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KINDS OF PUNISHMENT UNDER INDIAN PENAL CODE : A NEED OF SENTENCING IN GUIDELINES - BY SHRISHTI PANSARI
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Article Details
KINDS OF
PUNISHMENT UNDER INDIAN PENAL CODE : A NEED OF SENTENCING IN GUIDELINES
Submitted by:
Name- Shrishti Pansari
Roll No.- E037
Submitted to:
Prof. Afrin Khan
School of Law, NMIMS (Deemed to be University)
TABLE OF CONTENT
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S. No
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Contents
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1.
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Abstract
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2.
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Keywords
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3.
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Introduction
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4.
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Review of Literature
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5.
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Research Objective
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6.
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Research Question
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7
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Research Findings
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8
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Conclusion and Proposals for reform
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9.
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Reference
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ABSTRACT
The Indian Penal Code was passed into law in 1860, and very little has
changed since then. Different
organizations believe that the kind and level of punishment specified
in the Indian Penal Code, 1860
are no longer acceptable given the current situation. The goal of the penalty will be useful in determining the severity
and amount of the punishment for various offenses under the Indian Penal Code. This paper aims to explore the
various punishments outlined in the Indian Penal Code of 1860 and determine whether they are
appropriate in the current scenario.
KEYWORDS
Deterrence, Reformative, Retributive, Preventive, Imprisonment, Capital
Punishment
INTRODUCTION
“People are kept in check by punishment since few men are naturally
virtuous, and this world cannot support
sources of delight
due to the fear of punishment.” Punishment is the application of an unfavorable or unpleasant result to a group or person by a
representative of authority.
Penology is the study and application of criminal justice.
The punishment may be
administered formally under a
system of law or informally in other types of social settings, such as inside a family. The authority may be either a
group or a single person. Punishment may be used for retribution, deterrent, rehabilitation, or incapacitating effects.
There are two types of punishment: positive punishment and negative punishment. Positive punishment is the administration of an
unpleasant stimulus to reduce behavior, whereas negative punishment is the removal of a pleasing stimulus. Positive
punishments include extra work or spankings, but negative punishments include denying a child access to downtime
or recess.Because punishment
protects, controls, and keeps the populace awake when it is asleep, the wise have viewed punishment as a
source of righteousness.The harshness of punishments varies, and they may include reprimands, loss of rights or
freedom, fines, incarceration, social exclusion,
inflicting of pain, amputation, and the death penalty. In terms of their degree
of reciprocity and fairness to the
offence, punishments can be deemed fair or unfair.Depending on the severity, punishments can range from reprimands
to deprivations of rights or freedoms, fines,
incarcerations, social exclusion, the infliction of pain, amputation, and the death penalty. The
degree of reciprocity and proportionality of the punishment to the crime might determine
whether it is fair or unjust.
There are several philosophical definitions of punishment. Commonly
regarded as necessary for describing a course
of conduct as punishment are the following:
1.1. An authority has ordered it,
2.
It results in a loss for the alleged criminal,
3. It addresses an offence,
and
4.
The person (or other animal)
that suffers the loss must be held at least somewhat accountable for the offense.
Most often, punishments are used to promote and uphold acceptable
behaviour as determined by society. Criminals
are subject to judicial sanctions
such as fines, physical punishment, or incarceration. A
theocracy with a religious police or the Inquisition may impose punishment or apply it
morally, as in the case of penance. Critics counter that punishment is
only retaliation. The majority of
prisons are operated poorly, and in some, the living conditions are worse than
in the worst slums. The structure is
infested with vermin and insects, and the air vents are blocked by years' worth of dust and grime. Even in
sanitary jails, inmates still have to deal with the crushing boredom and emptiness
of prison life.
“We ought not to impose such harm on anyone unless we have a very good
reason for doing so.”Professor Robert Blecker. This implies that the severity
of the punishment must be commensurate
with the offence. Immanuel Kant, an eighteenth-century philosopher, argued for
a more extreme stance, contending that every murderer deserves to perish because the loss of life is
incomparable to any punishment that allows them to live, including a prison
sentence. The purpose of punishment
under the law is to exact vengeance on the offender for whatever harm they have caused to another person or
their property. Punishment is the means through which a criminal might be made to desist from committing crimes against people,
property, and the state.
REVIEW OF
LITERATURE
1.
Douglas
Husak (2017) analyzes that the Modern states punish
those who are found guilty by executing, imprisoning, fining,
placing them on probation, conditionally releasing them, warning them, and
doing much more. What overarching criteria determine whether retributivists should opt for one of the
aforementioned sanctions—or something
completely different—in response to culpable wrongdoing? It is simple to understand why retributivists have a tendency
to overlook this difficulty if my subsequent
logic is correct. They haven't given it much attention because they can't
do anything to help. It will
defend this conclusion and go over a few of the relatively contentious tenets upon which it is founded in the passages
that follow. By advocating what one may refer
to as the respectful approach regarding the types of punishment, I want
to advance this discussion in some
way (or deferential view for short).
2.
Singh, S. K., &
Verma
This paper analyse that India is a nation that is rapidly flourishing, but at the same time, crime
rates are rising dramatically. Although there is a lot of regulation in India to prevent and manage crime, crime
rates are rising as a result of
insufficient consequences. To lower the crime rate, the penalty should be
harsh. Every punishment is predicated
on the same goal: to punish the perpetrator. In India, there are various forms of punishment available, including the
death penalty, life in jail, and
others. The most severe type of punishment is considered to be the death
penalty. This essay discusses the
global state of the death penalty and provides a definition of the term "capital offence." It
also describes the many methods of the death penalty.In this article, the reformative theory and the preventative
theory—two of the main theories surrounding the death penalty—are explained. The researcher also discussed the rarest of rare cases in this study. In addition
to capital punishment in ancient India, this article discussed countries that had abolished it and those that had retained
it. This page provides a thorough
overview of India's execution procedures as well as its use of the death penalty.
3.
Mishra, A. K The paper
highlights in Oppenheimer's words Punishment is an evil inflicted upon a wrongdoer on behalf of and at the sole
discretion of the society, in whose corporate
capacity he is a permanent or temporary member. Punishment always follows crime and has its roots in personal
retribution. Only the victim executes the sentence in order to get their vengeance. No governmental authority had the
power to pardon a criminal; only
those who had been wronged could do so. Punishment has always been meant to cause "pain."
Punishment is additionally seen as a tool for social control and crime prevention. In line with the shift
in social perception, the purpose of punishment has changed to induce change. It begins with retaliation and
criminal deterrence before moving on
to rehabilitation.The Indian Penal Code's punishment guidelines are not static; rather, they have changed as a result of
legislation, honourable court rulings, and societal demands. New development gives rise to new forms and modes of
crime, including cybercrime,
financial crime, and other types that call for changes in the severity of punishment and how it is carried out. Although the idea of
punishment is as old
as humanity, it is now abundantly clear that both its general
form and the acceptance of it by many nations'
penal systems have undergone a significant change.
4.
Sharraf, U. (2020) this
paper looked at the politics involved in creating criminal legislation. Both the reductive and
retributive effects of punishment are examined. It is demonstrated how the politics of legislating can at times
trump current social realities and the state's
capacity to enforce
the relevant laws. The morality
and effectiveness of corporal
punishment are contrasted with the use of the death sentence in order to highlight the anomaly. The article
contends that before a proper reform of the penal system can take place,
a suitable political discourse must be developed
along with the development of a
social discourse and the capacity
of the State.
5.
RESEARCH OBJECTIVE
1.
To highlight the theories
of Punishment.
2. To analyse what kind of punishment under the Indian Penal Code and its relevance.
3.
To highlight the compensation to the victim of crime.
4. To highlight the sentencing policy.
RESEARCH QUESTION
1. What are the theories
of Punishment?
2. What kind of punishment is under Indian
Penal Code(IPC) and what’s its relevance.
3. What the compensation to the
victim of crime
will get?
4. What is the sentencing policy?
RESEARCH FINDING
1.
Theories of Punishment :-
A crime is an action that the law considers to be damaging to society as
a whole. Criminal justice exists to
hold the perpetrator accountable. The issue is, though, what does Punishment
serve to accomplish? Many theories
have been put out in this area from the dawn of time. There are two main groups that these theories fall
under. According to the first category, the goal of criminal justice should be to safeguard and advance
the welfare of the state and society. Examples of this category include reformative, preventive, and deterrence theories. The second category, however, holds the opinion that punishment
should only aim to seek retribution.The proponents of this idea believe
in the “Eye for an
eye” principle. Below are
the various theories of punishment.
1.1
Deterrence
This view contends that the goal of punishment is to make the perpetrator
a deterrent to future wrongdoing
while also serving as an example for those with criminal tendencies. Salmond1 believes that the most significant feature
of punishment is its deterrent effect. According to Locke, every crime should be made to be a bad bargain for the
perpetrator. The deterrent idea emphasises
the need to safeguard society by treating inmates in a way that discourages
other people from breaking the
law.According to Salmond2 , “The chief end of the law is to make the evildoer
an example and a warning
to all that are like minded with him.”
Punishment is a tool to dissuade future offenders from
committing the same offence and to stop those
who may be considering committing an offence they haven't yet committed from
actually doing so. The goal of this
punishment is to be severe enough to deter people from committing crimes in the first place. Everyone in the
community is meant to be discouraged from committing crimes.
In England during the Middle Ages and into the early 19th century,
punishment was based on the deterrence notion.
As a result, even minor offences in England were met with harsh and inhumane
punishments. The primary basis for the punishment meted out to criminals in
ancient and medieval India was the
deterrence idea. Even minor and insignificant offences carried the death sentence or mutilation of limbs.
1.2
Reformative
This view contends that the goal of punishment should be the criminal's
reformation. For the offender to be
able to rebuild his life after being released from prison, he needs to get
education and training in a variety
of skills. The proponents of this philosophy claim that by treating the offenders with compassion, tact, and love,
a radical transformation in their personalities can occur. By using kind words and kind ideas, even the most nasty
and toughest of inmates can be changed
and made into valuable allies.Reformation theory is increasingly being applied
to young offenders. The Reformatory Schools Act, 1890,
which sought to prevent
the depraved and delinquent children from being convicted
felons in the future, is the country's earliest piece of legislation on the subject. The Children Act, which is
applicable to the Union Territories, was passed by the
Indian government in 1960. The 1978
amendment to this Act.
With a similar goal, the Probation of Offenders Act, 1958, was passed.
The Supreme Court observed about this Act in Rattan Lal v. State of Punjab3 that the Act represents a turning point in
the development of the contemporary liberal trend of change in the sphere of
criminology. The Act makes a distinction
between criminals under the age of 21 and those over that age, as well as between offenders who have committed an
offense that is punishable by death or life in prison and those who have committed
a lesser offense.
1 Salmond, J.W: Jurisprudence, 12th Edition, Sweet
and Maxwell Ltd.,1979
2 ibid
1.3
Preventive
This theory's goal is to hinder or stop the perpetrator from committing
the crime. Punishments like
imprisonment, execution, exile, forfeiture of office, etc. prevent criminals
from committing the same crimes
again. The offender is deterred from committing another crime by being locked up. A person who is fired from his job
loses the chance to commit a crime once more. The termination of a person's driver's license is an illustration of
a preventive punishment. He cannot drive
since he lacks a license. This idea stops the wrongdoer's physical ability to
do the crime rather than focusing mostly
on his motivation.
2.4
Retributive
Ancient penology acknowledged
the retributive component. Early criminal laws were built on the idea that
punishment should be given for all forms of evil. Supporters of the retributive notion include Plato. To get punishment is to pay restitution for breaking the law; punishment
is a form of atonement. The
sum of guilt and punishment is innocent. A debt that the wrongdoer owes to
his victim is the punishment for their
wrongdoing. Once the
punishment has been served, the debt is settled and the legal connection created by the crime is
broken. The goal of real punishment
must be to make up for injustice with justice.The victim's spirit of revenge
must be appeased in order to convince
the perpetrator to return to the victim
what is rightfully his
through such restoration and repentance. Critics point out that
punishment alone does not make up for the wrongdoing the criminal committed.. It merely aggravates the mischief.4
2.5
Unified Theory
A single, cogent framework unifies several criminal objectives, such as
retribution, deterrence, and
rehabilitation, under the umbrella of a unified theory of punishment. Theorists
of the unified system contend
that they collaborate to achieve a larger objective, such as the defence of rights.
3 (AIR 1965 SC 444)
2.
Kinds of Punishment under the IPC and its
relevance
The Indian Penal Code, 1860 Section 53, specifically addresses the
various forms of penalties that the
Criminal Courts may impose if the accused is found to be in violation of the
Code. According to Section 53 of the Code, there are
five different types of penalties:-
(a)
Death
(b)
Imprisonment for life
( c) Imprisonment, which is of two descriptions, namely –
(1)
Rigorous, that is with hard labour
(2)
Simple
(d)
Forfeiture of property
(e)
Fine.
a) DEATH
The killing of a human being as a form of punishment for a crime is known
as the capital punishment or death
penalty. The act of carrying out a death sentence is known as an execution. A death sentence is a judgement ordering
someone to receive the death penalty. In India, the hanging method is used to administer the death punishment. The additional methods used to carry out death penalties in real-world
situations include stoning, sawing, blows from a weapon, lethal injection, electric
shock, etc. 48 nations still use
the death penalty, 108 have totally abolished it for all crimes, and 7 have
only done so for minor offences.Over 60% of the world's population lives in
countries that still practise the
death sentence, despite the fact that the majority
of countries have abolished the policy.Supporters of the death penalty stated
that it is ethically acceptable to
execute murderers, particularly when there are aggravating circumstances such the killing of a police officer, a
child, or a large number of people through acts of terrorism, slaughter, or genocide. Retaliation is simply revenge, according to some abolitionists, and
cannot be justified. Others contend that life without parole is a suitable
alternative even though they embrace punishment as a component
of criminal justice.
Additionally, it is asserted that punishing
a murder with another death is an unusual way to deal with a violent crime
because,
4 Falls, Margare:
Retribution, Reciprocity, and Respect
for Persons. Law and Philosophy. (1987). 6 (1): 25–51
in general, violent crimes are
not punished by subjecting the perpetrator to a similar crime.The right to life is the most essential human
right, and the death penalty inflicts psychological torment on the convicted while also violating this
right without justification, according to abolitionists. The death sentence is opposed by human rights
groups who label it a brutal, inhumane, and degrading form of punishment. It is viewed by Amnesty International as
the ultimate, irreversible violation of human
rights.
b) IMPRISONMENT
Another form of punishment is imprisonment. “Imprisonment means, at
minimum, the loss of liberty and autonomy,
as well as many material comforts, personal security, and access to
heterosexual relations.” 5
Prison is a place where people are kept who have been sentenced to be
deprived of their freedom for committing a crime or who have been remanded
in custody by a court. A felony or misdemeanor conviction may result in a
prison sentence being imposed on the offender. Prisons were largely used up until the late 18th century to house
creditors, criminal suspects awaiting trial,
and criminals awaiting the imposition of their penalties, which were typically
death or exile from the country. Only minor offenses
were typically given a jail sentence.
There are several accepted justifications for using jail. One strategy
tries to dissuade people from committing
crimes (generic deterrence) and reduce the likelihood that people who serve
prison sentences would commit crimes
after they are released (individual deterrence). A second strategy concentrates on punishing or getting
revenge from individuals who have committed significant crimes. A third strategy encourages persons who are sentenced to
prison to undergo personal transformation.
Last but not least, there are times when it's vital to defend the populace from criminals, especially those who do it
repeatedly. All or more of these justifications might be relevant in a particular situation. Some prison systems are now referred
to as correctional institutes
due to the growing significance of the idea of reform. If done right, jail can
accomplish all the goals of
punishment. However, determining the sentence's length is a challenge. Both brief and lengthy sentences
of imprisonment have benefits and drawbacks.The Court will typically consider a number of factors
when determining whether a sentence is appropriate, including the nature of the offense, the circumstances
surrounding its commission, the offender's age
and character, any harm done to individuals or the community, the impact of the
punishment on the offender, and the offender's efforts to make
amends and reform.
5 Supra
i. Imprisonment for life
When someone is sentenced to life in prison, it means that they will be
held captive until the end of their
natural life, or until they pass away. According to Section 55 of the Indian
Penal Code, 1860, the appropriate
government may commute a life sentence to a maximum of 14 years of imprisonment.
ii. Rigorous Imprisonment
Rough treatment in prison may include labor-intensive tasks like cutting
wood or digging in the ground.
According to Section 60 of the IPC, the Court that sentences the wrongdoer has
the authority to specify within the
sentence whether the detainment should be entirely rigorous, entirely simple, or whether any portion of
the detainment should be rigorous and the rest simple in cases where the wrongdoer is responsible for detainment that may be of either
description.
In India, incarceration is an acceptable form of punishment for:
Giving or creating
false evidence with the goal to get a conviction for a death offence is prohibited by Section 194
Section 449, "Trying to enter a living space with intent to commit
an offence punishable by death"
iii.
Simple imprisonment
For minor offences like wrongful restraint, defamation, etc., simple
incarceration is mandated. If the
sentence is simple imprisonment, the prisoner won't be forced to perform any
strenuous manual labour.
Several offences are punishable by simple imprisonment, including the following:
Section 178– Refusing to take oath Section 500– Defamation Wrongful
restraint
Section 510– Misconduct by a drunken
person, etc
c)
FORFEITURE OF PROPERTY
When property is forfeited, the State essentially takes the offender's or
criminal's possessions. It was once a
serious offence during the colonial era. However, property forfeiture is
currently voidable only in the instances of the following offences:
?
Destructive areas held by
Power that are at peace with the Indian government.
?
Receiving property seized
during a war or other event listed in sections
125 and 126.
d)
FINE
A fine is an amount of money that is required to be paid as punishment
for a crime or other offence by a court of law or
other authority. A fine's amount can vary depending on the circumstances,
but it is frequently disclosed in advance. The sum of money paid for breaking traffic laws is a typical illustration of
a fine. Common law imposes relatively modest penalties on minor
infractions. When the court or magistrate determines that a significant amount of retribution is required, higher
fines may also be imposed
separately or in conjunction with
shorter prison terms. For instance, as fraudsters are often barred from
the position or profession they misused to execute their crimes,
fraud is sometimes
penalised by extremely high fines.
A similar idea is the fixed penalty notice, a monetary fine for some small
offences that can be either accepted
(instead of being prosecuted, saving time and paperwork) or brought to court
for the offense's regular proceedings.
A fine may be imposed by the court as an alternative to imprisonment or
in addition to jail. In some
circumstances, the fine and the prison sentence are combined. Various IPC fines are covered in Sections 63 through 69. However,
under Section 64 of the Code,
the court may impose a prison sentence when a fine is
not fully paid.
3.
COMPENSATION TO THE VICTIMS OF CRIME
A variety of articles of the IPC stipulate that a fine may be imposed as a form of punishment. The fine prescribed under the IPC is minimal
and has to be changed
in accordance with the current requirements as the fine
occasionally is not enough to recognise the victim's genuine loss. The State was required to develop a plan for the compensation of victims by direction of the Central
Government in 2009. The scheme's
main goal was to help victims' dependents
who had lost something or been hurt as a result of the offence.
This concept allows for the possibility of rehabilitation.
Another type of fine is Compensation to Victims of Crime from Prisoners' Wages. A set amount
of the prisoners' wages is withheld under this, and the money saved is put into a fund
for the victims' welfare. But most recently, a PIL asking
for the repeal of such rules was filed in the High Court of Delhi, arguing that the reduction of the prisoners'
wages was arbitrary
in nature.
4.
SENTENCING POLICY
The following criteria
are used to determine sentences
under the Indian Penal Code:
• The gravity of the offense;
• The
severity of the offense; and
• How it generally affects
public peace.
The severity of the penalty and the degree of culpability are related. As a result, the sentencing guidelines for a certain
crime are standardized.
The Ministry of Home Affairs in India constituted the Malimath Committee
(the Committee on Reforms of Criminal
Justice System) in March 2003. The committee's purpose was to make suggestions for the Indian judiciary's
sentence guidelines. In its report, the aforementioned group recommended that sentencing guidelines be implemented in order to reduce the uncertainty
around sentence determination. The committee noted that there is a lack
of uniformity because "for many
offences, only the maximum punishment is specified and for some offences, the minimum punishment may be
prescribed." Because of this, judges have broad discretionary authority
to determine the length of sentences, which creates confusion
in the sentencing guidelines.
March 2003 saw Sentence judgments based on the sentencing guidelines,
which were formed by judicial rulings
and legislative actions. The following are the guidelines that the court often abides
by: the Ministry of Home Affairs created
a body:-
?
Excessiveness/Parsimony- Unless necessary, the punishment provided
will not be
excessive
?
Proportionality: The punishment must be appropriate for the overall
seriousness of the offense.
?
Parity: For similar
offenses committed by offenders under comparable circumstances, the
punishment should be similar.
?
Totality - When an offender
receives more than one term as punishment, the whole sentence must be fair and proportionate to the offense.
?
Purpose: The punishment's goal must be accomplished through
the sentence. Punishment
may be used as a deterrent, as part of rehabilitation, for public safety, etc.
?
Simplicity and predictability - The judge's
bias or personality should not be a factor in sentence. A precise
and well-defined sentencing plan must exist.
?
Sincerity – The sentence must accurately reflect
the time the offender will spend
in jail or
prison, hence there must.
In the case of Sangeet & Anr.
v. State of Haryana 6the court observed that future court decisions did not entirely follow the
strategy established in the Bachan Singh case. When determining the appropriate sentence for the accused, both the
mitigating and aggravating circumstances must be
taken into account.
CONCLUSION AND PROPOSALS
FOR REFORM
The Indian Penal Code was passed into law in 1860, and very little has changed
since then. Since
the code's passage, there has been a significant growth in the variety
of offenses. The Code will become clearer and easier to understand if offenses
are divided into separate classes
or codes.
The penalties must be severe enough to be deterrent, but not too severe.
It is now necessary for the Indian
judicial system to establish a sentencing strategy so that the judge's
prejudice and room for ambiguity do not affect sentencing.Additionally, it will reduce appeals for increased or
decreased sentences, which will be a huge relief for the judicial system.
Additionally, the Code permits the
establishment of a suitable victim compensation fund that may also contain confiscated assets from organized criminals.
6 (2013) 2 SCC 452
REFERENCE
1. Salmond, J.W: Jurisprudence, 12th Edition, Sweet
and Maxwell Ltd.,1979 2. (2013) 2 SCC
452
3. Falls, Margare:
Retribution, Reciprocity, and Respect for Persons. Law and Philosophy. (1987). 6 (1): 25–51
4. (AIR 1965 SC 444)
5.
Kleining, John: R.S. Peters
on Punishment. British
Journal of Educational Studies. 1972, 20 (3): 259–69.
6.
Church, R.M: The varied effects
of punishment on behavior.
Psychological Review. (1963).
70 (5): 369–402
7.
Fehr, Gatcher, Ernst,
Simon: Altruistic punishment in humans. Nature.
(2002). 415 (6868):
137–140.
8.
G.T, Gwinn: The effects of punishment on acts
motivated by fear. Journal of Experimental Psychology.1949, 39 (2): 260–69.
9.
K. M., Carlsmith: The roles of retribution and utility in determining punishment. 2006. Journal of Experimental Social Psychology. 42 (4): 437–451
10. Singh, S. K., & Verma, A. A Study of Capital
Punishment in India.
11.
Mishra,
A. K. Punishment: Forms,
Theory and Practice. Indian Law Journal
On Crime and Criminology, 1(3)
12. Sharraf, U. (2020). The Politics of Punishment. The Indian Police Journal, 9.
Article Information
KINDS OF PUNISHMENT UNDER INDIAN PENAL CODE : A NEED OF SENTENCING IN GUIDELINES - BY SHRISHTI PANSARI
Authors: Shrishti Pansari
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/11/14
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
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