Locating The Gender Cord in Sentencing Outcomes: Critical Account of Judicial Response in India

Abstract

The criminal Justice System recognizes multiple factors for guiding the mind of a judge in sentencing a criminal for an offense. Unfortunately, ‘gender’ takes the place among such factors and infects the sentencing outcome by rendering ‘her’ criminality as an invisible one. This article analyses the sentencing regime in India along with such cases decided by the Supreme Court which are infected with the gender cord in sentencing. It argues that sentencing considerations in India are not limited to legal factors, such as the gravity of the offence, rather they are conditioned by an alien factor of gender.  It discusses how the female criminal is seen less culpable and more repentant than the male criminal which “justifies” the differential and lenient sentencing for her. Further, it makes note of the sentencing regime in the United States of America by analyzing the regulatory framework. It suggests that gender difference can be a primary concept in gender development policy but must not be a fundamental concept in fair sentencing.