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PUNISHMENT AS AN INTEGRAL PART OF CRIMINAL JURISPRUDENCE: A COMPARATIVE STUDY BETWEEN INDIA AND UNITED KINGDOM
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Article Details
PUNISHMENT
AS AN INTEGRAL PART OF CRIMINAL JURISPRUDENCE: A COMPARATIVE STUDY BETWEEN
INDIA AND UNITED KINGDOM
AUTHORED BY - SHIKHAR SINGH
B.A., LL.B.(H)
2019-24
Amity Law School
Amity University, Noida
Abstract
The jurisprudence of criminal law
legislation derives from a society to which one belongs because the law is
based on human behavior, which varies from society to society. Criminal law is
the device by which organized societies protect individuals' interests and
ensure survival. Where sovereignty of society is likely to be affected directly
or indirectly through the act or omission of a person, criminal jurisprudence
emerges. Prevention of wrongs against society for its protection via laws comes
under the domain of criminal jurisprudence. Since a crime is considered a wrong
against society, it is in the interest of society that the culprit shall be
recognized and prevented from doing further acts or omissions that the state or
sovereign describes as punitive measures and is known as Punishment.
With this paper, the author will
attain a transparent image of the jurisprudential theory behind Punishment and
sentencing, an overview of various types of punishments and sentencing in
multiple countries worldwide, and a critical comparison between specific
punishments of India and the United Kingdom. The paper aims to distinguish and
build the rationale behind some major archetypes of punishments, such as the
death penalty, imprisonment, fines, compensation, etc., in India and the United
Kingdom.
The main focus is to critically
compare the ideology of the lawmakers behind defining any such punishment in
any of the countries which can create a deterrent or preventive effect on the
wrongdoer and also suggest possible reforms that might be needed in the future,
keeping in view the dynamic aura of both the societies.
Keywords: Sentence, Punishment, Imprisonment,
Jurisprudence, Fine, Society, Laws.
1)
Introduction.
Punishments are the
backbone of any legal system. It acts as a binding agent for discipline, sanctity,
safe and sound society. Punishments, however cruel or harmful in nature, are
implicated to have a positive impact on the wrongdoer and also set an example
in front of those who even think of doing wrong to another. Many jurists talk
about the birth of these punishments from various day-to-day chores. The
concept of a legal or moral wrong comes hand in hand with sanctions, as
legislators think that the people in the society won't abide by the laws if not
backed by sanctions or punishments. Prison punishment presupposes crime as that
for which punishment is imposed, and criminal law defines the wrong as crimes;
a system of criminal law presupposes a state, which has the political authority
to make and put in force the regulation and to impose punishments. Punishment
includes material impositions or compensation which might be in themselves
usually unwelcomed. They deprive humans of factors that they value (liberty,
money, time), and they require humans to do matters that they could not
commonly need to do or do voluntarily to spend time on unpaid network labor, to
record to a probation officer often, to undertake traumatic programs of
numerous kinds. It's far broadly every day that what distinguishes punishment
from mere 'penalties' is their reprobative or condemnatory character. Penalties
might be imposed to deter the penalized behavior without being supposed to
express societal condemnation. However, even considering the number one cause
of punishment is deterrence, its imposition of the conviction and proper
sentence that the wrongdoer receives in court, the administration of the
punishment itself also expresses the censure or condemnation that the
perpetrator's crime is taken to warrant.
It has been well observed
that when the rights of human nature are not respected, those of the citizens
are gradually disregarded. Those eras are found fatal to liberty in history, in
which cruel punishments predominate. Lenity should be the guardian of moderate
governments; severe penalties, the instruments of despotism, may give a sudden
check to temporary evils, but they have a tendency to extend themselves to
every class of crimes, and their frequency hardens the sentiments of the
people. The excess of the penalty flatters the imagination with the hope of
impunity and thus becomes an advocate with the offender for perpetrating the
offense.
2) Jurisprudential theory of
Punishment.
Punishment theories have been around
for a long time. Jeremy Betham, a well-known jurist, is believed to have
created the term "punishment." He considered punishment to be the
most effective means of preventing anarchy. He established the concept of
sanctions, which serve as the foundation for all of the authorities' norms and
laws governing the correct functioning of society and its members. Regulations
and standards would have no impact on the public if punishments did not back
them. That is why it becomes essential to understand the sovereign's norms and
laws to prevent such sanctions on an individual. When compared as an isolated
fact with a crime, the nature of a negative or evil penalty will make no
difference, and it will be equivalent to doing evil in exchange for sin. There
has been too much debate on whether or not deliberating punishment on those who
act as a result of deviance or those who need to be disciplined is justified.
Many jurists mentioned the phrase 'corporal punishment,' which refers to
physical punishment on a deviant, such as lashing or battering, to impose some
form of discipline.
For many years, corporal punishment
has been used in various forms worldwide. Corporal Punishment can be divided
into three categories:
1. Corporal
Punishment at Home (Parental or Domestic)
2. School
Corporal Punishment: Punishments are given by the school's teachers.
3. Judicial
Corporal Punishments: the punishments imposed by the courts following the law.
To justify punishing the offenders,
many theories of punishment are proposed:
·
DETERRENT THEORY- The primary goal of punishment is to make the commission of a crime a
sick bargain for the offender while discouraging others from doing so. As
Salmond correctly points out, punishment is a deterrent mainly in nature. The
primary objective of criminal law is to make the criminal an example and a
caution to all who share his views. From this perspective, punishment is a
means of achieving social safety since it safeguards society by deterring
potential offenders. Offenses are committed as a result of the offender's and
society's conflict over pleasures. Punishment prevents such crimes by
destroying the conflict of pastimes by doing acts that are injurious to others
and injurious to the doer himself.[1]
·
RETRIBUTIVE THEORY: The notion is founded on the maxim an "eye for an eye"
and a "tooth for a tooth,"[2] a
natural justice guideline. As a result, the principle emphasizes that the pain
imposed on the offender through punishment must surpass the pleasure obtained
by him from his criminal act. As a result, according to the retributive idea,
punishment represents society's disapproval of the offender's unlawful act. Those
who support the retributive theory argue that punishing criminals is the proper
moral response since criminals deserve punishment. On this point, it shares a
viewpoint with deterrence theory, which also defends punishment as morally and
believes that the severity of the punishment should be proportional to the
gravity of the crime for which the offender has been found guilty. As a result,
retributivists emphasize the imposition of bodily pain and suffering, as well
as incarceration, deportation, and even the death penalty, rendering the
ideology illogical, revengeful, and unjustifiably barbarous.
·
PREVENTIVE THEORY- The preventive theory is based on the idea of disabling the offender
through measures such as imprisonment, forfeiture, death penalty, license suspension,
etc. This view does not focus on the wrongdoer's intention, instead of focusing
on depriving him of his physical ability to commit the crime. It assumes that
the need for criminal punishment originates only from social necessity. The
community protects itself from anti-social acts that endanger social order by
punishing a criminal.
"The end of all
penal laws is that they are not to be applied,"[3]
Fichte commented for the preventative theory of punishment. When a
landowner puts a sign that says "trespassers will be prosecuted," he
doesn't want an actual trespasser to have to go to the trouble and expense of
bringing the law down on him. He thinks the threat will deter any such conduct;
he aims to prevent trespassing, not punish him. However, if trespassing
continues, he will prosecute the trespasser. As a result, the true purpose of
the penal code is to make the threat widely known rather than to carry it out
regularly.
Kant and others have
criticized the preventive theory, arguing that just imposing a sentence of
imprisonment and sending the offender to prison will not reduce crime unless
some reformative measures are made to integrate him into society through the
rehabilitation process.
·
EXPIATORY THEORY- The morality-based expiatory theory of punishment has little to do with
law or legal jurisprudential notions.[4] As
a result, many jurists refuse to accept it as a legal punishment theory. This
notion is more tied to ancient religious perceptions of crime and punishment
when criminals were placed in cells to confess or make restitution for their
crime or guilt from the depths of their hearts and decide to avoid offense.
Anyone who honestly
repents for his mistakes or crimes, it was believed, deserved to be forgiven
and let off.
·
REFORMATIVE THEORY- The reformative theory of punishment emphasizes the individualization of
criminals to reform them. It is founded on the humanistic principle that an
offender does not cease to be a human being simply because he commits a crime.
As a result, a concerted attempt should be made to reform him throughout his
imprisonment. The offender's age and character, his antecedents, and the
circumstances in which he did the illegal act must all be taken into account by
the Court while deciding on the sentence. In contrast to deterrence theory,
reformative theory tries to socialize the criminal to eliminate the factors
that drove him to commit the crime. He can resume a regular life in society.[5]
However, it must be noted
that no single theory would serve the purpose of the administration of
criminal justice. Without a doubt, it must give the reformative theory a fair
consideration but must not overlook the deterrent
and preventive aspects of punishment. In the case of juveniles or
first-time offenders, an ideal penal policy would focus on reform, whereas
repeated offenders and hardened criminals should face deterrence. As a
result, modern criminologists place a greater emphasis on institutional
techniques of treating criminals rather than outdated and obsolete punishment
methods. Punishment should minimize offender suffering while also developing
societal morals and discipline in citizens.
3)
Types of Punishment and Sentencing
all over the world.
Criminal law reflects the underlying social ideals that
govern how individuals live and interact in society. To reinforce those
principles and ensure conformity, it employs the "stick" as a kind of
punishment. In this approach, criminal law aims to safeguard individuals and
the very structure and idea of democracy from unwanted, evil, and notorious
activities and behavior of persons and groups who strive to disrupt and disturb
public peace, calm, and harmony.[6]
Punishment is the sanction imposed on an accused to
infringe on society's established rules and norms. Punishment aims to guard
society against mischievous and undesirable elements by deterring potential
criminals, preventing the actual offenders from committing further offenses, and
reforming and turning them into law-abiding citizens. It is likewise asserted
that law recognition grows primarily out of the opposition to those who violate
the law. The public dislikes a criminal, which is expressed in the form of
Punishment.[7]
As discussed above, there
are many theories throughout history that society has developed in different
ways to simultaneously punish criminal offenders while also ensuring the
public's safety. These theories further classify
what sought of punishment is to be given; for example, the death penalty is
offered to create a deterrent effect against murder on the wrongdoer. It
further establishes the deterrent theory. Likewise, imprisonment is given to
prevent the wrongdoer from committing a further crime and confirms the
preventive theory.
Various Major types of Punishment all over the world:
i.
Flogging: Flogging, also known as whipping or caning, is a beating administered with a
whip or rod, with blows typically directed to the person's back.
Flogging became one of the most common methods of
punishing criminals. In India, this form of
Punishment was recognized under the
Whipping Act, 1864, which was subsequently
abolished in 1955. English Penal law
repealed it even earlier than India. Maryland (U.S.A)
whipping is known as late as
1953 and is only limited to
wife-beating. This mode of Punishment is being utilized in most
Middle East nations even today.[8]
Many
countries have banned it because of its brutal and vicious nature. It doesn't
appear to be very effective. Hardened criminals who were whipped committed the
same crimes again. It's fair to presume that it's helpful in minor situations.
ii.
Mutilation: Mutilation was a prevalent form of
Punishment in ancient times. During the Hindu period, this type of Punishment
was used. This form dealt with removing a criminal's body parts, such as one or
both hands if the individual committed theft, and his private parts if he
committed a sexual crime. The method was widely used in England, Denmark, and
many other European countries.
The
system's rationale was that it is an effective deterrent and retributive
measure. Due to its brutal nature, this system has been largely abandoned in
current times. Such penalties are seen to have an unavoidable tendency to
develop cruelty in people.[9]
iii.
Branding: Another kind of Punishment that was often
utilized in eastern and classical communities was branding. According to Roman
penal law, criminals were branded with appropriate marks on the forehead to be
identified anywhere and subjected to public humiliation. This served as a
powerful tool in the fight against criminality as a result of societal dread.
Until 1829, England also branded its criminals. The technique was also widely
used in American prisons. The burglars' hands were branded with the letter
"T," and those who did it again were branded with an "R" on
the forehead. Blasphemy in Maryland was penalized by a forehead tattoo of the
letter "B." During the Mughal era in India, branding was used.
With the
emergence of humanitarianism in the criminal system, this type of Punishment
was entirely abandoned worldwide.[10]
iv.
Stoning: During the Middle Ages, stoning was also a
common practice. This sentencing method is still used in some Islamic nations,
such as Pakistan and Saudi Arabia. Offenders found guilty of sex offenses
are often sentenced to death by stoning. The guilty person was forced to stand
in a tiny trench excavated in the ground, surrounded by people who began
pelting him with stones until he died. Even though it is a barbaric punishment,
these countries have great control over sex crimes and other crimes against
women due to its deterrent effect.[11]
v.
Pillory: Pillory was a severe and barbarous
punishment used until the 19th century. The culprit was forced to stand in
front of a crowd with his hand and head locked in an iron frame, preventing him
from moving his body. While in the pillory, the offender could be whipped,
branded, or both. He could be stoned if the crime was heinous enough, and his
ear was occasionally nailed to the pillory. The most painful effect on a
criminal was restraining his physical activity, and it was thought that the
deterrent involved in this method would surely bring the culprit to justice.[12]
vi.
Banishment: This is one of the oldest forms of
Punishment. The purpose was to expel criminals from society by transporting
them to isolated areas; however, this practice was also used to send rebels,
revolutionaries, and reformers. Transportation in India refers to sending
convicts to the Andaman and Nicobar Islands, often known as "Kala
Pani." It reinforces a great fear of the sea in Indians, especially those
who live far away from it, and punishment reinforces even more fear. It took on
a new meaning for Indians because crossing the seas meant the abandonment of
one's caste. During the Japanese colonization of the island in the early 1940s,
this practice ended. It was finally repealed in 1955 by an amendment act. In
1854, this type of punishment was banned in England as well.[13]
vii.
Death Sentence/ Capital Punishment: Death penalty is also
called capital punishment. Under this Punishment, a person is hanged till he
dies. The infliction of death sentence or taking away the offender's life by
authority as a punishment for an offense is capital punishment or the death
penalty. In India, Section 53 of the Indian Penal Code prescribes it as one of
the punishments, and after the case of Bachan Singh v. State of Punjab[14],
it is awarded in the rarest of rare
cases.[15] In England, the death
penalty was abolished by The Murder (Abolition of Death Penalty) Act, of 1965.[16]
viii.
Imprisonment: Imprisonment is the restraint of a person's liberty, for
any cause whatsoever, whether by authority of the government, the Punishment of
Imprisonment is prevalent in most countries all over the world, and it ranges
from simple to whole life imprisonment. In India, Sec 53 of the Indian Penal
Code prescribes three types of imprisonment, i.e., life, simple, and rigorous.[17] In England and Wales,
Sentencing Code 2020 specifies different kinds of imprisonment ranging from
determinant to whole life imprisonment.
ix.
Fine: Fines are awarded for non-serious offenses, such as those
involving violations of traffic rules and tax laws, as fines are the most
common form of Punishment. Almost every penal system adopted this type of
Punishment. The financial penalty was in the form of a fine, compensation, or
cost, and in some circumstances, fines are imposed as an
alternative to a community sentence. Fines are only used as an alternative to
imprisonment when the sentence is for a limited period of time, such as two or
three years.[18]
x.
Community Sentence: Community sentences are imposed for offenses too severe for
a discharge or a fine but not powerful enough to justify a prison sentence.
Community sentencing imposes obligations on offenders that must be met. The
court will determine which of these conditions, when combined, will most
effectively punish the offender for their offense while also minimizing the
likelihood of them committing it again. The community sentence can be ordered
to take the following requirements, namely to
undertake between 40 and 300 hours of unpaid work, to comply with an
electronically monitored curfew during hours imposed by the court for a
specified period, to have regular supervision meetings with a probation
officer, to complete an accredited program for issues such as domestic abuse or
sexual offending, etc[19]
xi.
Discharge: When a court finds someone guilty of an offense but decides
not to charge them with a crime at this time, they are awarded a 'discharge.'
Discharges are typically granted for minor infractions. There are two different
kinds of discharges: absolute discharge and conditional discharge.[20]
xii.
Forfeiture
of Property: Section 53 of the I.P.C.
allows for forfeiture of property as a method of Punishment. Sections 126
and 169 of the IPC define two offenses that result in property forfeiture in
addition to a sentence of imprisonment with or without a fine.[21]
4)
Critical Comparison between various
punishments in India and United Kingdom.
In an uncivilized
society, no one was believed to be safe from other person's attacks on his
people or property. The individual who attacked either gave up or
over-powered the opponent. The rule of law was a tooth for a tooth, an eye
for an eye, and a life for a life. With the passage of time, the injured party
decided to take compensation rather than kill his opponent. The parties
were in charge of settling the terms for a long time, but the state
progressively took over this job.[22]
As previously said, the
law provides for Punishment to deter the wrongdoer from repeating the crime.
Punishment is a consequence or outcome of a person's wrongdoing, and there are
several punishments around the world. However, when it comes to India and the
U.K. (England and Whales), the wrongdoer is punished according to their own
societies.
In India, Criminal
jurisprudence dates back to Manu's time. Assault, theft, robbery, false
evidence, slander, criminal breach of trust, cheating, adultery, and rape have
all been acknowledged by Manu. The monarch protected his subjects, who owed him
loyalty and paid him revenue in return. If the monarch could not do so due to
unforeseen circumstances, the case was committed to a judge. If a criminal was
penalized, the fine went to the king's treasury and was not handed to the
injured party as compensation.[23]
Various laws were enacted
during the reigns of different rulers. When the British invaded India, they
imposed a distinct set of rules based on British models, but they were not
universal.[24]
Later, in the year 1860
British Government, with the presidentship of Macaulay, came up with the Indian
Penal Code, 1860, wherein Section 53 of the Indian Penal Code prescribes five
types of Punishment, namely[25]:
1) Death
2) Imprisonment for life
3) Imprisonment, which is of two
descriptions, namely:
i.
Rigorous,
that is, with hard labour,
ii.
Simple
4) Forfeiture of property
5) Fine
Interestingly, the United Kingdom
doesn't have its Penal Code yet (even though ironically they formed India's
Penal Code), and most of their Punishment is in the form of Statute.
Particularly in England and Wales, the primary Statute on sentencing is the Criminal
Justice Act 2003 and Sentencing Code, 2020.
In the U.K., there are majorly four
main types of Punishment:
1) Discharges
2) Fines
3) Community Sentences
4) Custodial (or prison) Sentences
The court will consider several
factors in determining the sentence, including the type of offense and its
severity, the timing of any guilty plea, the defendant's character and
antecedents, including their criminal record, and the defendant's personal
circumstances, such as their financial circumstances if a fine is imposed.[26]
In terms of basic principles of
Punishment, both nations indeed have some common punishment, and once we
analyze them properly, the differences become evident. The following section
critically examines the same:
i.
Death Penalty: Capital Punishment is when a competent court sentences
someone to death for committing a crime against the state that the government
has sanctioned. Murder, rape, mass murder, and sexual abuse are examples of
such crimes. It's a widely debated topic worldwide, and everyone has an opinion
about it.
Some people believe that
killing a person is the most inhumane practice, while others say that it is
justified since it puts an end to the life of a person who is unfit and
detrimental to society, and hence he should be killed.
Capital Punishment has
been practiced for a long time, and in earlier times, such Punishment was meted
out for trivial offenses such as fighting over food, sex, and so on. For these
petty reasons, they fought for the eye for an eye, tooth for a tooth, and blood
for blood.
With new practices, the
world and society gradually changed, and it became apparent that capital
Punishment should be reserved for the most heinous crimes. Many countries have
abolished the death penalty, with 142 countries out of 195 doing so.
In India Death Penalty is
not abolished, but it is based on the doctrine of rarest of rare cases, as
elucidated in the case of Bachan Singh but, in the United Kingdom in
the year 1965, the Murder Act (the Abolition of the Death Penalty) suspended
the use of capital punishment in the UK for five years (this did not extend to
Northern Ireland for all crimes except high treason, "piracy with
violence," arson in royal dockyards, and espionage) before making it
permanent in 1969, and replacing it with a mandatory sentence of life
imprisonment. In 1971, the death penalty for arson in Royal dockyards was
abolished, and in Northern Ireland, the death penalty was abolished in 1973. In
1998, Capital Punishment in the UK for acts of treason and piracy with violence
was also abolished, finally making the UK free of the death penalty.[27]
Only significant offenses
are subject to this punishment. The death penalty is the severest punishment
available under the Indian Penal Code, and it is not a mandatory punishment for
a specific crime. The Indian Penal Code prescribes the death penalty as an
alternative punishment for heinous crimes, and this means that the judiciary
has other options of a prison sentence for carrying out the punishment.
In Jagmohan Singh vs.
State of Uttar Pradesh[28],
it was contended that the death sentence is unconstitutional and so unfit for
punishment. The Supreme Court upheld the death penalty, and it was decided that
deprivation of life is constitutionally permissible if done in accordance with
the law's procedures.[29]
Section 121, 132, 194,
302, 303, 305, 307, 364A, 376E, 396, and other sections of the Indian Penal
Code allow for death sentence or capital punishment, and the court is not
obligated to award capital punishment in these sections.
Previously, capital
punishment was mandatory for 6the crime of murder by a life convict under
section 303. The death sentence for section 303 was declared
unconstitutional in Mithu vs State of Punjab because it violated Articles 14
and 21 of the Constitution.
In Bachan Singh
vs. State of Punjab[30],
the Supreme Court maintained the death penalty's constitutionality, but only in
the rarest of rare cases. If this theory fits the case, capital punishment
may be imposed.[31]
But there are various
contentions about the death penalty worldwide that every nation should ban. It
was also argued in India as well that the punishment of death penalty should be
banned and the reason why the Supreme Court held it as a valid form of
punishment and is still not banning it because we have seen various instances
like the Delhi Rape Case and Mumbai Attack 26/11 where our nation finds it
suitable for our society that the criminals of these kinds of crime should be
hanged to death. After all, their act was brutal and barbarous, which is not acceptable
to society.
The question is whether
India should ban Capital Punishment; likewise, that of the U.K. It will depend
upon the circumstances of the society in the future as the society is dynamic
and changes according to time; there can also be a possibility that the
punishment of Capital Punishment will not be required in India.
ii.
Custodial Sentence/Imprisonment: Both India and the U.K.(England and Whales) awards
prison sentences for particular types of crimes in their countries. Prison
Sentence in India is of three kinds, namely Imprisonment for life, Rigorous
Imprisonment, and Simple Imprisonment as described under section 53 of the
Indian Penal Code 1960[32],
whereas in U.K. Sentencing Code 2020 prescribes four types of punishment that
the court can impose, namely Suspended Sentence, Determinate Sentence, Extended
Sentence, and Life Sentence.[33]
In India, prison
sentences are prescribed under every crime under the Indian Penal Code. The
Judge or Magistrate doesn't have this much flexibility, or one can say
discretion over deciding what sought of imprisonment should be given to the
offender depending upon the factors that determine the sentence, including the
type of offense and its severity, the defendant's character, and antecedents,
including their criminal record, and the defendant's personal circumstances,
such as their financial circumstances.
But in the U.K., Custodial sentences
(i.e., imprisonment or detention in a Young Offender Institution) should be
used as a last resort. Before a custodial sentence can be imposed, not only
must the defendant have been convicted of an imprisonable offense, but the
Judge or Magistrates must be satisfied that the custody threshold has been
passed. The custody threshold is contained in s.152(2) Criminal Justice Act 2003, which provides that the court must not give a custodial
sentence unless it believes that the offense, or the combination of the crime
and one or more crimes associated with it, was so severe that neither a fine
alone nor a community sentence can be justified for the offense. As such,
the Judge or Magistrates must look to other sentencing options if they can. At
the bottom end of the sentencing, scales are fines and absolute and conditional discharges. Further up the scale are Community Orders. And
further up still are Custodial Sentences. Even where the court considers that
only a custodial sentence is justified, it can still, in certain circumstances,
suspend the sentence or defer the sentence.[34]
In India, therefore, it is needed to make such reforms in the penal code
to give the Judge the discretion over deciding what sought of punishment should
be provided depending upon the circumstances and other factors associated with
it.
But we can't ignore the crime rate of all the countries where the United
Kingdom stands at 64th position and India is at 71st
position[35]
. For this reason, the parliament of the United Kingdom must lessen the flexibility
provided to the judges and magistrates.
iii.
Fines: In both countries, the most common type of
sentence given by the courts is a fine, and this is because they are imposed
for lower-level offenses such as petty traffic violations or minor theft.
In India,
the court has the authority to impose a fine as a substitute for or in addition
to imprisonment. In each case, the court must decide whether the punishment of
imprisonment, a fine, or both should be given, and the crime for which fine is
an alternative punishment is defined under the Indian Penal Code.
But in the United Kingdom, as the case for imprisonment, the court has the discretion to set the amount of a
fine after considering how serious the offense is and how much money the
offender can pay based on their income. Fines can be given to organizations or
companies as well as people.[36]
The discretion to decide the amount of fine is also given to Indian
Courts under Section 63 of the Indian Penal Code, where the amount of fine is
not mentioned[37].
But this discretion is not unlimited because most of the crime in the Indian
Penal Code prescribes the maximum amount of punishment that the court can
impose and that in certain way barricades the intellect of a Judge and
Magistrate to decide the amount of fine as per the economic condition of a
particular individual.
iv.
Community Sentence:
Community Sentence is a punishment given by the courts in the United Kingdom
and is imposed for offenses that are too serious for getting a discharge or a
fine but not severe enough to justify a custodial sentence.[38]
However, in India, this type of punishment does not exist. In 1978, the
Indian Penal Code (Amendment) Bill suggested a community sentence (also known
as community service) and four other new forms of punishment. However, due to the prolonged emergency period, the bill got
lapsed.[39]
In the United Kingdom, community sentence combines
some punishment with community service. For example, it may imply that an
offender must:
·
Perform up to 300 hours of
unpaid work, such as graffiti removal.
·
Receive alcohol or drug
therapy to address the underlying causes of their criminal behavior.
·
Obey a curfew, which is
intended to keep them out of trouble; or
·
Reside at a specific place
or refrain from traveling overseas.
There are a total of 13 requirements that offenders
may be expected to meet, and they may be given only one or a combination of
them.[40]
India must amend the Indian Penal Code to add the
punishment of community sentencing because it creates a specific space between
the crimes that are too serious for a fine but not so severe enough to justify
imprisonment. This punishment is beneficial to the criminals, the victims, the
community, and, as a result, society. Criminals not only see personal
growth, but they will also realize the importance of their work and try to
build a new life free of crime once they are released, which will not only help
to curb the rising crime rate but will also help to set a true example of the
reformative justice system in India.[41]
Some Indian states, such as Gujarat and Andhra
Pradesh (Prison in the state subject), have adopted the concept of Community
Sentencing as a punishment method by amending the Penal Code and introducing
the concept of Community Sentencing as a punishment method. The legislation,
however, is currently awaiting consideration by the Union Government.[42]
Conclusion
The basic idea behind the insertion
of punishments in the legal system and into society is to make sure that the
people in the society are vigilant enough to watch over their actions and
always act in accordance with the laws of the society. As discussed in the
paper, we can see that many jurists have explained various ideologies behind
various punishments. Different corners of the world recognize multiple
punishments. Some of them are still prevalent, and others are abolished due to
either the nature of the sanction or its cruel effects on the well-being of an
individual. The view of the ancient law jurisprudence is quite different from
modern law jurisprudence. In contemporary jurisprudence, moral laws are taken
into consideration, and thus many forms of punishments are now modified and only
given in rarest of rare cases. Adopting various punishments by countries like
India and the United Kingdom and their gradual changes in deciding the
punishments for various crimes depicts their societal upgradation. It is
important for a country to consider the old ideologies in deciding for these
punishments and constantly bring in changes viable with the advanced times and
mindset of the individual. The rationale behind categorizing these punishments
comes from the kind of intent or motive one develops, which can change from
person to person and time to time. It is often important only to acknowledge a
mistake and not necessarily punish an individual. In contrast, sometimes, the
act is so gruesome that even capital punishment seems less to equalize the pain
and agony of the victim.
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[10] Supra note 8 at 9
[11] Supra note 8 at 9
[12] Supra note 8 at 9
[13] Supra note 8 at 9
[14] AIR 1980 SC 898
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[17] Id 15
[18] Supra note 8 at 9
[19] Types of Sentence, available
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[21] Supra note 8 at 9
[22] The Indian Penal Code, 1860 (45 of
1860)
[23] Supra note 22 at 12
[24] Supra note 22 at 12
[25] The Indian Penal Code, 1860 (45 of
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[26] Supra note 19 at 12
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[28] AIR 1973 SC 947
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[30] AIR 1980 SC 898
[31] Supra 29
[32] The Indian Penal Code, 1860 (45 of
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[33] Supra note 19 at 12
[34] Prison Sentences, available at:
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[35] Criminal Rate by Country 2022, available
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[36] Supra note 19 at 12
[37] The Indian Penal Code, 1860 (45 of
1860), s. 63
[38] Supra note 19 at 12
[39] KD Gaur, Textbook on Indian Penal
Code 157 (Universal LexisNexis, 7th edn., 2020)
[40] Supra note 19 at 12
[41] Community Sentencing in India available
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[42] Supra note 41 at 18
Article Information
PUNISHMENT AS AN INTEGRAL PART OF CRIMINAL JURISPRUDENCE: A COMPARATIVE STUDY BETWEEN INDIA AND UNITED KINGDOM
Authors: SHIKHAR SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/06
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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