Need For Sentencing Guidelines In India

28 min


8
8 points

Submitted By: Adv. Bhomesh R. Bellam*

Abstract

The need for structured and codified sentencing guidelines in the criminal justice system has not only been a need but is a necessity. This need is indeed recognized by several courts and committees and yet there are no such guidelines in place today. This essay encapsulates the dire need for such sentencing guidelines in India. It further goes on to state the different kinds of sentencing systems i.e the Guideline System such as in England and Wales, the Grid System such as in USA and the Legislatively prescribed maximum sentences such as in India. This essay also explains answers the shortcomings and challenges one might expect if such guidelines are in place in India, such as the power and position of a judge being in jeopardy. The aim of this essay is to show that the sentencing guideline system is a well-proven model from the experience of other criminal justice systems over a period of time. In view of the apparent discrepancies in sentencing due to lack of structured guidelines, it is high time that India studies and adopts the same, as there is a need for having uniformity and consistency in sentencing across the country.   

I. INTRODUCTION

The Criminal Justice System is a science for the prevention and punishment of crime. It is subject to changes and evolves with time. An integral part of the criminal justice system is sentencing of the offender, which has not particularly evolved through the years. The judges have the sole discretion of granting sentences which itself becomes a precedent for other future similar offences. The Hon’ble Supreme Court, various High Courts and also several committees and scholars have time and again noticed the need for a structured sentencing system or guidelines in order to achieve uniformity in the sentences passed by judges across the country. However, this imminent and dire need was never acknowledged by the legislature and till date India does not have any such guidelines in place. Whereas, in the United Kingdom, this need was acknowledged and acted upon as early as the 1900s with the introduction of a Sentencing Advisory Panel, followed by the Sentencing Guidance Council in the early 2000s and further followed by the Sentencing Council which is in operation today.

India is a country with several hundred courts and several thousand judges, and in spite of such a large number, there aren’t any guidelines or rules set out by the legislature to maintain consistency in sentencing amongst all these courts and judges. Each judge may view the matter differently and decide his own sentence as per his discretion which can be questioned only in an appeal which is a rather time-consuming and painstaking process. The only form of guidance which judges have is the maximum sentence and minimum sentence in a few cases. Along with this, the judges are also bound to follow the ingredients and goals of sentencing i.e retribution, deterrence, rehabilitation and restoration. The range is too wide and to take into account all the rules of sentencing is quite a task from a single judge having such ample discretion. Therefore, a mechanism needs to be devised to help the judiciary and the criminal justice system to encapsulate both, uniformity in sentences passed by various judges across the country and to achieve the goals of sentencing.

II. HISTORY AND BACKGROUND

Punishments in India are guided by Section 53 of the Indian Penal Code 1860. The main forms of punishment are death, imprisonment for life, rigorous and simple imprisonment, forfeiture of property and fine. Apart from these five heads, there isn’t any guidance for punishments by the legislature. The Hon’ble Supreme Court has however indicated a few directions and guiding principles for granting the punishment of death penalty[1], but the rest seem to be ignored by the judiciary and the legislature.

The advent of the need for sentencing guidelines in India was first recognized and acknowledged by Justice Krishna Iyer in the landmark judgment of Rajendra Prasad v/s State of Uttar Pradesh[2]. He quoted “Guided missiles, with lethal potential, in unguided hands, even judicial, is a grave risk where the peril is mortal though tempered by the appellate process.”  He referred to the power of sentencing, given to a judge as guided missiles as a metaphor and said that if they are devolved in unguided hands, is a grave risk. He further quoted in the same judgment “We banish the possible confusion about the precise issue before us-it is not the constitutionality of the provision for death penalty, but only the canalisation of the sentencing discretion in a competing situation. The former problem is now beyond forensic doubt after Jagmohan Singh v. State of Utter Pradesh [1973 CriLJ 370] and the latter is in critical need of tangible guidelines, at once constitutional and functional.” (Emphasis supplied). This, however, may seem to be in the context of a murder case, the principle and intention of the judge is clear with his words and is intended in a wider and general sense and not only in the case of punishment of death or life imprisonment.

Thereafter, in March 2003 the Committee on Reforms of Criminal Justice System (MHA) released a Report[3] recognizing the need for sentencing guidelines in India. The Report stated “14.4.1 The Indian Penal Code prescribed offences and punishments for the same. For many offences, only the maximum punishment is prescribed and for some offences, the minimum may be prescribed. The Judge has wide discretion in awarding the sentence within the statutory limits. There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case. Therefore each Judge exercises discretion accordingly to his own judgment. There is therefore no uniformity. Some Judges are lenient and some Judges are harsh. Exercise of unguided discretion is not good even if it is the Judge that exercises the discretion. In some countries guidance regarding sentencing option is given in the penal code and sentencing guideline laws. There is need for such law in our country to minimise uncertainty to the matter of awarding sentence…..”(Emphasis supplied). This report is as clear in demonstrating the need for Sentencing guidelines in India. The Committee further recommended that a statutory committee be set up to lay down guidelines for sentencing under the Chairmanship of a former Judge of Supreme Court or a former Chief Justice of a High Court experienced in criminal law with other members representing the prosecution, legal profession, police, social scientist and women representative. However, no positive or active steps have been taken by the legislature in this regard till date.

In June 2007, the Second Administrative Reforms Commission in its 5th Report released a Public Order[4] acknowledging the lack of consistency in sentencing practices across the country and cited the need for sentencing guidelines. This public order stated “…..The courts have wide discretion in deciding the quantum of punishment. It is contended that such discretion is necessary in order to enable the judge to impose a punishment depending upon the circumstances of each case. It has been argued, however, that there are instances when such wide discretion has resulted in varying punishments for similar crimes in similar circumstances. It has been urged that there should be suitable guidelines to help judges in arriving at the quantum of punishment in each case.” (Emphasis supplied). It further recommended that the Law Commission may lay down ‘Guidelines’ on sentencing for the Trial Courts in India so that sentencing across the country for similar offences becomes broadly uniform.[5] However, this recommendation too like the Committee on Reforms of Criminal Justice System was not paid much heed to and the legislature did not take any interest in implementing the same.

Very recently in the year 2019, the Supreme Court[6] again recognized the need for a structured framework in sentencing. It stated that the Courts in India have addressed the problem of uniformity in sentencing in a rather principled manner having regards to judicial standards and principles, however, laying down a definitive sentencing policy is a legislative function. The judgment also acknowledges this need by laying emphasis on the recommendations suggested in the Report by the Committee on Reforms of Criminal Justice System[7].

There has been a constant and repeated recommendation by the Courts and various Reform Committees citing the dire need for a structured framework to attain uniformity in sentencing in all courts across the country. However, the same has till date never been acknowledged by the legislature, let alone positive steps for the implementation of the same.

III. NEED FOR GUIDELINES

A. Uniformity

The most eminent problem in courts across the country is the lack of uniformity in sentencing amongst all courts. The goal is to attain parity among sentences for the same offences of similar nature or kind. The Committee on Reforms of Criminal Justice System in its report as quoted above pointed out this lack of uniformity and the need for a structured sentencing guideline to overcome the same.[8] Even the Second Administrative Reforms Commission acknowledged “…in India there is a real problem arising from a lack of consistency in sentencing practices across the country.” They further recommended Guidelines to be framed to attain uniformity in sentencing.

The Courts have also contributed a fair share to acknowledge this problem of lack of uniformity of sentences and have addressed the issue for the need for a structured framework or guidelines for sentencing. In the case of State of Rajasthan vs. Mohan Lal,[9] the Hon’ble Supreme Court addressed the problem of a lack of structured sentencing guidelines in India and stated “A Judge has wide discretion in awarding the sentence within the statutory limits. Since in many offences only the maximum punishment is prescribed and for some offences the minimum punishment is prescribed, each Judge exercises his discretion accordingly. There cannot, therefore, be any uniformity.” (Emphasis supplied).

 In the case of Narinder Singh vs. State of Punjab,[10] the Hon’ble Supreme Court while acknowledging the need for sentencing guidelines in India, went one notch higher to state “The prevalence of such guidelines may not only aim at achieving consistencies in awarding sentences in different cases, such guidelines normally prescribe the sentencing policy as well namely whether the purpose of awarding punishment in a particular case is more of a deterrence or retribution or rehabilitation etc.”  The court mentioned how the purpose of structured sentencing guidelines is not only to attain consistency in sentencing, but also sentencing policy and purpose of awarding punishment. It states that the judges often have their own perception about the philosophy behind the prescription of certain penal consequences and the nature of the offence. For some judges, deterrence becomes more important whereas for some it would be rehabilitation and for some, it could be a combination of both, and a structured framework or guidelines for sentencing would help attain overall consistency in sentencing and to reduce ambiguity in the perception of each judge.

In the case of Mohd. Arif & Ors vs. Registrar, Supreme Court of India[11], a Constitutional Bench of the Hon’ble Supreme Court addressed the concern about lack of statutory guidelines for sentencing, which causes much variance in the sentences amongst courts across India. There are no statutory guidelines to regulate punishment. Therefore, in practice, there is much variance in the matter of sentencing. In many countries, there are laws prescribing sentencing guidelines, but there is no statutory sentencing policy in India. The Indian Penal Code prescribes only the maximum punishments for offences and in some cases minimum punishment is also prescribed. The Judges exercise wide discretion within the statutory limits and the scope for deciding the amount of punishment is left to the judiciary to reach decision after hearing the parties. However, what factors which should be considered while sentencing is not specified under law in any great detail.” (Emphasis supplied)

 Apart from the Hon’ble Supreme Court of India, various High Courts have shown concern and pointed out the lack of structured sentencing guidelines and its need to attain uniformity in sentencing. The Hon’ble Allahabad High Court in the case of Jagan vs. State of Uttar Pradesh[12] where the Hon’ble judge opined that “The Indian Penal Code prescribed offences and punishments for the offences. For many offences, only the maximum punishment is prescribed and for some offences, the minimum punishment which could be inflicted is also prescribed. The Judge has wide discretion in awarding the sentence within the statutory limits. There is no guidance to the Judge in regard to selecting the most appropriate sentence in the given circumstances of the case. Therefore Judge exercises discretion accordingly to his own judgment. There is, therefore, no uniformity. Some Judges are lenient and some Judges are harsh. No exhaustive, explicit and uniform legal principles have been evolved in India regarding sentencing. Neither the legislature nor the judiciary has issued structured sentencing guidelines. There is need to adopt such guidelines in order to minimize uncertainty in awarding sentences.” (Emphasis supplied). Similar view was taken by the Hon’ble Bombay[13], Madras[14], Delhi[15] and Gujarat High Courts[16].

It is submitted that there is a consistent view by the Hon’ble Supreme Court and various other High Courts that the most prevalent problem in sentencing is the lack of uniformity. There remains just one solution to this problem, as suggested by all the court and that is creating a structured framework for sentencing or sentencing guidelines. It’s not that such guidelines are a new creation, these exist in various other countries and contribute greatly to their sentencing practices. All that is required to do is for the legislature to adopt and implement the same in India.

B. Encouraging Plea Bargain

In the words of Martin Luther King Jr. “justice too long delayed is justice denied”[17]. It’s no secret that India has one of the largest number of pending cases in the world, moreover, these cases drag on for years altogether. Plea bargain is one such weapon to combat this problem of pendency of cases and long trials. This weapon has however never been utilized to its fullest in India. In practice, it is merely left as a letter in our statute books. The Law regarding plea-bargaining is in Chapter XXI-A of the Criminal Procedure Code 1973, which was inserted on 5th July 2006.

The process of Plea Bargain as per Chapter XXI-A is rather cumbersome and not attractive enough for the accused person to utilize and reap the benefit of it, as it is extremely uncertain and ambiguous. There is no way the accused would know exactly the outcome of him agreeing to plead guilty and therefore, he would always plead not guilty and take his chances in trial. Firstly, Chapter XXI-A of the Code is only applicable to accused persons who have been charged with offences punishable for seven years or below. Secondly, the process is such that upon Application for plea bargaining under Section 265-B CrPC the parties i.e the accused person and the public prosecutor or the complainant, as the case may be, shall mutually come to a disposition of the case and submit to the court and thereafter, the court will consider the same and award a sentence as per Section 265-E (c) and (d). If there is a minimum sentence provided by the statute then the accused shall be sentenced to half of such minimum sentence; and in all other cases the accused may be sentenced for one-fourth of the punishment provided or extendable.

It is submitted that while granting such a sentence of half the minimum sentence and one-fourth the punishment provided there is absolutely no consideration for the nature of the offence, type of the offence, the character of the accused or based on any other parameters. It applies equally to all the applicants, which makes the process extremely ambiguous and uncertain. However, if all the offences are already classified by way of sentencing guidelines, the accused or the victim or the judge will have no doubt about how much the sentence is going to be. The calculation of the sentence would not be based upon the maximum punishment of the offence, but upon the punishment tailored to that particular accused had he been convicted post a full-fledged trial. This would indicate to the accused the difference between sentence he would serve if he pleads guilty at the early stage of the case and the sentence he would receive upon completion of the entire trial. Having such a mechanism where the accused is aware of the sentence he will face, would definitely encourage more and more accused to apply for a plea bargain as they are more certain about the exact sentence they are going to receive. This could only be possible if there is a structured sentencing mechanism or guidelines in existence.

In the United Kingdom, plea bargain is governed under Section 144 of the Criminal Justice Act 2003 and is guided by the Reduction in Sentence for a Guilty Plea Definitive Guidelines[18]. The parameters for considering a guilty plea as per Section 144 of the Act are (a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and (b) the circumstances in which this indication was given. The maximum reduction of sentence is upto 80% of the sentence. In the Guidelines for Reduction in Sentences, the approach for a reduction in sentence is broken down into 5 stages viz. Stage 1: Determine the appropriate sentence for the offence in accordance with any offence specific sentencing guideline; Stage 2: Determine the level of reduction for a guilty plea in accordance with this guideline; Stage 3: State the amount of that reduction; Stage 4: Apply the reduction to the appropriate sentence and Stage 5: Follow any further steps in the offence specific guideline to determine the final sentence.

It is submitted that Stage 1 above, prescribes that an appropriate sentence may be determined as per the specific sentencing guideline, making it case-specific and not general. Whereas in India, the appropriate sentence is determined only on the basis of maximum and minimum punishment prescribed which would turn out to be extremely arbitrary. Moreover, there are no specific guidelines and the same rule applies to all offenders who plead guilty, thereby discouraging accused persons from pleading guilty. A structured mechanism for determining sentences such as sentencing guidelines would go a long way and help encourage offenders exercising the remedy of plea bargain under Chapter XXI-A of the Criminal Procedure Code, which would, in turn, result in lesser cases going through the entire hurdle of a full-fledged trial, thereby reducing the case pendency drastically.

C. Eliminate Judicial Bias

Black’s Law Dictionary[19] defines Bias as “A mental inclination or tendency; prejudice; predilection”; Judicial Bias as “A judge’s bias towards one or more of the parties to a case over which the judge presides”; and Actual Bias as “Genuine prejudice that a judge, juror, witness, or other person has against some person or relevant subject”. Bias cannot be measured or perceived, but one cannot deny the fact that it exists. Bias may exist in many forms such as pecuniary bias, personal bias, social bias, bias as to the subject matter in dispute, or policy bias etc. and these are just a few to name. A lot of judges nowadays tend to get influenced by media and public opinion thereby creating an involuntary bias in their minds. The Hon’ble Supreme Court[20] has also acknowledged the concept of judicial biasness and stated “Bias may be defined as a pre-conceived opinion or a pre-disposition or pre-determination to decide a case or an issue in a particular manner, so much so that such pre-disposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the Judge unable to exercise impartially in a particular case……Judges, unfortunately, are not infallible. As human beings, they can commit mistakes even in the best of their Judgments reflective of their hard labour, impartial thinking and objective assessment of the problem put before them. In the matter of interpretation of statutory provisions or while assessing the evidence in a particular case or deciding questions of law or facts, mistakes may be committed bona fide which are corrected at the appellate stage. This explains the philosophy behind the hierarchy of courts. Such a mistake can be committed even by a Judge of the High Court which are corrected in the Letters Patent Appeal, if available.”(Emphasis Supplied)

It is submitted that, to rectify this fallacy of judicial biasness in a judgment, one has to go through the tedious and time-consuming process of an appeal. A more effective way to overcome this fallacy is by implementing sentencing guidelines to guide the judge regarding the quantum of sentence, which would not leave much scope for the judges’ biases to interfere in the process.

IV. TYPES OF SENTENCING SYSTEM

“The sentencing decision is the symbolic keystone of the criminal justice system: in it, the conflicts between the goals of equal justice under the law and individualized justice with punishment tailored to the offender are played out, and society’s moral principles and highest values-life and liberty-are interpreted and applied.”[21]

Can any progressive legal system survive without a sentencing guidance system? The answer would most likely be in the negative. A legal system may not necessarily have a definitive sentencing guideline, it can also be in the form of legislatively prescribed maximum penalties. The various types of sentencing systems are explained as under:

A. Sentencing Guideline System

This system involves guidelines prepared by the legislatively appointed Sentencing Council who prepare guidelines to be followed by the sentencers before passing a sentence in any particular matter. Steps for using the Sentencing Guidelines[22]:

1. Determining the offence category

First step is to determine the offence category by assessing the offender’s culpability and harm caused to the victim by reference to factors set out in the Sentencing Guidelines for each offence. The factual elements are tailored in the guidelines individually for each offence.

2. Starting Point and Category Range

The guidelines provide a starting point of each offence which apply to all offenders irrespective of the guilty pleas. There is also a category range provided for each offence. They also provide a range of non-exhaustive mitigating and aggravating circumstances with the context of each offence. The sentencers shall then identify whether the combination of these, or any other factors result in an upward or downward adjustment from the starting point.

3. Further steps

  • Reduction of sentence for the assistance of the prosecution;
  • reduction for guilty pleas according to the Reduction in Sentence for Guilty Plea Definitive Guidelines;
  • where an offender is convicted on multiple counts, the court may asses the crime in totality and pass a sentence above the range indicated in the sentencing guidelines;
  • compensation and ancillary orders appropriate to the case.

B. Sentencing Grid System:

The grid system in the United States of America comprises of the history of the offender on the X-axis and the seriousness of offence on the Y-axis. The United States of America provides various examples of rule-based sentencing guidelines among which are states of Minnesota, Kansas, North Carolina, Virginia, Oregon etc., which limit a sentencers’ ability to depart from the prescribed sentences.[23] There are also federal guidelines produced by the United States Sentencing Commission (USSC). It is pertinent to note that the United States of America has a diverse sentencing policy for different states and hence for the sake of brevity, we would lay emphasis only on the federal guidelines. The steps for using the grid system under the federal guidelines is as follows[24]:

1. Base Level Offence

In the guidelines, each crime is assigned a base level offence, which is taken as a starting point for determining the seriousness of the offence. The more serious crimes such as murder and rape have a higher base level; whereas crimes such as trespass have a much lower base level.

2. Specific Offence Category

Just like the sentencing guidelines in England and Wales, the federal sentencing guidelines in USA take into account the seriousness of each offence and categorize it into levels, which may increase or decrease from the base level. Each offence has its own characteristics which are specified in the sentencing guidelines.

Eg. The offence of robbery has a base offence level of 20. If the robbery involves the use of a firearm, there is a 5 level increase making the offence at level 25 and so on.

3. Adjustments

These adjustments comprise of factors that apply to all offences (unless specified otherwise). These categories increase or decrease offence levels based on specific characteristics. They may include victim-related adjustments or offenders role in the offence and so on. They also include cases of multiple count adjustment when an offender is tried together for more than one offence. The adjustments may also result in the decrease of the offence level based on the offender’s responsibility of acceptance of the crime.

Eg. If the offender has a minimal part in the offence, the offence-level is decreased by 4 levels.

4. Criminal History

The Y-axis on the grid takes into account the criminal history or past misconduct of an offender. Criminal History Category I is the least serious category and mostly includes all the first time offenders. This level in the categories keeps increasing according to the past misconducts of the offender till Category VI, being the maximum, which includes offenders with serious criminal records and antecedents.

An example of the grid is as under[25]:

C. Legislatively Prescribed Maximum Sentences

There are many countries, such as India who do not have codified sentencing guidelines, but they have legislatively prescribed minimum or maximum sentences for most offences. This type of sentencing gives a large amount of discretion to the sentencing judges. A few examples of common law jurisdictions adopting such a method are India wherein the maximum penalties are prescribed under the Indian Penal Code, 1860 (and other special Acts) which is a legislative statute including most crimes and its maximum penalties (also includes minimum penalties in certain cases); and Ireland wherein the maximum penalties are laid down in statutes by the Oireachtas (The Legislature of Ireland). In such jurisdictions with no codified sentencing guidelines, the Supreme Courts have developed a substantial body of case law/precedent, setting out general principles of sentencing.

Case study: comparing punishments in the above mentioned jurisdictions and explaining the importance of a sentencing guideline system

For the purposes of effective comparison, it would be ideal to take a case from a jurisdiction where sentencing is dominantly discretionary, and the facts of that case can be used to derive the sentence in the other 2 jurisdictions as they have an elaborate and self explanatory guideline system.

Brief facts of the case[26]:

  • The victim (1) is an agriculturist in a village in India. About a couple of years back he had purchased an acre of disputed agricultural land in a neighbouring village. One day his brother, victim (2) was ploughing the field with his tractor and suddenly victim (1) heard him scream for help. victim (1) got alerted and ran towards victim (2) who was, in turn, running towards him. When victim (1) looked at the field, he could see that Accused (1) along with 5 others people were pouring diesel on the tractor and trying to set it on fire.
  • When victim (1) reached there to rescue his tractor and save his field from burning to ashes, the accused (1) and 5 others, surrounded victim (1) & (2) and started beating them with wooden sticks and also tried to hit victim(1) with an axe which he dodged by blocking it with his right hand, thereby causing injury between his thumb and index finger. The accused persons kept inflicting blows on the victims till the people from the neighbouring farms came for help after hearing the loud hue and cry of the victims. Both victims became unconscious due to the injuries and all the accused persons ran away. The victims were immediately taken to the hospital wherein the police took their statements after they regained consciousness.
  • The medical reports indicated that the injuries inflicted on the victims were grievous in nature. Based on this report, all the accused persons were charged and convicted for attempt to murder[27] and voluntarily causing grievous hurt by dangerous weapon[28] All the accused persons were sentenced to 5 years of imprisonment and fine.
  • The accused persons appealed against this decision in the High court, which, after hearing both sides, reduced the sentence to the period already undergone in custody, which at that time was only 14 months.
  • Displeased by this order, the victim (1) appealed to the Supreme Court, wherein the court discussed the rule of proportionality and just deserts and held that the sentence should be proportionate to the crime and upheld the sentence given by the trial court, which was 5 years of rigorous imprisonment.

It is submitted that the purpose of choosing the above case is because it is a classic example to demonstrate the blatant disparity in the idea of sentencing between the trial court and the appeal court viz. the High Court, due to the lack of a sentencing guideline system. The maximum sentence for the abovementioned crime is imprisonment for life and it is upon the discretion of the judge to convict the accused person of whatever punishment he may deem fit and proper. As we can see in the above case, the trial court imposed a sentence of imprisonment for 5 years after considering the nature of the offence and the harm caused. The High Court however considerably reduced the sentence only on 2 grounds, namely, (i) that the accused(1) already spent 14 months behind bars and also faced the agony of going through the process of trial/appeal for a period of 14 years and therefore some compassion and leniency must be shown towards the accused persons; (ii) that both the parties were co-villagers and had a tiff with regards to the land, which had ended during the pendency of the trial and if the accused persons are sent to prison, this old rivalry would revive. Considering these facts the High Court held that in the interest of justice it is proper to take a lenient view and reduce the sentence.

However the Supreme Court vehemently disagreed and held that the decision of the High Court was not in the interest of justice and was completely against the rule of proportionality and that the judge failed to consider the injury reports and the harm caused to the victims, thereby overturning the judgment of the High Court and upholding the trial court’s judgment.

Let us now compare the same offence and its sentence in USA, which follows the Grid System and England and Wales, which follows the Guideline System:

1. United States of America

It is submitted that each state in USA might have a different penal system as it follows a completely federal system of governance, but for the purposes of this essay, we must only consider the federal laws i.e the United States Code, specifically Title 18[29] which consists of the Crimes and Criminal Procedure. With regards to the comparison of the US law with the above-mentioned case, light needs to be put on Section 113 of the Crimes and Criminal Procedure, which states that the maximum punishment for aggravated assault with the intent to commit murder is 20 years. Let us now equate the facts of the above case with the sentencing system by the United States Sentencing Commission. As explained above in this chapter, the sentencing system is divided into two parts, one which mentions the base level of an offence and specifies characteristics of the offence which increases or decreases the level, and the other which consists of the grid with the level of the offence on the y axis and the criminal history of the accused person on the x axis. Section 2A2.1 of the guidelines[30] state that the base offence level for assault with the intent to commit murder is 33, and the characteristic relevant in the present case is in sub-section (b)(1)(B) which states that there shall be an increase of 2 levels, if the victim has sustained serious bodily injuries. Thereby making the current offence at level 35 for which the punishment on the sentencing table[31] is 168-210 months viz. 14 to 17.5 years.

2. England and Wales

Comparing the above specimen case to the sentencing guideline system in England and Wales, it is submitted that the punishment for attempted murder is specified under Section 4(1)(a) of the Criminal Attempts Act, 1981 which prescribes a maximum sentence of life imprisonment. This statute is however guided by the sentencing guidelines by the sentencing council, for the purpose of sentencing. With reference to the current case study, the sentencing guidelines[32] for attempted murder can be interpreted in the following manner:

Level 1 of the guidelines is with regards to most serious offences as specified under Paras 4 and 5 of Schedule 21 of the Criminal Justice Act 2003. It is submitted that the facts of the case in question do not satisfy the ingredients of the schedule. Hence it can be said that the current case does not fall under this category.

Level 2 of the guidelines is with respect to ‘other planned attempt to kill’. It is submitted that the facts mentioned in the present case do not point any planning or prior meeting of minds of the accused persons in relation to committing the crime. It can be said that there was an intention to commit the crime but there was no knowledge or planning. Hence the current crime would fall under Level 3.

Level 3 of the guidelines considers spontaneous attempt to kill’ thereby meaning that the act in itself may be considered as a threat to life, although it was not a planned act to attempt to commit murder. The current offence would by and large fall either under category 1 of Level 3, which states ‘Serious or long term physical or psychological harm’; or under category 2, which states ‘some physical or psychological harm’. It is submitted that because there was no life-threatening injuries caused, it can be said that this offence would fall under category 2 thereby suggesting the starting point of the punishment to be 12 years and the range of punishment to be 9-17 years.

As discussed at length above, the United States of America has a grid-based sentencing system as opposed to the narrative style in England and Wales, whereas India has a discretionary system with mere legislatively prescribed maximum and minimum (in few cases) sentences. In the first two systems, there cannot be much difference of opinion as there is already a codified mechanism in place to figure out the appropriate sentence, unlike in India where each judge is open to their own interpretation with respect to the duration of the sentence. There may be several contesting views on the effectiveness of a sentencing system. But it may be inferred that it is imperative to have a structured framework in order to maintain consistency and uniformity among courts. Moreover, England and Wales have developed a sentencing council not only to draft and develop guidelines but also to monitor their impact and undertake research and analysis.[33] This helps not only to maintain consistency in sentencing, but also to promote it.

V. CHALLENGES & SHORTCOMINGS

The importance and value of having sentencing guidelines is realized in the above discussion. No jurisdiction would oppose the idea of having a more coherent and consistent sentencing system. In order for a country to adopt such legislatively directed sentencing guidelines, regard must be had to particular jurisdictional characteristics, the receptiveness of the bar and the judiciary to such guidelines, the likely levels of compliance etc. Some of these key points may be explained as follows:

A. Jurisdictional Characteristics

Each jurisdiction has its own political and judicial way of working. Not all States can be treated equally even though they follow a similar system of governance. The adoption of prescriptive guidelines is contingent on number of characteristics such as the general susceptibility of judicial decision making, to popular and political influences, the level of informal cohesion among judges in their approach to sentencing, and the extent to which the existing sentencing practice is viewed as problematic. For example in India where the sentencing system is majorly discretionary as they operate on maximum sentences prescribed by the legislature and general principles developed by appeal courts; it may be said that there is a wider scope of inconsistency as compared to a system with a codified guideline system. It is submitted that there may be a significant increase in the number of persons choosing to plead guilty, as, if the accused has an idea about the length of his sentence before the trial, he may be motivated to plead guilty, thereby saving time, energy and resources of the court. Whereas, in a system of discretionary justice the accused might be inclined towards taking his chances in trial by pleading not guilty.

B. Receptiveness And Compliance

No rule or law can sustain if there is strong opposition. In case of sentencing guidelines being imposed in India, it is imperative that there is agreement and a sense of acceptance of the rule from the bar and the bench. It is submitted that, one can expect strong opposition from the bench as it would curtail their discretion and they would be obligated to follow the guidelines; on the other hand it can be said that it would not be in the interest of the advocates, as, if the judges had a way to pre-determine sentences, there would be absolutely no need or rather no opportunity for a lawyer to make a plea in mitigation, trying to persuade the judge towards or away from a particular sentence. In contrast, it can also be said that these guidelines would be remarkably helpful in advising the clients of the sentence they are likely to face, post-conviction and that they must weigh their options by considering the discount provided in the guidelines for pleading guilty before the trial could commence. Most importantly, the guidelines must understand the complexity of sentencing and shall not fail to recognize the integrity with which the judges discharge their judicial obligation.[34]

C. CATEGORICAL BIFURCATION OF A PUNISHMENT

It is needless to mention that any punishment awarded is directly proportional to the crime committed i.e. the principle of just deserts. This general rule will apply in all jurisdictions, regardless of the guidelines, as the ultimate aim of any justice system is to adequately deliver punishment for the particular crime. For example, the offence of voluntarily causing grievous hurt by dangerous weapon carries a maximum sentence of life imprisonment.[35], and similarly, in England and Wales for the offence of causing grievous bodily harm with intent also carries a maximum sentence of life imprisonment.[36] The difference however lies in the three categories mentioned in the sentencing guidelines of England and Wales, which guide the sentencers to pass an adequate sentence with relation to the culpability and previous convictions with the help of aggravating and mitigating factors mentioned in the guidelines. Also, light needs to be put upon the fact that the judge in this case is not completely bound by the guideline, he may depart from the guidelines if satisfied that it would be against the interest of justice to follow them.[37] The intention here, is to demonstrate that a prescriptive set of guidelines helps maintain consistency in sentencing and the more consistent the outcome, the more cogent the argument for implementing guidelines.

D. Power Of The Judge Is Neutralized

The question raised would be whether a judge has an imperative role in sentencing if sentencing guidelines are implemented. It is submitted that the sentencing guidelines is a comprehensive explanation of the sentences for most offences, making the process of sentencing extremely clear and easy. Arguably, it can be said that the freedom and discretion of a judge to sentence a person would naturally reduce if the sentencing guidelines come into the picture. The judicial discretion would be restricted, and the role of a judge as a sentencer would become almost inconsequential. It may be argued that the sentencing guidelines would constrain the sentencer to apply his/her own mind into matters and situations. If the sentencing guidelines come into effect, the underlying question remains as to how tightly should they bind? Hereunder are insights on the sentencing guidelines taking away the Judge’s discretion:-

E. No Individualistic Approach

The role of a judge would be critically endangered in a judicial system with sentencing guidelines. The role of a judge would reduce to a technician who feeds in data and reads out the result. This raises a debate on the importance of a judge in the process of sentencing. It can be argued that a judge is capable of taking into account specific individual circumstance and justice can be tailored accordingly, whereas, a guideline would generalize an offence and list down the categories of sentences accordingly. Discretion can provide justice when there is a need to balance the consistency of sentencing by catering to individualized treatment of each offender; it enables the use of compassion or forbearance.[38]

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F. Sentencing Is An Art Not A Science

The Court of Appeal in UK in the case of R v Graham[39], Lord Justice Rose mentioned that the guidelines are not a straitjacket formula, sentencing is an art not a science. Many judges in the UK had the same opinion as above. It is submitted that sentencing cannot be restricted to what is mentioned in the guidelines. The sentencer deserves the liberty to act on his/her own discretion as and when required.

VI. ANALYSIS & CONCLUSION

It is needless to mention that the aim of any sentencing system is to promote consistency and uniformity in punishment. The question to be answered is what is the most ideal method to achieve this objective by maintaining an equal balance between the sentence i.e the judge, and legislature? After considering the results in the case study discussed above, it may be deduced that no modern legal system should entirely leave unconstrained powers to the sentencer. There shall be a division of labour between the courts and the legislature wherein the boundaries of the of the court’s sentencing powers shall be set by the legislature wherein a degree of range shall be provided, subject to corrective adjustment by the judiciary.[40] In order to maintain the independence of judiciary one may ask how tightly are the sentencers bound by the range specified in the guidelines and how flexible is the statutory test for its departure from the range? It is submitted that the courts must be given enough flexibility to depart from the sentencing guidelines in order to be able to impose a fit sentence and may record reasons for the same. Similar provision such as Section 125 of the Coroners of Justice Act 2009 can be put in place wherein the judge can deviate from the guidelines in the interest of justice, by assigning reasons.

However, to give perspective emphasis may be laid on other jurisdictions which do not allow this kind of flexibility to a judge. For example, The Minnesota Sentencing Guidelines Commission[41] mentions that the departures from the sentencing guidelines can only be made when substantial and compelling circumstances exist. Hence, the implication of ‘substantial and compelling reasons’ is that only a small minority of sentences should fall outside the guidelines and that the purpose of sentencing guidelines cannot be achieved unless there is a high degree of regularity.[42] Such strict measures would certainly jeopardise the power and position of a judge and hence a certain amount of flexibility in the interest of justice is required.

It may also be noticed that the sentencing guidelines system in the UK has given the sentencer a much wider range of discretion in the sentencing guidelines as compared to the United States federal guidelines. It is imperative to realise that a sentencing system giving a wide sentence range would although have few departures but still fail to promote consistency in sentencing due to the length of the range. On the other hand, a sentencing system with a narrow sentence range would be equally ineffective as there would then be numerous departures.[43] It is therefore submitted that an ideal sentencing guideline system shall endeavour to achieve a balance by way of a system that is followed more than often, and may depart from the guidelines in rare and exceptional cases in the interest of justice.

The principle aim of any sentencing system is to maintain consistency in sentencing. In order to achieve this consistency, one needs to have a structured mechanism. The way to measure the success of the guidelines is to look at the extent to which courts have departed from them.

With respect to the success of the Sentencing Council in England and Wales; “Data published by the Sentencing Council as part of the Crown Court Survey show high levels of compliance with the guidelines:

Assault occasioning actual bodily harm: 96 per cent of sentences imposed fell within the guideline offence range, 1 per cent were above, and 2 per cent below the range. Causing grievous bodily harm/wounding with intent to do grievous bodily harm: 92 per cent within the range, 7 per cent above, and 1 per cent below the range...Common assault: 99 per cent were within the range and 1 per cent above.”[44]

The sentencing guidelines in England and Wales seem to be extremely successful due to the wide range in the punishment of each offence. Although the sentences are within the range, it cannot be said that all the sentences are consistent. It is indeed because of the very wide range of punishment, the sentences fit in easily within them, thereby achieving success figures in statistics but not in reality.

This essay has displayed the value and importance of sentencing guidelines in a criminal justice system. The aim of this essay was to show the need for such guidelines in India and demonstrate how the model (sentencing guidelines) of England and Wales is extremely effective brings about uniformity in sentences all across the country. Encouraging the use of such legislatively prescribed guidelines in India is the need of the hour and this essay strives to suggest and advise the same. It is therefore submitted that legislatively prescribed sentencing guidelines is the most apt and progressive method to achieve uniformity in sentencing in any criminal justice system, and India at present is in dire need to adopt the same.                                                                                                                                         

 

* LLM (University of London), Associate in the Chambers of Mr. Aabad H Ponda (Sr. Advocate).

[1] Bachan Singh v/s State of Punjab, AIR 1980 SC 898 (Supreme Court of India, 1980).

[2] AIR 1979 SC 916 (Supreme Court of India, 1979).

[3] Committee on Reforms of Criminal Justice System, Ministry Of Home Affairs, (Jul. 24, 2020.), https://www.mha.gov.in/sites/default/files/criminal_justice_system_2.pdf.

[4] 5th Report Second Administrative Reforms Commission June 2007, Department Of Administrative Reforms And Public Grievance (Jul. 24, 2020.),  https://darpg.gov.in/sites/default/files/public_order5.pdf.

[5] Id.

[6] Accused ‘X’ v. State of Maharashtra, A.I.R. 2019 S.C. 3031 (Supreme Court of India, 2019).

[7] Ministry of Home Affairs, Supra Note 4.

[8] Id.

[9] AIR 2018 SC 3564 (Supreme Court of India, 2018).

[10] 2014 (6) SCC 466 (Supreme Court of India, 2014).

[11] 2014 CriLJ 4598 (Supreme Court of India, 2014).

[12] 2017 (1) ACR 1133 (Allahbad High Court, 2017).

[13] Aannappa Avdhut Haladvdru & Ors v/s State of Maharashtra, 2016 ALLMR (Cri) 3529 (Bombay High Court, 2016).

[14] Senthil Arumugam vs. State, (2018) 1 MWN (Cri) 109 : 2017 SCC OnLine Mad 35938 (Madras High Court, 2018).

[15] Satya Prakash vs. State, 203 (2013) DLT 652 (Delhi High Court, 2013).

[16] Lavjiji v/s State of Gujarat, 2014 GLH (2) 153 (Gujarat High Court, 2014).

[17] Letter from Birmingham Jail,  April 6, 1963.

[18] Reduction in Sentencing for Guilty Plea Definitive Guidelines, Sentencing Council (Jul 24, 2020), https://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction-in-Sentence-for-Guilty-Plea-definitive-guideline-SC-Web.pdf.

 

[19] Black's Law Dictionary, (10 ed.) (2014).

[20] State of West Bengal and Ors. v. Shivananda Pathak and Ors., AIR1998 SC 2050 ( Supreme Court of India, 1998)

[21] 1 National Research Council Et Al., Research On Sentencing: The Search For Reform, (1983).

[22] House of Commons The Committee Office, House of Commons - Sentencing guidelines and Parliament: building a bridge - Justice Committee, United Kingdom Parliament Publications (Jul 24, 2020, 1:57 PM) https://publications.parliament.uk/pa/cm200809/cmselect/cmjust/715/71506.htm#a9.

 

 

[23] Mandeep K. Dhami, Quasirational Models of Sentencing, 4 Journal Of Applied Research In Memory And Cognition 239-247 (2015).

[24]An overview of the Federal Sentencing Guidelines, United States Sentencing Commission (Jul. 24, 2020). https://www.ussc.gov/sites/default/files/pdf/about/overview/Overview_Federal_Sentencing_Guidelines.pdf

 

[25]Sentencing Table, United States Sentencing Commission, (Jul 24, 2020), https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/Sentencing_Table.pdf.

 

[26] Hazara Singh v. Raj Kumar & Ors., (2013) 9 Supreme Court Cases 516 (Supreme Court of India, 2013).

[27] Indian Penal Code 1860, s. 307.

[28] Indian Penal Code 1860, s. 326.

[29] Office of the Law Revision Counsel United States Code, United States House Of Representatives, (Jul 24, 2020.), http://uscode.house.gov/browse/[email protected]&edition=prelim.

[30] 2016 Chapter 2 A-C, United States Sentencing Commission (2016), (Jul. 24, 2020.), https://www.ussc.gov/guidelines/2016-guidelines-manual/2016-chapter-2-c#2a22.

[31] Sentencing Table Supra Note 26.

[32]Attempted Murder, Sentencing Council, (Jul. 24, 2020.), https://www.sentencingcouncil.org.uk/offences/crown-court/item/attempted-murder/.

 

[33] Northern Ireland Assembly Research and Information Service, Sentencing Guidelines Mechanisms in other Jurisdictions, Northern Ireland Assembly (Jul. 24, 2020.), http://www.niassembly.gov.uk/globalassets/documents/raise/publications/2016-2021/2016/justice/7916.pdf.

[34] Daniel Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers 101(8) The Yale L.J., 1683,  1681-1754 (1992).

[35] Indian Penal Code 1860, s. 326.

[36] Offences Against the Person Act, 1861 (UK), s. 18.

[37] Coroners of Justice Act 2009 (UK), s. 125.

[38] Loraine Gelsthorpe and Nicola Padfield , Exercising Discretion: Decision-Making in the Criminal Justice System and Beyond, 67(3) Modern Law Review (2004).

[39] R v Graham, [1999] 2 Cr. App. R. (S.) 312 (United Kingdom Court of Appeal, 1999).

[40] Antje Du Bois-Pedain, In Defense Of Substantial Sentencing Discretion, 28 Criminal Law Forum 392, (2017).

[41] Minnesota Sentencing Guidelines and Commentary, Minnesota Sentencing Guidelines Commission (Jul. 24, 2020.), https://mn.gov/sentencing-guidelines/assets/2008-Sentencing%20Guidelines_tcm30-31180.pdf.

[42] Julian Roberts, Sentencing Guidelines And Judicial Discretion: Evolution Of The Duty Of Courts To Comply In England And Wales, 51 The British Journal of Criminology 1002 (2011).

[43] Id.

[44] Northern Ireland Assembly Supra Note 34.

 


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