This article is written by Sonia Balhara, from Sushant University, Gurgaon. This article deals with the history of punishment in India. This article also provides a perspective on the developments of punishment in India.
The concept of punishment, its explanation, and its concrete request and reasoning during the past half-century have presented a clear idea of how hard work changes and socializes wrongdoers in support of revenge and confinement. Punishment in its formation is now recognized to be an integral revengeful practice, whatsoever may be the additional role of revenge as reasoning or objective of punishment.
An abundant validation of punishment would continue by presenting that society wants the hazard. The exercise of punishment since the aim of social edict cannot be reached or else because it is partial to assume suffers from illegal violent behaviour to tolerate the cost of their unfair treatment. Restraints on the use of vulnerable punishments are essential, given the ways in which consultants and supremacy can be mistreated.
Philosophical reflection on a penalty has helped cause and is itself a part of controlling developments within the understanding of penalty that have taken place outside the academy within the world. A generation part sociologists, criminologists, and penologists became disillusioned with the rehabilitative effects (as measured by reductions in wrongdoer recidivism) Of programs conducted in prisons geared toward this finish in 1974.
This sophistication led to scepticism regarding the profitableness of the terrible aim of rehabilitation inside the framework of existing penal philosophy. To those were additional scepticism over the deterrent effects of penalty (whether special, general toward the wrongdoer, or general, geared toward the public) and as a good goal to that left, apparently, solely two doable rational aims to pursue within the apply of penalty beneath law social defense through confinement, and retributivism.
However, even determinate sentencing wouldn’t be honest unless the sentences therefore approved were the punishments that guilty offenders due. So was born the belief of ‘just deserts’ in sentencing, that effectively combined the two ideas. By this route, the goals of incapacitation and retribution came to dominate, and in some quarters fully succeed, the goals of rehabilitation and deterrence within the minds of politicians and social theorists.
Concurrently with these generally socio-legal developments, philosophers were crafting their own arguments, renewing classic views related to the names of Immanuel Kant and George Wilhelm Friedrich Hegel to determine two principal ideas that work astonishingly well with those reviewed high:
- First, philosophers urged that the reformation of guilty offenders isn’t the aim, or maybe a subsidiary aim among many, of the practice of a penalty.
- Second, justice or fairness in penalty is the essential task of sentencing, and a simple sentence takes its character from the blameworthiness of the wrongdoer and also the damage the crime caused the victim and society.
Philosophers reached these conclusions as a result of they argued that there have been irreducible aspects to punishment in the terrible definition of the application, with the norms governing justice in a penalty, and within the purpose of the practice likewise.
As a result, the bottom was cut out from beneath the dominant penal policy of mid-century, the indeterminate sentence within the service of the reintegrate ideal for wrongdoers behind the bars. Probation was there because different sanctions were received associate enlarged roles, however, release on parole came to a virtual finish. In its place was uniform determinate sentencing, which might avoid the follies of unrealizable pardon goals and guarantee each disabled and even-handed justice for all wrongdoers.
Meaning of Punishment
In the dictionary meaning, the term ‘punish’ means to make someone suffer from a crime or for an unlawful behaviour or the imposition of penalty as punishment for an offense.
In criminal law, ‘punishment’ means any pain, penalty, suffering inflicted upon a person by the authority of law and the sentence of the court for some crime committed by him or for his exclusion of a duty enjoyed by law. The punishment maintains the law and order, it safeguards the person and the property. The culprit abstains from wrongdoing for the fright of punishment and therefore, the punishment and the law are indivisible.
The concept of punishment has also been recognized in the Dharmakshetra. In the Hindu shastras, the king had the superiority to penalize the wrongdoer or law-breaker and protect the law follower. Thus, it is clear-out that punishment is one of the oldest practices of managing crime and criminality. The objective of the punishments and it makes changes with the converting of times. The procedures for executing the sentences are also altered and supporting human rights. As we recall our past we have seen that the death sentence was given for a very small cause but it has been awarded only in the ‘rare cases’. Even still some societies are there which use ancient forms of brutal punishment but the punishment has also evolved along with civilization and has become less brutal.
Types of Punishment
In Ancient India
The history of the penal system states that the punishment was twisting, brutal, and ruthless in nature. The objective of the punishment was deterrence and retribution. Due to his Penal procedure, the crimes were less in numbers. Such punishments are categorized under the following:
Capital punishment means the legally authorized killing of someone as a punishment of a crime, a death penalty for a crime. In simple words, it means a government-sanctioned practise where a person is put to death by the state as a punishment for a crime. In ancient times, capital punishment was executed for every small crime. It is the most extreme form of punishment. The procedures of execution of the death penalty have varied from time to time.
It means a punishment that is intended to cause physical pain on a person. It is also known as physical punishment. It is a punishment for the violation of law which involves the infliction of pain on the body. The objective behind corporeal punishment is not only to punish the offender but also to prevent the repetition of the offense by such offender or any other person.
It is a punishment in which a person is restrained to make any kind of contract from the other persons or to move him at other places where he has no contract with the other persons can help him in any manner otherwise he is also liable for the punishment for it.
It is also known as imposing for fine. It was the common way of punishment which was not significant in nature and it was assigned specially for the breach of traffic rules, revenue laws, and minor crime. It also includes the payment of compensation to the victims of the crime and also the payment of the costs of prosecution.
In modern India
Although some of the societies are still using the ancient forms of the punishments, the punishments have also evolved along with the civilization and become less brutal or harsh. Now, the severity of the punishment depends on the crime. If the person commits a serious crime, he shall be liable to be punishable with the severe forms of punishment. In industrialized societies, the forms of punishment are either fines or terms of imprisonment or both. The objective behind such punishment is to correct unlawful behavior rather than directly punish wrongdoers. According to Section 53 of the Indian Penal Code, the principal forms of punishments to which offenders are liable are as follows:
Capital Punishment (Death sentence)
As we have already studied that capital punishment means the infliction of death by an authority. In modern times, capital punishment is the most severe punishment of all, which is given for severe offense. It is the most debated topic among modern penologists. It is not awarded for small offenses just like in early times or ancient times. It is given for the case of a severe offense. As society develops the concept and producer of punishment have been changed. It is awarded only in the ‘rarest of rare cases’ under the Indian Penal Code. there are some offenses under the Indian Penal Code, in which capital punishment may be given by the court:
- Under Section 121, states that waging, or making an attempt to wage war against the government of India.
- Under Section 132: Abetment of mutiny, if mutiny is performed.
- Under Section 194: Giving or Fabricating False Evidence upon which an innocent person suffers death.
- Under Section 302: Punishment for Murder.
- Under Section 303: Murder by Life Convict.
- Under Section 305: Abetment of Suicide of a Minor or an Insane or an intoxicated person.
- Under Section 307: Attempt to Murder by a person who is under sentence of life imprisonment, if the hurt is caused.
- Under Section 364A: Kidnapping for Ransom etc.
- Under Section 396: Dacoity with Murder.
After the Criminal Law (Amendment) Act, 2013 the following are the offenses under the Indian Penal Code in which the death penalty may be awarded by the court:
- Under Section 376A: Punishment for rape resulting in death or permanent vegetative state.
- Under Section 376E: Punishment for repeat wrongdoer of rape.
Life imprisonment means a person shall remain in jail for the rest of his entire life. It is one of the best alternatives to the death sentence for those offenses in which either punishment can be awarded. There is a fixed term of life imprisonment but in case of the fraction of terms, it should be 20 years under Section 57 of the Indian Penal Code.
In dictionary meaning, an imprisonment is an act of putting someone in prison or in jail as a legal punishment. The imprisonment is having three types and they are as follows:
- Rigorous Imprisonment: Generally, it means ‘hard labor’. In this type of imprisonment, the offender is compelled to do hard labor or hard work in the jail such as grinding corn, digging the earth, drawing water, etc.
- Simple Imprisonment: In this type of imprisonment the offender is confined to jail simply and he is not compelled to do any kind of work but they can be asked to work at their own choice with wages.
- Solitary Confinement: It means keeping a person isolated from any kind of contact with the outside world. It differs from a view that feeling of loveliness may produce an influence on the mind of the offender and thus change his mindset. Section 73 and 74 of the Indian Penal Code provides for solitary confinement.
Forfeiture of Property
In dictionaries, the ‘forfeiture’ means something that is lost or surrendered as a penalty and the word forfeiture of property means the loss of property or money because of a breach of legal obligation. There are three sections in the Indian Penal Code that described the forfeiture of the property, and they are:
- Under Section 126: Property used or intended to be used in committing depredations on the territories of friendly countries.
- Under Section 125 & 127: Property received with the knowledge that the same has been taken by waging war or committing a robbery.
- Under Section 169: property purchased by a public servant who is legally banned to purchase for such property.
Generally fine means Imposing of monetary liability on an accused in consequences of the offense committed by him. There are some offenses which provide a fine with imprisonment. The amount of fine depends upon the commands of the court.
Theories of punishment
Sentencing the guilty person is most important, albeit a difficult chapter in a trial. Theories of punishment are:
Retribution means something done or given to somebody as punishment or vengeance. It is just retribution for their crime. This theory says to return the same injury to the culprit or wrongdoer, which he had committed against the victim. It says ‘tit for tat’. It is often assimilated revenge, but a public rather than an act of private revenge. This theory punishes culprits because they are deserving of it. It says to offenders that ‘you have caused harm or damage to society, now you should have to pay it back to society. It is probably the oldest goal of criminal punishment. The Bible states that when one strikes another and kills him, he shall be put to death. Whoever strikes a beat and kills, shall make restitution, life for life, when one injures and disfigures hie fellow countryman, it shall be done to him as he has done; ‘separation for separation’; ‘a tooth for tooth’’ the damages and spoiling that has to impose upon another shall, in turn, be inflicted upon him.
Deterrent or deterrence means something that deters somebody or something, restrain anyone from taking action, to discourage someone from taking action or prevent something happening, especially by making people feel afraid or anxious. In another word, it is a ‘warning’, ‘preventive’, ‘restrictive’, or ‘limiting’, someone for any particular act. The term ‘deter’ means abandon from the action and to deter means a variety of reasons may deter anyone from a commitment. It also means the well-judged and afraid are alike easily to be discouraged.
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.
It 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 penalizes the wrongdoer, to stop future crime in the society, by separating the criminals from society. This theory believes that the aim 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 predicated on the proposition ‘not to avenge crime but to stop it’. In punishing a criminal, the community protects itself against or person or property of its member.
Another objective of the punishment is a reformation of the offender. Supporters of reformation pursue crime by providing offenders with the education and necessary treatment to eliminate criminal tendencies, also because they have the talents to become productive members of society. Reform means change and it improves somebody by correcting faults, removing inconsistencies and abuses, and imposing modern methods or values or to adopt a merely acceptable way of life and mode of response or influence or force someone else to do so. It is the act of reforming somebody, especially a general improvement in behaviour. This theory affirms that a criminal can be changed into a good citizen as a law-upholder by giving him capable treatment during his imprisonment period.
The Crime rate in India has been considerably increasing every year and thus the convictions rate has become very low which to the courts are warding very meagre punishments by using their wide discretionary powers. There are more chances to include lenient punishment by the proven offenders due to the loose framework of the legislature in fixing the punishment for several offences within the code.
There’s more probability to use the personally favoured brain and individual opinion of the judicial officers while conforming the sentence to the offenders, due to wide discretion available within this sentencing jurisprudence. In these circumstances, if the minimum punishment is confirmed within the penal statutes normally because it’s covering a substantial portion of the offenses in India by the legislature through amendments, the tribunal judge is visiting be curtailed by the statute and he’s forced to present punishment within the limit stipulated by the legislature.
Actually, the developing country decides the safety and security of the people along with the developmental aspects of that country. Crimes can be found everywhere in our lives and have affected every sector of society. This age-old colonial punishment system isn’t suitable to manage the crimes and to diminish its allied bad effects on society by imposing proper punishment to the responsible persons and implementing them with no delay. The historical background of punishment shows that the punishment in those days was very cruel, hard-hearted, afraid, and uncultured and their implements were also very strange.
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