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This article has been written by Tanisha Prashant, student of Institute of Law, Nirma university. In this article the author discusses about the criminal justice system in India. The article lies on the concept of bringing fairness and consistency while awarding sentences.


In a world which today notices an alarming increase in crime rates, the need to regulate the domain of criminal justice system in every country is the need of the hour. Crime and punishment have today formed a very crucial and delicate aspect of the society; it can no longer be guided by customs and precedents. A fixed regime needs to be brought into force and the subjective element needs to be reduced as much as possible. However a fact that cannot be ignored that no fixed penalties can be induced over the accused because of it being too harsh and too ignorant on the rights of the accused. The accused has the right to avail certain basic human rights which the fixed penalty regime violates. Also, giving discretion to the judges on deciding penalties will also result in violation of fundamental rights.

The article lies on the concept of bringing fairness and consistency while awarding sentences. An underlying rationale can be adopted, a significant improvement to the existing. A balance between the rights of both the victim needs to be achieved before defining a sentencing policy. The Indian criminal justice delivery system lacks a pronounced sentencing policy as in the countries of the United States and United Kingdom. The article also opines that certain principles and policies need to introduce at the part of the legislature, to introduce a certain level of coercive power to stand strong on its rights and also international obligations

The article describes the current sentencing policy in India, the rationales and goals of sentencing, the nature and role of aggravating and mitigating factors, the sentences awarded to various types of crimes and offenders. It also takes into consideration the role of sentencing policy after the trial has been done. 

Principles of criminal justice

Every society exists on a certain amount of social control, and a particular moral ethical rationale underlying it. The concept of social control is guided by the principles of justice. When a person portrays a certain type of deviation from this prescribed mode of behaviour, a social habit or rule, he is inflicted with a certain type of penalty. This infliction will vary from society to society and deviation to deviation. The kind infliction or punishment will depend on both the crime committed and the society. Some societies are concerned only about the victim, whereas some are concerned about reforming the convict rather than punishing. This schematic adopted by a country to punish its offenders can be termed as its sentencing policy. The sentencing policy reflects the measure of judgement and the rationale, the society has for a certain crime. It is the primary rationale guiding the criminal justice delivery system of a country. Sentencing guidelines can be considered as a formula for calculating what is right for a particular crime. This article is not focused about the type of crime but on the type of punishment and the generality it possesses in a criminal justice system. 

Punishment and sentencing though form a union at the end, but are distinct entities and are often confused with each other. They are often used interchangeably and lead to contradictions. Operationalization of the punishment is the sentencing policy. A sentence does the work of stating and defining the punishment stated in the law of land. Sentences are judgements containing punishments for criminal matters. As nouns, sentence and punishment mean that where the former stands for opinion the latter stands for imposition, infliction of penalty. here

In India, punishments are defined in section 53, chapter 3 of the Indian penal code, 1860.  Section 53 of IPC reads that there are six types of punishments available under the law of India, those being, death, imprisonment for life, rigorous imprisonment or simple imprisonment, forfeiture of property and fine. The forms of punishment must satisfy certain principles under criminal law. The type of punishment must be proportional, it should always be in proportion to the crime committed, and it should take into consideration the rights of the offender and the society at large also.

The problem that is underlying the criminal law today is that the purposes of punishment are not being fulfilled in the criminal justice. No sentencing policy has been stated as clearly as the types of punishments, when both of the concepts form important aspects under criminal law. The need for a fixed regime is needed because of the punishment policy being indeterminate and inconsistent. To avoid the disparity in this regard there arises a need for sentencing policy in India. The goal of sentencing policy is to promote a particular just society, protection of rights of both the victim and the convict. It also helps in denunciation.

In India there lies a huge inconsistency and disparity while deciding the punishment and awarding a sentence for a particular offence. For example, punishment for the following offences under the Indian penal code are- 


  • Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
  • Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with [a] fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

If you want to read more about murder – Click Here


The punishment for theft is up to three years’ imprisonment, a fine, or both.

If you want to read more about theft – Click Here


Any person committing the offence of rape shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. After the Nirbhaya case, a juvenile can also be tried as an adult depending upon the circumstances of the case. 

If you want to read more about the Nirbhaya case – click Here

If you to know more about Justice system for rape victims – Click Here

A pattern noteworthy while looking at the punishments prescribed under the penal code is that all the crimes have a certain minimum and a certain maximum punishments. There is no fixed penalty for a particular sort of offence. The gap between the maximum and the minimum punishments affects the sentencing regime in the criminal law majorly. The wide gap between this the focus area of judges while awarding sentences. They exercise latitude of power while deciding cases.

This discretion as to which case deserves the minimum and which case deserves the maximum depends upon the discretion of judges. The judges in India take into account the various factors guiding the case like severity, liability, guilty mind and then award a sentence. This sentence seems wholly an end product of the judge’s mind, his personal prejudices and considerations. This process of application of a judge’s discretion while awarding a sentence to the offender is out rightly reflected in the criminal code under section 354 clause (1)(b)  which says that a judge while awarding a sentence must record the reasons which led him to the decision, also in clause 3 of the same section it is stated that when the sentence concerns itself with death or imprisonment for life special reasons must be laid down . The law in response to above mentioned , while deciding the case and justifying their standpoint on the sentence awarded, gave rise to certain logics like those of aggravating and mitigating circumstances. Aggravating circumstances or factors are those which increase the severity of the crime. While mitigating circumstances are those which decrease the severity of the crime.

In of Raju v. State of Karnataka   this case highlighted that the Indian judiciary is not victim based, the sentence of the convict was reduced just because it was claimed that the victim had an immoral character in the eyes of law.

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

“Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges.” 

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

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

Similarly in the case of Gurdev Singh v. State of Punjab the court awarded death sentence. On the face what looked a case of sheer brutality later revealed a case of unhealthy mind and soul guided by revenge. The judgement of the court could not be undone and the justice delivery failed at a point.

In the case of , Mohd Chaman v. State , Accused had brutally raped and killed a one year old The lower courts having seen the situation as the rarest of the rarest cases imposed death penalty. The lower courts awarded death penalty, but when sent for clarification was overruled by the high court stating that the convict didn’t pose a threat to the society, and reduced the sentence.

Over the period of time, the Indian courts have through inconsistent decision making and faulty rationales have indirectly pointed out the need for a sentencing policy. The concept of aggravating and mitigating factors depends on each case also, the concept of rarest of the rare case is a matter of case and its circumstances .It has not been specified and is completely over the discretion of the deciding person, what might be brutal for one may not be for the other person.

The need for the sentencing policy does not end after completion of the trial. It again comes into play while deciding the probation period of offenders. Section 360 and section 361 governs the release of convicts to be released after a good conduct and special reasons to be recorded in certain cases. Again the concept of good conduct will depend on each jail authority, on each jail circumstances and the type of offence committed by the offender.

The need for the introduction of a sentencing policy was felt by the Malimath committee, established under ministry of home affairs, set up for giving a recommendation on the prevalent criminal justice system. The committee emphasized the wide discretion judges have while deciding case and felt the need to minimize it by regulating law points, and also the power of judges to some extent. The committee asserted the need for an in depth study on the matter by an expert committee. The committee pointed out a new code for classification of offences , other than, cognizable and non cognizable. A social welfare policy should be adopted. Later, in 2008 the Madhava Menon committee, which reiterated the need and made the request of drafting a policy for making a fixed regime and set guidelines for sentencing.

The aim for sentencing policy , as introduced in the white paper (the sentencing policy, when introduced in the British parliament was called the white paper), should be “deterrence and protection of society from evils”. The lack of a proper sentencing policy not only violates the rights of victims and convicts but also the basic fundamental right of a human under the constitution i.e. the right of being treated equally under the eyes of law. Doing away with the discretionary powers of the judges totally is not possible. Also a straight jacket approach to a field like law which is ever changing is also difficult. But what can be established a certain guiding principles which lower the amount of discretion that a judge may apply, and also establishing a principle underlying the punishment policy to give a more rights based approach to the Indian criminal justice system.


In any legal system, justice for the members of the society if of prime importance. In this domain, protection of rights through fair trials , and a proper punishment mechanism needs to envisaged, which is able to strike a balance between the victim and the accused. The cases can no longer be decided by giving such wide powers to the judges and leaving the criminal justice system on whims and fancies of the judges. The judges do back their opinions by rationales, but such rationale is not able to satisfy the needs of the criminal justice delivery systems and is leading to an incoherent legal system. A sentencing policy which reduces this wide latitude is the need of India to a coherent legal system. The recommendations of the Malimath committee must be taken as standard policy guidelines and policies need to be enacted.

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