Mandatory Minimum Sentences: Over Criminalization?

[Jayesh Karnawat is a third-year law student at National Law, University, Jodhpur.]


“Is justice best served by having legislatures assigning fixed penalties to each crime? Or should legislatures leave judges more or less free to tailor sentences to the aggravating and mitigating facts of each criminal case?[1]

Indian scenario

Currently in India, there are no structured sentencing guidelines that have been issued either by the legislature or the judiciary. The judge has wide discretion in awarding a sentence within the statutory limits which gives rise to well-documented sentencing disparities in factually similar cases.[2] The wide discretionary power given to the judges allows prejudice to creep in.[3] In order to minimize uncertainty in awarding sentences, there is a need to introduce sentencing guideline.[4]

The Malimath Committee report on Reforms of Criminal Justice System (2003) reasserted the need to bring certainty in awarding sentences, stating:

“There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case.  Therefore each Judge exercises discretion accordingly to his own judgment.  There is therefore no uniformity.  Some Judges are lenient and some Judges are harsh.  Exercise of unguided discretion is not good even if it is the Judge that exercises the discretion. There is need for such law in our country to minimise uncertainty to the matter of awarding sentence.  There are several factors which are relevant in prescribing the alternative sentences.  This requires a thorough examination by an expert statutory body.[5]

The Madhava Menon Committee on Draft National Policy on Criminal Justice reiterated the need for guidelines in statutory sentencing in the following words:

“Disparities in sentencing need to be reduced by evolving appropriate statutory guidelines in respect of each type of punishment, which should be periodically revised at the instance of the proposed Board of Criminal Justice.”[6]

Supreme Court, in the case of Soman v. State of Kerala[7], observed the absence of structured guidelines, stating:

“Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice.  There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges.”

The question is whether it can be done in the form of mandatory minimum sentences as has been done in United States in the form of Crime Control Act of 1984.[8]

For better or for worse, the concept of mandatory minimum sentences is now an integral part of the country’s judicial system, taking the law out of the judges’ hands and thereby pre-defining the appropriate punishments for corresponding crimes.

Arguments in favour of the reform

Proponents say that the mandatory sentences act as a deterrent for crime. It ensures that convicted people are definitely taken off the streets at least for the specified time period thereby minimizing their chance of committing additional crimes and helping lower the country’s crime rates.[9]. Additional research is needed to arrive at a concrete conclusion to see if this change in crime rates is directly related to mandatory minimum sentences or if it is caused by other factors.

The provisions of mandatory minimum sentences reduce the scope of personal bias and sympathy from getting in the way of justice.[10] The fact that judges are also humans needs to be taken into consideration which tempts them to award lenient punishments if they know the defendants or if they feel favourably towards them. It is a very easy to call for a harsh sentence from the peanut gallery than to be the judge who has to impose a sentence after a desperate plea for leniency has been made. Therefore, judges tend to be weak sentencers. Thus, mandatory minimum sentences were provided to divest the judges of the discretion to impose little or no jail time for serious crimes and habitual criminals. The very purpose of the mandatory minimum sentences is to make the consequences of committing crimes less beneficial than the perceived rewards. In such cases, mandatory minimum sentences ensure that justice is served.

Arguments against the reform

On the other hand, critics of mandatory sentences say that these provisions ultimately crowd prisons with people who in reality need treatment, and not incarceration. These mandatory minimum sentences can be an unfair, one-size-fits-all solution, as judges would have no choice but to award the same minimum punishment to everyone who commits the same crime without considering their individual circumstances. Mandatory minimum sentences do not take into account mitigating factors, such as first time offence or an unintentional offence. Instead, provisions of the mandatory minimum sentences allows the judges to look into aggravating factor and thereby impose harsher punishment.


The Supreme Court felt the impossibility of laying down the standards in the following words[11]:

“The impossibility of laying down standards is at the very core of the Criminal law as administered in India’ which invests the judges with a very wide discretion in the matter of fixing the degree of punishment.”

It is observed that the deterrent effects of these provisions depend upon the pool of offenders to whom it is applicable.[12] These measures slightly deviate from its purpose in case of repeat offenders, whereas with regard to impaired driving, drug users and firearm offenders they have provided good results.[13]

Mandatory minimum sentences are the product of good intentions but in order to convert these good intentions into a good policy good results are also necessary.

Taking into consideration the pros and cons of mandatory minimum sentences, I believe that there should be a median sentence (keeping the scope of sentencing within a range open) for a particular crime to solve the problem. This median sentence would reduce the wide discretion given to the judges but would, at the same time, allow them to see the aggravating, and the mitigating factors that are specific to individual facts and circumstances.

[1]Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms, Paul Larkin and Evan Bernick available at

[2] See Ilene Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. Crim. L. & Criminology 883, 895–97 (1990).

[3]  R. Niruphama, Need for Sentencing Policy in India: Second Critical Studies Conference – “Spheres of Justice” Paper Presentation (Sept. 20–22, 2007),

[4] Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System Report (2003) system.pdf.

[5] Id.

[6] Committee to Draft a National Chairman Policy on Criminal Justice (Ministry of Home Affairs), Pg. 64, 31st July, 2007.

[7] Soman v. State of Kerala, (2013) 11 S.C.C. 382.

[8] Sentencing Reform Act of 1984 and the Armed Career Criminal Act were enacted as part of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976 (1984).

[9] U.S. Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System 71 (2011).

[10] R. Niruphama, Need for Sentencing Policy in India: Second Critical Studies Conference – “Spheres of Justice” Paper Presentation (Sept. 20–22, 2007),

[11] Jagmohan Singh v, State of Uttar Pradesh  AIR 1973 SC 947.

[12] Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures, Department of Justice, Canada, available at

[13] Id.

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