“Imprisonment is a way of pretending to solve the problem of crime. It does nothing for the victims of crime, but perpetuates the idea of retribution, thus maintaining the endless cycle of violence in our culture.”¹

Punishment and sentencing are the benchmarks on which a criminal justice system is evaluated. It should encourage retribution, prevention, deterrence, and reformation and should be proportionate to the crime committed.  The just and proportionate punishment is regarded as the principle of ‘Just desert’. But deciding just and proportionate punishment is a herculean task for a judge in India as there is no codified policy prepared by legislature neither there are any set guidelines framed by the supreme court and the remaining attention is on retaining or abolishing the death penalty.

Presently, the Indian Penal code is the comprehensive penal law describing offences and prescribing their maximum and minimum punishment and resultantly the judiciary enjoys wide discretion in awarding punishment. This discretion has resulted in variations in punishment across the courts thus violating the right of fair conviction of the convicts.

The sentencing policy came to the glare of public through the case of State of Punjab vs Prem Sagar, wherein the Hon’ble Supreme court acknowledged the absence and need of sentencing policy in India, and yet again in the case of Soman vs State of Kerala, the apex court went to say that the punishment is the weakest part of the criminal justice system in India as there are no legislative or judicially laid guidelines to assist in sentencing and punishment. A beam of light came in October of 2010 through the statement of Law minister M Veerappa Moily where he assured that the central government is working on a uniform sentencing policy. Despite the cognizance of judiciary and lawmakers on sentencing policy even after a decade, it is still limited to discussions.

The sentencing policy is equally important from the constitutional perspective as it is important for criminal justice system. Though the Indian constitution had little to say about criminal justice. One significant provision is Article 20 of the Indian constitution enshrines the principle of double jeopardy, self-incrimination, and protection against ex post facto law. Additionally, the right to fair and speedy trial became an unalienable right under Article 21 since the judgement of Hussainara Khatoon v. Home Secy., State of Bihar. Lastly, Article 14 in its succinct terms guarantees the right to equality before the law and equal protection of laws. The absence of sentencing policy encroaches upon the right to speedy and fair trial and the right to equality before the law.

The underlying principle of ‘Equality before law’ means that the equals must be treated equally while unequals must be treated differently. This applies to sentencing as well that the punishment in cases of similar facts and circumstances should be uniform and without variations and inconsistencies. Because of the absence of sentencing policy, the higher judiciary has either enhanced or reduced the punishment granted by the lower judiciary in a catena of cases which implies that with the change in the forum the application of the law has also changed which violates the right to equality before the law.

In K.S. Muhammed vs Assistant collector of central excise,the supreme court substituted the sentence imposed by Kerala High court of two months with a fine of 1 lakh to only fine of 3.5 Lakhs. In another case of State of Madhya Pradesh vs Kedar Yadav,the apex court reversed the decision of the Madhya Pradesh High court and enhanced the punishment of one year and three months to three years. In Santosh vs State of Kerala,the court reduced the sentence from three years to already undergone observing that one of the accused was given benefit of doubt and earlier accused was never involved in any criminal activity. In Bishnupada Sarkar & ors. vs State of West Bengal,the Hon’ble Supreme court observed that a distinction has to be made in the sentence awarded to accused of old age and other accused of young age and thus awarded the reduced punishment to convict which was sixty-five years old. In Mohd. Maqbool Tantray vs State of Jammu & Kashmir, the conviction of the accused was reached in particular based on the confessional statement and was awarded the rigorous imprisonment of five years, but the Supreme court observed that confessions are encouraged thus quantum of punishment can be reduced.

In the aforenoted cases, the issue was only regarding the quantum of punishment, and to get the relief the cases had to appeal to the Supreme court through a protracted trial which would not have been the situation if there was a codified sentencing policy. The cases though set out as to what other factors can be considered while deciding the just punishment but the lacunae is that they are not formed into guidelines or a policy thus they have no usage in the trial courts.

The aforenoted cases also demonstrate as to how the absence of sentencing policy encroaches upon the right to speedy trial. Justice RC Lahoti stated in P. Ramachandra Rao v. State of Karnataka that:

“Speedy trial would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision, and retrial — in short everything commencing with an accusation and expiring with the final verdict.”

The case of K.S. Muhammed vs Assistant collector of central excise took thirty years, Bishnupada Sarkar & ors. vs State of West Bengal took eleven years to reach a final verdict. Bizarrely in Mohd. Maqbool Tantray vs State of Jammu & Kashmir the accused was awarded imprisonment of five years but because of a long trial, the accused had gone imprisonment of more than eleven years with trial almost continuing for twenty years which tempted the supreme court to symbolically reduce the sentence to already undergone.

The roots of the doctrine of vagueness can be found in American constitutionalism. This doctrine obligates the state to explicitly and definitely state as to what conduct is prohibited and punishable in criminal laws. The United States Supreme court described various elements of vagueness in Richard Grayned vs City of Rockford as follows:

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”

After the landmark judgement of Maneka Gandhi vs Union of India, due process was introduced into Indian constitutional jurisprudence. Consequently, a procedure established by law must be fair, just, and reasonable, not fanciful, oppressive, or arbitrary. The doctrine of vagueness is a corollary to due process of law. The Supreme court of India discussed this doctrine in Shreya Singhal vs Union of India wherein Section 66A of Information Technology act, 200 was struck down on account of being vague.  The doctrine of vagueness squarely applies to the sentencing policy. The dicta of the Grayned case (supra) provides two types of vagueness namely ‘substantive vagueness’ and ‘procedural vagueness’. This squarely applies to sentencing policy. A codified sentencing policy by laying down standard procedure eradicates the procedural vagueness behind sentencing.

A sentencing policy is not restricted to bringing uniformity in punishment and shifts the sentencing to reformative sentencing. At present, Section 53 of the Indian Penal code provides the kinds of punishment that could be given, and they are death, imprisonment, forfeiture of property, and fine. These punishments are deterring and preventive in nature but completely ignores the reformative approach. Expressing on the reformative approach Justice Krishna Iyer observed in Narotam Singh vs State of Punjab that the reformative approach should be the object of criminal law in order to promote rehabilitation. Thus, new forms of punishment are required that reflect reformative values. An initiative was taken in 1972 to introduce three new forms of punishment namely community service, compensation to victims, and public censure but the proposal was rejected.

In 1997 the report by the law commission submitted that community service may not be practicable and will not amount to punishment. But in 2003 Justice VS Malimath committee highlighted the need for new forms of sentencing and suggested incorporating community service as an alternative to punishment considering certain restrictions like the age of the accused should be less than 18, punishment in the offence should be less than 3 years etc. Again in 2007 NR Madhava Menon committee backed the suggestion made by the Justice VS Malimath committee and emphasised that new forms of punishment will be helpful in avoiding short-term imprisonment thereby resolving the problem of overcrowding of jails.

Instantly, community service as a punishment is not alien to the Indian legal system. Juvenile Justice act, 2015 recognises the community service order for children found to be in conflict of law. Further, courts have started utilising community service. In Prahladbhai Jagabhai Patel vs State of Gujarat, the supreme court gave community service as one of the conditions for bail. In State vs Sanjeev Nanda,the supreme court took a step ahead and held that serving the society may not be a punishment in a real sense but in community service, the convicts payback to the community what they owe. And awarded the community service for two years and on default to undergo simple imprisonment for two years. In Francis vs State of Maharashtra, the Bombay High court observed that the dispute between the parties was personal thus instead of punishment the community service was granted. In another case of Bombay High court where the accused were students, community service was awarded. These cases reflect that even if there is no legislative provision for community service the courts have already accepted the community service. However, they are only granted considering the peculiar facts and circumstances of the case and thus they are not used in the trial courts reason being the absence of statutory provisions.

The judicial system in England and Wales is akin to the Indian judicial system. In England and Wales, the criminal cases start in the magistrates’ court, but the more serious criminal matters are committed to the Crown Court. Appeals from the Crown Court will go to the High Court, and potentially to the Court of Appeal or even the Supreme Court. Similarly, in India, criminal cases will start in the court of magistrate and serious matters are committed to sessions court then appeal lies to High court and lastly to Supreme court.

Till 2003, the courts in England and Wales were enjoying the same status alike to India, they were given wide discretion which led to inconsistency in punishment and sentencing. Considering the situation, in 1998 Sentencing Advisory Panel (SAP) was established and after five years Criminal Justice act, 2003 was passed and a new guidelines council named Sentencing guidelines council (SGC) was established. Both SGC and SAP were working concurrently till 2009 but both committees were replaced by the Sentencing council alongside the enactments of the Coroners and Justice Act, 2009. The reason behind this development was the rising prison population. The same situation is at present faced by India. According to the CHRI analysis of the NCRB prison statistics, the prison population over the last five years has increased by 14.1 percent. 

The sentencing policy in England approaches uniformity through rigid as well as flexible manner. It is rigid in the sense that the courts have to follow the guidelines but at the same time, courts can award punishment as per their discretion if it becomes necessary to meet the ends of justice. The lesson to be learnt from this is that sentencing policy is not meant to kill the discretion of the courts instead it is to lay down a uniform procedure for sentencing.

Along with the codified sentencing policy, United Kingdom has an independent public body called the sentencing council. This council is responsible for developing sentencing guidelines, monitoring their use, analysing the impact of guidelines on sentencing practice, and publishing information about sentencing practice in magistrate courts and the crown court. As part of its duty sentencing council has formed over 130 guidelines since 2010. And in a recent development, it has consolidated the existing sentencing procedure law into a single sentencing act which came into effect from 1 December 2020. The lesson is that the implementation of the sentencing policy requires rigorous toil and thus it is suggested that instead of putting the implementation of policy on the existing and already functioning body, a new independent body shall be formulated.

Is sentencing policy worth it or it is just a much cry little wool? This question is the very soul of the discussion. The ideal result of a sentencing policy should be consistency and uniformity. Research conducted by Jose Pina-Sánchez and Robin Linacre assessed the usage of sentencing guidelines in the crown courts in cases pertaining to assault.  The findings were that the variability in sentence lengths attributed to differences between courts is only 1.8 percent of the total and the majority of guidelines factors are treated consistently amongst courts. This research thus proves the hypothesis that sentencing policy enhances consistency. It is pertinent to note that this consistency has been achieved within a decade and is expected to improvise in the long run.

The need for the sentencing policy was felt because of the rising prison population. In England and Wales, the prison population peaked in 2012 but since then it has been decreasing and came to its lowest in 2020 since 2006. The reasons are decrease of prisoners serving sentences of four years or less, decrease in the number of indeterminate sentenced prisoners. However, there are other factors as well like the Covid -19 temporary release scheme, covid-19 impact on court functioning. In England and Wales, 59,000 prisoners were sent to prison in 2018 and the majority had committed a non-violent offence and almost half were sentenced to serve six months or less. This statistic shows that sentencing policy doesn’t have a considerable effect on reducing the prison population.

The reason behind this failure is the fewer usage of community sentences. As per the report by crest, there has been a staggering 78 percent decline in the number of community sentences from September 2011 to September 2016. The report noted that in 2016 only 100,000 community orders and 56,000 suspended sentences were given which if compared to 2006 it has seen a decrease in community orders and an exponential increase in suspended sentence orders. The report also answers the fewer usage of community sentences. It observed that 33 percent of offenders serving community orders are caught reoffending within the year of being sentenced. This makes the judges and public lose their confidence in community order and making them inclined towards granting imprisonment rather than community order.

In the last two decades, crime and preparators of crime have seen drastic change. Now younger population in large proportion is getting involved in committing less serious as well as heinous crimes. Undoubtedly, the remedy is not to put them behind the bars and exposing them to the darkest world of crime, and turning them into habitual offenders. A serious effort is required to keep them away from prisons and at the same time reformatting them into law-abiding and asset citizens. Indian penal code is an eighteenth-century law and requires reconsideration with regard to its object. Though with amendments new offences have been added and the definition of existing offences have been changed. But nothing has been done till to its sentencing structure.

Sentencing concerns society, victims, and convicts. For convicts, it should be just and proportionate, for the victim it should be retributive and for society, it should be a way to reduce the crime rate. However, not a single objective is achieved by the present system. Offenders are turning into habitual offenders; crimes rates are rising steeply. The formation of sentencing policy will invigorate the Indian criminal jurisprudence. In recent times, an endeavour has been made in various common law jurisdictions to achieve uniformity in sentencing. Since 2014 after the address of Honorable Chief justice Sundaresh Menon, Singapore has seen guidelines for offences such as drug trafficking, national service evasion, rape and drink driving.

Indian courts already recognise that may be provided in sentencing policy however the cognizance of which is only available to higher judiciary. As it is said the more justice dispensation is at the lower judiciary, the more accessible it is. By approaching uniformity and reducing variations, the sentencing policy will ensure that the trial courts are being treated with the same credibility and reliability alike to the higher judiciary.

The English model of sentencing policy has achieved great success. The sentencing policy has succeeded in ensuring consistency and has considerable things to be adopted. For proper implementation, India will require a sentencing council on the lines of the sentencing Council of the United Kingdom. However, the concept of suspended sentences should not be adopted considering its negative effect on community service. For community services, they should be such formed that they are rigorous so that it in real sense doesn’t appear to be less than a punishment. In the United Kingdom, community services include charity work, removal of graffiti, renovating derelict areas, clearing wasteland, decorating public places, and litter picking. But community service can be given considering the nature of an offence. As an example, a person convicted of animal cruelty may be awarded community service at an animal shelter.

To sum up, let the punishment be decided by a standard procedure, not by the percipience of judges which changes with courts. Let’s reform the penal system from penalising to reformative.