1.

SENTENCING POLICY IN INDIA

Introduction
In order for all citizens to be able to exercise their human rights, sovereign states must uphold the rule of law,
promote respect for it, and maintain peace. States can fulfill this obligation by enacting the required legislative,
executive, and judicial measures. But without appropriate preventive and punitive measures to either restrict or
repair the individuals’ wrongful actions, such measures would be ineffective.

Furthermore, it’s important to realise that wrongful actions have the potential to affect other members of society or
society at large. As a result, it is the responsibility of the State to identify and detain the individual responsible for
the unlawful behaviour or invasion, and then to subject that person to a fair trial, and, if found guilty, to punish the
individual in accordance with the law.

In other words, we may say that each society has a certain amount of social control and that control has an ethical
and moral justification. The basis of the concept of social control is justice. Any conduct that deviates in some way
from this acceptable behaviour, social custom, or rule is met with a specific sort of punishment. This affliction will
vary from society to society. The imposition of a proper, just, adequate, and proportionate penalty is one of the main
goals of criminal law. This article aims to discuss the concept of sentencing with respect to India.

What is meant by ‘sentence’

“Sentences” are declarations in judgments that specify the legal penalty to be applied to a certain offence. When the
same is put in action, and is operationalized, it would be termed as ‘punishment’. A sentence is considered to be the
predecessor of the actual inflicting of punishment if any. Any country that has sentencing laws has them in place to
deter crime and punish offenders. The sentencing guidelines represent how society views and justifies a certain
offence. Guidelines for sentencing can be viewed as a method for determining the appropriate punishment for a
certain offence.

Both the legislature and the judiciary in India have not established formal sentencing guidelines. Numerous
committees have realised the importance of well-considered guidelines. Recognizing the need for such a policy, the
judiciary has occasionally laid out certain principles and criteria that courts should take into account when
determining punishments. It has also been noted that the absence of sentencing guidelines is resulting in broad
discretion, which ultimately results in uncertainty in the awarding of sentences.

Aim of sentencing
The main objective of a criminal trial is sentencing. When the victim is satisfied, justice through punishment serves
as a symbol for the current and subsequent generations. Therefore, the ultimate focus of the sentencing policy is to
keep an eye on crime and punish offenders.
The development of civilization brought about many forms of punishment that were sanctioned by various societies.
For instance, the punishment for offences under Mohammedan law included blood, money, and revenge. For
instance, the punishment for offences under Mohammedan law included blood, money, and revenge. According to
Hindu law, discretionary punishment was required and favoured Brahmins. The use of harsh trials as a form of
punishment was widely known in English law. But penology steadily changed as society developed. Several judicial
systems began to explain their punishments, and they eventually came to a point where the emphasis was more on
reforming the offender, than on deterring him.

The type of punishment imposed for various offences can be used to determine the underlying philosophy of any
criminal justice delivery system. But it is impossible to expect everyone in a system like ours, with so many players,
engaged besides the accused and victim, to respond to a specific crime in the same way. For example, the victim
might display more emotion than the judge, who is an absolute stranger to both sides. The accused may also come to
believe that his actions were justified by stressing the circumstances surrounding them. Judges and other legal
professionals are appointed in order to reach an agreement over a certain incident.

The decision here must consider not only whether a wrong was done or not, but also—and perhaps more importantly
—what must be done in the event that a wrong was done. There are lots of choices. The best course of action in a
victim-centred system would be to put the victim back in the same situation that existed before the mistake was
committed. This is typically utilised in economic crimes and tort situations. In situations of physical, emotional, and
psychic harm where rehabilitation is rarely achievable, this cannot be consistently applied. Retribution and
rehabilitation are the two choices available in these situations.

In the former, the system focuses on condemnation of the crime as a more important rationale for penalising than
any other. Rehabilitation, on the other hand, is more accusation-friendly and advocates reintegrating the subject into
society at large. Deterrence, whose core principle is to stop the same event from occurring again, is another
prevalent justification for punishment.

According to the White Paper (the sentencing policy, which was introduced into the British parliament), the object
of sentencing guidelines should be “dissuading and safeguarding society from evils”. Not only does a lack of a fair
conviction policy violate the rights of victims and convicts, but it also breaches the Constitution’s core human right
– the right to be treated equally under the law. It is impossible to entirely eliminate the judges’ discretionary
authority. However, certain guiding principles that limit a judge’s authority and establish a penalty-based principle
can be adopted, allowing the Indian criminal justice system to take a more rights-based approach.

The aim of a punishment framework should be to reform juvenile delinquents or first-time offenders, while acting as
a deterrent for repeat offenders or habitual offenders. It is important to strike a balance between the severity and
leniency of these penal provisions. In addition, compensation to victims should be provided. The rationale of
criminal laws may strike a balance between social norms that apply to both the individual and society as a whole.

Fundamentals of sentencing
Typically, sentencing is considered one of the most important components of criminal laws and is seen as the State’s
most invasive and powerful tool. Sentencing is that stage of the criminal justice system where the actual punishment
of the convict is decided by the judge. As a result, punishment and sentencing go hand in hand. The main purposes
of punishment are to deter criminal activity and to repress antisocial elements in order to safeguard society. Theories
of punishment suggest that there are four possible goals for punishment: retribution, prevention, reformation, and
deterrence.
The Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872 make up
the majority of the criminal justice system in India. A number of special and local laws, such as those prohibiting
animal cruelty, defending civil rights, and counterterrorism, supplement the Indian Penal Code, 1860. It’s crucial to
remember that substantive penal laws can be effective only when the procedural laws for enforcing them are
efficient. The function of the criminal justice system is essentially this.

Although many factors must be taken into account when determining which acts or omissions are punishable, who
should receive what punishment, and how severe it should be, these factors include the applicable law, the
offender’s role in the commission of the crime, its nature or severity, the availability of evidence against the
accused, how the judicial authorities will evaluate this evidence, the offenders’ criminal histories, and eyewitness
testimony.

Judges should ideally be interchangeable and mutually consistent, rendering comparable judgments in comparable
cases, preventing anyone from unfairly influencing the judge or the proceedings in any way. But because the law
cannot foresee every circumstance or determine which laws may apply in a certain circumstance, some discretion is
inevitable. Standard principles of justice and due process, reason, and the specifics of each case are expected to fill
any gaps in the law’s guidance.

Sentencing in India
The reformative theory is used to administer punishment in India. The punishment imposed shouldn’t be so severe
or so light that it fails to have an effect on the offender and serve as a wake-up call for others. It is believed that
punishment should be administered in a way that results in changes to a person’s personality and way of thinking.

Penalties in India were defined under Section 53 of the Indian Penal Code of 1860.

The provision discusses the various punishments that the courts may impose for certain offences. The following is a
list of them:

1. Death

2. Imprisonment for life

3. Imprisonment, which is of two descriptions: Rigorous and simple

4. Forfeiture of property

5. Fine

The fundamental law of the country, the Indian Constitution, has given both the Central and State governments the
authority to pass laws governing criminal justice, criminal procedure, and preventive detention. In accordance
with Articles 72 and 161 of the Indian Constitution as well as Sections 432 or 433 of the Code of Criminal
Procedure, 1973, the Government may commute, condone, or pardon any sentence, including capital punishment
and life in prison, that has been imposed and affirmed by a court of law. Even a life sentence may be reduced to a
sentence of no more than 14 years in prison.
The judges have complete discretion over how sentences are distributed, and it has been observed that this leads to
drastically unequal sentencing practices. In addition, the Cr.P.C. 1973 gives the judge a lot of latitudes after the
verdict has been reached. Sections 235, 248, 325, 360, and 361 of the Criminal Procedure Code deal with
sentencing.

To ensure that the offender is given the opportunity to speak for himself and offer input on the sentence to be
imposed on him, this section offers a quasi-trial. The reasons given by the criminal might not be relevant to the
offence or be legitimate under the law. It is merely for the court to gain a sense of the convict’s social and personal
background and determine whether anything will have an impact on the sentencing. A sentence that does not follow
Section 235 (2) may be overturned because it violates natural justice. However, this procedure is not required in
cases where the sentencing is done according to Section 360.

The main part of judicial discretion comes in S.360 which provides for release of the convict on probation. When
there is no immediate threat to society, the section’s goal is to attempt and reform those criminals. This is
demonstrated by limiting the section’s application exclusively to situations in which the following circumstances
exist:

1. A woman convicted of offence the punishment of which is not death or life imprisonment

2. A person below 21 years of age convicted of offence the punishment of which is not death or life imprisonment

3. A male above 21 years convicted of an offence the punishment of which is fine or imprisonment of not above 7
years.

Additionally, the court may leave the convict without any punishment at all after a simple warning if the crime
committed is of a nature that the maximum sentence allowable is 2 years or a simple fine. The court will take into
account the different factors related to the convict in making this decision. The court may also order the offender to
be arrested again if they fail to follow the rules established at the time of release as described in this section. The
offender or the surety must reside or be regularly engaged within the court’s jurisdiction in order to be released
under these requirements.

The application of Section 360 is mandated by the Code through Section 361, and in cases when an exception
applies, it must be justified clearly. The judge must explain any instances where the punishment imposed falls short
of the minimum required by the applicable laws. The failure to record the special reason is an irregularity that has
the potential to overturn the judgment on the grounds of injustice. Only trials before the Court of Sessions and
warrants cases are eligible under these rules.

Issues associated with the sentencing system in India

The Supreme Court observed, in Soman v. State of Kerala (2021) that “giving punishment to the wrongdoer is at the
heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal
justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just
punishment to the accused facing trial before it after he is held guilty of the charges.”

The discretion provided for under the existing procedure is guided by vague terms such as ‘circumstances of the
crime’ and ‘mental state and age’. It is true that they can be determined, but the legislature has not specified when
these determinations will affect the punishment. Every crime, for instance, is accompanied with circumstances, but
the court has the discretion to determine which circumstances are mitigating and which serve as aggravating.
Therefore, if one court finds a certain circumstance to be mitigating, another judge would still be free to disregard it
as irrelevant (apart from its value as a precedent). Due to this inconsistent application of the law, some judges have
abused their discretion on the basis of their personal prejudices and biases.

Judges in India consider many aspects of the case, such as severity, liability, guilt, and sentence. This punishment is
solely the consequence of the judge’s thinking, personal bias, and judgment. Section 354(1)(b) of the Criminal Code
states that a judge shall state the reasons for the judgment in an awarded sentence. The law’s solution to this
question led to a specific logic, such as aggravating and mitigating circumstances, in the decision of the case and in
supporting their position regarding the penalty imposed.

Multiple scholarly works on this subject assert that lawmakers should legislate even on such areas wherein the
quantum of punishment to be meted out of the offence is prescribed. The majority of criminal laws specify the
minimum and maximum punishment/fine that may be imposed in specific circumstances. Complete objectivity in
this case, however, is also not acceptable. No two cases would have the same grounding in criminal law. This is
because various cases may need different punishments depending on the circumstances surrounding the conduct of
the offence, the presence of aggravating and mitigating elements, and other variables.

After the trial is completed, the need for a sentencing policy does not end. Section 360 and Section 361 govern the
release of convicts for good behaviour, and the recording of special reasons in cases where the orders are passed by
a Magistrate of the second class. Again, every prison authority, each prison circumstance and the type of crime
committed by the offender depends on the concept of good.

The Malimath Committee, a panel created by the Ministry of Home Affairs, released a report in March 2003 that
underlined the necessity to develop sentencing criteria in order to reduce ambiguity when imposing punishments. It
stated, “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 according to his own judgment. There is therefore no uniformity. Some Judges are lenient and some
Judges are harsh. The exercise of unguided discretion is not good even if it is the Judge who exercises the discretion.
In some countries, guidance regarding sentencing option[s] is given in the penal code and sentencing guideline laws.
There is a need for such a law in our country to minimise uncertainty in the matter of awarding sentences. There are
several factors that are relevant in prescribing alternative sentences. This requires a thorough examination by an
expert statutory body.”

The Committee advised further that, in order to bring “predictability in the matter of sentencing,” a statutory
committee should be established to lay guidelines on sentencing under the Chairmanship of a former Judge of the
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.

In 2008, the Committee on Draft National Policy on Criminal Justice (the Madhav Menon Committee), reiterated
the necessity of developing a policy and prescribing sentence standards. The Law Minister was mentioned in an
October 2010 news story as saying that the government is looking into establishing a “uniform sentencing policy” in
line with that of the US and the UK to ensure that judges do not impose varying sentences.

The Supreme Court of India, in State of Punjab v. Prem Sagar & Ors (2008), also noted the absence of judiciary-
driven guidelines in India’s criminal justice system, stating, “In our judicial system, we have not been able to
develop legal principles as regards sentencing. The superior courts, except [for] making observations with regard
to the purport and object for which punishment is imposed upon an offender, had not issued any guidelines.” The
Court stated that the superior courts have come across a large number of cases that “show anomalies as regards
the policy of sentencing,” adding, “Whereas the quantum of punishment for the commission of a similar type of
offence varies from minimum to maximum, even where the same sentence is imposed, the principles applied are
found to be different. Similar discrepancies have been noticed in regard to the imposition of fines.”

No formula of a foolproof nature is possible that would provide a reasonable criterion in determining just and
appropriate punishment in the infinite variety of circumstances that may affect the gravity of punishment.

In Alister Anthony v. State of Maharashtra (2012), the Court held that sentencing is an important task in matters of
crime. “One of the prime objectives of the criminal law is the imposition of an appropriate, adequate, just and
proportionate sentence commensurate with the nature and gravity of [the] crime and the manner in which the crime
is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved
certain principles, the twin objective of the sentencing policy is deterrence and correction.” What sentence would
meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the
gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.

Graduation of punishments
The Indian Penal Code provides us with a broad classification and gradation of punishments. This has been further
carved by various judicial decisions on sentencing. However, the following drawbacks apply to these court
decisions:

1. Facts specific:
Although these rules are stated as Obiter Dicta, the application of such rules in the succeeding judgments is unclear.
This argument is illustrated by the use of this test in the case of A. Devendran v. State of Tamil Nadu (1997). There
were three murders in this case. The Supreme Court said that the trial court was not justified in issuing the death
penalty as the accused had no premeditated plot to kill anyone and the primary goal was to commit robbery. This
case should be compared with Gentela Vijayavardhan Rao v. State of Andhra Pradesh (1996), in which the appellant
burned a bus full of passengers to death while acting with the intent to rob the vehicle. The sentence provided by the
judges of the lower court was the death penalty for convict A and 10 years of rigorous imprisonment for convict B.
This was challenged by the convict. The deterrence and retribution theories are reflected in this verdict.

In both cases, the motive is to rob the victim. However, it has been utilised as a mitigating factor in one case and an
aggravating element in the other. This demonstrates how the same test has been used in conflicting ways.

2. Not followed by lower courts:

Lower courts do not adhere to these rules since they are not legally required to do so. Precedents are typically
disregarded or distinguished from the current factual situation so as to give the judge his space to rule on the case.

3. More of a legislative job:

It is the job of the legislature to make rules and of the judiciary to interpret and enforce it. It would not be fulfilling
or correct to expect and allow the judges to frame the rules by themselves.

4. Another reason the judiciary should not frame the rules is that it once again comes down to the whims
and fancies of the judge framing it. This would merely be a manifestation of the idea that one judge had
superiority over all others.
Andrew von Hirsch proposed that while determining proportionality, the process can be divided into steps in order
to reach a sentence. These four steps are:
1. What interests—physical integrity, financial security and comfort, freedom from humiliation, privacy, and
autonomy—are at risk or infringed in the typical criminal case?

2. Effects of violating such interests on a typical victim’s standard of living: minimum well-being, adequate well-
being, significant improvement

3. Culpability of the offender

4. Remoteness of the actual harm as seen by a reasonable man

Depending on which of the following methods one chooses, different factors determine responsibility.

1. Determinism: When external causes, such as self-defence or duress, control a person’s behaviour. However,
most people have enough autonomy to choose their own course of action, therefore this won’t always be true.

2. Social and familial background: Low family income, large family, parental criminality, low intelligence and
poor parental behaviour.

3. Individuals are significantly impacted by economic, educational, and employment policies. They have negative
effects including deprivation and marginalisation, which encourage the emergence of criminals in society.

The main criticism of this process is that it once more gives the judge broad discretion in evaluating the degree of
culpability. The overall effect is that sentencing policy continues to be a mess, with several well-known cases simply
elucidating general rules rather than offering courts a comprehensive standard by which to determine the
wrongdoers.

Need for sentencing in India

In India, there is no standard method for imposing sentences. A statute or set of guidelines that balances and outlines
the consideration to be given as to the aggravating as well as the mitigating elements involved in the committing of
an offence will enable the legal system in meting out the accused the appropriate penalty. Additionally, it will also
be in parlance with the common law countries from where we have borrowed most of the laws.

Uncertainty of sentencing
Different provisions of the IPC govern the punishment and sentencing aspects for various offences. The sections
specify the minimum and/or maximum penalties that may be imposed for the offences. The difference between these
two ranges, however, offers judges considerable room in deciding the punishment in cases where a sentencing range
is available and broad discretion in cases where it is not, for instance, in cases of theft where no maximum
punishment is specified. As a result, the sentencing process is unpredictable because some Judges are lenient while
others are harsh in their judgment. Hence, there is no certainty or predictability in the quantum of punishment and
sentencing that could be granted to the offender. The same was also recognised by the Malimath Committee in the
year 2003, which was reasserted by the Madhav Menon Committee suggesting the need for a statutory framework
for sentencing guidelines in India.
Appeals
India has witnessed an increase in appeals as a result of the lack of any laws that regulate sentencing. The party
appealing believes that the Judge may have had a prejudicial opinion while passing judgment on the issue of the
sentence because of the broad discretion granted to judges, which is one of the reasons for doing so.

Affects the fundamental rights of the offender

All citizens in India are guaranteed the right to equality under the constitution. The right to equality, which ensures
that everyone is treated equally before the law, as well as the right to a quick trial are both protected by Article 21 of
the Constitution. However, in the absence of sentencing guidelines, the Judges may pass judgments where in the
case of similar facts the consequences might differ thus affecting the offender’s entitlement to both rights.

A proper set of sentencing guidelines will therefore aid in guaranteeing uniformity and the administration of justice,
thereby building public confidence in the legislature and the judiciary.

Sentencing in the UK and the US

The United States system

The Guidelines are the product of the United States Sentencing Commission and are part of an overall federal
sentencing reform package that took effect in the mid-1980s. The Guidelines are now discretionary as a result of US
v. Booker (2004), which means that judges may take them into account but are not obligated to use them as a
guideline when deciding on a sentence. Despite this, when sentencing criminal defendants, federal judges nearly
always utilise the Guidelines at least as a starting point. The judge must provide a written justification for each
sentence that deviates from the recommended parameters. The two main considerations under the Guidelines to
calculate punishments are:

1. The conduct associated with the offence and,

2. The defendant’s criminal history.
The relationship between these two criteria is illustrated by the Sentencing Table[xxviii] in the Guidelines Manual.
The Table offers a sentencing range, in months, within which the court may sentence a defendant for each pairing of
offence level and criminal history category. There are six criminal history categories and 43 offence levels, and each
category carries a different number of criminal history points. For instance, the Guidelines suggest a sentence of 41–
51 months for a person found guilty of an offence with a total offence level of 22 and a criminal history category of
I. The Guidelines would suggest a sentence of 84–105 months, however, if a person with a significant criminal
history (Category VI) committed the same crime in the same way in the same current timeline and not during the
earlier guideline periods.

The statutory mission as stated in the 2005 Federal Sentencing Guideline Manual is “…deterring crime,
incapacitating the offender, providing just punishment, and rehabilitating the offender. It delegates to the
Commission broad authority to review and rationalise the federal sentencing process.” Once again discretion
though guided is not completely removed in the case of the US as well.

The United Kingdom system

The Coroners and Justice Act, 2009 governs the sentencing process in the UK. The system provides a guiding
principle for the judiciary to use when determining the appropriate level of punishment for a certain offence. The
policy’s primary goal is to achieve uniformity while promoting public confidence and proportionality in sentencing.

The rules are strict in that they prevent judges from imposing sentences that fall outside of the range that is specified
in the guidelines. However, the particular range is flexible because the courts have the option to diverge from it
whenever necessary in the interest of justice.

Apart from the offence-specific guidelines for punishment, the guidelines also provide for general guidelines where
the specific offence is not mentioned and the factors that ought to be taken into account by the courts while
sentencing the offender. The rules promote clarity in sentencing with regard to the offences committed by the
offender by incorporating provisions that ensure transparency in the sentencing process.

The Sentencing Council’s general guidelines contain guiding principles that work together with the offence-specific
guidelines. These guidelines are in addition to the offence-specific guidelines, and their application would cover
both offences for which there are offence-specific guidelines as well as offences for which there are not.

According to the guidelines, the court must consider Section 164 of the Criminal Justice Act of 2003 while
determining the fine to be imposed on the offender. Section 164 states that the fine must be proportionate to the
crime committed and must also convey the gravity of the offence. The fine should be set fairly and proportionately
so that it justifies the purpose of the punishment and discourages the offender from committing similar offences or
obtaining any financial benefit in lieu of such commission of offence. This means that it shouldn’t be less expensive
to break the law than to follow it. The fine imposed must be quantified in a manner so as to obligate the shareholders
to comply with the provisions of the law.

The Act’s sentencing guidelines have a prescriptive tone due to the way they are written. The courts are required
under Section 59(1) of the Coroners and Justice Act, 2009, to adhere to the punishment range indicated in the
guidelines while taking into account that justice is done. [10] As a result, the guidelines draw the judiciary’s focus to
the significance of guidelines while still allowing the courts to use their discretion to impose an appropriate penalty.

Suggestions

The appointment of a permanent committee

The Coroners and Justice Act established the Sentencing Council, which has a variety of duties, including
introducing new guidelines and determining whether existing guidelines are serving their intended purpose. Similar
to the preceding suggestion, India may create an ongoing ad hoc group that would be tasked with duties resembling
those of the Sentencing Council.

Preparation of a Table for certain offences as against the commission of offence

The General Guidelines should be supplemented with a table listing all of the offences, along with columns listing
the possible sentences for each offence, including the maximum and minimum fines.

A special committee headed by a criminal law expert should prepare the offense-specific table while taking into
account precedents relating to sentencing, the gravity of the offence committed, and aggravating and mitigating
circumstances surrounding the commission of the offence.

Preparation of General Guidelines in conjunction with the offences and penalties

already laid down under IPC and CrPC

According to the requirements of Indian society, the legal framework in India may adopt some of the clauses found
in the General Guidelines, 2019 published by the Sentencing Council. The centralised guidelines would aid the
judiciary in deciding on the sentence for those crimes for which there is no sentencing range established.

Conclusion
The Indian criminal justice system urgently needs an appropriate sentencing policy given the rising crime rates in
the country. The goal of introducing such a policy is to reduce the subjectivity that judges use to a minimum while
still allowing them the necessary discretion needed in the interest of justice, hence it must not be a strict one. The
courts in India currently have to rely on precedents, which also vary depending on the judge’s discretion and the
existence of additional aggravating and mitigating circumstances surrounding the offence. If these rules are applied,
this will prove to be very helpful. The intention of the sentencing guidelines is to create a just and equitable society
in which the rights of victims and criminal defendants, who are now being weakened by the sentencing system, are
protected.

2. CAPITAL PUNISHMENT

What is capital punishment?

Capital Punishment is also known as a death penalty, execution of an offender sentenced to death after
conviction of a criminal offence by a court of law. Indian Criminal justice system is one of the important
parts of capital punishment.
Evolution of capital punishment in India
India retained the 1861 Penal Code at independence in 1947, which provided for the death penalty for
murder. The idea of abolishing the death penalty expressed by several members of the Constituent
Assembly during the drafting of the Indian Constitution between 1947 and 1949, but no such provision
was incorporated in the Constitution. In the next two decades, to abolish the death penalty, private
members bills were introduced in both Lok Sabha and Rajya Sabha, but none of them were adopted. It
was estimated that between 1950 and 1980, there were 3000 to 4000 executions. It is more difficult to
measure the number of people sentenced to death and executed between 1980 and the mid-1990s. It is
estimated that two or three people were hanged annually. In the 1980 Bachan Singh judgment, the
Supreme Court ruled that the death penalty should only be used in the “rarest of rare” cases, but it is not
clear what defines the rarest of the rare.

Position in India
India opposed a UN resolution calling for a moratorium on the death penalty because it goes against the
Indian statutory legislation as well as against each country’s sovereign right to establish its own legal
system.

In India, it is awarded for the most serious of crimes. It is awarded for heinousness and grievous
crimes. Article 21 says that no person shall be deprived of ‘right to life’ which is promised to every
citizen in India. In India, various offences such as criminal conspiracy, murder, war against the
government, abetment of mutiny, dacoity with murder, and anti-terrorism are punishable with death
sentences under Indian Penal Code (IPC). The president has the power to grant mercy in a case of death
penalty. Bachan Singh vs State of Punjab,[1] the Court held that capital punishment will only be given
in rarest of rare cases.

Only the president has the power to confer mercy in cases related to death sentences. Once a convict has
been sentenced to death in a case by the Sessions Court, it must be confirmed by the High Court. If the
appeal to the Supreme Court made by the convict fails then he may submit a ‘mercy petition’ to the
President of India. Detailed instructions on the procedure are to be followed by States to deal with
petitions for mercy from or on behalf of death-sentenced convicts. Appeals to the Supreme Court and
requests for special leave to appeal to that court by such convicts shall be set out by the Ministry of Home
Affairs. Under Article 72 of the Constitution of India, the President has the power to grant pardon,
reprieves, respites or remissions of punishment or to suspend, remit or reduce the sentence of any person
who has been convicted of an offence.

What are the execution methods followed in India?

There are two methods of execution in India and they are:
  Hanging
All the death penalties in India are carried out by hanging. After independence, Godse was the first
person to be executed in India by the death penalty in the case of Mahatma Gandhi. India’s Supreme
Court suggested the death penalty should only be imposed on the rarest of rare cases in India.

 Shooting
Under the 1950 Army Act, both hanging and shooting are listed in the military court-martial system as
official methods of execution.

What are the death penalty crimes?

The crimes and offences which are punishable by death are:

 Aggravated murder
It is punishable by death in accordance with Section 302 of the Indian Penal Code, 1860. In Bachan
Singh v. State of Punjab,[2] the Court of India held that the death penalty is constitutional only when
applied as an exceptional penalty in “the rarest of the rare” cases.

 Other offences resulting in death

In the Indian Penal Code, the death penalty is given to a person who commits murder during an armed
robbery. The abduction of the victim for the money is punishable with the death penalty if the victim is
killed. Organized crime involvement, if it leads to death, is punishable by death. Committing or helping to
commit Sati to another person is also punishable by the death penalty.

 Terrorism-related offences not resulting in death

Muhammad Afzal was executed by hanging on 9th February 2013. He was executed of the December
2001 attack on India’s parliament in which nine people got killed by five gunmen armed with guns and
explosives. Mohammad Ajmal Amir Qasab, the only surviving shooter in 2008, was hanged on 21
November 2012 for various crimes, including waging war on India, murder and terrorist acts.

The use of any special category of explosive to cause an explosion that could endanger life or cause
serious damage to property is punishable by the death penalty.

 Rape not resulting in death

A person who inflicts injury in a sexual assault which results in death or is left in a “persistent vegetative
state” may be punished with death under the Criminal Law Act, 2013.

Gang rapes are punishable with death penalties. These changes were imposed after medical student Jyoti
Singh Pandey’s 2012 gang rape and death in New Delhi.
According to the 2018 Criminal Law Ordinance, a person who is liable for raping a girl who is below 12
years of age may be sentenced to death or sent to prison for 20 years along with fine. The 2018
amendment also specifies the death penalty or life imprisonment for a girl’s gang rape under the age of
12. These changes to criminal law followed an eight-year-old girl’s rape and murder, Asifa Bano, who
triggered a lot of political unrest in Jammu and Kashmir State and across the country.

To know more about the evolution of capital punishment in India and who all are excluded from
capital punishment, please watch the video below:

 Kidnapping not resulting in death

According to Section 364A of Indian Penal Code, 1860, kidnapping not resulting in death is an offence
punishable by death. If any person detaining anybody and threatens to kill him or harm him during which
the kidnapper’s act actually resulted in the death of the victim, will be liable under this section.

 Drug trafficking not resulting in death

If a person convicted of a commission or attempt to commit, abet, or criminal conspiracy to commit any
of a range of drug trafficking offences, or financing of certain types and amounts of narcotic and
psychotropic substances, he or she can be sentenced to death.

 Treason
The death penalty is given to any person who is waging or trying to wage war against the government and
helping Navy, Army, or Air Force officers, soldiers, or members to commit a mutiny.

 Military offences not resulting in death

Abetment of assault, mutiny or attempting to seduce airman, soldier, the sailor from his duty and various
other offences are punishable by death if committed by a member of the Army or Navy or Air Force.

 Other offences not resulting in death

1. If a person is a party to criminal conspiracy to commit a capital offence is punishable by

death.
2. Attempts to kill those sentenced to life imprisonment are punishable by death if the victim is
harmed by the attempt.
3. If a person provides false evidence with the knowledge that it can lead to the conviction of a
person belonging to scheduled caste or tribe for committing a capital offence on the basis of
such evidence, will be punished with the death penalty if it results in the conviction and
execution of an innocent person.

Which category of offenders are excluded from capital punishment?

 Minor
According to the law in India, a minor who is under the age of 18 at the time of committing a crime is not
executed.

 Pregnant Women
Clemency must be granted to a pregnant woman sentenced to death according to a 2009 amendment.

 Intellectually Disabled
According to the Indian Penal Code, a person while committing a crime who was mentally ill or is not
able to understand the nature of the act or the act is wrong, then that person can be held liable under the
law and can be punished with the death penalty.

Constitutional law
Article 21 of the Constitution guarantees the right to life and personal freedom to all, including the right
to live with human dignity. The state may take away or abridge even the right to live in the name of law
and public order. But this procedure must be “due process” as held in India’s Maneka Gandhi v. Union.
[3] The procedure that takes away a human being’s sacrosanct life must be just, fair and reasonable. Our
constitutional principle can be stated as follows

 Only in rarest of rare cases, the death penalty should be used.

 Only on special grounds, the death penalty can be sentenced and should be treated as
exceptional punishment.
 The accused shall have the right to hear.
 In the light of individual circumstances, the sentence should be individualized.
 The death penalty shall be confirmed by the High Court. Under Article 136 of the
Constitution and under Section 379 of the Cr.P.C., there is a right to appeal to the Supreme
Court.
 The accused may pray for forgiveness, commutation, etc. of sentence under Sections 433 and
434 of the Cr.P.C. and to the President or the Governors under Articles 72 and 161. Articles
72 and 161 contain, apart from the judicial power, discretionary power for the President and
governor to interfere with the merits of the matter; however, there is a limited authority for
judicial authorities to review it and it must ensure that the President or the governor has all
relevant documents and material before them.
 However, the essence of the governor’s power should not rest on race, religion, caste or
political affiliations, but on a rule of law and rational issues.
 In accordance with Articles 21 and 22 of the Constitution, the accused has the right to a
prompt and fair trial.
 The accused is not entitled to be tortured under Article 21 and 22.
 Under Articles 21 and 19 of the Constitution, the accused has freedom of speech and
expression under custody.
 The accused is entitled to be presented by duly qualified and appointed lawyers.

Case laws
In Jagmohan v. State of U.P,[4] the Supreme Court held that Articles 14, 19 and 21 did not violate the
death penalty. The judge was said to make the choice between the death penalty and life imprisonment
based on circumstances, facts, and the nature of the crime recorded during the trial. The decision to award
the death penalty was therefore made in accordance with the procedure laid down by law as required by
Article 21.

But, in Rajendra Prasad v. State of U.P,[5] the judge held that unless it was shown that the criminal was
dangerous to society, capital punishment would not be justified. The learned judge pleads that the death
penalty is abolished and said that it should be retained only for “white collar crimes”. It was also held
that the death penalty for the murder offence awarded pursuant to I.P.C. Section 302 did not violate the
constitution’s basic feature.

But, in Bachan Singh, v. State of Punjab,[6] explained that, in accordance with an equitable, fair, and
reasonable procedure laid down by law, the constitutional bench of the Supreme Court has recognized
Article 21 the State’s right to deprive a person of his life. In addition, there was no violation of the basic
character of the Constitution by the death penalty for the murder offence granted under Section 302 I.P.C.

Conclusion
It is a controversial topic which is related to social and moral aspect. The Court expanded the range
of “alternative options” to be exhausted before the death sentence was chosen and the Supreme Court
ruled in favour of the conviction in the case of Bachan Singh. By retaining the death penalty, we may
execute someone to death who turns out to be innocent.

3. THEORIES OF PUNISHMENT

Introduction
Punishment is the most prominent feature of criminal law. Every society has its own way of social control for which
it frames certain laws and also mentions the deterrents attached to them. Punishment is the consequence of an
unpleasant act that the wrongdoer commits. Simply put, the fundamental aim of punishment is to give relief to the
aggrieved party and to maintain law and order in society. Punishment can also be termed as the imposition of some
form of deprivation by withholding rights that a person is legally entitled to. This article aims to bring to its readers
a simple explanation of the theories of punishment that helps the criminal justice system function from time to time.

Objects of punishment
1. To protect society from mischievous elements by deterring potential offenders.
2. To prevent actual offenders from committing further offences.
3. To eradicate evils and reform criminals and turn them into law-abiding citizens.
4. To administrate justice partly by inflicting pain to deter criminals and others from indulging in crime
and partly by reforming criminals.
5. To maintain rules and regulations for a crime-free country.
An insight of theories of punishment
Theories of punishment generally contain policies regarding the handling of crimes and criminals. The theory of
punishment deals with the principles on the basis of which punishment is to be given to the offender, with the object
of safeguarding a society deprived of law and order. There are four types of theories of punishment.

1. Deterrent theory.
2. Retributive theory.
3. Preventive theory.
4. Reformative theory.

Deterrent theory of punishment

The founder of this theory is Jeremy Benrhem, and this theory is based on the principle of hedonism which says that
a man would be deterred from committing a crime if the punishment applied was swift, certain, and severe.

This theory focuses on deterring offenders from criminality or repeating the same crime in the future. This theory is
a lesson to members of society who experience the consequences of that crime. It creates fear of punishment in like-
minded people.

There should be a nexus between the crime committed and the punishment inflicted for that. While deciding on the
punishment, the following should be taken into consideration;

1) The seriousness of the crime – Punishment should be given according to the seriousness of the crime committed,
for e.g one can’t award a death sentence for pickpocketing.

2) The gravity of crime – The consequences of the punishment inflicted have to be taken into consideration
alongside taking into account the victim’s satisfaction concerning the same. For e.g, if Mr.X is murdered by Mr.Y
then if Mr.Y is giving one-time compensation of Rs.5 lakhs to X’s family, is it sufficient if he is the only bread
earner of the family?

3) Impact on the general public – It is most important to consider what will be the effect of that punishment in the
minds of the general public. Are they taking lessons from that? For example, traffic police are collecting fines for
not wearing helmets, but do people follow this rule? Are they really serious about fines and rules?

In the case of the State of H.P.v. Nirmala Devi (2017), the court of law had opined that if the crime done is heinous
and serious against society then the deterrent theory becomes more relevant, for those guilty will be punished to
deter other prospective offenders.
Criticism of deterrence theory
1. Though this theory intends to deter people from committing crimes or repeating the same crime, it has
failed to serve its purpose. It has proved ineffective in checking crimes and the fact that excessive
harshness of punishment tends to defeat its purpose by arousing the public’s sympathy towards those
who are subjected to such punishment.
2. Punishment loses its essence once the criminal is punished. For example, in the Delhi gang rape case,
familiarly known as the Nirbhaya case, all 4 accused were hanged for their heinous crime but the
offence of rape continues to happen. Thus the question as to whether the deterrent theory of punishment
serves its purpose remains arising in people’s minds.
3. It does not give a chance to reform the accused.

Retributive theory of punishment

This theory is based on the famous saying that a ‘Tit for Tat’, ‘ Eye for Eye’ or’ Teeth for Teeth’. The main motive
of this theory is to inflict a similar amount of pain endured by the aggrieved party because of the offender’s activity.
Put simply, it can be said that every punishment is retributive to a certain extent for the purpose of punishment itself
is to restore peace and harmony in society. This theory is harsher than other theories.

Owing to humanitarian grounds, this theory of punishment is not much on the favourable side for it causes harm to
the accused in a greater way. Therefore, the most important thing to consider while awarding punishment is the
balance between the aggravating and the mitigating factors involved in the offence committed.

Criticism of the retributive theory

As per the development of society, this type of punishment was banned due to the following criticism.

1. It is difficult to determine the proportion of pain or revenge in this type of punishment, meaning to
what and to what extent the pain should be returned.
2. The entire natural justice principle will collapse if everyone takes revenge on each other according to
their hate and the injury caused.

Preventive theory of punishment

Unlike other theories, this theory aims to prevent crime rather than take revenge. This theory is also called the
disablement theory. Put simply, we can understand the nature of this theory with a simple example: when we were in
school, our teachers used to make the mischievous students stand out of the classroom, for disturbing the whole
class. This punishment by the teacher prevents other students from disturbing the class due to fear of punishment. In
the same way, this theory talks about eliminating the accused from society to prevent the repetition of his crime
again. By preventing those criminals, society protects itself against anti-social order in general. Prevention of these
criminals can be done by giving them death punishment or life imprisonment. Separation of these criminals from
society prevents other prospective offenders from committing crimes.
In the case of Sunil Batra v. Delhi Administration (1978), the court of law observed that if the prisoner is violent or
dangerous, solitary confinement is necessary to prevent and segregate these offenders from society, thereby abiding
by the retributive theory of punishment.

Criticism surrounding the retributive theory of punishment

While the retributive theory promotes the dissertation of the offender, the same has severe consequences and
difficulties inflicted upon the accused. It is ideal to note that the concept of morality being subjective by its very
nature makes it difficult to deliver punishments for crimes committed. Therefore, the immorality of crimes needs to
be comparable.

Reformative theory of punishment

The name of this theory itself implies what its nature has to say. This theory helps to reform criminals, thereby
transforming them into law-abiding citizens. Nobody is indeed a criminal by birth, crimes sometimes happen
accidentally or situationally. In this case, the offender should get another chance to rectify his mistake. For this,
there is the facility of correctional homes, juvenile homes, training schools, and reformatories. The main object of
this theory is the rehabilitation of inmates.

It was the case of Dharambir v. State of Uttar Pradesh (1979), which became the initiation of the concept of open
jails in India which generally helps in reforming young offenders. Further, the Supreme Court of India, while
deciding the case of Musa Khan v. State of Maharashtra (1976), had observed that the reformative system prevented
juveniles from becoming hardened criminals.

Criticism surrounding the reformative theory of punishment

I. This theory only works for juvenile and first-time offenders and not for hardened criminals who have
committed multiple crimes.
II. The reformative theory of punishment is sometimes considered not justifiable for the aggrieved party
subjected to prejudice by the offender.

Conclusion
The main purpose behind inflicting punishment on the offender, accused of an offence, is to restore law and order in
society. In this process of awarding punishment, both the interest of the aggrieved party as well as the accused needs
to be taken into consideration. One must not forget that awarding punishment should be directly proportional to the
gravity of the crime caused by the offender. Keeping the same in mind, alongside the need to curb crime from
happening at a rampant rate in society, punishment needs to be awarded. When it comes to the theories discussed in
this article, they serve as a jurisprudential value for the criminal justice system to frame punishments according to
the crime committed. These theories have been significant in helping the legislators and the judiciary frame and
interpret provisions of punishment, respectively, for a better tomorrow.
 3. KINDS OF PUNISHMENT

Under the law, punishment is provided to cease the wrongdoer from committing the crime again.
Punishment is a consequence or result of a wrong committed by a person. Provision for
punishment are provided under Sec 53 and chapter 3 of the Indian Penal Code (IPC). The
Section defines various kinds of punishments to which the offenders are liable under the Indian
Penal Code. The punishments given under Sec 53 apply only to offences given under this code.

In India, the reformative theory is followed to provide punishment. The punishment awarded
should neither be so harsh nor so easy so that it fails to serve its purpose in generating impact on
the offender and as an eye-opener for others.it is considered that punishment should be of such a
nature that it brings reform in a person's personality and thinking.

Sec 53 of the Indian Penal Code, 1860 prescribes 5 kinds of punishments.

1. Death Penalty
2. Life imprisonment
3. Imprisonment

a. Rigorous
b. Simple

4. Forfeiture of property
5. Fine

Death Penalty
Death penalty is also called the capital punishment. Under this punishment, a person is hanged
till he dies. The infliction of death sentence or taking away the offenders life by authority as a
punishment for an offence is capital punishment or death penalty. In India it is awarded in rarest
of rare cases.

It may be awarded as punishment in the following offences:

a. Waging war against the government of India (Sec 121)

b. Abetting mutually actually committed (Sec 132)
 c. Giving or fabricating false evidence upon which an innocent person suffers death (Sec
194)
d. Murder (Sec 302)
e. Murder by life convicts (Sec 303)
f. Abetment of suicide of a minor or an insane or intoxicated person (Sec 305)
g. Dacoity accompanied with murder (Sec 396)
h. Kidnapping for ransom (Sec 364A)

Case Law

1. Bachan Singh Vs the State of Punjab (AIR 1980 SC 898,1980)

Upheld the validity of the death penalty, but the court restricted the provision of the death
penalty in rarest of rare cases only. If the case falls under this theory, then capital
punishment may be given.

2. Jagmohan Singh Vs State of Uttar Pradesh (1973 AIR 947,1973 SCR (2)541)
The death penalty is unconstitutional and hence invalid as a punishment. The Supreme
Court held the death penalty as valid. It held that deprivation of life is constitutionally
lawful if that is done according to the procedure set by law.

Life Imprisonment
The words imprisonment for life was substituted for transportation for life by Act XXVI of
1955.In its ordinary connotation imprisonment for life means imprisonment for the whole of the
remaining life period of the convicted person's natural life. According to Sec57 imprisonment for
life shall be reckoned as equivalent to imprisonment for 20 year's. But only for calculating
fractions of terms of punishment imprisonment for life shall be reckoned as equivalent to
imprisonment for 20yrs.But otherwise the sentence of imprisonment for life is of indefinite
duration.

Case Law

1. Bhagirath And Ors Vs.Delhi Administration (1985 AIR 1050)

The supreme court of India defined imprisonment for life as imprisonment for the
remainder of the natural life of the convict. If life imprisonment is given to a person, he
shall stay in the prison for a minimum of 14 years and the maximum is the rest of his life.

2. Naib Singh V.State of Punjab And Ors. (AIR 1986 SC 2192)

The supreme court of India cleared the confusion with the duration of life imprisonment
and section 55 of IPC. The court held that a life convict cannot claim for his release after
serving 14 years in prison. Life imprisonment continues until the death of the prisoner.
The only exception to this is commutation and remission.
Imprisonment
Imprisonment means taking away a person's freedom and putting him in prison.

According to Sec 53 of the IPC, there are two kinds of punishments:

a. Simple: it is a punishment in which the offender is confined to jail only and not subjected
to any hard labour.

The following are some offences which are punishable with simple imprisonment:

o Wrongful Restraint (Sec 341)

o Uttering any word or making any sound or gesture with an intention to insult the
modesty of a women (Sec 509)
o Misconduct in a public place by a drunken person (Sec 510)
o Defamation (Sec 500,501,502)
o Criminal misappropriation of property (Sec 403)
b. Rigorous:
In this case the offender is put to hard labour such as grinding corn, digging, cutting
wood etc. The following are some offences which are punishable with rigorous
imprisonment:

o Kidnapping in order to murder (Sec 364)

o Robbery (Sec 392)
o Dacoity (Sec 395)
o House breaking in order to commit offence punishable with death (Sec 449)

Case Law

1. Gautam Dutta Vs. State of Jharkhand (10 feb 2016)

The boy named Atif Mustafa get kidnapped intentionally and the kidnappers murdered
him and disposed of his body to protect themselves from the criminal trial. M.D Safique
is already in the court trial. During the court trial court find about his second crime of
kidnapping a boy with his 3 friends. Court Find them and convicted them for the offense
of kidnapping which is punishable under Section 364a, 120b IPC.

2. Md.Munna Vs. Union of India and Ors (AIR 2005 SC 3440)

The writ petition is filed under article 32 of the Indian constitution. The petitioner was
found guilty of murder. And previously he has already got imprisonment for life for 21
years. In this petitioner claimed that life imprisonment should be equivalent to 20 years
and further subject to remission admissible under law.
Forfeiture Of Property
Forfeiture implies the loss of property of the accused. Under this punishment, the state seizes the
property of a criminal.it is the result of the wrong or default caused by the person. The property
forfeited may be movable or immovable.

In two provisions the forfeiture of the property has been abolished:

1. Under Section 126 for committing depredation on territories of power at peace with
government of India.
2. Under Section 127 for receiving property taken during war or depredation mentioned in
section 126 of IPC.

Fine
Fine can be simply defined as monetary punishment. Almost all the sections related with
awarding punishment includes fine as punishment. However section 63 says where sum is
expressed to which a fine may extend, the amount of fine to which the offender is liable is
unlimited, but shall not be excessive.

Case Law

 Palaniappa Gounder Vs. State of Tamilnadu (1977 AIR 1323)

The apex court stated that the sentence given by the court shall be proportionate to the
nature of the offence which includes the sentence of fine. And the punishment shall not
be unduly excessive.

Conclusion
We have discussed various punishments which are imposed differently in different offences, the
term, nature, etc varies in each case and offences and also according to courts. All the
punishments are retributive, reformative and deterrent in nature. It is stated that a reformative
approach to punishment should be the object of criminal law.