Sentencing policy and judicial discretion

Explanation

Statement 1 is correct: Articles 14 and 21 of the Constitution embody the guarantee of equality before law and the right to life and personal liberty respectively. When two similarly placed offenders receive vastly different sentences due to unguided judicial discretion, this raises a genuine constitutional concern about arbitrariness (Article 14) and fair procedure (Article 21). This is precisely why sentencing disparity is not merely a procedural issue but has constitutional dimensions. Statement 2 is also correct: The Probation of Offenders Act, 1958 — specifically Sections 3, 4 and 6 — obligates courts to consider probation for eligible offenders rather than defaulting automatically to custodial sentences. Sections 401 and 402 of the BNSS similarly provide statutory alternatives to imprisonment. These provisions already exist in Indian law; the problem is that there is no overarching framework guiding courts on how to weigh these alternatives against competing aims such as deterrence and rehabilitation. Statement 3 is incorrect: The task of framing a sentencing policy lies with the legislature (Parliament), not the judiciary. Sentencing discretion is exercised by courts, but the policy framework within which that discretion operates is a legislative function; its implementation falls within the executive domain. Courts can direct the Centre to examine a sentencing policy (as the Supreme Court did in Sunita Devi v. State of Bihar, 2024), but cannot themselves frame it.

Explanation

Statement 1 is incorrect. The POCSO Act prescribes mandatory minimum sentences for offences such as aggravated penetrative sexual assault. Where a mandatory minimum is prescribed, courts cannot impose a lesser sentence merely on the basis of mitigating factors such as the absence of physical violence or the existence of a prior romantic relationship. The mitigating factors may be noted on record and can influence the precise quantum of sentence only within the range above the mandatory floor — they cannot take the sentence below that statutory floor. This distinguishes POCSO's mandatory-minimum regime from the general sentencing discretion available under the Indian Penal Code, where courts have broader latitude to consider mitigating circumstances. Statement 2 is correct. One of the foundational principles of the POCSO Act is that a child below 18 years of age lacks the legal capacity to consent to a sexual act. The Act is premised on a bright-line age-based threshold: regardless of whether the minor subjectively agreed to the act, regarded the relationship as consensual, or was under a bona fide belief about a future marriage, that apparent consent carries no legal weight and does not constitute a defence. This principle reflects the legislature's intent to protect children from exploitation irrespective of the circumstances in which the act occurs.