‘Sentencing shall not be a lottery’: why India needs a Sentencing Council and guidelines
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UPSC has already asked about this. Read the story with these questions in mind.
In India, two people convicted of the same crime can get very different punishments depending on which judge hears the case. An Indian Express ‘Experts Explain’ piece on 24 October 2026 argues for a Sentencing Council with guidelines, pointing to the Supreme Court’s words in Sunita Devi v. State of Bihar (2024) that ‘sentencing shall not be a mere lottery’. The Centre has asked the Law Commission to examine a national sentencing policy. This topic connects Articles 14 and 21 with criminal justice reform.
- SC case
- Sunita Devi v. Bihar (2024)
- Rights
- Articles 14 and 21
- Now with
- Law Commission
- Model
- UK Sentencing Council, 2009
Sentencing policy debate: what happened?
Two students write the same answer and get very different marks only because a different examiner checked it. That is how sentencing in India often works.
- 24 Oct 2026: senior advocate Sidharth Luthra and advocate Raghav Sengupta argue for a national Sentencing Council (The Indian Express).
- Laws set the maximum and sometimes minimum terms, but give no checklist of aggravating or mitigating factors.
- Research on rape sentencing found terms cut for irrelevant reasons, like the complainant’s later marriage.
- The Centre has asked the Law Commission of India to examine a national sentencing policy; its report is expected soon.
What is sentencing?
- Sentencing turns a range in the law, such as ‘up to ten years’, into a specific term, fine, probation or community sanction.
- Aggravating factors make a crime worse (planning, weapon use); mitigating factors soften it (age, remorse).
- The Law Commission’s 47th Report raised the problem more than 50 years ago.
- In Soman v. State of Kerala (2012), the Supreme Court called sentencing one of the weakest parts of criminal justice.
How does India compare with England and Wales?
| Point | India today | England and Wales |
|---|---|---|
| Body | None | Sentencing Council (2009 Act) |
| Guidelines | None; judge’s discretion | Offence-wise, step-by-step |
| Method | Case by case | Culpability + harm → starting point and range |
| Departure | No reasons needed against a yardstick | Reasons needed if the court departs |
What is the constitutional and legal angle?
- Article 14 bars arbitrary State action; Article 21 needs a fair, just and reasonable procedure.
- Section 258(2), BNSS: a Sessions Judge must hear the accused separately on sentence after conviction.
- Sections 401–402, BNSS and the Probation of Offenders Act, 1958 offer alternatives to prison.
- Criminal law is in the Concurrent List; prisons are in the State List.
What are the challenges?
- Penal populism could push guidelines towards ever-longer terms.
- One national grid may ignore differences in court and prison capacity across States.
- Judges may tick boxes without changing their reasoning.
- No national sentencing database exists to measure disparity.
What should be done?
- Create a Sentencing Council by an Act of Parliament.
- Offence-wise guidelines with a three-step method: seriousness, starting point, individual factors.
- A national sentencing database built on the National Judicial Data Grid.
- Guidelines placed before Parliament; judges must give reasons when they depart.
What can Prelims ask on sentencing?
- Sunita Devi v. State of Bihar (2024): ‘sentencing shall not be a mere lottery’.
- Law Commission’s 47th Report raised sentencing concerns.
- Probation of Offenders Act, 1958: probation in eligible cases.
- UK Sentencing Council: Coroners and Justice Act, 2009.
- Criminal law and procedure: Concurrent List.
How to write about sentencing reform in Mains
Practice question (10 marks, 150 words): ‘Unstructured judicial discretion in sentencing violates the promise of equality before law.’ Discuss the case for a Sentencing Council in India. (GS-II)
- Intro: Sunita Devi (2024) ‘lottery’ remark.
- Body 1: the problem: disparity, irrelevant factors.
- Body 2: constitutional angle: Articles 14 and 21.
- Body 3: the model: UK Sentencing Council, three-step guidelines.
- Conclusion: structured, not uniform, discretion.
Image: Main building of the District and Sessions Court, Shivajinagar, Pune. DesiBoy101, Wikimedia Commons, CC BY-SA 4.0
How to use this in Mains
If asked: Discuss the need for sentencing reforms in India. (GS-II)
Quote: “At present, the answer is that it depends on who your judge is.”
Use it: Use it as a sharp opening line.
If asked: Examine how judicial discretion can be balanced with consistency. (GS-II)
Quote: “It would be the formulation of uniform principles that ultimately aid in structuring discretion.”
Use it: Quote it to show that the aim is structure, not identical sentences.
Exam angle
Prelims: Probation of Offenders Act 1958, BNSS hearing on sentence, Concurrent List. · Mains GS-II: judicial reforms, criminal justice.
Practice MCQs
Original practice questions (not PYQs).
Consider the following statements:
1. India has a statutory Sentencing Council.
2. The Probation of Offenders Act was enacted in 1958.
3. Criminal law is in the Concurrent List.
Which of the statements given above are correct?
Answer (b) & explanation
India has no Sentencing Council yet; the Law Commission is examining a national policy.
‘Sentencing shall not be a mere lottery’ was observed by the Supreme Court in:
Answer (b) & explanation
The Court said this in Sunita Devi v. State of Bihar (2024).
Under the BNSS, a Sessions Judge must hear the accused on the question of sentence:
Answer (b) & explanation
Section 258(2) of the BNSS requires a separate hearing on sentence after conviction.
Questions students ask about this
What is a Sentencing Council?
A body that frames guidelines to help judges decide punishments consistently.
Does India have sentencing guidelines?
No. Laws set ranges, but there is no national framework on aggravating and mitigating factors.
Which country is cited as a model?
England and Wales, with a Sentencing Council created under the Coroners and Justice Act, 2009.
Who is examining a national sentencing policy?
The Law Commission of India, at the Centre’s request.
Keep studying
Go deeper
facts from cited sources only; faculty review pending