From a practical point of view, it would be very satisfactory to consider whether the existing penalties are unfavourable to those for similar offences, or whether they are unduly disproportionate to the continuing dissatisfaction of the public with the offence in question, or whether they do not adequately reflect the seriousness of the threat to the public interest. How is sentencing decided in rape cases? Section 376A of the Indian Penal Code provides for the death penalty for rape if the commission inflicts an injury that causes the death of the woman or places her in a persistent vegetative state. An alternative sentence is imprisonment of at least 20 years, up to life imprisonment (the rest of that person`s natural life). `11. the grounds on which it may be appropriate to resort to exceptional penalties; These previously indicated Viz.-1. any exceptional malice of the offence, if it is so great that it may be necessary and reasonable to risk exceptional penalties in order to buy the best chance of combating it effectively; 2. The absence of sanctions in terms of certainty resulting from the difficulty of detection: this difficulty ultimately depends to a large extent on the nature of the infringement; 3. The doctrine of proportionality was rejected in Om Kumar v. Union of India. In this case, the disciplinary authority had asked the Supreme Court to reconsider the amount of the penalty for four officials, the court refused to reconsider the sentence because no legal principle had been violated or that the sanction was “grossly disproportionate” to the fault committed by the persons concerned.

This legal position crystallized in subsequent cases by the Supreme Court itself. Rape in India is not gender neutral, according to POCSO, sexual assault/rape with minors is gender neutral, but under the ICC this is not the case, the perpetrator is a man and the victim is a woman. Justice Verma`s Panel (2013) proposed changing the definition of rape to make it gender-neutral, but legislators chose to ignore it. Because of this ignorance, we now see that the gap in penalties for the rape of girls and boys in India is widening. For boys under the age of 12, the penalty ranges from 10 years to life imprisonment, from 12 to 16 years` imprisonment to life imprisonment and the same applies to boys between 16 and 18 years of age. 7.15. Principles relating to the grounds for exceptional sanctions.- “Proportionality is a principle by which the Court deals with the procedure, method or manner in which the decision-maker has set priorities, reached a conclusion or reached a decision.” There is a misconception that judicial review based on this doctrine is similar to appeal. In an appeal, the appellate authority is empowered to redecide the whole case, whereas when an administrative measure is challenged on the basis of the doctrine of proportionality, the appellate authority only ensures that the question whether the procedure was correct or whether the sanction imposed was the least restrictive means of achieving its objective. In the Indian legal system, a restrictive approach has been adopted to this doctrine, since if a broader doctrine were adopted, the discretionary powers of the administration would become superfluous.

It will allow the judiciary to interfere with the powers of the executive. The judiciary cannot follow in the footsteps of the executive and act on its behalf. Therefore, the doctrine adopted in India is perfect to maintain this status. Administrative courts deal with administrative acts, they act as lead examiners of these applications, courts only as secondary experts. This position was explained in R. v. The Home Secretary, Lord Bridge, noted in that case that where Convention rights, i.e. fundamental rights, are invoked, the court acts as lead expert and, in the case of non-treaty rights, the court can only act as a secondary examiner.

This rule does not allow the judge to rule on the merits of the administrative act. • Preventive theory: This has also been called disability theory because it aims to prevent crime by obstructing the criminal. To prevent a recurrence, perpetrators are liable to the death penalty, life imprisonment or life imprisonment. 7.16. Meaning of different criminal objectives.- The presumption that the offence may give rise to the fact that the offender has already committed other offences of a similar nature; 4. The accidental advantage in terms of the quality of the sentence, which is not strictly respected quantitatively; 5. The application of a sentence of particular quality in the character of a moral lesson; 6. Can there be an extraordinary lack of sensitivity on the part of the author to the force of such constant guardianship motives that oppose the crime, either on the part of the law itself or on the part of other ancillary sanctions? There has always been a demand for the death penalty in cases of rape. These demands are more reflected when a case comes to light, as we have seen from Nirbhaya (Delhi gang rape case in 2012) to Disha (vet gang rape case in Hyderabad in 2019). People are taking to the streets and demanding the death penalty, hanging to death, public lynching and everything that is not in rape cases.

These demands also increased in parliament, after the Hyderabad rape case, there were demands for punishment such as public lynching and castration in the Rajya Sabha. The issue of the amount of the sentence for the various offences has attracted our serious attention. The maximum length of imprisonment for a punishable offence could theoretically be unlimited (and thus also the lowest limit). The longest sentence is life imprisonment, although that is not provided for in the legislation before us. So you could go from life imprisonment at any time period or from one day to any period. For practical reasons, however, such a wide range is not reached. Even life imprisonment, if granted, is eight to ten years. In the present case, therefore, a prison sentence of 6 months to ten years can be assumed. • Reform theory: The purpose of punishment according to this theory should be the reform of criminals. Crime is a mental illness caused by various antisocial elements. Due to the 2018 Penal Code, the sentence was increased by the government in February 2018. The penalty for rape of a minor under the age of 12 was increased from at least 10 years to 20 years and from life imprisonment to the death penalty.

Gang rape of minors under 12 years of age, the minimum penalty is life imprisonment, which can go as far as death. For underage girls between the ages of 12 and 16, the penalty is 20 years` life imprisonment, while gang rape is only life imprisonment. For the rape of women over the age of 16, the minimum amount has been increased from 7 to 10, while the maximum is still life imprisonment. 7.17. A comparison with penalties for similar infringements is desirable.- 7.19. Fortunately, there is a provision in the Customs Act1 in this context that, with a single amendment, sets a useful precedent. According to this law, the maximum penalty is five years if the amount of customs evaded is Rs. one lakh or more and two years in other cases.