Punishments should be proportionate to the nature and gravity of the offences#indianlaws

In a writ before the Supreme Court,a declaration was sought that Section 364A inserted in the Indian Penal Code (IPC) by Act 42 of 1993 was ultra vires the Constitution to the extent of prescribing death sentence for anyone found guilty. The Apex Court held that just because the sentence of death is a possible punishment that may be awarded in appropriate cases cannot make it per se inhuman or barbaric. In the ordinary course and in cases which qualify to be called rarest of the rare, death may be awarded only where kidnapping or abduction has resulted in the death either of the victim or anyone else in the course of the commission of the offence. The Court answered that the provision of Section 364A was accordingly held to be constitutional, holding that assumed hypothetical situations cannot be brought to bear upon the vires of Section 364A. S

Appellants in the instant matter were tried, convicted and sentenced to death for commission of offences punishable under Sections 302 and 364A of the Indian Penal Code, 1860. The conviction and sentence was affirmed by the High Court of Punjab and Haryana in appeal and then by the Supreme Court.

Later Appellants filed a writ petition before the Apex Court for a declaration that Section 364A inserted in the Indian Penal Code (IPC) by Act 42 of 1993 was ultra vires the Constitution to the extent of prescribing death sentence for anyone found guilty and accordingly sought for quashing of the death sentence awarded by the trial court and confirmed in appeals.

It was held by the Supreme Court that:

1. Punishments must be proportionate to the nature and gravity of the offences for which the same are prescribed.
2. Prescribing punishments is the function of the legislature and not the Courts’.
3. 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.
4. 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.
5. 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.
6. Absence of objective standards for determining the legality of the prescribed sentence makes the job of the Court reviewing the punishment difficult.
7. Courts cannot interfere with the prescribed punishment only because the punishment is perceived to be excessive.
8. 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.

The court further observed that the need to bring in Section 364A of the IPC arose initially because of the increasing incidence of kidnapping and abduction for ransom. This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgment. While those recommendations were pending with the government, the specter of terrorism started raising its head threatening not only the security and safety of the citizens but the very sovereignty and integrity of the country, calling for adequate measures to curb what has the potential of destabilizing any country. With terrorism assuming international dimensions, the need to further amend the law arose, resulting in the amendment to Section 364A, in the year 1994. The gradual growth of the challenges posed by kidnapping and abductions for ransom, not only by ordinary criminals for monetary gain or as an organized activity for economic gains but by terrorist organizations, is what necessitated the incorporation of Section 364A of the IPC and a stringent punishment for those indulging in such activities. Given the background in which the law was enacted and the concern shown by the Parliament for the safety and security of the citizens and the unity, sovereignty and integrity of the country, the punishment prescribed for those committing any act contrary to Section 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as to call for the same being declared unconstitutional.

Judicial discretion available to the Courts to choose one of the two sentences prescribed for those falling foul of Section 364A will doubtless be exercised by the Courts along judicially recognized lines and death sentences awarded only in the rarest of rare cases. But just because the sentence of death is a possible punishment that may be awarded in appropriate cases cannot make it per se inhuman or barbaric. In the ordinary course and in cases which qualify to be called rarest of the rare, death may be awarded only where kidnapping or abduction has resulted in the death either of the victim or anyone else in the course of the commission of the offence. Fact situations where the act which the accused is charged with is proved to be an act of terrorism threatening the very essence of our federal, secular and democratic structure may possibly be the only other situations where Courts may consider awarding the extreme penalty. But, short of death in such extreme and rarest of rare cases, imprisonment for life for a proved case of kidnapping or abduction will not qualify for being described as barbaric or inhuman so as to infringe the right to life guaranteed under Article 21 of the Constitution.

It was argued that in certain situations even imprisonment for life may be disproportionate to the gravity of the offence committed by the accused. Hypothetical situations are pressed into service to bring home the force of the contention. The question, however, is whether the Court can merely on a hypothetical situation strike down a provision disregarding the actual facts in which the challenge has been mounted. The Court answered in the negative, holding that assumed hypothetical situations cannot be brought to bear upon the vires of Section 364A. The provision of Section 364A was accordingly held to be constitutional.

Vikram Singh @ Vicky & Anr. vs. Union of India & Ors.

SC, 21.08.2015

Criminal Appeal No. 824 of 2013