Critics have identified sentencing disparity as the greatest problem currently being faced in this regard. It has been argued that the unfettered exercise of judicial discretion is susceptible to arbitrariness and bias thereby resulting in excessive sentencing disparity among offenders who have been convicted for the same offence. For instance, in Dananjoy Chatterjee@Dhana v. State of West Bengal^[1], the Supreme Court observed that there were admitted disparities in sentencing in India with criminals getting grossly different sentences for the same offence "thereby encouraging the criminals and in the ultimate make[ing] justice suffer by weakening the system's credibility." Again, in Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka^[2], the Supreme Court expressed its dissatisfaction with the way in which death sentences were being awarded in an inconsistent manner by Courts which "lead to a marked imbalance in the end results."

The almost unanimous recommendation for addressing sentencing disparity has been to replace the "indeterminate model" of sentencing traditionally followed in India with the "determinate model" though the introduction of sentencing guidelines. Expert Committees such as the Committee on Reforms of the Criminal Justice System (The Justice Malimath Committee)^[3] and the Committee on the Draft National Policy on Criminal Justice (The Prof. Madhav Menon Committee)^[4] have heavily criticised the lack of uniformity in sentencing and have recommended- a) the framing of specific sentencing guidelines for each type of offence and b) the establishment of a statutory body for the same. The Supreme Court too, in cases such as Soman v. State of Kerala^[5], has referred to recommendations for the development of sentencing guidelines from various quarters. Similar recommendations have also been made by academics and legal experts.^[6]

However, the very jurisdictions that have been referred to as inspirations for the guideline system have found sentencing guidelines to be riddled with implementation problems. The US is the primary example of this. The federal sentencing guidelines, which were mandatory at the time, were implemented in 1987 with precisely the hope of minimising sentencing disparity by curbing unfettered judicial discretion. However, the guidelines came to be heavily criticised for their excessive complexity and their almost mechanistic nature.^[7] With time, academic research showed that sentencing guidelines failed to account for real-world disparities and thus fell short of their stated aim. For example, the rigorous and mechanical implementation of the federal sentencing guidelines was shown to disproportionately affect Black and African-American communities (largely as a result of policies stemming from "the war on drugs").^[8] It was further found that the increase in the incarceration levels of female offenders was linked (though in a non-linear manner) to the strict implementation of federal sentencing guidelines.^[9] As a result, these guidelines were challenged in United States v. Booker^[10] before the Supreme Court of the United States wherein it was held that the mandatory sentencing guidelines were unconstitutional and that the federal sentencing guidelines could only be advisory in nature.

On the other side of the Atlantic, the sentencing guidelines of the United Kingdom have greater flexibility than the sentencing "grids" of the US model^[11] and are considered to be relatively more successful.^[12] Despite this, they have faced criticism from both sides of the aisle. While on the one hand their ability to reduce disparity has been questioned^[13], on the other, it has been argued that they continue to leave too much discretion to judges.^[14]

Thus, sentencing guidelines as a strategy for sentencing reform have limited effectiveness in and of themselves. They are, in fact, a secondary step. In India's case, what is immediately needed is not rigid "paint by numbers" guidelines but clarity regarding the fundamental goals and principles of sentencing.

While the cases mentioned above proposed guidelines as a solution to existing problems, a deeper reading reveals conflict about the very purposes and principles of sentencing in the minds of the judiciary. For instance, in State of Punjab v. Prem Sagar & Ors.^[15]- often cited in support of sentencing guidelines- the Court acknowledges both the pros and cons of sentencing guidelines and is actually primarily concerned with "legal principles as regards sentencing". The Court states that "Whether the court while awarding a sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality, would no doubt depend upon the facts and circumstance of each case."^[16] The Court further points out that, other than instances of disparate sentencing, "even where same sentence is imposed, the principles applied are found to be different." The Court then chooses to apply the principle of proportionality in the instant case without a detailed explanation of this choice. A similar analysis is conducted in the Soman Case which states that Courts should base sentencing decisions on different rationales "most prominent amongst which would be proportionality and deterrence." ^[17] Thus, the Court gives primacy to the principles of proportionality and deterrence as opposed to reform and rehabilitation but, again, does not provide reasons for the same.

Further underlying this discussion is the judiciary's concern with the impact of crime on social order and the need for punishment to reflect public condemnation of the crime. For example, cases such as the Dhananjoy Chatterjee @Dhana Case and Shailesh Jasvantbhai & Anr. v. State of Gujarat & Ors.^[18] speak about how the object of the law is the "protection of society and stamping out criminal proclivity" ^[19] and how punishment imposed by Courts should "reflect public abhorrence of the crime."^[20]

The Court's choice to apply proportionality in these cases is in stark contrast to earlier jurisprudence which gave primacy to the principles of reform and rehabilitation and so was "offender-centric" as opposed to "crime-centric". In fact, in more recent cases such as Accused X v. State of Maharashtra^[21], State of Madhya Pradesh v Udham & Ors.^[22] and K. Prakash & Anr. v. State of Karnataka^[23], the Supreme Court has returned to its more "humanistic" approach that takes into account all relevant factors and has endorsed the principled exercise of judicial discretion as opposed to a stricter fixed punishment approach.

Thus, the conflict, in actuality, is less about the existence of specific guidelines and more about the fundamentals of sentencing itself. Sentencing guidelines will not, by themselves, be able to address these fundamental anxieties about the ethics of sentencing. What is needed is statutory clarity regarding the purposes and principles of sentencing itself.

Many common law jurisdictions- both guideline and non-guideline- have formulated comprehensive statutes that clearly lay down the penological goals judges should seek to achieve as well as the fundamental principles on which sentencing operates. The approach taken by Canada and New Zealand (both non-guideline jurisdictions) is particularly illustrative for India's purposes. The relevant statutes of both jurisdictions expressly state the purposes of sentencing, the fundamental principles to be followed and the specific aggravating and mitigating factors to be taken into account when determining the quantum of the sentence.

The Canada Criminal Code states that the "fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions". These "just sanctions", in turn, must be imposed with one or more of the following objectives- a) denouncing the unlawful conduct and the harm done; b) deterring future commission of offences; c) isolation of offenders from society; d) rehabilitation of offenders; e) providing reparations to victims or the community; and, f) promoting a sense of responsibility and acknowledgment of the harm done in offenders.^[24] The Code then goes on to state that the fundamental principle of sentencing is that sentences "must be proportionate to the gravity of the offence and the degree of responsibility of the offender"^[25] and lays down a series of other sentencing principles such as- similar sentences should be imposed on similar offenders who have committed similar offences under similar circumstances, the combined length of consecutive sentences should not be unduly long or harsh, an offender should not be deprived of liberty if less restrictive sanctions may be appropriately rewarded, etc.^[26]

Similarly, the Sentencing Act of New Zealand lays down the purposes of sentencing as- a) holding the offender accountable for the harm caused; b) promoting a sense of responsibility and acknowledgement of harm caused in the offender; c) providing for the victim's interests; d) providing for reparation for harm caused; e) denouncing the conduct of the offender; f) deterring further commission of offences; g) protecting the community; and, h) assisting the offender's rehabilitation and reintegration.^[27] Uniquely, the act expressly states that there is no hierarchy in the weightage to be given to any one stated purpose.^[28] The Act then lays down a set of ten sentencing principles. Some of these are-

• The Court must account for "the gravity of the offending in the particular case, including the degree of culpability of the offender".
• The Court must take into account "the general desirability of consistency with appropriate sentencing levels… in respect of similar offenders committing similar offences in similar circumstances".
• The Court must take into account the effect on the victim as well as the offender's personal, family, community, and cultural background.
• The Court must "impose the least restrictive outcome that is appropriate in the circumstances."

The incorporation of similar provisions- through amendment to the Code of Criminal Procedure, 1973 or the enactment of a separate legislation- will go a long way in lending much needed clarity to the process of sentencing. However, deciding the precise penological goals and sentencing principles that should be followed requires active engagement with the ethics of sentencing by both lawmakers and the judiciary.

The author is an Advocate and also an independent researcher on gender and criminal procedure. Views are personal

[1] (1994) 2 SCC 220.