

A special committee headed by a criminal law expert should prepare the offense-specific table while taking into account precedents relating to sentencing, the gravity of the offence committed, and aggravating and mitigating circumstances surrounding the commission of the offence.

Preparation of General Guidelines in conjunction with the offences and penalties already laid down under IPC and CrPC

According to the requirements of Indian society, the legal framework in India may adopt some of the clauses found in the General Guidelines, 2019 published by the Sentencing Council. The centralised guidelines would aid the judiciary in deciding on the sentence for those crimes for which there is no sentencing range established.


The Indian criminal justice system urgently needs an appropriate sentencing policy given the rising crime rates in the country. The goal of introducing such a policy is to reduce the subjectivity that judges use to a minimum while still allowing them the necessary discretion needed in the interest of justice, hence it must not be a strict one. The courts in India currently have to rely on precedents, which also vary depending on the judge’s discretion and the existence of additional aggravating and mitigating circumstances surrounding the offence. If these rules are applied, this will prove to be very helpful. The intention of the sentencing guidelines is to create a just and equitable society in which the rights of victims and criminal defendants, who are now being weakened by the sentencing system, are protected.

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