Pendency and Punishment: Why India Needs a Sentencing Council

GS-II | Judicial System in India | Reform of the Criminal Justice System | Equality Before the Law

Introduction

• Sentencing: The act of the State converting a prescriptive range (e.g., “up to ten years in jail”) into an exact prison sentence, fine, probation period, or other community-based sanction for the offender(s).
• Judicial discretion: In India, the final decision regarding judicial discretion lies with a single judge or Bench.
• Lack of guidelines: There are no rules regarding which elements constitute an aggravating circumstance that would warrant a harsher sentence, which elements represent true mitigating circumstances that may result in a lighter sentence, nor how previous acts and expressions of remorse will affect sentencing.

Unequal Sentences, Unequal Justice

• Empirical research: Dr. Mrinal Satish’s work on rape sentencing shows that courts have reduced sentences based on legally irrelevant factors such as the complainant’s supposed “chastity” or her subsequent marriage, while ignoring psychological harm or breach of trust.
• Constitutional provisions: Articles 14 and 21 of the Constitution prohibit arbitrary actions by the State and mandate that when there is a restriction upon one’s liberties, the State must use fair, just and reasonable procedures.
• Sentencing inequality: Similar individuals who commit similar offenses will be given similar sentences if they have the same mitigating circumstances as other individuals. However, if some of the individuals being sentenced have mitigating circumstances that are different than other individuals being sentenced, then the judge may sentence those individuals differently.
• Supreme Court: Supreme Court in Sunita Devi vs State of Bihar (2024), stated that “sentencing will not just be a game of chance” and asked the central government to consider whether there can be a national sentencing policy.
• Law Commission: The Law Commission, in its 47th Report, also expressed concern about these issues over half a century earlier. The responsibility of developing a sentencing policy rests on the shoulders of the legislative branch, while the execution of that policy is the responsibility of the executive branch.

Unguided Discretion and Neglected Alternatives

• Empirical Research: Sentencing policies need to be based on empirical research of current sentencing practices, prison capacity, and whether or not there are any relationships between the goals of deterrence, rehabilitation, and protecting the public from criminals, and the outcomes that are being achieved.
• Alternatives to Custody: Sections 401 & 402 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and Sections 3, 4, & 6 of the Probation of Offenders Act 1958 provide alternatives to imprisonment for those who qualify.
• Competing Goals: No general model exists for courts to determine the proper balance between deterring crime, reforming offenders and rehabilitating those who have committed crimes.
• Judicial precedent: The court case “Soman vs State of Kerala (2012)” recognized both competing interests, and stated that sentencing is among the least developed aspects of the criminal justice system.
• Appellate burden: The appellate burden occurs when higher courts have to correct a sentence that was too harsh or not harsh enough. This takes up a lot of the court’s time and there is no standard for how much each court can change a sentence.
• A separate hearing: The Sessions Judge will conduct a separate hearing for each accused, following conviction, regarding his or her sentence. During this hearing, the judge can take into consideration all of the mitigating and aggravating factors which may apply to the case.

The English Model: Guidelines That Structure, Not Dictate

• Institutional framework: The institutional framework of England and Wales has created the Sentencing Council through the Coroners and Justice Act 2009.
• Step-by-step method:
  • Classify the offence by culpability and harm.
  • Establish a starting point and sentencing range.
  • Adjust for aggravating and mitigating factors.
  • Account for guilty pleas, multiple offences and ancillary orders.
• Goal: Principles for Structuring Judicial Discretion rather than Identical Punishments for Superficially Similar Crimes.

What a Sentencing Council Would Actually Do

• Sentencing guidelines: Assess the offender’s guilt and harm caused, set a starting point for the sentence within the legislative framework, then tailor the sentence based on relevant factors.
• National Sentencing Database: Collect anonymized sentencing data through the National Judicial Data Grid’s infrastructure and analyze it for disparities.
• Delegated Legislation: Provide guidelines to be used as Delegated Legislation, and submit them to Parliament for approval.
• Judicial accountability: Consider the guidelines as a recommendation, however with a strong presumption that the court will follow them, unless there are justifiable reasons why the court should depart from them. This allows the court to explain its reasons for departing from the guidelines, while still allowing the court to maintain its independence.

The Pitfalls of Guideline-Based Sentencing

• Penal populism: The public’s desire to see longer prison sentences (particularly in response to sex crimes) may lead to guidelines that call for increased imprisonment without any evidence to support the idea that such a change will help reduce crime.
• Federal concerns: The federal government has concerns about prisons falling under the State List and Criminal Law falling under the Concurrent List.
• Regional disparities: Uniform guidelines could overlook regional disparities in judicial resources and prison environments.
• Compliance with guidelines: Judges will check the boxes of guidelines without altering their base logic.
• Institutional Independence: The Council must maintain independence and be supported by empirical evidence.

Conclusion

• Need to make changes: The criminal justice discussion includes issues such as police reform, speed of trial and the rights of victims. However, the decision about how long someone should spend in jail or prison once they have been convicted of a crime is also an essential part of the process.
• The National Sentencing Framework: In order for sentencing to “not be a lottery,” then India should seriously consider designing a National Sentencing Framework.

Mains Question

Q. The sentence should not be a game of chance. Discuss why India needs a nationwide sentencing structure. Examine how a sentencing council can help establish guidelines for sentencing, and what the difficulties are in establishing such guidelines.