Open Access Research Article
A CRITICAL EVALUATION OF THE INDIAN PENAL SYSTEM
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Article Details
A CRITICAL EVALUATION OF THE INDIAN
PENAL SYSTEM
Authored By
- Dr. Thounaojam Tapasini Devi
Assistant
Professor, Department of Law
Manipur (a
Central) University
Abstract
There is a saying that every saint
has a past and every sinner has a future. The Penal policy of India also adopts
the very philosophy of reforming the wrong doers. It can be said that the
Indian Penal System is a combination of reformation and deterrence. The present
paper focuses on critically evaluating the Penal Policy of India concentrating
on the provisions in the Indian Penal Code, the effectiveness of the IPC and
its relevance today. The various forms of punishment available under the Penal
system of India, their effectiveness, and disparities in sentencing by the
Courts will be discussed in the present paper. Moreover, this paper seeks to
analyse the guidelines, precedents about the Penal Policy of India and
suggested reforms issued by the Apex Court of the country as well as the
remission and commutation of offences by the appropriate Government.
Key Words: Penal policy; Critical Evaluation;
Reformation; Deterrence.
Introduction:
Every saint has a past and every
sinner has a future is a tested philosophy concerning human life and the theory
of reformation through punishment is based on the sublime philosophy that
everyone is born good but circumstances transform him into a criminal.
Criminologists believe that administering treatments and certain reformative
measures on criminals can cure and help them in bringing back to the mainstream
Society as a normal human being.
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 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.[1]
The final stage in the system of
criminal jurisprudence is the stage of giving sentence. Once the court, after
having evaluated the evidence presented before it, arrives at a conclusion that
the accused has been proved guilty beyond a reasonable doubt, it must decide
over the quantum of punishment that should be awarded to the convict. The broad
principles used to determine the quantum of punishment has been dealt with
under Chapter III of the Indian Penal Code (IPC). The sentencing policy across
the country is not uniform and the sentences reflect the individual philosophy
of the judges. In this regard it would be pertinent to mention that Justice
Krishna Iyer in Rajendra Prasad v. State of Uttar Pradesh[2],
pointed out the considerations affecting the sentencing policy as under– “Law
must be honest to itself. Is it not true that some judges count the number of
fatal wounds, some the nature of the weapons used, others count the corpses or
the degree of horror and yet others look into the age or sex of the offender
and even the lapse of time between the trial court’s award of death sentence
and the final disposal of the appeal? With some judges, motives, provocations,
primary or constructive guilt, mental disturbance and old feuds, the savagery
of the murderous moment or the plan which has preceded the killing, the social
milieu, the sublimated class complex, and other odd factors enter the
sentencing calculus.”
Though disparities in sentencing may
be due to various factors, it must be accepted that ‘disparity in sentencing
not only offends the principles of justice but also affects the rehabilitative
process of offender and may create problems like indiscipline and riots inside
prisons.[3]
A similar view was expressed by the
Apex Court in Asgar Hussain v. State of UP[4]
and observed that disparity in sentencing creates hostile attitude in the mind
of the offenders and reduces the chances of their re-socialisation as they
react strongly against the discriminatory treatment meted out to them.
The primary motive of punishment is
to prevent or deter the wrongdoer from repeating the crime. Chapter III of the
IPC under its section 53 provides for the various kinds of punishments to which
the offenders are liable under the Indian Penal Code. The Court has the power to reduce the
quantum of punishment taking into consideration of the various aspects of the
case and the mitigating as well as the aggravating circumstances if any. The
IPC has for some offenses itself provided for a minimum sentence whereas, in
most other crimes, the trial court has got a wide discretion in the
ascertainment of the period of sentences and the choice amongst the kinds of
punishments, given the nature and gravity of the crime, the manner in which it was committed,
the conduct of the accused before and after the commission of the crime and
other mitigating and aggravating factors.
Punishments Under Section 53 of IPC[5]: The punishments to which offenders
are liable under the provisions of this Code are-
First.-Death;
Secondly.-Imprisonment for life;
Thirdly.- [ Repealed by Act XVII of
1949.]
Fourthly.-Imprisonment which is of
two descriptions, namely:
1. Rigorous, that is, with hard
labour; 2. Simple;
Fifthly.-Forfeiture of property;
Sixthly.-Fine
Now,
let us discuss in detail the above stated forms of punishments.
Death or Capital Punishment- This form of punishment is the harshest of all punishments
under the IPC which involves the killing of the convict. Under punishment of
death, also known as capital punishment, a person is hanged till he dies Numerous arguments have been raised
both for stating it to be a deterrent and against the imposition of capital punishment-
questioning whether the State has a right to take an individual’s life,
something which it cannot restore in case of an erroneous judgment.
The IPC provides the Death Penalty
only as an uppermost limit to which a convict can be sentenced and has nowhere
made it compulsory for the courts to award a death sentence. The Code provides
capital punishment for the offences like-Treason (S.121), Abetment of mutiny (S.132),
Perjury leading to the death of an innocent (S.194), Murder in the rarest of
rare cases (S.302), Abetment of suicide by minor/insane/intoxicated person (S.305),
Attempt to murder by life convict if hurt is caused (S.307), causing hurt (S.307-part
II), kidnapping for ransom etc(S.364A),causing death or resulting in persistent
vegetative state of rape victim (S.376A), repeat offenders of offences
punishable u/s 376 or S.376A or S.376D , S.376E) and Dacoity with murder (S.396).
In addition to this, death penalty
can be imposed by virtue of Ss. 34 (Criminal acts done by several persons with
a common intention); 149 (Every member of unlawful assembly is guilty of
offence committed in prosecution of common object); 109 (Punishment of abetment
if act committed in consequence of the abetment and where no expressed
provision is made for its punishment); and 120B (Punishment for criminal
conspiracy) of the IPC.
It was argued in Jagmohan Singh v. State of
Uttar Pradesh[6],
that the death penalty is unconstitutional and hence invalid as a punishment.
However, the Supreme Court held it as valid and constitutionally lawful if done
according to the procedure set by law. For the offence provided under section
303, i.e., murder by life-convict, capital punishment was compulsory prior to Mithu vs State of Punjab[7]
when the Supreme Court of India struck down s.303 as being unconstitutional for
violating Articles 14 and 21 of the Constitution in the said case.. Similarly,
the Supreme Court in Bachan Singh v. the State of Punjab[8]
upheld the validity of Death penalty, however, the court restricted the
provision of the death penalty in the rarest of rare cases only. The court did
not elaborate as to what falls under the category. Still, the court has
declared it from time to time that the cases like honour killings,
assassination, genocide, brutal murder, etc. fall under the definition of
‘rarest of the rare case.’
Then the Supreme Court in Machi Singh v. State of Punjab[9]
laid down various guidelines to be considered while granting capital punishment
that include- (i) The death penalty cannot be inflicted except in gravest cases
of extreme culpability; (ii) The circumstances of the offender, circumstances
in which the crime was committed and the method and manner of commission of the
crime need to be considered; (iii) Balance sheet of aggravating and mitigating
circumstances should be drawn up and mitigating circumstances should be
accorded full weightage to draw a just balance between the aggravating and
mitigating circumstances; (iv) Death penalty may be awarded when the crime
committed is extremely brutal, grotesque, diabolical, revolting, and dastardly
(or) is committed for a motive which evinces total depravity and meanness (or)
for the betrayal of the motherland (or) where a member of Scheduled Caste or an
innocent child or a helpless woman or old or infirm person has been murdered
(or) where the imposition of any punishment other than the death penalty is
completely inadequate
Where the judge is of the opinion
that the accused is, in fact, guilty beyond any reasonable doubt and that should
be awarded capital punishment, he must give a chance to the accused as per
section 235 Cr.PC[10]
to put before the judge the facts and circumstances which in the accused’s
opinion would allow the judge to mitigate his sentence. Non-compliance with
this sentencing procedure vitiates the sentence. As per section 54 of the
Indian Penal Code, the appropriate government can commute the sentence of Death
for any other punishment provided by this Code.
Imprisonment for Life: The words “imprisonment for life” was substituted for “transportation
for life” by Act XXVI of 1955. In its natural meaning, imprisonment for life
means imprisonment for the whole of the remaining term of the convicted
person’s natural life. It means rigorous imprisonment running throughout the
remaining period of a convict’s natural life. Imprisonment for life is not
equivalent to imprisonment for 14 years or 20 years. Section 57[11]
of the IPC makes life imprisonment equivalent to imprisonment for 20 years only
for the purpose of calculating fractions of terms of punishment. In this type
of punishment, an accused convicted of a crime must remain in prison until he
is alive or until pardoned or otherwise commuted to a fixed period.
Imprisonment for life can never be simple imprisonment; it must always be rigorous
imprisonment.
The Supreme Court in Gopal Vinayak Godse v. State of Maharashtra[12]clarified
that no provision of the law states that life imprisonment is for a period of
20 years. Furthermore, section 55 of the IPC read with Ss.432-433 Cr.PC state
that an appropriate government may suspend or remit the life sentence of a
convict. The condition attached to it is that the convict must have served at
least 14 years in prison. However, if the President or the Governor (by
exercising their powers under article 72 and 161 respectively) of the Indian Constitution decide to
remit or commute the life sentence of the convict, the convict shall be
released immediately even if he has not served the statutory requirement of 14
years in prison. This is because Section 433A of Cr.PC, being a statutory
provision, cannot override the constitutional power conferred upon the
President and the Governor under articles 72 and 161, respectively.
Imprisonment:
Imprisonment means taking away a person’s freedom and putting him in prison.
Black’s Law Dictionary defines the term ‘imprisonment’ as the act of putting or
confining a man in prison. According to section 53 of the IPC, there are two
kinds of imprisonment: 1. Simple Imprisonment where an accused convicted of a
crime is kept in prison without any hard labour. It is awarded only for lighter
offences such as defamation and 2. Rigorous Imprisonment under which a prisoner
or an accused convicted for a crime is kept in prison, and they must do hard
labour such as agriculture, carpentry, drawing water, etc. Rigorous
imprisonment is obligatory for:
(i). Section 194 IPC: Giving or
fabricating false evidence with intent to procure conviction of a capital offence
under the IPC.
(ii). Sections 376, 376A, 376C, 376D IPC:
Rape.
(iii). Section 449 IPC:
House-trespass in order to commit offence punishable with death.
While discussing about the imposition
of rigorous imprisonment under the Indian Penal system, it would be worth to
mention here the Apex Court’s observation’s in the case of State of Gujarat v. Hon’ble
High Court of Gujarat[13]
wherein the Court clarified that the prisoners who are put to hard labour
should necessarily be paid minimum wages for the work extracted. It has also
been noted by the Supreme Court that Section 53 mandates the jail authorities
to impose hard labour on the convict sentenced to rigorous imprisonment.
Forfeiture of Property: Forfeiture implies the accused’s loss of property, money,
or assets without consideration or compensation in return. Under this
punishment, the State seizes the property of a criminal. It is the result of
the wrong or default caused by the person. The property forfeited may be
movable or immovable. This form of punishment involves depriving a person of
his property as a penalty for the offense committed. It can be imposed under
the IPC only when the crimes committed are those under Section 126 (committing
or preparing to commit depredations on territories of power in alliance or at
peace with Government of India), Section 127 (a receipt of the property taken
in the commission of War or depredation), Section 169 (unlawful buying or
bidding for property in own name by a public servant).
Fine under the IPC: The court may impose the
punishment of fine as sole punishment or as an alternative for imprisonment or
in addition to imprisonment. The court may decide whether either imprisonment
or fine or both are to be awarded. Fine means forfeiting money as a form of
penalty. This form of punishment has been considered valid on the ground of its
universality; however, the fine imposed should be proportionate to the offense
committed because it not only affects the convict but also his dependents. Under
IPC, fine can be imposed as the sole punishment or an alternative punishment or
for a limited amount or unlimited amount. Judges have a wide discretion while fixing
the amount of the fine to be imposed, especially where the provision makes no
stipulation as to the amount of fine. Courts being the administrators of
justice, it is expected of them that the fines imposed should be fair, just,
reasonable, and not excessive. Various cases of non-payment of fine and its
various forms have been dealt with under Ss. 64- 69 IPC.
Solitary Confinement: It is being defined under section 73 of the IPC as keeping the prisoner
thoroughly isolated from any kind of intercourse with the outside world on the
belief that a feeling of loneliness may exert wholesome influence and reform
the criminal. Solitary confinement shall in no case exceed three months in
total. The scale, as given in section 73, is as follows:
(i)
If
the term of imprisonment is less than or up to six months then the period of
solitary confinement shall not exceed one month.
(ii)
If
the term of imprisonment is more than six months but less than one year then
the period of solitary confinement shall not exceed two months.
(iii)
If
the term of imprisonment is of more than one year, then the period of solitary
confinement may be up to three months but not beyond that.
The Supreme Court of India in the
case of Charles Sobraj v. The Superintendent, Central Jail, Tihar[14],
has observed that solitary confinement means harsh isolation of a prisoner from
the society of fellow prisoners by cellular detention. It should be imposed
following a fair procedure and only in exceptional cases.
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. It is evident from the above discussion that the
emphasis has now been shifted from deterrence to reformation of the offenders.
The age old discriminatory and draconian punishments no longer find place in
the modern penal system. 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
highups and those who are in power, and hence, 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
influencing things in their favour.
Even though the penal system of India
is mostly inclined towards reformative approach, however, at times it has acted
in a deterrent way as well. The Apex Court has
in the case of Adu Ram v. Mukna and Others[15],
highlighted the proportionality between crime and punishment and held that social impact of crime cannot be
lost sight of and the offence of murderous assault under Section 300 read with
Sections 149, 304, Part I of the IPC per se requires exemplary treatment. The
Court also noted that imposition of sentence without considering its effect on
the social order leads to some undesirable practical consequences. It is to be
noted that grave offences like crimes against women and children, Dacoity,
Treason, Misappropriation of public money and offences involving moral turpitude
have great impact on social order, and per se require exemplary punishment in
public interest. One of the most effective deterrents is not the fear of pain
and incarceration but the fear of social exclusion undoubtedly; the various
kinds of punishments reiterated under the Indian Penal System have definitely acted
as a deterrent on some types of offenders. Deterrence theory of punishment
along with the reformative theory continues to be the cornerstone of the Indian
Penal System. However, the extent of deterrence must be decided and modulated
depending on the individualised needs of the criminal after taking into
consideration the gravity and impact of the crime on the society.
The Supreme Court expressing concern
over rising violent crimes against women has observed in Purushottam Dashrath Borate & Another v. State of Maharashtra[16] that
the sentencing policy adopted by the Courts, in such cases, ought to have a
stricter yardstick to act as a sufficient deterrent. In the Indian Penal
System, injustice to accused owing to miscalculated sentencing is remedied by
the provision of appeal to higher courts like the High Courts and the Supreme
Court who also formulates precedents the subordinate courts are bound to
follow.
Conclusion:
Be it any form of punishment that is
to be meted out to offenders in accordance with the kinds of offence they have
committed, it is always to be borne in mind that no one is born a criminal.
Nobody wants to be excluded from the society and that Man is a social animal
and man needs the company and approval of society. There may be a number of both
aggravating and mitigating factors- be it physical, environmental, social,
economic, or psychological/emotional, that had contributed to the actions of
the offender. The actual factors leading to the state of mind that existed at
the time of commission of an offence or crime can never be fully understood and
determined by anyone, not even by the offender or criminal himself in some
cases. It should be understood that any normal human can become a criminal or
an offender provided he is backed into a corner with no other avenue of escape
as the ‘survival instinct’ inherent in all living beings will automatically
kick in. Hence an accused must not be always looked as a guilty person before
proving its guilty beyond any reasonable doubt which is considered very
beautiful philosophy of criminal law. Whatever changes or reforms in the penal
policy that is to be implemented should be best carried out for the best interest
of our society by keeping in mind this basic instinct of all humans. To
conclude it would be worth to reaffirm that ‘Every saint has a past and every
sinner has a future’ and that nobody is born a criminal and hence, there is
also a scope of reforming and rehabilitating them in our society.
Article Information
A CRITICAL EVALUATION OF THE INDIAN PENAL SYSTEM
Authors: Dr. Thounaojam Tapasini Devi
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/17
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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