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NEW SENTENCING POLICY IN INDIA: AN OVERVIEW

ABSTRACT

The Indian judicial system follows the traditional common law formula for sentencing: courts
are provided with wide discretion to determine a fit sentence, with appellate review
constituting the only institutional mechanism to promote consistency, fairness and principled
sentencing. Sentencing is a legal process where criminal sanctions are authorized and
imposed in individual cases following criminal convictions, policies and theories were
formed to deal with these sanctions. This paper articulates the evolution, formation and
emerging sentencing policy of India in detail. It explains the criminal justice system of India,
the changes in discharging punishments and also focuses on the present modern problems in
the sentencing system such as sentencing disparity to the point. Further suggestions were
given that can be taken in order to solve the problems and develop the system of sentencing
in India. Reference is made to the English law.

INTRODUCTION

Graphically the growth of crime, the impact of criminology and the effectiveness of criminal
justice may be represented by a triangle the largest side of which corresponds to crime, the
smallest to criminology, and the medium to criminal justice.1Like in every civilized society,
in India too, a criminal justice system evolved.Socio-economic and political conditions
prevailing during different phases of the history of India influenced its evolution.
Accordingly, the objectives of the criminal justice and methods of its administration changed
from time to time and from one period of history to another. 2

CRIMINAL JUSTICE SYSTEM:

Criminal justice is the delivery of justice to those who have committed crimes. The Criminal
justice system is a series of government agencies and institutions whose goal is to identify
and catch the law- breakers and to inflict a form of punishment on them. Other goals include
the rehabilitation of offenders, preventing other crimes, and moral support for victims. The
primary institutions of the criminal justice system are the police, prosecution and defence
lawyers, the courts and prisons. In ancient India Administration of justice, according to the

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Smriti, was one of the most important functions of the King. The main authority of king is to
administer justice.

The criminal justice system of ancient India was so organised that every villager had easy and
convenient access to a judicial forum. The village Councils, similar to modern Panchayat,
consisted of a board of five or more members to dispense justice to villagers. Village
headman had the authority to levy fines on offenders3. Later the institutions of like police and
jails were established for better management.

The first institution of the state police that of the state jail also begins with the pre-Mauryan
period. Its full development is recorded in Kautilya’s Arthashastra. This suggests that an
agency like modern police existed during that period to assist the King in administration of
justice.

Like the institution of the state police, that of the state jail also begins with the pre-Mauryan
period. It was provided that a jail should be constructed in the capital providing separate
accommodation for men and women and it should be guarded. The Arthashastra gives a
detailed account of jail administration. There was also a system of crime and Investigation
which under the king to examine the witnesses and per jury and then declare the person as an
offender. The Right of private defence also existed during ancient India.

PUNISHMENTS:

The suffering in person or property inflicted on the offender under the sanction of law is
punishment. Prevention of crime is the principal object of punishment and the measure of
punishment consequently varies from time to time according to the prevalence of a particular
form of crime and other circumstances.4

Punishment policy, is one of the elaborately dwelt upon subjects in ancient India as it was
intimately connected with the administration of the State. Manu emphasized the importance
and utility of punishment saying: “Punishment alone governs all created beings, it protects
them and it watches over them while they are asleep.” As per Manu, Yajnavalkya and
Brihaspati there were four kinds or methods of punishment during ancient India, namely,
admonition, censure, fine and corporal punishment. Corporal punishments included death
penalty, cutting off the limb with which the offence was committed, branding on the head

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some mark indicating the offence committed, shaving the head of the offender and parading
him in public streets. The nature and types of punishments were very cruel, inhuman and
barbarous.

The Manu Smriti and some other Smriti describe that the punishment was awarded according
to the Varna of the offender as well as of the victim. It also has a similar provision which
provides that higher the Varna of the offender greater the punishment. This indicates that
there were contradictory provisions regarding punishment in different Smriti. The Britishers
who ruled over a century inflicted punishments based on their England law. Due to this a
system was organised to punish wrong doers.

Sentence as the term is used in criminal law denotes the action of the court before which the
trial is held declaring the consequences to the convict of the fact of guilt thus determined.
Therefore, any consequence, which flows from conviction, can be looked upon as sentence.
Sentencing, which is the cutting edge of judicial process, is the crucial strategy of the
criminal law in achieving social defence and delinquent rehabilitation.5

The main purpose of the sentence broadly stated is that the accused must realise that he has
committed an act which is harmful to individual and society. In earlier times, the focus of
attention was the offence and not the offender. Specific punishments were laid down by the
law and once a verdict of guilty was returned, the judge merely ordered the appropriate
sentence to be carried out. But the problem faced by people during those days was the system
of sentencing is not proper. The procedure for the same varied from case to case according as
it was thought expedient in the circumstances of each case.

Capital sentences were usually awarded by hanging, though the Indians were at times
executed or whipped to death. Forfeiture of limbs, fine, forfeiture of property, pillory,
branding and whipping were some other forms of punishment which were awarded to the
offenders. Forgery was punished with imprisonment and banishment. The punishment
inflicted was not appropriate to the offence committed. Sometimes Robbery also was
punished with death. In one case, the leader of a gang of robbery was hanged so that others
might be deterred from committing robberies.6

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There was no measure of standard of punishment nor was there any principle behind its mode
and quality. Often the punishment awarded bore no relation to the offence committed and
depended on the personal whims, idiosyncrasies and prejudices of the judges. Usually the
punishments were barbarous and inhuman, and were awarded with idea of deterrent and
preventive. Hence there was a need for a statute in which punishments for offences should be
proportionate, this lead to the codification of criminal law for Indians whose base is from
English law and known as Indian Penal code.

INDIAN PENAL CODE, 1860

In order to solve the problems faced by the people several reforms were made by the
Governor –General’s like Warren Hastings, Dal housie and Lord Wellesley in the infliction
of punishments to the offence. These changes lead to only reduction of problem to some
extent. An important step towards fulfilling the goal of securing a uniform and simple system
of law in India through the process of comprehensive consolidation and modification, to
advise the newly created Legislative Council on matters of law, and to integrate and organize
the scattered, conflicting and incoherent system of regulations into a general system of codes,
was taken by the Charter Act of 1833 when it made provisions in Section 53 for the
appointment of a Law commission in india chaired by Lord Macaulay.7 Based on the Lexi
loci report submitted by the law commission codification of law has been started in the year
1855.

The draft code passed into law on October 6, 1860 as the Indian Penal Code 1860. The
accompanying criminal procedure statute to the Indian Penal Code 1860 was the Indian
Criminal Procedure Code 1861 later replaced by the code of 1973.

Indian Penal Code seems to measure the gravity of the violation by the seriousness of the
crime and its effect upon public tranquility. There is correlation between measure of guilt and
measure of punishment. Section 53 of Indian Penal Code Chapter –III deals with the
Punishments to which offenders are liable-8

Death, Imprisonment for life, Imprisonment of two types- Rigorous & Simple, Forfeiture of
property and fine.

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Each punishment is briefly explained in the code. The Penal code has been very successful
and has stood the test of time very well. A proof of its intrinsic worth and merit may be found
but it has been found necessary to amend the code few times.

In its 42nd Report submitted in 1971, the law commission has made numerous
recommendations and in its 243rd Report recommended various changes and guidelines in
Criminal laws in the backdrop of Supreme Court’s decision in the case of Preeti Gupta v.
State of Jharkhand9. In 2013 , major changes have been introduced in the Indian Penal code
with regard to Sections 100, 166 A , 166B , 228 A, 326 A, 326 B, 354 A to 354D, 370,370 A,
375, 376, 376 A to 376E and 509 whereby many of the recommendations of law commission
have been accepted10. Recently criminal law amendment Ordinance, 2018 increased the
minimum punishment for rape of women from seven years to ten years.

Though the Indian penal code solved the problems of punishments it is admitted that the
provisions relating to punishment have become somewhat obsolescent and out of tune with
the modern trends in the field of penology. The sentencing which is the important task of
inflicting punishments, there is no formula for it. It was decided based on the discretion of the
judges. There is no guidance to the judge in regard to selecting the most appropriate sentence
given the circumstances of the case. Therefore there is no uniformity. This was explained in
the case of Alister Anthony Pareira v.State of Maharashtra .In practice, there are laws
prescribing sentencing guidelines in some countries, but there is no statutory sentencing
policy in India. It is based on twin objectives of deterrence and correction.

Present according to the code the factors which are considered before awarding punishments
are: Motive or previous enmity; place of incidence, intention/knowledge of the accused, death
of the victim, the gravity, dimension and nature of injury, the age and general health
condition of the accused, pre-meditation in a sudden fight, the nature and size of weapon used
for inflicting the injury, background and history of the accused, the conduct and behavior of
the accused after the incident.

These are some of the factors which can be taken into consideration while granting an
appropriate sentence to the accused. Hence these are the punishments that have evolved since
past and the punishments that are present in Indian penal code based on which sentencing is
done. Though there is no concept of sentencing in India before I.P.C, this statute brought this

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concept of sentencing. The evolution of the policy of sentencing and the problems and
solutions are discussed further in detail.