Why sentencing norms need to be streamlined

Last month, the Supreme Court (SC) in Sunita Devi v. State of Bihar requested the Union government to constitute a sentencing commission to prepare a report on the feasibility of introducing a comprehensive sentencing policy within six months. The court observed that disparity in sentencing arises due to the absence of a clear policy or legislation on sentencing. This step underscores the need for consistency and fairness in the Indian criminal justice system.

The stage of sentencing is the most public stage of a criminal trial. Many factors which do not play a role in determining criminal responsibility i.e. conviction or acquittal, come into the picture while determining the sentence. During sentencing, courts often consider the exculpatory force of social and extralegal factors, granting significant discretion to judges. This discretion can lead to personal biases and stereotypical assumptions. Thus, it accords judges with a lot of discretion and leads to inconsistency in the sentencing process. A structured approach to sentencing can mitigate disparities, enhance transparency, and foster public confidence in the judiciary.

The SC’s directive reflects a proactive approach to addressing systemic issues within the judiciary. This move also aligns with global best practices. Many countries, including the United States and the United Kingdom, have established sentencing commissions to guide their judicial systems. However, this is not the first time that such an attempt has been made in India. The SC and the Law Commission have made similar recommendations earlier. The Malimath Committee, in its 2003 report, emphasised the need for a uniform sentencing policy to ensure consistency and fairness in judicial decisions. However, these efforts have not yielded any significant results.

While the SC’s recommendation is laudable, a more effective approach may be for the Court to take the lead in framing these guidelines. The judiciary possesses the requisite expertise and an intimate understanding of the nuances of sentencing. It can ensure that the guidelines are both practical and grounded in judicial experience. There are several notable instances where the Court has stepped in to create guidelines in the absence of timely executive action. In DK Basu v. State of West Bengal (1997), the Court set guidelines for the rights of arrestees which were later included in the Code of Criminal Procedure. In Vishakha v. State of Rajasthan (1997), it issued guidelines to prevent sexual harassment at the workplace which formed the basis of a specific legislation. In Arnesh Kumar v. State of Bihar (2014), guidelines were provided for arrest procedures. Recently, in Manoj v. State of Madhya Pradesh (2022), the Court mandated that courts must have sufficient material on the accused before issuing a death sentence.

While coming up with a sentencing policy, the government should adopt an evidence-based approach, examining past sentencing trends, and identifying patterns of inconsistency. Sentencing decisions in India are influenced by the socio-economic status and gender of the accused, background of the judges, and quality of legal representation. They are occasionally driven by knee-jerk reactions to similar cases, with harsher sentences imposed under public outcry and media pressure. Sometimes, harsher punishments are incentivised. The Madhya Pradesh government introduced a scheme wherein incentives were given to prosecutors for securing the death penalty which was later withdrawn only after the intervention of the SC. A principled sentencing policy should address all these problems. Sentencing guidelines in the US establish sentencing ranges based on the offence, clearly enumerated mitigating and aggravating factors, and the offender’s criminal history. Judges are allowed to depart from these factors, but only on fulfilling certain other criteria. Such departure is subject to appellate review. Such an approach limits the discretion provided to judges but does not take it away altogether.

The case which prompted the apex court to issue the directive on the sentencing policy (Sunita Devi), involved a matter in which a POCSO court awarded the death penalty within three days, after completing the entire trial in a day. There were serious lapses in the procedure followed by the court. At every stage of the trial, the accused was denied a reasonable opportunity to defend himself. Although speedy trials are essential, it is important to note that this “speed” is sometimes achieved by doling out harsher punishments through arbitrary and illegal procedures, violating the accused’s rights under Articles 14 and 21 of the Constitution of India.

Eesha Shrotriya and Shantanu Pachauri are assistant professors and co-directors, Centre for Criminal Justice Studies, School of Law, RV University, Bengaluru. The views expressed are personal