This article is written by Smita Sonawane, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction

Sentencing is in the manner in which the courts interact with an accused when he or she has pleaded guilty or proven guilty, in other words, it is in when the individual is convicted with the crime it simply defines as “the victim’ and “the offender”. There is no other separate concept of “Sentence”. These involve a punishment such as fine or a custodial duration charged by the judge to the Accused for the offense. It should also include orders enforced on the criminal on conviction which cannot properly be described as punishments. It has been submitted that sentencing is “an art not a science”, so it must be erudite by the practice doing so, rather than approached by a set of rules.  

The nature and effect of the offence differs from case to case basis and also on the judges which decide the punishment when they take into account various evidences and also witness the significance of the Offense.  The law prescribes the aspect for the punishments, and leaves the window open for the judges to set the aspect from the agreed limit. 

The Indian Law does not provide the guiding principle for sentencing policy, instead the higher law lords (Supreme Court and sometimes High Courts) in various judicial judgments have given the instructions which lower courts often take into consideration while sentencing the accused.

For several instances, it was recommended by various committees that there is a need of framing the elaborative guidelines for sentencing. The Committee on Reforms of Criminal Justice System, a body established under the Ministry of Home Affairs in March, 2003 endorsed that there is a need to introduce the proper sentencing guidelines in order to reduce vagueness in granting sentences. 

Necessary facts which are considered being aggravating while sentencing

Under the Indian Penal Code 1860, most of the offences either the maximum or minimum punishment is defined. The Judges have broad discretionary power under the statutory limit to provide the period of sentence. Even, the precedents do not work in case of sentencing as the seriousness of every offence varies, and factors influencing the sentencing policy depend on case to case basis. For that reason, the component of regularity is lacking in the case of sentencing. 

In Soman vs. Kerala, the Supreme Court cited several aspects 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 factors should be considered on the account that those factors facilitated in enhancing the harmfulness of the offence are mitigating and aggravating factors.  

The common bothersome factors that the courts take into account before passing any sentence are:

• Repeat/habitual criminal

It is frequently argued that the court should treat the antecedents and also consider the past sentencing of the criminal as a provoking factor before passing any judgment for current sentencing. It is invariably observed that a sentencing can be forced considering the catastrophe to respond to previous non-custodial sentences. 

• Vulnerability of the victim

There might be situations where the court may impose a stricter punishment based on the vulnerability of the victim. It says that when any act is committed by the Criminal specifically against any child or women, it is considered an aggravating factor. It often involves affecting mental and physical injury, permanent disability or any other suffering. 

• Hate crimes

Hate Crime” generally refers to criminal acts which are seen to have been driven by bias against one or more of communal groups or by bias against their derivatives. The happenings may involve such as physical assault, damage to property and person, harassment, verbal or sexual abuse, insults, rival crime or offensive graffiti (verbal or written).

• Assuming sentencing disparity, discrimination and irregularity

Sentencing policies are often demarcated by the discussion over the disparity, discrimination and irregularity in sentencing by the experienced authorities. To understand the features that are taken into concern while sentencing the terminology of the above three words have to be followed. Starting with ‘disparity’, it occurs when the two similar offenders are unlikely punished or when dissimilar offenders are similarly punished. 

For instance, in Nirbhaya case, the punishment for such a heinous crime given was capital punishment which is given in ‘rarest of the rare’ cases. The aggravating that the court considered here ranged from 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 polices remains unclear as everyday around 90 cases of rape are reported but only 25% of them are convicted with only minimal punishment or get acquitted on part of evidences. The question was raised whether there should be contrasting measures for punishment for the same level of heinous crime or a standard punishment be fixed for the same. 

For instance, in Dhananjoy Chatterjee vs. State of Bengal, the criminal was of 27 years, and he was given the sentencing of death penalty on the ground of gruesome nature of the crime committed and subsequent to the victim satisfaction by the given punishment to the Accused considered as a main factor while awarding punishment to the Criminal. While in Amit vs. State of Maharashtra, the same was considered while awarding the sentence. Therefore the law in India leaves space for baseless inconsistency. But there are no measures which govern the sentencing policy; it is challenging to establish disparity. Discrimination in sentencing is more evident and unnatural for the judicial system when the aggravating factors may include criteria such as race, gender, or any other factor irrelevant to the crime.

Such factors are hardly taken into account while passing sentencing, but in some rare cases like State of Karnataka vs. Krishnappa, the trial court took into account the factor like the antecedents of the person which forced the sentence of the criminal but later the High Court interfered with the sentence and pointed out the reasoning of the trial court to be ambiguous and further reduced the sentence of the criminal. These types of aggravating factors recognized by the court defeat the purpose of the sentencing policies, and in the absence of the state philosophy of the punishment in India, such kind of “creeping in” of such instances is bound to occur.

• Culpability of an offence

Intention, negligence, recklessness and knowledge play a crucial role in determining the culpability of an offence. It is also observed as an aggravating factor provided that the criminal has deliberately caused more harm than required and has targeted a vulnerable victim. 

Aggravating factors applied in various case laws

In the landmark judgment of Dennis Councle McGautha vs. State of California, established that discretionary judgments are the only way in which judgment may be reasonably distinguished. In the same judgment, Justice Harlan wrote: writing rules for jury death penalty decisions were beyond current human ability.  

This judgment acted as the locus standi in India and had been used in various Indian cases mainly Union of  India vs. Kuldeep Singh, in which the Supreme Court noted the factors which the High Court considered upon to reduce the sentence offered by the trial court had no basis with the objective it seeks to achieve by imposing harsh and rigorous punishment.

The landmark case in this regard is the State of Gujarat vs. Navalkishor Damordas Patel where a mill-owner was charged for selling adulterated product and was punished 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 serious and significant. 

Prevailing policies and the scope of development

The Indian Judicial system lacks an organized penalizing 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 of regularity as the punishment is only dependent on the judge’s discretion. From time to time various committees such as the MalimathCommittee and Madhava Committee have laid prominence on forming a sentencing guideline to remove the uncertainty and bring uniformity in sentencing. 

Conclusion

The sentencing policy in India is primarily based on the discretion of the judges and the lack of proper guidelines makes the sentencing process more unclear. The exasperating factor 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. 

The wide discretionary power of the judges tends to sometimes deliver a less correct judgment and this may affect the quality of the judgment delivered. The need of the era is to provide the judges with a subjective guideline with some sort of objectivity in it in order to decide an open-minded, reasonable and impartial punishment. 

References

Case Laws

• Dhanjoy Chatterjee vs. State of West Bengal (1994) 2 SCC 220.
• Amit vs. State of Maharashtra (2003) 8 SCC 93.
• State of Karnataka vs. Krishnappa (2000) 4 SCC 75.
• State of Gujarat vs. Navalkishor Damodardas Patel (1988) 2 FAC.

Statutes

• Indian Penal Code, 1860.
• Habitual Offenders (Control and Reform) Act, 1956. 
• Criminal law (Amendment) Act, 2013.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: