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EVOLUTION OF PENAL PROVISION IN INDIA AND COMPARISON WITH FOREIGN LAND

Updated: May 4

Author: Gautam Kumar, II Year of B.A.,LL.B(Hons) from ICFAI Law School, Hyderabad.

Co-author: Pritam Kumar, I year of B.A.,LL.B(Hons) from National University of Study & Research in Law, Ranchi.


Introduction

Each society that exists has its way to control its members. The maintenance of peace and order is essential in every society for human beings to live peacefully and without fear of injury to their lives, property and limbs. And for achieving the height of peaceful living there essentially has to be an effective mechanism of social control, maybe in the form of penal law where sanctions on the face of punishment must be present to deter the violators.


Definition of punishment: different jurist have defined punishment in many ways like:


Bean: Punishment, seen through the lens of a sanction, is imposed on an individual for a criminal offence.

Kelsen: sanction is socially organised consisting of deprivation of possession, life, liberty, freedom, and property.


Punishment must have the following features.

  • Punishment must be unpleasant.

  • It must deprive a certain normal right of the violator.

  • It must applied by the system/authority who has formed the law or who has authorised any authority to undertake such punishment.


Theories of Punishment existed

Some of the theories of punishment which were widely prevalent across the globe:


  • Retributive theory: Theory of retribution justifies the punishment as equivalent punishment, where it states that if a person kills somebody, then he must be killed. In return, if a person breaks a bone of another by giving a blow to the person, then in return he must be given a blow to break the bone and likewise. Retributive theory is usually termed as the punishment of eye for eye, tooth for tooth, life for life etc.


  • Deterrence theory: Geremy Bentham, a great Jurist, says that deterrence theory has a major objective to establish fear in the minds of people so that they may not commit any offence.


  • Rehabilitation theory: This is a theory where criminals are made enough to get back the society and lead a happy and normal life. Today’s beliefs are that it is possible to reform the criminal mentality and criminals should be reformed in desired ways.


  • Reformative theory: the idea of the reformative theory is hypothesis, as per this hypothesis, the object of discipline ought to be the change of the crook through the strategy for individualization. This type of punishment being followed in India with the goal to change the crooks as opposed to rebuffing them isn’t that compelling in avoidance of the event of the violations in India. The essential idea of law isn’t to be static, but to be dynamic in nature.


  • Incapacitation theory: It means to prevent the offence by punishing, so that the future generation fears to commit the criminal act. For example, if thief’s hands are cut off, it takes the person out of the capacity of committing the offence.


  • Reintegration theory: In this type of theory, prisoners are given opportunities in different ways like offering jobs, allowing them to carry out any occupation in day time and then return to the jail at night, these activities are usually done to re-unite those people to the society. This type of punishment may substantially bring transformation in criminal natality and those transformant people proved to be an asset for the society.


  • Expiation theory: Here a person suffers in order to repent for the offence. Person get rid of criminal mentality by undertaking rigorous activities. Penance is the way of Expiation theory.


  • Preventive theory: Preventive theory seeks to prevent prospective crimes by disabling the criminals. The main objective of the preventive theory is to either transform the criminal permanently or temporarily. Some of the important ways through which transformation is brought in criminals are as follows: by creating the fear of punishment. By disabling the criminals permanently or temporarily by way of reformation or making them a sober citizen of the society.


Origin and Development

Punishment existed for eternity.

Ancient period (Hindu Law): In ancient period, punishment was viewed as a reformative mechanism, like in those days, kings of the state had exclusive right to dispense justice to the people and administer punishment to those who are violators of the common law of the land. It was believed that punishment removes impurities from individuals and leads the person to stand in the same position where he was before the commission of the offence.


Leading law codes of ancient India like: Arthasastra, Manu-smriti and Yajnavalakya samirity are the complete code of law where both criminal and civil laws are included.


Punishments recognised by Manu-smriti are as follows:

  • Censure.

  • Rebuke.

  • Corporal punishment like imprisonment, banishment, mutation and death.

  • Fine and fortified property.


Mohammedan Criminal law: After the establishment of Mughal rule over the major parts of India, Mohammedan criminal law substituted the ancient Hindu law. Mohammedan criminal law originated in the Holy Quran followed by Hadis, then Ijma and then Qiyas. As per Mohammedan Criminal Law, punishments were classified into several classes, they are:


1.Qias: These are retaliation form of punishment like if a person has killed somebody then in return he must be killed if one hurt somebody then in return he must be hurt with same object and like-wise.


2.Diyut: It is blood money, where offences can be substituted by money.


3.Hud: It is a specific penalties for offences like theft, robbery etc.

Tazeer: It is a discretionary punishment, punishment is given in the discretion of the judge, Tazeer is usually awarded for pity issues or offences.


Modern Criminal Law: in the year 1773, major attempts took place through the Regulation Act, 1773.


New courts were set up and, under the supervision of Lord Cornwallis major judicial regulation in the year 1793 took place. Finally in year 1834 a law commission under the supervision of Macaulay was set up to draft a penal law. In the year 1857 penal law code was assented by the Governor-General of India.


Section 53 of Indian Penal code 1860 defines Punishment.


The punishment to which offenders are liable under the provisions of this code is.

  • Death.

  • Imprisonment of life.

  • Imprisonment, which is of two descriptions, namely: rigorous, that is hard labour, simple imprisonment.

  • Forfeiture of property.

  • Fine.


Tracing back to the list of theories of punishment which were prevalent across the globe, Mahatma Gandhi advocated a Reformative theory of punishment. He said that “hate the Sin, not the sinner".


According to him, offenders should not be seen as a person who has committed an offence and needs to be punished but as a person who has come to prison with a criminal mentality which needs to be changed in order to make him an asset for the society.


Comparison with a foreign nation

Different thoughts of the countries across the globe have reacted differently on the issue of death penalty. Some favours while some do not. As per the Office of the United Nations High Commissioner for Human Rights, there are more than 160 countries with varieties of legal system, traditions, culture, living style etc. Amongst the listed countries in UN have either abolished the Death Sentence or do not practise it. But the other side of the pictures says that there still exist countries like China, Iran, Saudia Arabia, Vietnam etc. Who practices death penalty. Similar line goes with India too, it has also not abolished the punishment of death sentence but has introduced the doctrine of the rarest of the rare. Now the question arises: why are we talking about the abolishment of death sentence when it was present in our society from long ago? How is death sentence linked with Human Rights when these violators have taken someone’s life? Answering the questions posed above: Tim Kane says that “life is sacred”. Although the death penalty existed long ago, but now with the change of time, development of society and looking at the dynamic characteristics of law, judges are of the view that it should be abolished.


In the case of Bachan Singh v. state of Punjab, there has been a huge debate around the world over the use of Death Penalty. The major issues were whether Capital Punishment should exist or not? Whether Section 302 of IPC 1860 is constitutional or not when Article 21 of the Indian constitution provides every citizens “protection of life and personal liberty”. Major questions before the judges, which:


Do criminals who commit heinous crimes cease to apply Article 21 of the Indian constitution that is right to life?


By not punishing the criminals, do judiciary devalue the life of persons on whom these criminals have committed a heinous offence like rape, murder etc?


If death punishment is abolished, then what about justice to those who have lost their life because of the heinous act of these criminals?


Then the doctrine of the rarest of the rare was propounded by the Indian judiciary, it was held that a real and abiding concern for the dignity of human life postulates resistance to taking a life through laws instrumentality that ought not to be done except in the rarest of the rare cases where the alternative option is unquestionably foreclosed.


Conclusion

Penalisation is essential for every society to maintain law and order in the society. In order to live peacefully, without fear of injury to their lives, limbs and property, Penal law has to be effective and strong enough to deal with the violators of the Law. We know nothing is permanent but change, so, now time demands for a change in the attitude of society towards the offenders.


The father of the Nation, M.K. Gandhi, also advocated the Reformative Theory of Punishment. The office of the United Nation High Commissioner for Human Rights have declared that more than 160 countries have either abolished the death sentence or do not Practise the same. Author is of the view that absolute abolition of death penalty is not a solution. Instead, instead of the same alternative, there can be a better one, that is a doctrine of the Rarest of the Rare which is followed in India.