HISTORY OF PUNISHMENT
When there was British colonial rule in India, death was commanded as one of the punishments in the Indian Penal Code, 1860 which listed a number of capital crimes. It remained as a practise even after independence. Nathuram Godse and Narayan Apte were the first ones to get hanged in Independent India for Mahatma Gandhi’s assassination on 15 November 1949.
It came into being in and around the 1860s when the first Indian Law Commission was established to take major decisions about the governance patterns and laws of the biggest British colony- India. The commission that drafted the first copy of the Indian Penal Code was presided over by a learned and respected English law maker : Lord Macaulay.
It was under his supervision, that the Indian Penal Code acquired its basic form. Lord Macaulay had taken reference from a number of already established documents and accounts of laws, which had been well tested in various countries in the world. The major ones included the Louisiana Code of law as well as the prestigious- French Penal Code. Even after a lot of changes and amendments made to the first, original copy of the document, the basic structure of the Indian Penal Code has remained the same since it’s very first draft.
However, the significance of punishments under IPC,1860 were derived from the theories of punishment. In order to understand the vitality for the purpose of punishments the following theories of punishment has to be understood:
(a) DETERRENT THEORY OF PUNISHMENT: Deter means to abstain from doing an act. The goal of this theory is to deter (prevent) crimes. It serves as a warning to the offender so that the crime is not repeated in the future and sets an example for other evil-minded persons in the society.Mandatory license revocation for repeat driving-while-intoxicated offenses is an example of general deterrence.
(b) RETRIBUTIVE THEORY: The objective of the theory is to make the offender realise the suffering or the pain.Retribution means that the wrongdoer pays for his wrongdoing, since a person who is wrongedit becomes necessary to inflict some pain or injury on the wrongdoer in order to otherwise prevent private vengeance(revenge). Death Sentence awarded to hardcore criminals is an instance to quote for this theory.
(c) PREVENTIVE THEORY: The idea behind this theory is to keep the offender away from the society. Death, imprisonment of life etc. are some punishments given to the offenders.Imprisonment, forfeiture, death punishment and suspension of the license are some methods adopted to practice this theory.
(d) REFORMATIVE THEORY: The objective is to reform the behaviour of the criminals. The idea behind this theory is that no one is a criminal by birth.The social, economic and environmental circumstances of a person are responsible which makes him indulge in the criminal activities. It is witnessed that if the criminals are educated and trained, they can be made competent to behave well in the society. Psychologists and sociologists can help the offenders overcome the mental instability with counselling sessions and social inequalities respectively with great support and encouragement.
(e) EXPIATORY THEORY: Expiatory theory of punishment was practised in ancient Indian criminal law. It is based on morals.If the offender expiates or repents, he must be forgiven.Expiations were performed by way of uttering mantras, fasting or even burning oneself to death.
(f) MULTIPLE APPROACH THEORY: It is an approach where combination of theories can be applied as they are not mutually exclusive and may render complete justice.
The objective of criminal justiceadministration is to punish the wrongdoer. It is the State which punishes the criminals.Thereby,section 53 to 75 of the Indian Penal Code, 1860 enumerates the provisions of Punishment.
SECTION 53- PUNISHMENTS (section 53-72)
Following are the five kinds of Punishment as per IPC:
(a) DEATH SENTENCE: Death Sentence also known as ‘Capital Punishment’ is sanctioned by the government and ordered by the court where a person is put to death for a crime acted by him. The death penalty in India is given by the method of hanging. The validity of death sentence was challenged with the fundamental rights of the Constitution and it has been a topic of debate ever since until today.
Following are the offences where death penalty is given under IPC:
- Section115: Abetment for an offence punishable with death or imprisonment for life (if offence not committed) : whoever commits an offence under death or imprisonment for life.
- Section 118: Concealing design to commit an offence punishable with death or imprisonment for life : whoever voluntarily hides a wrongful act or omits the wrongful commission.
- Section 121: When armed rebellion (i.e. waging, abetting to waging of war or attempting to wage war) is made against the constitutionally and legally established government : whoever commits offences against the State or Government.
- Section 132: Uprising, supporting and encouraging the formation of the mutinous group of people in the nations armed forces : whoever initiates a revolt with a group of people usually(military/crew) to oppose a particular organization.
- Section 194- With the intent to obtain a death sentence to an innocent by presenting concocted vexatious proof : whoever gives or fabricates false evidences which results in the death sentence of an innocent.
- Section 302: Causing murder of another
- Section 303: When a life convict person murders another person- whoever isimprisoned for life commits murder.
- Section 305: Abetting suicide to an insane or minor person : whoever drives an insane or aminor person to suicide
- Section 364A: Kidnapping;
- Section 376A: Rape
- Section 396: Causing dacoity with murder : robbery with murder.
IMPORTANT CASE LAWS:
Following are the case laws where constitutional validity was challenged:
1. In Bachan Singh vs State of Punjab, the Supreme Court held that capital punishment shall be given in the “rarest of the rare” case. However, what constitutes the “rarest of the rare cases” is not prescribed by the Supreme Court or by the legislature.
2. In Sher Singh v. State of Punjab and Triveniben vs. State of Gujarat, the Apex court asserted affirmatively that the death penalty does not invalidate the rights enriched under the Constitution of India.
3. In Jagmohan Singh v. State of U.P,the constitutional validity of death penalty was challenged wherean argument was that the death penalty is in violation of Article 14 (Right to Equality), Article 19 (Right to Freedom) and Article 21 (Right to Life). However, the Supreme Court held that the death sentence is a choice by the court made according to the procedure established by law and the choice between capital sentence or imprisonment of life is based on the circumstances, nature and facts of the case brought during the trial.
4. In Mithu v. State of Punjab, the Supreme Court held that the mandatory death penalty is invalid and unconstitutional in nature.
Following are the case laws where death penalty was confirmed:
1. In State of Tamil Nadu v Nalini popularly known as Rajiv Gandhi’s assassination case where there were 26 accused out of which four accused who were from the LTTE (Liberation Tigers of Tamil Eelam) group were punished death penalty by the Apex Court as they were seeking revenge for the Indian government’s decision for sending army troops in Srilanka.
2. In Jai Kumar v State of Madhya Pradesh, the Supreme Court upheld the verdict of the Sessions Court and the High Court of Madhya Pradesh as it was observed that the accused murdered his sister-in-law and niece brutally without being in rage and admitted to the crime under Section 313 of IPC.
Following are the case laws when Death Sentence has been commuted to Life Imprisonment
1. In Rajendra Rai v. State of Bihar, the accused was held guilty for the murder of the deceased due to a dispute over the land situated between their houses on which the trial court ordered death penalty and the High Court confirmed the same.However, the Apex Court was of the view that the case cannot be regarded under the rarest of rare cases. Thereby the death penalty was reduced to life imprisonment.
2. In Sambhal Singh v. State of UP there were four accused who murdered the three children of the Munshi Mall due to a family land dispute where the Sessions court held them guilty and the High Court confirmed the sentence. However, the Supreme Court observed that the age of the four accused was not considered by the lower court. Therefore, the court reduced the punishment of death penalty to life imprisonment.
(b) IMPRISONMENT FOR LIFE:
i. This was also known as transportation for life and it is given for serious crimes wherein the convicted remains in prison until his/her last breath.
ii. Imprisonment for life is not confined to 14 years of imprisonment.
iii. Although, a reading of Section 55 IPC (Commutation of sentence of imprisonment for life) and Section 433 (Power to commute sentence) and 433A (Restriction on powers of remission or Commutation in certain cases) Cr.P.C. would indicate that only the appropriate Government can commute the sentence for imprisonment of lifefor a term not exceeding fourteen years or the release for such person unless he has servedat least fourteen years of imprisonment.
iv. In life imprisonment the person is forced to spend their life in prison where they come across hardcore criminals which may have a bad influence to that person’s better instincts.
v. Also, feeding and housing a criminal inclusive ofmedical care for the remainder of their life is expensive. The more criminals spend their lives in prison, the higher the expense becomes to taxpayers.
vi. There is an increase on the criminals who have been prescribed life sentence which forces the taxpayers to spend their hard-earned money to construct additional prisons.
IMPORTANT CASE LAWS:
1. In Gopal Vinayak Godse v. State of Maharashtra, a first Constitutional Bench of Supreme Court, in respect of life imprisonment, held that a prisoner sentenced to life imprisonment was bound to serve the remainder of his life in prison unless the sentence is commuted or remitted by the appropriate authority. Such a sentence could not be equated with a fixed term.
2. In Maru Ram v. Union of India and Ors., also the Court held that imprisonment for life lasts until last breath of the prisoner and whatever the length of remissions earned, the prisoner could claim release only if the remaining sentences is remitted by the Government.
3. In Subash Chander v. Krishan Lal &Ors., the Court held that life imprisonment means imprisonment for the whole of the remaining period of the convicted persons natural life unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 Cr.P.C.[of old code, corresponding to present Section 432]
4. In State of Punjab v. Joginder Singh, the Court held that if the sentence is ‘imprisonment for life’ the convict has to pass the remainder of his life under imprisonment unless of course he is granted remission by a competent authority in exercise of the powers vested in it under Sections 432 and 433 of the Cr.P.C.
(c) IMPRISONMENT: It can be either rigorous or simple imprisonment.
i. Rigorous imprisonment is given when the offence committed is of serious nature where the prisoners are awarded with hard and congenial jobs of breaking stones, digging the earth, agriculture, carpentry etc. in offences such as house trespass (Section 449) or giving or fabricating false evidence with intent to procure conviction of capital offence (Section 194).
ii. Simple imprisonment is when a prisoner is assigned soft jobs and imposed on those who committed lighter offences for instance wrongful restraint or defamation. Also, the prisoners are given work only on the basis of their request and subject to their physical fitness.
IMPORTANT CASE LAWS:
1. In Santokh Singh vs Izhar Hussain, it was held that test identification of parade is mainly used in rape cases to identify the accused by the victim and if the victim had lied and given a false statement that he was the accused then it is an offence under Section 192 (fabricating false evidence) and Section 195 (giving or fabricating false evidence with an intention/knowledge for an offence punishable with imprisonment for seven years or more or life imprisonment).
2. In Shoba Rani vs. The King, the landlord was accused of preventing his tenant from using the bathroom. By stopping the tenant from using something that he had the right to use, the landlord had committed wrongful restraint under Section 339 which is a simple imprisonment for a term which may extend to one month or with fine which may extend to five hundred rupees, or with both.
(d) FORFEITURE OF PROPERTY: Forfeiture is the loss of property which is a consequence to the default caused under contractual obligation or as a penalty for an illegal conduct.
IMPORTANT CASE LAW:
1) In Kesar Devi V. Union of India, a separate order was passed against Jagannath Sharma on the same date forfeiting the other two properties. The orders were passed on the finding that though the ostensible owner of the properties was Smt. Kesar Devi but the real owner was her husband Jagannath Sharma.
(e) FINE: The court may impose a fine as an alternative for imprisonment or can add it as an addition to the imprisonment. Due to corona virus Section 144 was imposed in Delhi till March 31. The order quoted “Any individual suspected/confirmed with Covid-19 shall take measures for prevention/treatment i.e. home quarantine/institution quarantine/isolation or any such person shall cooperate to render assistance or comply with the directions of the surveillance.” Anyone violating the order will be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to Rs 200 under Section 188 of the Indian Penal Code.
SECTION 73- SOLITARY CONFINEMENT
Solitary Confinement ‘Sol. Conf.’ (the isolation of a prisoner in a separate cell as a punishment) is awarded to a prisoner when he is being problematic.While giving solitary confinement the court shall keep in mind not to exceed three months in total. The scale is as follows:
- If the term not exceeds more than six months- Sol. Conf. not exceeding one month (Max 1month)
- If the term exceeds more than six months but not exceed one year- Sol. Conf. not exceeding two months (Max 2months)
- If the term exceeds one year- Sol. Conf. not exceeding three months- (Max 3months)
SECTION 74 - LIMIT OF SOLITARY CONFINEMENT
Solitary confinement should be imposed only in intervals. It shall never be for more than fourteen days at a stretch. The interval between the period of solitary confinement must not be less than such periods of such confinements. In case of imprisonment of more than three months, solitary confinement shall not be for more than seven days in any one month of the total imprisonment awarded.
IMPORTANT CASE LAWS:
1. In Sunil Batra v. Delhi Administrations, this was a petition initiated by one of the prisoners under death sentence. He through a letter alleged that a jail warden had brutally assaulted one of the prisoners who was in solitary confinement for a reason to extract money. The Supreme court held that no solitary confinement or any other type of hard labour shall be imposed without judicial appraisal of the Sessions Judge. This was a case where Supreme Court had considered the validity of solitary confinement.
2. In Kishore Singh Ravinder Dev v State of Rajasthan, the Supreme Court held that by keeping the prisoners in separate solitary rooms for long periods ranging from 8 to 11 months, putting crossbar shackles for several days concluded to be treated with an uncivilized manner which proves contrary to the verdict given in Sunil Batra case. So, the prisoner can be kept in solitary confinement only in rarest of the rare casesotherwise it would be a violation of Article 21 of the Indian Constitution.
SECTION 75 - ENHANCED PUNISHMENT FOR CERTAIN OFFENCES UNDER CHAPTER XII OR CHAPTER XVII AFTER PREVIOUS CONVICTION
This section says that where someone has been convicted for such an offence under chapters XII and XVII of the Code which is punishable with imprisonment of three years or more, and again commits such an offence under either of these chapters which is punishable with imprisonment of three years or more, for the second offence he shall be subject to imprisonment for life or rigorous or simple imprisonment up to ten years.
It makes a previous convict in certain classes of cases liable to enhanced punishment.Although, it is not obligatory to impose an enhanced sentence in every case of thisdescription. In Kasim Ali v. Emperor, the court has pointed out the need for applying this section with some discrimination, and not in a mechanical manner.