Indian Sentencing Council: Why India Needs Sentencing Reform

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• In India, two people convicted of the same crime can receive vastly different sentences — and the difference often depends less on the law than on which judge heard the case. 
• Sentencing is where the State converts prescriptive ranges (like “up to ten years”) into actual punishment, yet this crucial decision is left almost entirely to individual judicial discretion, with no structured guidelines on what counts as a serious aggravating factor or genuine mitigation.

The Problem: Unequal Sentences, Unequal Justice

• Statutes typically set only maximum (and sometimes minimum) sentences — with no checklist for weighing aggravating/mitigating factors, prior conduct, or remorse.
• Analysts contend that the courts have reduced sentences based on legally irrelevant, retrograde factors — like a complainant’s supposed “chastity” or her subsequent marriage — while ignoring psychological harm or breach of trust.
• This isn’t limited to sexual offences — it’s a deep-seated architectural problem in criminal justice.
• Constitutional Stakes: Articles 14 and 21 prohibit arbitrary State action and demand fair, just, reasonable procedures whenever liberty is restricted. 
• When similarly placed offenders get wildly different sentences — say, because one judge treats poverty as mitigating and another doesn’t — this is hard to reconcile with equality before the law.

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Judicial and Legislative Acknowledgment

• Supreme Court, Sunita Devi vs State of Bihar (2024): Held that “sentencing shall not be a mere lottery” and directed the Centre to examine a national sentencing policy, potentially via a Sentencing Commission.
• The Centre has tasked the Law Commission of India with examining the issue; recommendations are expected soon.
• Notably, the Law Commission first flagged this concern over 50 years ago in its 47th Report (1969) — yet Parliament has never designed a coherent framework. Framing sentencing policy is a legislative task, with implementation falling to the executive.

Existing Alternatives Go Underused

• India already has statutory alternatives to custody: 
  • Sections 401 and 402, BNSS (Bharatiya Nagarik Suraksha Sanhita).
    • Section 401 (earlier Sections 360 of CrPC): Order to Release on Probation of Good Conduct or After Admonition
    • Section 402 (earlier Sections 361 of CrPC): Special Reasons to be Recorded in Certain Cases
  • Sections 3, 4, and 6, Probation of Offenders Act, 1958 — requiring courts to consider probation in eligible cases.
• Problem: No general framework explains how to balance these alternatives against competing sentencing aims — deterrence, reformation, rehabilitation.
• Soman vs State of Kerala (2012): The Supreme Court recognised these competing principles but noted sentencing remains one of the weakest parts of criminal justice administration.
• Consequently, appellate courts are repeatedly tasked with correcting harsh or lenient sentences case-by-case, without a common yardstick — consuming significant judicial time.
• Section 258(2), BNSS: Requires a Sessions Judge to hear the convicted person separately on sentence — an opportunity to gather material on mitigating/aggravating circumstances that currently lacks structured guidance.

The English Model: Structuring Discretion, Not Eliminating It

• England and Wales created a Sentencing Council under the Coroners and Justice Act, 2009, backed by a consolidated Sentencing Code.
• Step-by-Step Method 
  • Classify the offence by culpability (blameworthiness) and harm caused.
  • Each culpability-harm combination gets a starting point and category range (a sentencing band).
  • Judges then adjust for aggravating/mitigating factors, guilty-plea reductions, multiple offences, and ancillary orders.
• The goal isn’t identical punishments for superficially similar crimes — it’s uniform principles that structure (not replace) judicial discretion.

What an Indian Sentencing Council Could Do

• A Council created by Act of Parliament could perform three core functions:
  • Develop offence-specific guidelines using a three-stage framework: 
    • Assess seriousness via culpability and harm (planning, violence, weapon use, victim vulnerability, demonstrable harm).
    • Set an indicative starting point and range within the statutory envelope.
    • Individualise and justify the sentence using recognised purposes like rehabilitation.
  • Build a national sentencing database, using the National Judicial Data Grid’s infrastructure — anonymised data on offence type, harm/culpability factors, starting points, adjustments, and final sentences — enabling Parliament, courts, and the public to identify disparities.
  • Issue guidelines as delegated legislation, placed before Parliament for approval — advisory but strongly presumptive. 
    • Courts must consider them in every case and give reasons when departing, preserving judicial independence while making discretion accountable.

Potential Pitfalls

• Penal populism (especially around sexual offences) could push guidelines toward ever-longer sentences without evidence of deterrence.
• Excessive centralisation risks ignoring state-level differences in court capacity and prison conditions — significant since prisons fall under the State List while criminal law is in the Concurrent List.
• Mechanical compliance risk: Judges might simply “tick guideline checklists” without genuinely changing their reasoning.
• These risks can only be managed if the Council is independent and empirically grounded.

Conclusion

• India’s criminal justice debate has long focused on its “front end” — policing, speedy trials, victims’ rights — while neglecting the equally critical “back end” question: once convicted, how should punishment actually be decided? 
• As the Supreme Court itself has warned, sentencing today functions as a lottery, shaped more by judicial temperament than by principled, consistent reasoning. 
• A Sentencing Council — modelled on England’s approach but adapted for India’s federal and evidentiary realities — offers a path to structure discretion without eliminating it, ensuring accountability without compromising judicial independence. 
• The real test will be whether such a body, once recommended, finally receives the legislative attention that successive Law Commissions have sought for over five decades.

Source: IE