Punishment

Punishing the offenders is a primary function of all civil States. The

incidence of crime and its retribution has always been an unending
fascination for human mind. However, during the last two hundred
years, the practice of punishment and public opinion concerning it have
been profoundly modified due to the rapidly changing social values and
sentiments of the people. The crucial problem today is whether a
criminal is to be regarded by society as a nuisance to be abated or an
enemy to be crushed or a patient to be treated or a refractory child to be
disciplined? Or should he be regarded as none of these things but
simply be punished to show to others that anti-social conduct does not
finally pay. It is in this perspective that the problem of crime, criminal
and punishment is engaging the attention of criminologist and
penologists all around the world. A 'crime' has been defined by Salmond
as an act deemed by law to be harmful for society as a whole although
its immediate victim may be an individual. Thus "a murderer injures
primarily a particular victim, but its blatant disregard of human life puts
it beyond a matter of mere compensation between the murderer and the
victim's family." Those who commit such acts, if convicted, are punished
by the State. It is therefore, evident that the object of criminal justice is to
protect the society against criminals by punishing them under the
existing penal law. Thus, punishment can be used as a method of
reducing the incidence of criminal behaviour either by deterring the
potential offenders or by incapacitating and preventing them from
repeating the offence or by reforming them into law-abiding citizens. It
is this principle which underlies the doctrines concerning the desirability
and objectives of punishment. Theories of punishment, therefore,
contain generally policies regarding handling of crime and criminals.
There are four generally accepted theories of punishment, namely,
deterrent, retributive, preventive and reformative. It must, however, be
noted that these theories are not mutually exclusive and each of them
plays an important role in dealing with potential offenders.
MODULE II
2.1 Concept of Punishment:
Sir Walter Moberly, while accepting the definition of punishment given
by Grotious suggests that punishment presupposes that: -
1. What is inflicted is an ill, that is something unpleasant:
Punishment, according to Moberly, involves the infliction of
something that is considered harmful or unpleasant. In the context
of criminal justice, this typically refers to sanctions or penalties
imposed on individuals because of their wrongdoing. These
sanctions are intended to be undesirable experiences for the
offender.
2. It is a sequel to some act which is disapproved by authority:
Punishment is a consequence or outcome that follows an act or
behaviour that has been disapproved or deemed unacceptable by a
governing authority. In the context of the criminal justice system,
this authority is usually the state or a relevant legal entity.
3. There is some correspondence between the punishment and the
act which has evoked it: Moberly emphasizes that there should be
a logical and proportional connection between the act that led to
punishment and the nature of the punishment itself. This implies
that the punishment should be fitting and appropriate in response
to the wrongdoing.
4. Punishment is inflicted, that it is imposed by someone's
voluntary act: This element underscores that punishment is not a
random or arbitrary event but is deliberately imposed by an
authority figure or entity. It involves a conscious and purposeful
decision to impose consequences for the wrongdoing.
5. Punishment is inflicted upon the criminal, or upon someone
who is supposed to be answerable for him and for his
wrongdoings: Punishment is typically directed toward the
individual who committed the wrongful act (the criminal).
However, in some cases, it can also be directed at those who are
considered responsible for the offender's actions, such as parents
 or legal guardians in the case of juvenile offenders. The idea is that
there should be accountability for the wrongdoing.
Justification for Punishment
There are valid reasons for justification of punishment to offenders
who are convicted for an offence. They may briefly be stated as
follows:
1. Deterrence - Punishment dissuades a person from future wrong
doing by making punishment severe enough so that the benefit or
pleasure derived from the offence is outweighed by the pain and
probability of punishment.
2. Incapacitation - Incarceration has the effect of confining the
prisoner and physically incapacitating him from committing a
crime. The most dangerous criminals may be sentenced to
imprisonment for life or even a sentence of death may be invoked
for heinous and brutal crimes such as murder etc.
3. Restoration - For some minor offences punishment may in the
form of restoration such as fines or payment of compensation to
the victims of crime of his/her relatives or families.
4. Rehabilitation - Some punishments are directed to reform the
offender and ensure his rehabilitation as a law-abiding citizen. It
aims at bringing about a change in the offender's attitude to make
him socially acceptable.
2.2 Theories of Punishment:
To punish criminals is a recognised function of all civilised States for
centuries. But with the changing patterns of modern societies, the
approach of penologists towards punishment has also undergone a
radical change. The penologists today are concerned with crucial
problem as to the end of punishment and its place in penal policy.

Though opinions have always differed as regards punishment of

offenders varying from age-old traditionalism to recent modernism,
broadly speaking four types of views can be distinctly found to prevail.
Modern penologists prefer to call them theories of punishment'. The line
of demarcation between these theories are, however, so then that they
cannot be completely separated from each other.
The eighteenth century utilitarianism formulated a social policy which
provided a blue print for working out penal reforms and legislation in
England during the Benthamite era. The major theories of punishment
laid down during the era are relevant even to this day excepting the
theory of retribution, which stands completely discarded in modern
penal programmes. These theories are briefly stated as follows:
2.2.a Deterrent Theory
Earlier modes of punishment were, by and large, deterrent in nature.
This kind of punishment presupposes infliction of severe penalties on
offenders with a view to deterring them from committing crime.
The founder of this theory, Jeremy Bentham, based his theory on the
principle of hedonism which said that a man would be deterred from
committing a crime if the punishment applied was swift, certain and
severe. This theory considers punishment as an evil, but is necessary to
maintain order in the society.
The deterrent theory also seeks to create some kind of fear in the mind of
others by providing adequate penalty and exemplary punishment to
offenders which keeps them away from criminality. Thus the rigour of
penal discipline acts as a sufficient warning to offenders as also others.
Therefore, deterrence is undoubtedly one of the effective policies which
almost every penal system accepts despite the fact that it invariably fails
in its practical application. Deterrence, as a measure of punishment
particularly fails in case of hardened criminals because the severity of
punishment hardly has any effect on them. It also fails to deter ordinary
criminals because many crimes are committed on the spur of the
moment without any prior intention or design. The futility of deterrent
punishment is evinced from the fact that quite many hardened criminals
return to prison soon after their release. They prefer to remain in prison
rather than leading a free life in society. Thus, the object underlying
deterrent punishment is unquestionably defeated. This view finds
support from the fact that when capital punishment was being publicly
awarded by hanging the person to death in public places, many persons
committed crimes of pick-pocketing, theft, assault or even murder in
those men-packed gatherings despite the ghastly scene.

Suffice it to say that the doctrine concerning deterrent punishment has

been closely associated with the primitive theories of crime and criminal
responsibility. In earlier times, crime was attributed to the influence of
'evil spirit' or 'free-will' of the offender. So the society preferred severe
and deterrent punishment for the offender for his act of voluntary
perversity which was believed to be a challenge to God or religion
(Barnes & Teeters, New Horizon in Criminology

The punishment ought to be a terror to evil-doers and an awful warning

to all others who might be tempted to imitate them. This contention
finds support in Bentham's observation, who said :-
"General prevention ought to be the chief end of punishment.... An
unpunished crime leaves the path of crime open, not only to the same
delinquent but also to all those who may have some motives and
opportunities for entering upon it....... We perceive that punishment
inflicted on the individual becomes source of security for all.......
Punishment is not to be regarded as an act of wrath or vengeance
against a guilty individual who has given way to mischievous
inclinations, but as an indispensable sacrifice to the society."
Bentham, however, believed that offenders must be provided an
opportunity for reformation by the process of rehabilitation. From this
point of view, his theory may be considered forward looking as it was
more concerned with the consequences of punishment rather than the
wrong done, which being a post, cannot be altered (Chaturvedi KC,
Penology & Correctional Administration

2.2.b Retributive Theory:

While deterrent theory considered punishment as a means of attaining
social security, the retributive theory treated it as an end in itself. It was
essentially based on retributive justice which suggests that evil should
be returned for evil without any regard to consequences. The supporters
of this view did not treat punishment as an instrument for securing
public welfare. The theory therefore, underlined the idea of vengeance
or revenge. Thus, the pain to be inflicted on the offender by way of
punishment was to outweigh the pleasure derived by him from the
crime. In society's disapprobation for offender's criminal act, in other
words, retributive theory suggested that punishment is an expression of
society’s disapprobation for offender’s criminal act.
Supporting the theory of retribution Emanuel Kant observed :

"Judicial punishment can never be used merely as a means to promote

some other good for the criminal himself or civil society, instead, it must
in all cases be imposed on him only on the ground that he has
committed a crime; for a human being can never be manipulated merely
as a means to the purposes of someone else."
According to him, punishment is an end in itself therefore, retribution is
a natural justification because society thinks that a bad man should
inevitably be punished and good ought to be rewarded.
Commenting on retributive theory Sir Walter Moberly observed that the
theory of retribution is based on the view that punishment is a particular
application of the general principle of justice, that men should be given
their due. Punishment serves to express and to satisfy the righteous
indignation which a healthy minded community regards transgression.
As such, it is sometimes an end in itself.
It must be stated that the theory of retribution has its origin in the crude
animal instinct of individual or group to retaliate when hurt. The
modern view, however, does not favour this contention because it is
neither wise nor desirable. On the contrary, it is generally condemned as
vindictive approach to the offender.
Retributive theory is closely associated with the notion of expiation
which means blotting out the guilt by suffering an appropriate
punishment. It is this consideration which underlies the mathematical
equation of crime, namely, guilt plus punishment is equal to innocence.
Most penologists refuse to subscribe to the contention that offenders
should be punished with a view to making them pay their dues. The
reason being that no sooner an offender completes his term of sentence,
he thinks that his guilt is washed off and he is free to indulge in
criminality again.
Hegal opposed the theory of retribution and observed that it is the
manifestation of revenge for an injury. To quote him, he said,
"You hurt me so I will hurt you. Indeed, that is the literal meaning of
retribution. And if I cannot hurt you myself, I demand that you should
be hurt by others. The desire to make the offender suffer, not because it
is needed so that the guilt is purged, not also because suffering might
deter him from future crime, but simply because it is felt that he
deserves to suffer, is the essence of retribution."
It must be stated that Sir James Stephen defended the doctrine of
retribution on the ground that “criminals deserved to be hated and the
punishment should be so contrived as to give expression to that hatred,
and to justify by gratifying a healthy natural sentiment.”(Sir James
Stephen, History of Criminal Law of England)
However, the modern penology discards retribution in the sense of
vengeance, but in the sense of reprobation it must always be an essential
element in any form of punishment.
2.2.c Preventive Theory
Preventive philosophy of punishment is based on the proposition ‘not to
avenge crime but to prevent it’. It presupposes that need for punishment
of crime arises simply out of social necessities. In punishing a criminal,
the community protects itself against anti-social acts which endanger
social order in general or person or property of its members.

In order to present preventive theory in its proper perspective, it would

be worthwhile to quote Fichte who observed,

"the end of all penal laws is that they are not to be applied". Giving an
illustration he continued, "when a land owner puts up a notice
“trespassers will be prosecuted”; he does not want an actual trespasser
and to have the trouble and expense of setting the law into motion
against him. He hopes that the threat will render any such action
unnecessary, his aim is not to punish trespass but to prevent it. If
trespass still takes place, he undertakes prosecution. Thus, the
instrument or deterrence which he devised originally consisted in the
general threat and not in particular convictions".

The real object of the penal law therefore, is to make the threat generally
known rather than putting it occasionally into execution. This indeed
makes the preventive theory realistic and gives it humane touch. It is
effective for discouraging anti-social conduct and a better alternative to
deterrence or retribution, which now stand rejected as methods of
dealing with crime and criminals.

In England, utilitarians like Bentham, Stuart Mill and Austin supported

preventive theory because of its humanising influence on criminal law.
They asserted that it is the certainty of law and not its severity, which
has a real effect on offenders.
As an off-shoot of preventive view regarding crime and criminals, the
development of prison institution gained momentum. The preventive
theory seeks to prevent the recurrence of crime by incapacitating the
offenders. It suggests that prisonisation is the best mode of crime
prevention as it seeks to eliminate offenders from society thus disabling
them from repeating crime. The supporters of preventive philosophy
recognise imprisonment as the best mode of punishment because it
serves as an effective deterrent and a useful preventive measure. It pre-
supposes some kind of physical restraint on offenders. According to the
supporters of this theory, murderers are hanged not merely to deter
others from meeting similar end, but to eliminate such dreadful
offenders from society.
2.2.d Reformative Theory
With the passage of time, developments in the field of criminal science
brought about a radical change in criminological thinking. There was a
fresh approach to the problem of crime and criminals. Individualised
treatment became the cardinal principle for reformation of offenders.
This view found expression in the reformative theory of punishment.
As against deterrent, retributive, and preventive justice, the reformative
approach to punishment seeks to bring about a change in the attitude of
offender to rehabilitate him as a law-abiding member of society.
Punishment is used as a measure to reclaim the offender and not to
torture or harass him. Reformative theory condemns all kinds of
corporal punishments. The major emphasis of the reformist movement is
rehabilitation of inmates in peno-correctional institutions so that they
are transformed into law-abiding citizens. These correctional institutions
have either maximum- or minimum-security arrangements. The
reformists advocate human treatment of inmates inside the prison
institutions. They also suggest that prisoners should be properly trained
to adjust themselves to free life in society after their release from the
institution. The agencies such as parole and probation are recommended
as the best measures to reclaim offenders to society as reformed persons.
The reformative view of penology suggests that punishment is only
justiciable if it looks to the future and not to the past. “It should not be
regarded as settling an old account but rather as opening a new one”.
Thus, the supporters of this view justify prisonisation not solely for the
purpose of isolating criminals and eliminating them from society but to
bring about a change in their mental outlook through effective measures
of reformation during the term of their sentence.

Undoubtedly, modern penologists reaffirm their faith in reformative

justice but they strongly feel that it should not be stretched too far. The
reformative methods have proved useful in cases of juvenile
delinquents, women and the first offenders. Sex psychopaths also seem
to respond favourably to the individualised treatment model of
punishment. However, the recidivists and hardened criminals do not
respond favourably to the reformist ideology. It is for this reason that
Salmond (in Jurisprudence) observed that though general substitution of
reformation for deterrence may seem disastrous, it is necessary in certain
cases specially for abnormal and degenerates who have diminished
responsibility. It therefore, follows that punishment should not be
regarded as an end in itself but only as a means, the end being the social
security and rehabilitation of the offender in society.

Some penologists have denounced ‘rehabilitative ideal’ or the ’reformist

ideology’ underlying individualised treatment model because in practice
they are more punitive, unjust and inhumane than retribution or
deterrence. Writing about the condition of prisons in Russia and France,
Peter Kropotkin observed, “prisons are seen as symbols of our hypocrisy
regarding rehabilitation, our intolerance for deviants, or our refusal to
deal with the root causes of crime such as poverty, discrimination,
unemployment, ignorance, over-crowding” and so on.
Yet another argument which is often advanced against reformative
treatment is that there is no punishment involved in it in terms of some
sort of pain and therefore, it cannot be regarded as punishment in true
sense of the term. But it must be pointed out that though reformative
treatment involves benevolent justice, yet the detention of the offender
in prison or any other reformative institution for his reformation or
readjustment is in itself a punishment because of the mental pain which
he suffers from the deprivation of his liberty during the period he is so
institutionalised. Therefore, it is erroneous to think that institutional
detention for reformation is not a form of punishment. In fact,
surveillance and close supervision is itself punitive though it involves no
physical pain or suffering.

The authors of an American study also criticised reformist ideology

stating that, “it never commended more than lip service from most of its
more powerful adherents. Prison administrators who embraced the
rehabilitative ideal, have done so because it increased their power over
inmates”.
It is a known fact that punishment always carries with it a stigma
inasmuch as it fetters the normal liberty of individual. It has become an
integral part of law enforcement for securing social control. Punishment
is inevitable for recidivists who are habitual law-breakers. The tendency
among recidivists to repeat crime is due to their inability to conform to
the accepted norms of society. Investigative researchers reveal that it is
the mental depravity of the offenders which makes them delinquent and
therefore, a system of clinical treatment seems inevitable for the
correction of such offenders. However, there is a need for
compartmentalisation of offenders for this purpose based on age, sex,
gravity of offence and mental condition. This object is achieved by
scientific classification of criminals into different categories such as the
first offenders, habitual offenders, recidivists, juvenile delinquents,
insane criminals, sex phychopaths etc. The correct approach would be to
treat punishment as a sort of social surgery since criminal is essentially a
product of conflict between the interests of society.
2.3 Forms of Punishment
In order to assess the adequacy of modern penal systems, it is necessary
to probe into the origin and evolution of the system of punishment from
the earliest time.
Early Stages
In primitive societies, men shared with animals the emotion of
resentment at injury. The sense of fear and ignorance led to barbarous
method of treatment of offenders. The concept of law and order was not
yet known. Consequently, the common methods of settling disputes
were through personal vengeance such as dual blood feuds and
reparation, etc. As pointed out by Gillin, “in those days punishment was
reflective reaction to injury”. Thus, in early societies the basis of
punishment was retribution and vengeance. This obviously led to
exploitation of the weaker by the stronger which resulted into complete
chaos. The life and property were most insecure and always exposed to
dangers. At times, even the family members of victim or his clan settled
disputes with the offender or his family.
It is significant to note that even the oldest epic Bhagwat Gita justified
killing in some cases as a virtuous act and to act contrary to it was
considered as a sin or an act of cowardice. Dharmashastra also contained
a passage saying “killing of a murderer (Atatayinah) is one's duty, may
the killer be a preceptor, child, old man or even a learned Brahmin.” The
murderer should be slain at once without considering whether the act is
virtuous or vicious. As pointed out Mr. Justice K.B. Panda, this exhibits
profound knowledge and farsightedness of ancient Hindu law-makers
who had not only contemplated of a right of private defence but had
also given due recognition to it.
The cases of property damages were generally settled by compelling the
offender to pay compensation to the injured. This remedy was, however,
rarely used for personal injuries. With the advance of civilization, the
sense or respect for mutual rights and duties developed among people
which eventually led to the evolution of law. Later, the State came into
existence and took to itself the task of maintaining law and order in the
community by punishing the law-breakers. The State also sought to
redress the grievances of victims who were injured by the wrongful acts
of criminals. The sovereign used punishment as a substitute for personal
vengeance through retribution. In early days, the popular modes of
punishment were exile, banishment, and outlawry (act of putting a
person beyond the protection of the law). These methods acted as an
effective deterrent in maintenance of the law and order within the
community. According to Maitland, four main forms of punishment
were., (1) outlawry, (2) blood feuds, (3) bot, writ and wer (Anglo-Saxon
Law) bot (being quantum of compensation), wite (part of which went to the
state for it services), and wer (balance retained by victim or injured party),
and (4) loss of life or limbs were commonly used in the early English
Society.
Medieval Period
The medieval period in the history of human civilization witnessed an
era of religious predominance in the western world. The tenets of
religion had great impact on the administration of justice and penal
policy. Crime began to be identified with sin and violence was abhorred.
Ecclesiastical punishments (by tribunal set by religious body) were mixed
up with the religious notions of cleansing of the soul for the reformation
of criminal. Ordeal by fire and water were commonly used to establish
the guilt or innocence of the accused. The genesis of punishment then
lay in supernatural forces. It was generally believed that an offender by
his criminal behaviour invoked the wrath of God which entailed him
punishment. Offender’s guilt could be washed off by penance, remorse
or expiation which by itself was a sufficient punishment to mitigate his
wrong. This finally led to the evolution of solitary confinement as means
of penance by putting the wrong-doer in isolation. Particularly, the
ancient penal law of India laid greater emphasis on penance or Atma-
Shuddhi of the offender and believed that if the offender sincerely
repented for his offence, the mental torture that he suffers due to
remonstrance was a great punishment for him. The noted Italian
criminologist Garofalo, however, rejected the theory of moral expiation
on the ground that a criminal by nature lacks moral consciousness and
therefore, expiation as a punishment has merely a theoretical
significance. It must, however, be stated that Garofalo's conclusions on
expiation (According to Expiation Theory, compensation is awarded to the
victim from the wrong-doer) as a mode of punishment may be true so far
habitual offenders or recidivists are concerned but expiatory methods do
have a great force in reforming the first offenders and those delinquents
who commit crime impulsively or under compelling circumstances.
Criticising the theory of expiation, Sir Leo Page observed that “the theory
is not only wrong but actively mischievous as it would mean imposing a
duty on courts to determine the degree of pain precisely adequate to
expiate moral guilt.” In his view this was patently impossible. According
to him, “to assess the moral culpability of a man involves the ability to
look into his heart, to take account of the strength of the temptations to
which he was subjected as well as the conditions which have made him
what he is.(Sir Leo Page, Crime & Community)
Enrico Ferri, the noted Italian criminologist also discarded the idea that
expiation should enter the arena of punishment and said, “the question
of moral guilt of a criminal or of any other human being, lies within the
domain of religion and moral philosophy.... The State and its system of
criminal justice can do no more than to adopt such measures to defend
the community against criminals as are reasonable to themselves and
proportionate to the danger threatened to society. (Enrico Ferri, Criminal
& Sociology)
Rationalisation of Punishment:
The theory of expiation presented practical difficulties in the
determination of exact quantum of punishment which would be
adequate to wash off the moral guilt of the offenders. Besides, it also
meant assigning the Judge a task which cannot be accomplished by any
human agency.
With the advance of science and knowledge in social disciplines, there
has been a wave of renaissance and reformation throughout the
European continent. The Declaration of Rights of Man in France in 1787
marked the end of draconian punishments and the beginning of
methodical system of punishment founded on sound principle that right
to punish is limited by the law of necessity. This brought about radical
changes in the administration of criminal justice. In result, penology
began to develop as an independent branch of criminal science with new
treatment methods of punishment for the reformation of inmates. A
scientific approach to crime and criminals has shown beyond doubt that
torturous punishment tends to turn offenders more dangerous and
aggressive towards society. Alternatively, their rehabilitation through
the method of reformation is considered more useful. With this end in
view, the modern judicial trend is to incorporate correctional methods in
the penal programme to bring about rehabilitation and re-socialisation
of inmates in the community.
Modern or New Penology
With new criminological developments, particularly in the field of
Penology, it has been generally accepted that punishment must be in
proportion to the gravity of the offence. It has been further suggested
that reformation of criminal rather than his expulsion from society is
more purposeful for his rehabilitation. With this aim in view, the
modern penologists have focused their attention on individualisation of
offender through treatment methods. Today, old barbarous methods of
punishment such as mutilation, branding, hanging, burning, stoning,
flogging, amputation, starving the criminal to death or subjecting him to
pillory or poetic punishment, etc are completely abandoned.

Pillory was a method of corporal punishment under which the offender

was subjected to public ridicule by exposing him to punishment in
public places. Different poetic punishments were provided for different
crimes. For example, cutting off hands for theft, taking off tongue for the
offence of perjury, emasculation (castration) for rape, shaving off the
head of a woman in case she committed a sex-crime or whipping her in
public street and similar other modes were common forms of poetic
punishment during the Middle Ages. Modern penologists have
substituted new forms of penal sanctions for the old methods of
sentencing. The present modes of punishment commonly include
imposition of monetary fines, segregation of the offender temporarily or
permanently through imprisonment or externment or compensation by
way of damages from the wrong-doer in case of civil injury. The credit
for introducing these penological changes goes to eminent
criminologists, like Beccaria, Garofalo, Ferri, Tarde, Bentham, and others
who formulated sound principles of punishment and made all out
efforts to ensure rehabilitation of offenders so as to make them useful
member of society once again. Garofalo strongly recommended
'transportation' or 'banishment' of certain types of offenders who had to
be segregated from society. Modern penal systems, however, limit the
punishment of transportation within the homeland so that potentiality
of prisoners is utilised within the country itself. Of late, open jails, parole
or probation are being intensively used for long-termers so that they can
earn their livelihood while in the institution.

It was Beccaria who pioneered classical view of penology and raised

voice against cruel and brutal punishments. He advocated equalised
treatment for all criminals in the matter of punishment and reiterated
that it was not the personality of offender but his antecedents, family
background and circumstances, which had to be taken into
consideration while determining his guilt and punishment. This in other
words meant greater emphasis on the 'act' (crime) rather than the
criminal. He was equally opposed to the discretionary power of the
court and argued that the function of determining appropriate
punishment for different offences must be confined to the legislators and
law-makers alone. The system of trial by jury is essentially an outcome
of the classical thinking which treated ‘act’ and not the ‘individual’ as
the object of punishment. The function of jury is to determine the
question of fact, i.e. whether the crime has been committed by the
offender or not, while it is for the magistracy to decide the guilt or
innocence of the accused in accordance with the established principles of
law. The central theme of penal policy advocated by adherents of
classical school was equality of punishment for similar offences.
However, the theory has fallen into disuse with the advance of
knowledge through penological researches.
Among modern penologists the names of Raffaele Garofalo and Enrico
Ferri deserve a special mention. Garofalo was an eminent criminologist
of Italy who held distinguished positions as a Judge, a Professor of Law
as also a Minister of Justice and therefore, he was deeply involved in
administration of criminal justice and treatment of offenders. Out of his
vast experience as a Magistrate, he suggested that insane criminals
should be treated leniently. In his opinion, vengeance had only a
theoretical basis for penal sanctions. Surprisingly, Garofalo was a critic
of reformative theory of punishment and believed that it had only a
limited utility in cases of young or first offenders and it hardly served
any useful purpose in case of recidivists and hardened criminals. He
also rejected deterrent punishment since it failed to determine the exact
quantum of punishment for a given offence under varying social
circumstances. He, however, agreed with Beccaria that retention of
punishment is necessary for recognition of individual rights and social
co-existence.
Enrico Ferri was yet another Italian penologist who supported positive
school of criminology. He asserted that punishment was necessary for
the protection of society because crimes in society are inevitable. In his
opinion, punishment was a social deterrent. Since society has to defend
itself against aggressors, it has a right to punish the offenders. He
strongly commended compensation as an effective sanction against
crimes, particularly those relating to property. Ferri believed that
dumping the prisoners in prison cells throughout their term of sentence
served no useful purpose. It was wholly an unproductive process. He
therefore, suggested that inmates should be utilised to work on
agricultural farms or construction sites and engaged as labour during
working hours. This in his view, was in the best interest of the inmates
as well as the State. He preferred indeterminate sentence to a fixed term
of institutionalised sentence and recommended clinical treatment for
insane criminals.
Indian Perspective
Dr. P. K. Sen, a well known authority on Indian penology has given a
comparative account of the old and new penal systems. He observed
that penology embodies the fundamental principles upon which the
State formulates its scheme of punishment. He further pointed out that
punishment always lacks exactness because it is concerned with human
conduct which is constantly varying according to the circumstances. He
therefore, suggested that punishment must be devised on case to case
basis so that it could be free from rigidity and capable of modification
with changing social conditions. Dr. Sen emphatically stressed that
penal science is not altogether new to Indian criminal jurisprudence. A
well defined penal system did exist in ancient India even in the time of
Manu or Kautilya. In ancient penal system, the ruler was expected to be
well versed in Rajdharma (duty of King) which included the idea of
Karma (duty) and Dand (punishment). The ancient Indian criminal
justice administrators were convinced that punishment serves as a check
on repetition of crime and prevents law-breaking. They believed that all
theories of punishment whether based on vengeance, retribution,
deterrence, expiation or reformation are directed towards a common
goal, that is, the protection of society from crime and criminals. Thus,
punishment was regarded as a measure of social defence and a means to
an end. The modern trend, however, is to replace retributive and
deterrent methods by reformative and corrective measures, the object
being rehabilitation of the offender. Commenting on this aspect of penal
justice, Dr. P.K. Sen asserted that the concept of punishment has now
radically changed inasmuch as it is no longer regarded as a reaction of
the aggrieved party against the wrong-doer but has become an
instrument of social defence for the protection of society against crime.
Essentials of an Ideal Penal System
By way of generalisation, it may be stated that efficacy of a penal system
is to be assessed in the light of its impact on society in general and the
criminal in particular. Punishment of offenders though necessarily
arduous, is inevitable in the interest of the community at large therefore,
every civilised nation must have a definite penal programme.

An ideal penal system must essentially include the following

characteristics :-
1. A rational penal policy should aim at protecting the society from
crimes and reclaim criminals by removing imperfections in the
penal law of the country. Greater emphasis should be on
prevention rather than cure. All necessary steps should be taken to
ensure that people do not get any opportunity to commit crime
rather than trying to reform them after they have indulged into
 criminality. The law must provide scope for adjustment of
punishment according to variations in culpability.

2. Expressing concern for the efficacy of punishment. Bentham, the

eminent English law reformer commented that penal policy must
be in conformity with the principle of hedonism, that is, the
utilitarian doctrine of pain and pleasure. The pleasure or benefit
derived from criminal act must not outweigh the pain inflicted by
way of punishment, otherwise the punishment is bound to lose its
significance. That apart, punishment to be effective, should be
proportionate to the gravity of the offence.

3. It is an accepted fact that delay defeats justice and therefore,

inordinate delay in sentencing negates its deterrent effect. As such,
it is desired that punishment must follow the crime. Elimination of
delay in awarding punishment is perhaps the most fundamental
requirement of an ideal penal programme. It must be noted that
inordinate delay in disposal of cases by courts is causing untold
miseries to poor litigants, particularly in India, as a result of which
people are losing faith in these institutions of justice.

4. Punishment connotes society's disapprobation for a particular

human conduct and penal sanctions act as a threat to the aggressor
to refrain from committing such forbidden acts of violence. Thus,
the ultimate object of punishment is to protect society against law-
breakers. As Beccaria puts it, the purpose of punishment is ‘to
make crime an ill-bargain for the offender’.

5. Experience has shown that the principle of equal punishment for

similar offences does not prove effective for all types of criminals.
The young and the first offenders must be treated differently than
the recidivists and habitual offenders. The justification for this
differential treatment lies in the fact that the effect of punishment
varies from criminal to criminal depending on his age, sex,
intellect, mental depravity, responsive attitude and social
 circumstances. It is for this reason that classification of criminals
into different categories is deemed necessary so that they could be
reformed through adequate correctional measures.

6. It is significant to note that efficacy of punishment essentially

depends on the proper functioning of agencies which administer
criminal justice. These agencies must command respect among the
public. Everyone including the criminal himself should feel
convinced that justice has been done to him. Disproportionate and
unduly harsh punishment shall make the members of community
feel that their life is unsafe and insecure in the hands of criminal
law administrators and their distrust for law and penal institutions
shall jeopardise the cause of criminal justice. Unfortunately, the
position in India in this regard is far from satisfactory. Particularly,
the functioning of the police and prisons needs improvement so
that people regain their lost faith in these august institutions of
law and justice.

7. Reformation of criminals should be the object of punishment while

‘individualisation’ the method of it. Reformation in case of
juveniles, first offenders and women offenders and deterrence for
hardened criminals and recidivists should be the ultimate object of
penal policy. Emphasising on the reformative aspect of penal
justice, the Supreme Court in Mohd. Giasuddin v. State of A.P.,
held that the State has to rehabilitate the offender rather than
avenge him. Mr. Justice Krishna Iyer further observed, “sub-
culture that leads to anti-social behaviour has to be countered not
by undue cruelty but by re-culturalisation”. The punishment to be
efficacious must include the combination of deterrence,
prevention, and reformation so that it prevents a future wrong
besides bringing a change in the attitude of the offender through
reformative measures during the period of his incarceration.

8. While appreciating the need for reformative approach towards

criminals, a word of caution as to the extent to which the principle
 is to be applied, seems necessary. It is generally observed that in
their enthusiasm to reform the criminals, the authorities associated
with penal institutions such as prisons and reformatories convert
these institutions into an earthly paradise providing all sorts of
comforts to inmates. Consequently, inmates often take the
institution as an easy resort to spend their life comfortably without
shouldering any responsibilities. This obviously defeats the very
object of reformation. It is, therefore, desired that life in these
institutions must involve certain degree of hardship and rigour so
that the inmate is always reminded of his bitter experiences of
institutional life after his release. It will also help in keeping him
away from repetition of criminal acts. The penal system should be
designed so as to ensure that offenders improve by suffering for
their offences. Unfortunately, the trend of judicial sentencing in
India is towards excessive reformation with the result punishment
is losing all its effect and consequently there is steep rise in crime
rate.

9. The authorities concerned with the criminal justice administration

should refrain from projecting the image of offenders as "big shot".
It must be remembered that punishment fails when it raises the
status of the convicted offender in his group. This is particularly
true with criminal gangs. The rewards so often announced by the
Government on the heads of notorious murderers, dacoits and
criminals seem to undermine this aspect of penal policy. To cite a
concrete illustration, Mr. Kalyan Mukherjee in his book entitled,
‘The Story of Bandit King’ describes dacoit Malkhan as ‘a man
who wove terror and pity to create a legend’. Again, the making of
a film on the Bandit Queen Phoolan Devi by film director Shekhar
Kapoor and its clearance by the Censor Board in September 1995
had projected this women-dacoit as a great Indian personality
forgetting all about her past murderous deeds. The patronage
extended to her by certain political parties further indicates how
this fundamental principle of penal justice has been flouted with
impunity. Far from being punished for her criminal acts, she was
 elected as the President of the Aklavya Sena, an off-shoot of
Bahujan Samaj Party and also a Member of Parliament (M.P.) for
the 11th and 12th Lok Sabha.

To cite yet another illustration, the manner in which the

governments of Karnataka and Tamil Nadu were held to ransom
by the sandalwood jungle dacoit ‘Veerappan’ has shaken the
conscience of the nation. It was rather disgusting to note that the
official emissary R.R. Gopal set out to meet the outlaw four times
during August-September 2000 to secure the release of noted
Kannada film Star Dr. Raj Kumar who was held as hostage by
Veerappan, but both the State Governments of Tamil Nadu and
Karnataka were unable to arrest the bandit. On the contrary, they
surrendered to his threats and released on bail several hard-core
TADA detainees who had committed murders. During all this
time Veerappan moved in and out of the forest, and R.R. Gopal,
the emissary kept returning with interviews and video tapes of his
meeting with the bandit. The prevailing situation was indeed a sad
reflection on our criminal justice delivery system which drew
strictures from the Supreme Court.

10.Most of the modern penologists are opposed to retention of capital

punishment on humanitarian ground. They argue that killing of
man is inhumane. That apart, if an innocent person is executed
due to erroneous justice, that will do irreparable harm. Some argue
that putting an offender to death virtually amounts to a cold-
blooded murder which serves no useful purpose. The real object of
punishment being reformation and not destruction of the criminal,
death sentence hardly serves any purpose. This enlightened view
is averse to the retention of capital punishment since it is grossly
unjust and against the principles of humanity.

But it must also be pointed out that despite growing disinclination

for awarding death penalty, there is a growing reluctance to
abolish it. It is so because of a general feeling that threat of
 infliction of death sentence itself proves as an effective deterrent.
Therefore, the ideal policy is to retain capital punishment in the
Statute Book to be used in ‘rarest of rare’ [Bachan Singh v State of
Punjab AIR 1980 SC 898] cases. It is true that the test of ‘rarest of
rare cases’ has not been acceptable to many because what may
appear to be a rarest of rare case to one Judge may not necessarily
appear to be so to another Judge. The principle has, however, been
incorporated in the judicial process by Section 235(2) of the Code
of Criminal Procedure, 1973 which provides that when a court
awards death sentence by choosing between it and any other
alternative punishment permissible under the law, then the
reasons for doing so must be recorded by the Court. [Sunil Murmu
v State of Jharkhand AIR 2004 SC 394, Rajbir v State of Haryana AIR
2011 SC 568]

11.In the sentencing process, both, the crime and the criminal are
equally important. It is rather unfortunate that the sentencing
process in capital offences (murder etc.) has become ‘Judge-centric’
rather than principled sentencing. There is considerable
uncertainty on the punishment to be awarded in capital offences,
that is, whether it should be life imprisonment or death sentence.
Therefore, standardization and categorization of crimes is
necessary for rationalisation of policy of punishment.

In the instant case, deceased Seema's body was burnt by Sandeep from
below the waist with a view to destroy evidence of her having been
subjected to rape and sexual harassment as concluded by the High
Court, but the Supreme Court found no such evidence. (Sangeet & ANR.
Vs. State of Haryana, [Criminal Appeal Nos. 490-491 of 2011])

12.Punishment should include both compensation as well as

imprisonment. As a matter of general policy, it would be ideal to
prescribe reparation or payment of compensation for offences
 relating to property while penal sentence with or without fine may
be awarded for crimes against person, particularly for crimes
against women and children.

13.The efficacy of punishment, by and large, depends on its

impartiality. The penal policy should therefore, be completely free
from considerations as to the caste, creed, religion or status of the
offender. It would be pertinent to note in this context that the
failure of criminal justice during Moghul-rule in India was solely
due to the discriminatory nature of Muslim law of crimes and
evidence. Where the offender happened to be a Muslim, he could
be awarded capital punishment on the evidence of an infidel, that
is, the non-believer in the Muslim faith. Further, the evidence of
one Mohammedan witness was equivalent to two Hindus and
evidentiary value of two female witnesses was equal to one male
witness under the Muslim law of crime. A thief could be convicted
only on the evidence of two men. This amply evinces irrationality
of the Muslim criminal law and the bias which it carried against
Hindus and women.

14.As a sound principle of criminal justice, it is for the Legislature to

prescribe maximum limit of punishment for every offence in the
Penal Code without laying down any minimum limit. This will
enable law courts to award punishment according to the
requirements of individual offender thus infusing an element of
discretion in judicial sentencing which is sine qua non (essential
condition) for individualised treatment model.

15.The system of solitary confinement has now become obsolete and

outdated. It is discarded because it is torturous and imposes
excessive suffering on the offender. Modern penologists treat
solitary confinement as a method of putting offenders to death
without bloodshed. Confining convicts in isolated prison-cells
without any work makes them idle and aggressive and they return
to society as more dangerous and aggressive criminals after their
 release. The torture of solitude and isolation is so painful that it
completely destroys the personality of the offender and he turns
hostile and indifferent to the community.

16.Punishment should always serve as a measure of social defence.

This in other words, means that elimination of incorrigibles and
rehabilitation of incorrigibles should be the ultimate object of
penal justice. An ideal penal policy should have enough elasticity
to mold itself with the changing needs of time and place.

17.In operating the sentencing system, not only the rights of the
victim but also that of society deserve consideration. Law should
adopt the corrective machinery or deterrence, based on factual
matrix. Unwanted sympathy to impose inadequate sentence
would do more harm to the justice system and undermine the
public confidence in the efficacy of law. [Hazra Singh v Raj Kumar
& Others AIR 2013 SC 3273]

18.While awarding the sentence, the Judges should not get swayed by
personal opinions expressed by Judges on private form or ideas
and views expressed by jurists, academicians. Precents or binding
judgments should be guiding factor for the criminal courts to
decide cases before them examining the relevant facts and
evidence. This is all the more necessary where the case rests only
on the evidence adduced by the prosecution as well as by the
defence. The sentencing process should neither be influenced by
the “vanity of judge nor his pride of learning in other fields. He is
expected to practice the conscience of intellectual honesty and deal
with the case with all experience and humility at his command.”
[Oma alias Omprakash & Another v State of Tamil Nadu AIR 2013 SC
825]

The above generalisations about punishment amply suggest that

no single theory whether deterrent, preventive, retributive or
reformative can help in eliminating crimes and criminals from
 society. It is only through an effective combination of two or more
of these theories that an ideal penal programme can be drawn to
combat crimes. Some socialist countries have explicitly mentioned
in their criminal codes the aims of sentencing the offender. This is
indeed a welcome step which other countries should take note of
while formulating their penal policy.

Significantly, the British and American penologist have shown

considerable concern for plight of the ‘victims’ by focusing their
attention on the diverse aspects of victimology. This relatively new
concept covers within its ambit not only the victims of individual
criminality, but also those of the abuse of criminal process and
administration of justice. For this purpose, it is necessary to
develop human rights consciousness among the law-enforcement
personnel particularly, the police and jail authorities.
Undoubtedly, the setting up of the National Human Rights
Commission in 1993 in India is a welcome step in this direction.

Penal Policy in India

The penal reforms in India during the past few decades have brought
about a remarkable change in the attitude of people towards the
offenders. The old concepts about crime, criminal and convicts have
radically changed. The emphasis has now shifted from deterrence to
reformation of the offenders. The age old discriminatory and draconian
punishments no longer find place in the modern penal system. Indian
penologists are greatly impressed by the recent Anglo-American penal
reforms and have adopted many of them in the indigenous system. This
does not, however, mean that India did not have penal policy of its own
prior to British influence. In fact, the Indian law givers of the olden times
were well versed in the science of penology and attached great
importance to penal sanctions. This is evident from the fact that
Brahaspati Shastra contains directions that an ideal penal policy always
seeks the support of public opinion or Lokniti. Again, Kautilya in his
Arthashastra modelled his penal policy on utilitarian principles taking
into consideration various social factors, traditions and customs of the
people.

Expressing his views on punishment Kautilya commented that

punishment if too severe alarms a man, if too mild frustrates him, but if
properly determined, makes man conform to Dharma or rightous
conduct. The function of law (Vyavhar) according to him was to bring
the wrong-doer on the right track by a change in his attitude. One
peculiar feature of the ancient penal system of India was that it
acknowledged the supremacy of Brahmins in matters of punishment.
Perhaps the reason for this privilege to Brahmins was that they were
regarded as the spiritual leaders of Indian society and hence were held
in great esteem. This privileged section of the society enjoyed certain
concessions in matters of punishment. For example, where the normal
punishment for an offence was death and if the offender happened to be
Brahmin, he was to be punished only with shaving of his head.
Yajnavalakya, the great commentator on Hindu Jurisprudence, however,
criticise partiality towards Brahmins in the administration of justice in
ancient times. The leniency towards Brahmins in matters of punishment
revived once again during the British period though for different
reasons. The British administrators were basically against any
discrimination in penal laws. But they accepted leniency towards
Brahmins in matters of punishment perhaps because they wanted to
gain the sympathy and support of this prestigious class of Hindu society
by conceding certain concessions to them. These concessions were,
however, withdrawn in subsequent years of British rule in India.
As to the modes of punishment in ancient India, four main forms were
known to have existed. They were:
(i) Admonition or warning (Vakdanda),
(ii) Remonstrance (Prayaschitta),
(iii) Fine (Arthadanda), and
 (iv) Imprisonment, death or mutilation (Vadhadanda, Mritudanda
or Aung Vichheda).
The first-offenders were usually punished with admonition.
Remonstrance or adequate punishment for improper acts perilous to
society. If the wrong-doer caused injury to someone's property or
person, he was punished with fine whereas those who committed
serious crimes were imprisoned, amputated or done away to death.
During the medieval period the Muslim rulers introduced their own
penal laws in India. The system being retributive in nature and irrational
and discriminatory in its application, failed to meet the ends of justice.
The Muslim law arranged punishments for various offences into four
main categories, viz. (1) Kisa, (2) Diya, (3) Hadd, and (4) Tazeer. These
punishments carried with them a bias and contempt for Hindus.
However, with the decline of Moghul rule, the British captured political
power in India. The irrationalities of Muslim criminal law provided an
opportunity for British law administrators to substitute their own
system of laws with necessary modifications so as to suit the needs of
India. While introducing the principles of English criminal law and
methods of punishment in the Indian criminal justice system, they
exercised great caution to ensure that the changes did not offend the
sentiments of the indigenous people. The new system introduced by the
British rulers was far more rational, impartial, and reasonable than their
predecessors and was therefore, readily accepted by the people of India.
As already stated, the supremacy of Brahmins no doubt revived once
again but it was essentially a part of British diplomacy to divide and rule
Indian community. However, it came to an end in the closing years of
British Company's rule in India.

The common methods of punishment introduced by British

administrators in India included the sentence of death, deportation,
transportation, solitary confinement, imprisonment and fines. Petty
offences were punishable with fine. A well organised system of police
was introduced to suppress crimes and apprehend criminals.
The advance of penology in Anglo-American world during 18th and 19th
centuries had its own impact on Indian penal system. Particularly,
during the last fifty years significant penal reforms have been
introduced in India. The sentence of transportation, mutilation, solitary
confinement, whipping or punishing the offenders in public place are
completely abolished and new reformative methods such as parole,
probation, open air prisons, borstals, reformatories, etc. have been
adopted for the rehabilitation of offenders. The modern techniques of
handling the offender have proved to be a great success inasmuch as
they offer a ‘chance’ to an inmate to return to society as a law-abiding
citizen and this inculcates in him a sense of ‘hope’ that he is going to be
trusted by the society after his release from the institution. Modern
penologists generally agree that reformation of offenders should be the
basic purpose of every penal system but at the same time the importance
of deterrence should not be undermined. Reformation and rehabilitation
may be used as a general method of treating the offenders but those who
do not respond favourably to these corrective methods of treatment
must be severely punished. The penal measures must be directed to
show society's abhorrence to crime.
It must, however, be stated that the Indian penal system seems to be less
effective as a control mechanism because it leaves many a criminal to
enjoy the ill-gotten gains of their criminal acts. Undoubtedly, the Indian
penal policy is based on individualised system but it seems to be
working unjustly in favour of advantaged groups, particularly the
political high-ups and those who are in power (The cases of former Prime
Minister, Shri Narsimha Rao; former Chief Minister of Maharashtra, Shri A.R.
Antuley; Bihar supremo, Lallo Prasad Yadav; Jharkhand Leader, Shri Sibu
Soren; sitting M.P. from Bihar, Shri Rajesh Ranjan alias Pappu Yadav; Tantrik
Chandraswamy etc.) are only a few illustrations to support this
contention, with the result the deterrent effect of punishment is
considerably diminished. This is more true with punishment in bribery
and corruption cases and big financial scams where influential persons
are dealt with leniently because they are more articulate and are capable
of manoeuvring things in their favour. Mild punishment or no
punishment in such cases undermines the effectiveness of punishment
as a measure of crime control mechanism. [(A Registered Society) v. Union
of India, A.I.R. 1996 S.C. 3538 (Illegal allotment of petrol pumps and gas
agencies by the then Petroleum Minister Capt. Satish Sharma), Also see, Shiv
Sagar Tiwari v. Union of India, A.I.R. 1997 S.C. 1483 (Illegal allotment of 52
shops and stalls by the then Housing and Urban Development Minister, Smt.
Shiela Kaul to her own favourites); Illegal and arbitrary issue of licences in 2G
Spectrum Scam involving the Union Minister for Tele-Communication, Mr. A
Raja, who is facing corruption charges before the Supreme Court (2011); CWG-
Scam (2010) involving suspended president of the organising committee for
Commonwealth Games and his colleagues as also some bureaucrats who are
under probe of CBI for alleged large scale bungling and corruption in allotting
contract; The Augusta Westland VVIP Chopper deal (2013) involving 3600
crore rupees scam allegedly involving former Prime Minister Dr. Manmohan
Singh, Smt. Sonia Gandhi's political secretary Shri Ahmad Patel, political
leader Oscar Fernandis along with former national security adviser M.K.
Narayan and retired Air Chief Shri S.P. Tyagi]
Crime and Punishment: Need for a Re-look
The laws relating to social policies such as Article 377 on homosexuality
or beef bans and prohibition laws, which are gaining popularity all over
the country are accompanied by over-strict penalties. Even in non-
prohibition states like Delhi, the possession of a few cases of beer, or a
collection of more than nine bottles of single-malt whiskey, could land
one to a jail term of three years. Added to the list is upholding criminal
defamation under Section 499/500 IPC. Defamation is essentially a civil
wrong that was criminalised during the British period. The need of the
hour is that India should improve the delivery of speedy justice in civil
defamation cases, instead of retaining criminal defamation.
The modern global trend is to decriminalise offences such as possession
of cannabis, homosexuality, defamation etc. Criminalising more and
more offences is an indication of an illiberal approach to justice
delivering system. It is inequitable and the poor and dalits are usually
caught or picked up by arbitrary law enforcers. They are made to spend
years in jail as undertrials with no recourse to quick justice. The Law
Ministry is presently engaged in repealing the outdated laws, but it
should not stop at that, it should also look at some of the recent laws and
amend or repeal them in the larger interests of society.

In the modern global scenario, harsh punishments are not a healthy

trend. There is need to maintain an equilibrium with regard to crime and
punishment the dimensions of which keep on changing with social
transformation. The criminal law and penal policy cannot afford to
overlook these changes.
Forms of Punishment and Judicial Sentencing
Punishment is one of the oldest method of controlling crime. In some
societies punishment may be comparatively severe, uniform, swift and
definite while in others it may be a slow and uncertain.
With the advance of time, primitive societies gradually transformed into
civil societies and the institution of kingship began to exercise its
authority in settling disputes. Thus, private vengeance fell into disuse
giving rise to public disposition of wrong-doers. With the State
assuming charge of administration of criminal justice, the process of
public control of private wrongs started which eventually culminated
into modern penal systems of the world. The institution of police as a
law-enforcement agency and the court as justice dispensation
mechanism developed only after crime and punishment became the
matters of public control.
Interpretation of Punishment
The Hindu Shashtras have emphasised on King's power to punish the
law-breaker and protect the law-abider. According to Manu, King was
Danda Chhatra Dhari i.e., holder of Danda (Punishment) and Chhatra
(Protector). According to Gautam Maharishi in Dharmasashtra he defines
the word danda meant restrains. Vasista Samhita also upheld King's
power to punish and destroy the wicked and the evil. But “punishment
must be awarded after due consideration of place, time, age, learning of
the parties and the seat of injury”. For Manu, Danda i.e., punishment was
the essential characteristic of law. He justified punishment because it
keeps people under control and protects them. To quote him,
“punishment remains awake when people are asleep, so the wise have
recognised punishment itself as a form of Dharma”. Punishment
maintains law and order; it protects person and property. The fear of
punishment is an essential attribute of judicial phenomena. Offenders
refrain from wrongdoing for fear of punishment and therefore,
punishment and law are inseparable.

In the context of interpretation of punishment, it must be stated that

human beings have long wrestled with the relationship between crime
and punishment. In primitive societies when people lived in tribes,
individuals and clans avenged crimes. Later, in civil society, people gave
the State monopoly power to punish crimes under due process of law.
The psychology behind punishment was that “if a good person suffers,
the bad one should suffer even more” vindictive emotions are legitimate
and bringing criminals to justice restores moral equilibrium in society.
Thinkers like Plato believed in the legitimacy of retributive justice as
punishment creates moral equality between victim and the offender.
Leniency in punishment or forgiveness makes the offender superior to
the victim, which is contrary to the accepted principles of an ideal penal
policy.

Today, the global trend is that punishment should be fair and

proportional to the gravity of the offence. However, judicial discretion in
sentencing makes it difficult to achieve proportionality between crime
and punishment as it is common knowledge that jail sentences vary
widely for the same offence in the same country and even in the same
court.

Emphasising on proportionality of punishment and imposition of

sentence commensurate with gravity of offence, the Supreme Court in
State of Madhya Pradesh v. Surendra Singh [AIR 2015 SC 398], observed
that undue sympathy to impose inadequate sentence would do more
harm to the justice system to undermine the public confidence in the
efficacy of law. The Court must not only keep in view the rights of the
victim of crime but also the society at large while considering imposition
of appropriate punishment. Meagre sentence imposed solely on account
of delay or lapse of time without considering the degree of the offence
will be counterproductive in the long run and against the society's
interests. In the instant case, the accused endangered the life of innocent
man by driving the jeep on a public road rashly and negligently. As a
result, a man travelling by the jeep was injured and died. Surendra
Singh was convicted for offence u/s 279 and 304A of IPC and sentenced
to 2½ years imprisonment but the High Court modified it to the period
already undergone showing undue sympathy which was not proper
hence set aside by Supreme Court. Similarly in State of Madhya Pradesh v
Hakim Singh & Another AIR 2016 SC 1150 the Supreme Court held that
the punishment was grossly inadequate and reiterated that undue
leniency in awarding sentence needs to be avoided because it does not
have the necessary effect of deterrent for the accused and does not
reassure the society that the offender has been properly delt with. In this
case, the accused (appellants) was convicted for the offence of causing
grievous hurt (under section 306 IPC) and Section 307 (attempt to
murder) read with Section 34 of IPC and sentenced to imprisonment for
10 years with fine. The High Court in appeal reduced the sentence of the
accused to the period of imprisonment already undergone even though
there were hardly any mitigating circumstances to take such a lenient
view.
Punishment-Defined
Punishment under law is the authorised imposition of deprivations of
freedom or privacy or other facilities to which a person otherwise has a
right, or the imposition of special burdens because he has been found
guilty of some criminal violation, typically, though not invariably,
involving harm to the innocent. Thus, punishment may be defined as an
act of political authority having jurisdiction in the community where the
harmful wrong (crime) is committed. It consists of imposition of some
burden or some form of deprivation by withholding some benefit or
right to which a person is legally entitled to enjoy.
Punishment under law is fundamentally a technique of social control,
and its employment is justified to the extent that it actually protects such
social justice as society through law has achieved. It is inflicted by the
State on an individual who is supposed to be subject to the laws of the
State, but breaks such laws.
Constraints in the use of punishment
Though punishment in its nature is an evil but it is an inevitable evil so
far protection of society from the criminals is concerned. However, there
are constraints in using punishment as a weapon of social defence. They
may briefly be stated as follows: -
1. Punishment should not be so severe or torturous as to be
inhumane or cruel.
2. It should not be imposed in a manner that results into violation of
offender's protective rights. That is, punishment should not only
be in accordance with the procedure established by law but also
conform to due process of law.
3. The rule of proportionality should be the guiding principle of
sentencing policy. That is, graver the offence, more severe should
be the punishment.
4. Where there is doubt as to the choice between two punishments,
less severe should be imposed as a general rule.
Forms of Punishment
The history of early penal systems of most countries reveals that
punishments were tortuous, cruel and barbaric in nature. It was towards
the end of eighteenth century that humanitarianism began to assert its
influence on penology emphasising that severity should be kept to a
minimum in any penal programme. The common modes of punishment
prevalent in different parts of the world included corporal punishments
such as flogging, mutilation, branding, pillories, chaining prisoners
together etc. Simple or rigorous imprisonment, forfeiture of property
and fine also recognised as modes of punishment.
Flogging
Of all the corporal punishments, flogging was one of the most common
methods of punishing criminals. In India, this mode of punishment was
recognised under the Whipping Act, 1864, which was repealed and
replaced by similar Act in 1909 and finally abolished in 1955. The
English penal law abolished whipping even earlier. In Maryland
(U.S.A.) whipping was recognised as late as 1953 although its use was
limited only to "wife-beating". Flogging as a mode of punishment is
being used in most of the middle-east countries even to this day.

The instruments and methods of flogging, however, differed from

country to country. Some of them used straps and whips with a single
lash while others used short pieces of rubber-hose as they left behind
traces of flogging. In Russia, the instrument used for flogging was
constructed of a number of dried and hardened thongs of raw hide,
interspersed with wires having hooks in their ends which could enter
and tear the flesh of the criminal. Flogging as a punishment has now
been discontinued in all civil societies being barbarous and cruel in
form.

Penological researches have shown that whipping as a method of

punishment has hardly proved effective. Its futility is evinced by the fact
that most of the hardened criminals who were subjected to whipping,
repeated their crime. There a general belief that whipping may serve
some useful purpose in case of minor offences such as eve-teasing,
drunkenness, vagrancy, shop-lifting, etc. but it does not seem to have the
desired effect on offenders charged with major crimes.
Mutilation
Mutilation was yet another kind of corporal punishment commonly in
use in early times. This mode of punishment was known to have been in
practice in ancient India during Hindu period. One or both the hands of
the person who committed theft were chopped off and if he indulged in
sex crime his private part was cut off. The system was in practice in
England, Denmark, and many other European countries as well.
The justification advanced in support of mutilation was that it serves as
an effective measure of deterrence and retribution. The system,
however, stands completely discarded in modern times because of its
barbaric nature. It is believed that such punishments have an inevitable
tendency to infuse cruelty among people.
Branding
The convicts were branded as a mask of indelible criminal record
leaving visible marks such as scars in the body parts which are normally
noticeable. These permanent indelible marks not only served as a
caution for the society to guard against such hardened criminals but also
carried stigma which deterred them from repeating the offence.

Branding of prisoners was commonly used as a mode of punishment in

oriental and classical societies. Roman penal law supported this mode of
punishment and criminals were branded with appropriate mark on the
forehead so that they could be identified and subjected to public
ridicule. This acted as an effective weapon to combat criminality.
England also branded its criminals until 1829 when it was finally
abolished.
The system of branding was not uncommon to American penal system
also. The burglars were punished by branding letter "T" on their hand
and those who repeated this offence were branded "R" on the forehead.
In Maryland (U.S.A.) blasphemy was punishable with branding the
letter "B" on the forehead. In India, branding was practiced as a mode of
punishment during the Moghul rule. This mode of corporal punishment
now stands completely abolished with the advent of humanitarianism in
the field of penology.
Stoning
Stoning the criminals to death is also known to have been in practice
during the medieval period. This mode of sentencing the offender is still
in vogue in some of the Islamic countries, particularly Pakistan, Saudi
Arabia, etc. The offenders involved in sex-crimes are generally punished
by stoning to death. The guilty person is made to stand in a small trench
dug in the ground and people surround him from all sides and pelt
stone on him until he dies. Though it is a punishment barbaric in nature,
but due to its deterrent effect, the sex crimes, and particularly,the crimes
against women are well under control in these countries.

Pillory (This type of punishment was also called poetic punishment)

Pillory was yet another form of cruel and barbaric punishment which
was in practice until the end of the 19th century. The criminal was made
to stand in a public place with his head and hands locked in an iron
frame so that he could not move his body. The offender could also be
whipped or branded while in pillory. He could be stoned if his offence
was of a serious nature. At times, the ears of the criminal were nailed to
the beams of the pillory. Restraining physical movements of the criminal
had the most agonising effect on him and it was believed that the
deterrence involved in this mode of punishment would surely bring the
offender to books.
The system of pillory existed slightly in different form during the
Moghul rule in India. The hardened criminals and dangerous offenders
were nailed in walls and shot or stoned to death. The punishment
undoubtedly was crueller and more brutal in form and therefore, it finds
no place in modern penal systems.

Hanging condemned prisoner to death in a public place was common

mode of pillory punishment in most part of the world until the middle
of the twentieth century. This mode of punishment is still in vogue for
execution of death sentence. But hanging of a condemned convict to
death in public is strictly prohibited and it has to be carried out in closed
jail premises.
Amercement
Amercement was a financial penalty under the English penal system,
which was commonly used during the Middle Ages. It was imposed
either by court or by the Peers. It was like fine with the only difference
that fine could be a fixed sum prescribed by the statute while
amercement was arbitrary. It was commonly used as a punishment for
minor offences as an alternative to fine.
Fines
The imposition of fine was a common mode of punishment for offences
which were not of a serious nature and especially those involving breach
of traffic rules or revenue laws. This mode of punishment is being
extensively used in almost all the sentencing systems of the world. Fines
by way of penalty may be used in case of property crimes and minor
offences such as embezzlement, fraud, theft, gambling, loitering,
disorderly conduct etc. Other forms of financial penalty include
payment of compensation to the victim of the crime and payment of
costs of the prosecution. Financial penalty may be either in shape of fine
or compensation or costs.
The Indian Penal Code provides for imposition of fine-
(i) as the only disposition method;
(ii) as an alternative to imprisonment;
(iii) as a punishment in addition to imprisonment;
(iv) the actual amount of fine to be imposed is left to the discretion
of the sentencing court.

Fine as an alternative to imprisonment is used only against short-term

imprisonment i.e., imprisonment up to 2 or 3 years.

The real problem involved in imposition of financial penalties is the

quantum of fine or costs and enforcement of its payment. The usual
methods of enforcement are forfeiture of property, and threat of
incarceration. Recovery of fines from the source of income of the
offender may also be one of the methods of enforcing this penalty.
Under the Indian law, the provisions relating to recovery of fines are
contained in Section 421 of the Code of Criminal Procedure, 1973. The
Code provides that when a Court imposes a sentence of fine or a
sentence of which fine forms a part, it may direct that whole or part of
the fine may be paid as a compensation to the victim for the loss or
injury caused to him on account of the crime.
The provisions as contained in the Penal Code relating to imprisonment
in default of payment of fine clearly show that the penal law places more
value on money rather than on human liberty which is violative of
mandate contained in Arts. 14, 19 and 21 of the Constitution of India.
The default stipulation in sentencing of offenders enables a rich person
to buy his freedom very cheap by payment of fine imposed on him.
Whereas a poor person may have to languish in jail for years together
due to his inability to pay the amount of fine. As of now, the poor
offenders are left with no options but to serve the prison term. Thus, the
policy is manifestly discriminatory, unjust and cruel as also against
human liberty and dignity. The default stipulation, that is imprisonment
in default of payment of fine should be so arranged that the accused,
whether rich or poor, have a free option to think whether to pay fine or
serve a jail term.
Doubts have always been expressed about the adequacy of fine as a
mode of punishment in cases of economic offences such as adulteration,
tax-evasion, hoarding, bank frauds, FERA violations, financial scams,
bribery etc. because of the fact that it may prove highly discriminatory
between offenders having means to pay and those having no means to
pay the fine. For rich and wealthy persons, payment of fine would
virtually mean purchasing the release.
In Adamji Umar Dalal v. State (AIR 1952 SC 14) while expressing its
views about fine as a punishment the Supreme Court opined in “In
imposing fine, it is necessary to have as much regard to the pecuniary
circumstances of the accused person as to the character and magnitude
of the offence”. In the instant case, the appellant was convicted for the
offence of black-marketing and sentenced to pay a fine of Rs. 1.500/-
along with a substantial sentence of imprisonment. The Court reduced
the fine to Rs. 1,000/- keeping in view the fact that the accused was
merely a commission agent and the fine imposed by the trial court was
unduly harsh.
Forfeiture of Property
Section 53 of the Indian Penal Code provides forfeiture of property as a
form of punishment. There are two offences specified under Sections 126
and 169 of IPC, which provide for confiscation of property besides the
punishment of imprisonment with or without fine. These sections are as
follows:-
Section 126 of IPC provides that a person committing depredation on
territories of power at peace with the Government of India shall be
punished with imprisonment of either description for a term which may
extend to seven years and also liable to fine and the property so used or
intended to be used in committing such depredation or acquired by such
depredation, shall be liable to forfeiture.
According to the provision contained in Section 169, IPC, a public
servant who being a public servant is legally bound not to purchase or
bid for certain property, if he does so either in his own name or in the
name of another, or jointly, shall be punished with imprisonment which
may extend to two years or with fine, or with both, and the property, if
purchased, shall be confiscated.
Collateral Sanctions (or Penalties)
This form of sanction is commonly used in USA against the released
offenders with drug convictions. They are disentitled from receiving
most public benefits including federally funded housing, bars, driving
licenses, right to vote or to rejoin their children after release. Sex
offenders are also subjected to such sanctions.

It must be stated that these legal restrictions differ from standard forms
of punishment for criminal behaviour such as prison sentence, parole,
probation etc., that are normally meted out under the criminal justice
administration. They are created and enforced by civil law and not by
the criminal law, and are collateral in the sense that they apply to
individuals, and include sanctions or restrictions on certain types of
employment, housing, educational facility or welfare eligibility, exercise
of voting or parental rights etc. Such penalties or sanctions are mostly
attended with non-violent drug related crimes and sex offenders.
Christopher Mele and Teresa A. Miller in their book Civil Penalties and Social
Consequences state Deployment of such offenders for community service
is also treated as a technique of social policy in USA. In some States of
USA, public employment is denied to convicted felons (person who
convicts serious crime). The American criminologists and sociologists
view these collateral penalties as an attempt to intertwine systems of
criminal justice and social welfare.

Imposition of such collateral sanctions depriving ex-offenders of their

civil rights are followed by consequences which are burdensome and,
therefore, it has not been adopted in the Indian Criminal Justice System.
Security Bond
A security bond for good behaviour though strictly speaking not a
punishment, may serve a useful purpose as a form of restraint on the
offender [Sec 106 CrPC Security (Bond) for keeping peace on conviction and
Sec 110 CrPC Security (Bond) from habitual offenders for maintaining good
conduct]. This may entail compulsory treatment or supervision of the
offender. The court may “defer” sentence on some offender
conditionally subject to his normal behaviour. This conditional disposal'
of offender is increasingly being recognised as an effective mode of
corrective justice in modern penology.
The purpose of this nominal measure of punishment is to offer an
opportunity to the offender to become a law-abiding citizen and chances
of his reformation are better than those who are imprisoned or subjected
to institutional sentence. That apart, the family members of the offender
are not adversely affected by this mode of punishment as they are not
deprived of their bread-winner.
Ostracism
Ostracism literally means exclusion of someone from the community or
society, by not noticing or communicating with him/her. This form of
punishment was used in Ancient Greek city States of Athens. In India it
still persists in the remote, rural areas in the form of out-casting a person
if he commits an act against the customary norms of the society. In local
usage it is called it हुका पानी बंद करना. However, it is purely a form of
social boycott of an erring person, which has no recognition under the
penal law of India.
Blanket Civil Death
Though this form of punishment is not known to penal system in India,
it is still prevalent in some States of the US. The convicted person is
deprived of all his civil rights during the period of the sentence. This is
popularly known as “Blanket Civil Death” because of the civil
disabilities on persons convicted of serious crimes which continue
during the period of his incarceration. This form of punishment applies
to offenders who are sentenced to imprisonment for life. The civil
disabilities incurred by such persons include deprivation of-

1. right to vote;
2. right to hold any public office;
3. right to serve on a jury or testify in court, or enter enforceable
contract, etc.
4. right to employment or to hold licence.

The validity of such disabilities was challenged before the courts in

different States and the judicial trend against continuance of punishment
of civil death led to repeal of such laws in most American States.
(Sutherland an Cressey in Principals of Criminology)
Exile
It was a measure to keep the convict away from his country, State or
city, being threatened by imprisonment or death upon his unauthorised
return. The system of exile was extensively used in middle ages during
the supremacy of Church and special forms of exile were in vogue on a
declaration by Church. It was used particularly for political opponents
of those who were in power. However, exile as a form of punishment
fell into disuse by the end of the nineteenth century.

It now exists in milder form, which is known as banishment.

Banishment
Banishment, which is closely related to transportation of criminals, is
used as a form of punishment for elimination of certain types of crimes.
The practice of transporting undesirable criminals to far-off places with
a view to eliminating them from society has been commonly used in
most parts of the world for centuries. In England, war criminals were
usually transported to distant Austro-African colonies. The terms
transportation, banishment, exile and outlawry though similar, have
different connotations. The difference, however, seems immaterial for
the present purpose. Exile as a device merged into outlawry with earlier
religious element largely supplanted by a political motive.
French criminals were transported to French colonies in Guiana and
New Caledonia during nineteenth century. This mode of punishment
was used only for hopeless criminals, political offenders and deserters.
There was no question of these criminals returning alive as they were
sure to die labouring in dense fever-infested forests of the African
island. The French system of deportation was most brutal, cruel and
inhumane. The system was abolished after the World War II when free
French Government was installed in that country.
Russian countries transported their criminals to Siberian penal camps.
The condition of these camps was far worse than those of French in
Guiana. They were virtually hell on the earth and have been called
"House of the Dead" by Dostoevksi. These camps were mostly meant for
political prisoners who were completely deprived of their civil rights
and were long termers.
The practice of transportation is known to have existed in penal system
of British India as well. It was popularly called 'Kalapani'. Dangerous
criminals were despatched to remote island of Andaman and Nicobar. It
had a psychological effect on Indians because going beyond the seas was
looked with disfavour from the point of view of religion and resulted in
out-casting of the person who crossed the seas. The practice came to an
end during early forties after these islands came in occupation of
Japanese. It was finally abolished in 1955.
Though a part of retributive justice, transportation as a method of
punishment has been defended by some criminologists particularly,
Lombroso and Garofalo. Lombroso favoured the system as it eliminates
hopeless incorrigibles from native criminal population and thus
prevents them from demoralising influences. Garofalo supported
transportation as a punishment because of its deterrent effect.
Considered from the practical point of view the practice of
transportation seems to have failed to deliver the goods. It was not only
primitive, cruel, and barbaric but involved considerable burden on State
exchequer as it required regular establishment of penal settlements. The
practice has been abandoned by most countries excepting some Latin
American States where it still prevails as one of the vestiges of
outmoded correctional justice.
It must, however, be noted that the practice of banishment persists in
miniform called “externment”. The object of this method of punishment
is to disassociate the offender from his surroundings to reduce his
capacity to commit crime. This form of punishment has been accepted
under the Indian penal system but it cannot extend beyond India.
Solitary Confinement
Solitary confinement is another deterrent form of punishment in which
the prisoner is denied any kind of contract with any other person or
outside world excluding the prison guards. The prisoners are kept in
isolation with no contract with anyone else and are usually locked in
small cellular room with small windows. The effect of this isolation is so
severe that the deprivation often causes mental illness and even death of
the prisoners before, their final release from the prison. However, it was
defended as the best way to keep the dangerous offenders out of touch
with the people and spend time in penance.

Confining the convicts in solitary prison-cells without work was a

common mode of punishment for hardened criminals in medieval times.
Solitary confinement was intended for elimination of criminals from
society and at the same time incapacitating them from repeating crime.
The deterrence involved in this mode of punishment was deemed
necessary for prevention of crime. The monotony involved in this kind
of punishment had the most devastating effect on criminals. Man by
nature is known to be a social being hence he cannot bear the pangs of
isolation and living in complete seggregation from his fellowmen.
Therefore, lodging of convicts into isolated prison cells under the system
of solitary confinement resulted in disastrous consequences and the
prisoners undergoing the sentence either died untimely or became
insane. Besides, they became more furious and dangerous to society if at
all they chanced to come out of the prison alive after completing their
term of solitary confinement. As a result of these ill-effects on prisoners
the system of solitary confinement soon fell into disuse and it was finally
withdrawn as a measure of punishment.
Commenting on the torture and cruelty involved in solitary
confinement, Dr. P. K. Sen observed that it was perhaps the best way to
put an end to the criminal without resorting to bloodshed or murder.2
Significantly, this mode of punishment is known to have found support
in the ancient Indian penology as an effective expiatory measure. It was
believed that complete isolation of man provides him better opportunity
for penance and remonstrance and the feeling of guilt and self-hatred
tends to bring about his reformation speedily.

The provisions relating to solitary confinement are contained in Sections

73 and 74 of the Indian Penal Code. Section 73 provides that the Court
may order that the offender shall be kept in solitary confinement for any
portion or portions of the imprisonment which he is sentenced, not
exceeding three months in the whole according to the following scale-
(i) for a period not exceeding one month if the term of
imprisonment does not exceed six months;
(ii) for a period not exceeding two months if the term of
imprisonment does not exceed one year;
(iii) for a period not exceeding three months if the term of
imprisonment exceeds one year.
Section 74, IPC limits the solitary confinement to seven days in any one
month in cases where the substantive sentence exceeds three months.
That is to say, solitary confinement must be imposed at intervals. A
sentence inflicting solitary confinement for the whole term of
imprisonment is illegal, though it may be for less than fourteen days.
The Madras High Court, in Munnuswamy v. State has held that the
imposition of the sentence of solitary confinement, although legal,
should be very rarely exercised by a criminal court. It should be
administered, if ever, in most exceptional cases of unparalleled atrocity
or brutality. The Supreme Court has also reiterated this view in Sunil
Batra v. State [(1980) Cri.L.J. 1099 (SC)] wherein the Court held that cases
involving solitary confinement under Sections 29 and 30 of the Prisons
Act, though legal, must be inflicted only in accordance with fair
procedure as it involves harsh isolation of the prisoner from the society
of fellow-prisoners which may cause his mental derangement. In
Kishore Singh Ravinder Dev v. State of Rajasthan [AIR 1981 SC 625] also
the Supreme Court dealt with the parameters of solitary confinement.
Therefore, the general view is that solitary confinement, though legal,
must be inflicted sparingly and only in exceptional cases. Some critics
even suggest that the provision of solitary confinement should be
scrapped from the statute book because it is considered as inhuman
torture by the U.N. Human Rights Charter.
Detention
Detention generally refers to holding a person either as punishment for a
wrong, or as a precautionary measure while carrying out crime
investigation. Any form of imprisonment can be called detention
although normally it refers to person who is being held in temporary
custody without being charged with an offence. For example, Talibans
supporters who were captured in 9-11-2001 US invasion of Afghanistan
have not been classified as prisoners by US Government, but have been
consistently referred to as detainees, suggesting that they are only being
held temporarily while their, status is being investigated. Holding
suspects under custody pending investigation also amounts to
detention.
House Arrest
Where a person is confined by the authorities to his/her residence under
constant surveillance of police, it is known as house arrest. It is a lenient
alternative to incarceration in prison and is usually used by the
Government against political dissidents. The house arrestees generally
do not have access to means of communication (telephone, mobile etc.)
and electronic communication is allowed, it will be taped or censored by
the authorities.
Custodial Sentence
It is a judicial sentence imposing a punishment consisting of mandatory
custody of a convict either in prison (incarceration) or in some other
closed therapeutic institution such as reformatory, rehabilitation centre
etc. Thus, imprisonment is a common form of custodial sentence, which
may be either for life or for a prescribed specific period.
Imprisonment for Life
The Indian Penal Code prescribes five types of punishment, namely, (1)
Death, (2) Life imprisonment, (3) Imprisonment, which may be (a)
rigorous or (b) simple, (4) Forfeiture of property, and (5) Fine. Thus,
‘Imprisonment for life’ has been authorised as a form of punishment
under Section 53 of the Indian Penal Code as amended by Act 26 of 1955
with effect from 1st January, 1956. The Supreme Court, in Naib Singh v.
State (AIR 1983SC 855) held that the ‘nature’ of the punishment of
imprisonment for life is rigorous imprisonment only and a criminal
court could under Section 418 of the Code of Criminal Procedure, 1973
by issuing a warrant, direct the execution of sentence of life
imprisonment in a prison. The Criminal Law (Amendment) Act, 1983
has incorporated imprisonment for life of either description, rigorous or
simple, in the amended Section 376 of the Indian Penal Code. There are
in all fifty-one sections in the Penal Code which provide for sentence of
imprisonment for life.

Section 57 of the Indian Penal Code provides that in calculating fractions

of term of imprisonment, imprisonment for life shall be reckoned as
imprisonment for twenty years.

The executive authorities are competent under Section 55, I.P.C. or

under Section 433 (b) of the Code of Criminal Procedure, 1973 to
commute sentence of imprisonment for life to one of rigorous
imprisonment not exceeding a term of fourteen years. Such commuted
sentence would entitle life convicts to be set free after undergoing the
maximum sentence of fourteen years inclusive of the period of
remissions earned during his incarceration. But in actual practice it is
seen that the prison authorities are illegally detaining the life convicts
for a much longer period than the aforesaid maximum 14 years holding
that the nature of sentence of life imprisonment does not alter by the
aforesaid provisions of Indian Penal Code or the Code of Criminal
Procedure and the sentence remains a sentence of life imprisonment and
does not convert into a maximum sentence of imprisonment for 14 years
by these provisions.(39th Report of Law Commission of India on the
Punishment of imprisonment for life under the Indian Penal Code)
A landmark judgment of the Supreme Court handed down in Kartik
Biswas v. Union of India (Kartik Biswas v. Union of India, A.L.R. 2005 S.C.
3440), deserves special mention in the context of Section 53 of IPC and
Section 32 of the Prisoners Act, 1900 which relate to imprisonment for
life. The Court made it clear that life imprisonment is not equivalent to
imprisonment for 14 years or for 20 years. Elaborating the point further
the Apex Court ruled that there is no provision either in IPC or in
Cr.P.C. whereby life imprisonment could be treated as 14 years or 20
years without there being a formal remission by the appropriate
government. Section 57 of IPC which provides that imprisonment for life
shall be reckoned as equivalent to imprisonment for 20 years is
applicable for the purpose of remission when the matter is considered
by the Government. But the Prison Act and the rules made thereunder
do not confer any authority or power to commute or remit the sentence.

In the instant case, the petitioner was undergoing a life sentence for the
offence of murder and had already undergone more than 21 years
imprisonment at the time of filing the writ petition. His contention was
that his further detention in jail was illegal and therefore, he should be
set free and also paid compensation for his alleged illegal detention
beyond the period of 20 years because the provisions of West Bengal Jail
Code and West Bengal Correctional Services Act, 1992 have equated
imprisonment for life to a term of 20 years simple imprisonment for the
purpose of remission. The petitioner also contended that life-
imprisonment being a distinct punishment from the punishment of
rigorous or simple punishment, the Government could not treat it as a
rigorous imprisonment for life. He further pleaded that prisons being
meant for intermediate custody of those who are awarded rigorous or
simple imprisonment, a life convict could not be lodged in a prison.
Disallowing the petition, the Supreme Court held that the plea that a
person convicted for imprisonment for life cannot be kept in jail is not
tenable. The Court further ruled that imprisonment for life is to be
treated as rigorous imprisonment for life and that it was unnecessary for
the Legislature to specifically say that life imprisonment means rigorous
imprisonment for life.
In yet another case, the High Court of Delhi on 20th December, 2006
awarded life imprisonment to Manu Sharma, son of Congress leader
Vinod Sharma, for murdering model Jessica Lal in 1999. Contrary to the
general perception that life sentence means 14 years' imprisonment,
Manu Sharma will spend his rest of life in jail as directed by the Court.
The Court clarified that the Supreme Court has ruled that a convict who
is awarded life sentence would be imprisoned for the rest of his life,
unless the Government passes an order remitting the sentence to
facilitate his early release.

The Supreme Court in O.M. Cherian alias Thankachan v. State of Kerala

& Ors.,(AIR 2015 SC 303) held that where the conviction of the accused is
for several offences at one trial, the court may at its discretion order
sentences to run consecutively or concurrently. This discretion has to be
exercised along judicial lines as provided in Section 31 of the Code of
Criminal Procedure, 1973, subject to provisions of Section 71, IPC. As
provided in Section 71 of IPC, Court may pass separate sentences for
two or more offences of which the accused is found guilty but the
aggregate punishment must not exceed the limit fixed in proviso (a) and
(b) of Section 31(2) of Cr. P.C. The discretion under Section 31 has to be
used judicially and not in a mechanical manner.
The Supreme Court in Raj Bala v. State of Haryana & Ors. (AIR 2015 SC
3142), observed that where the accused was convicted for the offence of
abetment of suicide under Section 306/53 IPC and sentenced to three
years rigorous imprisonment and fine by the trial court, the reduction in
his sentence by the High Court in the absence of any mitigating
circumstances to sentence for the period already undergone (only 4
months 20 days) was unwarranted. It was casual and fanciful rather
than just one. Therefore, order of the High Court was quashed and
sentence awarded by the trial court was restored by the Supreme Court.
The accused were ordered to be taken back in custody forthwith to
undergo the remaining part of their sentences.

Quoting Friedman from his Law and Changing Society, the Apex Court
in this case observed, “the State of Criminal Law continues to be a
decisive reflection of social consciousness of society.” Therefore, “in
operating sentencing system, law should adopt the corrective machinery
or deterrence based on factual matrix. Unduly lenient punishment
would lead to lawlessness and would undermine social order and lay it
in ruins. Protection of society and stamping out criminal proclivity must
be object of law, which must be achieved by imposing appropriate
sentence.”(AIR 1991 SC 1463)
The punishment to be awarded for a crime must not be irrelevant but “it
should conform to be consistent with the atrocity and brutality with
which the crime has been perpetrated, the enormity of the crime
warranting public abhorrence and it should respond to the society's cry
for justice against the criminal.”
Life imprisionment as an alternative punishment to Death sentence
The vexed question of award of death sentence to a cold-blooded
murderer or life sentence once again came up before the Supreme Court
in Swamy Shraddhananda alias Murli Manohar Mishra v. State of
Karnataka. (AIR 2008 SC 3040) The Court in this case, made it explicitly
clear that a convict punished with life imprisonment means
imprisonment till his last breath. But once the judgment is pronounced
the matter passes into the hands of the executive and is governed by
different provisions of law and there is no guarantee that the sentence
awarded to the convict by the Court after considerable deliberation
would be carried out in actuality. The remissions granted by the
executive to a life convict virtually reduces the sentence to not more than
14 years. It is a matter of serious judicial concern that the sentence of life
imprisonment awarded to the convict as a substitute for death should be
treated alike with the ordinary life imprisonment given as the sentence
of first choice.
The Apex Court in this judgment referred to the Report entitled “Lethal
Lottery, the Death Penalty in India”, compiled jointly by Amnesty
International India and Peoples’ Union for Civil Liberties, Tamil Nadu
and Pondicherry based on the Supreme Court judgments, on death
penalty from 1950 to 2006. The Report highlights the lack of uniformity
and consistency in the award of death sentence and/or its substitution
by imprisonment for life. Some of the illustrative judgments of the
Supreme Court are as follows:
In Subhash Chander v. Kishanlal and others (2001) 4SCC 458, four
accused persons including Kishanlal were convicted for multiple
murders and sentenced to death by the trial Court and the High Court
confirmed the sentence. In appeal, the Counsel for Kishanlal, on
instructions from the convict, submitted that Kishanlal, if sentenced to
life imprisonment instead of death, would never claim premature
release or commutation of his sentence on any ground i.e., under Section
401 of Cr. P.C., Prison Act, Jail Manual or other Statutes or rules meant
for the grant of remission. The Supreme Court agreed to the plea of the
Counsel and sentenced Kishanlal for imprisonment for rest of his life.
In Mohd. Munna v. Union of India (2005) 7SCC 417, the Apex Court held
that in the absence of an order of remission formally passed by the
appropriate government, there is no provision in I.P.C. or Cr. P.C. under
which a sentence of life imprisonment could be treated as for a term of
14 years or 20 years and that a life convict could not claim remission as a
matter of right.
The Court expressed its anguish for States of Bihar and Karnataka life
convicts being granted remission and released from prison on
completion of 14 years without any sound legal basis and remission is
being allowed to them in a routine manner without any sociological or
psychological, appraisal.
Having reviewed the law on award of life imprisonment as a substitute
for death, the Court in Swamy Shraddhananda case, convicted him for
life and directed that he shall not be released from prison till the rest of
his life.
It may, however be stated that most European countries have prescribed
a minimum period of incarceration after which a lifer may apply for
release on parole provided he had exhibited good behaviour during the
period he spent in prison. Thus, in Germany, the minimum time to be
spent by a person sentenced to imprisonment for life is 15 years whereas
it is ten years under the criminal law of Finland. Similar law may be
adopted in India so as to provide a humanitarian touch to the sentencing
of convicts with imprisonment for life.
Imprisonment
Imprisonment presents a most simple penal and common form of
sentencing for incapacitating the criminals. It has proved to be an
efficient method of temporary elimination of criminals apart from being
a general deterrent and an individual deterrent. Conditions of
imprisonment in civilised countries have undergone radical changes in
recent decades. The minimum security institutions such as open prisons
and prison hostels are being increasingly used as modified forms of
incarceration of offenders.
Despite being a corrective measure, the most intricate problem involved
in imprisonment as a measure of punitive reaction to crime is the
“prisonisation” of offenders. The prisoner is confronted with the most
crucial problem of adjustment to new norms and environment of prison
life. He loses his personal identity in the process of adjustment and is
converted into a mere impersonal entity.
Yet another set back of imprisonment as a mode of punishment is its
damaging effect on family relationship of the offender. The offender
loses contact with the members of his family and if he happens to be the
sole bread-winner, the consequences are still worse. The members of his
family suffer misery, starvation and financial crisis. Depriving the
offender of his family life for a considerably long period creates new
problems for prison discipline in form of homosexuality, bribery,
corruption, indiscipline, revolt etc.

Prisonisation of woman offenders presents many-fold problems before

the prison administration. Particularly, the women prisoners who are
pregnant or have babies need special care and attention as regards their
food, medical treatment, health, and nourishment of the child. This casts
additional financial burden on the prison administration. This is one
reason why the prison authorities are more liberal in granting
remissions, furloughs, parole etc. to the women prisoners or in the
alternative, they are sent to women reformatories called as Nari Sudhar
Graha.

In India, parole and furlough are now being extensively used as a part of
penal substitutes for mitigating the rigours of prison inmates. The All
India Jail Reforms Committee has further observed that the prisoners
should be released on furlough after undergoing a specified period of
imprisonment so that they maintain contact with their relatives and
friends and may not feel uprooted from society and prevented from the
evil effects of prisonisation.(Bhikhabhai Devshi V. State of Gujarat and
others, AIR 1987 Guj 136)
The social stigma attached to prisoners makes their rehabilitation more
difficult. Prisoners quite often feel that the real punishment begins after
they leave the prison institution. Sir Lionel Fox, the noted prison
reformist of Britain introduced Hostel system for inmates to prevent
them from stigmisation and ensure them an honourable life in society.
Be that as it may, the fact remains that imprisonment is still one of the
most accepted forms of punishment throughout the world. With the
modern correctional techniques introduced in prison institutions, it
serves as an efficient measure of reforming the criminal and at the same
time protecting the society from anti-social elements. Prisonisation of
offenders serves the dual purpose of preventive and reformative justice
at one and the same time.
Capital punishment
Of all forms of punishments, capital punishment is perhaps the most
controversial and debated subject among the modern penologists. There
are arguments for and against the utility of this mode of sentence. The
controversy is gradually being resolved with a series of judicial
pronouncements containing elaborate discussion on this complex
penological issue. (a detailed discussion on the subject is deferred to
succeeding chapter)

The offences which are punishable with death sentence under the Indian
Penal Code include:

(i) waging war against the State (Sec. 121);

(ii) abetment of mutiny (Sec. 132);
(iii) Giving or fabricating false evidence leading to procure one's
conviction for capital offence (Sec. 194);
(iv) murder (Sec. 302);
(v) abetment of suicide committed by a child or insane (Sec. 305);
(vi) attempt to murder by life-convict, if hurt is caused (Sec. 307);
(vii) kidnapping for ransom, etc. (Sec. 364-A), and
(viii) dacoity with murder (Sec. 396).
It is significant to note that though the aforesaid offences are punishable
with death but there being alternative punishment of life imprisonment
for each of them, it is not mandatory for the Court to award exclusively
the sentence of death for any of these offences. In fact, where the Court is
of the opinion that the award of death sentence is the only appropriate
punishment to serve the ends of justice in a particular case it is required
to record “special reasons” justifying the sentence stating why the award
of alternative punishment i.e. imprisonment for life would be
inadequate in that case. [Sec 354(3) Cr.P.C.]
The recent penological trend is to give primacy to reformative methods
of punishment which were hitherto used merely as supplementary
measures. Hungary is perhaps the first country to initiate the
reformative educational method for its prisoners. Besides fines, which
Prof. Jescheck considered to be central sanction of an up-to-date penal
policy, the collateral sanctions such as prohibition from pursuing a
profession, disqualification of driving, local punishment and
confiscation of property are also being extensively used as sophisticated
modes of punishment.[Hungarian Law Review No.1-2 (1980)]. According
to Dr. Joseph Folvari, these sanctions (measures) would refrain the
perpetrator from committing a further crime and at the same time
would put an end to the possibility of a further criminal act being
committed. Needless to say that these measures would be equally
effective if adopted in the Indian penal system.