Research Paper on Different Forms of ‘Punishment’ (9349 Words)

Research Paper on Different Forms of ‘Punishment’ !

This history of early penal systems of most countries reveals that punishments were tortuous, cruel and barbaric in nature. It was towards the end of eighteenth century that humanitarianism began to assert its influence on penology emphasising that severity should be kept to a minimum in any penal programme.

The common modes of punishment prevalent in different parts of the world included corporal punishments such as flogging, mutilation, branding, pillories, chaining prisoners together etc. Simple or rigorous imprisonment, forfeiture of property and fine were also recognised as modes of punishment.

Flogging:

Of all the corporal punishments, flogging was one of the most common methods of punishing criminals. In India, this mode of punishment was recognised under the Whipping Act, 1864, which was repealed and replaced by similar Act in 1909 and finally abolished in 1955.

The English penal law abolished whipping even earlier. In Maryland (U.S.A.) whipping was recognised as late as 1953 although its use was limited only to “wife-beating”. Flogging as a mode of punishment is being used in most of the middle-east countries even to this day.

The instruments and methods of flogging, however, differed from country to country. Some of them used straps and whips with a single lash while others used short pieces of rubber-hose as they left behind traces of flogging. In Russia, the instrument used for flogging was constructed of a number of dried and hardened, thongs of raw hide, interspersed with wires having hooks in their ends which could enter and tear the flesh of the criminal. Flogging as a punishment has now been discontinued in all civil societies being barbarous and cruel in form.

Penological researches have shown that whipping as a method of punishment has hardly proved effective. Its futility is evinced by the fact that most of the hardened criminals who were subjected to whipping, repeated their crime. There is a general belief that whipping may serve some useful purpose in case of minor offences such as eve-teasing, drunkenness, vagrancy, shop-lifting, etc. but it does not seem to have the desired effect on offenders charged with major crimes.

Mutilation:

Mutilation was yet another kind of corporal punishment commonly in use in early times. This mode of punishment was known to have been in practice in ancient India during Hindu period. One or both the hands of the person who committed theft were chopped off and if he indulged in sex crime his private part was cut off. The system was in practice in England, Denmark and many other European countries as well.

The justification advanced in support of mutilation was that it serves as an effective measure of deterrence and retribution. The system, however, stands completely discarded in modern times because of its barbaric nature. It is believed that such punishments have an inevitable tendency to infuse cruelty among people.

Branding:

The convicts were branded as a mask of indelible criminal record leaving visible marks such as scars in the body parts which are normally noticeable. These permanent indelible marks not only served as a caution for the society to guard against such hardened criminals but also carried stigma which deterred them from repeating the offence.

Branding of prisoners was commonly used as a mode of punishment in oriental and classical societies. Roman penal law supported this mode of punishment and criminals were branded with appropriate mark on the forehead so that they could be identified and subjected to public ridicule. This acted as an effective weapon to combat criminality. England also branded its criminals until 1829 when it was finally abolished.

The system of branding was not uncommon to American penal system also. The burglars were punished by branding letter “T” on their hand and those who repeated this offence were branded “R” on the forehead. In Maryland (U.S.A.) blasphemy was punishable with branding the letter “B” on the forehead. In India, branding was practiced as a mode of punishment during the Moghul rule. This mode of corporal punishment now stands completely abolished with the advent of humanitarianism in the field of penology.

Stoning:

Stoning the criminals to death is also known to have been in practice during the medieval period. This mode of sentencing the offender is still in vogue in some of the Islamic countries, particularly Pakistan, Saudi Arabia etc. The offenders involved in sex-crimes are generally punished by stoning to death.

The guilty person is made to stand in a small trench dug in the ground and people surround him from all sides and pelt stone on him until he dies. Though it is a punishment barbaric in nature, but due to its deterrent effect, the sex crimes, and particularly, the crimes against women are well under control in these countries.

Pillory:

Pillory was yet another form of cruel and barbaric punishment which was in practice until the end of the 19th century. The criminal was made to stand in a public place with his head and hands locked in an iron frame so that he could not move his body. The offender could also be whipped or branded while in pillory.

He could be stoned if his offence was of a serious nature. At times, the ears of the criminal were nailed to the beams of the pillory. Restraining physical movements of the criminal had the most agonising effect on him and it was believed that the deterrence involved in this mode of punishment would surely bring the Offender to books.

The system of pillory existed slightly in different form during the Moghul rule in India. The hardened criminals and dangerous offenders were nailed in walls and shot or stoned to death. The punishment undoubtedly was more cruel and brutal in form and therefore, it finds no place in modem penal systems.

Hanging condemned prisoner to death in a public place was common mode of pillory punishment in most part of the world until the middle of the twentieth century. This mode of punishment is still in vogue for execution of death sentence. But hanging of a condemned convict to death in public is strictly prohibited and it has to be carried out in closed jail premises.

Amercement:

Amercement was a financial penalty under the English penal system, which was commonly used during the middle ages. It was imposed either by court or by the Peers. It was similar to fine with the only difference that fine could be a fixed sum prescribed by the statute while amercement was arbitrary. It was commonly used as a punishment for minor offences as an alternative to fine.

Fines:

The imposition of fine was a common mode of punishment for offences which were not of a serious nature and especially those involving breach of traffic rules or revenue laws. This mode of punishment is being extensively used in almost all the sentencing systems of the world.

Fines by way of penalty may be used in case of property crimes and minor offences such as embezzlement, fraud, theft, gambling, loitering, disorderly conduct etc. Other forms of financial penalty include payment of compensation to the victim of the crime and payment of costs of the prosecution. Financial penalty may be either in shape of fine or compensation or costs.

The Indian Penal Code provides for imposition of fine—

(i) As the only disposition method;

(ii) As an alternative to imprisonment;

(iii) As a punishment in addition to imprisonment;

(iv) The actual amount of fine to be imposed is left to the discretion of the sentencing court.

Fine as an alternative to imprisonment is used only against short-term imprisonment i.e., imprisonment upto 2 or 3 years.

The real problem involved in imposition of financial penalties is the quantum of fine or costs and enforcement of its payment. The usual methods of enforcement are forfeiture of property, and threat of incarceration. Recovery of fines from the source of income of the offender may also be one of the methods of enforcing this penalty.

In fixing the amount of fine or pecuniary penalty financial condition of the convicted person must be kept in mind. Imposition of an exhorbitant stun by way of fine beyond the means of the offender would be unrealistic and therefore, frustrate the cause of penal justice.

Under the Indian law, the provisions relating to recovery of fines are contained in Section 421 of the Code of Criminal Procedure, 1973. The Code provides that when a Court imposes a sentence of fine or a sentence of which fine forms a part, it may direct that whole or part of the fine may be paid as a compensation to the victim for the loss or injury caused to him on account of the crime.

In determining the amount and method of fine, the Court should take into consideration the financial resources of the defendant and the nature of burden that its payment will impose on him. Normally, Court should not sentence an offender only to pay a fine when any other disposition is authorised by law, unless having regard to the nature and circumstances of the crime and prior history and antecedents of the offender, the sentence of fine alone is deemed sufficient for the protection of public interest.

While awarding the sentence of fine, the Court must keep in mind the gravity of offence and the financial capacity of the offender to pay the amount of fine. Besides, it is not desirable to impose fine in addition to death sentence or long-term imprisonment, which may be an unnecessary burden on the family of the convicted person.

Doubts have always been expressed about the adequacy of fine as a mode of punishment in cases of economic offences such as adulteration, tax-evasion, hoarding, bank frauds, FERA violations, financial scams, bribery etc. because of the fact that it may prove highly discriminatory between offenders having means to pay and those having no means to pay the fine. For rich and wealthy persons, payment of fine would virtually mean purchasing the release.

While expressing its views about fine as a punishment the Supreme Court in Adamji Umar Dalai v. State observed as follows:—

“In imposing fine, it is necessary to have as much regard to the pecuniary circumstances of the accused person as to the character and magnitude of the offence”.

In the instant case, the appellant was convicted for the offence of black-marketing and sentenced to pay a fine of Rs. 1,500/- along with a substantial sentence of imprisonment. The Court reduced the fine to Rs. 1,000/- keeping in view the fact that the accused was merely a commission agent and the fine imposed by the trial court was unduly harsh.

In case of default in payment of fine leading to imprisonment of the accused, the ideal policy is to convert unpaid fine into imprisonment not automatically but by a Court decision in each individual case.

Forfeiture of Property:

Section 53 of the Indian Penal Code provides forfeiture of property as a form of punishment. There are two offences specified under Sections 126 and 169 of IPC which provide for confiscation of property besides the punishment of imprisonment with or without fine. These sections are as follows:—

Section 126 provides that a person committing depredation on territories of Power at peace with the Government of India shall be punished with imprisonment of either description for a term which may extend to seven years and also liable to fine and the property so used or intended to be used in committing such depredation or acquired by such depredation, shall be liable to forfeiture.

According to the provision contained in Section 169, IPC, a public servant who being a public servant is legally bound not to purchase or bid for certain property, if he does so either in his own name or in the name of another, or jointly, shall be punished with imprisonment which may extend to two years or with fine, or with both, and the property, if purchased, shall be confiscated.

Collateral Sanctions (or Penalties):

This form of sanction is commonly used in USA against the released offenders with drug convictions. They are disentitled from receiving most public benefits including federally funded housing, bars, driving licenses, right to vote or to rejoin their children after release. Sex offenders are also subjected to such sanctions.

It must be stated that these legal restrictions differ from standard forms of punishment for criminal behaviour such as prison sentence, parole, probation etc. that are normally meted out under the criminal justice administration. They are created and enforced by civil law and not by the criminal law, and are collateral in the sense that they apply to individuals, and include sanctions or restrictions on certain types of employment, housing, educational facility or welfare eligibility, exercise of voting or parental rights etc. Such penalties or sanctions are mostly attended with non-violent drug related crimes and sex offenders.

Deployment of such offenders for community service is also treated as a technique of social policy in USA. In some states of USA, public employment is denied to convicted felons. The American criminologists and sociologists view these collateral penalties as an attempt to intertwine systems of criminal justice and social welfare.

Imposition of such collectral sanctions depriving ex-offenders of their civil rights are followed by consequences which are burdensome and therefore it has not been adopted in the Indian Criminal Justice System.

Security Bond:

A security bond for good behaviour though strictly speaking not a punishment, may serve a useful purpose as a form of restraint on the offender. This may entail compulsory treatment or supervision of the offender. The court may ‘defer’ sentence on some offender conditionally subject to his normal behaviour. This ‘conditional disposal’ of offender is increasingly being recognised as an effective mode of corrective justice in modern penology.

The purpose of this nominal measure of punishment is to offer an opportunity to the offender to become a law-abiding citizen and chances of his reformation are better than those who are imprisoned or subjected to institutional sentence. That apart, the family members of the offender are not adversely affected by this mode of punishment as they are not deprived of their bread winner.

Ostracism:

Ostracism literally means exclusion of someone from the community or society, by not noticing or communicating with him/her. This form of punishment was used in Ancient Greek city states of Athens. In India it still persists in the remote, rural areas in the form of out-casting a person if he commits an act against the customary norms of the society. However, it is purely a form of social bycott of an erring person, which has no recognition under the penal law of India.

Exile:

It was a measure to keep the convict away from his country, state or city, being threatened by imprisonment or death upon his unauthorised return. The system of exile was extensively used in middle ages during the supremacy of Church and special forms of exile were in vogue on a declaration by Church. It was used particularly for political opponents of those who were in power. However, exile as a form of punishment fell into disuse by the end of the nineteenth century. It now exists in milder form, which is known as banishment.

Banishment:

The practice of transporting undesirable criminals to far-off places with a view to eliminating them from society has been commonly used in most parts of the world for centuries. In England, war criminals were usually transported to distant Austro-African colonies. The terms transportation, banishment, exile and outlawry though similar, have different connotations. The difference, however, seems immaterial for the present purpose. Exile as a device merged into outlawry with earlier religious element largely supplanted by a political motive.

French criminals were transported to French colonies in Guiana and New Caledonia during nineteenth century. This mode of punishment was used only for hopeless criminals, political offenders and deserters. There was no question of these criminals returning alive as they were sure to die labouring in dense fever-infested forests of the African island. The French system of deportation was most brutal, cruel and inhumane. The system was abolished after the World War II when free French Government was installed in that country.

Russian countries transported their criminals to Siberian penal camps. The condition of these camps was far worse than those of French in Guiana. They were virtually hell on the earth and have been called “House of the Dead” by Dostoevksi. These camps were mostly meant for political prisoners who were completely deprived of their civil rights and were long termers.

The practice of transportation is known to have existed in penal system of British India as well. It was popularly called ‘Kalapani’. Dangerous criminals were despatched to remote island of Andaman and Nicobar. It had a psychological effect on Indians because going beyond the seas was looked with disfavour from the point of view of religion and resulted in out-casting of the person who crossed the seas. The practice came to an end during early forties after these islands came in occupation of Japanese. It was finally abolished in 1955.

Though a part of retributive justice, transportation as a method of punishment has been defended by some criminologists particularly, Lombroso and Garofalo. Lombroso favoured the system as it eliminates hopeless incorrigibles from native criminal population and thus prevents them from demoralising influences. Garofalo supported transportation as a punishment because of its deterrent effect.

Considered from the practical point of view the practice of transportation seems to have failed to deliver the goods. It was not only primitive, cruel and barbaric but involved considerable burden on State exchequer as it required regular establishment of penal settlements. The practice has been abandoned by most countries excepting some Latin American States where it still prevails as one of the vestiges of outmoded correctional justice.

It must, however, be noted that the practice of banishment still persists in miniform called “externment”. The object of this method of punishment is to disassociate the offender from his surroundings so as to reduce his capacity to commit crime. This form of punishment has been accepted under the Indian penal system but it cannot extend beyond India.

Solitary Confinement:

Solitary confinement is another deterrent form of punishment in which the prisoner is denied any kind of contract with any other person or outside world excluding the prison guards. The prisoners are kept in isolation with no contract with anyone else and are usually locked in small cellular room with smaller windows.

The effect of this isolation is so severe that the deprivation often causes mental illness and even death of the prisoners before, their final release from the prison. However, it was defended as the best way to keep the dangerous offenders out of touch with the people and spend time in penance.

Confining the convicts in solitary prison-cells without work was a common mode of punishment for hardened criminals in medieval times. Solitary confinement was intended for elimination of criminals from society and at the same time incapacitating them from repeating crime.

The deterrence involved in this mode of punishment was deemed necessary for prevention of crime. The monotony involved in this kind of punishment had the most devastating effect on criminals. Man by nature is known to be a social being hence he cannot bear the pangs of isolation and living in complete segregation from his fellowmen.

Therefore, lodging of convicts into isolated prison cells under the system of solitary confinement resulted in disastrous consequences and the prisoners undergoing the sentence either died untimely or became insane. Besides, they became more furious and dangerous to society if at all they chanced to come out of the prison alive after completing their term of solitary confinement. As a result of these ill-effects on prisoners the system of solitary confinement soon fell into disuse and it was finally withdrawn as a measure of punishment.

Commenting on the torture and cruelty involved in solitary confinement, Ur. P. K. Sen observed that it was perhaps the best way to put an end to the criminal without resorting to bloodshed or murder. Significantly, this mode of punishment is known to have found support in the ancient Indian penology as an effective expiatory measure. It was believed that complete isolation of man provides him better opportunity for penance and remonstrance and the feeling of guilt and self-hatred tends to bring about his reformation speedily.

The provisions relating to solitary confinement are contained in Sections 73 and 74 of the Indian Penal Code. Section 73 provides that the Court may order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole according to the following scale—

(i) For a period not exceeding one month if the term of imprisonment does not exceed six months;

(ii) For a period not exceeding two months if the term of imprisonment does not exceed one year;

(iii) For a period not exceeding three months if the term of imprisonment exceeds one year.

Section 74, IPC limits the solitary confinement to seven days in any one month in cases where the substantive sentence exceeds three months. That is to say, solitary confinement must be imposed at intervals. A sentence inflicting solitary confinement for the whole term of imprisonment is illegal, though it may be for less than fourteen days.

The Madras High Court, in Munnuswamy v. State has held that the imposition of the sentence of solitary confinement, although legal, should be very rarely exercised by a criminal court. It should be administered, if ever, in most exceptional cases of unparalleled atrocity or brutality.

The Supreme Court has also reiterated this view in Sunil Batra v. State wherein the Court held that cases involving solitary confinement under Sections 29 and 30 of the Prisons Act, though legal, must be inflicted only in accordance with fair procedure as it involves harsh isolation of the prisoner from the society of fellow-prisoners which may cause his mental derangement.

In Kishore Singh Ravinder Dev v. State of Rajasthan, also the Supreme Court dealt with the parameters of solitary confinement. Therefore, the general view is that solitary confinement, though legal, must be inflicted sparingly and only in exceptional cases. Some critics even suggest that the provision of solitary confinement should be scrapped from the statute book because it is considered as inhuman torture by the U.N. Human Rights Charter.

Detention:

Detention generally refers to holding a person either as punishment for a wrong, or as a precautionary measure while carrying out crime investigation. Any form of imprisonment can be called detention although normally it refers to person who is being held in temporary custody without being charged with an offence.

For example, Talibans supporters who were captured in 9-11-2001 US invasion of Afghanistan have not been classified as prisoners by US government, but have been consistently referred to as detenees, suggesting that they are only being held temporarily white their, status is being investigated. Holding suspects under custody pending investigation also amounts to detention.

House Arrest:

Where a person is confined by the authorities to his/her residence under constant surveillance of police, it is known as house arrest. It is a lenient alternative to incarceration in prison and is usually used by the government against political dissidents. The house arrestees generally do not have access to means of communication (telephone, mobile etc.) and electronic communication is allowed, it will be lapped or censored by the authorities.

Custodial Sentence:

It is a judicial sentence imposing a punishment consisting of mandatory custody of a convict either in prison (incarceration) or in some other closed therapeutic institution such as reformatory, rehabilitation centre etc. Thus, imprisonment is a common form of custodial sentence, which may be either for life or for a prescribed specific period.

Imprisonment for Life:

The Indian Penal Code prescribes five types of punishment, namely, (1) Death, (2) Life imprisonment, (3) Imprisonment, which may be (a) rigorous or (b) simple, (4) Forfeiture of property, and (5) Fine. Thus ‘Imprisonment for life’ has been authorised as a form of punishment under Section 53 of the Indian Penal Code as amended by Act 26 of 1955 with effect from 1st January, 1956.

The Supreme Court, in Naib Singh v. State held that the ‘nature’ of the punishment of imprisonment for life is rigorous imprisonment only and a criminal court could under Section 418 of the Code of Criminal Procedure, 1973 by issuing a warrant, direct the execution of sentence of life imprisonment in a prison.

The Criminal Law (Amendment) Act, 1983 has incorporated imprisonment for life of either description, rigorous or simple, in the amended Section 376 of the Indian Penal Code. There are in all fifty-one sections in the Penal Code which provide for sentence of imprisonment for life.

Section 57 of the Indian Penal Code provides that in calculating fractions of term of imprisonment, imprisonment for life shall be reckoned as imprisonment for twenty years.

The executive authorities are competent under Section 55, I.P.C. or under Section 433 (b) of the Code of Criminal Procedure, 1973 to commute sentence of imprisonment for life to one of rigorous imprisonment not exceeding a term of fourteen years. Such commuted sentence would entitle life convicts to be set free after undergoing the maximum sentence of fourteen years inclusive of the period of remissions earned during his incarceration.

But in actual practice it is seen that the prison authorities are illegally detaining the life convicts for a much longer period than the aforesaid maximum 14 year holding that the nature of sentence of life imprisonment does not alter by the aforesaid provisions of Indian Penal Code or the Code of Criminal Procedure and the sentence remains a sentence of life imprisonment and does not convert into a maximum sentence of imprisonment for 14 years by these provisions.

A landmark judgment of the Supreme Court handed down in Kartik Biswas v. Union of India, deserves special mention in the context of Section 53 of IPC and Section 32 of the Prisoners Act, 1900 which relate to imprisonment for life. The Court made it clear that life imprisonment is not equivalent to imprisonment for 14 years or for 20 years. Elaborating the point further the Apex Court ruled that there is no provision either in IPC or in Cr. P.C. whereby life imprisonment could be treated as 14 years or 20 years without there being a formal remission by the appropriate government.

Section 57 of IPC which provides that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years is applicable for the purpose of remission when the matter is considered by the Government. But the Prison Act and the rules made there under do not confer any authority or power to commute or remit the sentence.

In the instant case, the petitioner was undergoing a life sentence for the offence of murder and had already undergone more than 21 years imprisonment at the time of filing the writ petition. His contention was that his further detention in jail was illegal and therefore, he should be set free and also paid compensation for his alleged illegal detention beyond the period of 20 years because the provisions of West Bengal Jail Code and West Bengal Correctional Services Act, 1992 have equated imprisonment for life to a term of 20 years simple imprisonment for the purpose of remission.

The petitioner also contended that life-imprisonment being a distinct punishment from the punishment of rigorous or simple punishment; the Government could not treat it as a rigorous imprisonment for life. He further pleaded that prisons being meant for intermediate custody of those who are awarded rigorous or simple imprisonment, a life convict could not be lodged, in a prison.

Disallowing the petition, the Supreme Court held that the plea that a person convicted for imprisonment for life cannot be kept in jail is not tenable. The Court further ruled .hat imprisonment for life is to be treated as rigorous imprisonment for life and that it was unnecessary for the Legislature to specifically say that life imprisonment means rigorous imprisonment for life.

In yet another case, the High Court of Delhi on 20th December, 2006 awarded life imprisonment to Manu Sharma, son of Congress leader Vinod Sharma, for murdering model Jessica Lai in 1999. Contrary to the general perception that life sentence means 14 years’ imprisonment; Manu Sharma will spend his rest of life in jail as directed by the Court. The Court clarified that the Supreme Court has ruled that a convict who is awarded life sentence would be imprisoned for the rest of his life, unless the Government passes an order remitting the sentence to facilitate his early release.

Life imprisonment as an alternative punishment to Death sentence:

The vexed question of award of death sentence to a cold blooded murderer or life sentence once again came up before the Supreme Court in Swamy Shraddananda alias Murli Manohar Mishra v. State of Karnataka. The Court in this case, made it explicitly clear that a convict punished with life imprisonment means imprisonment till his last breath.

But once the judgment is pronounced the matter passes into the hands of the executive and is governed by different provisions of law and there is no guarantee that the sentence awarded to the convict by the Court after considerable deliberation would be carried out in actuality.

The remissions granted by the executive to a life convict virtually reduces the sentence to not more than 14 years. It is a matter of serious judicial concern that the sentence of life imprisonment awarded to the convict as a substitute for death should be treated alike with the ordinary life imprisonment given as the sentence of first choice.

The Apex Court in this judgment referred to the Report entitled “Lethal Lottery, the Death Penalty in India”, compiled jointly by Amnesty International India and Peoples Union for Civil Liberties, Tamil Nadu and Pondicherry based on the Supreme Court judgments, on death penalty from 1950 to 2006. The Report highlights the lack of uniformity and consistency in the award of death sentence and/or its substitution by imprisonment for life. Some of the illustrative judgments of the Supreme Court are as follows:

In Subhash Chander v. Kishanlal and others, four accused persons including Kishanlal were convicted for multiple murders and sentenced to death by the trial Court and the High Court confirmed the sentence In appeal, the Counsel for Kishanlal, on instructions from the convict, submitted that Kishanlal, if sentenced to life imprisonment instead of death, would never claim premature release or commutation of his sentence on any ground i.e., under Section 401 of Cr. P.C., Prison Act, Jail Manual or other Statutes or rules meant for the grant of remission. The Supreme Court agreed to the plea of the Counsel and sentenced Kishanlal for imprisonment for rest of his life.

In Mohd. Munna v. Union of India, the Apex Court held that in the absence of an order of remission formally passed by the appropriate government, there is no provision in I.P.C. or Cr. PC. under which a sentence of life imprisonment could be treated as for a term of 14 years or 20 years and that a life convict could not claim remission as a matter of right.

The Court expressed its anguish for States of Bihar and Karnataka life convicts being granted remission and released from prison on completion of 14 years without any sound legal basis and remission is being allowed to them in a routine manner without any sociological or psychological, appraisal.

Having reviewed the law on award of life imprisonment as a substitute for death, the Court in Swamy Shraddananda case, convicted him for life and directed that he shall not be released from prison till the rest of his life.

It may, however be stated that most European countries have prescribed a minimum period of incarceration after which a lifer may apply for release on parole provided he had exhibited good behaviour during the period he spent in prison. Thus, in Germany, the minimum time to be spent by a person sentenced to imprisonment for life is 15 years whereas it is ten years under the criminal law of Finland. Similar law may be adopted in India so as to provide a humanitarian touch to the sentencing of convicts with imprisonment for life.

Imprisonment:

Imprisonment presents a most simple penal and common form of sentencing for incapacitating the criminals. It has proved to be an efficient method of temporary elimination of criminals apart from being a general deterrent and an individual deterrent. Conditions of imprisonment in civilised countries have undergone radical changes in recent decades. The minimum security institutions such as open prisons and prison hostels are being increasingly used as modified forms of incarceration of offenders.

Despite being a corrective measure, the most intricate problem involved in imprisonment as a measure of punitive reaction to crime is the “prisonisation” of offenders. The prisoner is confronted with the most crucial problem of adjustment to new norms and environment of prison life. He loses his personal identity in the process of adjustment and is converted into a mere impersonal entity.

Yet another setback of imprisonment as a mode of punishment is its damaging effect on family relationship of the offender. The offender loses contact with the members of his family and if he happens to be the sole bread-winner, the consequences are still worse.

The members of his family suffer misery, starvation and financial crisis. Depriving the offender of his family life for a considerably long period creates new problems for prison discipline in form of homosexuality, bribery, corruption, indiscipline, revolt etc.

Prisonisation of woman offenders presents many-fold problems before the prison administration. Particularly, the women prisoners who are pregnant or have babies need special care and attention as regards their food, medical treatment, health and nourishment of the child.

This casts additional financial burden on the prison administration. This is one reason why the prison authorities are more liberal in granting remissions, furloughs, parole etc. to the women prisoners or in the alternative, they are sent to women reformatories called as Nari Sudhar Graha.

In India, parole and furlough are now being extensively used as a part of penal substitutes for mitigating the rigours of prison inmates. The All India Jail Reforms Committee has further observed that the prisoners should be released on furlough after undergoing a specified period of imprisonment so that they maintain contact with their relatives and friends and may not feel uprooted from society and prevented from the evil effects of prisonisation.

The social stigma attached to prisoners makes their rehabilitation more difficult. Prisoners quite often feel, that the real punishment begins after they leave the prison institution Sir Lionel Fox, the noted prison reformist of Britain introduced Hostel system for inmates to prevent them from stigmisation and ensure them an honourable life in society.

Be that as it may, the fact remains that imprisonment is still one, of the most accepted forms of punishment throughout the world. With the modem correctional techniques introduced in prison institutions, it serves as an efficient measure of reforming the criminal and at the same time protecting the society from anti-social elements. Prisonisation of offenders serves the dual purpose of preventive and reformative justice at one and the same time.

Capital Punishment:

Of all forms of punishments, capital punishment is perhaps the most controversial and debated subject among the modern penologists. There are arguments for and against the utility of this mode of sentence. The controversy is gradually being resolved with a series of judicial pronouncements containing elaborate discussion on this complex penological issue. However, looking to the variety of considerations involved in the problem, a detailed discussion on the subject is deferred to succeeding chapter of the Book.

The offences which are punishable with death sentence under the Indian Penal Code include:

(i) Waging war against the State (Sec. 121);

(ii) Abetment of mutiny (Sec. 132);

(iii) Giving or fabricating false evidence leading to procure one’s conviction for capital offence (Section 194);

(iv) Murder (Section 302);

(v) Abetment of suicide committed by a child or insane (Sec. 305);

(vi) Attempt to murder by life-convict, if hurt is caused (Sec. 307);

(vii) Kidnapping for ransom, etc. (Sec. 364A), and

(viii) Dacoity with murder (Sec. 396).

It is significant to note that though the aforesaid offences are punishable with death but there being alternative punishment of life imprisonment for each of them, it is not mandatory for the Court to award exclusively the sentence of death for any of these offences. In fact, where the Court is of the opinion that the award of death sentence is the only appropriate punishment to serve the ends of justice in a particular case it is required to record “special reasons” justifying the sentence stating why the award of alternative punishment i.e. imprisonment for life would be inadequate in that case.

The recent penological trend is to give primacy to reformative methods of punishment which were hitherto used merely as supplementary measures. Hungary is perhaps the first country to initiate the reformative educational method for its prisoners, besides fines, which Prof. Jescheck considered to be central sanction of an up-to-date penal policy, the collateral sanctions such as prohibition from pursuing a profession, disqualification of driving, local punishment and confiscation of property are also being extensively used as sophisticated modes of punishment.

According to Dr. Joseph Folvari, these sanctions (measures) would refrain the perpetrator from committing a further crime and at the same time would put an end to the possibility of a further criminal act being committed. Needless to say that these measures would be equally effective if adopted in the Indian penal system.

Judicial Sentencing:

The problem of judicial sentencing is closely related to the forms of punishment. It is difficult to say that a Judge is guided by a single particular criterion in imposing a sentence. A day-light bank robbery involving one or two murders may be treated by some judges as an act of warfare against the community touching new depths of lawlessness justifying severely deterrent sentences for they want society to be protected, law to reassert its authority and villains to get their deserves.

Similarly, in case of a few youths attacking a couple in a car and raping the woman, the Judge may be convinced that the perpetrators of such a crime must be denounced and awarded the sentence of imprisonment for a term of few years totally denying them the benefit of probation or borstal in view of the heinousness of the offence.

Expressing his views about judicial sentencing, Sir James Fitzjames Stephen observed that it is proper to punish criminals for the sake of the public desire for vengeance but they should not be condemned outright in the name of reinforcement of the values of a society.

There may be occasion where a Judge is conscious that the values presented by the criminal law have already lost much of their credence because of the rapidly changing public opinion and he may prefer to award a lighter sentence than the one prescribed for that offence. Conversely, there may be a situation where a Judge may choose to give legitimate expression to his denunciation for offender’s act by passing exemplary severe sentence.

Indeed, a Judge may be justified in awarding a severe and exceptionally lengthy sentence on grounds of dangerousness of the crime or a lighter one for rehabilitation or reformation of the criminal, but a sentence out of all proportions to the crime is repugnant. In other words, the sentence must be warranted by the crime. A kind of balance between crime and punishment therefore, seems inevitable for judicial sentencing. As Sir Leon Radzinovicz rightly observed,

“the perplexities, conflicts and disagreements of Judges on the point of exactness of sentence cannot be so easily resolved but they testify to an apparently ineradicable sense that as wages should be to work, punishment should be to crime; the more difficult or valuable the work, the higher should be the wages, the worse or more damaging the crime, severer should be the punishment. In both fields, there is a customary level of expectation”.

Judicial authorities all over the world have been struggling hard to establish a coherent set of principles for judicial sentencing but the fundamental question is as to which of the four, namely, deterrence, retribution, prevention or reformation, should take precedence in the process of sentencing. It is on this point that the judges, the lawyers, the magistrates and the people in general disagree.

The crucial problem in context with judicial sentencing is whether it is the ‘protection of society, or the prevention of crime’, which should gain primacy in awarding the sentence. However, in the absence of any specific criterion, it would be worthwhile to suggest some general guidelines relating to judicial sentencing:

1. The personality of the offender rather than the gravity of the offence should be the guiding factor in judicial sentencing. The age, antecedents, past criminal record, responsiveness and prospects of reformation of the offender as also the circumstances in which he committed the crime, should be taken into consideration while deciding the quantum of punishment.

As rightly pointed out by Bentham, quantum of punishment should vary according to the offender’s capacity to suffer. He enumerated as many as thirty-two invariables of capacity for suffering some of which are sex, age, physical and mental health, religion, lineage etc. The use of individualised methods of punishment such as probation, parole, suspension of sentence, etc. may achieve some element of rationality in the penal policy.

2. Humanity, consciousness about societal values and frugality are some of the limitating factors in judicial sentencing. Disparities in sentencing may be due to disparities between individual Judges, disparities between offenders convicted for the same offence under similar situations, disparities due to locational comparisons or disparities due to racial or class prejudices etc. These are rather inevitable in the modem complex society.

It must be noted that sentencing is the most critical stage in administration of criminal justice. As Tappan rightly pointed out, “disparity in sentencing not only offends principles of justice but also affects the rehabilitative process of offender and may create problems like indiscipline and riots inside the prison.”

Expressing a similar view the Supreme Court in Asgar Hussain v. State of U.P., observed that disparity in sentencing creates hostile attitude in the mind of the offenders and reduces the chances of their re-socialisation as they react strongly against the discriminatory treatment meted out to them.

3. The discretion of the Judge in matters of sentencing is limited by the penal law itself which sets a legal maximum sentence for a particular offence. However, there may be mandatory penalties for certain offences where the law gives the court no choice. For example, the offence of murder carries the minimum sentence of life imprisonment under section 302 of the Indian Penal Code.

The terms minimum and maximum may serve to mark the extremes of punishment, which require equal attention. Spelling out the limits of minimum punishment, the Supreme Court held that, “the value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence. By the profit of the crime, must be understood not only pecuniary profit, but every advantage real or apparent, which has operated as a motive to the commission of the crime.”

As regards the parameters to decide the maximum punishment, Bentham has set the trail of caution and observed.

“Punishment, whatever shape it may assume, is an evil….the minimum punishment is more clearly marked than its maximum. What is too little is clearly observed than what is too much. What is not sufficient is easily seen, but it is not possible so exactly to distinguish an excess. An approximation only can be attained” An error on the maximum side emanates from antipathy or a want of compassion for individuals who are represented as dangerous and vile, punches them to an undue severity.

4. For professional criminals or political terrorists who indulge in ruthless violence and are a potential danger for the community, an extended period of preventive detention after serving the penal sentence may prove appropriate keeping in view the public safety and security against these dangerous hardened offenders. For this purpose, a distinction has to be drawn between hardened criminals and the recidivists. The former are ‘positive danger’ to society whereas the latter are a nuisance rather than a threat.

5. The offences committed by public servants should be severely dealt with and deserve no leniency in sentencing. Particularly, a public servant found guilty of accepting or obtaining illegal gratification or persons guilty of food adulteration or any other socio-economic offence such as hoarding, profiteering, black-marketing, tax evading etc. must be sternly punished as they are a menace to society.

6. Judicial sentencing is a personal responsibility of the Judge, a matter for his conscience alone. Any intrusion into his decision should be considered most unreasonable. But things have now considerably changed. It is said that today ‘even Judges are judged’. They are expected to be fair and free from prejudices in pronouncing sentences.

A Judge should also be aware of the various issues involved in the crime and the factors influencing the criminal who is standing trial before him. Though maturity and experience are great merits of a sentencer, but his decisions should not be out of tune with the advancing society.

In other words, he should command public confidence through his pragmatic pronouncements. Needless to say, that despite legal training and limitations of criminal law, personal backgrounds and attributes of the Judge do play a vital role in judicial sentencing.

7. Though remotely, the judicial sentencing is likely to be influenced by the manner and mode of appointment of the Judges, particularly in countries where the Judges are elected like legislators and are answerable to the electorates, they are prone to fall an easy prey to unjust local prejudices and pressures. Therefore, political element should not be allowed to enter into the powers of appointment of judicial magistrates.

In this context working of the criminal courts in USA wherein the prosecutor or the Prosecutor Attorney plays a quadruple role as an investigator, magistrate, solicitor and an advocate, deserves a special mention. It is essentially a political appointment and in fact a stepping stone for a high political office.

Obviously, the political nature of the prosecutor’s office does more harm than good to the community because he cannot afford to overlook the interests of politicians who have been instrumental in getting him appointed to this prestigious office.

8. The standards of sentencing are bound to differ depending on whether the Judges are drawn from among the lawyers or laymen from public. It is generally presumed that lawyers with adequate legal training are better sentencers for the reason that they are able to take an account of genuinely relevant factors, can weigh arguments and reach conclusions and beyond all, they are rigid and less vulnerable to pressures.

On the other hand, the yard-stick for lay-Judges is often the robust common sense guided by genuine human problems and they are fallible to pressures from those around them. The general trend today is to have the criminal courts staffed by well qualified lawyers.

9. Sentencing by the Judge largely depends on the way and the manner in which the case is presented before him by the police or the prosecutor. Therefore, conviction or acquittal shall inevitably depend on the evidence put forth by these personnel which may be biased or mistaken thus jeopardising the interests of criminal-justice. Miscarriage of justice is generally due to distortion or manipulation of evidence or the witnesses turning hostile due to pressure or threat exercised by the dreadful offender.

Sheldon Glueck has suggested that a pre-sentence report may provide a useful information and guidance to the sentencing authority in taking decision regarding the guilt of the accused and sentence or treatment to be accorded to him. It may enable the magistrate to seek advice from experts like psychiatrists or probation officers regarding antecedents of the offender and desirability of appropriate sentence keeping in view the possible impact of that sentence on the offender. The importance of pre-sentence report has been realised by most progressive penal systems of the world and they have incorporated relevant provisions to this effect in their penal laws.

10. In order to eliminate chances of injustice to the accused due to miscalculated sentencing, the law provides for appeal to higher courts. The appellate courts not only remove individual injustices but also formulate precedents which the subordinate courts are bound to follow in their verdicts. This is indeed an effective method of eliminating possibilities of miscarriage of justice.

The problem of a uniform sentencing policy has been engaging the attention of penologists for quite some time. It is true that “sentencing is not like baking a cake, you cannot lay down in advance, for every case, the exact ingredients and proportions, the exact temperature required…In sentencing, courts are not dealing with standard ingredients but with an infinite variety of offences, offenders and situations.”

Nevertheless, there ought to be some definite criteria to decide the sentence. Taking a lead in this direction, the Federal Authorities in U.S.A. established sentencing Institutes in 1957 to impart some sort of training for magistrates in matters of sentencing. In England, vigorous efforts have been made by Lord Chief Justice ever since 1970 to ascertain definite principles of sentencing.

The length of the prison sentence is usually commensurate with the seriousness of the offence as provided under the Criminal Justice Act, 1991. Section 2(2) of the Act further empowers the court to imprison a person convicted of a violent or sexual offence for longer than the seriousness of the case requires, but not exceeding the maximum in any case.

Another Act passed by the British Parliament namely, the Crime (Sentences) Act, 1997 has removed the provision of remission from the penal code. In order to provide safeguard against the arbitrary use of judicial discretion, efforts are being made to introduce computerised sentencing system ever since 1998. It is to be seen as to how far it succeeds in improving the sentencing pattern under the British penal system.

In the Indian context, sentencing, by and large, depends on the judicial discretion within the legal limits of penal provisions of the Indian Penal Code and other statutory enactments. However, setting up of a few more training institutes for new entrants in judicial service and refresher courses for the working Judges may be useful in equipping them with the necessary know-how about the techniques of judicial sentencing which may go a long way in reasserting their role as dispensers of even-handed justice.

The magistracy, while awarding the sentence must bear in mind that grading of various offences in the Penal Code is based on their gravity, and the gravity of an offence is generally assessed in terms of social danger, social, disapprobation; alarm it causes in the society and depravity of the offender. It is for this reason that quite often similar offence committed by two different persons is looked at differently in the matter of sentencing.

The criminal act, or the crime, being related to social behaviour, there cannot be any exact measuring rod to assess its intensity and magnitude and therefore, any mathematical accuracy in punishment is a myth. It is for this reason that punishment has to be awarded within the broad parameters set by the penal court, its exact quantum being left to the judicial discretion of the sentencing authority.

The Supreme Court in Adu Ram v. Mukna and others, highlighted the principle of proportionality between crime and punishment and held that social impact of crime cannot be lost sight of and the offence of murderous assault under section 300 read with sections 149, 304, Part I of I.P.C. per se requires exemplary treatment.

The criminal law adheres, to the principle of criminal liability according to the culpability of each kind of criminal conduct. Though the judges must affirm that punishment always fits to the crime but in practice sentences are generally determined by other considerations. Sometimes correctional needs of the perpetrator justify leniency in sentencing.

The Court lamented that the practice of punishing serious crimes with equally severe punishment is now unknown to the civil societies and there has been a departure from the principle of proportionality in recent times. The Court noted that imposition of sentence without considering its effect on the social order leads to some undesirable practical consequences.

Particularly, crimes against women, children, dacoity, treason, misappropriation of public money and offences involving moral turpitude have great impact on social order, and per se require exemplary punishment in public interest. Any liberal attitude by imposing lenient sentences or taking sympathetic view on account of lapse of time in respect of such offences will be counter-productive in the long run and will jeopardise the “social interest which needs to be strengthened by the string of deterrence inbuilt in the sentencing system.”

In the instant case the appellants were charged of murderous assault in course of a quarrel. They had used lathis and axes and beaten the deceased who succumbed due to grievous injuries. They were sentenced to six years for the offence under section 300 read with Sections 149 and 304 Part I. The Supreme Court dismissed the appeal and held that the case ought to have been covered under section 304, Part II of I.P.C.

Emphasising the need for judicious sentencing, the Supreme Court in Siriya alias Shrilal v. State of M.P., observed:

“Law regulates social interests, conflicting claims and demands. Security of persons and property of the people is an essential function of the State which could be achieved through the instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of edifice of ‘order’ should meet the challenges confronting the society.”

Quoting Friedmann’s observation in his classic work, ‘Law in Changing Society’ the Supreme Court pointed out that criminality continues to be, as it should be, a decisive reflection of ‘social consciousness of society’. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence, based on factual matrix.

The sentencing process should be stern where it should be, and tempered with mercy where it warrants to be so. Continuing in the same vein, the Court observed that, “undue sympathy to impose inadequate sentence would do more harm than good to the justice system as it would undermine public confidence in the efficacy of law and society would no longer endure under such serious threats. It is therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was perpetrated or committed etc.

Commenting on the desirability of a rational penal policy in the matter of sentencing by Courts, the American Supreme Court in Dennis Councle Me G. Dautha v. State of California, observed that no formula of a foolproof nature can be laid down which would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the offence.

In the absence of a foolproof formula, for correct assessment of the sentence, various circumstances relevant to the nature or gravity of the crime should be considered by the Court while using its discretionary judgment in award of sentence to the accused person.