The object of punishment is the prevention of crime, and every punishment is intended to have a double effect, viz., to prevent the person who has committed a crime from repeating the act or omission and to prevent other members of the society from committing similar crimes.
THEORIES OF PUNISHMENT
• Retributive theory: This theory is based on the principle of an eye for an eye and a tooth for a tooth. It is based on primitive nature of vengeance against the wrong doer. The Supreme Court has recently laid down that an eye for an eye approach is neither proper nor desirable. Mandate of Section 354 (3) Cr.P.C. does not approve of it.
• Deterrent theory: According to this theory the punishment is awarded to deter people from committing the emotion of fear plays a vital role in man's life.
• Preventive theory: This has also been called Theory of disablement as it aims at preventing the crime by disabling the criminal. In order to prevent the repetition of the crime the offenders are punished with death, imprisonment for life or transportation of life.
• Reformative theory: The object of punishment according to this theory should be to reform criminals. The crime is a mental disease which is caused by different anti-social elements.
Therefore, there should be mental cure of criminals instead of awarding them severe punishment as mentioned in Case Law: (Ediga Annama v. State of Andhra Pradesh).
Punishment Under The Indian Penal Code
The scheme of the punishment is laid down from Sections 53 to 75 of the Indian Penal Code out of which five sections (Sections 56, 58, 59, 61 and 62) have already been repealed. Different types of punishments, rules for their assessment and enhancement in subsequent offences, from the subject- matter of this topic. According to Section 53 of the Code the offenders are liable to the following punishments: Death, Imprisonment for life, Imprisonment which may be rigorous, simple or solitary; forfeiture of property and Fine.
2. DOCTRINE OF PROPORTIONALITY
Doctrine of proportionality is a principle that is prominently used as a ground for judicial review in cases of administrative action. The doctrine was developed in Europe and it is a vital part of the European administrative law. The doctrine essentially signifies that the punishment should not be disproportionate to the offence committed or the means that are used by administration to obtain a particular objective or result should not me more restrictive than that are required to achieve it. We live in an age where administrative authorities have been empowered to exercise discretionary powers, the position holders in the administration exercise wide discretionary powers and these powers cannot be used arbitrarily, therefore to keep a check on them, the doctrine of proportionality is used. While exercising administrative action, the body should keep in mind the purpose it seeks to obtain and the means it is using to achieve it, and if its actions deviate from the object or are discriminatory or disproportionate then they would be quashed by the court by using the doctrine of proportionality. In India the doctrine of proportionality was adopted by the Supreme Court of India in the case of Om Kumar v. Union of India. In this case the Apex court observed that Indian courts have been using this doctrine since 1950, in cases of legislations violating fundamental rights enshrined in Article 19(1) of the constitution. Although the Doctrine has been adopted in India in a very restrictive manner. The European model has not been adopted fully. The doctrine of proportionality requires a body to maintain balance between its action and purpose for which the powers have been conferred.
APPLICATION OF THE DOCTRINE
“’Proportionality’ is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision.” It is a misconception that judicial review on the basis of this doctrine is similar to appeal. In an appeal the appellate authority is authorised to adjudge the whole matter again, whereas in the case when an administrative action is challenged on the basis of doctrine of proportionality, the appellate authority only ensures that whether the procedure was right or the punishment given was the least restrictive way to fulfil its objective. In Indian legal system a restrictive approach has been taken for this doctrine as if a broader doctrine was adopted then the discretionary powers of the administration will become redundant. It will allow the judiciary to encroach upon the powers of executive. The judiciary cannot step into the shoes of executive and take actions on its behalf. Hence the doctrine adopted in India is perfect to maintain this status. The administrative tribunals deal with the matter of administrative actions, they act as primary reviewer of these actions, courts only act as secondary reviewer. This position was explained in R v. Secretary of State for the Home Department the Lord Bridge in this case held that when convention rights i.e. Fundamental Rights are invoked then the court will act as a primary reviewer and if non-Convention rights are involved, the court can only act as a secondary reviewer. This arrangement does not allow the court to go into the merits of the administrative action.
The Court will alter the punishment or measures taken by the administration only if it is “Strikingly disproportionate” to the offence or misconduct The punishment will only be reduced or reconsidered if it shocks the conscience of the court. Only in rare case the court will reduce the punishment. The Apex Court in Coimbatore District Central Coop. Bank v. Employees Assn. declared that the Doctrine of proportionality is a vital organ of judicial review as with the growth of administrative law and the wide discretionary power given to administrative authorities there is need of a doctrine which can keep a check on these powers, to prevent authorities from abusing them.
ANALYSIS OF SUPREME COURT CASE
Om Kumar v. Union of India
The Doctrine of Proportionality was adopted in Om Kumar v. Union of India. in this case the disciplinary authority had asked the SC to reconsider the quantum of punishment given to four civil servants, the court refused to re-consider the quantum of punishment as no principle of law was violated nor the punishment was “Shockingly Disproportionate” to the mischiefs committed by the concerned persons. This position of law was crystallised by the Supreme Court itself in later cases.