Sentencing policy and process

1. Sentencing as a separate stage

Indian law treats sentence as a distinct decision after conviction. Under section 258(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (old section 235(2) CrPC), in a sessions trial the Judge, if the accused is convicted, shall “hear the accused on the question of sentence, and then pass sentence on him according to law”, unless he proceeds under the probation provision. Similar provision applies to warrant cases before a Magistrate. Section 393(3) BNSS (old section 354(3)) requires the judgment to state the reasons for the sentence where the offence is punishable with death or alternatively with life or a term of years, and special reasons for a sentence of death.

The hearing must be real. In Manoj v. State of Madhya Pradesh, 2022 INSC 606, (2023) 2 SCC 353, the Court found that the trial court and the High Court had failed to give an effective sentencing hearing in a triple murder case. It directed that in capital cases the State must place before the court material on the accused's background, a psychiatric and psychological evaluation, and the jail authorities' report on conduct and work in prison, so that mitigation can be assessed. In In re Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences, 2022 INSC 987, a three-judge Bench referred to a Bench of five the question whether, and when, a separate sentencing hearing must be held after conviction for a capital offence. I have not been able to confirm that the reference has been decided.

2. The aims a sentence pursues

The court weighs the purposes discussed in Unit I: deterrence, incapacitation, retribution in the sense of just deserts, reformation, and compensation to the victim. Which dominates depends on the offence and the offender. Courts usually state the governing principle as proportionality: the sentence must be proportionate to the gravity of the offence and the culpability of the offender.

In Alister Anthony Pareira v. State of Maharashtra, 2012 INSC 18, (2012) 2 SCC 648, the Court said that sentencing is an important task, that the sentence should be proportionate to the crime, and that an unduly lenient sentence undermines public confidence while an unduly harsh one is unjust. In Soman v. State of Kerala, 2012 INSC 616, (2013) 11 SCC 382, the Court upheld enhancement of the sentence for selling spurious liquor because a death had resulted: the consequences of the act, even if not intended, may be taken into account in fixing the sentence.

3. Aggravating and mitigating factors

The factors courts consider can be grouped.

• The offence: its nature and gravity; the manner of commission (planning, cruelty, use of weapons); the harm caused; the number and vulnerability of victims; abuse of a position of trust.
• The offender: age; previous record or its absence; mental condition; socio-economic background; provocation or emotional disturbance; conduct after the offence, such as surrender, confession, restitution or remorse; prospects of reformation.
• The process: a plea of guilty, delay in trial, time already spent in custody (set off under section 468 BNSS, old section 428).
• The victim: compensation paid, and the victim's own views, which the BNSS now gives a place to through the victim's right to be heard.

Statute fixes some of these. The BNS prescribes minimum sentences for sexual offences against women and children, so the court cannot go below them. Section 13 BNS enhances punishment for a repeat offender. The Probation of Offenders Act, 1958 and section 401 BNSS (old 360) allow a court to release a first or young offender instead of sentencing him: see the note on that Act.

4. The absence of sentencing guidelines

The Supreme Court has said several times that India has no structured sentencing policy. In State of Punjab v. Prem Sagar, 2008 INSC 658, (2008) 7 SCC 550, it observed that the country has no statutory sentencing guidelines, that judges' approach varies widely, and that the matter needs attention. In Sangeet v. State of Haryana, 2012 INSC 522, (2013) 2 SCC 452, in the death penalty context, it said the balance-sheet of aggravating and mitigating circumstances had not been applied uniformly and the approach needed a fresh look.

Reform proposals:

• The Malimath Committee on Reforms of the Criminal Justice System (2003) recommended a statutory committee to lay down sentencing guidelines, so as to reduce uncertainty.
• The Draft National Policy on Criminal Justice (2007), prepared by the Madhava Menon Committee, made a similar recommendation.
• Models abroad: the US Federal Sentencing Guidelines (since 1987, advisory after United States v. Booker, 2005) and the Sentencing Council for England and Wales (Coroners and Justice Act 2009), whose guidelines courts must follow unless contrary to the interests of justice.

5. Sentencing in capital cases

Where the choice is between death and life, the structured test of Bachan Singh (1980) and Machhi Singh (1983) applies. That is the subject of the next note. The sentencing process there is the most demanding: separate hearing, mitigation investigation (Manoj), special reasons (section 393(3) BNSS), confirmation by the High Court (section 407 BNSS, old 366), and the possibility of the special category of life sentence without remission (Swamy Shraddananda, Sriharan).

How this is examined

“What is sentencing process? Discuss the factors to be considered in sentencing process” (August 2024, 10 marks) and “What factors are taken into consideration by the court at the time of determining the sentence?” (February 2025, 10 marks). Structure: the separate hearing (section 258(2) BNSS and Manoj), the aims, the grouped factors of section 3, proportionality with Alister Anthony Pareira and Soman, and close with the guideline problem (Prem Sagar, Malimath). The examiner looks for the last part: it is what turns a list of factors into an answer on policy.