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PUNISHMENT

Table of Contents

QUESTION BANK

Q.1 Define Punishment. What are the different theories of punishment?

Q.2 What is punishment? What are the different types of punishment?

Q.3 What are the arguments in favour of and against capital punishment?

Q.4 Distinguish between ‘Reformative and deterrent theories of punishments.

Q.5. What are the objects of punishment?

Q.6 What are the main theories of punishment? Explain the validity of each theory of punishment in a modern context.

Q.7 Define ‘solitary confinement”. What are its requirements?

Q.8 Write a note on the sentencing process in India.

SHORT NOTES

Q.1 Reformative theory.

Q.2 Capital Punishment.

I] DEFINITION OF PUNISHMENT:-

Punishment is one of the oldest methods of controlling crime and criminality. It is the means of social control. The purpose of the whole criminal justice system is to punish the criminal. The term ‘punishment’ is defined as follows-

1) According to R.C.Nigam:-

“Punishment is the suffering in the person (physical) or property, inflicted by the society on the offender who has been adjudged the guilty of a crime under the law”.

2) H.L.A Hart, with Mr Bean and Professor Flew, has defined ‘punishment’ in terms of five elements-

(i) It must involve pain or other consequences normally considered unpleasant.

(ii) It must be for an offence against legal rules.

(iii) It must be inflicted on an actual or supposed offender for his offence.

(iv) It must be intentionally administrated by a human being other than the offender.

(v) It must be imposed and administered by an authority constituted by a legal

a system against which the offence is committed.

According to Taft, “punishment is conscious infliction upon the disturbing individual of an undesired experience”.

Thus, from the above definitions, it can be said that the punishment is the infliction of some sort of pain on the offender for his violation of the law. Punishment is an instrument of public justice. The state inflicts punishment through courts.

However, the amount of punishment is not uniform in all cases. It changes from time to time and from place to place. It depends upon the value that society preserves. Therefore, adultery is an offence in India, which is not so in England. Punishment for any offence in India is not as severe as in Arabic countries. Punishments also vary according to the nature of the offence, intention, age, mental condition of the offender and the circumstances in which the offence is committed. For instance, a boy of ten years will be treated differently from a grown-up man for committing the same offence. Likewise, a person of an unsound mind would be treated differently from a man of a sound mind for the commission of murder. Similarly, for habitual offenders, professional offenders will be punished more severely than first-time offenders.

II] THEORIES OF PUNISHMENT:-

Earlier modes of punishment were deterrents in nature. Deterrent punishment is the infliction of severe punishment with the object of deterring criminal as well as potential criminals from committing a crime.

1) Deterrent Theory[1]:-

According to this theory, the object of punishment is not only to prevent the wrongdoer from doing wrong again but also to make him an example to other persons with criminal tendencies so that the others will also deter him from committing a crime in the future. Therefore, the deterrent theory is based on general (i.e., to the other potential criminals in society) and particular (i.e., particular criminal) deterrence.

Instances or kinds of such punishments may be death, hanging in public, stoning till death, whipping in public, maiming, etc.,

According to Justice Brunet– “thief is not punished for having stolen a horse but so that others horses may not be stolen”.

Jermy Bentham justifies this theory by saying that a man would be deterred from committing a crime if the punishment applied was swift, certain and severe. He bases his theory on the principle of hedonism (i.e. man’s tendency to calculate the pain and pleasure he gets by doing any crime; if pain or suffering is more than the pain he is going to get, he deters or fears committing a crime)

Criticism—However, this theory has been criticised on several grounds, such as its ineffectiveness in reducing crimes, excessive harshness of punishment, which creates sympathy in the public’s minds about criminals, and its likely hardening of the criminal instead of creating fear of the law.

2) Preventive Theory[2]:-

According to preventive theory, punishment aims to prevent future crimes in society. The theory believes that the goal of punishment is restraint. It is based on the proposition “not to avenge crime but to prevent it.”

Thus, according to this theory, the object of the punishment is preventing or disabling. The offenders are disabled from repeating the crime by punishment like death, exile, imprisonment, etc.

It has been criticised that preventive punishment has the undesirable effect of hardening first-time offenders or juvenile offenders by associating them with hardened criminals.

3) Retributive Theory[3]:-

In primitive societies, the punishment was mainly retributive. The victim was allowed to take revenge (retribution) against a wrongdoer. The principle of ‘an eye for an eye, and a tooth for a tooth’ was the basis of the criminal justice system.

According to this theory, the offender should receive as much pain and suffering as he inflicts on the victim. Punishment should restore social balance and provide a sense of satisfaction to the victim. This theory suggests that evil should be returned for evil. The theory believes that punishment is an end in itself.

According to this theory, a criminal deserves to suffer punishment. In modern times, the satisfaction of an individual victim’s revenge is achieved by inflicting punishment on the offender by the state. Thus, this theory gratifies the instinct of revenge, which exists in the individual wronged and society.

However, this theory has been criticised on the grounds that punishment is not a remedy for a wrong. On the contrary, it merely aggravates the mischief. Punishment in itself is evil and cannot be justified if it does not yield better results.

4) Reformative Theory[4]:-

According to this theory, the object of punishment is to reform the criminal. This object can be achieved by convincing the futility of crime (i.e. crime doesn’t pay) and by breaking the habit that the criminal has formed of continuing crime. Reformation may be defined as “The effort to restore an offender in a society as a better and wise man and a good citizen.”

According to the theory, a criminal is treated as a patient, and his tendency to commit a crime is a disease which can be cured by the well-designed administration of medicine to punishment. It treats punishment as medicine to reform the criminal. For this purpose, leniency to severe punishments is taken into consideration. This theory suggests giving some vocational training in art, craft or industry in jail so the criminal may be able to lead a good life and become a respectable citizen after his release.

While awarding the punishment, the judge should consider factors such as the offender’s character and age, early breeding, family background, education, and environment, the circumstances under which he committed a crime, and the motive that prompted him to engage in criminal activities.

In Sunil Batra V/s Delhi Administration

Facts letter was sent by a prisoner to the Supreme Court for brutal assaults by a Head Warden of jail on another prisoner. The court treated the letter as a writ of Habeas Corpus.

Justice Krishna Iyer observed: –

The object of the punishment is to correct the wrongdoer and not wreak vengeance on him. Punishment is no longer regarded as ‘retributive’ or ‘deterrent’ but as reformative or ‘rehabilitative.’

Mahatma Gandhi states, “Hate the sin, but not the sinner”. The offender is treated as a patient, and punishment is to be administered to cure his disease.”

Criticisms on the following grounds are levelled against this theory, viz-

Firstly, Reformists are concerned solely with the criminal, but they do not consider the victim’s plight. Thus, if a young girl is raped, they will follow the rapist and take care of him to cause reformation in him, but what about the suffering of raped girl and her family? In short, a reformist shows sympathy for the criminal but not for the victim.

Secondly, the importance of the deterrent theory cannot be forgotten. A reformation is an important object of punishment, but it is not a sole end in itself.

Thirdly, Reformative treatment is more likely to succeed in an educated and orderly society than in uneducated and underdeveloped communities.

Fourthly, Reformation costs more to the state funds.

Fifthly, the success of reformative treatment is doubtful.

In conclusion, only one theory of punishment will not cause proper effect unless it is administered with any other or the rest of the theories.

III] Kinds of Punishments under IPC[5]: –

Various forms of punishment have evolved and been applied throughout the ages. Torture, sadistic forms of executing death sentences and all sorts of cruelties in person were the distinguishing features of the penal philosophy all over the world until recent times. The common modes of punishment prevalent in different parts of the world included corporal punishments such as fogging[6], mutilation[7], branding, pillories, chaining prisoners, stoning[8] etc.,

However, the general penal law of India, the Indian Penal Code, provides five kinds of punishments.

Chap. III of the I.P.C. from Ss. 53 to 75 deal with the general provisions relating to punishments. The Code has provided a graded punishment system to suit different crime categories. S. 53 provides for five types of punishments that can be awarded to a man convicted of an offence under I.P.C. viz-

Death[9]
Imprisonment for life[10]
Imprisonment with or without hard work[11]
Forfeiture of property[12]
Fine[13]

Out of these five kinds of punishments, first, three concern the offender’s body, whereas the latter two concern his wealth or property. The Code gives wide discretionary power to courts to award any punishment within the maximum limit prescribed for an offence. The Code generally does not provide a minimum limit of punishment to be imposed but lays down the maximum limit beyond which the court cannot award punishment. Therefore, the Code provides the sentence as “shall be punished with imprisonment which may extend to…. years” or “with fine which may extend to … Rupees.”

While exercising its discretion, in awarding punishment, the court shall take into consideration the nature of the offence, the circumstance in which it was committed, the degree of deliberation, the age, sex, character and antecedent of the offender, i.e. whether he is first-time offender, or a habitual or a professional offender etc.,

In State of U P V/s M.K. Anthor

Facts: – The accused killed his ailing wife as he could not provide the money for her operation. He also killed his two children, as there would be no one to care for them after their mother. However, the offence was committed out of poverty, not for lust, vengeance or gain.

Supreme Court held: – that life imprisonment and not capital punishment was the appropriate sentence.

A) Death Sentence (Capital Punishment:-

1) Introduction:-

Various forms of punishment have evolved and been applied throughout the ages. However, torture, sadistic forms of executing death sentences and all sorts of cruelties in prison were the distinguishing features of the penal philosophy all over the world until recent times.

In it, capital or death punishment has been debated for ages, even from the time of Lord Buddha, when principles of Ahinsa were prevalent. There are arguments for and against the retention of capital punishment. There are merits and demerits to capital retention (death punishment).

2) Death (Capital) Punishment under IPC:-

The sentence of death is the most extreme punishment provided under the Code. This punishment occupies the topmost position among the grades of punishments. It is imposed in extreme and grave cases. I.P.C. provides death punishment as an alternative in the following offences, viz-

Waging war[14] against the Government of India (S.121).
Abetting mutiny, actually committed[15] (S. 132).
Giving and fabricating false evidence upon which an innocent person suffers death[16] (S.194).
Murder (S.302).
Abetment of suicide of a minor, insane or intoxicated person[17] (S.305).
Attempt to murder by a person under sentence of imprisonment for life if hurt is caused[18] (S.307).
Dacoity is accompanied by murder[19] (S. 396).

In Mohd. Arif, Sunder etc., v. State etc., (Laws (SC) 2014-9-9)

The Supreme Court observed that– the extinguishment of the life of a citizen by the State as a punishment for an offence is still sanctioned by the law in the country. Art. 21 recognises the State’s authority to deprive a person of his life. No doubt, such authority is circumscribed by many constitutional limits.

However, there appears to be a great controversy for ages among judges, lawyers, administrators and social reformists. They question the utility of the death punishment. The recent execution of Afzal Guru for an attack on parliament and of Tiger Memon for bomb blasts in Mumbai in 1993 attracted great debate and media attention on capital punishment. In most developed countries, the death penalty has been abolished from the penal statutes. We will discuss some arguments for and against the retention of capital punishment.

3) Arguments in favour of Capital Punishment:-

The supporters of capital punishment base their claim on the following

arguments.

a) Deterrence[20]:-

The prima facie penalty of death has a deterrent effect on prospective offenders more than any other kind of punishment.

b) Elimination of dangerous criminals:-

Death is the only punishment to eliminate dangerous and habitual criminals from society permanently.

c) Reduce expenditure of State:-

Capital punishment reduces the unwanted increase of crowds in jail and increases the expenditure of the state at the cost of citizens.

d) Justice to Victim:-

Capital punishment eliminates offenders, assuaging the victim’s family’s vengeance and thereby rendering them full justice. The recently constituted Malimath Committee on ‘Reforms of Criminal Justice System’ has also suggested making the criminal justice system more victim-oriented by participating in a proceeding and compensating the victim.

e) Sense of protection:-

Elimination of offenders provides a sense of protection and justice in society

f) Constitutionally valid:-

Capital punishment is held constitutionally valid by the Supreme Court in Bachan Singh V/s State of Punjab

g) Pardon or Commutation[21]:-

S.54 of the I.P.C. empowers the appropriate government, i.e., Central or State, to commute the death sentence to any other punishment.

Moreover, the constitution of India invested the Presidents of India and the Governors of the states under Art. 72 and 161, respectively, with the power to grant pardon (absolute or conditional), reprieve (temporary suspension of punishment), respite (postpone punishment to a future date), remission (to reduce the amount of punishment), or suspend, remit or commute the sentence of any person convicted of any offence. These powers are purely executive in nature, and the judiciary has nothing to do with it. However, the Governor can not grant a complete pardon for the death sentence.

h) ‘Rarest of Rare case.’[22]:-

In India, capital punishment is not awarded in all offences wherein capital punishment is provided as an alternative punishment but only in the ‘rarest of rare cases’.

The Supreme Court evolved the rarest of the rare case doctrine in Bachan Singh’s case. Therefore, in every murder case, death punishment is not awarded. Still, only in the rarest of rare cases, e.g. Aanjana Gavit’s case decided in Kolhapur, wherein the accused woman with her two daughters, having herself a woman, used several children to commit pickpocketing and eventually killed them. High Court of Mumbai has recently confirmed the punishment of death for the other two female accused (Anjanabai has already died). In the recent ‘Dhananjai Chaterji’ case, capital punishment was executed on the accused, Dhananjai, who raped and killed a merciless teenage girl. Therefore, awarding capital punishment is not a general trend but an exception. In my view, this doctrine prohibits the execution of capital punishment in general cases, even though capital punishment is provided therein.

In the State of Maharashtra, V/s Haresh M. Rajput[23]

Facts: – Accused committed brutal rape on an innocent girl of ten years. Eight serious injuries on the private part of the victim girl show extreme brutality and depravity. After such a brutal rape, the accused again, in a cruel manner, using a rope to throttle, extinguished the life of a small girl.

Held: – that it is a fit case for enhancement of life imprisonment into the death penalty

4) Arguments against Capital Punishment:-

Following are some arguments against the retention of capital punishment, viz-.

a) Cruel and Inhuman:-

Capital punishment is the cruellest and most inhuman type of punishment. It is the punishment by which a person’s life ends through the legal process. In short, capital punishment is cold-blooded legal murder. According to Beccaria, the State has no right to take life since it cannot put life.

b) No Reformation:-

Reformists stress more the need to reform criminals than eliminate them. Capital punishment does not provide any chance of improvement for criminals.

c) Misuse:-

According to Justice Douglas, ‘mostly poor persons get capital punishment than richer’.

d) Cold-Blooded Legal Murder[24]:-

According to some, capital punishment is cold-blooded legal murder.

e) According to Metaphysics[25]:-

According to metaphysics, life in all creatures is put by God alone, and God alone has to take it out. Life cannot be taken away by any other person or body (State etc.) than God.

B) Imprisonment for Life:-

Imprisonment for life technically means a sentence of imprisonment running throughout the remaining period of a convict’s natural life. But the appropriate government may commute the life imprisonment sentence up to fourteen years; in case of the offender’s good conduct. Imprisonment for life is rigorous imprisonment and not-simple imprisonment.

C) Imprisonment:-

There are three kinds of imprisonments, viz-

1) Rigorous[26]:-

In this form of imprisonment, the offender is put into hard labour, such as grinding, digging the earth, drawing water, etc.

2) Simple:-

In simple imprisonment, the offender is given lighter work or not given work at all.

3) Solitary Confinement[27] (Ss. 73 and 74):-

It is an aggravated form of imprisonment in which an offender is put in an isolated cell. Thus, all his contacts with the outside world are severed. It is given to harsh and hardened convicts.

However, solitary confinement shall not exceed-

i) Beyond three months as a whole. (S. 73)
ii) Maximum 14 days at one time, and next with an interval of not less than 14 days.

iii) 7 days in a month with intervals of not less than seven days if the substantive imprisonment sentence exceeds three months but does not exceed six months (S.74).

Solitary imprisonment is awarded for offences committed under I.P.C only, but not under any other ‘special’ or ‘local laws’. It cannot be awarded where imprisonment is not part of the substantive sentence (i.e. where imprisonment is awarded in default of a fine) or where the imprisonment awarded is simple.

However, according to many criminologists, this kind of punishment is inhuman and perverse. If used in excess, it might turn a man of sound mind into a lunatic.

D) Forfeiture of Property:-

Forfeiture of property is inflicted in the following four types of offences-

i) Committing depredation on territories of any power at peace with

the government of India (i.e. friendly State) (S.126).

ii) Waging war against any Asiatic power in alliance with the

Government of India. (S.125).

iii) Receiving property is taken by war or depredation, as mentioned above (S.127)

iv) Improper purchase by a public servant of a property which by his office (he) is legally prohibited from purchasing (S.169).

E) Fine

The fine is a forfeiture of money by way of penalty. The court may impose a fine along with or without imprisonment. The I.P.C. provides fines as punishment for several offences.

Where no maximum fine limit is laid, the fine amount in such a case is unlimited. But such an amount fine should not be excessive (S.63).

Imprisonment in default of fine[28]:-

The court can also award imprisonment in default of a fine (S.64). In this case, imprisonment is not in lieu of a fine, but it is in default; therefore, i.e., it is the penalty for the non-payment of a fine and not a substitute punishment thereof. Imprisonment in default of payment of a fine does not liberate an accused from his liability to pay the fine imposed upon him. Such imprisonment does not serve as a discharge of fine but is imposed as a punishment for non-payment. Fine awarded can be recovered within six years from its award. Even his death does not discharge his liability for a fine; it can be recovered from his property afterwards.

When an offender is awarded imprisonment, as well as a fine, the imprisonment in default of a fine shall not exceed one-fourth of the term of imprisonment, which is the maximum fixed for the offence (S.65). Such extra punishment may be rigorous or simple according to the substantive term of imprisonment. (S.66)

When the offence is punishable with a fine only, imprisonment in default of the fine shall always be simple and-

i) It shall not exceed two months when the fine does not exceed Rs.50, and
ii) Shall not exceed four months when the fine does not exceed Rs.100 and

iii) Shall not exceed six months in any other case (S.67).

But when the offender is imprisoned in default of a fine and pays the fine, his remaining imprisonment in default of the fine shall be terminated.

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[1] भीतीदायक

[2] प्रतिबंधात्मक सिध्दांत

[3] बदला (घेण्यासाठी)

[4] सुधारण्यासाठी / सुधारणावादी सिध्दांत

[5] संहितेमध्ये नमुद केलेले शिक्षेचे प्रकार

[6] चाबकाने मारणे

[7] हातपाय तोडणे

[8] दगडाने ठेचने

[9] मृत्युदंड

[10] जन्मठेप

[11] सश्रम अथवा साधा तुरूंगवास/कारावास

[12] मालमत्ता जप्ती

[13] (अर्थिक स्वरूपातील) दंड

[14] युध्द पुकारने

[15] बंड घडण्यास प्रोत्साहन देणे व त्याप्रमाणे बंड घडणे

[16] खोटा पुरावा अथवा साक्ष देणे ज्यामुळे निश्पाप व्यक्तीस शिक्षा होते.

[17] गुन्हयास प्रेात्साहन

[18] जन्मठेपेची शिक्षा भोगत असलेलया कैदयाने जर एखादयास दुखापत केली तर

[19] दरोडा व खून

[20] भीतीदायक

[21] माफी किंवा शिक्षेत सुट

[22] दुर्मिळातील दुर्मिळ घटना

[23] 2008 All MR (Cri.) 899

[24] थंड रक्ताने व कायदेषीर पध्दतीने केलेला खून

[25] अध्यात्मिक दृष्ट्या

[26] सश्रम

[27] एकांतवासाची (कारावासाची) शिक्षा.-

[28] दंड न भरल्यास तुरूंगवास (कारावास)½