(1) MEANING OF PUNISHMENT
The IPC basically deals with definitions of offences and punishment therefore. The world ‘punishment’ is not defined by IPC, but describes kinds of punishments under section 53 and empowers the appropriate government to commute the death sentence into any other forms of punishment under section 54 and life imprisonment into specific period of punishment under sections 55, IPC.
The Oxford Dictionary defines “punishment means to make an offender suffer for an offence”. According to Sutherland, “punishment involves pain or suffering produced by design and justified by some value that the suffering is assumed to have.” Sethana said punishment is some sort of social censure and not necessarily the involving or infliction of physical pain. Westermark defines punishment is limited to such suffering as is inflicted upon the offender in a definite way by, or in the name of the society of which he is a permanent or temporary member. It can be said that punishment is the deliberate infliction of physical harm on an offender or his property without his consent because he is an offender, but for reasons other than self-defence.
1.1 JURISPRUDENCE OF PUNISHMENT
Throughout history and in many different parts of the world, societies have devised a wide assortment of punishment methods. In ancient times, societies widely accepted the law of equal retaliation known as lextalionis, a form of corporal punishment that demanded “an eye for an eye.” If one person’s criminal actions injured another person, authorities would similarly maim the criminal. Certain countries throughout the world still practice corporal punishment. For instance, in some Islamic nations’ officials execute revenge-based corporal punishments against criminals, such as amputation of a thief’s hand, under the law of hooded.
During the 18th and 19th centuries, several French, English, and Italian philosophers and social reformers achieved prominence through their criticisms of corporal punishments. For example, French political theorist Montesquieu criticized the French Penal Code and the inhuman punishments suffered by prisoners. He believed that punishments should fit the crimes committed and that more humane conditions should be provided for incarcerated offenders.[1] French philosopher and social critic Voltaire also objected to injustices against criminals, such as arbitrary sentencing practices and secret trials. Denis Diderot, another French philosopher, campaigned for political reforms to eliminate punishments he believed to be cruel and inhuman.
1.2 COMPONENTS AND INGREDIENTS OF PUNISHMENT
The Hon’ble Gujarat High Court explained the components and ingredients of punishment and held the following ten most important components and ingredients of punishment.[2]
(i) Punishment is applied by employing coercion and can be enforced even against the will of the punished.
(ii) Punishment is a measure adopted and enforced by the State. Private punishment meted out by parents, teachers, employers, the community, etc. is outside the scope of penological consequences of a crime.
(iii) Punishment or the limits of punishment are stipulated in advance by the State. Punishment very clearly embodies the principle of nullapoena sine lega, there is no punishment without the law.
(iv) Punishment is applied by competent organs of the State in a properly constituted legal procedure. Due process is the name of the game. Thus if a murderer is lynched by the people, then such a punishment is not punishment in the criminological sense.
(v) Punishment is generally believed to be directly enforced on each individual personally. Any sort of ‘collective punishment’ is outside the scope of penological punishment.
(vi) Punishment is a disadvantage designed to act as a negative and to hurt the receiver of the punishment mentally, emotionally, physically or financially.
(vii) Punishment is the consequence of crime. The prohibited act must be listed and defined as a crime in the law books.
(viii) Punishment is applied in the name and defence of the society.
(ix) Punishment is disapproval and expresses condemnation by the State.
(x) Prevention of crime is main reason for the existence of penal provisions in law books.
1.3 PURPOSES OF PUNISHMENT
It is agreed by almost all penologists that punishment is necessary in all the civilised countries for the offenders. When any criminal commits the crime, he causes loss to the society and the State, so he has to pay back something in any form to the society or State. If criminal will not pay anything to the society or State then there is no possibility to maintain peace in the society and it will be disorder, all the rich and brave persons will harass and crush the poor persons in the society. Here the poor will not have any means to the rights given to them by the law of land. In other words, we can say big fish will eat the small fish. Various penal systems have adopted different theories of punishment but all the theories want to give punishment to the offenders. In present time when it is established that, germs of the crime are also within society, not only with the criminal then why we want to punish. He can be corrected by the therapeutic treatment or any other kind of treatment.
The various goals of criminal punishment may conflict with one another. For instance, the goal of incapacitation may be achieved by confining offenders for long prison terms. However, inmates who are warehoused in large prisons where they associate closely with other criminals and lack of control over their life may develop additional anti-social behaviours. Consequently, punishment may perpetuate criminal dispositions and behaviours rather than eliminate them. Purposes of the punishment may be discussed as under –
The Hon’ble Gujarat High Court held that one of the purposes of punishment is to have its deterrent effect. If offenders found guilty of somewhat serious offence of causing injuries with some sharp cutting instrument are dealt with a very lenient manner, the punishment will lose its deterrent effect. On the contrary, such offenders would be encouraged to indulge in repetition of such offences.[3]
The need for imposing penal sanctions in adequate measures was highlighted in catena of cases and observed that justice to the victim and the community must be assured by the criminal justice system. As pointed out by Lord Scraman, “there are contemporary challenges and if the system cannot meet them, they will destroy it”. Criminal Law reveals cross-cultural conflicts. Public interest must be served, while the human dignity of the prisoner is; maintained and the rigours of imprisonment are ameliorated.
1.4 OBJECT OF PUNISHMENT
The Hon’ble Supreme Court held in A.R. Antulay’s case that the interest of the society being one of the objects behind penal statutes enacted for larger good of the society. While punishing the offender it should be kept in mind.
The four main objects which punishment of an offender by the State is intended to achieve are deterrence, prevention, retribution, reformation and restoration is well recognised and does not appear to be open to dissent. In its deterrent phase, punishment is calculated to act as a warning to others against indulgence in the anti-social act for which it is visited. It acts as a preventive because the incarceration of the offender, while it lasts, makes it impossible for him to repeat the offending act. His transformation into a law-abiding citizen is of course another object of penal legislation but so is retribution which is also described as a symbol of social condemnation and a vindication of the law. The question on which a divergence of opinion has been expressed at the bar is the emphasis which the legislature is expected to place on each of the said four objects. Justice Fazal Ali was fully disagree with the contention that the main object of every punishment must be reformation of the offender and that the other objects abovementioned must be relegated to the background and be brought into play only incidentally, if at all.[4]
- THEORIES OF PUNISHMENT AND INDIAN THEORY OF PUNISHMENT
The Supreme Court held that sentencing the guilty person is most important, albeit a difficult chapter in trial. Theories of punishment are many – reformative, preventive, deterrent, retributive and denunciatory. Retributive and denunciatory theories have lost their potency in the civilized nations. Deterrent and preventive sentence is sometimes necessary in the interest of society. The modern trend places emphasis on the reformation of an offender and his rehabilitation. Reformation and not retribution is the sentencing lodestar.
2.1 RETRIBUTIVE THEORY
Retribution means something done or given to somebody as punishment or vengeance for something he or she has done. It is a just retribution for their crime. This theory says to return the same injury to the wrongdoer, which he had committed against the victim. It says “tit for tat”. Retribution is often assimilated to revenge, but a public rather than a private revenge.
The Hon’ble Supreme Court held that the whole goal of punishment is curative. Accent must be more and more on rehabilitation rather than on retributive punitivity inside the prison. The retributive theory had its day and is no longer valid. Deterrence and reformation are the primary special goals which make deprivation of life and liberty reasonable as penal panacea.[5]
2.2 DETERRENT THEORY
Deterrent or deterrence means something that deters somebody or something, restrain anyone from taking action, to discourage somebody from taking action or prevent something happening, especially by making people feel afraid or anxious. In another word it is a ‘warning’, ‘preventive’, ‘restrictive’, ‘restraining’, or ‘limiting’ someone for any particular act. The word ‘deter’ means ‘abstain from action’, and ‘to deter’ means ‘a variety of motives may deter any one from an undertaking’. It also means “the prudent and fearful are alike easily to be deterred”.
This is also known as Utilitarian preventive theory. Utilitarianism assesses punishments on the basis of the good that punishments do for individuals or for society. Realising that it is not the brutality of punishment but its surety that serves as a greater deterrent, our Hon’ble Supreme Court held that a barbaric crime does not have to be visited with a barbaric penalty such as public hanging which will be clearly violative of Article 21 of the Constitution.[6]
2.3 PREVENTIVE THEORY
Preventive means with the purpose of preventing something used or devised to stop something from happening, or to stop people from doing a particular thing. Preventive theory punishes the offenders, to prevent the future crime in the society, by isolating the criminals from society. This theory believes that, the goal of punishment is restraint. If, a criminal is confined, executed, or otherwise incapacitated, such punishment will deny the criminal ability or opportunity to commit further crimes and prevent the society from that harm.
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 are endangering social order in general or person or property of its member.
Preventive theory of punishment is also called behavioural preventive theory or restraint theory. This theory punishes the offenders, to prevent the future crime in the society, by isolating the criminals from society. The Hon’ble Supreme Court has held that deterrent and preventive sentence is sometimes necessary in the interest of society.[7]
In India, imprisonment is the general form of incarceration for an offence punishable with imprisonment under IPC or Special Law. Imprisonment may be given for life time or for a certain period. When he is undergoing the sentence, he has been observed by the authorities, for his good conduct he is eligible for remission, parole and furlough. He is getting wage for the work done by him during incarceration. Under the scheme of institutional care various rehabilitative and reformative courses are conducted for them.
2.4 REFORMATIVE THEORY
Another possible goal of punishment is reformation of the offender. Supporters of reformation seek to prevent crime by providing offenders with the education and treatment necessary to eliminate criminal tendencies, as well as the skills to become productive members of society.
Reformation is synonymous to the word ‘improvement’, ‘modification’, ‘transformation’, ‘alteration’, ‘change’, ‘development’, ‘amendment’. Reform means change and it improves somebody by correcting faults, removing inconsistencies and abuses, and imposing modern methods or values or to adopt a more acceptable way of life and mode of behaviour or persuade or force somebody else to do so. Reformation is the act or process of reforming somebody especially a general improvement in his behaviour.
This theory claims that a criminal can be reformed into a good citizen as law-abider by giving him competent treatment during his imprisonment period. He is in the need of a doctor-cum-guide and not of the jailer. This theory is not giving punishment on the seeing of the past but of the future. This theory says that the offender should not be punished but he should be treated and converted into a law-abider citizen by giving training. He should be trained to rehabilitate in the society after completion of his sentence.
2.5 EXPIATION THEORY
The theory of expiation is also known as theory of restoration. Expiation means “the act of expiating, reparation, amends, compensation”. It means atoning or suffering punishment for wrong-doing or making amends, or showing remorse, or suffering punishment for a wrongdoing. This is not the new concept, if we look towards the epic period. Valia a famous dacoit turned into a sage (Maharishi) Balmiki and wrote the Ramayana. It is the greatest example of the expiation and reformation.
The theory of restoration takes a victim-oriented approach to crime that emphasizes restitution (compensation) for victims, rather than focus on the punishment of criminals and advocates restoring the victim and creating constructive role for victim in the criminal judicial process. For example, relatives of a murder victim may be encouraged to testify about the impact of the death when the murderer is sentenced by the court. The promoters of this theory believe that such victim involvement in the process helps in repairing the harm caused by crime and facilitates community reconciliation.
The Hon’ble Supreme Court while upholding the principle held that, it is open to the court under section 357(3) of the Code, to award compensation to the victim or his family.[8] We also have empowered government to make the scheme for victim fund under section 357A and section 357B & 357C were inserted by Criminal Law (Amendment) Act, 2013 to empower the court to award compensation to victim of sexual offence, in addition to the fine.
2.6 EVALUATION OF INDIAN THEORY OF PUNISHMENT
The theories of punishment are so full of logical problems that punishment cannot be a part of justice, which needs to be exact, consistent, and non-contradictory. Reform and deterrence cannot justify punishment, because they are based on practical rather than moral arguments.
To evaluate the Indian theory of punishment we find a mixed theory of deterrent, preventive, reformative with expiation. In the socio-economic offence, the intention of legislature and our judiciary is clear that they want to adopt deterrent (exemplary) punishment, to prevent the would-be criminal in society. There are only some offences, gives the death sentence and moreover in the rarest of the rare cases and not in all the cases. The adopting of rigorous imprisonment and life imprisonment and any imprisonment for long-periods are on the basis of preventive theory only. But, when imprisonment is given on the basis of reformation, i.e., send the prisoner into open prison, start programmes in the prison and give them training for reform in the society after conviction, release the offender on probation, release after admonition, etc. When authorities are awarding sentence on the basis of victim’s right, in this case the offender wants to expiate himself but without paying the loss to the victim. So if offender wants really expiate himself then he has to pay back to the victims for the loss which is done by him. In all the compoundable offences such punishment is allowed.
(3) PRINCIPAL FORMS OF PUNISHMENTS IN THE IPC
Although some societies still use ancient forms of harsh physical punishment, punishments have also evolved along with civilization and become less cruel. Punishments range in severity depending on the crime, with the most severe forms applied to individuals who commit the most serious crimes. In most industrialized societies, contemporary punishments are either fines or terms of incarceration or both. Contemporary criminal punishment also seeks to correct unlawful behaviour, rather than simply punish wrongdoers. According to section 53 of IPC, the punishments to which offenders are liable are as follows:
(a) Death sentence,
(b) Imprisonment for life,
(c) Imprisonment – (i) Rigorous imprisonment (with hard labour), or (ii) Simple imprisonment,
(d) Forfeiture of property, and
(e) Fine.
3.1 DEATH SENTENCE (CAPITAL PUNISHMENT)
The infliction of death by an authority as a punishment is called capital punishment. Of all forms of punishment “death sentence” or “capital punishment” is perhaps the most debated subject among the modern penologist. Now-a-day death sentence is awarded in “rarest of the rare cases”. According to the IPC, the punishment of death sentence is in alternative form. It is not in mandatory form, for any crime. Before 1983, it was in mandatory under section 303 of IPC (murder committed by the person who is undergoing the life imprisonment). But in 1983, the Hon’ble Supreme Court held that section 303 is violative of Article 14 and Article 21 of the Constitution of India, hence it is unconstitutional.[9] So, at present there is not a single offence which prescribed death sentence in mandatory form as constitutional.
The Supreme Court held, for awarding death sentence Court, while applying the rarest of rare case doctrine, is duty bound to equally consider both aggravating and mitigating circumstances and then arrive at conclusion.[10] The appropriate government is empowered to commute death sentence in any other forms of sentences.
There are total 10 offences in IPC imposes maximum sentence as death sentences. Recently, the Criminal Law (Amendment) Act, 2013, had introduced death sentence for causing death or resulting in persistent vegetative state of victim under section 376A and section 376E imposes death sentence for repeat offenders under section 376, 376A or 376D.
3.2 IMPRISONMENT FOR LIFE
The sentence of ‘imprisonment for life’ was substituted for the “transportation for life”, from 1st Jan, 1956. The Hon’ble Supreme Court has held that the nature of punishment of “imprisonment for life” is rigorous imprisonment only, it is not simple imprisonment. The Criminal Law (Amendment) Act, 1983 incorporates that; it may be rigorous or simple. But, even after Amendment, the Hon’ble Supreme Court has held that “imprisonment for life is to be treated as ‘rigorous’ imprisonment for life”. Transportation to overseas penal settlements implied hard labour for the concerned convicts and the punishment for deportation beyond seas was considered to be most deadened punishment.[11]
There are 60 sections (after Criminal Law (Amendment) Act, 2013) under IPC besides abetment and criminal conspiracy, which provide expressly “imprisonment for life”. To study these offences, we have divided offences punishable with “imprisonment for life” into four categories; namely, (i) Imprisonment for life is minimum punishment, (ii) Imprisonment for life is with the option of death sentence and some specific term of imprisonment, (iii) Imprisonment for life is the only punishment, and (iv) Imprisonment for life is maximum punishment.
Ordinarily, ‘imprisonment for life’ means imprisonment for remaining life of the convict but section 57 states that for the purpose of computation of ‘imprisonment for life’ it should be read for ‘20 years’. Further section 55 empowers the appropriate government to reduce the sentence for any period up to 14 years. Section 433A of the CrPC imposes restriction on remission of sentence. It says that it cannot be reduce less than 14 years when imprisonment of life is awarded in option of death sentence. The Supreme Court refused to accept any punishment of imprisonment of life with specific period of sentence. It is administrative function, not the judicial function therefore refused to release the offender even after completion of 20, 24 or 30 years of imprisonment.
The Criminal Law (Amendment) Act, 2013, had introduced new format of life imprisonment by explicating that “imprisonment for the reminder of that person’s natural life”. The future of this new sentence will be decided by higher judiciary, when it will come before them.
3.3 IMPRISONMENT
Besides the life imprisonment, the punishment of imprisonment is divided into following categories; namely (i) Rigorous imprisonment; (ii) Simple imprisonment; and (iii) solitary confinement.
(a) RIGOROUS IMPRISONMENT
In the case of rigorous imprisonment the offender is put to hard labour such as grinding corn, digging earth, drawing water, cutting fire wood, bowing wool, etc. In another word, keep the man under hard labour. The IPC expressly provides for many of the offences in which the offender can be expressly provided the Rigorous Imprisonment. It means there is no alternative form of simple imprisonment but simple imprisonment may be awarded with the reasons for.
Now, the day has gone when rigorous imprisoned doing hard labour such as grinding corn, digging earth, drawing water, cutting fire wood, bowing wool, etc., but they are doing some another work also which is not so hard as earlier, prisons are providing rehabilitative works.
(b) SIMPLE IMPRISONMENT
In the case of simple imprisonment the offender is confined to jail and is not put to any kind of work, but they can be asked to work at their own choice with wages.
According to section 57 of the IPC, maximum imprisonment for any offences can be awarded is 20 years. The maximum imprisonment in term expressly provided under IPC is 14 years imprisonment for any offence. These offences are – (a) Intentional omission to apprehend on the part of public servant bound to apprehend person under sentence or lawfully committed under section 222; (b) The robbery be committed on the highway between sunset and sunrise under section 392; and (c) Lurking house-trespass or house-breaking by night after preparation for hurt, assault, or wrongful restraint under section 458.
The lowest maximum terms actually can be given for an offence is 24 hours for misconduct in public by a drunken person under section 510. There are 26 offences in IPC which explicitly provide that only simple imprisonment can be awarded. The minimum imprisonment is unlimited; it is described in some cases like punishment for rape under section 376 not to give less than 7 or 10 years. But robbery or dacoity with attempt to cause death or grievous hurt under section 397 and Attempt to commit robbery or dacoity when armed with deadly weapon under section 398, such offender shall not be punished with less than seven years. Similarly, whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life under section 304B.
(c) SOLITARY CONFINEMENT
Solitary confinement means keeping a person thoroughly isolated from any kind of contract with the outside world. It is conflicted with a view that feeling of loneliness may produce a wholesome influence in the criminal and thus reform him. Solitary confinement is an aggravated kind of punishment, exploits fully the sociable nature of man, and by denying him the society of his fellow beings, it seeks to inflict pain on him.
According to section 73 of the IPC, whenever any person is convicted of an offence for which under this Code the Court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole, according to the following scale, that is to say –
(1) A time not exceeding one month, if the term of imprisonment shall not exceed six months.
(2) A time not exceeding two months, if the term of imprisonment shall exceed six months and shall not exceed one year.
(3) A time not exceeding three months, if the term of imprisonment shall exceed one year.
3.4 FORFEITURE OF PROPERTY
There are only three Sections which describe about the forfeiture of the property that are sections 126, 127 and 169 of IPC. The property may be forfeited under section 126 for committing depredation on territories of Power at peace with the Government of India; under section 127 for receiving Property taken by war on depredation; and under section 169 for public servant unlawfully buying or bidding for property. Now a day, forfeiture of the property is necessary in case of socio and economic crimes.
3.5 FINE
The IPC has imposed fine in all most all the cases. It is either only or in option of other punishment or in addition to other punishment. The IPC either provides maximum fine or just says fine. Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. The amount of fine goes to government treasury but section 357 of CrPC empowers the Court t convert fine into compensation which is to be paid to the victim of crime.
(a) Sentence of imprisonment for non-payment of fine.-
Section 64 of IPC says in every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.
(b) Illustration
A is sentenced to a fine of one hundred rupees and to four months imprisonment in default of payment. Here, if seventy-five rupees of the fine be paid or levied before the expiration of one month of the imprisonment. A will be discharged as soon as the first month has expired. If seventy-five rupees be paid or levied at the time of the expiration of the first month, or at any later time while A continues in imprisonment. A will be immediately discharged. If fifty rupees of the fine be paid or levied before the expiration of two months of the imprisonment, A will be discharged as soon as the two months are completed. If fifty rupees be paid or levied at the time of the expiration of those two months, or at any later time while A continues in imprisonment, A will be immediately discharged.
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[1] Des L’espirit des Lois 1748, (translated as The Spirit of the Laws, 1750).
[2] State of Gujarat v. Raghu, 2003 Cr.LR (Guj) 393 : 2003 (1) GLR 205.
[3] State of Gujarat v. Mustufakhan B. Pathan, 1997 Cr. LR (Guj) 380.
[4] Maru Ram v.Union of India, AIR 1980 SC 2147 : 1981 (1) SCC 107.
[5] Rajendra Prasad v. State of U.P., AIR 1979 SC 916.
[6] Attorney General of India v. Lachma Devi, AIR, 1986 SC 467.
[7] SaradhakarSahu v. State of Orissa, 1985 Cr LJ 1591.
[8] Rachhapal Singh v. State of Punjab, AIR 2002 SC 2710.
[9] Mithu v. State of Punjab, AIR 1983 SC 473.
[10] Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
[11] Md. Munna v. Union of India, AIR 2005 SC 3440.