Category Archives: Cruel and Unusual Punishment

Review: Proportionality, Punishment and Judicial Review: A Response to Jeydev C.S.

(This is a guest post by Puneet Dinesh.)

In this Guest Post, Jeydev C.S examines a topical issue given the recent political developments of awarding life sentences and death penalty for cow slaughter. The post revolves around an important legal question: Whether the courts can review the proportionality of punishments linked to a crime?

While Jevdev analyses some crucial questions surrounding the issue, it is an interesting exercise to examine the manner in which the variants of proportionality gets incorporated in different parts of the Constitution.

I. Importing principles from Art. 19 to Art. 21

The post while examining whether the standard of proportionality can be found within Article 19, refers to the Supreme Court’s decision in State of Madras v V.G Row to argue that ‘proportionality’ can be read under the ‘reasonable restrictions’ under Article 19(2). The argument then takes the help of Maneka Gandhi to import the standard of proportionality, found in the ‘restrictions’ under Article 19(2) to Article 21. While Maneka Gandhi allows for a harmonious and combined reading of Article 19 and 21, it is crucial to understand what exactly this means. The question really is, when can a principle under the ‘reasonableness’ test be invoked for a Article 21 challenge? Bhagwati J, in Maneka provides some guidance in this regard:

The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article”.

For Bhagwati J, the challenges under Art. 19 can only be tested, if a freedom under Art. 19 is affected. However, this leaves us in a difficult position- any penal law prescribing punishment ipso facto violates various freedoms under Art. 19. Bachan Singh, when faced with the same question two years later after Maneka, observes that a penal law prescribing punishment cannot affect Art. 19 rights. Interestingly, Bhagwati J, writing his dissent in Bachan Singh two years later after the majority’s opinion, criticizing the majority for applying the wrong test to arrive at the conclusion that Art. 19 rights are not affected, also refuses to answer if a penal law stands to violate Art. 19 rights.

Is there another way to understand the harmonious reading of Art.14, 19, 21 per Maneka? The alternative reading that makes sense is to consider the principles of due process developed under Art. 14 and 19 in an Art. 21 inquiry. It is through this reading, that proportionality as a principle can be examined in an Art. 21 inquiry. It is a different matter altogether (as will be addressed later) the impact of the contents and the variants that proportionality takes within Art. 19 on Art. 21. The limited point being, proportionality as a principle can be considered through the harmonious reading of freedoms under Art. 19 and 21. In fact, a similar reading can be expected in the Canadian and South African Constitutions which subjects all rights to the proportionality standard.

II. Vikram Singh’s discussion on the Eighth Amendment in the United States and ‘substantive due process’

Jeydev’s post later relies on the observations by Vikram Singh on the appropriate standard to examine the proportionality of punishment. Vikram Singh relies on a series of United States and Canada precedents to further the position that proportionality is part of judicial review when the punishment is ‘outrageously disproportionate’. However, in the United States, the Eighth amendment specifically requires the court to examine if the punishment is proportionate to the crime and Section 12 under the Canadian Charter of Rights and Freedoms also provides a right not to be subjected to cruel or unusual punishment. Therefore, the principles evolved for determining proportionality (as discussed in Ronald Allen Harmelin v. Michigan 501 US 957 (United States) and R v Smith (1987) 1 SCR 1045 (Canada)) were due to the legislative mandate provided under the Eighth amendment and Section 12 respectively. It is important to note that a parallel provision is absent in the Indian constitution and the absence has not gone unnoticed before the Supreme Court.

The court in Jagmohan Singh (1972) observed that “…so far as we are concerned in this country we do not have in our Constitution any provision like the Eighth Amendment nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply “the due process” clause”. Vikram Singh loses sight of this important distinction and proceeds to import the standard found in United States and Canada. Although Jagmohan Singh was prior to the Maneka Gandhi dicta, statues that define punishments forms part of the substantive due process review. (See Sunil Batra).While Bachan Singh and Mithu might help in arguing for a substantive review of a penal legislation, the bench strength in both the cases was lower than Maneka Gandhi.

The proportionality standard that ends up getting imported in the Indian context through Vikram Singh is nothing different from the Wednesbury standard of reasonableness. On this note, it is important to distinguish two different reviews of proportionality in cases of punishment. First, when the judiciary is reviewing the proportionality of a prescribed punishment in a penal law (Vikram Singh or the recent Bihar High Court’s prohibition judgment) Second, when the judiciary is reviewing the proportionality of a sentence given by a lower court (Santosh Bariyar line of cases). The analysis here is restricted to the former type of review.

III. Whether ‘proportionality’ is a constitutional standard?

The elevation of an administrative law standard as grounds for constitutional review has faced severe criticism from academic circles and the Supreme Court. The Supreme Court in Royappa v State of Tamil Nadu, while adjudicating on an administrative law matter, considered that mere ‘arbitrariness’ is sufficient to constitute an Article 14 violation. As Tarunabh Khaitan, points out, the case laws following this precedent has formulated the ‘unreasonableness’ test in the name of ‘arbitrariness standard’. It is in this context, an analysis on the proportionality test as a constitutional review standard becomes relevant.

Proportionality as an administrative law standard has been a recent addition to the list of standards open to judicial review for administrative actions. Om Kumar (2001) is perhaps the first case to add proportionality to the existing standards of administrative law review. As the court in McDowell noted, in 1996, ‘..The applicability of doctrine of proportionality even in administrative law sphere ..(was)..a debatable issue’ and further proceeded to note that, ‘It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled’. However, the incarnation that ‘proportionality’ has taken at least in the cases challenging the extent of punishment and administrative actions is nothing different from what the ‘arbitrariness’ standard has given us i.e ‘unreasonableness’ test or rather what the Supreme Court calls it the ‘Wednesbury principle of proportionality’.

Wednesbury standard and the proportionality test may constitute different or same standards of review depending on the relevant jurisdiction. In English law, the latter forms a higher threshold than the former, wherein, the proportionality standard involves a four-stage test examining if (a) the objective is necessary to limit a fundamental right, (b) the impugned measure is rationally connected to it and (c) there is minimal impairment of the right to accomplish the objective (d) balancing the rights against the restriction. In India, depending on the context, the proportionality standard has taken both the four-stage test (‘reasonable restrictions’ under Article 19(2)-(6) and the Wednesbury reasonableness (judicial review of administrative actions) approach. This scheme i.e different nature of proportionality tests for a constitutional case and an administrative law case, is worth noting for future evaluation of Vikram Singh.

Wednesbury standard, while consisting of several hierarchical standards internally, requires judicial interference only for decisions that are seriously unreasonable. Inspired by this standard, the Eighth amendment cases picks up on the ‘grossly disproportionate’ test, while the Indian counterpart, sticks to the ‘shockingly disproportionate’ test. Abhinav Chandrachud, analyses a plethora of administrative law decisions where the court uses the phrase ‘proportionality’ standard but ends up employing the Wednesbury standard of review blurring the distinction that Om Kumar had created (See Hazarila).

The four-prong test in the Indian jurisprudence has had a muddled journey so far. Mainly invoked in the context of ‘reasonable restrictions’ under Article 19 (2)- (6), the test has been severely misemployed. As Ashwita Ambast notes here, from ignoring to take certain prongs of the test into account (Brij Bhushan), disturbing the hierarchy of analyses and now, ignoring to apply the test after deliberating on it (Modern Dental College), the four-prong test is yet to be flawlessly applied. The constitutional status of this test was approved as early as in the year 1952 in VG Row. The judgment stresses on the requirement of ‘narrowest limits’ (minimal impairment) and ‘exceptional circumstances’ (necessity) – crucial aspects of the proportionality analyses. The reiteration of this test was elaborately made recently in the NEET judgment by AK Sikhri J. After making a detailed survey of the test referring to comparative sources, the court proceeds to observe the ruling in TMA Pai and PA Inamdar and satisfies itself of the ‘reasonableness’ test without making any analyses on the proportionality test. Therefore, there is very little value in the court’s effort to explore the contours of the four-prong test. The most important and the controversial part of this test is when the court examines if the impugned act is a ‘minimal impairment’ to accomplish the objective. This often requires the court to evaluate comparative sources and put forth its own ideas on what constitutes a ‘minimal impairment’. As seen earlier, Indian courts have shied away from applying this part of the test.

All these discussions, brings me to my core argument: the link between Article 19 ‘restrictions’ and Article 21 to employ the tool of ‘proportionality’

As mentioned previously, the restrictions under Article 19 have always demanded for a stricter proportionality analyses. While the traditional four-prong test might have not been employed, it is rarely the case that they have been substituted to the Wednesbury standard of reasonableness. (See Chintaman Rao). In a constitutional adjudication case, challenging the extent of punishment mandated by the legislation, the court in Vikram Singh and the recent judgment on prohibition of alcohol have employed the Wednesbury standard of proportionality. Therefore, even if one were to source ‘proportionality’ of punishments under Article 19, one cannot lose track of these difficult questions. However, since Vikram Singh’s analyses of proportionality did not originate from Article 19, it might be unfair to attack the judgment on that ground.

Where can we then place ‘proportionality’ as invoked by Vikram Singh in the Indian constitution? Article 14 is perhaps the only, but difficult, place for proportionality to clench. The scope of this essay does not extend to include Article 14 analyses but the ‘arbitrariness’ test developed post-Royappa has been unclear. Whatever one thinks of the dubious link between arbitrariness and inequality under Article 14, there are multiple instances wherein, the arbitrariness has taken the form of the ‘reasonableness’ test. In which case, it becomes easier to add one more administrative law standard i.e proportionality within the folds of Article 14 as the test essentially is one inquiring the ‘reasonableness’ of the impugned clause in the legislation. This link may be crucial to re-engage with the content of the ‘arbitrariness’ standard, a conversation which is much awaited. However, one can’t lose track of the impediments that 2G Reference; Subramanian Swamy and more recently, Rajbhala poses in this endeavor.

While the proportionality analyses for punishment clause stands on a weak footing in Indian constitutional law, it will certainly be interesting to see, the manner in which proportionality (especially, the variant of proportionality) will get invoked and incorporated in the Indian Constitution.




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Filed under Cruel and Unusual Punishment, Judicial Review, proportionality

Guest Post: Judicial Review and Proportionality of Punishment

(In the context of life sentences and even the death penalty being mooted for cow slaughter in some states, Jeydev C.S. examines whether the Indian Constitution requires proportionality in punishment)

How far can the State go? It is a general proposition that duly enacted penal statutes can prescribe punishments for undesirable conduct. Recent political developments suggest that this legislative freedom may be taken further than ever before. From a constitutional standpoint though, it is far from clear if the state actually has untrammelled discretion in sentencing. For instance, can it execute someone for relatively minor offences like petty theft, or sentence a man to rigorous imprisonment for life if caught driving drunk? Screaming headlines and political ramifications aside, the underlying issue here is whether our Constitution can be concerned with proportionality of punishment while dealing with the legality of penal statutes. In this post, I posit that this specific legal question has been answered in the affirmative, considering the findings of leading case law of the Supreme Court of India while interpreting the text of the Constitution.

Article 21 provides that “No person shall be deprived of his life or person liberty except according to procedure established by law”. A perfunctory reading of this clause suggests that, as far as the state has, one, established a certain procedure through law; and two, such procedure is followed by the state while depriving a person of her life or personal liberty, then such an action of deprival by the state would be permissible. However, this has not meant that unchecked excesses by state agencies under the garb of procedural propriety have been condoned by the courts. In the case of Maneka Gandhi v. Union of India, the Supreme Court held that the “procedure established by law” must be just, fair, and reasonable so as to not be in violation of article 21. To put it another way, the Court read three non-textual pre-conditions into the nature of the administrative process, in the absence of which depriving actions of the state will be rendered unconstitutional. While arriving at this outcome, Chief Justice Beg particularly rejects the notion that articles 21 and 19 are independent compartments of rights; rather, they are available together (along with article 14, particularly with regard to reasonableness) when reviewing executive action. While Maneka Gandhi does much more in the realm of article 21 jurisprudence, this facilitative reading permits us to import certain relevant standards that have been laid out with respective to articles 19 and 14.

Article 19 of the Constitution primarily addresses the protection of certain rights (such as speech, assembly, association, movement, profession et cetera). These freedoms, as articulated in clause (1) are circumscribed by the limitations of clauses (2) through (6) – the common criterion of restriction under these clauses is that such restriction must be ‘reasonable’. While there have been many instances of the courts opining on the nature of what this actually entails, for our purposes, we may turn to the case of State of Madras v. V. G. Row. This case dealt with an action of the State of Madras (as it then was) whereby it declared a political organisation to be an unlawful association. In its opinion, the Court reaffirmed the reasoning of previous cases such as Dr. N. B. Khare v. State of Delhi, that article 19 restrictions must be substantially and procedurally reasonable, and that such reasonableness may be indicated by factors such as “the extent of the evil sought to be remedied”, “prevailing conditions”, and “disproportion of imposition”. Granted, Row only envisages this to be applicable to impediments imposed upon article 19 rights. However, Maneka Gandhi clearly expects a harmonious and combined reading of these standards which can help inform the contours of what may be reasonable for the purposes of article 21. Therefore, I contend that proportionality is a relevant consideration when reviewing law that deprives life or personal liberty.

In a similar tenor, I must now address article 14, which prohibits the state from denying to any person equality before the law or the equal protection of laws within India. Most famously, a constitutional bench of the Supreme Court held in E. P. Royappa v. State of Tamil Nadu that article 14 entails a prohibition on arbitrariness in state action. Drawing upon this precedent and Maneka Gandhi, the case of Mithu v. State of Punjab sought to apply the principle to a penal provision in a criminal statute. Section 303 of the Indian Penal Code, 1860, which provided for a mandatory minimum sentence of death for those who commit murder while serving a term of life imprisonment, was assailed against the combined significance of articles 14, 19, and 21. The Court struck section 303 down as unconstitutional, for such a sentence, which on no valid basis of classification discriminates between convicts and non-convicts, would be arbitrary – further, the automatic imposition of a sentence of death, which is expected to used sparingly per the judgment in Bachan Singh v. State of Punjab, would be disproportionately oppressive; for these reasons, the impugned section was held to be in violation of article 21. Chandrachud J illustrates the importance of a proportionality test for the purposes of sentencing – he notes that a savage sentence, such as amputation for theft, would run afoul of article 21; he actively adverts to the reliance upon article 19 standards of reasonableness to assess challenges under article 21. This further reinforces the importance of proportionality, which as we have noted, has been incorporated through Row.

It is true that a substantial bulk of Mithu dealt with the disproportionality parameter, in as much as a criminal statute took away sentencing discretion from courts during trial. However, perhaps the most forceful articulation of the need for proportionate punishment is seen in Vikram Singh v. Union of India. In this case, the appellants sought to challenge the constitutional validity of section 364A of the Indian Penal Code, 1860 on the grounds that it prescribed a sentence of death, thereby in violation of article 21, as clarified in Mithu. At the earliest, the Court sought to dissuade the notion of the appellants that section 364A amounted to a mandatory death sentence. As the provision itself reads, death is only one option before the trail court – it may also choose to impose a sentence of imprisonment for life. Therefore, this case is clearly distinguishable from Mithu as the mere option of death as a possible punishment for a crime does not violate article 21. Despite dismissing the instant appeal on this ground, Chief Justice Thakur addresses the general issue of proportionality. He opines that merely because courts are deferential to legislatures on matters of punishment, generally, does not mean that penalties that are “shockingly disproportionate” to the gravity of the underlying offence are immune from constitutional intervention.

The Court then proceeds to categorically import the principle of proportionality in punishment from foreign (particularly, North American) jurisprudence. In Weems v. United States, the Supreme Court of that country affirmed the proposition in favour of ‘graduated’ and ‘proportionate’ punishment, by finding grounding in the Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishments. Similarly, cases like Enmund v. Florida, Coker v. Georgia, and Solem v. Helm have all held penal statutes to be in violation of the Eighth Amendment on account of being disproportionate to the gravity of the underlying offence. Chief Justice Thakur specifically cites the cases of Harmelin v. Michigan and Ewing v. California to be indicative of a prospective American standard, as culled from past jurisprudence – as far as there is a “reasonable basis for believing” the prescribed punishment “advances the goals” of criminal justice and was arrived at through a “rational legislative judgment”, such statutes may be deemed to be proportionate.

While affirmative reiterations of these principles exist throughout Vikram Singh, the most utility for our purposes in evaluating the Indian constitutional scheme may be derived from the enumeration of guiding considerations at paragraph 49 – first, the general principle is that punishment must be proportionate; second, that there exists a presumption that the legislature (unlike the courts) is best positioned to propose punishment; and third, that the courts must defer to its wisdom in this regard unless the prescription is outrageously disproportionate to the offence or so inhuman or brutal that it would be unacceptable by any standard of decency. This standard if further raised in cases where the prescription is one of death – the Court defers to the high standard of judicial care that is applied to the death penalty, in line with evolving jurisprudence on the issue, while also asserting that the likelihood of this punishment being deemed disproportionate is particularly high. I must reiterate however, that my quest here is to not comment on whether the death penalty is disproportionate in certain cases. Rather, it is whether any punishing statute (including, but not limited to the death penalty) is open for constitutional review on the grounds of proportionality.

It is altogether another matter that the Court in Vikram Singh chose to dismiss the appeal on the grounds that the impugned provision did not offend the aforementioned standard. Nonetheless, these principles undoubtedly constitute the ratio decidendi of this case. Being the leading Supreme Court judgment on this point, it shall be binding on courts throughout India. Hence, any criminal statute that prescribes punishment can be held against this test of proportionality; and if it is found to run afoul of this, that punishment may be declared by our constitutional courts to be ineffective on account of it being in violation of article 21. Whether the recent spate of amendments and legislative proposals merit such consideration is a question for another day.


Filed under Article 21 and the Right to Life, Cruel and Unusual Punishment