Analysis of Sentencing Policy in India

Abstract

The sentencing policy of any country defines, how much the country is safe for the people living as well as for the tourists. It’s a helping hand to run society in a productive manner by establishing some set of punishment for the crimes committed in order to reduce the crime in a society. Hence, for centuries the idea of sentencing has be evolved from time to time. This development has led various changes in the sentencing policy in the country. These changes exist depending upon the discretion of the judges, i.e. their decisions and judgements. The aim for this is to tell what is sentencing policy, how it has changed from time to time in a country, the role of judiciary and sentencing etc.

Keywords

Sentencing, Punishment, Mandatory sentencing

Introduction

Sentencing embarks the culmination of the judicial process which begins with the detection and enforcement of the law prosecution and adjudication. Thus, the importance of sentencing lies in the fact that it becomes the face of justice and the future deterrent for the prospective offender of the law. Judicial decision-making about the types of sentences to impose is not always a clear-cut matter, every trial is different from each other trial. And the sentencing of offenders is not easy as it appears at first.

Theory of reformation through punishment is grounded on the sublime philosophy that every man is born good, but circumstances transform him into a criminal.” ­­ – K T Thomas J

Historical Perspective of Sentencing in India

In ancient India, the caste and status of the offender were considered while imposing punishment. Generally, maximum punishments were prescribed but the courts had the discretion regarding the quantum of punishment. In British India, after a special inquiry made by Lord Wellesley in 1801, the policy of laying down certain maximum punishments, imprisonments, fines, transportation or deaths was followed for various kinds of offences. 

Thus in 1803 by Regulation III, it was provided that in cases where a person was liable to discretionary punishment, under the Mohammedan law, – the ‘Futwa’ of the law officers was merely to declare the same in general terms stating the terms, why the offender is subject to discretionary punishment. In 1817, there was a move for the change in punishment policy.

In Regulation XVII of 1817, the offence of adultery and rape on conviction was made punishable with corporal punishment and not exciding 39 strips and imprisonment with hard labour for the term of seven years, the regulation also prescribed the death sentence for the offences of murder, robbery, burglary or theft the punishment made for these crimes were also made applicable for the attempt to commit the crimes.

It appears that the minimum punishment of 7 years was prescribed for persons convicted of having forged or having procured forged Counterfeit coins, Stamps, Stamp papers, Government notes, Banknotes.  

In British India, Indian Penal Code (IPC) was drafted by the first law commission under Lord Macaulay in 1837, presented to the legislative council in 1856 and finally passed on 6 Oct 1860. The IPC came into operation in January 1862, section 53 of IPC deals with various kinds of punishments. The punishments to which offenders are liable are:

  1. death 
  2. imprisonment for life
  3. imprisonment 

which is of two descriptions 

  1. Rigorous i.e., hard labour
    1. Simple 
  2. forfeiture of property 
  3. Fine 

Punishment of transportation was repealed by the Criminal Law Amendment Act, 1949.

Nature of Judicial Sentencing

Sentencing is the imposition of punishment on an offender following a conviction for a criminal offence. It takes after the stage of conviction and the proclamation of the punishment forced on the Convict is a definitive object of any justice delivery system. An important part of the sentencing process is the sentencing hearing, which is the opportunity for judges to way any aggravating or mitigating circumstances that might influence the severity of the sentence. 

Both the offender and of offender supporters speak out on his or her behalf and the victims also contribute information about how they are affected.[1] After hearing those from the parties the judge pronounces the sentence prescribed by law sentencing options available to judges differ among jurisdiction. At the judge’s discretion in most cases, sentences may involve either provided with the conditions on incarceration in prison or jail for months or years.

Goals of Sentencing

Some of the most important goals of the sentencing are 

  1. To promote respect for the law
  2. To reflect the seriousness of the offence,
  3. To provide just punishment for the offence,
  4. To deter the defendant from future criminal conduct,
  5. To protect the public from the convicted offender
  6. To provide the convicted offender with educational or vocational training, or other rehabilitative assistance

The purpose of the sentencing includes —

  • Punishment or retribution 
  • Deterrence
  • Custodial monitoring 
  • Incapacitation
  • Rehabilitation  

Punishment is primarily used as a method of protecting society by reducing the incidence of criminal behaviour. The object of protecting society from the criminals is sought to be achieved by a judicial mix of Deterrence, Prevention, Retribution and Reformation. Hence the purpose of punishment is four-fold Retribution, Prevention, Reform and Deterrence.

Punishment may be classified —

  1. Custodial – a person who has violated any law of strict liability can be sentenced by a court of law.
  2. Non-custodial – a person who has to be prosecuted may be discharged absolutely or conditionally (the court may direct that the offender does not commit any offence in the future or require that the offender execute a bond for keeping peace and harmony and to maintain good behaviour).
  3. Semi-custodial

Mandatory Sentencing

Mandatory sentencing requires that offenders are predefined term for certain crimes commonly serious and violent offences.[2] Judges are bound by law, these sentences are produced through the legislature, not the judicial system. They are instituted to expedite the sentencing process and limit the possibility of the irregularity of outcomes due to judicial discretion.[3] Mandatory sentences are typically given to people convicted of certain serious or violent crimes and require a prison sentence. Mandatory sentencing laws vary across nations, so they are more prevalent in common law jurisdiction because civil jurisdiction usually prescribes minimum and maximum sentences for every type of crime. Mandatory sentencing laws often condemn “moral vices” such as alcohol, sex, drugs and to friendships and families via probation and crimes are threatened by the convict’s wrongdoings.

Conclusion

Sentencing is one of the major parts of judicial system across the world. As one can conclude from the above with time there has been continuous modification from the betterment of the society. It helps the society develop and control the crime in the society. Sentencing is the imposition of punishment on an offender following a conviction for a criminal offence. Punishment is primarily used as a method of protecting society by reducing the incidence of criminal behaviour. 


[1] https://books.google.co.in/books?id=t4oqRmOsNMEC&redir_esc=y

[2] https://quizlet.com/362848714/cjc-341-test-one-flash-cards/

[3] https://www.ipl.org/essay/Pros-And-Cons-Of-Mandatory-Sentencing-In-PCTU8H9E6U

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