TYPES OF PUNISHMENT
(..7..)
PUNISHMENT
QUESTION BANK
Q.1 “Abolition of capital punishment would be a grave danger to the security
of the society” Do you agree?
Q.2 Describe the different kinds of punishments.
Q.3 Explain the theories of Punishments.
Q.4 What is the object of punishment? State various kinds of punishments
under the BNS.
Q.5. Discuss fully the different types of punishments provided under BNS.
Q.6 What are the types of punishment? Explain social relevance of capital
punishment.
Q.7 What are the types of punishment? Explain with special reference to
capital punishment.
SHORT NOTES
- Imprisonment
- Fine
- Reformative theory
4. Solitary confinement
SYNOPSIS
I] Punishment; Aims and objects
II] Theories of punishment
1) Deterrent Theory
2) Preventive Theory
3) Retributive Theory
4) Reformative Theory
III] Kind of punishment under BNS.
A) Death sentence (Capital punishment)
1) Introduction
2) Death (capital) punishment under BNS.
3) Arguments in favour of capital
punishment
a) Deterrence
b) Elimination of dangerous
criminals
c) Reduce the expenditure of the state
d) Justice to victim
e) Sense of protection
f) Constitutionally valid
g) Pardon or commutation
-Commutation of Death Sentence:-
-Appropriate Government-
-Pardon, Reprieve, Respite, Remission, and Suspension (Constitutional Powers)-
h) ‘Rarest of Rare case’:-
4) Arguments against capital punishment
a) Cruel and inhuman
b) No reformation
c) Misuse
d) Cold-Blooded Legal Murder:-
e) According to Metaphysics: -
B) Imprisonment for life
Calculation of Term (S. 6):
Offences Punishable with Life Imprisonment:
C) Imprisonment.
1) Rigorous
2) Simple
3) Solitary
Limits on Execution (How it is Served) (S. 12)-
i. Maximum Duration at One Time (The 14 Day rule)-
ii. Monthly Limit for Longer Sentences (The 7-Day Rule)-
D) Forfeiture of property
E) Fine
-Imprisonment in default of fine
1. Limit based on the Maximum Sentence for the Offence.
2. Absolute Limit based on the Fine Amount.
Proportional Termination:
Nature of Imprisonment:
Offences Punishable with Fine/Community Service Only:
I] PUNISHMENT; AIMS AND OBJECTS:-
According to R. C. Nigam, “Punishment is the suffering in the person (physical) or property, inflicted by the society on the offender who has been adjudged guilty of a crime under the law”. The suffering in property may be forfeiture or a fine.
Punishment aims to protect society from mischievous elements by deterring potential offenders and preventing actual offenders from committing further offences. It also eradicates evils, reforms criminals, and turns them into law-abiding citizens.
However, the amount of punishment is not uniform in all cases. It changes from time to time and from place to place. It depends upon the value that society preserves. Therefore, adultery is an offence in India, which is not so in England. The punishment for any offence in India is not as severe as in Arabic countries. Punishments also vary according to the nature of the offence, intention, age, mental condition, etc., of the offender, and the circumstances in which the offence is committed. For instance, a boy of ten years will be treated differently from a grown-up man for committing the same offence. Likewise, a person of unsound mind would be treated differently from a man of sound mind for the commission of murder. Similarly, for habitual offenders, professional offenders will be punished more severely than a first-time offenders.
II] THEORIES OF PUNISHMENT:-
The object of punishment is to protect society from antisocial behaviour and reduce the crime rate. This object or purpose can be achieved by deterrence, prevention, retribution, and criminal reformation. These are also called the justifications for punishment. Among these objects, the deterrent is regarded as the main function of punishment, and others are merely secondary.
1) Deterrent Theory:-
According to this theory, the object of punishment is not only to prevent the wrongdoer from doing wrong again but also to make him an example to other persons with criminal tendencies so that the others would also deter him from committing a crime in the future. Therefore, a general (i.e., to the other potential criminals in the society) and particular (i.e., particular criminal) deterrence is the object behind the deterrent theory.
The instances or kinds of such punishments may be death, hanging in public, stoning till death, whipping in public, maiming, etc.
According to Justice Brunet- “thief is not punished for having stolen a horse but so that others horses may not be stolen”.
However, this theory has been criticised on several grounds, such as the theory is ineffective in reducing crimes, excessive harshness of punishment creates sympathy in the minds of the public about criminals, it is likely to harden the criminal instead of creating in his mind the fear of law, etc.
2) Preventive Theory:-
Another object of punishment is preventing or disabling. Punishments like death, exile, jail imprisonment, etc., disable offenders from repeating the crime. Preventive punishment has been criticized for having the undesirable effect of hardening first-time offenders or juvenile offenders by making them associated with hardened criminals.
3) Retributive Theory:-
In primitive society, the punishment was mainly retributive. The victim was allowed to take revenge (retribution) against a wrongdoer. The principle of ‘an eye for an eye, and a tooth for a tooth’ was the basis of the criminal justice system.
According to this theory, a criminal deserves to suffer punishment. In modern times, the satisfaction of an individual victim’s revenge is made by the state inflicting punishment on the offender. Thus, the theory gratifies the instinct of revenge, which exists not merely in the individual wronged but also in society at large.
However, this theory has been criticized because punishment is not a remedy for a wrong. It merely aggravates the mischief. Punishment in itself is evil and cannot be justified if it does not yield better results.
4) Reformative Theory:-
According to this theory, the object of punishment is to reform the criminal. This object can be achieved by convincing the futility of crime (i.e., crime doesn’t pay) and by breaking the habit that the criminal has formed of continuing crime. Reformation may be defined as "The effort to restore an offender in a society as a better and wiser man and a good citizen.”
According to this theory, the criminal is treated as a patient, and his tendency to commit a crime is a disease that the well-designed administration can cure with medicine or punishment. It treats punishment as medicine to reform the criminal. For this purpose, leniency to severe punishments is taken into consideration. This theory suggests giving some vocational training in art, craft, or industry in jail so the criminal can lead a good life and become a respectable citizen after release.
The judge should consider the character and age of the offender, his early breeding, family background, education, and environment, the circumstances under which he committed a crime, and the motive that prompted him to indulge in criminal activities, etc., while awarding the punishment. This is to acquaint the judge with the offender's nature and administer a suitable punishment to achieve the ends of justice.
In Sunil Batra V/s Delhi Administration
Facts: - A prisoner sent a letter to the Supreme Court for brutal assault by a Head Warden of the jail on another prisoner. The court treated the letter as a writ of Habeas Corpus.
Justice Krishna Iyer observed: -
The object of the punishment is to correct the wrongdoer and not wreak vengeance on him. Punishment is no longer regarded as ‘retributive’ or ‘deterrent,’ but it is regarded as reformative or ‘rehabilitative.’
Mahatma Gandhi states, “Hate the sin, but not the sinner”. The offender is treated as a patient, and punishment is to be administered to cure his disease.”
Criticisms on the following grounds are levelled against this theory, viz-
Firstly, Reformists are concerned solely with the criminal, but they do not consider the plight of the victim. Thus, if a young girl is raped, they will follow the rapist and take care of him to cause reformation in him, but what about the suffering of raped girl and her family? In short, a reformist shows sympathy for criminals but not the victim.
Secondly, the deterrent theory's importance cannot be forgotten. Reformation is an important object of punishment, but it is not the sole end in itself.
Thirdly, Reformative treatment is more likely to succeed in an educated and orderly society than in uneducated and underdeveloped communities.
Fourthly, the Reformation costs more to the state funds.
Fifthly, the success of reformative treatment is doubtful.
In conclusion, only one theory of punishment will not cause proper effect unless administered with any other or the rest of the theories.
III] Kinds of Punishments under BNS: -
Chap. II of the BNS from Ss. 4 to 8 deal with the general provisions relating to punishments. The Code has provided a graded punishment system to suit different crime categories. S. 4 provides for six types of punishments that can be awarded to a man convicted of an offence under BNS. The sixth one newly introduced in BNS, is community services, which did not exist in I.P.C. As per S. 4 of the BNS, the punishments envisaged under the BNS are-
- Death
- Imprisonment for life
- Imprisonment with or without hard work
- Forfeiture of property
- Fine
- Community Service
Out of these five kinds of punishments, the first three and the last one are related to the body of the offender, whereas the fourth and fifth are concerned with his wealth or property. A wide discretionary power is given to the courts to award any punishment within the maximum limits prescribed for an offence by the BNS. The Code BNS generally does not provide a minimum limit of punishment to be imposed but lays down the maximum limit beyond which the court cannot award punishment. Therefore, the Code provides the sentence “shall be punished with imprisonment which may extend to…. years” or “with fine which may extend to … Rupees.”
While exercising its discretion, in awarding punishment, the court shall take into consideration the nature of the offence, the circumstance in which it was committed, the degree of deliberation, the age, sex, character, and antecedent of the offender, i.e., whether he is first-time offender, or a habitual or a professional offender, etc.
In State of U P V/s M.K. Author
Facts: - The accused killed his ailing wife as he could not provide the money for her operation. He also killed his two children, as there would be no one to care for them after their mother. However, the offence was committed out of poverty and not for lust, vengeance, or gain.
The Supreme Court held that life imprisonment and not capital punishment were the appropriate sentences.
A) Death Sentence (Capital Punishment):-
1) Introduction: -
Various forms of punishment have evolved and been applied throughout the ages. Torture, sadistic forms of executing death sentences, and all sorts of cruelties in prison were the distinguishing features of the penal philosophy all over the world until recent times.
Capital punishment or the death penalty is the most debated of the above punishments, even since the time of Lord Buddha, when principles of Ahinsa were prevalent. There are arguments for and against the retention of capital punishment. There are merits as well as demerits to the retention of capital (death penalty).
2) Death (Capital) Punishment under BNS: -
The sentence of death is the most extreme punishment provided under the Code. This punishment occupies the topmost position among the grades of punishments. It is imposed in extreme and grave cases.
The BNS not only retains the offenses that attracted the death penalty under the IPC but has also introduced the death penalty as an option for several new categories of crimes, often dealing with organized violence and specific severe sexual offenses. Following are the key offences in the BNS where death is a prescribed punishment (either mandatory or alternative to life imprisonment):
1. Punishment for murder (often awarded in the 'rarest of rare' cases) (S. 103 (1).
2. Murder by Mob Lynching (S. 103 (2)). When a group of five or more persons, acting in concert, commits murder on grounds of race, caste, community, sex, place of birth, language, personal belief, or any other ground.
3. Murder by a Life Convict (S. 104) (Punishment for murder committed by a person undergoing life imprisonment)
4. Waging or Attempting to Wage War against the Government of India (S. 147).
5. Abetment of Mutiny (S. 160). Abetting mutiny, if mutiny is actually committed in consequence of that abetment.
6. Rape Resulting in Death or Persistent Vegetative State (PVS) (S. 66). Rape where the victim is left in a persistent vegetative state, or where the rape results in the death of the victim.
7. Gang Rape of a Victim Under Eighteen Years of Age (S. 70 (2)).
8. Organized Crime Resulting in Death (S. 111). Committing an act of organised crime that results in the death of any person.
9. Terrorist Act Resulting in Death (S. 113). Committing an act of terrorism that results in the death of any person.
The BNS specifically introduced the death penalty as an option for three major new or significantly amended categories i.e. Mob lynching (S. 103 (2), Organized crime (S. 111), terrorist acts (S. 113), gang rape etc (S. 70 (2).
In Mohd. Arif, Sunder, etc. v. State, etc. (Laws (SC) 2014-9-9)
The Supreme Court observed that- an extinguishment of the life of a subject by the State as a punishment for an offence is still sanctioned by law in the country. Art. 21 itself recognizes the authority of the state to deprive a person of his life. No doubt, many constitutional limits circumscribe such authority.
However, there has been great controversy for ages among judges, lawyers, administrators, and social reformists. They question the utility of death punishment. In most developed countries, death punishment has been abolished from the penal statutes. We will discuss some of the arguments for and against the retention of capital punishment.
3) Arguments in favour of Capital Punishment: -
The supporters of capital punishment base their claim on the following
arguments.
a) Deterrence: -
Prima facie, the penalty of death has a deterrent effect on prospective
offenders than any other kind of punishment.
b) Elimination of dangerous criminals: -
Death is the only punishment to eliminate dangerous and habitual criminals from society forever.
c) Reduce the expenditure of the State: -
Capital punishment reduces the unwanted increase in the number of people in jail and increases the state's expenditures at the cost of citizens.
d) Justice to Victim: -
Capital punishment by eliminating offenders assuages the victim’s family’s vengeance, thereby rendering them full justice. The recently constituted Malimath Committee on ‘Reforms of Criminal Justice System’ has also suggested the need to make the criminal justice system more victim-oriented by providing participation to them in the proceeding and giving compensation to the victim.
e) Sense of protection: -
Elimination of offenders provides a sense of protection and justice in society
f) Constitutionally valid:-
Capital punishment is held constitutionally valid by the Supreme Court in Bachan Singh V/s State of Punjab
g) Pardon or Commutation:-
S.5 of the BNS empowers the appropriate government, i.e., either Central or State, to commute the sentence of death to any other punishment in accordance with S. 474 of the BNSS. S. 474 of BNSS deals specifically with the power to commute sentences.
Commutation of Death Sentence: - A significant change is that the BNSS restricts the commutation of a Death Sentence to a sentence of Life Imprisonment alone. This is a departure from the previous law (CrPC), which allowed commutation of death sentence to any other punishment.
Appropriate Government": In cases where the sentence is a sentence of death or is for an offence against a matter to which the executive power of the Union extends, the Central Government is the appropriate government. In other cases concerning state matters, it is the State Government.
Pardon, Reprieve, Respite, Remission, and Suspension (Constitutional Powers)-
Moreover, the constitution of India invested the Presidents of India and the Governors of the states under Art. 72 and 161, respectively, with the power to grant pardon (absolute or conditional), reprieve (temporary suspension of punishment), respite (postpone punishment to a future date), remission (to reduce the amount of punishment), or suspend, remit or commute the sentence of any person convicted of any offence. These powers are purely executive in nature, and the judiciary has nothing to do with it. However, the Governor can not grant a complete pardon to a death sentence.
h) ‘Rarest of Rare case’:-
In India, capital punishment is not awarded in all offences wherein capital punishment is provided as an alternative punishment, but only in the ‘rarest of rare cases.
The rarest of the rare case doctrine evolved from the Supreme Court in Bachan Singh’s case. Therefore, in every murder case, the death penalty is not awarded. Still, only in rarest and rare cases, e.g., Aanjana Gavit’s case decided in Kolhapur, wherein the accused woman with her two daughters, having themselves women, used several children for committing pickpocketing and eventually killed them. High Court of Mumbai has recently confirmed the punishment of death for the other two female accused (Anjanabai has already died). In the recent ‘Dhananjai Chaterji’ case, capital punishment was executed on the accused, Dhananjai, who raped and killed mercilessly a teenage girl. Therefore, awarding capital punishment is not a general trend but an exception. In my view, this doctrine rather prohibits the execution of capital punishment in general cases, even though capital punishment is provided therein.
In the State of Maharashtra, V/s Haresh M. Rajput
Facts: - The accused committed brutal rape on the innocent girl of ten years. Eight serious injuries on the private part of the victim girl show extreme brutality and depravity. After such a brutal rape, the accused again, in a cruel manner, using a rope to throttle, extinguished the life of a small girl.
Held: - that it is a fit case for enhancement of life imprisonment into the death penalty
4) Arguments against Capital Punishment: -
Following are some of the arguments levelled against the retention of capital punishment, viz.
a) Cruel and Inhuman: -
Capital punishment is an inhuman type of punishment. It is the punishment by which a person's life is put to an end through the legal process. In short, capital punishment is cold-blooded legal murder. According to Baccaria, the State has no right to take life since it cannot put life.
b) No Reformation: -
Reformists stress the need to reform criminals more than to eliminate them. Capital punishment does not provide any chance of improvement for criminals.
c) Misuse: -
Justice Douglas says ‘mostly poor persons get capital punishment than richer’.
d) Cold-Blooded Legal Murder:-
According to some, capital punishment is cold-blooded legal murder.
e) According to Metaphysics:-
According to metaphysics, life in all creatures is put by God alone, and God alone has to take it out. Life cannot be taken away by any other person or body (State, etc.) other than God.
B) Imprisonment for Life: -
S. 4 of The BNS explicitly states "Imprisonment for life" as a punishment. ‘Imprisonment of life” means "imprisonment for the remainder of a person's natural life." This clarifies and reinforces the judicial interpretation of "imprisonment for life" under the previous law, establishing it as a whole-life sentence unless commuted or remitted by the appropriate government. In various sections of serious offences, the meaning of ‘imprisonment for life’ is meant imprisonment for the remainder of a person’s natural life, like certain types of gang rape or murder by a life-convict.
However, the appropriate government may commute a sentence of imprisonment for life to imprisonment for a term not less than seven years [S. 475(b) of BNSS]. Imprisonment for life is rigorous and not simple.
Calculation of Term (S. 6):
For the purpose of calculating fractions of terms of punishment, the BNS provision (similar to the old IPC) states that imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years unless otherwise provided. This is primarily for limited purposes, such as calculating sentences in default of fine or for aggregate sentences, and does not affect the "remainder of natural life" definition for the main sentence.
Offences Punishable with Life Imprisonment:
Life imprisonment is prescribed as a punishment for various serious offences like offences against the state (S. 145), murder (S. 103), murder by a life convict (S. 104), and culpable homicide (S. 105), rape (S. 64), gang rape (S. 70), repeated sexual offender (S. 71), organized crime, terrorism etc.
In number of offences and in multiple chapter under BNS, life imprisonment is prescribed punishment either as the sole sentence or as an alternative to the death penalty.
C) Imprisonment: -
S. 4 of the BNS lists the punishments to which offenders are liable. After the death penalty and imprisonment for life, the next distinct punishment is "Imprisonment," which is of two descriptions:
1) Rigorous:-
In this form of imprisonment, the offender is put to hard labour,
such as grinding, digging the earth, drawing water, etc.
2) Simple:-
In simple imprisonment, the offender is given lighter work or not
given work at all.
As per S. 7, in cases where an offence is punishable with imprisonment of either description, the Court has the power to direct that the imprisonment shall be wholly rigorous, wholly simple, or partly rigorous and partly simple.
3) Solitary Confinement (S. 11): -
It is an aggravated form of imprisonment wherein an offender is put in an isolated cell. Thus, all his contacts with the other world are severed. It is given to harsh and hardened convicts.
The court may order the person sentenced to rigorous imprisonment under the BNS to be kept in solitary confinement for a portion of the imprisonment.
However, solitary confinement shall not exceed-
i) One month, if the term of imprisonment does not exceed six months.
ii) Two months, if the term exceeds six months but does not exceed one year.
iii) Three months, if the term exceeds one year. Thus, the solitary confinement does not exceed three months in total.
Solitary imprisonment is awarded for offences committed under BNS only, but not under other ‘special’ or ‘local laws’, if not provided. It cannot be awarded where imprisonment is not part of the substantive sentence (i.e., where imprisonment is awarded in default of a fine) or where the imprisonment awarded is simple.
However, according to many criminologists, this kind of punishment is inhuman and perverse. If used in excess, it might turn a man of sound mind into a lunatic.
Limits on Execution (How it is Served) (S. 12)-
S. 12 provides the crucial rules for how the total solitary confinement (decided under S. 11) must be carried out. These limits are mandatory and designed to prevent continuous, unbroken isolation.
The limits are:
i. Maximum Duration at One Time (The 14 Day rule)-
Solitary confinement shall in no case exceed fourteen (14) days at a time.
After a period of solitary confinement ends, there must be an interval before the next period begins.
This interval must be at least as long as the period of confinement just served (e.g., 14 days in solitary must be followed by at least 14 days out of solitary).
ii. Monthly Limit for Longer Sentences (The 7-Day Rule)-
This is a special rule that applies only when the total imprisonment awarded is more than three (3) months.
In such cases, the solitary confinement shall not exceed seven (7) days in any one month of the whole imprisonment awarded.
This 7-day period must also be followed by an interval of at least 7 days.
Example:
If a person is sentenced to one year of rigorous imprisonment, the court can order a total of 3 months of solitary confinement (as per S. 11).
However, S. 12 dictates how this must be executed. The prison cannot simply place the convict in solitary confinement for 3 months straight. Instead, it must be broken up.
Because the sentence is more than 3 months, the 7-day-per-month rule applies. The convict can be kept in solitary for a maximum of 7 days in any single month of their one-year sentence, followed by an interval of at least 7 days.
D) Forfeiture of Property: -
S. 4 of the BNS explicitly lists the six types of punishments an offender can be liable for, and "Forfeiture of property" is one of them.
This punishment is applied in two primary ways:
i. As a direct punishment prescribed for specific offences. It is awarded as a part of the sentence, in addition to imprisonment or a fine. For examples committing depredation on territories of a foreign State at peace with India (S. 154), Receiving property taken by war or depredation (S. 155), Public servant unlawfully buying or bidding for property (S. 203),
ii. As a consequence of possessing the "proceeds of crime," particularly in cases of terrorism (S. 113) and organized crime (S. 111) etc.
"Forfeiture of property" is a listed punishment, it is typically applied for specific, serious offences, often linked to organized crime or offenses where property is acquired through illegal means.
Terrorism and Organized Crime: The BNS introduces specific provisions for offenses like terrorism and organized crime. Forfeiture of property is a common feature in the penal provisions for such high-level crimes, where the intent is to dismantle the economic base of criminal operations. For example, the BNS includes provisions to punish those who knowingly possess or hold property derived from a terrorist act.
It is expected to be more robustly enforced, particularly in cases involving. organized crime, Terror-related activities, Serious corruption. This measure is seen as a key strategy to not only punish the offender but also to deprive them of the illicit gains of their crime, thus acting as a major deterrent against financially motivated offenses.
E) Fine:-
The fine is a forfeiture of money by way of penalty. The court may impose a fine along with or without imprisonment. The BNS. provides fine as punishment for several offences.
Where no maximum fine limit is laid, the fine amount in such a case is unlimited. the BNS retains the principle that the fine amount is unlimited (though it should not be excessive). The levying of a fine can involve the seizure and sale of the offender's property if the fine is unpaid.
IMPRISONMENT IN DEFAULT OF FINE:-
The court can also award imprisonment in default of a fine (S. 8). In this case, imprisonment is not in lieu of a fine but in default, i.e., it is the penalty for non-payment of a fine and not a substitute punishment. Imprisonment in default of payment of a fine does not liberate an accused from his liability to pay the fine imposed upon him. Such imprisonment does not serve as a discharge of fine but is imposed as a punishment for nonpayment. Fine awarded can be recovered within six years from its award. Even his death does not discharge his liability for a fine; it can be recovered from his property afterwards.
The BNS places two main limits on the term of imprisonment in default of fine:
1. Limit based on the Maximum Sentence for the Offence.
If the offence is punishable with Imprisonment as well as Fine, the default imprisonment term cannot exceed one-fourth (1/4th) of the maximum term of imprisonment prescribed for that offence.
2. Absolute Limit based on the Fine Amount.
This limit applies when the offence is punishable with Fine Only, or Imprisonment or Fine, or when a general sentence of fine and imprisonment is given:
When the offence is punishable with a fine only, imprisonment in default of the fine shall always be simple and-
i) It shall not exceed 2 months when the fine does not exceed Rs.5000, and
ii) Shall not exceed 4 months when the fine does not exceed Rs.10,000 and
iii) Shall not exceed one years in any other case.
But when the offender is imprisoned in default of a fine and pays the fine, his remaining imprisonment (in default of the fine) shall be terminated.
Proportional Termination:
If a proportionate part of the fine is paid, the imprisonment shall also terminate, provided the time already served in jail is not less than the term proportional to the unpaid part of the fine.
Nature of Imprisonment:
The imprisonment in default of fine may be of any description (Rigorous or Simple) to which the offender might have been sentenced for the original offence.
Offences Punishable with Fine/Community Service Only:
Where an offence is punishable only with a fine or community service, the imprisonment in default of payment of the fine shall be Simple.
The principles are designed to ensure the fine is not merely a formality but a mandatory part of the punishment, while also ensuring that the default imprisonment is not disproportionate to the original crime or the fine amount.
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