Report No. 262

F. Proportionality

4.8.1 Censuring the offender and communicating society's disapproval of his/her actions is a primary goal of the theory of proportionality.344 The society's censure of the offender's actions is communicated to him/her by imposing a proportionate sentenc.- one that is not greater than what she deserves.345 Proportionality through its communicative function aims to make the offender repent his/her actions.346

This is done by providing the offender the means to express remorse. Further, a core requirement of the theory of proportionality is that the punishment imposed should not be "out of proportion to the gravity of the crime involved."347 Section 143(1) of the [U.K.] Criminal Justice Act, 2003 provides an illustration of this principle. It states that "In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused."

344 P.F. Strawson, Freedom And Resentment And Other Essays 1 (1974); Andrew von Hirsch, Proportionality in the Philosophy of Punishment: From "Why Punish?" to "How Much?", 25 Isr. L. Rev. 549, 561 (1991),

345 Andrew Ashworth, Sentencing And Criminal Justice 84 (2005).

346 Andrew Ashworth, Sentencing And Criminal Justice 84 (2005). See: Andrew von Hirsch, Proportionality in the Philosophy of Punishment, 16 Crime & Justice 67 (1992); R.A. Duff, Trials And Punishments (1986).

347 Andrew Ashworth, Sentencing And Criminal Justice 84 (2005).

4.8.2 The severity of the sentence is an important consideration for the theory of proportionality, since a disproportionate or severe punishment overpowers the element of censure.348 Consequently, the theory favours lower levels of incarceration and a pro rata reduction of existing penalty scales across jurisdictions.349 Proportionality respects rule of law values, and places limits on the sentencing power.350

348 Andrew Von Hirsch And Andrew Ashworth, Proportionate Sentencing: Exploring The Principles 143 (2005).

349 Susan Easton And Christine Piper, Sentencing And Punishment: The Quest For Justice 61 (2012); Malcolm Thorburn, Proportionate Sentencing and the Rule of Law, in Principles And Values In Criminal Law And Criminal Justice: Essays In Honour of Andrew Ashworth 269 (Lucia Zedner and Julian V. Roberts eds. 2012); Barry Pollack, Deserts and Death: Limits on Maximum Punishment, 44 Rutgers L. Rev. 985 (1991-1992).

350 Andrew Ashworth, Sentencing And Criminal Justice 84 (2005).

4.8.3 In some cases, the Supreme Court has used proportionality as a penological goal. See Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713; Lehna v. State of Haryana, (2002) 3 SCC 76; State of U.P. v. Satish, (2005) 3 SCC 114; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561. Ruling that "[t]he criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct," Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713, at para 25; Lehna v. State of Haryana, (2002) 3 SCC 76, at para 27; State of U.P. v. Satish, (2005) 3 SCC 114, at para 29;
Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561, at para 21; Lehna v. State of Haryana, (2002) 3 SCC 76; State of U.P. v. Satish, (2005) 3 SCC 114; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561. the Court has used proportionality as a justification to impose the death penalty. Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713; Lehna v. State of Haryana, (2002) 3 SCC 76; State of U.P. v. Satish, (2005) 3 SCC 114; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561.

The Court has also read into the principle of proportionality, the requirement of taking societal considerations into account. It observed: "the doctrine of proportionality has a valuable application to the sentencing policy under the Indian criminal jurisprudence.

[T]he court will not only have to examine what is just but also as to what the accused deserves keeping in view the impact on the society at large." Brajendrasingh v. State of Madhya Pradesh, (2012) 4 SCC 289, 305 (citing Ramnaresh and others v. State of Chhattisgarh, (2012) 4 SCC 257, 287.) It has also stated that "imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise." Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667, at para 15.

4.8.4 A three-judge Bench of the Supreme Court has recently provided guidance on how the doctrine of proportionality can be applied in the death penalty context. The Court held:

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 sentence of imprisonment being held disproportionate. Vikram Singh v. Union of India, Criminal Appeal No. 824 of 2013 (SC), dated 21 August, 2015, at para 49.

4.8.5 An accurate understanding and application of the theory of proportionality can be found in Bariyar, in which the Court provided a framework within which the sentencing exercise should be undertaken in a death penalty case. It said that the court should first compare the facts of the case before it with a "pool of equivalently circumstanced capital defendants." Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 131. The gravity and nature of the crime, as well as the motive of the offender may be considered in this analysis.

The aggravating and mitigating circumstances should then be identified. These should also be compared with a pool of comparable cases. This would ensure that the court considers similarly placed cases together, and the exercise would inform the court of how a similar case has been dealt with earlier. The Court opined that this exercise may point out excessiveness in sentencing, if any, and at the same time reduce arbitrariness to a certain extent.

It also advised that the exercise proposed by it should definitely be undertaken if the sentencing court opts to impose the death penalty on the convicted person. Importantly, the court also held that reasoning is the most important element to ensure "principled sentencing." Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.

4.8.6 As mentioned earlier, the core focus of proportionality is censure. The communicative aspect of punishment is also an important consideration. The censure and communicative aspect are better achieved through life imprisonment, rather than by imposing the death penalty on the offender. Incarceration provides the offender the means to express remorse and communicates the society's disapproval for his/her actions.

The death penalty, on the other hand, undermines the communicative aspect of the punishment, since the offender's life is taken away. Hence, from this perspective, life imprisonment serves the proportionality goal more adequately than the death penalty.

4.8.7 The other communicative aspect of proportionality is the communication to society that the offender's actions are not acceptable. In this context, it is pertinent to note the "brutalization effect."359 Bowers and Pierce argue that when killings are carried out by a state, it undermines the communicative aspect by justifying what it seeks to condemn. It also devalues life in the eyes of the common person which further empowers offenders.360

359 William J. Bowers & Glenn L. Pierce, Deterrence or Brutalization: What Is the Effect of Executions?, 26 Crime & Delinq. 453 (1980); Joanna Shepherd, Capital Punishment's Differing Impacts among States, 104 Michigan Law Review (2005).

360 William J. Bowers & Glenn L. Pierce, Deterrence or Brutalization: What Is the Effect of Executions? 26 Crime & Delinq. 453 (1980). See also: H.L.A. Hart, Punishment And Responsibility, 88 (2008).