Mitigating Factors in Sentencing Policy
By Shashwat Baranwal
The act of punishing the criminal serves various purposes.  It acts as a deterrence for the public at large. When people come to know about the sentence awarded to the person who committed the crime, they abstain from committing crime a sense of fear elicits in them. Once the victims or the society come to know that offender has been given appropriate sentence for the offence he had committed, the sense of resentment vanquishes and a sense of retribution develops in them, and future crime won’t take place. Additionally, sentencing acts as a mode of restitution as the criminal is directed to pay damages to the victim. Moreover, it can help in the rehabilitation of the criminal. Sentencing is one of the areas in criminal law which has not been scrutinized extensively. Everyone wants justice to be served, but most of them consider that by only convicting the offender, justice is served. However, this is problematic. Justice in the truest sense will only be served when the rights of the victim as well as the accused have been given due consideration. In the article the author has delved into a number of concepts, viz. crime, deviance, the factors that lead to the commission of a crime, aggravating factors, mitigating factors, sentencing policy. The author has also looked into leading cases and analysed them, and then arrived to a conclusion.
Chapter III of the Indian Penal Code, 1860 (hereinafter IPC) lays down the various provisions related to the punishment that has to be given to the accused who has been proven guilty beyond reasonable doubt. Six different kinds of punishments are given under Section 53 of the IPC. These punishments are an integral part of the sentencing policy. It can be asserted that sentencing is the last phase of a criminal trial. To accord an apt sentence, there is a need to strike a proper balance between the aggravating and mitigating circumstances.
IPC only lays down the maximum or the minimum sentence that can be given to a criminal. It does not lay down any guidelines regarding the process of sentencing. The issue arises when the maximum sentence has been laid out for a particular crime, but no minimum punishment is given. In such cases, the judges exercise wide discretion which leads to inconsistent sentencing as different judges decide the case as per their own philosophy. So, a need of proper sentencing guidelines has been demanded to get rid of such inconsistent sentencing. The article has been divided into six parts. Part one deals with crime and deviance. Part two deals with the reason behind the commission of crimes. Part three differentiated the aggravating and mitigating factors. Part four brings out the issues with completely discretionary judgements. Part five contrasts the different sentencing policy of other countries. And the last part is conclusion.
Crime and deviance
Crime has always been one of the most fascinating and popular genre amongst the public. The term crime and deviance are interrelated to each other, but actually they are two very distinct concepts. Deviance is defined as deviating from the norms of the society. On the other hand, crime is defined as deviating from the laws governing a particular state or society. It can be said that deviance is the genus and crime is the specie, i.e., all crimes are deviance, but all deviance are not crimes.
Whether an act itself is a crime or not is decided by the norms of the society in which the said crime has been committed. Same goes with deviance. Deviance can be termed as any act or behaviour that is not in conformity with the conventional. An example of this would be the acts performed by a homosexual couple in a heterosexual society. This act is not criminal per se. However, it might get a hostile response from the heterosexual society. In other words, it can be said that deviance is breaking of the social rules (norms) whereas crime is the breaking of the legal rules (laws made by the legislation). It has been rightly said – “Social reaction is of central importance in determining whether a particular behaviour is categorized as criminal or deviant. No action is criminal or deviant in itself; it becomes so only if the society defines it as such, through the legal system or through the general acceptance of certain norms of behaviour.”
Why do people commit crime?
There may be innumerable reasons lying behind the commission of a crime, ranging from economic profit to revenge. Although other factors like inherited traits, poor parenting, wrong company also affect the psyche of an offender. These are some of the aspects which are dealt in mitigating factors. In other words, mitigating factors are pertaining to the criminal. However, the aggravating factors are related to the commission of the crime.
Distinguishing aggravating factors and mitigating factors
Both aggravating and mitigating factors play a crucial role in the sentencing. Although they play no role in the proving of guilt. These factors come into play once the offence has been established and the accused has been proven guilty beyond reasonable doubt.
Section 235 (2) of the Crpc mandates giving of a chance to the offender who has been proven guilty beyond reasonable doubt to speak up and state the various factors that might help in mitigating his sentence. This mandatory obligation has been imposed upon the judge who lays down the sentence. This was also held in the case of Santa Singh v. State of Punjab.
In the case of Surja Ram v. State of Rajasthan, the Supreme Court concurred with the premise that for awarding appropriate sentence, both the aggravating and mitigating factors should be taken into consideration. The landmark case of Bachan Singh v. State of Punjab dealt with the constitutionality of capital punishment. In this case the significance of aggravating and mitigating factors was discussed in greater detail. A non-exhaustive list of both the aggravating and mitigating factors was brought in the limelight. Aggravating circumstances included the following:
1. Gruesomeness of the crime
2. Pre-meditation of the crime committed.
3. The state (vulnerability) of the victim.
These are the aggravating factors that will be taken into consideration by the court in almost every case. An inexhaustive list of mitigating factors was also brought up. It included the following circumstances:
1. The mental state of the criminal.
2. The age of the criminal.
3. Chances of rehabilitation or reformation of the criminal.
4. The offender believed that he was morally justified in committing the act.
5. The criminal acted under some duress (economic/mental/etc.).
These are the commonly accepted mitigating factors that will be taken into cognizance in most cases.
The author will now deal with the cases where the sentence was mitigated owing to different mitigating circumstances.
1. Lapse of time
In the case of State of MP v. Paltan Mallah, the Supreme Court reduced the death penalty of Paltan Mallah (the accused), as there was a lapse of 13 years in the incident due to which this appeal was brought to the court.
2. Instantaneous action
In the case of Rajendra Rai v. State of Bihar, the Supreme Court found out that both the trial court and the high court had erred in imposing capital punishment as they did not give proper weightage to the mitigating factors. The act of killing was done at the spur of the moment, without any premeditation to kill. So, due regard had to be given to this mitigating factor. Hence, it was not the rarest of the rare case. Therefore, the death sentence was commuted to imprisonment for life.
3. Age of the accused
In the case of Sambhal Singh v State of Uttar Pradesh the Allahabad High while referring to the Bachan Singh case reduced the death sentence to life imprisonment. The fact that the main accused was an old man and had served the nation was taken as a mitigating factor. Additionally, while commuting the sentence of his sons, their young age and the commission of the act under compulsion was taken into consideration. Similar stance was taken by the Supreme Court in the case of Swamy Shraddananda v. State of Karnataka, where the sentence was reduced from death to life imprisonment, and the convict was released as he had already served a term of 14 years in jail.
4. Collective action
In Kishori v State of Delhi,the accused inflicted the injuries during a crowd procession. It was not evident whether the injuries wreaked by the accused could have led to the death of the victims. As there was an unruly mob, the instincts of an individual get incited by the acts of the mob. A person might not be capable of thinking independently and decide whether the act that he is doing is correct. This benefit of doubt was given to the accused and his sentence was mitigated from death to life imprisonment.
5. Socio-economic factors of the accused
The poverty of the accused was taken as a mitigating factor by the Supreme Court in the case of Sushil Kumar v. State of Punjab. The accused had committed the murder of his wife and his kids and thereafter consumed “sulphas tablets”. The court observed that as the financial condition of the accused was in a deprecating state, and to lessen the pain, he killed his family and tried to kill himself. Hence, it can be assumed that given a chance for reformation, the accused can be rehabilitated. Similar stance was taken in the case of Mulla v. State of Uttar Pradesh.
6. Act done under compulsion
In the case of Om Prakash v. State of Haryana the fact that the family members of the accused were humiliated by the victim as they were well off and were influential had an adverse implication on the psyche of the accused. The accused went to the authorities, but in vain. Finding no way out, the accused committed the murder. The court set aside the death penalty as the mental state of the accused was taken into consideration. The court further stated that “No doubt, it would not be a justifiable act at all, but the accused was feeling morally justifiable on his part.”
The problem with completely discretionary judgements
The aforementioned cases were some of the examples where proper weightage has been given to mitigating factors. However, many a times, the judges do not take cognizance of the mitigating circumstances, due to which justice does not get served. The sentence provided to a criminal lies on three factors, viz. the crime, the criminal, and the psychology or the inclination of the judge. The issue with this discretionary approach will get substantiated by the following opinions of three learned judges of India:
Krishna Iyer J- “Every saint has a past, every sinner has a future.”
K.T. Thomas J- “Theory of reformation through punishment is grounded on the sublime philosophy that every man is born good, but circumstances transform him into a criminal.”
D.P. Wadhwa J- “Reformative theory is certainly important but too much stress to my mind cannot be laid down on it that basic tenets of punishment altogether vanish.”
The drawback with this approach is that the sentence given by the judges in the trial court are not uniform. This was observed by the apex Court in the case of Rameshwar Dayal v. State of Uttar Pradesh, in which two distinct cases with same facts were decided differently. In the first case a sentence of 4 years was given and in the second case it was 3 months. Due to such inconsistencies many a times, either the offenders go scot-free or are subject to harsher punishment. The punishment given should be consistent so that the objective of sentencing is achieved.
This problem of inconsistency has been observed from quite a long time. The reasoning lying behind such a view is that the judges lay down the sentence as per their discretion. Although they do follow the judgements of the Supreme Court and the High Courts, but the question that comes into the picture is that whether such judgements are sufficient enough to act as guidelines. The Ministry of Home Affairs had established a body (Committee on Reforms of Criminal Justice System) called the Malimath Committee, which brought in a report in 2003. In the report, it was highlighted that to reduce the uncertainty in sentencing, guidelines should be laid down. There are no such guidelines in the IPC. It only provides the minimum or maximum sentence for a particular crime. The committee recommended the setting up of a statutory body which should be headed by a former judge of either the Supreme Court or the Chief Justice of a High Court, having experience in criminal law. This need was again brought in the spotlight in 2008 by the Madhava Menon Committee (Committee on Draft National Policy on Criminal Justice).
Sentencing in other countries
This issue had also cropped up in other countries like the USA and the UK. In the past, there was a pre-conceived notion that the mitigating and aggravating factors can be clearly distinguished and hence, can be easily categorized. However, it was observed that many a times, the mitigating factors were treated as aggravating factors. In the case of Penry v. Lynaugh, the US Supreme Court beheld that there are some ambiguous factors that might be treated as either mitigating or aggravating factors, and mental illness is one of them. This was so because, mental retardation might favour leniency but simultaneously it might act as an aggravating circumstance as the mental condition of the offender might pose a threat to the society in the future. The judges had “unhindered discretionary power” to decide the sentence that was to be imposed upon an offender. But after the case of Furman v. Georgia, this power was curtailed. And “guided discretion” statutes were brought into the picture. However, the sentence was not being individualized. The court in Woodson v. North Carolina asserted the need of bringing individualizing sentences. Further, through the case of Lockett v. Ohio the court brought in the concept of “unlimited mitigation”. Through this principle, the offender is allowed to put forward the various circumstances that might help in making his sentence more lenient. And the judges were supposed to give due weightage to such circumstances so that its benefit can be given to the offender. Finally, in 1985, the USA set up an independent agency called the United States Sentencing Commission. This body used to make guidelines that are to be taken into consideration by the judges while appropriating a sentence. The idea lying behind setting up this commission was to achieve the objective of punishment, make the sentencing just and fair, and allow the individualized sentencing. At the earlier stage, these guidelines were made mandatory. However, in 2005, the US Supreme Court in one of its decisions declared that taking the guidelines into consideration should not be imperative, as the right to trial by the jury gets violated. Rather, it should be left at the judge’s discretion if he wants to follow the guidelines or not.
Similarly, UK through its Criminal Justice Act 2003, set up a Sentencing Advisory Panel. This panel can be called up by the Secretary of the State to reform the sentencing guidelines as and when required. The act provides that the courts should take into consideration the guidelines that are relevant in that particular case. The Criminal Justice Act itself contains the guidelines that are followed in the process of sentencing.
As discussed earlier, sentencing is always the last phase of any trial. The judges decide the sentence that an offender will undergo. The sentence passed should neither be too relentless, so as to violate the rights of the criminal, nor be too tender-hearted, so that the victim does not get justice. And in according an equitable sentence, it is necessary to take appropriate cognizance of both the aggravating and mitigating circumstances. Taking the crime of murder, when the mitigating factors will outweigh the aggravating factors, the death sentence will be converted to life imprisonment and vice versa. The punishment given should meet the objective of the sentencing policy. It should have a deterrent effect on others so that they are discouraged to commit crimes, this is the sole justification of punishing a criminal.
In the past, the focus was zeroed only towards the crime. Once the accused had been proven guilty, he was given the sentence. The offender was not given a chance to lay down circumstances that might help in commuting the sentence. But with the passage of time, the rights of the criminals came into the picture.
After the mitigating factors came into play, a new issue arose due to the discretionary judgements passed by the judges, which led to inconsistency. Time and again, the need of having proper sentencing guidelines has been brought to the spotlight. Although, there cannot be any objective formula that can be applied to every given set of situations because there may be countless factors that may lie behind a particular crime. Currently, we rely on the judgements of the High Courts and Supreme Court. Bringing a sentencing policy will definitely be helpful, but the guidelines should not be exhaustive. Additionally, there should be scope of adding new guidelines as with the passage of time, the mindset of the society changes, and what is a crime today might not be a crime 10-20 years down the line. All in all, a flexible and inexhaustive sentencing policy should definitely be introduced as it would assist in achieving the ultimate goal of providing just sentences.
I am Shashwat Baranwal, a second-year student of West Bengal National University of Juridical Sciences. I love to write on issues concerning Human Rights and Public Policy related to those sections or functionaries of the society which largely escapes from Public discourse, and the same inspired me to write this piece.
 A. Lakshminath, Criminal Justice in India: Primitivism to Post-Modernism, January-March 2006, available at https://www.jstor.org/stable/43952016/ (Last visited on April 06, 2020).
 The Indian Penal Code, 1872, §53.
 Jagmohan Singh v. The State of UP, AIR 1973 SC 947.
 Vincent L. Broderick, Local Factors in Sentencing, 1993.
 Psa Pillai, Criminal Law 3-10 (2017).
 Code of Criminal Procedure, 1973, §235(2).
 Santa Singh v. State of Punjab, AIR 1976 SC 2386.
 Surja Ram v. State of Rajasthan, AIR 1997 SC 18.
 Bachan Singh v. state of Punjab, AIR 1982 SC 1325.
 Bachan Singh v. state of Punjab, AIR 1982 SC 1325.
 State of MP v Paltan Mallah, (2005) Cr LJ 4384 (SC).
 Rajendra Rai v State of Bihar AIR 1999 SC 1332.
 Sambhal Singh v State of Uttar Pradesh, (2004) Cr LJ 1533.
 Bachan Singh v State of Punjab, AIR 1982 SC 1325.
 Shraddananda v. State of Karnataka, AIR 2008 SC 3040.
 Kishori v State of Delhi, AIR 1999 SC 382.
 Sushil Kumar v. State of Punjab, (2009) 10 SCC 434.
 Mulla v. State of Uttar Pradesh AIR 2010 SC 942.
 Om Prakash v. State of Haryana AIR 1999 SC 1332.
 G. Kameswari and V. Nageswara Rao, Sentencing Process- Problems and Perspectives, 1999.
 Mohammad Giasuddin v. State of Andhra Pradesh, 1977 AIR 1926.
 State of Gujarat and Anr v. Hon’Ble High Court of Gujarat, (1998) 7 SCC 392.
 Mja, Latest view of sentencing policy with reference to the judgement of the Hon’Ble Supreme Court & High Court.
 Rameshwar Dayal v. State of Uttar Pradesh, (1971) 3 SCC 924.
 Supra note 23.
 Supra note 23.
 Joshua N. Sondheimer, A Continuing Source of Aggravation: The Improper Consideration of Mitigating Factors in Death Penalty Sentencing, 1990.
 Penry v. Lynaugh 109 S. Ct. 2934 (1989).
 Furman v. Georgia 408 U.S. (1972).
 Woodson v. North Carolina 428 U.S. 280 (1976).
 Lockett v. Ohio 438 U.S. 586 (1978).
 Second Administrative Reforms Commission’s Fifth Report on Public.