LAW

Criminal Justice Administration

Sentencing: Theory and Practice

1
 Role Name Affiliation
Principal Prof. (Dr.) Ranbir Vice Chancellor,
Investigator Singh National Law
University, Delhi
Co-Principal Prof. (Dr.) G.S. Registrar, National
Investigator Bajpai Law University
Delhi
Paper Coordinator Mr. Neeraj Tiwari Assistant Professor,
National Law
University Delhi
Content Writer Mr. Pattabhi Assistant Professor,
Ramarao K. National Judicial
Academy, Bhopal

Content Reviewer Mr. Neeraj Tiwari Assistant Professor,

National Law
University Delhi

DESCRIPTION OF MODULE

Items Description of Module

Subject Name Law
Paper Name Criminal Justice Administration
Module Name/Title Sentencing: Theory and Practice

Module Id Law/CJA/XVII

Objectives Learning Outcome:

 To understand interplay between theories of

punishments and sentencing and how the theories
influence the sentencing in our country;
 To provide knowledge of sentencing practices of
the courts to students ;
 To make students appreciate various justifications
for punishment and the sentencing practices in
India;
 To understand nuances of the debate on capital

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 punishment ;
 To understand latest developments relating to the
punishment of life imprisonment.

Prerequisites For understanding the module, basic

understanding of the provisions of Code of
Criminal Procedure, 1973 and peripheral view of
theories of punishment is required.

Key words Theories of Punishment, Sentencing Practices,

Standardisation and Individualisation of the
Punishments, capital sentence, Life Imprisonment

Module Overview: Sentencing the offenders is an important function of the criminal courts. It is
now accepted that the theories of punishment influences the sentencing patterns. There are two
schools of thought on sentencing process, one favouring absolute discretion to the judges in
deciding the quantum and form of the punishment and the other arguing for prescribing certain
standards and limitations within which judges need to decide the sentences to the offenders. The
former one is called Individualisation and the later as Standardisation. The courts in India have
been deliberating on the above issues and the views are being changed from time to time. At
present the Supreme Court is relying on the principle of proportionality and just deserts, which
are related to the retributive theory. But the Supreme Court has been emphatically denying it’s
adherence to the retributive theory of punishment. This module makes the students to understand
the interplay between the theories of punishment and sentencing, the debate on capital
punishment in India and the new trends in this regard, predominant opinion of the Supreme
Court on sentencing by critical analysis of recent case law.

I. INTRODUCTION

Punishing the wrong doer or treating him appropriately is one of the vital functions of the
criminal justice administration. Many penal statutes prescribe the maximum punishment for
offences, leaving the discretion to the courts to determine the quantum of sentence that can be
imposed on the offender. In many jurisdictions law also provides for alternative methods to

3
punishments, such as release after admonition or on probation of good conduct for certain
categories of offences and offenders. The Indian Penal Code, 1860, the chief penal statute in our
country provides for the maximum punishment that can be awarded to the different offences and
only for few offences minimum punishment is prescribed. The special and local criminal statutes
also are not different from Indian Penal Code, 1860, in this regard. Thus Indian judges are
endowed with enormous discretion in determination of quantum as well as form of the
Punishment to the convicts. The only general provision which caps the discretion of the
sentencing judges to a very limited extent can be found in section 354 (3) of the Code of
Criminal Procedure, 1973 which requires that in all cases punishable with the imprisonment of
more than one year a minimum of three months imprisonment shall be awarded if there exist no
special reasons.1 As far as form of punishment is concerned, the punishments that are mentioned
in section 53 of the Penal Code only are to be imposed.

The process of sentencing is of considerable significance in criminal justice system

and thus it is rightly described as a judgment on conviction of crime.2 Fixing the exact

1
Section 354(3) of Cr.P.C. reads as follows:
(4) When the conviction is for an offence punishable with imprisonment for a term of one year of more, but the
Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for
awarding such sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was
tried summarily under the provisions of this Code.
2
State of Punjab vs. Prem Sagar, (2008) 7 SCC550

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quantum of punishment is a highly difficult task. Great legal philosopher Hegel in his
'Philosophy of Right' pithily put the difficulty as follows:

Reason cannot determine nor can the concept provide any principle whose
application could decide whether justice requires for an offence (i) a corporal
punishment of forty lashes or thirty nine, or (ii) a fine of five dollars or four
dollars ninety three, four, etc., cents, or (iii) imprisonment of a year or three
hundred and sixty-four, three, etc., days or a year and one, two, or three days, And
yet injustice is done at once if there is one lash too many, or one dollar or one
cent, one week in prison or one day, too many or too few.3

A properly crafted legal frame work is needed to meet the challenging task of appropriate
sentencing. But our judicial system could not develop any legal principles that can be applied in
determination of appropriate sentences. Nor there exists any legislative frame work in this
regard. This resulted in colossal liberty for Indian judges, and made the entire process largely
judge centric. The situation is rightly described by the Supreme Court in Swami Shraddanandda
@ Murali Manohar Mishra vs State of Karnataka4 thus:

The inability of the Criminal Justice System to deal with all major crimes equally
effectively and the want of uniformity in the sentencing process by the Court lead
to a marked imbalance in the end results. On the one hand there appears a small
band of cases in which the murder convict is sent to the gallows on confirmation
of his death penalty by this Court and on the other hand there is a much wider
area of cases in which the offender committing murder of a similar or a far more
revolting kind is spared his life due to lack of consistency by the Court in giving
punishments or worse the offender is allowed to slip away unpunished on account
of the deficiencies in the Criminal Justice System. Thus the overall larger picture
gets asymmetric and lop-sided and presents a poor reflection of the system of
criminal administration of justice.

The unguided sentencing discretion led to unwarranted and huge disparity in sentences awarded
by the courts of law, which is contrary to the basic principle of even handed administration of
criminal law. Though blind uniformity in sentencing cannot be insisted, disparate sentences are
3
Quoted by the Supreme Court in Ramashraya Chakravarthy vs. State of M. P.,(1976)1 SCC281
4
(2008)13SCC767

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considered to be violation of the principle of equality. In the long run disparate sentencing may
have adverse effect of erosion of the public trust and confidence in the justice delivery system.
Indian Supreme Court recognized the problem more than four decades ago when it found that in
two identical cases, punishment of imprisonment 4 years in one case and mere three months jail
term in another case is imposed.5 Another example is a case in which a one day jail term
awarded by the trial court was enhanced to seven years by the High Court and subsequently
modified to three years by the Supreme Court.6 The Supreme Court in Dananjoy
7
Chatterjee@Dhana vs. State of West Bengal observed that “Today there are admitted
disparities. Some criminals get very harsh sentences while many receive grossly different
sentences for an essentially equivalent crime and a shockingly large number even go unpunished,
thereby encouraging the criminals and in the ultimate make justice suffer by weakening the
system's credibility. Though it is recognized that punishing the wrong doer is at the heart of
criminal justice delivery, in our country it is weakest part of administration of criminal justice.”8

Neither the courts nor the legislature can devise any formula for determination of appropriate
sentences because of the limitation that none can visualize every potential situation, relating to
sentencing the offender that may arise before the courts and provide guidelines to deal with all
such situations. There is no straight jacket formula for sentencing the accused on proof of crime.
Legal scholarship on sentencing developed basing on the theories of punishment and hence it is
apposite to understand the inter play between the theories of punishment and sentencing process.

II. THEORIES OF PUNISHMENT AND SENTENCING PROCESS

Ideally, any punishment imposed by the court shall be justified either by it’s purpose or
the goal. Penologists all over the world pondered over the justifications for punishing the
criminals. On careful analysis punishment is inflicted on offender for achieving any of the
following purposes, namely –

5
Rameshwar Dayal vs. State of U. P., (1971) 3 SCC924
6
Raju vs, Stae of Karnataka , (1994) 1 SCC453
7
(1994) 2 SCC220

8
Soman vs. State of Kerala, (2013)11 SCC382

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The above justifications can be found in theories of punishment known as (a) Retributive theory
(b) Deterrent theory (c) Preventive theory and (d) Reformative theory. Theories of punishment
thus offer justifications for punishing the offenders and the purpose that is to be achieved by
imposing the punishment. Traditionally theories of punishment have been either consequentialist
(i.e concerned with the supposed effects of the punishment) or deontological (i.e concerned with
moral considerations other than consequences).9 Philosophy of Jeremy Bentham arguing for
penal utilitarianism and Immanuel Kant, supporting the retributive sanctions provided fertile
platform for the rival theories of punishment. Benthamites argue for such punishment which has
some utility and Kantinians support that the persons who committed an offence has to suffer the
punishment because they have chosen their actions which are punishable and no other
justification is necessary to punish them.

9
Andrew von Hirsch, Proportionality in the Philosophy of Punishment, Crime and Justice, Vol. 16 (1992), pp.
55-98, http://www.jstor.org/stable/1147561

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Indian criminal justice system offers an example of influence of the theories of punishment on
sentencing. During the British regime and the first two decades after independence with
Victorian age values in the ambiance, Indian courts were more concerned with deterrent and
proportionate sentences. In Emperor vs, Maiku, 10, the Allahabad High Court observed that “It is
an elementary proposition in criminal jurisprudence that sentence in each case should be
proportionate to the nature and gravity of the crime.” Similar observation was made by the
Calcutta High Court in Emperor vs. Yar Muhammad.11 In Mohomed Hanif vs. Emperor12 the
Bombay High Court observed regarding sentencing the offenders as follows:

In the first place, it is necessary to pass a sentence upon him which will make him
realise that a life of crime becomes increasingly hard, and does not pay. In the
second place, the sentence should serve as a warning to others who may be think-
ing of adopting a criminal career. In the third place, the public must be protected
against people was show that they are going to ignore the rules framed for the
protection of society.

10
AIR 1930 All 279
11
AIR 1931 Cal 448
12
AIR 1942 Bom 215,

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The above passage indicates that deterrence and protection of society were considered to be the
objectives of punishment. Though proportional and deterrent sentences were advocated, harsh
and inappropriate punishments were seriously objected.13 The reformative theory had it’s sway
for nearly two decades commencing from mid-seventies. For some time, “Gandhian axiom that
crime is like disease, and correction, not cruelty, has dominance in the sentencing calculus”14.
The Supreme Court religiously advocated for reformation in the process of punishment. In
Mohammed Giasuddin vs. State of Andhra Pradesh15 the Court observed as under:

If every saint has a past, every sinner has a future and it is the role of law to
remind both of this. The Indian legal genius of old has made a healthy
contribution to the world treasury of criminology. The drawback of our criminal
process is that often they are built on the bricks of impressionist opinions and
dated values, ignoring empirical studies and deeper researches.

The court further opined thus:

Progressive criminologists across the world will agree that the Gandhian
diagnosis of offenders as patients and his conception of prisons as hospitals-
mental and moral-is the key to the pathology of delinquency and the therapeutic
role of 'punishment' The whole man is a healthy man and every man is born good.
Criminality is a curable deviance. The morality of the law may vary, but is real.
The basic goodness of all human beings is a spiritual axiom, a fall-out of the
advaita of cosmic creation and the spring of correctional thought in criminology.

In Santa Singh vs. State of Punjab16 the Supreme Court observed that

The modern concept of punishment and penology has undergone a vital

transformation and the criminal is now not looked upon as a grave menace to the
society which should be got rid of but is a diseased person suffering from mental

13
See, Emperor vs. Sakinabai Badruddin, AIR 19431 Bom 70, In re, Ramalingayya.AIR 1942 Mad 723, Dulla vs.
State AIR 1958 All 198.
14
Satto vs. State of U.P. (1979)2SCC628
15
(1977)3SCC287
16
(1976) 4 SCC190

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 malady or psychological frustration due to subconscious reactions and is,
therefore, to be cured and corrected rather than to be killed or destroyed.

In Maru ram vs Union of India17, a judgment of five judge bench of the Supreme Court Justice V
R Krishna Iyer speaking for majority18 made the following observation:

We feel that correctional strategy is integral to social defence which is the final
justification for punishment of the criminal. And since personal injury can never
psychically heal, it is obdurate obscurantism for any legislative criminologists to
reject the potential for prisoner re-socialisation from the calculus of reformative
remission and timely release.

While this trend in favour of reformation continued for about two decades, in recent years
the focus appears to have shifted from the reformative approach to deterrent sentences on the
principle of proportionality. This approach pushed back the reformative approach. In Mahesh vs.
State of Madhya Pradesh19 the Supreme Court deprecated the practice of taking a lenient view
and not imposing the appropriate punishment observing that it will be a mockery of justice to
permit the accused to escape the extreme penalty of law when faced with such evidence and such
cruel acts. The court held that "To give a lesser punishment to the appellants would be to render
the justice system of this country suspect. The common man will lose faith in the courts. In
Sevaka Perumal vs. State of Tamilnadu 20the Supreme Court opined 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 and
society could not long endure under such serious threats. It is, therefore, 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 etc.”

17
(1981) 1 SCC107
18
Justice S. Murtaza Fazal Ali and Justice A.D. Koshal rendered separate judgments disagreeing with the
proposition that the reformation is the only purpose of the punishments.
19
( 1987 ) 3 SCC 80
20
( 1991 ) 3 SCC 471

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In Jashubha Bharatsinh Gohil and Ors. vs. State of Gujarat 21the apex court opined that
Protection of society and deterring the criminal is the avowed object of law and that is
required to be achieved by imposing appropriate sentence. In the case of Hazara Singh vs. Raj
Kumar22 the apex Court has observed that:

“The punishment awarded should be directly proportionate to the nature and the
magnitude of the offence. The benchmark of proportionate sentencing can assist
the Judges in arriving at a fair and impartial verdict. This Court further observed
that the cardinal principle of sentencing policy is that the sentence imposed on an
offender should reflect the crime he has committed and it should be proportionate
to the gravity of the offence.”

In State of Madhya Pradesh vs. Bablu23 after considering and following the earlier decisions,
this Court reiterated the settled proposition of law that 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.

Thus the last two decades witnessed a paradigm shift in the approach of the Supreme
Court in sentencing practices and perhaps the changing social conditions and growing rate of the
crime might have caused the change in the attitude of the courts in our country. The courts seem
to have almost abandoned the reformative approach and in State of M.P. vs. Bala @Balram24the
Supreme Court observed that “It is true that reformation as a theory of punishment is in fashion
but under the guise of applying such theory, courts cannot forget their duty to society and to the
victim.” Further it is to be noticed that the apex court in many recent cases did not deliberate on
any particular theory of punishment and has been repeatedly following the principle of
proportionality. The conceptual development of “Just Deserts” which is an outcome of the
Kant‘s penal philosophy of retribution is the foundation of the proportionality principle.
According to the principle the punishment shall fit the gravity of the crime and the offenders

21
(1994) 4 SCC 353
22
(2013) 9 SCC 516
23
2014(9)SCALE678
24
(2005)8 SCC1

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shall be punished because they deserve punishment. Andrew Von Hirsch, the modern exponent
of the principle argues that proportionate punishment is requirement of fairness. Another
argument in favour of the standardisation finds support on the rationale of rule of law. It is
argued that the rule of law in this context means that judicial decisions should be taken openly
and by standards declared in advance.25 On the other hand the preachers of utilitarianisms argue
that the punishment shall yield some result either deterrence or reformation. They consider
punishment as an evil and only the sentence required to deter the offender and the community
need to be imposed. Against the idea of standardisation of the punishment, they argue for the
absolute discretion to be given to the sentencing judges to decide appropriate form and quantum
of punishment. The argument is that the judges have to fix the quantum that can reform, deter
and rehabilitate the offenders.

Theories of punishment influence the approach of the courts towards sentencing. One
might expect that sentencer’s views on the principles of sentencing would be closely related their
opinion on the aims of punishment.26 A proper understanding of theories of punishment
particularly in the absence of the sentencing guidelines, help the judges to fix the quantum and
form of the punishment that can be imposed on offender. As the justifications for punishment
advocated by the supporters of different theorists are not in watertight compartments a sentence
awarded by the court may have different effects. A sentence to have the effect of general
deterrence at times shall be more severe than a retributive and it may even remove the desire to
commit the crime from the mind of the offender and he may become incapacitated to do the
crime. It cannot be said that the sentencing judge shall determine the quantum of the sentence
basing on any particular theory of sentence and it is not possible to undertake such exercise.
Nevertheless the punishment awarded by a judge unguided by any principles reflects his personal
penal philosophy. The judge who believes in retribution theory imposes the sentence, which
satisfies the vengeance of the victims and the one who believes in deterrent theory, fixes the
quantum of punishment which will have the effect of general as well as individual deterrence.
The judge who believes in incapacitation may award long time custodial sentence or deprivation
of the property. In the process care shall be taken to avoid the dominance of personal philosophy
of the judges. Though sentencing disparity cannot be eliminated altogether yet efforts can be
made for reducing it to minimum level.27

25
Raz, Joseph, The Authority of Law, Oxford University Press (1979), See, Chapter 11
26
Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University Press (2010)at p.46
27
Syed Mohammad Afzal Qadri, Criminology and Penology, Eastern Book Company (2009) at p.431

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 III. SENTENCING IN PRACTICE: TWO SCHOOLS OF THOUGHT

Sentencing is considered to be the end product of most law enforcement and

prosecutorial efforts. Though the common man sees crime reduction as objective of sentencing,
the judges and jurists have altogether different views in this regard. Few of them, are of course
share common man’s perception, but as the sentencing dynamics disclose, a number of factors
are considered by the judges in deciding sentence. The crucial issue is regarding the factors that
can be considered by the judges while imposing the sentence. Justice P.N. Bhagwati in Santa
Singh vs. State of Punjab28 observed thus:

“a proper sentence is the amalgam of many factors such as the nature of the
offence, the circumstances extenuating or aggravation of the offence, the prior
criminal record if any, of the offender, the age of the offender, the record of the
offender as to employment, the background of the offender with reference to
education, home life, society and social adjustment, the emotional and mental
condition of the offender, the prospects for the rehabilitation of the offender, the
possibility of return of the offender to a normal life in the community, the
possibility of return of the offender to a normal life in the community. The
possibility of treatment or training of the offender, the possibility that the sentence
may serve as a deterrent to crime by the offender or by other and the current
community need, if any, for even a deterrent in respect to the particular type of
office”.

The apex court and High Courts, while deciding the cases developed certain principles and made
observations in the judgments as how the discretion is to be exercised. Penologists and jurists
also contributed their scholarship as to how the judges have to exercise the sentencing discretion.
Though such observations are loosely referred to as “sentencing policy” and “theories of
sentencing”, in fact they only indicate sentencing practices by the courts and various factors that
are to be considered by the courts while sentencing the offenders.

Disparity in the practices can be noticed in the observations made by the courts and this is
largely because of the tussle between two rival schools of thought on sentencing, one arguing for
a kind of uniformity in the sentencing which requires identical disposition of all persons
28
(1976) 4 SCC190

13
convicted of the same offence and other demanding individualisation of the punishment basing
on the character and antecedents of the convict by standardisation of sentencing process. The
argument for uniformity in sentencing by standardisation of the sentences finds support in the
philosophy of retributive and deterrent theories of punishment where as the individualisation of
the punishment is based on reformative approach.

A. STANDARDISATION OF SENTENCING PRACTICES

It is argued that the imposition of disparate sentences up on the offenders with similar
characteristics convicted of similar crimes hinders correctional methods and that the convicts
who receive severe sentences than the sentence imposed on fellow convicts of similar offence
and circumstances develop antagonism towards society. It may adversely affect the public trust
and confidence in the justice system. The supporters of the “Just Deserts” and the principle of
Proportionality insist on standardisation of the sentencing practices. The rule of law doctrine also
requires that the discretion of the sentencers shall be guided discussion with the rules for
sentencing framed in advanced. Though the constitutional permissibility of disparate sentences
is debatable, there cannot be any disagreement to oppose the arbitrary and unreasonable
exercising of sentencing discretion conferred on the judges. What is insisted is that the

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distinctions in sentencing shall be on sound reasons rooted in significant factual differences
which have made the two cases substantially different. To achieve the kind of uniformity,
standardisation of sentencing process is suggested. The standardisation of sentencing is possible
by broadly categorizing:

(a) Offences such as offences against women, economic offices, white caller offences,
regulatory offences etc.
(b) Offenders, such as adults, juveniles, women, youth etc and
(c) By strict tabulation of aggravating and mitigating circumstances.

In the process of the standardisation, the legislature shall prescribe minimum and
maximum range of penalty, be it imprisonment or time, for each category of the offences qua
each category of the offenders. Such fixation reduces the disparity in sentencing. The emphasis
while determining the sentence is on crime and not the circumstances or the traits of the criminal.
In Bachan Singh vs. State of Punjab 29a five judge Constitution Bench of the Supreme Court
dismissed the suggestion for standardisation as well-nigh possible for the following reasons30:

(1) There is no agreement amongst jurists and penologists as to what information about
the crime and criminal is relevant for fixing the dose of punishment for person
convicted of a particular offence.
(2) Criminal cases do not fall in to set behaviour patters and categorization is not
possible.
(3) Standardisation of the sentencing process leaves no room to take account of variations
in culpability within single offence category cases.

The Supreme Court further opined that standardisation of punishment is a policy decision falling
within the legislature power of the State and the judiciary shall not make any endeavour in this
regard.31

B. INDIVIDUALISATION OF SENTENCING PROCESS

29
(1980)2SCC684
30
Bachan Singh vs. State of Punjab, (1980)2SCC684 Paragraphs 171-178
31
Bachcn Singh vs. State of Punjab, (1980)2SCC684 Paragraphs 175-176

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 The second school of thought on sentencing is for individualisation of sentencing process,
against the standardisation. The argument is that the standardisation of the sentencing practices
does not adopt correctional practices and the reformation may not be possible by standardized
punishments. While commenting on a judgment in which the youngsters were sentenced to jail
term, Justice V R Krishna Iyer said:

The present case is an illustration of judicial habituation to prescribing sentences

conditioned by the offence and its milieu, forgetting the fundamental fact that the
human delinquent, not the criminal deviance, is the cynosure of punitive
processing.32

The essence of individualisation of the punishment is to take the factors relating to the
offender into consideration for fixing the term of the imprisonment. Such factors may include
age, social back ground, education, occupation, circumstances in which the offence was
committed, the possibility of his reformation, antecedents, character etc of the offender. Above
all individualisation of sentencing process requires that the sentencing judge shall be vested with
discretion to select the form and the quantum of punishment that can be imposed. Sections
235(2)33 (applicable to the trial of sessions cases ) and 248(2)34 (applicable to the trial of warrant
cases by magistrates ) of the Code of Criminal Procedure, 1973, facilitating hearing the accused
before passing the sentence, indicate the inclination of the legislature towards the pesonalisation
of sentences. As remarked by the supreme Court in Santa Singh,35 these provisions reflect the
contemporary thinking that sentencing is an important stage in the criminal justice and it should
be given due place in the system. The Law Commission of India in it’s fourty-seventh report
favoured individualisation of the punishments. It observed thus:

32
Satto vs. State of U.P., (1979)2SCC628
33
235. Judgment of acquittal or conviction –
(1) xxxxxx
(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.
34
248. Acquittal or conviction -
(1) xxxxxx
(2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but 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.
35
(1976) 4 SCC190

16
 A proper sentence is a composite 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 social record of the offender, the background of the offender with reference to
the education, home-life, sobriety and social adjustment, the emotional and
mental condition of the offender, the prospect of the rehabilitation of the offender,
the possibility of a 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 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.

Though the above recommendation of the Law Commission on sentencing suggests both the
crime and criminal are important the dominant tone is demonstratively reformative and the
suggestion is a reflection of the sentiments expressed in a numerous judgments delivered during
the mid-seventies and early eighties. The exhaustive sentencing process contemplated by the
Law Commission requires exercising of wide discretion by the sentencing judge. Though the
recent judgments of the Supreme Court favour the principle of proportionality and deterrence
few judges prefer wide discretion and reformative approach. Justice S B Sinha in Santosh Kumar
Satishbhushan Bariyar vs. State of Maharashtra36 strongly advocated for sentencing discretion.
He observed:

For an effective compliance of sentencing procedure under Section 354(3) and

Section 235(2) Cr.P.C, sufficient discretion is a pre-condition. Strict channeling of
discretion would also go against the founding principles of sentencing as it will
prevent the sentencing court to identify and weigh various factors relating to the
crime and the criminal such as culpability, impact on the society, gravity of
offence, motive behind the crime etc.

In a recent judgment Justice Madan B Lokur opined that while awarding the punishment the
principle of rehabilitation and the humanizing mission must not be forgotten.37 Thus the tussle

36
(2009) 6 SCC 498
37
State vs. Sanjiv Bhalla, 2014(8)SCALE 377

17
between the two schools of thought on sentencing appears to be never ending one in the Indian
sentencing jurisprudence.

IV.PRE SENTENCE HEARING

A criminal trial and evidence offer various factors relating to the crime and the manner
in which it was committed. But the adversarial system of trial provides narrow scope for the
information regarding the character and the antecedents of the convicts. In any scientific system
which turns the focus, at the sentencing stage, not only on the crime but also the criminal, and
seeks to personalise the punishment so that the reformatory component is as much operative as
the deterrent element, it is essential that facts of a social and personal nature, sometimes
altogether irrelevant if not injurious at the stage of fixing the guilt, may have to be brought to the
notice of the Court when the actual sentence is determined.38 Sections 235 (2) and 248(2) of the
Code of Criminal Procedure, 1973 provides scope for hearing the accused before sentencing.
There was no such provision in previous statutes prescribing criminal procedure. The meaning of
the word “hearing” in this case fell for judicial consideration in Santa Singh vs. State of Punjab39
in which it was opined that:

The hearing contemplated by Section 235(2) is not confined merely to hearing

oral submissions, but it is also intended to give an opportunity to the prosecution
and the accused to place before the court facts and material relating to various
factors bearing on the question of sentence and if they are contested by either
side, then to produce evidence for the purpose of establishing the same.

In practice the hearing in a number of cases is confined to oral hearing and the courts are not
furnished with required information regarding the criminal. There is no provision for pre-
sentencing investigation or inquiry or pre sentence reports. Some of the information relating to
crime can be culled out from the phase prior to the hearing on sentencing. The information
would include aspects relating to the nature, motive and impact of crime and culpability of
convict etc. 40 What is lacking is the information regarding social and economic back ground of
the accused and his character and antecedents. The court has to hear the accused and pass the
sentence basing on the hearing. Even in the light of the extended meaning of the word hearing as
38
Ediga Annamma vs, State of Andhra Pradesh, (1974) 4 SCC 443
39
(1976) 4 SCC 190
40
Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra ,(2009) 6 SCC 498

18
provided in Santa Singh, it is difficult to collect information regarding the criminal. About three
decades ago the Supreme Court in Pyarli K. Tejani vs. M.Ramachandra Dange41 observed that
unfortunately, the meaningful collection and presentation of penological facts bearing on the
back ground 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.” This remains true even to this day. In Ramashraya Chakravarthy vs.
State of Madhya Pradesh42 the apex court opined that the trial courts in this country already
overburdened with work have hardly any time to set apart for sentencing reflection. In Ved
Prakash vs. State of Haryana43 the Court observed that “it is the duty of the sentencing Court to
be activist enough to collect such facts as have a bearing on punishment with a rehabilitation
slant” and “even if the Bar does not help, the Bench must fulfill the humanizing mission of
sentencing implicit in such enactments as the Probation of Offenders Act.” The Supreme Court
had an occasion to reprimand the session judge for deciding the quantum of sentence on the same
day on which conviction was recorded.44 The Supreme Court however did not refer to the third
proviso of section 309(2) of the Code of Criminal Procdure,1973 which mandates that no
adjournment shall be granted to for the purpose only of enabling the accused person to show
cause against the sentence proposed to be imposed on him.45 The a incongruity of the legislative
policy, giving an opportunity to the accused to be heard on the proposed sentence and not
allowing an adjournment for the purpose of hearing on sentence can be explained as a precaution
to avoid procrastination of the proceedings by the convicts. But it can be safely argued that there
is no appropriate legislative frame work for the “hearing of the accused before sentencing” as
interpreted by the Supreme Court in Santa Singh. Even to this day it is not clear whether the
appellate courts while modifying or imposing sentence are bound by the requirement of section
235 (2) of the Code of Criminal Procedure, 1973 . The Supreme Court confronted with such a
question while considering the judgment in which High Court reversing the acquittal by the trial
court imposed the sentence without hearing the accused,. But the court did not answer the
question as in that particular case the court restored the order of the acquittal by the trial court.46

V. DEBATE ON CAPITAL PUNISHMENT

41
(1974)1 SCC167
42
(1976)1 S C C281
43
(1981)1 SCC 447
44
Anshad and Ors. Vs. State of Karnataka (1994)4SCC381
45
Inserted by Act 45 of 1978 (w.e.f. 18-12—1978
46
Padmanabham Vijaykumar vs. State of Kerala, 1994 SCC (Cri) 892

19
 The world on the issue of death penalty is divided. Despite rigorous campaign against
death penalty many countries including India did not abolish the death penalty. But legislative
policy in our country has undergone substantial change. Prior to 1955 as per the Code of the
Criminal Procedure 1898, it was obligatory for a court to give reasons for not awarding death
sentence. An amendment to the Code of the Criminal Procedure 1898 this requirement was done
away with and later under the Code of the Criminal Procedure, 1973 the court has to record the
reasons for awarding death sentence. Thus earlier for the offence of murder, death sentence was
the rule and life imprisonment was an exception and after the amendments life imprisonment is
the rule and death as exception. Though the constitutional validity of the death penalty was
upheld by Jagmohan Singh vs. State of U.P.47 during the period when reformative was swaying
the judiciary in a number of judgments the Supreme Courtt expressed it’s aversion the death
penalty. The judgments of Supreme Court in Ediga Annamma vs State of A.P.48 Raghubir Singh
vs. State of Haryana49 and State of U.P. vs. Rajendra Prasad50 almost pointed toward abolition
of death punishment. Rajendra Prasad was a fractured verdict with Justice Krishna Iyer and
Justice Desai, for majority favouring commutation of death penalty to life imprisonment and
Justice A.N. Sen writing a powerful dissent. In due course of time, this eventuated in to reference
of the question of the constitutional validity of the death sentence to a larger Bench in Bachan
Singh vs. State of Punjab.51 Upholding the constitutional validity of the death sentence, the five
judges Constitution Bench of the Supreme Court has seized the opportunity to make the rules
clear. With 4-1 majority the court has evolved the test to determine whether the case falls within
the category of rarest of rare case, by balancing the aggravating and mitigating circumstances,
after taking the circumstances relating to the crime as well as criminal.
Bachan Singh continued to be the guiding precedent in deciding whether a case falls
within the category of the rarest of rare case warranting awarding death sentence. However
during the course of time it was realized that the decision on capital punishment is becoming
judge centric and leading to miscarriage of justice. In Santosh Bariyar the Supreme Court opined

47
(1973) 1 SCC20
48
(1974) 4 SCC443
49
(1975) 3 SCC37
50
Three cases were decided in the judgment reported in (1979) 3 SCC646. The other two cases were Kunjukunju
Janardhan vs. State of Kerala and Sheo Shankar Dubey vs. State of U.P.
51
(1980) 2 SCC684

20
that death sentence was awarded erroneously in few cases. 52 The Supreme Court in some of its
judgments has highlighted the instances of erroneously decided cases which pose serious concern
in adjudication of death penalty cases. These instances reflect the extreme fragility in application
of the ‘rarest of rare’ principle making the decision on death sentence too Judge-centric.53 The
growing criticism against the subjectivity in awarding the death sentence made the Supreme
Court to look for alternatives to death penalty as well as life imprisonment simpliciter (the
sentence which can be sized down to 14 year term) and one such alternative found by the
Supreme Court is awarding life imprisonment without remission or awarding life imprisonment
for a fixed term without remission. This exploration started with the experiment in Swamy
Shraddanand54in which the apex court has sentenced the convict to remainder of his natural life
(without remission). The Court by invoking “the vast hiatus between 14 years’ imprisonment
and death” has significantly expanded the range of “alternative options” which need to be
exhausted before opting for death.55 A study of death sentence cases in the post- Swamy
Shraddhanand verdict reveals that many cases which normally would have resulted in award of

52
Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra (2009) 6 SCC 498. Justice Sinha in para 63 of
Bariyar case held that Ravji case was rendered per incuriam and contrary to the binding dictum of ‘rarest of rare’
category propounded in Bachan Singh’s case and opined that in the cases in which Ravji case has been relied upon
the Supreme Court has not considered the mitigating circumstances or a circumstances relating to criminal while
imposing the sentence. In Bariyar Supreme Court declared that Ravji @ Ram Chandra vs. State of Rajasthan,
(1996)2SCC175 and Suraj Ram vs. State of Rajasthan, (1996)6SCC271 are erroneously decided. Ravji and Suraj
Ram were executed on May 4, 1996 and April 7, 1997 respectively.
53
In Swamy Shraddananda) vs. State of Karnataka [(2008) 13 SCC 767] Aftab Alam, J., writing the judgment for
the Three-Judge Bench observed that
“The truth of the matter is that the question of death penalty is not free from the subjective element and the
confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection of
the judges constituting the bench.”
In Santosh Kumar Satishbhushan Bariyar vs.. State of Maharashtra (2009) 6 SCC 498 it was observed by the
Supreme Court that
“…[T]he balance sheet of aggravating and mitigating circumstances approach invoked on a case-by-case basis has
not worked sufficiently well so as to remove the vice of arbitrariness from our capital sentencing system. It can be
safely said that the Bachan Singh threshold of the ‘rarest of rare cases’ has been most variedly and inconsistently
applied by the various High Courts as also this Court. ”
Recently in Sangeet v. State of Haryana (2013)2SCC452 another Division Bench of Supreme Court has reiterated
the subjectivity involved in death sentence cases making them Judge-centric. (See para 33 of the Report).
54
Shraddananda (2) v. State of Karnataka (2008) 13 SCC 767
55
See, Working paper prepared by Pattabhi Rama Rao Kovuru and Niraj Tiwari, Life without remission: India’s
Death Penalty? (Submitted for publication)

21
death sentence to the convicts of such cases, have got the benefit of various ‘alternative options’
between life sentence simpliciter to a sentence of full life.56 It can also be noticed that the post
nirbhaya incident agitations made the parliament to amend the law relating to rape, prescribing
the life imprisonment without remission (remainder of natural life of the offender) as punishment
for aggravated form of rape.57 Thus the life sentence without remission has attained legislative
recognition as an alternative to death penalty.

Though Bachan Singh58 still continues to be a binding precedent, it’s ratio is not spared
from attack. There is no unanimity of the opinion on the factors which can be considered as
aggravating or mitigating. In Sandesh alias Sainath Kailash Abhang vs. State of
Maharashtra59the Supreme Court considered that “absence of normal behavior” and “ voluntary
intoxication” as mitigating circumstances and later the court required to clarify in a review
petition60 that those “observations may not be construed to generally mean that drunkenness of
an accused is a mitigating factor in the award of punishment. In Sangeet vs. State of Haryana61,
Justice Madan B Lokur questioned the method of balancing of aggravating and mitigating
circumstances opining that the aggravating circumstances are relating to the crime and mitigating
circumstances relate to criminal and they cannot be compared or balanced. But in Sunil Dutt
Sharma vs. State (Govt of NCT of Delhi)62 in which the Supreme Court has dealt with sentencing
jurisprudence at length, opined that the principles of sentencing evolved by the Court over the
years, on aggravating and mitigating circumstances, 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

56
See Gurvail singh @ Gala v. State of Punjab (2013) 2 SCC 713 (30 years without remission); Sanjay Kumar
(2012) 8 SCC 537; Brajendra Singh (2012) 4 SCC 289 (21 years); Sandeep v. State of U.P. (2012) 6 SCC 107 (30
years without remission); Neel Kumar (2012) 5 SCC 76 (30 years without remission); Ram Naresh (2012) 4 SCC
257 (21 years); Dilip Premnarayan Tiwari v. State of Maharashtra, (2010)1SCC775 (accused 1 and 2 for 25 years
without remission and accused 3 for 20 years), Haru Ghosh v. State of West Bengal, (2009)15SCC551 (minimum 35
years term), Ramraj @ Nanhoo @ Bihnu v. State of Chhattisgarh, (2010)1SCC573 (20 years term), Mulla v. State of
Uttar Pradesh, (2010)3SCC508 (Rest of life subject to remission), Sebastian @ Chevithiyan v. State of Kerala
(2010)1SCC58 (Rest of Life).
57
See, Sections 376(2),376A, 376D and 376E of the Indian Penal Code,1860
58
(1980) 2 SCC684
59
(2013)2SCC479
60
Review Petition (Crl.) No.D8875 of 2013,which is not reported in any leading law journals or on Supreme court
web site, but referred to in Bhagwan Tukaram Dange vs. State of Maharashtra (2014)4SCC270 (paragraph 10)
61
(2013)2SCC452
62
(2014)4SCC375

22
the discretion to award a lesser or a higher sentence. The lone voice of Justice Lokur in Sangeet63
did not get any support in subsequent judgments of the Supreme Court. However, in Shankar
Kisanrao Khade vs. State of Maharashtra64, the Supreme Court evolved a three prong test –
known as Crime Test, Criminal Test and Rarest of Rare Case Test (R R Test). According to test
to consider a case as a rarest of rare case the Crime Test shall be 100%, the Criminal Test shall
be 0% (no mitigating circumstances) and in addition the case shall pass RR test warranting it to
be considered as a rarest of rare case which according to the court shall be society centric i.e
basing on the perception of the society towards the punishment to the crime under consideration.
This test is a further development of Bachan Singh principle and requires to stand the test of
time.

VI. SUPREME COURT ON SENTENCING

The shift in the approach of the Supreme Court as regards to sentencing the offenders from
the idea of reformation through correctional process to the retribution through the principle of
proportionality, though incomplete, made the Indian sentencing jurisprudence hallow and
inconsistent. Incongruity in sentencing practices and the ideas expressed by the Supreme Court
in various judgments is quite apparent and becoming a cause of concern and confusion. Though
the attempts of the Supreme Court to make punishment fit to the crime basing on the principle of
proportionality are incoherent, the movement is towards stnadardisation of the sentencing
practices. As rightly remarked by Prof. K N Chandrasekharan Pillai, “in the standardisation
syndrome, no theorization is involved.”65The present sentencing practices of the Supreme Court
are becoming incoherent for the following reasons:

1. The Supreme Court has no consistent view on the theory that is to be followed in
sentencing. In Jashubha Bharatsinh Gohil. vs. State of Gujarat66 the Supreme Court opined that
“ Protection of society and deterring the criminal is the avowed object of law and that is required
to be achieved by imposing appropriate sentence.”In Hazara Singh vs. Raj Kumar67 the apex
court opined that the cardinal principle of sentencing policy is that the sentence imposed on an
offender should reflect the crime he has committed and it should be proportionate to the gravity

63
(2013)2SCC452
64
(2013)5SCC546
65
Pof K N Chandrasekharan Pillai,The Quagmire of Confusion in Sentencing, (2013) 3 S C C(Journal) 1
66
(1994) 4 SCC 353
67
(2013)9SCC516, See, Soman vs. State of Kerala, (2013)11 SCC382

23
of the offence. In State TR.P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda 68it was observed
that “Law demands that the offender should be adequately punished for the crime, so that it can
deter the offender and other persons from committing similar offences.” In State of M.P. vs.
Babulal69 the court observed that “One of the prime objectives of criminal law is the imposition
of adequate, just, proportionate punishment which is commensurate with the gravity and nature
of the crime and manner in which the offence is committed. The most relevant determinative
factor of sentencing is proportionality between crime and punishment keeping in mind the social
interest and consciousness of the society.” Though these observations indicate following of the
principle of proportionality an off spring of retributive theory, the Supreme Court in Shatrughan
Chauhan vs. Union of India70alerted the courts below against retribution saying that “Remember,
retribution has no Constitutional value in our largest democratic country. In India, even an
accused has a de facto protection under the Constitution and it is the Court's duty to shield and
protect the same.” This observation reflects the confusion of the Supreme Court in application of
the theories of punishment. It is noteworthy to remind the judgment in an earlier case71 in which
the Supreme Court recognized that in India, the view always has been that the punishment must
be proportionate to the crime, but it was more skeptical when it said that applicability of the said
principle in all situations, however, is open to question. In this case the court held that the
sentencing must have policy of correction.

2. In Bachan Singh72 the Supreme Court clearly indicated that the standardisation or making
policy on sentencing is clearly out of judicial arena and it is only the parliament which can do it.
In many the subsequent cases the supreme Court has not followed this dicta and has made
attempts to formulate sentencing policy on it’ own In Sangeeth the court has delineated the
development of sentencing policy at different phases. Such making of sentencing policy is
questionable in the light of restraint exhibited by the constitution Bench in Bachan Singh. It is
also to be noted that in Bachan Singh itself the court enumerated the aggravating and mitigating
circumstances and cautious enough not to call it as policy. In a number of later cases the
Supreme Court made unhesitant efforts to describe some random thoughts on death penalty as
sentencing policy.

68
(2012)8SCC450
69
(2013)12 SCC308 . See, also Alister Anthony Pareira vs. State of Maharashtra, ( 2012 ) 2 SCC 648
70
(2014)3SCC1
71
State of Punjab vs.Prem Sagar , (2008)7 SCC 550
72
(1980) 2 SCC 684

24
3. The Supreme Court has been often quoting that the punishment shall reflect public opinion. In
Surja Ram vs. State of Rajasthan73 it was held that the punishment must also respond to the
society's cry for justice against the criminal. In State of Madhya Pradesh vs. Ghanshyam Singh74
it was held that the Courts would operate the sentencing system so as to impose such sentence
which reflects the conscience of the society and the sentencing process has to be stern where it
should be. State of U.P. vs. Shri Kishan75 it was opined that 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". There are
difficulties in comprehending this principle. First of all, it is not known as to how the sentencing
judge perceives the “collective conscience of the society” and “cry of the society.” It may
encourage, apart from the danger of substituting “judge’s perception” to “societal perception”,
the media sentencing. In Om Prakash vs. State of Haryana76 Justice K.T. Thomas, deliberated
on the apparent tension between responding to "cry of the society" and meeting the Bachan
Singh dictum of balancing the "mitigating and aggravating circumstances." The court was of the
view that the sentencing court is bound by Bachan Singh and not in specific terms to the
incoherent and fluid responses of society. In Santosh Kumar Bariyar77 the court made the
following observed that Public Opinion may also run counter to the Rule of law and
constitutionalism. Andrew Ashworth and Michael Hough observed that to construct sentencing
policy on this flawed and partial notion of public opinion is irresponsible. The learned authors
further observed:

Unfortunately, the concept of public opinion in relation to sentencing practices is

often employed in a superficial or simplistic way. In this short article we have
identified two major difficulties with the use of the concept. First, members of the
public have insufficient knowledge of actual sentencing practices. Second, there is
a significant but much-neglected distinction between people's sweeping
impressions of sentencing and their views in relation to particular cases of which
they know the facts.78

73
(1996) 6 SCC 271
74
(2003) 8 SCC 13
75
(2005) 10 SCC 420
76
(1999)3SCC19
77
(2009) 6 SCC 498
78
Andrew Aswoth and Michael Hough, Sentencing and the Climate of Opinion, (1996) Criminal Law Review

25
Summary

Appropriate sentencing of the offenders is an important function of the courts. The tussle
between the rival arguments on stndardisation and individualisation of sentencing process seems
to have not come to an end. Even in the jurisdictions where sentencing guidelines exist in the
legal frame work, the sentencing disparity still exists. By and large Indian Supreme Court, at
present, is in favour of the principle of proportionality and attempting standardisation of
sentencing by narrating the aggravating and mitigating factors for considering in fixation of the
appropriate sentencing. However, attempts of the Supreme Court to formulate sentencing policy
ended up in additions and deletions to the list of aggravating and mitigating circumstances and
could not make out the suitable theory of its choice. In Indian context the Supreme Court shall
theorise the sentencing practices to guide all the courts which may reduce the disparity in
sentencing.

26