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Evolving Consistency and Rationality in Sentencing

By: Ananya Panicker* |

The judge, when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains”.

- Benjamin J Cardozo

Discretion is said to be the right or the power to make official decisions based on logic and correct judgment of the situations when selecting from the alternatives available. Because it is granted to judges in the form of judicial proceedings, the use of such authority is considered omnipotent. Penal law establishes the maximum penalties that can be imposed for a crime, then leaves it to the judiciary's discretion to determine a suitable sentence, even if it must remain within the prescribed limits. The general rule in criminal law is to give a required sentence regardless of the seriousness of the offence, providing the judge with broad discretion in the matter of punishment.

The problem with the existing system as provided for in the Code of Criminal Procedure is the difference in the results of the same or identical collection of evidence. The decision can be made by the judges after the parties have been considered. However, the factors that should be considered when making the decision and those that should be avoided are not specified anywhere. This is where the judge is supposed to exercise his or her own discretion to fix the penalty. This discretion is inevitably violated in a vast majority of cases due to irrelevant concerns and the application of personal prejudices.

Thus, through this article, the author discusses the principle of rationality and discretion in sentencing by using a few cases as examples, particularly in the case of the death penalty.

  • Mention of Death Penalty in the Indian Penal Code

Pursuant to Section 303 of the Indian Penal Code, death is prescribed as the only penalty for the murder of a person serving a life sentence, the only clause of the Indian Penal Code to do so, and even this one section has been set aside by the Hon'ble Supreme Court as found to be in violation of the constitutional provisions. There are other sections where death has been prescribed as an alternative penalty for the offense. The power granted to the courts in these cases is of the highest significance and is extremely difficult to exercise because of the irrevocable nature of the death penalty.

  • Reasoning and rationale while sentencing in Murder trials

The thinking of a judge in a particular case depends on different factors, such as the severity of the commission of the offence, the family background of the defendant, the prior criminal record of the offender, the company of the offender, etc. The judge's opinion, when punishing the defendant, may have been largely influenced by the conflict between education and ethics. The precedents developed with respect to the sentencing of such crimes would somehow interfere with the judge's understanding of the essence of the crime. Ideally, it shouldn't be that way.

On this basis, judges are generally cautioned not to discuss a case or to express their personal views on a case at the trial of the case, as this can influence their decision and the ethics of sentencing.

  • Influential Factors

It is agreed that the judges have been affected by a variety of considerations during the proceedings of the cases. In certain cases which were quite brutal, the Court decided to award the victim the harshest of punishments as had that not been done people would have lost faith in the judiciary. In the case of Mahesh v. State of Madhya Pradesh, the Supreme Court refusing to give lesser punishment to the accused held that,

“To give lesser punishment to the accused would render the justice system of this country suspect. The common man will lose faith in courts. In such cases, he appreciates and understands the language of deterrence more than the reformative jargon.”

However, there are examples of when even after the most brutal crimes were committed the court granted the offenders low punishment, or in case, they were granted a death sentence or life imprisonment by lower courts, the Supreme court overturned the judgment and granted minimum sentence. One such case, was the Khairlanji massacre in 2006, where a mob stripped the mother and daughter naked within the market and sexually assaulted them, even inserted objects in their genitalia then ghastly murdered them. Even after committing such a brutal crime the accused were awarded only a life sentence. Such are the cases that fail to give justice to the victims and also make people lose their faith in the judiciary. The courts need to have a definite sentencing policy for such crimes.

  • Disparity in Sentencing

The disparity in punishment occurs when two similar offenders are dissimilarly sentenced or when two dissimilar offenders are equally punished. Sentence is inherently discretionary, and discretion tends to the disparity. There is a need to differentiate between justified and unjustified disparity since the discrepancy between sentences can be explicitly justified based on the seriousness of the offence, the number of prior offences, the youth, or a multitude of other considerations. The unjustified disparity is a matter of legitimate concern and a catalyst for action in the debate on the structuring of sentencing discretion. When all the ingredients are fairly met in both the situation and the sentences vary in a seemingly unjustified fashion, it is argued that there has been an unjustified disparity.

Thus, if ages or chances of reformation are assumed to be attenuating factors in one case and the same is denied as attenuating factors in another case, an unjustified disparity is established. Disparity depends on one’s theory of sentencing. The disparity in the sentencing process leads to a breakdown in the system's confidence, especially among the general population. The problem of disparity generates hostile behaviours in the offender's head which decrease the likelihood of his socialization when he thinks he is being discriminated against. There is no single policy to deal with this disparity, and this further brings up the need for a sentencing policy in India.

  • Sentencing Policy in terms of Death Penalty

On 12 December 2006, a bench of Justices S.B. Sinha and Dalveer Bhandari delivered a verdict in the case of Aloke Nath Dutta and ors. v. State of West Bengal. In an exceptionally candid decision, the Court acknowledged that it had yet to establish a strategy of punishment in capital cases. Over the last two decades, the Bench has reviewed numerous decisions under which the Supreme Court determined whether or not the case was 'rarest of rare' and concluded that:

What would constitute a rarest of the rare case must be determined in the fact situation obtaining in each case. We have also noticed hereinbefore that different criteria have been adopted by different benches of this Court, although the offences are similar in nature. Because the case involved offenses under the same provision, the same by itself may not be a ground to lay down any uniform criteria for awarding death penalty or a lesser penalty as several factors, therefore, are required to be taken into consideration.” The exasperation of the Court was evident when it stated, “No sentencing policy in clear cut terms has been evolved by the Supreme Court. What should we do?” The Court commuted the sentence.

However, on the same day, another bench of Justices Arijit Pasayat and S.H. Kapadia delivered a judgment in the case of Bablu Mubarik Hussain v. State of Rajasthan. In that case, the Court upheld the appellant's death sentence for murdering his wife and four children. The motive for the murder was not mentioned in the verdict. Referring to the importance of the reformation and recovery of prisoners as one of the key goals of the administration of criminal justice in the region, the judgment merely applied to the allegation of the murders of the convicted as proof of his lack of guilt. There was no discussion of the particular condition of the appellant or the likelihood of change in his case.

The fact that these two Supreme Court judgments were delivered on the same day highlights not only the benches' whimsical nature, but also reiterates the Aloke Nath Dutta bench's contention that there is no sentencing policy, leaving decisions to the individual opinions of the judges at the time.

The sentencing policy would provide guidelines on the considerations that the court should weigh that may impact the sentence. Criminal crimes are very broadly specified and may have differing degrees of severity. They set various levels of sentence on the grounds of the injury caused to the victim and the responsibility of the offender. Offenses arise in several ways, with several different results. It is also important to provide a set of sentences that illustrate the severity of each particular offense. Thus, ensuring the judges are flexible in their approach to sentencing.


Sentencing reform is one of the most critical issues in contemporary India, the subject of which is highly significant as misuse of discretion is becoming increasingly rampant. In order to create a welfare state, the judiciary must be less burdened by disparities and discrimination in sentencing for comparable evidence. India needs to have a sentencing policy because without it disparity in judgments of similar cases would continue which would further lead to the common people questioning the integrity of the judiciary. Also, India needs to have a Sentencing council that would analyze and suggest the range of punishments given by courts in the present sentencing policy and would also help in removing those which are traditional and are incapacitated.


*The author is a student at Damodaram Sanjivayya National Law University, Visakhapatnam.



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