The Approaches to Sentencing

In one line

MU prints "Approaches to Sentencing" as a topic of its own, and the four approaches are the six theories of Module I turned into instructions to a judge.

In the wording a student can write in an exam: four approaches to sentencing are distinguished: the retributive or just deserts approach, which fixes the sentence by the seriousness of the offence; the utilitarian or consequentialist approach, which fixes it by what will best reduce offending, through deterrence, incapacitation or reformation; the individualised or treatment approach, which fixes it by what this offender needs; and the restorative approach, which fixes it by what will repair the harm to the victim. Indian sentencing law contains all four and states no order of priority among them.

Why MU prints two topics

Topic 4 is "Approaches to Sentencing" and topic 5 is "Sentencing". The distinction is between the reasons a court brings to the decision and the decision itself with its particular problems, and it is worth respecting in an answer because it tells the candidate what kind of material is wanted.

The four approaches

1. Just deserts

The instruction to the judge. Fix the sentence by the seriousness of the offence, seriousness being harm plus culpability. Take the offender's circumstances into account only so far as they bear on culpability.

Its virtues. Consistency, predictability, and a ceiling. It is the only approach that supplies a reason to stop.

Its Indian expression. Proportionality, which the courts state as a principle; the graded punishments of the Sanhita; section 9 of the Bharatiya Nyaya Sanhita 2023; and, at the top of the scale, the rarest of rare test.

Its limit. It ranks but does not measure. See [Retribution and Just Deserts].

2. Utilitarian

The instruction. Fix the sentence by what will produce the least offending in future, whether by deterring others, by disabling this offender, or by changing him.

Its virtues. It asks the question everybody actually cares about, and it is answerable by evidence.

Its Indian expression. High statutory maxima and mandatory minimums, which are deterrent; life imprisonment meaning natural life and section 13 of the Sanhita, which are preventive; and the Probation of Offenders Act 1958, which is reformative.

Its limit. No ceiling of its own, and it uses the offender as a means. See [The Deterrent Theory].

3. Individualised or treatment

The instruction. Fix the sentence by what this offender needs, on material about them, and prefer the disposal most likely to prevent them offending again.

Its virtues. It is the only approach that treats the offender as a person rather than as an instance of an offence, and it produces the non-custodial disposals.

Its Indian expression. Section 258(2), the hearing on sentence; section 4(2) of the Probation of Offenders Act 1958, the probation officer's report; section 6 of that Act, the bar on imprisoning an offender under twenty one; section 402 of the Bharatiya Nagarik Suraksha Sanhita 2023; and Manoj v. State of Madhya Pradesh's requirement that the State collect information about the offender.