TABLE OF CONTENTS

ACKNOWLEDGEMENT.........................................................................................................1

DECLARATION.......................................................................................................................3

RESEARCH METHODOLOGY...............................................................................................4

AIMS AND OBJECTIVES....................................................................................................4

HYPOTHESIS.......................................................................................................................4

RESEARCH METHOD.........................................................................................................4

SOURCES OF DATA............................................................................................................4

LIMITATIONS......................................................................................................................4

INTRODUCTION......................................................................................................................5

“CRUEL AND UNUSUAL” : A SHORT HISTORY...............................................................8

PUNISHMENT AND PROPORTIONALITY........................................................................10

AMENDMENT VIII OF THE US CONSTITUTION.............................................................13

INTERPRETATION OF AMENDMENT VIII...................................................................14

RIGHTS OF PRISONERS AGAINST CRUEL AND UNUSUAL PUNISHMENT IN INDIA

..................................................................................................................................................16

PROPORTIONALITY OF PUNISHMENT AND CONSTITUTIONAL STANDARDS. 16

PUNISHMENT AND MODERN SOCIETY..........................................................................20

CONCLUSION AND SUGGESSTIONS................................................................................22

BIBLIOGRAPHY....................................................................................................................25

PRIMARY SOURCES.........................................................................................................25

SECONDARY SOURCES..................................................................................................25

1
 DECLARATION

I hereby declare that the work reported in the course of Jurisprudence –I, BA. LL.B (Hons.)
Project Report entitled “Right Against Cruel And Unusual Punishment” submitted at
Chanakya National Law University, Patna is an authentic record of my work carried out
under the supervision of Prof. Dr. Anirudh Prasad. I have not submitted this work elsewhere
for any other degree or diploma. I am fully responsible for the contents of my Project Report.

VIBHUTI SHARMA

2
 ACKNOWLEDGEMENT

Writing a project is one of the most difficult academic challenges I have ever faced. And
though this project has been presented by me, but there are many people who remained in
veil, who gave their support and helped me to complete this project. First of all I am very
grateful to my subject teacher Professor Dr. Anirudh Prasad, without the kind support of
whom and help the completion of the project would have been a herculean task for me. He
took out time from his busy schedule to help me to complete this project and suggested me
from where and how to collect data. I acknowledge my family and friends who gave their
valuable and meticulous advice which was very useful and could not be ignored in writing
the project. I want to convey most sincere thanks to my faculties for helping me throughout
the project. Thereafter, I would also like to express my gratitude towards our seniors who
played a vital role in the compilation of this research work. I would also like to express my
gratitude towards the library staff of my college which assisted me in acquiring the sources
necessary for the compilation of my project. And last, but definitely not the least, I would like
to thank the Almighty for obvious reasons.

VIBHUTI SHARMA

3
 RESEARCH METHODOLOGY

AIMS AND OBJECTIVES

The researcher has taken up the topic in order to:

1. Trace the development of understanding and application of the VIIIth Amendment of U.S
Constitution throughout history.
2. Learn about provisions and rights of a person against cruel and Unusual Punishment in
India.

HYPOTHESIS

The contemporary society is inclined towards the humanization of criminal law and more and
more attention is being paid to avoid cruel punishments.

RESEARCH METHOD

It is proposed to take in the doctrinal research of methodology.

SOURCES OF DATA

For collection of data, the researcher has relied upon primary (Acts/Statutes/Legislations,
Constitution) as well as secondary sources (books, Websites, Newspapers, Magazines,
Commentary, Digests etc.) of data.

 LIMITATIONS

The limitations of this research work is paucity of time as the research work would be
restricted to 2 weeks only.

4
 INTRODUCTION

Cruel and unusual punishment is a phrase describing punishment that is considered

unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to it.
There exists no universal definition of what is a cruel and unusual pumishment, but any
punishment that is clearly inhumane or that violates basic human dignity may be deemed
"cruel and unusual." For example, in 1995, a federal court in Massachusetts found that
inmates' rights were violated when they were held in a 150-year-old prison that lacked toilets,
and was fraught with vermin and fire hazards.1

Under the Eighth Amendment to the U.S. Constitution, individuals convicted of a crime have
the right to be free of "cruel and unusual" punishment while in jail or prison. This means that
after criminal defendants are convicted and sentenced, the Constitution still acts to guarantee
their fundamental rights concerning conditions of confinement and treatment by corrections
personnel. There are generally tests that can serve as a guide to what cruel and unusual
punishment is according to various legal textbooks in accordance with the law. These are:

1. overall acceptance in society,

2. severity (the punishment fits the crime), and

3. if the punishment is arbitrary.

The Eighth Amendment, ratified in 1791, contains just sixteen words: "Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." 2
That amendment, however, has generated enormous controversy, spawning thousands of
court cases3 and caustic reactions to U.S. Supreme Court decisions construing it. 4 Courts have
wrestled over the meaning of "excessive,"5 and jurists, lawyers, and scholars alike have
spilled gallons of ink fiercely debating how to interpret the phrase "cruel and unusual

1
criminal.findlaw.com/criminal-rights/cruel-and-unusual-punishment.html (Last Retrieved August 19, 5:37 PM)
2
U.S. CONST., amend. VIII (ratified Dec. 15, 1791)
3
Westlaw database: Eighth Amendment (Last Retrieved August 19, 5:42 PM)
4
Roper v. Simmons, 543 U.S. 551 (2005)
5
United States v. Bajakajian, 524 U.S. 321, 335 (1998)

5
punishments."6 There is relatively little legislative history from the first Congress and the
state ratification debates7 concerning the Eighth Amendment, further fueling the contentious
public debate over the text.8

The Eighth Amendment-the subject of multiple books and countless law review articles has
been described as "something of an enigma.”9 American judges rarely considered that
amendment and state-law equivalents in the decades following the ratification of the U.S. Bill
of Rights, so for generations the American people have wrestled mightily over the meaning
of the bar on "cruel and unusual punishments.'' Because what is "cruel and unusual" is largely
a subjective determination, that long-standing debate is almost certain to continue. What is
"cruel and unusual" to one Justice may not be to another, leading to a plethora of five-to-four
decisions by the U.S. Supreme Court in this area of law.10

Yet, for decades now, the Eighth Amendment has been used to strike down a variety of
prison abuses and an array of punishments other than physically torturous ones. Indeed, the
Cruel and Unusual Punishments Clause has long been used to invalidate punishments less
11
severe than death. In fact, The Supreme Court of USA is following proportionality
jurisprudence under the Cruel and Unusual Punishments Clause which appears to be
undergoing a kind of renaissance. Since 2002, the Court has held that the death penalty is an
excessive, cruel and unusual punishment for the mentally disabled, minors, and anyone
convicted of a non-homicide offense against an individual.12

The modern debate over the Cruel and Unusual Punishments Clausecentered for more than
fifty years on the U.S. Supreme Court's "evolving standards of decency" test has often
focused on the concept of proportionality. That concept was popularized in America by
Cesare Beccaria's bestselling 1760s treatise, On Crimes and Punishments, a book admired by
many of America's founders. While the founders embraced the concept of proportionality, the
Justices of the U.S. Supreme Court remain divided as to whether that concept should be
6
Michael J. Zydney Mannheirner, Cruel and Unusual Federal Punishments, 98 REV. 69 (2012)
7
John d. Bessler, cruel and unusual: the american death penalty and the Founders' eighth amendment 186 (2012)
(quoting the statements of Representatives William Loughton Smith and Samuel Livermore at the First
Congress).
8
Raoul berger : Death penalties: The Supreme Court's obstacle course (2001).
9
Michael Radalet: Facing The Death Penalty: Essays On A Cruel And Unusual Punishment (1990)
10
Graham v. Florida, 130 S. Ct. 2011 (2010)
11
Robinson v. California, 370 U.S. 660, 666-67 (1962)
12
Roper v. Simmons, 543 U.S. 551, 568 (2005)

6
relevant to Eighth Amendment jurisprudence at all, with a tug of war simultaneously taking
place as to whether the Eighth Amendment should be read in an "originalist" or a
contemporary manner.13

While the Indian Constitution does not expressly provides for the prisoners’ rights, but
Articles 14, 19 and 21 implicitly guaranteed the prisoners’ rights and the provisions of the
Prisons Act, 1894 contains the provisions for the welfare and protection of prisoners. The
Court has ruled that it can intervene with prison administration when constitutional rights or
statutory prescriptions are transgressed to the injury of the prisoner. 

13
Kennedy v. Louisiana, 554 U.S. 407, 447, 469 (2008)

7
 “CRUEL AND UNUSUAL” : A SHORT HISTORY

“Cruel and Unusual.” These exact words were first used in the English Bill of Rights 1689. 14
They were later also adopted in the United States by the Eighth Amendment to the United
States Constitution, which was later ratified in 1791.15

The Eighth Amendment was adopted, as part of the Bill of Rights, in 1791. It is almost
identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, as
their ancestors in like cases have usually done that excessive bail ought not to be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The provision was largely inspired by the case in England of Titus Oates who, after the
ascension of King James II in 1685, was tried for multiple acts of perjury that had led to
executions of many people Oates had wrongly accused. Oates was sentenced to
imprisonment, including an annual ordeal of being taken out for two days pillory plus one
day of whipping while tied to a moving cart. The Oates case eventually became a topic of the
U.S. Supreme Court's Eighth Amendment jurisprudence.16 The punishment of Oates involved
ordinary penalties collectively imposed in a barbaric, excessive and bizarre manner. The
reason why the judges in Oates' perjury case were not allowed to impose the death penalty,
unlike in the cases of those whom Oates had falsely accused, may be because such a
punishment would have deterred even honest witnesses from testifying in later cases.17

England's declaration against "cruel and unusual punishments" was approved by Parliament
in February 1689, and was read to King William III and his wife Queen Mary II on the
following day. Members of Parliament then explained in August 1689 that the Commons had
a particular regard when that declaration was first made to punishments like the one that had
been inflicted by the King's Bench against Titus Oates. Parliament then enacted the English
Bill of Rights into law in December 1689.18 Members of parliament characterized the

14
bl.uk/magna-carta/articles/britains-unwritten-constitution (Last Retrieved : August 19, 6:20 PM)
15
https://www.loc.gov/rr/program/bib/ourdocs/billofrights.html (Last Retrieved : August 19, 6:24 PM)
16
Harmelin v. Michigan, 501 U.S. 957
17
Chitty, Joseph: A Practical Treatise on the Criminal Law, (page 293)
18
Claus, Laurence. "The Anti-Discrimination Eighth Amendment", Harvard Journal of Law and Public Policy,
Vol. 28 (2004)

8
punishment in the Oates case as not just "barbarous" and "inhuman" but also "extravagant"
and "exorbitant."19

There is some scholarly dispute about whom the clause intended to limit 20. In England, the
"cruel and unusual punishments" clause may have been a limitation on the discretion of
judges, requiring them to adhere to precedent. According to the great treatise of the 1760s by
William Blackstone entitled Commentaries on the Laws of England : “However unlimited the
power of the court may seem, it is far from being wholly arbitrary; but its discretion is
regulated by law. For the bill of rights has particularly declared, that excessive fines ought
not to be imposed, nor cruel and unusual punishments inflicted, which had a retrospect to
some unprecedented proceedings in the court of king's bench, in the reign of king James the
second.”21

Virginia adopted this provision of the English Bill of Rights in the Virginia Declaration of
Rights of 1776, and the Virginia convention that ratified the U.S. Constitution recommended
in 1788 that this language also be included in the Constitution. 22 Virginians such as George
Mason and Patrick Henry wanted to ensure that this restriction would also be applied as a
limitation on Congress. Mason warned that, otherwise, Congress may "inflict unusual and
severe punishments."23 Henry emphasized that Congress should not be allowed to depart from
precedent as that they would not admit of tortures, or cruel and barbarous punishment. But
Congress may introduce the practice of the civil law, in preference to that of the common
law. They may introduce the practice of France, Spain, and Germany. 24 Ultimately, Henry
and Mason prevailed, and the Eighth Amendment was adopted. James Madison changed
"ought" to "shall", when he proposed the amendment to Congress in 1789.25

19
John F. Stinneford, "Rethinking Proportionality under the Cruel and Unusual Punishments Clause," 97
Virginia Law Review 899, 926–61 (2011)
20
Donelson, Raff. Who are the Punishers? UMKC Law Review 86(2): 259-294 (2017)
21
Blackstone, William. Commentaries (1769)
22
Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights, page 170
23
Patterson, John. The Bill of Rights: Politics, Religion, and the Quest for Justice, page 84 (2004).
24
Debate in Virginia Ratifying Convention" (June 16, 1788), in The Founders' Constitution
25
Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights, page 170
(Rowman & Littlefield 1992.

9
 PUNISHMENT AND PROPORTIONALITY

Proportionality is a general principle in criminal law used to convey the idea that the severity
of the punishment of an offender should fit the seriousness of the crime. 26 The concept of
proportionality is used as a criterion of fairness and justice in statutory interpretation
processes, especially in constitutional law, as a logical method to assist in discerning the
correct balance between the sanction or punishment imposed and the severity of the
prohibited act. Under international humanitarian law governing the legal use of force in an
armed conflict, proportionality and distinction are important factors in assessing military
necessity.27

Punishment, no doubt serves many motives. It can deter crime and prevent the offender from
committing further crimes. Punishment can even rehabilitate some criminals, if it is not
capital. It can satisfy a victim’s longing for revenge, or his relatives’ desire to avenge.
Punishment can also be used as a lever to gain restitution, recompense for some of the
damage caused by the crime. For these reasons, the issue of punishment is, and always has
been, of vital concern to civilized people. They want to know the effects of punishment and
effective ways of carrying it out.28

The Supreme Court of The United States is following a proportionality jurisprudence under
the Cruel and Unusual Punishments Clause, which appears to be undergoing a kind of
renaissance. Since 2002, the Court has held that the death penalty is an excessive and
therefore cruel and unusual punishment for the mentally disabled, minors, and anyone
convicted of a non-homicide offense against an individual. In the 2009 Term, the Court held
that a life sentence without possibility of parole is an excessive punishment for juvenile non-
homicide offenders. These decisions have grabbed headlines and caused a great flurry of
activity on television and in the blogosphere. They have been greeted with fanfare by those
who wish to see the courts take a more active role in protecting the rights of people subjected
to criminal punishment.29
26
ilr.law.uiowa.edu/print/volume-100-issue-3/proportionality-and-punishment/ (Last Retrieved: August 19,
06:43 PM)
27
Moreno-Ocampo: Allegations concerning War Crimes,(2006), pp. 4–5
28
mises.org/library/punishment-and-proportionality-estoppel-approach (Last Retrieved: August 19, 06:57 PM)
29
virginialawreview.org/sites/virginialawreview.org/files/899.pdf (Last Retrieved: August 19, 07:11 PM)

10
The institution of punishment is desirable for various and well-rehearsed reasons, including
retribution, deterrence, incapacitation, and rehabilitation. The purpose of the Eighth
Amendment ban on "cruel and unusual punishments”, however, is to place constraints on the
ways in which we pursue these ends. Therefore, a reading of the proportionality limitation in
the Eighth Amendment that boils down to the position that any punishment is constitutionally
permissible as long as it satisfies an accepted purpose is at odds with the general logic of the
Eighth Amendment.30

With context to India, The concept of proportionality is not alien in view of the fundamental
rights guaranteed in Part-III of the Constitution of India. Since 1950 the principle of
proportionality was applied time and again to examine the validity of administrative action
taking recourse to the provisions of Articles 14, 19 and 21 of the Constitution of India. Chief
Justice of India Patanjali Sastri, as His Lordship back in the day, observed in the matter of
The State of Madras vs. V.G. Row31 observed that the court should bear in mind the right
alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent
and urgency of the evil sought to be remedied thereby, the disproportion of imposition and
the prevailing condition at that time.

30
Ibid.
31
AIR 1952 SC 196

11
In fact, the proportionality principle has now become entrenched in our jurisprudence. In
Bachan Singh vs. State of Punjab32, it was held that this principle is implicit in Articles 14, 19
and 21 of the Constitution. In Chairman, All India Railway Recruitment Board and anr. vs.
K.Shyam Kumar and Ors33, it was held : “Proportionality, requires the Court to judge whether
action taken was really needed as well as whether it was within the range of courses of action
which could reasonably be followed. Proportionality is more concerned with the aims and
intention of the decision maker.”34

32
(1982) 3 SCC 24
33
(2010) 6 SCC 614
34
www.judis.nic.in (Last retrieved, August 19, 07:26 PM)

 
12
 AMENDMENT VIII OF THE US CONSTITUTION

“Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual
punishments inflicted.”

The Eighth Amendment (Amendment VIII) of the United States Constitution prohibits the
federal, state, and local governments of the United States, or any other government, or any
corporation, private enterprise, group, or individual, from imposing excessive bail, excessive
fines, or cruel and unusual punishments, in any part of the US, on US property (US embassy),
or against any US citizen, or any resident of the US. This amendment was adopted on
December 15, 1791, along with the rest of the United States Bill of Rights. 35 The phrases in
this amendment originated in the English Bill of Rights of 1689.

The prohibition against cruel and unusual punishments has led courts to hold that the
Constitution totally prohibits certain kinds of punishment, such as drawing and quartering.
Under the Cruel and Unusual Punishment Clause, the Supreme Court has struck down the
application of capital punishment in some instances, but capital punishment is still permitted
in some cases where the defendant is convicted of murder.

35
"Bill of Rights: Primary Documents of American History". Library of Congress. (Last Retrieved, August 19,
07:40 PM)

13
The Supreme Court has held that the Excessive Fines Clause prohibits fines that are "so
grossly excessive as to amount to a deprivation of property without due process of law." The
Court struck down a fine as excessive for the first time in United States v. Bajakajian. 36
Under the Excessive Bail Clause, the Supreme Court has held that the federal government
cannot set bail at "a figure higher than is reasonably calculated" to ensure the defendant's
appearance at trial.

The Supreme Court has ruled that the Cruel and Unusual Punishment Clause applies to the
states as well as to the federal government. On February 20, 2019, the Supreme Court ruled
unanimously in Timbs v. Indiana37 that the Excessive Fines Clause also applies to the states.

INTERPRETATION OF AMENDMENT VIII

While the U.S. Constitution is silent on what precisely constitutes “excessive,” the general
rule has been to allow fines that do not violate due process by resulting in a loss of property.
Absent an apparent abuse of discretion in imposing fines, appeals to fines are not generally
reversed. With regard to bail, individual rights are tempered by the interests of the legal
system and society at large. Thus, the seriousness of the crime, the evidence against the
accused, and the flight risk of the accused may be taken into consideration when determining
amounts. Reasonableness and proportionality are generally taken into account when fixing
bail amounts for criminal infractions.38

The Constitution is likewise silent on what punishment is deemed “cruel” and “unusual,” and
it has been left for the courts to determine precisely what is and what is not permissible under
the law. The undergirding principle is that the punishment should be proportional to the
crime. Is capital punishment permissible? May a teenager be sentenced to death? May a
juvenile be sentenced to life in prison without the possibility of parole? Should someone with
a mental disability be subject to the death penalty? These are but a few of the questions that
the Supreme Court has been asked to consider. Because of the subjective nature of what
constitutes a cruel or unusual punishment and the clear, direct, and tangible losses of liberty
and even life associated with it, challenges to statutes on Eighth Amendment grounds are

36
524 U.S. 321 (1998)
37
586 U.S.(2019)
38
britannica.com/topic/Eighth-Amendment (Last Retrieved: August 19, 07:51 PM)

14
plentiful, and the ideological complexion of the Supreme Court has influenced what it will or
will not permit.

When the Eighth Amendment was ratified in the late 18th century, it was understood that
barbaric punishments and those wholly disproportionate to the crime or to societal tolerance
would be prohibited. Still, what was acceptable in late 18th-century America was not
necessarily so in subsequent periods. In 1791, for example, larceny, burglary, and even
forgery could in some cases result in hanging. Less than a century later, however, in Whitten
v. Georgia,39 the Supreme Court put limits on what was constitutionally permissible, holding
that the “cruel and unusual” clause was “intended to prohibit the barbarities of quartering,
hanging in chains, castration, etc.” Similarly when the electric chair was introduced as a
humane method of execution, the Supreme Court held it constitutional because death was
“instantaneous” and “painless,” unlike the lingering deaths that resulted from “burning at the
stake, crucifixion, breaking on the wheel, or the like.”40

In general, the Supreme Court has held that the “due process” clauses of the Fifth and
Fourteenth amendments generally allow that a convicted defendant’s life may be taken as
long as the defendant’s rights are not sacrificed. Whether or not capital punishment itself
could constitute a cruel and unusual punishment was tested in the 1970s. In a 5–4 ruling in
Furman v. Georgia41, the Supreme Court consolidated three cases, one (Furman) in which a
gun accidentally went off while the defendant was burglarizing a home and two (Jackson v.
Georgia and Branch v. Texas) in which the death penalty for rape was challenged. The
Supreme Court held that the death sentences imposed in these three cases violated the
Constitution because they provided too much discretion in meting out death sentences; it
further stipulated that the imposition of the death penalty in general had been “arbitrary” and
“capricious” and thus invalidated capital punishment until states could redress this. Over the
next several years, state legislatures enacted different methods that they hoped would pass
constitutional muster; by 1976 one method, so-called guided discretion, was held
constitutional by the Supreme Court, but a second, mandatory capital punishment, was
deemed unconstitutional.

39
435 U.S. 223 (1978)
40
Execution of William Kemmler, 1980.
41
408 U.S. 238 (1972)

15
 RIGHTS OF PRISONERS AGAINST CRUEL AND UNUSUAL
PUNISHMENT IN INDIA

A prisoner also known as an inmate is anyone who against their will is deprived of liberty.
This liberty can be deprived by forceful restrain or confinement. Prisoners’ rights deal with
the rights of the inmates while behind bars. Prisoners have basic legal rights that can't be
taken away from them.42 The basic rights include right to food and water, right to have an
attorney to defend himself, protection from torture, violence and racial harassment.

Under Indian Law, the constitution safeguards the rights of the prisoners against cruel and
unusual punishments. The basic rights are guaranteed in the part III of Indian Constitution are
available to prisoners; because a prisoner is treated as a person in prison. 43 Further, Article 14
contemplated that like should be treated alike, and also provided the concept of reasonable
classification. Moreover, constitution provides various other provisions though cannot
directly be called as prisoner’s rights but may be relevant. Among them are Article 20(1), (2),
and Article 21 and Article 22 (4-7).

PROPORTIONALITY OF PUNISHMENT AND CONSTITUTIONAL STANDARDS

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 Nadu44, while adjudicating on an administrative law matter,
considered that mere ‘arbitrariness’ is sufficient to constitute an Article 1445 violation.

Article 21 provides that “No person shall be deprived of his life or person liberty except
according to procedure established by law”.46 A perfunctory reading of this clause suggests
42
legalservicesindia.com (Last Retrieved: August 19, 08:07 PM)
43
Mudasir A Bhat: Prison Laws In India: A socio-legal study.
44
1974 AIR 555, 1974 SCR (2) 348
45
‘Equality before law’, Article 14, Constitution of India.
46
Article 21, The Constitution of India.

16
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 47, 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.

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.48 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 49, 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, it is contended that proportionality is a relevant consideration when reviewing law
that deprives life or personal liberty.

47
 1 SCR 778,1975
48
AIR 1951 Mad 147
49
AIR 211, 1950

17
Drawing upon this precedent and Maneka Gandhi, the case of Mithu v. State of Punjab 50
sought to apply the principle to a penal provision in a criminal statute. Section 303 51 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 Punjab52, would be disproportionately oppressive; for these reasons, the impugned
section was held to be in violation of article 21. J. Chandrachud 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.53 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. It is altogether another
50
AIR 1983 SC 47
51
Section 303. Indian Penal Code, 1860.
52
AIR 1931 PAT 96
53
AIR 1967 SC 1

18
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. In the case of Kharak
Singh v. State of U.P.54, where the Court expounded the connotation of the word ‘life’ under
Article 21, “Something more than mere animal existence. The inhibition against its
deprivation extends to all those limbs and faculties by which life is enjoyed. The provision
equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting
out of an eye, or the destruction of any other organ of the body through which the soul
communicates with the outer world.

Apart from the Constitutional rights there are also statutory rights available to the prisoners.
The Prisons Act, 1894 enacted for the functioning of the prisons, provides certain statutory
rights to the prisoners. Section 4 of the Prisons Act provides for accommodation and sanitary
conditions for prisoners. Section 7 provides for shelter and safe custody of the excess number
of prisoners who cannot be safely kept in any prison. Section 24(2) provides for examination
of prisoners by qualified medical officers. Section 31 provides for separation of prisoners
containing female and male prisoners, civil and criminal prisoners and convicted and under
trial prisoners. Section 33 provides that every civil and un-convicted prisoner, unable to
provide himself with sufficient clothing and bedding, shall be supplied with such clothing and
bedding. Section 35 provides for treatment of under trials, civil prisoners, parole and
temporary release of prisoners. Section 37 provides that a prisoner must be provided with a
medical officer if he is in need or if he appears out of health in mind or body.55

54
AIR 1295, 1963.
55
indiacode.nic.in/bitstream/123456789/2325/1/A1894-9.pdf (Last Retrieved: 19th August, 09:10 PM)

19
 PUNISHMENT AND MODERN SOCIETY

"An eye for an eye will turn the whole world blind"

- Mahatma Gandhi

This line by Mahatma Gandhi is the thrust of the Reformative Theory of Punishment. The
most recent and the most humane of all theories are based on the principle of reforming the
legal offenders through individual treatment. Not looking to criminals as inhuman this theory
puts forward the changing nature of the modern society where it presently looks into the fact
that all other theories have failed to put forward any such stable theory, which would prevent
the occurrence of further crime56 Reform in the deterrent sense implied that through being
punished the offender recognized his guilt and wished to change. This theory aims at
rehabilitating the offender to the norms of the society i.e. into law-abiding member. This
theory condemns all kinds of corporal punishments .57 Though this theory works stupendously
for the correction of juveniles and first time criminals, but in the case of a
hardened criminal this theory may not work with the effectiveness.58

In the era of right conscious society where the rights are given much more preferences, the
concept of open jails are gaining momentum. Recently, In India, it was brought to the notice
of Supreme Court that there are 63 open prisons in different part of the country, but the
existing capacity is not being fully utilised. The prisons are no longer seen as a place to create
deterrence but are seen as a place of rehabilitation and so the concept of open-jails plays a
crucial role. It is based on the idea of socialization of the workers with the outer world so that
they can rehabilitate. Such prisoners who are not considered a threat to the society are shifted
to such jails. In open jail, the prisoners live with their families, they are allowed to find
employment and can move out of the prison and work and can come back within the
stipulated time. The rules of these jails are not stringent as compared to closed jails and are
also cheaper to closed jails.

56
Sue Rex & Michel Trony: Reform and Punishment, Willian Publishing.
57
Ratan Lal v State Of Rajasthan and Ors; 2007 CriLJ 2467 
58
Ibid.

20
Even the United States in 2015 adopted Standard Minimum Rules for treatment of Prisoners
(Popularly known as Nelson Mandela Rules) which has recognized, inter alia, the rights of
prisoners to have contact the outside world. Not only this, While in United States, the right to
vote for prisoners had resurfaced after a nationwide strike by prisoners in 2018. 59 This is
again, just a reflection of how the contemporary society is more concerned about the rights of
the prisoners. And their approach towards them is becoming more and more humane in
dealing with them. Not looking to criminals as inhuman puts forward the changing nature of
the modern society where it presently looks into the fact that all other theories have failed to
put forward any such stable theory, which would prevent the occurrence of further crimes. 60
Though it may be true that there has been a greater onset of crimes today than it was earlier,
but it may also be argued that many of the criminals are also getting reformed and leading a
law-abiding life all-together. Reformative techniques are much close to the deterrent
techniques.
Prisoners don’t cease to be human beings and Supreme Court has reiterated this position in
many cases and have recognised rights of the prisoners, so that they do not suffer and a better
rehabilitative surrounding be given to them to improve and become better human being
during the course of jail term. The governments of state and centre have the responsibility to
not only provide infrastructure, man-power and humane conditions for rehabilitation and
rightful survival of prisoners, but also to provide information of rights to prisoners at the right
time, to avoid possible, potential and excessive abuse of prisoners by powerful inside the
prisons.61 Furthermore, Reformative approach to punishment should be the object
of criminal law, in order to promote rehabilitation without offending community conscience
and to secure social justice.62 But then again, it certainly does not mean that modern society
shows no deterrence. In the case of, Rajnath Chauhan v State of Assam, 63 the court held that
'Though an eye for an eye, a tooth for a tooth and death for death is not true in civilized
society but it is equally true that when a man becomes beast and a menace to society he can
be deprived of his life according to the procedure established by law.”

59
nytimes.com/2019/04/11/opinion/voting-prisoners-felon-disenfranchisement.html (Last Retrieved, August 19,
09:19 PM)
60
Andrew Ashworth, "Principles of Criminal Law" 5th edn., 2006, Oxford University Press
61
Hall Jerome, 'The Aims Of Criminal Law'
62
Narottam Singh v. State of Punjab, AIR 1978 SC 1542.
63
IND LAW SC 390, 2000

21
 CONCLUSION AND SUGGESSTIONS

Which punishments are cruel and unusual? Admittedly, the answer is fraught with some
uncertainty. The seventeenth century watched blinding, burning, boiling, and scourging while
sipping tea. But the relevant question here is what was okay in the 17 th Century, is it still
okay? Thus, a punishment which is not considered cruel in one era, may be considered cruel
in the next era due to the fact that personal scales of value change from generation to
generation. In this field it must be recognized that "thinking makes it so." There are, however,
certain fundamental conclusions connected with the punishment clause of the Eighth
Amendment which should be pointed out. In general, the Eighth Amendment restricts the
form of punishment rather than its duration. 64 As a result, it has long been a precept of justice
that the punishment for crime should be graduated and proportioned to the offense. 65 To
determine if there is a proper proportion between the punishment and the offense, the court
looks either to adjudicated cases and to whether the penalty shocks the moral sense of
reasonable men as to what is right and proper under the circumstances.' If a punishment is
manifestly out of all proportion to the offense, or has long been disused because of its cruelty
so as to have become "unusual," then the penalty will probably be held unconstitutional under
the Eighth Amendment.66

Within the pale of due process, the legislature has the power to define crimes and fix
punishments.67 Consequently, any statutory punishment based on the common law probably
would not be construed as cruel or unusual in the Constitutional sense; and "probably any
new statutory offense may be punished to the extent and in the mode permitted by the
common law for offenses of similar nature."68 It has been said that it would be an
extraordinary case, indeed, in which the judgment of the legislature would be brought into
question.' 69

Today, there is undoubtedly agreement on the fact that death by crucifixion, breaking at the
wheel, burning at the stake, and the like are cruel and unusual punishments. Why? Simply
64
Kistler v. State, 190 Ind. 149, 129 N. E. 625 (1921).
65
Weems v. U. S., 217 U. S. 349 (1910).
66
48 W. Va, L. Q. 63 (1941).
67
State v. Woodard, 68 W. Va. 66, 69 S. E. 385 (1910)
68
Cooley, Treatise on the Constitutional Limitations, (7th ed., 1903) p. 472
69
8 Cooley, General Principles of Constitutional Law in the United States of America, (2d ed., 1891) p. 307.

22
because they involve torture or lingering death; they imply something barbarous, something
brutal, and something more than the ending of life. The death penalty is not forbidden by the
Eighth Amendment. But it appears that loss of life must be accomplished through relatively
instantaneous means. Hence, death by hanging70, shooting71, electrocution72, or lethal gas73 are
not forbidden by the Constitution of the United States.

A decent respect for the body, and a keen appreciation of man as an individual and social
being must be kept in mind.74

And although the society now seems to be inclining towards the modern and humanitarian
approach, it cannot be ignored that the present time we still have the punishing propensity of
human beings conventionalized and ritualized by organized society, but are engaged in
extending the application of scientific methods through case histories and social service
techniques. Resistance to this comes because of the dominance of the punishing class. If we
are to advance we must condition the punishing propensity of individuals and must substitute
for the punishing class a professional group interested in social sanitation and individual
treatment. The history of law shows that crimes have been "more effectively prevented by the
certainty, than by the severity of punishment. 75 To ascertain, therefore, what is prohibited by
the provision against cruel and unusual punishments in the Eighth Amendment, one must
consider:
1. Whether the punishment has ever been adjudicated as cruel and unusual when applied as a
penalty to the same or a similar offense;
2. Whether the form of the punishment is so manifestly cruel as to shock the moral sense of
reasonable men;
3. Whether the penalty is properly proportioned to the offense a. in form b. in duration;
4. Whether the penalty is similar to the common-law penalty for the same or similar offense.

Blackstone pointed out that as atonement for crime must be left to the just determination of
the Supreme Being, the final cause of human punishment is as a precaution against future
70
Dutton v. State, 123 Md. 373, 91 Atl. 417 (1914).
71
Wilkerson v. Utah, 99 U. S. 130 (1878).
72
McElvaine v. Brush, 142 U. S. 155 (1891). 1
73
State v. Gee ion, 46 Nev. 418, 211 Pac. 676 (1923).
74
State v. Feilen, 70 Wash. 65, 126 Pac. 75 (1912).
75
Blackstone's Commentaries, p.17.

23
offenses of the same kind."But he did not forget to add that "though the end of punishment is
to deter men from offending, it never can follow from thence, that it is lawful to deter them at
any rate, and by any means.76"

76
Ibid.

24
 BIBLIOGRAPHY

PRIMARY SOURCES

1. Constitution of the United States.

2. Bill of Rights: Primary Documents of American History,1689.
3. Constitution of India.
4. Indian Penal Code, 1860.
5. Prison’s Act, 1894

SECONDARY SOURCES

 BOOKS
1. Michael L. Radelet, Facing The Death Penalty, 1990.
2. Raoul berger, Death penalties: The Supreme Court's obstacle course, 2001.
3. Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of
Rights, 1977.
4. Sue Rex & Michel Trony, Reform and Punishment, 2002.
5. Moreno-Ocampo, Allegations concerning War Crimes, 2006.
6. Cooley, Treatise on the Constitutional Limitations, 1903.
7. Andrew Ashworth, Principles of Criminal Law, 2006.

 JOURNALS
1. John F. Stinneford, "Rethinking Proportionality under the Cruel and Unusual
Punishments Clause," 97 Virginia Law Review 899, 926–61, 2011.
2. Donelson, Raff. Who are the Punishers? UMKC Law Review 86(2): 259-294, 2017.
3. Blackstone, William. Commentaries, 1769.
4. Claus, Laurence. "The Anti-Discrimination Eighth Amendment", Harvard Journal of
Law and Public Policy, Vol. 28, 2004

 WEBSITES

1. indiacode.nic.in/bitstream
2. legalservicesindia.com
3. Westlaw database: Eighth Amendment
4. uk/magna-carta/articles/britains-unwritten-constitution

25
5. www.judis.nic.in
6. virginialawreview.org

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