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‘Criminal law’ is a phrase containing just two words but having several acts enacted underneath it. The basic function of enacting any criminal law is to punish the guilty and provide justice to the injured party through legal procedures.
Criminal law can be regarded as the body of laws that deal with matters of criminal wrongs, for instance, theft, murder, sexual abuse, threatening, etc., and is also accountable for conducting a trial for convicted offenders.
Crime rates are increasing at a fast pace in India, which is why we need stringent bylaws to curb and deter such activities, thus keeping our society crime-free and making it healthy. Hence, in the following article, we will be looking at the basics of criminal law along with all the laws enacted for the purpose of safeguarding society from offenders.
Reasons for the occurrence of crimes in society A criminal commits a crime for several reasons. Some criminals commit crimes to earn money, as it is one of the fastest ways to generate an income, whereas others do it for gaining fame, inter alia.
However, there are criminals like Raman Raghav who are totally distinct; this criminal terrorized Mumbai in the 1960s by killing numerous people whom he did not even know and had no qualms of any nature for the commission of such misdemeanors. DPC Kulkarni, in his book ‘The footprints on the sand of crime’, was of the notion that such criminals do not have a motive, nor do they gain anything from committing such an act, but they are simply ‘incorrigible’. There are even instances where a crime is committed with due authorization and formerly with the governing bodies.
For example, the agricultural lands in India were put to the wrong use even in the British era, when farmers were asked to grow opium instead of food grains, not only in India but also in Chinese territories.
Nowadays, farmers choose to grow drugs like opium or hashish over other produce, considering the profit margins associated with such crops.
Sources of Criminal Law The criminal justice system and the criminal laws thence, are all based on the penal legal system that was set up by the British in India. If we happen to look at the criminal laws or the criminal justice system today, which is after 75 years of independence, there haven’t been any substantial changes as such in the system or the legislation.
The most notable example of such an outworn justice system is Section 124A of the Indian Penal Code (IPC), 1860, which discusses sedition and has a prescribed punishment for the same. But a note must be taken that efforts have been made to amend the entire Code of Criminal Procedure in 1973.
The appointment of the Vohra Committee was the very first attempt toward making amends to the Indian criminal justice system. The report published by the Vohra committee in 1993 made an observation on the criminalization of politics and the nexus among criminals, politicians, and bureaucrats in India. components of crime as stated in Indian criminal laws It is important to understand what and when an offence will become a crime to understand the criminal laws, so let’s have a look at the significant components of crime as stated under criminal laws.
Any activity that is against or punishable by the law can be said to be a crime. According to Blackstone, “crime is an act committed or omitted in violation of a public law either forbidding or commanding it.” Criminal liability in India is set up on the maxim ‘actus non facet rheum, nisi mens sit rea”, meaning the act itself does not consist of guilt unless it is committed with a guilty mind.
An integral point must be noted that this maxim is considered to be the basic principle of the whole criminal law. This maxim also gives out the two most crucial elements of a crime, namely: actus reus and mens rea. In the famous case of Fowler vs. Padget (1798), Lord Kenyon made a comment that “the intent and act must both concur to constitute a crime”. Now let us have a look at the essential elements that constitute a crime. Human being/ individual The first element states that the wrong must be committed by a human being.
Any wrongful act committed by an animal is not covered under criminal laws. Thus, the individual accused of committing a wrong should have a body, be under a legal obligation to act in a specific manner, and must be fit to be awarded a suitable penalty. A point must be taken into consideration that, as per Section 11 of the Indian Penal Code, the word ‘person’ includes “any company or association or body of persons, whether incorporated or not.” Thus, the above definition includes a natural person, an artificial person (a company, association, or a body of individuals), and a legal person (such as an idol). Mens rea A guilty mind, i.e., the mens rea, is one of the most crucial ingredients of crime.
There is no distinct definition of mens rea under the IPC or any other criminal law in India, but the same has been included in the following manner: Provisions relating to the ‘state of mind’ necessary for committing a specific offence have been added in distinct sections of the IPC by using terms like intentionally, knowingly, voluntarily, etc. The concept of mens rea is put into the provisions relating to the ‘General Exceptions’ under Chapter IV of the IPC. For instance, a juvenile aged 7 years is absolutely immune to any wrong he/she commits as per Section 82 of the IPC. Further, under Section 80 and Section 81 of the IPC, a person causing an accident while performing a lawful activity or doing it with the utmost necessity to prevent a wrong or further offence will have immunity from being liable to be guilty as there is no mens rea. Mens rea is of the following degrees: Intention, Knowledge, Reason to believe (defined under Section 26 of the IPC), and Negligence (defined under Section 52 of the IPC)
Actus reus Another essential ingredient of a crime is actus reus, i.e., the act committed or omitted by a person which is forbidden by law, like homicide (killing of human beings), rape, theft, sedition, etc.
Irrespective of the pain or harm the event has caused, it won’t be considered to be actus reus unless it is restricted by law. Interesting fact: Prof. Kenny was the first writer to use the term ‘actus reus’ and he defined it as “such a result of human conduct as the law seeks to prevent.” Harm caused The subsequent element of a crime is the harm or injury or damage induced to the victim and is defined under Section 44 of the IPC as any harm or injury inflicted on an individual illegally in “body, mind, reputation or property.”
Thus, looking at the above definition, it can be deduced that harm or injury can be caused to- an individual (homicide, rape, etc.); Property (robbery, theft, mischief, etc.); Mind (cheating); Reputation (defamation). Further, a person is liable for the direct cause of his actions and not for any indirect cause of his actions.
In simple words, a person is responsible for only the natural consequences of his actions under this Section. Forbidden act As stated above, for an offence to have been committed, it has to be inhibited by the legislation or the existing legal system, unless said otherwise.
It is a known rule of criminal law that no offence can be penalized retrospectively if the said act did not constitute an offence at the time it was executed. Punishment An act or omission has to be punishable under the penal system. Such a punishment can vary from capital punishment to imprisonment and/or fine. Further, it is vital that the offender is not vexed twice for the same offence, i.e., he/she is not being subjected to double punishment for the same offence.
External consequence Crime will forever have a detrimental effect on society, be it social, personal, mental, or physical. Relativity It is quite a complex subject to study, as an activity that might be considered to be a crime at a certain location may not be an offence elsewhere. For instance, drinking and gambling may not be considered offence when committed in a club. Such a varying description has been characterised by William Taft as ‘blue laws’. Basic elements of Criminal Law
According to Prof. Paranjee, an effective criminal law must have the following four elements: Politicality This implies that infringement of rules enacted by the state will be regarded as a crime. Specificality It means that the provisions of the statutes must be precise, unambiguously adjudging the activity as a crime.
Uniformity The laws should be applied without any prejudice on the basis of caste, creed, race, sex, etc., thus the laws must be applied to all equally across the nation. Penal sanction The dread of being penalised can be instilled in the minds of the people living in a society with the aid of penal sanctions, thus discouraging them from committing a wrong. Purpose of Criminal Law As discussed above, civil law deals with the interests of individuals. On the other hand, criminal law deals with the interests of society at large. The main purpose of criminal law is to safeguard the interests of the people and to help maintain social order and stability.
The basic purpose of criminal law can be defined as follows: To protect, serve and limit the actions of individuals Laws serve multiple purposes in the criminal justice system. However, the main goal of criminal law is to protect, serve, and safeguard human actions and to help guide the behaviour of humans.
In the modern era, there are three choices to make when it comes to handling criminals, namely: Capital punishment, Private action, and Executive control. A point must be noted that, even though both private action and executive control are beneficial in terms of expenses and speed, they present huge dangers that prohibit their usage unless in extraordinary circumstances.
To punish the offender The second purpose of criminal law is to penalise the wrongdoer. Punishing the wrongdoer is the most crucial purpose of criminal law as it dissuades them from repeating the crime again while also making the offender pay for the crime committed. Retribution does not mean imposing physical punishment or imprisonment on the culprit, but it may also mean things like rehabilitation and financial retribution, inter alia. To protect society from criminals The last purpose of criminal law is to keep society safe from wrongdoers.
Criminal law is a medium through which the community safeguards itself from those who pose a risk to it. Such a motive is usually attained via passing verdicts or judgements; these are meant to act as a way of impeding the criminals from committing the same offence again later. Criminal law has numerous purposes, but it depends on the perspective of people or how they see it.
A few of them are enacted to distinguish offenders from the community, rehabilitate the culprit, and penalise the offender. Nonetheless, the two main functions of criminal law are as follows: To create an interpretation of right and wrong in society, and To punish the lawbreakers. General objectives of Criminal Laws According to Wechsler, “the purpose of penal law is to express the social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it”.
The general objectives of criminal laws include- Protecting individuals and property For the survival of any society, a feeling of security and safety is one of the key aspects, which is why maintaining peace and order in the community becomes essential.
Safety in society includes personal safety (also referred to as safety of life and liberty) and the safety of property. In order to ensure safety, it is important that an efficacious panel system that is capable enough to deal with the violators of the law has been created. Doing so will also enable the general public to live in peace and with no fear of injury to their life, limb, or property, for that matter.
Therefore, the primary objective of criminal law is to safeguard the public by maintaining law and order in society. Prevention/deterrence of criminal behaviour One of the major reasons for deduction in criminal behaviour is the criminal laws demonstrating a sufficient deterrence in anti-social behaviour.
Deterrence can be referred to as a danger, difficulty, or situation that prevents a person from committing a wrong. The presumption inherent in criminal law is that individuals would be reluctant to commit a crime or may not even commit a crime considering the brutality of the penalty thus inflicted upon the commission of such an act.
Consequently, if enough people fear punishment, the rate of criminal activity will decline. Punishing a criminal act It is a common understanding that all the crimes committed in society cannot be penalized and not every criminal activity can be averted from happening. Thus, an inescapable level of crime will unquestionably exist in society. Hence, criminal activities are penalized for the sake of punishment.
So, say, a criminal steals something without prior payment or inflicts an injury on an individual without proper cause for doing so, the criminal law will make the offender or perpetrator pay for it by depriving him/her of his/her liberty for a time period.
Rehabilitating a criminal Once a criminal is punished, they will serve their sentence behind bars. However, this is not where the criminal justice system ends; our government has created several programmes to enlighten and train criminals in legitimate occupations and practical skills like weaving, stitching, construction activities, etc. Hence, upon being released, they do not have a reason to return to a life of crime and also have the means to earn their livelihood.
Types of punishments under Criminal Law Jeremy Bentham, one of the leading pioneers in shaping the criminal justice system, stated that “punishment itself was an evil, but a necessary evil,” so let’s have a look at some of the necessary-evil punishments. A note must be taken that, under Section 53 of the IPC, there are 5 types of punishments mentioned, each of which is discussed in depth below, namely: Death; Imprisonment for life; Imprisonment, which has two descriptions, namely: Rigorous imprisonment, that is, with hard labor, and Simple imprisonment; Forfeiture of property, Fine.
There are several types of punishments under criminal laws in India, including the ones mentioned above.
Let us have a look at them: Capital punishment / death penalty The punishment of death is also referred to as capital punishment. Under this punishment, a culprit is hanged to death. Such a type of punishment needs authorization from the government and a verdict passed by the court and is delivered only in the rarest of rare cases.
It is the highest form of punishment awarded under the IPC and has always been a subject of debate. Contentions are made both in favour of and against the retention of capital sentences as a form of punishment. Provisions under the Indian Penal Code for the death penalty
The death penalty can be provided for offences under the following sections of the IPC: Section 121 (Waging, or making an attempt to wage a war, or assisting in the waging of a war, against the Government of India), Section 132 ( Abetment of mutiny), Section 194 (Giving or fabricating false evidence), Section 302 (Penalty for murder), Section 303 (Penalty for murder by life convict), Section 305 (Abetment of suicide of a child or a lunatic) Section 307 (Attempt to murder), Section 364A (Abduction), Section 376E (Punishment for repeat offenders), Section 396 (Dacoity with murder), inter alia. However, it is not mandatory for the court to impose the death penalty in these sections. Lawsuits in India where the death penalty was held feeble Jagmohan Singh vs. State of Uttar Pradesh (1972)
In this case, it was held that the death penalty is unconstitutional and thus invalid as a penalty.
The Hon’ble Supreme Court asserted that depriving someone of their life is constitutionally licit only when it is done in accordance with the procedure established by law. State of U.P. vs. M.K. Anthony (1985)
In this shocking case, the accused was held guilty of killing his ailing wife and his two children as he was incapable of providing funds for her operation and did not have anyone to support him in taking care of the children after their mother.
Here, the Apex Court, while passing an amusing verdict, stated that since the offence committed was not perpetrated under any lust, feeling of vengeance or gain but out of sheer poverty, a punishment involving life imprisonment would be apt and not capital punishment. Bachan Singh vs. State of Punjab (1980) The Supreme Court, in this very famous case, was faced with the dilemma of whether the death penalty, imposed for some offences under the IPC, is constitutionally valid or not.
By a four-to-one majority verdict, the Supreme Court reached a verdict that the death penalty is valid and does not constitute an “unreasonable, cruel, or unusual punishment”. However, the Court ruled that the death penalty must be imposed only for “special reasons” and in the “rarest of rare cases.”
Thus, only if the cases fall under this theory, may capital punishment be imposed. However, the court did not emphasise the crimes that fall under this category in this case. Nonetheless, the courts have from time-to-time affirmed that cases like honour killings, assassinations, genocide, brutal murder, etc., fall under the definition of ‘rarest of the rare cases’. Interesting fact: The phrase ‘hang to death’ was replaced by ‘hang until death’ after subsequent amendments in the criminal laws for capital punishment.
There is an astonishing story behind this, wherein Jawaharlal Nehru, an eminent lawyer, brilliantly played with the words of the law while protecting his client, who was charged with blowing up a British officer’s horse carriage. Here, the magistrate ordered that the person be hanged in public, and on the day of execution, as soon as he was hung, Nehru sent men to hold on to his legs and save him.
When the matter was taken to the court, he contended that the magistrate had written “hang him” and that the man was being hanged, but the sentence did not say “hang him until death.”
Thus, following the principle of double jeopardy, the defendant could not be hanged again and his life was rescued. Imprisonment Imprisonment means snatching away an individual’s freedom and putting him behind bars. There are 3 types of imprisonment under the IPC, which are as follows: Life imprisonment Under life imprisonment, an offender who is held guilty of committing an offence has to remain in prison until death occurs, or until he is pardoned, or for a fixed period of time.
In ordinary words, imprisonment for life refers to imprisonment for the whole of the remaining term of the offender’s natural life. According to Section 57 of the IPC, the period for life imprisonment is 20 years for the purpose of calculation. A point must be noted that imprisonment for life can never be simple imprisonment; it is always rigorous imprisonment. Interesting fact: According to Section 433(b) of the Criminal Procedure Code and Section 55 of the IPC, the government has the power to ameliorate or suspend the sentence of imprisonment for life to imprisonment for a term of not more than 14 years.
However, life imprisonment cannot be less than 14 years. Simple imprisonment and rigorous imprisonment Under Section 53 of the IPC, there are two types of imprisonment- simple and rigorous. Further, according to Section 60 of the IPC, the competent court has the option of deciding the nature of sentencing.
It can be of various types, like: Wholly or partly rigorous; or Wholly or partly simple; or Any term to be rigorous and the rest simple. Simple imprisonment In simple imprisonment, an offender who is held guilty of committing crimes such as wrongful restraint or defamation is kept behind bars without any hard labor; thus, only light duties are to be performed by them. Rigorous imprisonment
The death penalty can be provided for offences under the following sections of the IPC: Section 121 (Waging, or making an attempt to wage a war, or assisting in the waging of a war, against the Government of India), Section 132 ( Abetment of mutiny), Section 194 (Giving or fabricating false evidence), Section 302 (Penalty for murder), Section 303 (Penalty for murder by life convict), Section 305 (Abetment of suicide of a child or a lunatic) Section 307 (Attempt to murder), Section 364A (Abduction), Section 376E (Punishment for repeat offenders), Section 396 (Dacoity with murder), inter alia. However, it is not mandatory for the court to impose the death penalty in these sections. Lawsuits in India where the death penalty was held feeble Jagmohan Singh vs. State of Uttar Pradesh (1972)
In this case, it was held that the death penalty is unconstitutional and thus invalid as a penalty.
The Hon’ble Supreme Court asserted that depriving someone of their life is constitutionally licit only when it is done in accordance with the procedure established by law. State of U.P. vs. M.K. Anthony (1985)
In this shocking case, the accused was held guilty of killing his ailing wife and his two children as he was incapable of providing funds for her operation and did not have anyone to support him in taking care of the children after their mother.
Here, the Apex Court, while passing an amusing verdict, stated that since the offence committed was not perpetrated under any lust, feeling of vengeance or gain but out of sheer poverty, a punishment involving life imprisonment would be apt and not capital punishment. Bachan Singh vs. State of Punjab (1980) The Supreme Court, in this very famous case, was faced with the dilemma of whether the death penalty, imposed for some offences under the IPC, is constitutionally valid or not.
By a four-to-one majority verdict, the Supreme Court reached a verdict that the death penalty is valid and does not constitute an “unreasonable, cruel, or unusual punishment”. However, the Court ruled that the death penalty must be imposed only for “special reasons” and in the “rarest of rare cases.”
Thus, only if the cases fall under this theory, may capital punishment be imposed. However, the court did not emphasise the crimes that fall under this category in this case. Nonetheless, the courts have from time-to-time affirmed that cases like honour killings, assassinations, genocide, brutal murder, etc., fall under the definition of ‘rarest of the rare cases’. Interesting fact: The phrase ‘hang to death’ was replaced by ‘hang until death’ after subsequent amendments in the criminal laws for capital punishment.
There is an astonishing story behind this, wherein Jawaharlal Nehru, an eminent lawyer, brilliantly played with the words of the law while protecting his client, who was charged with blowing up a British officer’s horse carriage. Here, the magistrate ordered that the person be hanged in public, and on the day of execution, as soon as he was hung, Nehru sent men to hold on to his legs and save him.
When the matter was taken to the court, he contended that the magistrate had written “hang him” and that the man was being hanged, but the sentence did not say “hang him until death.”
Thus, following the principle of double jeopardy, the defendant could not be hanged again and his life was rescued. Imprisonment Imprisonment means snatching away an individual’s freedom and putting him behind bars. There are 3 types of imprisonment under the IPC, which are as follows: Life imprisonment Under life imprisonment, an offender who is held guilty of committing an offence has to remain in prison until death occurs, or until he is pardoned, or for a fixed period of time.
In ordinary words, imprisonment for life refers to imprisonment for the whole of the remaining term of the offender’s natural life. According to Section 57 of the IPC, the period for life imprisonment is 20 years for the purpose of calculation. A point must be noted that imprisonment for life can never be simple imprisonment; it is always rigorous imprisonment. Interesting fact: According to Section 433(b) of the Criminal Procedure Code and Section 55 of the IPC, the government has the power to ameliorate or suspend the sentence of imprisonment for life to imprisonment for a term of not more than 14 years.
However, life imprisonment cannot be less than 14 years. Simple imprisonment and rigorous imprisonment Under Section 53 of the IPC, there are two types of imprisonment- simple and rigorous. Further, according to Section 60 of the IPC, the competent court has the option of deciding the nature of sentencing.
It can be of various types, like: Wholly or partly rigorous; or Wholly or partly simple; or Any term to be rigorous and the rest simple. Simple imprisonment In simple imprisonment, an offender who is held guilty of committing crimes such as wrongful restraint or defamation is kept behind bars without any hard labor; thus, only light duties are to be performed by them. Rigorous imprisonment
In rigorous imprisonment, an offender is put behind bars and has to mandatorily perform hard labor duties like agriculture, carpentry, digging the earth, breaking stones, etc. Rigorous imprisonment is compulsory for the following two sections of the IPC: Section 60 (Giving or fabricating false evidence with intent to procure conviction of capital offence). Section 449 (House-trespass in order to commit an offence punishable with death). Forfeiture or confiscation of property Forfeiture indicates the loss of property of the wrongdoer, meaning the state seizes or takes into possession the property (which can be movable or immovable) of an offender.
Such a punishment is often used for offences involving the breach of traffic and revenue laws. Forfeiture of property as punishment is proffered for the following two sections of the IPC: Section 126 (committing depredation on territories of Power at peace with the Government of India), and Section 127 (Receiving property taken by war or depredation mentioned in Sections 125 and 126).
This type of punishment is considered appropriate for minor offences and crimes related to property. Solitary confinement Solitary confinement refers to keeping the inmate isolated and away from any sort of communication or contact with the outside world. In order to avert the perils associated with this kind of punishment, Sections 73 and 74 lay down the limitations beyond which solitary confinement cannot be imposed under Indian penal law.
The term period for solitary confinement under the aforementioned sections is as follows: Solitary confinement shall not exceed one month if the term of imprisonment is less than or up to six months. Solitary confinement shall not exceed two months if the term of imprisonment is more than six months but less than one year. Solitary confinement shall not exceed three months if the term of imprisonment is more than one year. Moreover, the total period of solitary confinement will not go beyond three months in any circumstances.
It cannot go beyond fourteen days at a time with intervals of fourteen days in between or seven days at a time with seven days intervals in-between, in cases where the substantive sentence exceeds three months’ imprisonment. In Charles Sobraj vs. Superintendent, Tihar Jail (1978), the Hon’ble Supreme Court made an observation that solitary confinement is the harsh isolation of a prisoner from the community of fellow prisoners and should be imposed only by following a just procedure and in exceptional cases.
Deportation Another method of punishment is deportation, which is also known as transportation, banishment, or ‘Kaalapani’, and involves the elimination of incorrigible or dangerous offenders by transporting them to distant places, thus removing them from their community. This form of punishment was abolished in England a long time ago and has now been abolished in India as well. Corporal punishment Corporal punishment was a very common form of punishment until the 18th century. It includes the following: Flogging The dictionary meaning of the word ‘flogging’ is ‘to whip or beat with a strap on a stick as a punishment’.
The primary motive of this kind of punishment is deterrence. In India, under the Whipping Act, 1864, whipping was identified as being one of the methods of punishment. It was later replaced by a similar Act in 1919, which was ultimately abolished in 1955, considering its inhumane nature. Mutilation Mutilation is another type of corporal punishment wherein the offender’s body parts are cut off as an effective measure of deterrence and to prevent crime in the community. An example of mutilation may include the chopping off of hands in cases of theft.
Another example may be the private parts of a sex offender being cut off. In India, it was quite prevalent during the Hindu period. Branding Branding, which is recognised to be one of the cruellest forms of punishment, involves the marking of a criminal’s forehead for identification and public disgust.
An example of branding would include the marking of an offender’s head with the letter ‘t’ for theft. In India, such a mode of punishment was prevalent during the Mughal period. Chaining Chaining was yet another form of punishment wherein the hands and legs of the culprits would be chained together with iron rods. This form of punishment is now occasionally used in the current prison system. Indeterminate punishment An indeterminate punishment is another type of punishment which involves the sentence of imprisonment not being set.
Thus, the time period is left to be decided at the time of granting the award, so, if the accused shows improvement, the sentence may be brought to an end. Stoning Punishment like stoning is quite brutal and merciless in nature.
It was in practice in the medieval period and in Islamic countries like Pakistan and Saudi Arabia for sex offenders. Cancellation of licences This is yet another form of punishment wherein the licence holder’s licence is suspended and/or cancelled in cases of violation. Theories of punishment under Criminal Law There are eight major theories of punishment. They are as follows: Deterrent theory of punishment The primary motive of deterrent punishment is to portray the object of the futility of crime, thereby teaching a lesson to others.
Thus, deterrence acts on the motive of the wrongdoer, whether actual or potential. The main idea behind deterrent punishment is the prevention of crime by inflicting an exemplary sentence on the wrongdoer. By doing so, the state seeks to threaten the members of the community and thus prevent them from committing any crime. Furthermore, such an act also issues a warning to other offenders and potential lawbreakers.
This type of punishment is considered appropriate for minor offences and crimes related to property. Solitary confinement Solitary confinement refers to keeping the inmate isolated and away from any sort of communication or contact with the outside world. In order to avert the perils associated with this kind of punishment, Sections 73 and 74 lay down the limitations beyond which solitary confinement cannot be imposed under Indian penal law.
The term period for solitary confinement under the aforementioned sections is as follows: Solitary confinement shall not exceed one month if the term of imprisonment is less than or up to six months. Solitary confinement shall not exceed two months if the term of imprisonment is more than six months but less than one year. Solitary confinement shall not exceed three months if the term of imprisonment is more than one year. Moreover, the total period of solitary confinement will not go beyond three months in any circumstances.
It cannot go beyond fourteen days at a time with intervals of fourteen days in between or seven days at a time with seven days intervals in-between, in cases where the substantive sentence exceeds three months’ imprisonment. In Charles Sobraj vs. Superintendent, Tihar Jail (1978), the Hon’ble Supreme Court made an observation that solitary confinement is the harsh isolation of a prisoner from the community of fellow prisoners and should be imposed only by following a just procedure and in exceptional cases.
Deportation Another method of punishment is deportation, which is also known as transportation, banishment, or ‘Kaalapani’, and involves the elimination of incorrigible or dangerous offenders by transporting them to distant places, thus removing them from their community. This form of punishment was abolished in England a long time ago and has now been abolished in India as well. Corporal punishment Corporal punishment was a very common form of punishment until the 18th century. It includes the following: Flogging The dictionary meaning of the word ‘flogging’ is ‘to whip or beat with a strap on a stick as a punishment’.
The primary motive of this kind of punishment is deterrence. In India, under the Whipping Act, 1864, whipping was identified as being one of the methods of punishment. It was later replaced by a similar Act in 1919, which was ultimately abolished in 1955, considering its inhumane nature. Mutilation Mutilation is another type of corporal punishment wherein the offender’s body parts are cut off as an effective measure of deterrence and to prevent crime in the community. An example of mutilation may include the chopping off of hands in cases of theft.
Another example may be the private parts of a sex offender being cut off. In India, it was quite prevalent during the Hindu period. Branding Branding, which is recognised to be one of the cruellest forms of punishment, involves the marking of a criminal’s forehead for identification and public disgust.
An example of branding would include the marking of an offender’s head with the letter ‘t’ for theft. In India, such a mode of punishment was prevalent during the Mughal period. Chaining Chaining was yet another form of punishment wherein the hands and legs of the culprits would be chained together with iron rods. This form of punishment is now occasionally used in the current prison system. Indeterminate punishment An indeterminate punishment is another type of punishment which involves the sentence of imprisonment not being set.
Thus, the time period is left to be decided at the time of granting the award, so, if the accused shows improvement, the sentence may be brought to an end. Stoning Punishment like stoning is quite brutal and merciless in nature.
It was in practice in the medieval period and in Islamic countries like Pakistan and Saudi Arabia for sex offenders. Cancellation of licences This is yet another form of punishment wherein the licence holder’s licence is suspended and/or cancelled in cases of violation. Theories of punishment under Criminal Law There are eight major theories of punishment. They are as follows: Deterrent theory of punishment The primary motive of deterrent punishment is to portray the object of the futility of crime, thereby teaching a lesson to others.
Thus, deterrence acts on the motive of the wrongdoer, whether actual or potential. The main idea behind deterrent punishment is the prevention of crime by inflicting an exemplary sentence on the wrongdoer. By doing so, the state seeks to threaten the members of the community and thus prevent them from committing any crime. Furthermore, such an act also issues a warning to other offenders and potential lawbreakers.
Preventive theory of punishment If the deterrent theory aims at putting an end to crime by creating fear in the minds of the people, the preventive theory aims at preventing the crime by disabling the criminal or lawbreaker. For instance, by giving the death penalty to a criminal or by putting him behind bars or by suspending the driving license of a lawbreaker, the preventive theory prevents the repetition of the act thus committed. The preventive mode of punishment is effective in the following manner: By creating the fear of punishment in all potential lawbreakers;
By incapacitating the wrongdoer by instantly engaging in a crime; and By transforming the wrongdoer through a process of reformation and re-education so that the crime is not repeated again. Reformative theory of punishment As per the reformative theory, a crime is committed as a result of the clash between the character and intent of the culprit. An individual may commit a crime either because the temptation of the intent is intense or because the constraint imposed by character is weaker.
By incapacitating the wrongdoer by instantly engaging in a crime; and By transforming the wrongdoer through a process of reformation and re-education so that the crime is not repeated again. Reformative theory of punishment As per the reformative theory, a crime is committed as a result of the clash between the character and intent of the culprit. An individual may commit a crime either because the temptation of the intent is intense or because the constraint imposed by character is weaker.
The reformative theory has its main focus on strengthening the character of the wrongdoer in order to fend them off from falling prey to their own enticements. This theory assesses punishment to be curative or to perform the role of medicine as, according to this theory, crime is like a disease. Further, this theory upholds that ‘you cannot cure by killing’. Several reformists are of the view that since a culprit stays in prison to be re-educated and re-shape his personality into a new mold and to be transformed into a law-abiding citizen, prisons must be turned into comfortable dwelling houses.
However, in a country like India, wherein there are millions of people living below the poverty line, such an act may act as a motivation to commit wrongs. Retribution theory of punishment While other theories of punishment consider punishment as a means to some other end, the retributive theory views it as an end in itself. It regards it as absolutely lawful that evil should be returned for evil, and an individual should be dealt with in the way he/she deals with others.
However, in a country like India, wherein there are millions of people living below the poverty line, such an act may act as a motivation to commit wrongs. Retribution theory of punishment While other theories of punishment consider punishment as a means to some other end, the retributive theory views it as an end in itself. It regards it as absolutely lawful that evil should be returned for evil, and an individual should be dealt with in the way he/she deals with others.
To put it in other words, an ‘eye for an eye’ and ‘a tooth for a tooth’ are assessed to be the rule of natural justice, Expiatory/ compensatory theory of punishment The proponents of this theory of punishment assert that the main motive of delivering a penalty is self-realization, so, if the wrongdoer, after committing a crime, acknowledges his sin, then he must be pardoned.
To put it simply, compensation is provided to the sufferer for the damage caused by the accused. In this manner, the wrongdoer is made to realise the identical suffering they have caused to the sufferer.
Incapacitation theory of punishment Incapacitation means ‘being deprived of strength or power’. This theory incapacitates the criminals so that they cannot further commit an offence. A sense of fear also grows in their minds as well as that of the future generations before they commit any crimes in the foreseeable future, thus discouraging them.
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