Why in the News
Indian law promises equal treatment, yet two people convicted of the same crime can get very different sentences, because the choice rests almost entirely with the judge. The Supreme Court, in Sunita Devi vs State of Bihar (2024), held that “sentencing shall not be a mere lottery” and asked the Centre to examine a national sentencing policy. The Centre has referred the question to the Law Commission of India.
What is sentencing, and why is it left to judges?
- What it is: Sentencing turns a statutory range, such as “up to ten years”, into a specific prison term, fine, probation (supervised release) or community sanction. It is like picking one point on a marked scale.
- Unguided discretion: Statutes fix the maximum and sometimes the minimum. No checklist defines what makes an offence worse (aggravation) or lighter (mitigation), or how to weigh prior conduct and remorse.
- Sentencing hearing: The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) requires a Sessions Judge to hear a convicted person separately on sentence, gathering aggravating and mitigating material.
- Irrelevant factors: Mrinal Satish’s research on rape sentencing found courts cut sentences over the complainant’s supposed “chastity” or later marriage, and ignored psychological harm.
- The takeaway: Without shared standards, a judge’s personal view, not the law, can set a sentence’s length.
Why does unequal sentencing matter?
- Constitutional standard: Articles 14 and 21 bar arbitrary State action and require fair, just and reasonable procedure whenever liberty is restricted.
- Equality before law: If one judge treats poverty as mitigation and another does not, similar offenders get unequal sentences.
- Weakest link: In Soman vs State of Kerala (2012), the Supreme Court called sentencing one of the weakest parts of criminal justice.
- Pendency cost: Appellate courts correct harsh or lenient sentences case by case, with no common yardstick, which adds to pendency.
Why has India not built a sentencing framework?
- Ignored for decades: The Law Commission raised the concern more than 50 years ago in its 47th Report. Parliament never designed a framework.
- Unused alternatives: The BNSS and the Probation of Offenders Act, 1958 require courts to consider probation in eligible cases, but courts often ignore them.
- Competing aims: No framework explains how to weigh custody alternatives against deterrence, reformation and rehabilitation.
- Research gap: A policy needs research on current practice, prison capacity and outcomes against sentencing aims.
What does the English model show?
- Statutory council: In England and Wales, Parliament created a Sentencing Council and backed it with a Sentencing Code.
- Starting point: Judges first classify an offence by culpability, how blameworthy the offender is, and harm. Each combination carries a starting point and range.
- Adjustments: Judges then adjust for aggravating and mitigating factors, guilty pleas and multiple offences, and make ancillary (supplementary) orders.
What would an Indian sentencing council do?
- Offence-specific guidelines: A council created by an Act of Parliament would take courts through three stages:
- assess seriousness through culpability and harm, using factors such as planning, violence, weapons and victim vulnerability;
- mark an indicative starting point and range within statutory limits;
- individualise the sentence using only circumstances tied to purposes such as rehabilitation.
- Sentencing database: It would build an anonymised database on the National Judicial Data Grid (NJDG), the online record of court cases, showing where disparity lies.
- Presumptive guidelines: Guidelines would be advisory delegated legislation, rules framed under the Act and laid before Parliament. Courts departing must give reasons, keeping judicial independence and making discretion accountable.
Challenges
- Risk of rigidity: Tight guidelines can make sentencing mechanical and hollow out the sentencing hearing.
- Data foundations: The database depends on trial courts consistently recording harm and culpability, which no rule now requires.
- Legislative inertia: Nothing obliges Parliament to act on the Law Commission’s new report.
Way Forward
- Sentencing council law: Parliament should create the council by statute once the Law Commission reports.
- High-disparity offences first: The council should start with offences such as rape, where research shows the widest distortion.
- Prison impact checks: The council should assess each guideline’s effect on prison capacity before Parliament sees it.
Conclusion
India lacks not penal law but a shared method for applying it, which leaves equal treatment to chance. Whether the Law Commission’s report moves Parliament to create a statutory council is the decision to watch.
Key numbers
- Separate sentencing hearing: Section 258(2), BNSS.
- Custody alternatives: Sections 401 and 402, BNSS.
- Probation provisions: Sections 3, 4 and 6, Probation of Offenders Act.
Matching Previous Year Question
“No direct PYQ traced in the provided files. Thematic PYQ: [2014, GS2, 12 marks] Starting from inventing the ‘basic structure’ doctrine, the judiciary has played a highly proactive role in ensuring that India develops into a thriving democracy. In light of the statement, evaluate the role played by judicial activism in achieving the ideals of democracy.”
