The Exigency Of Sentencing Guidelines In Indian Criminal Justice Administration

Update: 2022-05-20 05:39 GMT

After giving a thought about contemporary challenges faced by Indian Criminal Law administration is the absence of sentencing guidelines. Several committees as well as Higher Courts have also recognized this issue of absences of sentencing guidelines in a diverse country like India.

Sentencing guidelines are a collection of rules used to ensure logical and uniform sentencing policies within a jurisdiction. In Indian Criminal Justice system, the judges have the discretionary power to determine the sentence to be awarded to the criminal, after considering mitigating and aggravating factors. At times this creates a good impact on the society, however, several times it can be seen that the awarded punishments are arbitrary and unjust as well. This can lead to victimization and injustice to the victim's family. One way for implementing determinate sentence is the adoption of sentencing guidelines. Sentencing guidelines are a set of recommended penalties depending on the nature of the offence and the characteristics of the offender[1], such as;

  • Characteristics of Offenses - Most guidelines systems contain criteria for grading the severity of offences. This rating is usually dependent on how the legislation defines the offence, not on how unoccupied, or how a specific person did a specific crime. Theft of an uninhabited structure, for example, would be considered less severe than assault with a weapon.
  • Offender Traits - Offender features are characteristics that distinguish one offender from another. The number and kind of past offences (i.e., felonies, misdemeanours, juvenile adjudications) or if the offender was in custody at the time of the offence are just a few examples (e.g., probation or jail).

The majority of sentencing guidelines allow for departure punishments. A departure is just a sentence that differs from the guidelines' suggested sentence. It may be more severe than the guidelines call for (for example, imposing jail when the guidelines call for probation or imposing a lengthier prison term than advised), or it may be less severe than the guidelines call for (e.g., imposing probation when the guidelines recommend prison, or imposing a shorter meaning shorter prison sentence than recommended). These are mostly based on; to what extent the offence has affected the society at large and whether or not the offender can be reformed.

The 47th law Commission in 1972 headed by Mr Gajendra Gadkar, submitted a report for the requirements of sentencing where they have stated several requirements to be considered before awarding sentencing[2]. Those are;

  • The nature of the offence
  • The circumstances-extenuating or aggravating-of the offence
  • The offender's prior criminal record, if any
  • The offender's age
  • The offender's professional or social record
  • The offender's background (education, home life, sobriety and social adjustment etc)
  • The emotional and menacing nature of the offender
  • The prospect of rehabilitation and restoration
  • The possibility of treatment or training to the offender
  • Deterrence of the sentence

The Malimath Committee (The Committee on Reforms of Criminal Justice System), 2003[3] had also suggested the urgent need of sentencing guidelines. They also have suggested formation of Statutory committee. This was also supported by the Madhava Menon Committee (Committee on Draft National Policy on Criminal Justice), where also advised for uniform statutory sentencing guidelines. The then law minister, in 2010, stated that India is also planning to establish 'uniform sentencing guidelines policy' like USA and UK[4].

The Indian Penal Code described the offences and the punishments that go along with them. Only the maximum penalty is specified for certain offences, and only the minimum penalty is specified for others. The Judge has a lot of liberty in deciding on the sentence, as long as he or she stays within the statutory bounds. The Judge is no longer guided in deciding the most appropriate penalty in light of the facts of the case. As a result, each Judge is free to make decisions based on his or her own judgement. As a consequence, there is a complete lack of continuity. The more the discretion will be the more arbitrary the judgement will be. Instead of depending on judicial rules, any formal guidelines or legislative requirements that specifically specify the range of punishment should be the ideal choice for India, since in the absence of any guidelines, parties do not feel justified, and they then seek relief from higher courts. As a result, the court's decision is postponed, and swift justice is not delivered in a timely manner.

Five men, two of whom were juveniles, raped a child in the Shakti Mills rape case [39 (1997) 2 SCC 453][5]. Under the new Section 376E of the Indian Penal Code, the three owners of the business were sentenced to death. The court was harsh with the defendants in this case; they had already been sentenced to life in a previous rape case and were allowed to die for that crime at the time of the crime. Many of the prisoners have a socioeconomic history of juvenile crime or criminal offence, as well as hardship. Despite the heinous details of the 2006 Khairlanji incident, which included a mob stripping a mother and daughter of their integrity in the market place and a ghastly assault withstanding the injection of objects in their genitalia, it was a mistake for people in that part of society to demonise those of the older generation[6]. This crime was no less heinous than Shakti Mills because it targeted an entire society, a diverse community, rather than a single person. However, the defendants in this case were only given life sentences. People from lower socioeconomic status were targeted, and those who were convicted of a crime were sent to the penal colony.

This lack of immediacy and inconsistency in sentencing give an open door for the offenders to manipulate the Judiciary and escape appropriate punishment. With sentencing guidelines in place, the courts will be able to respond to the community's regular cries for justice. Judges must be able to impose fair penalties that are proportional to the crime committed. The retributive and just desert theories of criminal sentences can only be met in this way. Hence, may be this is the right time to have a proper, systematic, analysed and structured uniform sentencing guideline for Criminal cases for all the higher as well as lower courts to follow.

There are several reasons to follow sentencing guidelines.

  1. Rational and consistent- Sentencing decisions should be well-researched and based on clearly-defined sentencing standards that are consistently applied by the judiciary.
  2. Proportionality- The severity of the penalty should be proportional to the seriousness of the offence, taking into consideration the facts of each case.
  3. Uniformity- For identical crimes, same perpetrators should face similar consequences.
  4. Guarantee Public Safety - The proposed punishments should ensure that violent criminals are sentenced to jail, and that they address not just the penalty that the offender deserves, but also the punishment that will help in the offender's rehabilitation and reintegration into society.

The author is an Assistant Professor at  KIIT School of Law, Bhubaneswar, OdishaViews are personal.


Dr. Justice V.S. Malimath, 'Committee on Reforms of Criminal Justice System', vol I (2003)

'Khairlanji : The Crime and Punishment' The Hindu Newspaper (10 November 2016) 1

Law Commission of India, 'Report No. 47 (The Trial and Punishment of Social and Economic Offences)' (1972)

Lubitz RL and Ross TW, 'About This Series Sentencing Guidelines: Reflections on the Future' [2001] Papers From the Executive Sessions on Sentencing and Corrections

S FR and Lyn MK, 'What Are Sentencing Guidelines ?' (Sentencing Guidelines Resource Center, 21 March 2018) 1

[1] Frase Richard S and Mitchell Kelly Lyn, 'What Are Sentencing Guidelines ?' (Sentencing Guidelines Resource Center, 21 March 2018) 1 .

[2] Law Commission of India, 'Report No. 47 (The Trial and Punishment of Social and Economic Offences)' (1972).

[3] Dr. Justice V.S. Malimath, 'Committee on Reforms of Criminal Justice System', vol I (2003) .

[4] Robin L Lubitz and Thomas W Ross, 'About This Series Sentencing Guidelines: Reflections on the Future' [2001] Papers From the Executive Sessions on Sentencing and Corrections.

[5] 39 (1997) 2 SCC 453

[6] 'Khairlanji : The Crime and Punishment' The Hindu Newspaper (10 November 2016) 1 .


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