There are five different kinds of punishments awarded by the Indian Penal Code, 1860 under Section 53, and they are Death, Life imprisonment, Simple or rigorous imprisonment, Fine and Forfeiture of property.
Introduction
The practice of awarding punishments is a very important part of the criminal justice system as it a form of society’s manifestation of the admonition of the crime by a collective conscience as specified by Durkheim. The object of the punishment in Manu’s words is- “punishment governs all mankind; punishment alone preserves them; punishment awakes while their guards are asleep; the wise consider the punishment (danda) as the perfection of justice.”[1]
The entire goal of punishment can be justified by a sociological perspective and it attains legitimacy by a legal framework.
According to H.L.A Hart, there are some important features of a punishment and those are – “It should inflict some amount of pain and unpleasant consequences to the offender, it should relate to the offense that the offender has committed, it should be a response for breaking the social norms, and it should be administered by an authority under the legal framework.”
This definition has gathered a lot of criticism as it does not differentiate between the punishment to be awarded for criminal wrong vis-à-vis civil wrong which may be distinct considering the gravity and nature of the wrong committed.
As society has evolved, the form of punishments has also changed with it. Earlier the sole object for punishing a delinquent was retribution i.e. to recompense from him the wrong he has committed or in other words because he deserves to be admonished. Retribution is revenge for an injury. For instance, in earlier times certain punishments could administer extreme brutality. However such punishments are no more a part of the contemporary criminal legal system as they violate humanitarian grounds.
In early times, the death penalty was awarded to minor offences like pickpocketing, but, gradually this trend diminished and several other forms of punishments were introduced such as community work, fines, imprisonment. The cardinal object of punishment today is to protect the society and this is can be attained partly deterrence, preventive and reformative measures.
The Apex court in the case, Hazara Singh v. Raj Kumar[2] was of the opinion that all the pertinent factors and circumstances to be taken into account while imposing an appropriate sentence. The judiciary has been vested with a huge discretion of awarding punishment in India, which must be exercised with utmost care and caution.
The absence of uniform sentencing policy in India results in the exercise of unbridled discretion of the judiciary and ensues in the awarding of disproportionate punishment. The court further opined that fundamental principle that must be adhered to while awarding punishment is that the punishment must be commensurate and proportionate to the gravity of the offense.
According to Lord Denning:[3]
“The punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of the citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive or nothing else. The ultimate justification of any punishment is not that it is deterrent, but that it is the emphatic denunciation by the community of crime.”
Lord Reid in the case of Director of Public Prosecutions v Ottewell[4] has emphasised on the hindrances involved in sentencing:
“It was rather tentatively suggested by the learned Attorney General that there is a ‘tariff’ for each kind of offence which is varied upwards or downwards according to the circumstances of the offence and the character of the accused. Offences of a particular kind vary so vastly, however, in gravity there cannot and should no t be any ‘normal ‘ sentence’, and there is no workable standard by which to judge whether any particular standard is extended beyond what is ‘normal’.”
Kinds Of Punishments
The five different kinds of punishments awarded by the Indian Penal Code, 1860 have been enumerated under Section 53, and those are:
- Death
- Life imprisonment
- Simple or rigorous imprisonment
- Fine
- Forfeiture of property
The aforementioned punishment can also be awarded in conjunction in order to achieve the intended goal and deter the wrong committed. General provisions related to punishment for different offences are enumerated in Sections 53 to 75 of IPC. Section 63 to 70 incorporate the provisions related to the imposition of fines and any alternative sentence, in case fines are not paid.
Section 73 and 74 lay down the punishment of ‘solitary confinement’ and spells out the limitation with regard to its imposition. Section 75 spells out the provision related to certain offences when committed by repeat offenders.
Capital Punishment
It is the punishment wherein the accused is executed to death after he has been found to be guilty of a criminal offence in accordance to the appropriate legal process. The imposition of the death penalty is a debatable topic and is agitated in a lot of nations currently. However, U.K has retained it in its legal system to redress the following cases:
- High treason[5]
- Murder during or of – shooting or causing explosion, a public servant on duty, theft, while resisting lawful arrest, party to murder.
- Setting ablaze her majesty’s stores, ships, etc[6]
- Committing piracy with violence[7]
In contemporary India, death sentences are only reserved for the rarest of rare case. However, there is no guideline or structure to define these “rarest of rare” cases.
Further, the 35th Law Commission report said, “having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population, and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”[8]
The Human Rights Commission of the United Nations adopted a resolution demanding a complete eradication of the death sentence as a punishment.[9] However, the Apex court of India has held a death sentence constitutionally valid.[10] Yet, the debate regarding the unconstitutionality of death penalty still continues and finally, the Apex court in the case, Bacchan Singh v State of Punjab,[11] observed that death sentences can only be awarded in the rarest of rare cases. Complying with this ruling the Parliament has added Section 354 (3) which read as:
“When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”
Apex court in the case, Macchi Singh v. State of Punjab,[12] expanded the finding laid down in Bacchan Singh. Hereunder are certain observations made by the court:
- Death sentence can only be awarded in case of gravest of culpability
- Circumstances of the offender must be taken into consideration before pronouncing a death sentence
- Death sentence can only be imposed when awarding life imprisonment does seem to be adequate for the crime committed by the offender.
- Before ruling in favour of the death penalty, both, mitigating and aggravating factors must be considered and doing so according to full weightage to the mitigating factors.
Imprisonment
This is a punishment wherein the accused is confined in a penitentiary. Hawk said that “It seems clear that any place, whatsoever, wherein a person under a lawful arrest for a supposed crime is restrained of his liberty, whether stocks at the street, or in the common goal, or in the house of a constable or private person or the prison of the ordinary is properly a prison within the statute; for imprisonment is nothing else but a restraint of liberty.”[13]
Imprisonment was barely known during the primitive age and became a major part of the legal system only in the 19th century and 20th century. The framers of the India Penal Code even envisaged two kinds of imprisonment i.e.-
- Rigorous
- Simple
Lord Cornwallis had envisioned the removal of mutilation as a punishment which was finally abolished by the Govt in the year 1791. Thereafter, convicts who were sentenced to lose two limbs were sentenced for 14 years in prison and concurrently those who had to lose one were sentenced for 7 years in prison.
Section 54, IPC lays down that if the Government deems it appropriate then it can, without the consent of the offender commute the punishment earlier awarded to the offender. Further, it must be noted that the power provided to the President under Article 72(3) or of the Governor as provided under Article 161 of the Indian Constitution does not curtail the authority of the concerned government (State or Central) provided under Section 54. Malimath Committee has recommended that an alternative punishment be added, namely, “imprisonment for life without commutation or remission”, wherein life imprisonment has been awarded.[14]
Levying of penalty
The imposition of fine or penalty has been prevalent since the inception of tribal system in the civilisation. In the case of Ashok Kumar vs. State,[15] the Apex court had opined that “payment of fine brings home the sense of responsibility in a surer fashion than even short terms of imprisonment in some case.” The Indian Penal Code and several other Indian statutes have affixed levying of fine as an alternative as well to the main punishment.
The Law Commission has nonetheless provided a caveat to the judges to impose a proportionate penalty since it affects the dependants of the accused along with him. Therefore the Apex court in the current times has to take cognisance of the pecuniary status of the offender with respect to the brutality and character of the offence committed by him. Additionally, it must be noted that forfeiture of money is allied to sentencing a person by fining him.[16]
The Indian criminal system has become redundant when it comes to the pronouncement of punishments due to the absence of a uniform sentencing guideline. A glaring example is a case, Arun Garg v State of Punjab,[17] wherein the offender who was found guilty for committing ‘dowry death’ under Section 304B was imposed with a fine of Rs. 2000 and imprisonment.
Later, as a result of an appeal, the High court increased the fine to Rs. 2 Lakhs and interestingly, the Apex court, set aside the fine in entirety.
Forfeiture of Property
Forfeiture of property has been provided by the Indian Penal Code and it was even prevalent in ancient India. However, the Indian Penal Code (Amendment) Act, 1921 repealed Section 61 and 62 which imposed the punishment awarding for forfeiture of property. Yet, there exist certain provisions in the current IPC which provide for forfeiture of property as a punishment:
- Section 126 – Committing depradation on territories of power at peace with the Govt of India
- Section 127 – Receiving property taken by war or depredation mentioned in Sec.125 and 126 of I.P.C.
- Section 169 – Public servant unlawfully buying or bidding for a property
Contemporary Penal System
Currently, the Indian criminal system has witnessed a change in their outlook with respect to the penal policy and this is evident in certain statutory provisions, those are – the Juvenile Justice (Care & Protection of Children) Act, 2000, Children’s Acts, the Abolition of Whipping Act, the Probation of Offenders Act, 1958, Section 27 of the Criminal Procedure Code, 1973 and the Repeal of Criminal Tribes Act. The reform is inevitable of the following two facts –
- The system of punishment cannot be entirely based on the nature of the wrong committed but must be variable depending on the character of the offender. Two completely different kinds of offenders could have committed the same kind of crime and hence, punishment must be conditioned to suit different categories of offenders.
- The idea behind punishment must not only be retribution but also to prevent the offense being committed in times to come. Therefore, reformation in punishments is advisable when the earlier punishment could not deter the occurrence of the same offence.
The Indian criminal system barely attracts any attention towards the victim and this apathy of the criminal justice system has been emphasised by Rattan Singh v State of Punjab,[18] by Krishna Iyer. J as follows:
“It is a weakness of our jurisprudence that victims of crime and the distress of the dependents of the victim do not attract the attention of law. In fact, the victim reparation is still the vanishing point of our criminal law. This is the deficiency in the system, which must be rectified by the legislature.”
Considering the plight of the victims the General Assembly of United Nations has adopted a “Declaration of the Basic Principles of Justice for the Victims of Crime and Abuse of Power”.[19] Furthermore, Section 357 of Code of Criminal Procedure envisages providing compensation to the victims of crime.[20]
Conclusion
Time and again various committees like Malimath Committee, Madhav Menon Committee and several case laws have recommended the inclusion of a comprehensive and uniform guideline for the pronouncement of punishment i.e. a sentencing policy. This is to ensure that the judiciary will not exercise unbridled discretion of authority while awarding punishment.
In the absence of such a structured set of guidelines, the ramifications of punishments become highly arbitrary and harsh. This may lead to undue uncertainty and the indiscriminate imposition of fine and imprisonment. Further, an amendment must be tendered to any provision where fine is awarded as an alternative to imprisonment to avoid gross injustice to the victim where the imposition of imprisonment is appropriate.
[1] Institutes of Hindu Law (translated by Haughton, G.C.1835) Ch. 7, para 18 p.189
[2] [2013] 9 SCC 516
[3] RCCP [1953] Cmd 8932, p.18
[4] [1970] JAC 642 rta
[5] Treason Act, 1814, S.1 and S.2
[6] Dockyards Protection Act, 1772
[7] Piracy Act, 1837, Sec.2
[8] Law Commission, The Death Penalty, (Law Com No 35, 2015) <http://lawcommissionofindia.nic.in/reports/report262.pdf>
[9] General Assembly resolution 44/128 of 15 December 1989,<http://www.unhchr.ch/html/menu3/b/a_opt2.htm>
[10] Jagmohan Singh v State of U.P, AIR 1973 SC 94
[11] AIR 1980 SC 898
[12] AIR 1983 SC 957
[13] Hawk, P.C. 18, S. 4
[14] Government of India, Committee on Reforms of Criminal Justice System (Ministry of Home Affairs, New Delhi ,March 2003) para 14
[15] [1980] 2 SCC 20
[16] Tandon M.P. Indian Penal Code, Central Law Agency 4th Edn. 1992
[17] [2004] 8 SCC 251
[18] [1979] 4 SCC 719
[19] Adopted by General Assembly resolution 40/34 of 29 November 1985, <http://www.unhchr.ch/html/menu3/b/h_comp49.htm>
[20] Bodhisattva Gautam v. Subhra Chakraborti, [1996] 1 SCC 490
