'Sentencing Shall Not Be A Lottery' : Supreme Court Recommends Union To Frame Sentencing Policy To Reduce Judge-Centric Disparities

Observing that there existed wide disparity in sentencing of convicts as it is completely judge-centric, the Supreme Court has recommended that the Union Government on the feasibility of introducing a comprehensive sentencing policy and a report thereon, within a period of six months“As it is an important aspect which has escaped the attention of the Government of India, we recommend the Department of Justice, Ministry of Law and Justice, Government of India, to consider introducing a comprehensive policy, possibly by way of getting an appropriate report from a duly constituted Sentencing Commission consisting of experts in different fields for the purpose of having a distinct sentencing policy. We request the Union of India to respond to our suggestion by way of an affidavit within a period of six months from today.”, the bench comprising Justices MM Sundresh and SVN Bhatti said. Since sentencing is a matter of individual Judge's opinion, there arises a disparity in awarding a sentence due to the absence of a clear policy or legislation on sentencing, the court said. “Hearing the accused on sentence is a valuable right conferred on the accused. The real importance lies only with the sentence, as against the conviction. Unfortunately, we do not have a clear policy or legislation when it comes to sentencing. Over the years, it has become judge-centric and there are admitted disparities in awarding a sentence.” The court noted that due to the absence of a clear sentencing policy, a decision of a Judge in sentencing would vary from person to person where a Judge from an affluent background might have a different mindset as against a Judge from a humble one. A female Judge might look at it differently when compared to her male counterpart. Thus, the court observed that there's a need for a clear sentencing policy, which should never be judge-centric as society has to know the basis of a sentence. “A Judge can never have unrestrictive and unbridled discretion, based upon his conscience formed through his understanding of the society, without there being any guidelines in awarding a sentence. The need for adequate guidelines for exercising sentencing discretion, avoiding unwanted disparity, is of utmost importance.”, the Judgment authored by Justice MM Sundresh said.Sentencing shall not be a lottery"Sentencing shall not be a mere lottery. It shall also not be an outcome of a knee-jerk reaction. This is a very important part of the Fundamental Rights conferred under Articles 14 and 21 of the Constitution of India, 1950. Any unwarranted disparity would be against the very concept of a fair trial and, therefore, against justice," the Court observed.The judgment referred to comprehensive models adopted by countries such as Canada, New Zealand, Israel and the UK and the previous reports and recommendations by the Law Commission in 2003 on the need for a distinct sentencing policy in India. Feasibility of Release of Convict On Probation Be Considered Before Passing Sentence After the rendering conviction to an accused, the court has to hear out on the sentencing of an accused. However, before passing the sentencing order, the court is obligated to consider the feasibility of proceeding in accordance with the provisions of Section 360 of the CrPC, 1973 which speaks of releasing a convict on probation of good conduct or after admonition. “Any attempt to ignore either Section 360 of the CrPC, 1973 or the provisions as mandated in the Act, 1958 would make their purpose redundant….Therefore, we have absolute clarity in our mind, that a trial court is duty bound to comply with the mandate of Section 360 of the CrPC, 1973 read with Sections 3, 4 and 6 of the Probation of Offenders Act, 1958 before embarking into the question of sentence.”, the court said. “As we discuss the issue we have flagged, we understand that the issue is an extremely complex one and it is the duty of the States and the Union of India to deal with the situation by duly considering the three different modes discussed above. There has to be a conscious discussion and debate over this issue which might require constituting an appropriate Commission on Sentencing consisting of various experts and stakeholders. We illustratively suggest “the members from the legal fraternity, psychologists, sociologists, criminologists, executives and legislators”. Societal experience would come handy in coming to a correct conclusion. What we have at present is an imposition of a sentence by way of a legislation. There are obvious errors and lacunae, which have been pointed out in the preceding discussion. It may also be imperative for a court to have an assessment to be made by an independent authority on the conduct and behaviour of the accused for the purpose of deciding the sentence. The guidelines which have been proposed by this Court may also be considered. This would include the creation of a competent authority tasked to give a report and its composition.”, ...

'Sentencing Shall Not Be A Lottery' : Supreme Court Recommends Union To Frame Sentencing Policy To Reduce Judge-Centric Disparities

Yash Mittal

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