Punishment in The Indian Penal Code, 1860

The Indian Penal Code,1860 consists of acts that are socially damaging and hence criminal. By way of punishments, it aims to prevent the perpetration of such acts to maintain frith and tranquility in society. Consequently, it harbors the individual and the community from unpreferable, notorious and nefarious activities. Chapter III of the Penal Code contains the forms of punishment that the Judiciary grants to offenders based on the crimes committed by them. The prominent Hindu law-giver, Manu, has very well summarized the object of punishment in the following manner,

“Punishment governs all mankind; punishment alone preserves them; punishment wakes while their guards are asleep; the wise consider the punishment as the perfection of justice.”[1]

Therefore, punishment is the penalty imposed on the convict for non-compliance with the accepted behavior patterns in the community.

Section 53 – Forms of punishment under the IPC

Five forms of punishment are enlisted in section 53 depending on the type and seriousness of the crime namely, capital punishment, life imprisonment, imprisonment-rigorous with hard labor or simple, forfeiture of property and fine. The object of punishment is to safeguard the society and individuals’ life and property and the same is attained by the administration of the principles of deterrence, retribution, reformation, prevention or a mixed approach.

The principle of deterrence theory is that not only the offender should be punished for the wrongs committed but also, an example should be set for others with like criminal tendencies. Critics of this theory claim that barbarous punishment tends to be ineffective as the public turns sympathetic towards those who are made to suffer brutal punishment.

The retributive theory aims at revenge and propagates retaliation. The advocates of this theory believe that if the offender does not get the punishment he deserves, the person harmed will either seek personal vengeance or will not register a complaint making the State handicapped in dealing with criminals. It is criticised on the ground that punishment aggravates the mischief committed and is per se not a remedy.

Reformative theory propagates that the focus of punishment should be to mend the ways of the wrongdoer and to educate him in such a manner that when he comes out of prison, he can live a good life in addition to being a responsible citizen. Critics on the other hand claim that prisons should not be converted into dwelling houses and the deterrent motive should not be completely done away with in favor of the reformative approach since criminal law contributes in maintenance of noble and virtuous habits by preventing persons from committing offences.

Preventive theory, as the name suggests, aims to incapacitate the criminals from committing crimes further by means of death, exile or forfeiture of an office; but critics point out that it has an unwanted effect on first-time offenders and juvenile offenders when they are put in the company of desensitized criminals in prison.

As all these theories have their pros and cons, a perfect justice system can not exist solely based on a single theory. Therefore, it is suggested that while sentencing, a mixed approach should be taken according to the nature and magnitude of the offence.

Principle of Proportionality of Sentence

The penalizing process should be strict where required and should be lenient where demanded. The background of facts in each case, the essence of the offence, how it was schemed and executed, the reason that led to the execution of the crime, the kind of artillery used, and all other appositions need to be considered while deciding the liability. In every case, the liability should be in proportion to the accountability of the penal conduct.

A graded system of punishment for the versatility of offences committed is provided under Sections 53 to 75 of the Penal Code. Judges are allowed significant discretion while awarding sentences in every case as the facts of each case are different and cannot be covered in the Penal Code thereby placing trust on the judges to use their wisdom and insight while dealing with offenders. In R. v. Sandhu(Manjit)[2], it was held that the principle of proportionality of sentence between the time served for attempted murder and the minimum term which would have been served had the attempt been successful could be maintained by reducing a sentence of 18 years imprisonment to 15 years imprisonment where the attack resulted in serious damage but there were mitigating factors.

New forms of punishment suggested

For a better cognitive, moral and social influence on the offenders once they come out of punishment and to curb crimes, in the long run, new forms of punishments have been suggested. The Indian Penal Code (Amendment) Bill, 1978 suggested adding community service(section 74A), compensation to victims of crime(74B), public censure(74C) and disqualification from holding office(74C) in addition to the existing five categories of punishments. However, the Bill could not be implemented.

Community service refers to corrective labor and is a form of punishment where the offence committed is not so harsh to deprive the person of his liberty. It is served either at the convict’s ordinary workplace or in a special corrective labor institution. Emoluments are paid for the work done and the convicts are allowed to go home after the day’s work. 

The Penal Code fails to provide a provision for compensation to victims of crime; it only talks about punishing the offenders. It is only Section 357 of the Criminal Procedure Code which entitles the courts to award compensation to victims of crime in limited cases while passing judgment and even this limited power is not properly used by the lower courts. The Apex Court in Sarwan Singh[3] and Sukhbir Singh[4], appealed to all lower courts that this provision of the Cr.P.C. should be exercised as much as possible to grant justice to victims of crime and said that, “this power of the court to award compensation is not ancillary to other sentences, but it is an addition thereto.”

A public censure is a type of punishment prescribed for certain crimes of anti-social nature such as white-collar crimes and tax crimes. Names of the persons involved in such crimes are published and this is believed to have a deterrent effect given the social stigma attached. 

Death Penalty

Death penalty, also termed as capital punishment, is the highest sentence enlisted in the Penal Code. It refers to terminating the life of the convict and is only awarded in eight cases like murder and treason. The subject of capital punishment has always been controversial as fundamental rights guarantee a right to life which can not be done away with. Along with this, the number of people that have been executed by way of death sentence is also controversial as different studies provide different numbers.

In Mithu v. State of Punjab[5], Section 303 of the Penal Code was struck down by the Apex Court which stated a compulsory death sentence if an offender committed murder whilst serving life imprisonment.

While sentencing someone to death, the rarest of the rare case doctrine is followed which was given by the Supreme Court in Bachan Singh v. State of Punjab[6]. The court held that “the provision of the death penalty as an alternative punishment for murder is not violative ofArticle 21 as an interpretative reading of Article 21 clearly shows that the right to life can be taken away by a reasonable procedure established by law”. However, what accounts as a rarest of the rare case has not been specified by the Apex Court or even the law-making body. 

This judgment was in line with Jagmohan Singh v. State of Uttar Pradesh[7], in which the Supreme Court held that “the approach towards death penalty should be balanced on mitigating and aggravating factors of the crime”. However, the crime committed is still given preference over the situation of the individual suggesting that this theory of balancing and mitigating factors is not followed as much.

In the case of Macchi Singh v. State of Punjab[8], the Supreme Court laid down an outline of those situations where capital punishment could be awarded. These included how the murder was committed, the motive, the extent of the offence, etc.

The main debate centring the death penalty is that it is arbitrary and flawed and there is no proven deterring effect on criminals. It is also argued that it has been abolished by 140 other nations and should, therefore, be abolished in India as well for all crimes except for offences related to terrorism and waging or attempting to wage a war against the country, also termed as treason.

Life Imprisonment

It refers to a sentence of imprisonment in which the convict is required to spend the remainder of his natural life in jail until he has been forgiven, paroled or the term has been reduced to a fixed time. In India, the common misconception is that anyone undergoing life imprisonment is released after completion of 14 years or 20 years. The reality is that there is a provision for remission in the Code of Criminal Procedure which provides that the State Government can consider releasing someone on remission on fulfilment of certain conditions, one of which is the completion of a minimum period of 14 years. The reason for the misconception is that this provision is used very widely. It is the state government that decides the length of the sentence depending upon the person’s behavior, health and family situation during conviction. In State of Madhya Pradesh v. Ratan Singh[9], it was held by the Supreme Court that a life imprisonment sentence has to be treated as imprisonment for the rest of the natural life of the convict. It was also held that if the State government rejects the request of remission, the High Court does not have the power to interfere with that order.

By the Code of Criminal Procedure (Amendment) Act, 26 of 1955, Section 53A was inserted in the Penal Code which substituted transportation of life with imprisonment for life. The reasoning adopted behind this was that it was an outmoded correctional philosophy and was one of the most repulsive ways in dealing with criminals as it included exile beyond seas.

In K.M. Nanavati v. State of Maharashtra[10], it was decided that a life imprisonment sentence always means a sentence of rigorous imprisonment and not simple imprisonment. But in other cases, according to Section 60, the court has to specify at the time of the judgement whether the imprisonment will be wholly or partly rigorous; wholly or partly simple, or any term to be rigorous and the rest simple.

Solitary Confinement

Section 73 of the Code prescribes solitary confinement. It refers to the isolation of the prisoner and complete separation from society. It is an extreme measure and is to be rarely invoked in exceptional cases, of unparalleled brutality and atrocity[11].

In Sunil Batra[12] and Charles Sobhraj[13], the Supreme Court held that “any harsh isolation of a prisoner from the society of fellow prisoners by cellular detention under the Prisons Act, 1894, sections 29 and 30 is penal, and it must be inflicted only in accordance with the fair procedure; and in the absence of which the confinement would be violative of Article 21 of the Constitution”.

Conclusion

The Indian Penal Code covers a wide range of punishments according to the type and seriousness of the offences committed. The author feels that no single theory can be termed as appropriate while dealing with offenders. The facts and circumstances of each case need to be taken into account before passing a sentence as only because a person is an offender, he should not be deprived of justice. Trivial cases should not be awarded extreme sentences and vice versa. Even though the Code prescribes for five types of punishments, reforms need to be introduced to have a wider range of punishments to contain different types of offences.


[1] Institutes of Hindu Law(translated by Haughton, G.C. 1835) Ch. 7, para 18, p.189.

[2] (2008) EW CA 2687.

[3] Sarwan Singh v. the State of Punjab, AIR 1978 SC 1525.

[4] Harikishan and State of Haryana v. Sukhbir Singh, AIR 1988 SC 2131.

[5] AIR 1983 SC 473.

[6] (1980) 2 SCC 684.

[7] AIR 1973 SC 947.

[8] AIR 1983 SC 957.

[9] AIR 1976 SC 1552.

[10] AIR 1962 SC 605.

[11] K.D. Gaur, Commentary in Indian Penal Code (2nd Edn. 2013) pp. 192-195.

[12] Sunil Batra v. Delhi Administration, AIR 1980 SC 1579.

[13] Charles Sobhraj v. Superintendent, Central Jail, AIR 1978 SC 1514.

Indu Kumari from GGS Indraprastha University, New Delhi

“I don’t let my mind create limitations for me.”

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