The notion of proportionality in sentencing constitutes one of the principal ideas of criminal law. It rests on the premise that punishment must be proportional to criminality—equitable, reasonable, fair, and just, but not extreme or excessively lenient. Proportionality has constitutional status in India under Articles 14 [1]and 21[2] of the Constitution, guaranteeing equality before the law, and life and liberty respectively. In numerous cases, the Courts have highlighted that excessively disproportionate punishments violate these constitutional guarantees.
The Bharatiya Nyaya Sanhita (BNS) 2023[3] has been adopted as an alternative to colonial Indian Penal Code [4](IPC) and represents a pivotal moment in the long tradition of criminal law reform. One of the distinct goals of the BNS is punishment that respects humanity and achieves something – that is punishment that reflects contemporary social conditions. These new legislative developments, including community service, appropriately meted out punishments for economic offences and alternative categorisation of sexual offences, are representative of a constitutional change to proportionality.
But there are still considerable challenges ahead. The application of any legislation must wrestle with judicial discretion, there are no formal sentencing guidelines and there are social-economic factors to take in to account. And perhaps the biggest question is whether the BNS has actually made major in-roads into proportionality or simply continues to act through many of the same issues associated with the IPC.
FROM IPC TO BNS: A STEP TOWARDS FAIR PUNISHMENT
The BNS, 2023 seeks to implement the proportionality principle in punishment by reforming the scheme from the IPC, 1860. Although the IPC was an imposition of colonial rule proclaiming disproportionate and at times, inflexible punishments, the BNS attempts to match punishment and incarceration scheme with the constitutional requirement of fairness and natural justice.
One of the changes is for minor offences which has changed judges ability to sentence a person to community service instead of being incarcerated for a matter of days. Community service addresses a minor offence and removes a person from the prison population, attacks on overpopulation of prisons, and authorizes rehabilitation for enduring such a minor failure. One could no doubt draw conclusions that economic and property offences have now been rationalized and justly stated punishments pertaining to deterrence and proportionality.
A significant innovation was rationalized ranges of sentencing. The IPC had long ranges of sentencing that perpetually were way too wide. The BNS has sought to reduce the ranges of sentencing and lessen arbitrary sentencing. While the BNS has legislatively signaled a desire to describe proportionality, the BNS recognizes that achieving consistency between judicial administration of sentence is an uphill struggle.
Judicial Interpretation of Proportionality
The concept of proportionality has always been a constitutional safeguard in India. Courts have opined that punishment must never be arbitrary, capricious or grotesquely disproportionate.
In Bachan Singh v. State of Punjab (1980), for instance, the Supreme Court of India upheld the constitutionality of capital punishment but limited its application to “bestial crimes” and highly restricted the imposition of the death penalty to the rarest of rare cases – thereby ordaining a principle of proportionality into the capital sentencing context. In Mithu v. State of Punjab (1983), the Supreme Court struck down the mandatory death penalty provisions, under s. 303 IPC, reaffirming the need for judicial discretion and proportionality. In Vikram Singh v. Union of India (2015), the Supreme Court reiterated the connection between rational nexus and punishment.
We are seeing a gradual shift toward proportionality in instances of petty or minor offences too. In some recent judgements, courts have replaced imprisonment with fines or community service for first time or minor offenders (as opposed to more serious custodial sentences) akin to theism behind the BNS legislative approach. Due diligence into prohibitions on statutory reform, legislative purpose and rationale, constitutional analysis and implementing change based on entrenched individual rights, is inherently intertwined and known as a unit in a symbiotic relationship.
Practical Challenges in Application
The issue of proportionality in punishment persists despite both legislative and judicial acknowledgement of this issue. The potential for judicial, or quasi-judicial, discretion in regards to punishment is further complicated by a lack of structured sentencing principles or guidelines. There is the possibility, real or imagined, that offenders committing the same offence can face a range of outcomes.
Socio-economic inequalities further erode proportionality itself. Offenders who are unable to pay fines, unable to access to legal representation to advocate on their behalf, or who were unable to pay to hire lawyers could be said to be worse than wealthy defendants; this may frustrate the rehabilitative goals of the BNS.
Prison overcrowding persists, at least partially, because courts are unwilling to impose non-custodial dispositions. Weak establishment of mechanism to monitor non-custodial dispositions for community service and probation also leads judges to lack confidence in imposing them. These gaps further demonstrate that the text does not match the lived experience.
CONCLUSION
The principle of proportionality in punishment is critical to a fair system of justice. The introduction of the BNS 2023 replacing the IPC is India’s most recent endeavor to reform criminal law by moving towards a more humane paradigm of criminal punishment, including adoption of new ideas such as community service, as well as more rational sentencing ranges and possibilities that do not involve incarceration. The experience of time served has been undermined by authorities, unevenness in judicial discretion, socio-economic disparities, and bad implementation models that hinder the practical application of proportionality.
Even when the systemic screw ups make it impossible to apply proportionality, the courts have institutionalized it in decisions like Bachan Singh and Mithu. For the BNS reforms to be effective, authorities must go beyond a legal framework and provide structured guidelines for sentencing; jurists must be trained regarding the proportionality system of justice; and the institutional framework must be strengthened. Proportionality must, in the end, do what justice necessitates: punishment based on the seriousness of the conviction, while at the same time serving the constitutional aims for fairness and human dignity for all.
[1] Constitution of India, art 14
[2] Constitution of India, art 21
[3] Bharatiya Nyaya Sanhita 2023
[4] Indian Penal Code 1860
Author: Vedatrayee Rez
Juris Centre 