In a Parliamentary democracy like ours, laws are enacted by the Parliament or the State legislature within their respective legislative fields specified under the Constitution. The presumption attached to these laws is that they are meant to cater to the societal demands and meet the challenges of the time, for the legislature is presumed to be supremely wise and aware of such needs and challenges.

The means for redressing a mischief are also in the realm of legislation and so long as those means are not violative of the constitutional provisions or the fundamental rights of the citizens, the Courts will show deference towards them. That, however, is not to say that laws that are outrageously barbaric or penalties that are palpably inhuman or shockingly disproportionate to the gravity of the offence for which the same are prescribed cannot be interfered with.

A savage sentence is anathema to the civilized jurisprudence of Article 21

As observed by Chandrachud, CJ in Mithu’s case[1] if the Parliament were tomorrow to amend the IPC and make theft of cattle by a farmer punishable with cutting of the hands of the thief, the Courts would step in to declare the provision as constitutionally invalid and in breach of the right to life. The Court observed:

“6…………………………………… Two instances, undoubtedly extreme, may be taken by way of illustration for the purpose of showing how the courts are not bound, and are indeed not free, to apply a fanciful procedure by a blind adherence to the letter of the law or to impose a savage sentence. A law providing that an accused shall not be allowed to lead evidence in self-defence will be hit by Articles 14 and 21.

Similarly, if a law were to provide that the offence of theft will be punishable with the penalty of the cutting of hands, the law will be bad as violating Article 21. A savage sentence is anathema to the civilized jurisprudence of Article 21. These are, of course, extreme illustrations and we need have no fear that our legislatures will ever pass such laws.

But these examples serve to illustrate that the last word on the question of justice and fairness does not rest with the legislature. Just as reasonableness of restrictions under clauses (2) to (6) of Article 19 is for the courts to determine so is it for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable.”

Punishment must be proportionate to the offence

That punishment must be proportionate to the offence is recognised as a fundamental principle of criminal jurisprudence around the world.

In Weems v. United States (217 US 349) the petitioner had been convicted for falsifying a public document and sentenced to 15 years of what was described as ‘cadena temporal[2]’, a form of imprisonment that included hard labour in chains and permanent civil disabilities. The US Supreme Court, however, declared the sentence to be cruel not only in terms of length of imprisonment but also in terms of shackles and restrictions that were imposed by it.

That punishment for crime should be graduated and proportionate to the offence, is a precept of justice, declared the Court.

That decision was followed by Enmund v. Florida 647 458 US 782 (1982) where the Court held that death penalty was excessive for the felony of murder where the petitioner did not take life, attempt to take life or intend that life be taken or that lethal force be used.

In Coker v. Georgia 433 US 584 (1977) US Supreme Court held sentence of death to be grossly disproportionate and excessive for the crime of rape.

In Herman Solem v. Jerry Buckley Helm 463 US 277, the US Supreme Court was dealing with a case where Helm was found guilty of what is described as “uttering a no account check” for 100 dollars, ordinarily punishable with imprisonment for a period of five years and a fine of 5000 dollars but was sentenced under the recidivist statute of South Dakota to undergo imprisonment for life.

The question that fell for determination was whether the sentence was disproportionate to the crime committed by Helm. The Court by majority held that the general principle of proportionality was applicable as much to sentence of imprisonment as it was to capital sentences and that while applying the proportionality principle in capital cases, the Court had not drawn any distinction between capital cases, on the one hand, and case of imprisonment, on the other, even when the penalty of death differs from all other forms of punishment not in degree but in kind.

The Court held that decisions rendered in capital cases were not of much assistance while deciding the constitutionality of punishments in non-capital cases, with the result that outside the context of capital punishment, successful challenges to the proportionality of sentences were exceedingly rare.

That did not, observed the Court, however, mean that proportionality analysis was entirely inapplicable to the non-capital cases. The Court summed-up its conclusion regarding the doctrine of proportionality as applicable to cases involving sentence of imprisonment in the following words:

“[6a, 7, 8] In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional. As the Court noted in Robinson v. California, 370 US, at 667, 8 L Ed 2d 758, 82 S Ct 1417, a single day in prison may be unconstitutional in some circumstances.”

More importantly, the Court recognised the following guiding principles for determining whether the sentence of imprisonment was disproportionate to the offence allegedly committed by the accused:

“[10] In sum, a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including,

(i) the gravity of the offense and the harshness of the penalty;

(ii) the sentences imposed on other criminals in the same jurisdiction; and

(iii) the sentences imposed for commission of the same crime in other jurisdictions.”

Applying the above principles to the case before it, the Court declared:

“[1c] The Constitution requires us to examine Helm’s sentence to determine if it is proportionate to his crime. Applying objective criteria, we find that Helm has received the penultimate sentence for relatively minor criminal conduct. He has been treated more harshly than other criminals in the State who have committed more serious crimes.

He has been treated more harshly than he would have been in any other jurisdiction, with the possible exception of a single State. We conclude that his sentence is significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment. The judgment of the Court of Appeals is accordingly affirmed.”

In Ewing v. California [538 US 11] the US Supreme Court held that it is enough if the state has a reasonable basis for believing that its punishment advances the goals of its criminal justice system in any substantial way. The Court upheld the sentence of life imprisonment awarded to Ewing for theft of three golf sticks because it reflected a rational legislative judgment, entitled to deference. The Court observed:

“Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution “does not mandate adoption of any one penological theory.” A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. Some or all of these justifications may play a role in a State’s sentencing scheme. Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts.”

Indian Supreme court in Vikram Sing v. UOI (2015) summed up its conclusion on the proportion of punishment as follows-

“(a) Punishments must be proportionate to the nature and gravity of the offences for which the same are prescribed.

(b) Prescribing punishments is the function of the legislature and not the Courts’.

(c) The legislature is presumed to be supremely wise and aware of the needs of the people and the measures that are necessary to meet those needs.

(d) Courts show deference to the legislative will and wisdom and are slow in upsetting the enacted provisions dealing with the quantum of punishment prescribed for different offences.

(e) Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency.

(f) Absence of objective standards for determining the legality of the prescribed sentence makes the job of the Court reviewing the punishment difficult.

(g) Courts cannot interfere with the prescribed punishment only because the punishment is perceived to be excessive.

(h) In dealing with questions of proportionality of sentences, capital punishment is considered to be different in kind and degree from sentence of imprisonment. The result is that while there are several instances when capital punishment has been considered to be disproportionate to the offence committed, there are very few and rare cases of sentences of imprisonment being held disproportionate.”

Source

Vikram Singh @ Vikky v. Union of India (2015)

[1] Mithu etc. v. State of Punjab etc. (1983) 2 SCC 277

[2] Cadena temporal included imprisonment for at least 12 years and one day, in chains, at hard and painful labor; the loss of many basic civil rights; and subjection to lifetime surveillance.