Judicial Discretion and Sentencing Disparities in India: Challenges, Constitutional Principles, and the Need for Reform

Abstract

Indian criminal statutes prescribe punishments by offence but offer judges almost no guidance on how to select a sentence within the prescribed range. The result is a system of wide and largely unstructured judicial discretion, in which comparable offenders may receive markedly different sentences. This article examines the sources and forms of sentencing disparity in India, tests the present arrangement against the constitutional principles of equality, fairness and proportionality, and evaluates the judicial and legislative responses so far. It argues that unguided discretion is difficult to reconcile with Articles 14 and 21 of the Constitution, that the Supreme Court's case-by-case efforts cannot substitute for a structural solution, and that the Bharatiya Nyaya Sanhita, 2023 has left the central problem untouched. Drawing on comparative models from England and Wales, the United States, Australia and South Africa, the article proposes a framework of guided discretion built around a statutory Sentencing Commission, structured guidelines with a duty to give reasons, a distinct sentencing hearing, and systematic data collection