The project shall endeavour to do justice to:
- Factors influencing the sentencing policy
- Different levels of sentencing in light of the Supreme court judgements
- The scope of Error in sentencing
- Critical Analysis of the current policies and the scope of enhancement
To such an end, the project will be limiting itself to the understanding of the
factors influencing the sentencing policy in India under the Indian Penal Code,
1860 and analyzing the role of the judiciary in interpreting and implementing
the complex factors while providing a sentence.
In sentencing, the judge's task is to determine the type and quantum of sentence
appropriate to the facts of the case, and this judgment must be made in
accordance with the relevant statutory provisions and appellate
principles. The laws developed for sentencing the criminals are often
advanced in general terms, leaving the space open for the judges to apply the
working rules and determining the sentencing terms for the crime committed.
nature and effect of the offence vary from case to case and the judges while
deciding the punishment takes into account various evidence and observe the
gravity of the crime. The law prescribes the dimensions for the sentences, and
leave the window open for the judges to set the dimension from the prescribed
One of the main focus of criminal law in India is to impose just,
appropriate and proportionate sentence. In Mc Gautha, where the judges were
of the view that an infallible method cannot be established which can provide a
reasonable criterion for providing sentences which are appropriate for all
circumstances and can fulfil the punishment for any gravity of crime.
The Indian Law does not provide the guidelines for sentencing policy instead of
the higher judiciary (Supreme court and sometimes High Courts) in various
judicial decisions have given the instructions which are followed by the lower
courts while sentencing the accused.
From time and again, the need for framing
the guidelines for sentencing has been recommended by various committees. In
March 2003, the Committee on Reforms of Criminal Justice System, a body
established under the Ministry of Home Affairs, recommended the need to
introduce sentencing rules in order to reduce indecisiveness in awarding
The present paper will analyse the aggravating factor in sentencing the accused
in India and will present a comparison of the Indian policies to that of some
other common law countries and the need for reform in the systems.
Factors considered to be aggravating while sentencing
Under the Indian Penal Code, 1860, for most of the offences, either the maximum
or minimum period is prescribed. The Judges has extensive discretionary power
under the statutory limit to provide the period of the sentence. Even, the
precedents do not work in case of sentencing as the gravity of every offence
varies, and the factors influencing the sentencing policy depends on case to
case basis. Therefore, the element of uniformity is absent in the case of
In Soman v. Kerala
, the Supreme Court cited several factors that the
judges need to take into account while exercising discretion in sentencing such
as deterrence, proportionality and rehabilitation. For providing
proportionality in sentencing, the mitigating and aggravating factors should be
considered on the account that those factors facilitated in enhancing the
harmfulness of the offence.
The task of sentencing is not governed by any straitjacket formula. The
courts have set the twin objectives of sentencing policy, i.e. deterrence and
correction in order to establish a sentencing period. The courts in India do
not have any formalized system on which the ground of sentencing is amplified.
The common aggravating factors that the courts take into account but is not
limited to the following:
- Repeat/Habitual offender
The court may increase the sentence of the offender based on the criminal
history of the offender. To deal with the habitual offender, different state
laws have been established that present a broadly similar pattern. The list
of the scheduled offences in state acts indicates that the schedules have mostly
included offences contained in chapters XII, XVI and XVII of the Indian Penal
Code. In countries like the USA, the sentencing policy is decided on the basis
of the three-strikes law, where a trivial offence may constitute a lengthy
prison term if the person has been convicted of two or more misdemeanours.
Indian Laws though not having the three strikes law in the Union level, it has
some sui generis laws made like section 354C of the Criminal Law Amendment Act,
2013 which increases the punishment for the same crime if committed for the
second time. The same provision may also be seen under acts like the POCSO
Act, 2012, among other sexual offences and other socially abhorrent crimes.
- vulnerability of the victim
The vulnerability of the victim is proportional to the sentencing period. The
vulnerability may be related to the age or may be associated with the
mental/physical condition of the victim. For example, crime relating to the
violence against a child may be considered an aggravating factor as compared to
a crime against a grown-up man. The laws in this regard are a bit stringent
compared to laws for other crimes.
Rape, considered to be one of the most
heinous crime, also has punishments depending on the age of the victim. The
punishment for rape as prescribed in section 376 of the IPC Is extended to
include girls less than 12 years which, according to the law are considered to
be more vulnerable and therefore, raping them will lead to the death
sentence. The law makes punishment more stringent if the victim is more
- Hate Crimes
If the prosecution proves that the defendant was motivated by bias or animus
based on a group or characteristic, the court can enhance the sentencing period
based on the abhorrence towards the crime. Hate crimes may also be against the
state like sedition or may be of more serious nature like the crimes against the
�lower caste' or the �minority caste' people. There are some specific laws made
for the purpose like the SC and ST atrocities act, 2018, etc. but often the
court finds it hard to punish the victim as the crimes are mostly committed by a
mob and not individuals.
Amy Baehr acknowledges the reason behind hate crime
being a aggravating factor can be due to the fact of them being having greater
culpability as compared to the other offenders but are driven by other
factors. This depends on the �greater intent' of the perpetrators but he
later argues that intent cannot be differentiated between greater or lesser and
it would be impossible to know the inner intent and justify the punishment on
the basis of intent.
- Hypothesizing Sentencing Disparity, Discrimination, and Inconsistency
Sentencing policies are often surrounded by the debate over the disparity,
discrimination and inconsistency in sentencing by the competent authorities. To
understand the factors that are taken into account while sentencing, the
terminology of the above three words have to be followed. Starting with
�disparity', it occurs when the two similar offenders are dissimilarly punished
or when to dissimilar offenders are similarly punished.
For instance, in
the Nirbhaya case, the penalty for the heinous crime committed was capital
punishment which is levied only in the �rarest of the rare' cases. The
aggravating factors that the court considered here ranged from the kind of
unnatural and brutal intercourse to the public outraged caused due to the crime,
everything was considered to tag this case as the rarest of rare. The sentencing
policies remains ambiguous as every day around 90 cases of rape are reported,
but only 25% are convicted that too, with minimal punishment. The question
arose that whether there should be different measures for punishment for the
same level of a heinous crime or a standard punishment be set for the same?
This gives rise to discrimination and disparity in sentencing. Sentencing is
inherently discretionary, and that discretion leads to disparity. But
disparity per se is not objectionable. The point of contention arises between
justified and unjustified disparity as the disparity in sentencing may be
justified on the grounds of the seriousness of the offence, the past record of
the criminal, age factor, etc.
The law prescribes different treatment for a
juvenile criminal and a non-juvenile criminal which constitutes a justified
disparity and are sanctioned by the legislature and the judiciary. On the
other hand, unjustified disparity over which the debate surrounds may occur when
the ingredients of the crime are fulfilled in both cases, yet the sentences
differ. If the age of the criminal is taken into consideration in one case, but
not in other for the same offence committed, that would result in unjustified
For instance, in Dhananjay Chatterjee, the convict was 27
years and was given the death penalty on the basis of the gruesome nature of the
crime committed and the satisfaction of the victim by the given punishment has
also been suggested by the court to be taken as a factor while awarding a
sentence, thus, clearly ignoring the age of the criminal while in case of Amit
v. State of Maharashtra the same was considered while awarding the sentence.
Therefore, the laws in India leaves space for such unjustified disparity. But as
no yardstick governs the sentencing policy, it is challenging to establish
in sentencing is more visible and unhealthier for the judicial
system when the aggravating factors may include criteria such as race, gender,
or any other factor irrelevant to the crime. Though such factors are hardly
taken into consideration while sentencing, but in some rare cases like State of
Karnataka v. Krishnappa,
 the trial court took into consideration factor like
the background of the person which aggravated the sentence of the convict but
later the High court interfered with the sentence and pointed out the reasoning
of the trial court to be fallacious and reduced the sentence of the victim.
These types of aggravating factors established by the court defeat the purpose
of the sentencing policies, and in the absence of the stated philosophy of the
punishment in India, such kind of 'creeping in' of such instances is bound to
Inconsistency in sentencing depends on the perception of those who sentence and
the actual result of their sentencing. Sentencing inconsistency may be of
varied nature, but the worst is the inconsistency in the approach to the
sentence. One sentence may be of the view of ordering shorter punishment for a
particular offence while other sentences may look to give longer punishment
based on some different approach. Consistency in sentencing is the fundamental
root on which sentencing policy is entrenched, and the maxim "Like cases should
be treated alike" has been a bulwark against arbitrary rule and a core feature
of almost every theory of justice as propounded by Aristotle.
Section 53 of the IPC provides for broad gradation of sentencing policy which
- Death penalty
- Imprisonment for life
- Forfeiture of property and
The punishment prescribed leave opens a wide gap between the gravity of the
punishment. For instance, the severest possible punishment is the Death penalty,
and Imprisonment for life comes next, but there are no other punishments in
between like in the United States, where punishment like imprisonment for life without commutation or
. This makes the sentencing policy a challenge in itself due to the
ambiguous nature of the policies.
aggravating factors applied in various case laws
In the landmark judgement of Dennis Councle McGautha v. State of
, established that the discretionary judgements are the only way
in which judgement may be reasonably distinguished. In the same judgement,
Justice Harlan wrote: writing rules for jury death penalty decisions were
beyond current human ability
This judgement acted as the locus standi in India
and had been used in various Indian cases mainly Union of India v. Kuldeep
, in which the Supreme Court noted the factors which the High Court
weighed upon to reduce the sentence propounded by the trial court had no
rationale with the objective it seeks to achieve by imposing harsh and stringent
The punishment may be affected by the brutality of the offence, the
more brutal the offence, greater punishment is awarded, but sometimes the
contrary may happen when in Gurdev Singh, where the court failed to deliver
justice when the convict was punished for death on the grounds of brutality
which later revealed was an act guided by revenge and feeble mind. The Indian
courts have also witnessed cases where one level of judiciary labelled a case as
the rarest of rare
, but the higher level of judiciary regarded the convict as
not a harm to the society and reduced the punishment.
So, the aggravating
factor may vary from one judicial level to other. Many cases in the Indian
judiciary have taken the magnitude of harm that was caused as an aggravating
factor while deciding the sentence.
The landmark case in this regard is
the State of Gujarat v. Navalkishor Damodardas Patel
, where a mill-owner was
charged for selling adulterated product and was sentenced till the rising of the
court by the judicial magistrate, which on appeal was increased by the High
court on the ground of creating an unethical environment in the society and the
court regarded this offence as grave and momentous.
The offender being a habitual lawbreaker is more prone to rigorous punishment
than first-time offenders as various section in IPC, 1860 carries rigorous
punishment for habitual offenders as compared to first-time offenders. For
instance, section 413 which deals with Habitually Dealing in Stolen
, provides severe punishment to those dealing in offence habitually and
does not deal with single-time offenders, with other section like 75,292 and
293 dealing with enhanced punishment for habitual offenders. This view of the
law has also been reiterated through various case laws where the court regarded
number of the criminal cases pending against the accused as an aggravating
factor for penalising.
Existing policies and the scope of improvement
The Indian Judicial system lacks a structured sentencing guideline and has
adopted judicial guidance developed over the time by the higher judiciary. The
Indian Penal Code, 1860, prescribes punishment for various offences but for most
of the crimes only maximum or minimum punishment is prescribed.
This leads to
lack in uniformity as the punishment is only dependant on judge's
discretion. From time to time various committees including the Malimath
committee and Madhava Menon committee have laid emphasis on forming a sentencing
guideline to remove the uncertainty and bring uniformity in sentencing.
theories on one hand and the implication of it to deliver justice on the other
hand makes the justice system a lot more difficult than it appears. The twin
objective of the sentencing policy, i.e., prevention and improvement, must
be met while keeping in mind the factors not only related to the crime and the
criminal but also to the social interest and the consciousness of the
0the offence but may suggest reforms which may include but not limited to the
reformation of juvenile offenders, relaxed punishments for first-time offenders
although that may vary from offence to offence. The penal system should be based
on the model of reformation rather than retribution and the punishments should
neither be unbearably severe nor unrealistically lenient.
�Depending on the
gravity of the offence, the punishment carries variable penal sentences and to
assist in sentencing, the minimum punishment for an offence should be prescribed
but not the upper-limit as a simple offence for example theft take place in the
form of pickpocketing and may extend upto a serious crime, also murder committed
due to personal or mutual rivalry may not call for death penalty but an
organised murder leading to killing of innocent would call for a death
penalty, so, the minimum punishment will act as a guideline for the judges
to pronounce the accurate sentencing period.
The sentencing policy in India is predominantly based on the discretion of the
judges and the lack of proper guidelines makes the sentencing process more
ambiguous. The aggravating factors which results in enhancing the punishment
period is often considered by the judges while delivering sentencing. Though
these factors play a decisive role in deciding the sentence but in absence of
any guideline, the implication of these factors varies from judge to judge.
While major aggravating factors include the past criminal record of the
offender, the gravity of the crime committed, etc., in some instance's judges
have also taken poverty of the convict into account while deciding the sentence
period of the convict. The extent to which a period can be prolonged is left
open for the judges to decide upon. While the law and the higher judiciary has
given some sort of guidelines as to where and upon which factors the period can
be extended, but those factor does not suffice the dilemma of criminal law.
suggestion by various committees and legal scholars need to be taken into
account for developing a guideline which can serve as a basic and minimum
requirement for deciding upon a sentence. With hundreds of cases coming everyday
and every case bringing a new challenge for the judiciary to decide upon the
punishment according to a check list cannot work and provide justice to the
The wide discretionary power of the judges tends to sometimes deliver a less correct
judgment and this may affect the quality of the judgement
delivered. The need of the hour is to provide the judiciary with a subjective
guideline with some sort of objectivity in it in order to decide a just, fair
and equitable punishment.
- Austin Lovgrove, The Framework of Judicial Sentencing, 1997.
- PSA Pillai, Criminal Law, 12th ed. 2014.
- Mohamad Al-Hakim & Susan Dimock, Hate as an Aggravating Factor in
Sentencing, 15 New Criminal Law Review: An International and Interdisciplinary
Journal 4 (2012).
- Dennis Councle McGautha v. State of California (1971) 402 US 183.
- Soman v. the State of Kerala (2013) 11 SC 382.
- Alister Anthony Pareira v. the State of Maharashtra (2012) 2 SCC 648.
- Mukesh & Ors v. State for NCT Of Delhi & Ors (2017) 6 SCC 1.
- Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220.
- Amit v. the State of Maharashtra (2003) 8 SCC 93.
- State of Karnataka v. Krishnappa (2000) 4 SCC 75.
- Union of India v. Kuldeep Singh (2004) 2 SCC 590 27.
- Gurdev Singh v. State of Punjab (2003) 7 SCC 258.
- Mohd. Chaman v. NCT Delhi (1998) 104 CrLJ 3739.
- State of Gujarat v. Navalkishor Damodardas Patel (1988) 2 FAC 138.
- Gurmukh Singh v. State of Haryana (2009) 15 SCC 635.
- Ankush Maruti Shinde & Ors. v. State of Maharashtra (2009) AIR SC 2609.
- Sushil Kumar v. State of Punjab (2009) 9 SCC 670.
- Indian Penal Code, 1860.
- Habitual offenders (control and reform) Act, 1956.
- Criminal law (Amendment) act, 2013.
- Shodhganga, Sentence, Sentencing and the power of courts in awarding
- Stanford Law School, Three Strikes Basics.
- Shodhganga, Sentencing Discretion in India: Arbitrary Sentencing and
Modalities to Arrest Arbitrariness- A Comparative Study, 2017.
- Kai Schultz, Suhasini Raj, Jeffrey Gettleman & Hari Kumar, In India,
Release of Hate Crime Data Depends on Who the Haters Are, New York Times, Nov
- Reuters, Statistics on Rape in India and some well-known cases, December
- Benjamin Johnson and Richard Jordan, why should like cases be decided
alike? A formal Model of Aristotelian Justice, March 1, 2017,
- Maharashtra Judicial Academy, Latest view of sentencing policy with
reference to the judgment of the Hon'ble Supreme Court &
 Austin Lovgrove, The Framework of Judicial Sentencing 1-2 (1997).
 Shodhganga, Sentence, Sentencing and the power of courts in awarding
sentence, available at: https://shodhganga.inflibnet.ac.in/bitstream/10603/208202/9/5_chapter%202.pdf (last
visited on 16 March 2020)
 Dennis Councle McGautha v. State of California 402 US 183 (1971), pg. 205.
 Ministry of Home Affairs, Reforms of Criminal Justice system, March 2003.
 Soman v. the State of Kerala (2013) 11 SC 382, � 13.
 Id, � 14.
 Alister Anthony Pareira v. the State of Maharashtra (2012) 2 SCC 648, � 84.
 Habitual offenders (control and reform) Act, 1956.
 Stanford Law School, Three Strikes Basics, available at: https://law.stanford.edu/stanford-justice-advocacy-project/three-strikes-basics/ (Last
visited on 20 March 2020).
 Shodhganga, Sentencing Discretion in India: Arbitrary Sentencing and
Modalities to Arrest Arbitrariness- A Comparative Study, 2017 available
at: https://shodhganga.inflibnet.ac.in/bitstream/10603/220795/11/11_chapter-iii%20sentencing%20discretion%20in%20india%20%20arbitrary%20sent.pdf (last
visited on 21 March 2020).
 Indian Penal Code, 1860, �376.
 Criminal law (Amendment) act, 2013.
 Kai Schultz, Suhasini Raj, Jeffrey Gettleman & Hari Kumar, In India,
Release of Hate Crime Data Depends on Who the Haters Are, New York Times, Nov
 Mohamad Al-Hakim & Susan Dimock, Hate as an Aggravating Factor in
Sentencing, 15 New Criminal Law Review: An International and Interdisciplinary
Journal 4 (2012).
 Supra note 11, pg. 41.
 Mukesh & Ors v. State for NCT Of Delhi & Ors (2017) 6 SCC 1, � 377.
 Reuters, Statistics on Rape in India and some well-known cases, December 6,
2019, available at: https://www.reuters.com/article/us-india-rape-factbox/statistics-on-rape-in-india-and-some-well-known-cases-idUSKBN1YA0UV (last
visited on 22 March, 2020).
 Supra note 11, pg. 42.
 Id., pg 43.
 Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220, � 14,15.
 Amit v. the State of Maharashtra (2003) 8 SCC 93, � 10.
 State of Karnataka v. Krishnappa (2000) 4 SCC 75, � 18.
 Supra note 11, pg. 46.
 Benjamin Johnson and Richard Jordan, why should like cases be decided
alike? A formal Model of Aristotelian Justice, March 1, 2017, available
at: https://scholar.princeton.edu/sites/default/files/benjohnson/files/like_cases.pdf (last
visited on 23 March, 2020).
 Indian Penal Code, 1860, �53.
 Supra note 3, pg. 207, 208.
 Union of India v. Kuldeep Singh (2004) 2 SCC 590 27, � 21,22.
 Gurdev Singh v. State of Punjab (2003) 7 SCC 258, � 29.
 Mohd. Chaman v. NCT Delhi (1998) 104 CrLJ 3739, pg. 7,10.
 State of Gujarat v. Navalkishor Damodardas Patel (1988) 2 FAC 138.
 Id, � 4.
 Id, � 6.
 Indian Penal Code, 1860, �413.
 Psa Pillai, Criminal Law, Ch. 44 pg. 639,640(12th ed. 2014).
 Gurmukh Singh v. State of Haryana (2009) 15 SCC 635, � 23.
 Maharashtra Judicial
Academy, Latest view of sentencing policy with reference to the judgment of the Hon'ble Supreme Court &
High Court available at: http://mja.gov.in/Site/Upload/GR/Title%20NO.94(As%20Per%20Workshop%20List%20title%20no94%20pdf).pdf (last
visited on 24 March 2020).
 Supra note 7.
 Supra note 41.
Ankush Maruti Shinde & Ors. v. State of Maharashtra (2009) AIR SC 2609.
 Sushil Kumar v. State of Punjab (2009) 9 SCC 670, � 44,45.
Written By: Yash Jain
, II Year - National University of Juridical Sciences, Kolkata�