Scope
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.

Introduction
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.[1] 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.

The 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 limit.

One of the main focus of criminal law in India is to impose just, appropriate and proportionate sentence.[2] 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.[3]

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 sentences.[4]

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 sentencing.

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.[5] 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.[6]

The task of sentencing is not governed by any straitjacket formula.[7] The courts have set the twin objectives of sentencing policy, i.e. deterrence and correction in order to establish a sentencing period.[8] 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.[9] 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.[10]
  
  The 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.[11] The same provision may also be seen under acts like the POCSO Act, 2012, among other sexual offences and other socially abhorrent crimes.[12]
• 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[13] 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.[14] The law makes punishment more stringent if the victim is more vulnerable.
   
• 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.[15]
  
  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.[16] 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.[17]
   
• 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.[18]
  
  For instance, in the Nirbhaya case,[19] 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.[20] 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.[21] 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.[22] 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 disparity.[23]
  
  For instance, in Dhananjay Chatterjee[24], 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[25] 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 disparity.

Discrimination 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,[26] 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 occur.[27]

Inconsistency in sentencing depends on the perception of those who sentence and the actual result of their sentencing.[28] 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.[29]

Section 53 of the IPC provides for broad gradation of sentencing policy which is:

1. Death penalty
2. Imprisonment for life
3. Imprisonment
4. Forfeiture of property and
5. Fine.

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 remission. 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 California,[31] 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 Singh[32], 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 punishment.

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[33], 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.[34]

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,[35] where a mill-owner was charged for selling adulterated product and was sentenced till the rising of the court by the judicial magistrate,[36] 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.[37]

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[38] which deals with Habitually Dealing in Stolen Property, provides severe punishment to those dealing in offence habitually and does not deal with single-time offenders,[39] 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.[40]

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.[41] 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.[42]

The 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,[43] 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 society.[44]

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.[45]

 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,[46] so, the minimum punishment will act as a guideline for the judges to pronounce the accurate sentencing period.

Conclusion
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.[47] 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.

The 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 victim.

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.

Bibliography
Books

• Austin Lovgrove, The Framework of Judicial Sentencing, 1997.
• PSA Pillai, Criminal Law, 12th ed. 2014.

Journal Articles

• Mohamad Al-Hakim & Susan Dimock, Hate as an Aggravating Factor in Sentencing, 15 New Criminal Law Review: An International and Interdisciplinary Journal 4 (2012).

Case laws

• 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.

Statute

• Indian Penal Code, 1860.
• Habitual offenders (control and reform) Act, 1956.
• Criminal law (Amendment) act, 2013.

Online Material

• Shodhganga, Sentence, Sentencing and the power of courts in awarding sentence.
• 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 24, 2019.
• Reuters, Statistics on Rape in India and some well-known cases, December 6, 2019.
• 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 & High Court.

End-Notes:
[1] Austin Lovgrove, The Framework of Judicial Sentencing 1-2 (1997).
[2] 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)
[3] Dennis Councle McGautha v. State of California 402 US 183 (1971), pg. 205.
[4] Ministry of Home Affairs, Reforms of Criminal Justice system, March 2003.
[5] Soman v. the State of Kerala (2013) 11 SC 382, ¶ 13.
[6] Id, ¶ 14.
[7] Alister Anthony Pareira v. the State of Maharashtra (2012) 2 SCC 648, ¶ 84.
[8] Id.
[9] Habitual offenders (control and reform) Act, 1956.
[10] 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).
[11] 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).
[12] Id.
[13] Indian Penal Code, 1860, §376.
[14] Criminal law (Amendment) act, 2013.
[15] 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 24, 2019.
[16] Mohamad Al-Hakim & Susan Dimock, Hate as an Aggravating Factor in Sentencing, 15 New Criminal Law Review: An International and Interdisciplinary Journal 4 (2012).
[17] Id.
[18] Supra note 11, pg. 41.
[19] Mukesh & Ors v. State for NCT Of Delhi & Ors (2017) 6 SCC 1, ¶ 377.
[20] 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).
[21] Supra note 11, pg. 42.
[22] Id.
[23] Id., pg 43.
[24] Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220, ¶ 14,15.
[25] Amit v. the State of Maharashtra (2003) 8 SCC 93, ¶ 10.
[26] State of Karnataka v. Krishnappa (2000) 4 SCC 75, ¶ 18.
[27] Supra note 11, pg. 46.
[28] Id.
[29] 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).
[30] Indian Penal Code, 1860, §53.
[31] Supra note 3, pg. 207, 208.
[32] Union of India v. Kuldeep Singh (2004) 2 SCC 590 27, ¶ 21,22.
[33] Gurdev Singh v. State of Punjab (2003) 7 SCC 258, ¶ 29.
[34] Mohd. Chaman v. NCT Delhi (1998) 104 CrLJ 3739, pg. 7,10.
[35] State of Gujarat v. Navalkishor Damodardas Patel (1988) 2 FAC 138.
[36] Id, ¶ 4.
[37] Id, ¶ 6.
[38] Indian Penal Code, 1860, §413.
[39] Psa Pillai, Criminal Law, Ch. 44 pg. 639,640(12th ed. 2014).
[40] Gurmukh Singh v. State of Haryana (2009) 15 SCC 635, ¶ 23.
[41] 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).
[42] Id.
[43] Supra note 7.
[44] Supra note 41.
[45] Id.
[46]Ankush Maruti Shinde & Ors. v. State of Maharashtra (2009) AIR SC 2609.
[47] Sushil Kumar v. State of Punjab (2009) 9 SCC 670, ¶ 44,45.

Written By: Yash Jain, II Year - National University of Juridical Sciences, Kolkata