If a person has committed a crime and is found guilty, then the Court will award an appropriate sentence as under statute. The criminal law prescribes the minimum and the maximum punishment that can be given to a person charged of that particular crime if proved guilty. But it is left upon the discretion of the Court after hearing the parties whether the guilty would be given the minimum sentence, the maximum sentence or something in between. Therefore, it is seen that often there are huge disparities in sentences for a similar crime committed by different people. This is called non-uniformity of sentencing, and it occurs mainly because of the lack of sentencing guidelines in India.
According to the Sentencing Council of the United Kingdom, criminal offences are very broadly defined and can have different levels of seriousness. Therefore to maintain uniformity and consistency in the sentences given by Courts of England and Wales, guidelines are formed by the Sentencing Council, which must be followed by the Courts. In the absence of guidelines, past judgments serve as a guide. The United States Sentencing Commission to has brought out a guidelines manual for uniform sentencing policy for those convicted in the United States Federal Court.
In India, the factors that should be considered while awarding a sentence are not specified anywhere, and the judge is expected to use his discretion, wisdom and judgment to fix the sentence for a particular crime. Although sentences are given based on the merit of each case, often precedents of sentencing are looked at. In Re Prashant Bhushan case, senior advocate Prashant Bhushan has been held guilty for criminal contempt of Court. Though the maximum sentence for criminal contempt that can be awarded under S.12 of The Contempt of Courts Act, 1971, is simple imprisonment for up to six months and fine up to two thousand rupees, the Hon’ble Supreme Court of India, in their wisdom and discretion awarded a fine of rupee one, which is the minimum punishment, to Mr Bhushan. This will serve as a precedent and probable guide for future criminal contempt of court cases.
To illustrate arbitrariness in sentencing, we can take the punishment for rape in Indian courts. The Indian Penal Code (I.P.C.I.P.C.) in S.376 (1) prescribes a minimum punishment for ten years of rigorous imprisonment, and in special cases such as gang rape (S.376-D), the minimum punishment is twenty years. In Santosh Routray vs State of Odisha, the Odisha High Court had reduced the prison sentence of the person guilty of rape to 5 years six months from seven years, which was the prescribed minimum punishment at the time of sentencing, because a longer prison sentence would be harmful to the accused’s career. Further, there have been instances, such as in Y. Bijoy Bhaskar vs State of West Bengal when the punishment of life has been reduced to fourteen years by the Calcutta High Court. So the question arises when the Court is prescribing a certain number of years of imprisonment as punishment for a crime, based on what did it arrive on that particular number? A clear sentencing guideline would have put the matter to rest.
Even for less serious crimes like theft, there is no structured sentencing guideline. The punishment for theft can extend up to three years of imprisonment or with fine or both. For a boy accused of theft of Rs.200, bail was set at Rs.10, 000 and being unable to pay that amount the accused had to remain in custody for twelve months when his crime should not have a sentence of more than three months of imprisonment. He could get free only by pleading guilty and getting convicted because he had already served more than his sentence.
In S.302 of the I.P.C.I.P.C., it is laid down that the punishment for murder is imprisonment for life or death and fine. But in what cases the Court should sentence death had been a matter of debate. In Bachan Singh vs State of Punjab, it was laid down that the death penalty will be awarded in the ‘rarest of rare’ case. In Machhi Singh vs State of Punjab, the ‘rarest of rare’ theory came under scrutiny, and the Supreme Court laid down five factors for considering a case as one that calls for the death penalty. But while awarding death sentence in the famous ‘Nirbhaya Judgment’, the Court, in its reasoning, wrote about “public protest” and “ripples in the conscience of society”. In Vijay Raikwar vs. State of Madhya Pradesh, the highest Court of India commuted the death sentence to life imprisonment even though the victim was less than 12 years when she was raped and murdered.
In 2003, the Committee on Reforms of Criminal Justice System, popularly known as the Malimath Committee, was formed and it came up with several points for bringing reforms injustice. One of them was setting up a permanent Statutory Committee for introducing clear and structured guidelines for sentencing in India. If the committee’s report is put into action, then this kind of guideline will introduce uniformity in the sentences of punishment given for crimes in India.
Sentencing in India depends to a large extent on the vagaries of judges in the absence of proper guidelines like that in U.K.U.K. and U.SU.S. The discretionary power vested on the Court to decide the quantum of punishment I get abused due to various reasons such as personal prejudices and public opinion. Therefore non-uniformity in sentencing must stop being the norm.
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