THEORIES OF PUNISHMENT UNDER CRIMINAL LAW

Author-Nighilkumar M, Government Law College, Dharmapuri

INTRODUCTION

There is no specific definition of crime and punishment in Indian laws. the act or omission when contrary to law is crime that is punishable. but there is specific definition about offence and punishment in India Penal Code, 1860 and also Bharatiya Nyaya Sanhita,2023. Every crime has punishable by law. The crime and punishment are changing as by the trend, that changes are now, the theories of punishment. let us know the changes of punishment by its period.

Keywords: punishment, criminal law, theories of punishment, Indian penal code, bharatiya nyaya sanhita.

Definition of punishment

     In generally, the punishment is giving to the accused for committed the crime. Indian Penal Code denotes that certain amount of punishment for certain offence by different section. but there is no definition of punishment in any law even in Indian Penal Code. Under section 53 of that code says about types of punishment to be punished by the law to the accused. According to that section there are 5 types of punishment such as, death, imprisonment for life, rigorous imprisonment and simple imprisonment, forfeiture of property, fine. No other punishment shall be given other than this code otherwise any specified law provided.

OBJECT OF PUNISHMENT

            The object of punishment is correction of wrongdoer not vengeance on criminal. In India strictly follows the theory of reformative for reform the criminal. Purpose of this punishment is the wrongdoer realise his mistake to correct himself by the theory of reformative and also realise that the wrong-doing is not harmful for the society or the victim and also himself on his future. By this kind of punishment, he realises his wrong-doing in his period of punishment and after released, he comes to the society as a respective person.

Historical Background / Evolution

  • ANCIENT PERIOD

In the Ancient period, the ‘Rex non potest peccare’ principle was followed which means, king can do no wrong. In that period, there is no codified law. king order to do or not to do. there is an oral order not in written and all people were obeying the king’s order.

(a) kings can order that killing someone for his crime. that crime even has small offence. if the king ordered, people could be done. there is no appeal, no written judgment and no laws.

(b) king can order that move him to another place. In other words, putting something aside from the village.

(c) any order to be made by the king even it is not justifiable.

  • MODERN PERIOD

In the Modern period, the “Rule of Law” principle is followed which means No one is above the law. king may do wrong. Only the law can do no wrong. In this period, the laws are written. Even king may do wrong and king can be punished by law. Here is no oral order, order should be written. punishment is defined under the provision of Indian Penal Code.

THEORIES OF PUNISHMENT

There are various theories of punishment followed in India in different period as follows:-

  1. Retributive theory
  2. Deterrent theory
  3. Preventive theory
  4. Reformative theory

Dr. Jacob George v. State of Kerala [1]

In this case, the Supreme Court Stated that the purpose of punishment is four-fold. one is retribution for vengeance, another is preventive which is prevent the crime, further is deterrence which gives punishment and furthermore is reformative which is reform the criminals.

RETRIBUTIVE THEORY

     Retributive theory is saying that what the perpetrator done to the victim is equally done the same to the perpetrator too. it also known as ‘theory of vengeance’. This theory is based on the doctrine lex talionis which means an eye for an eye, tooth for tooth. In literal meaning, “You hurt me and I will hurt you”. This kind of punishment is oldest and most ancient justification for punishment.  Retribution means basically that the wrong-doer pays for his wrong-doing. In different way of interpretation may be said that the criminal has by bis crime incurred a debt due to law, and therefore, by suffering punishment he pays it back, dissolving the legal bond forged by his crime. In this moder era, retributive punishment cannot be justification for punishment in this modern society. Punishment is regulated by legislation fixing the punishment and executed by the judges and magistrates.

DETERRENT THEORY

In ordinary meaning of this theory, ‘deterrent’ means abstain from wrong-doing. Object of this theory is restraining the criminal from committing the crime or same in future. This theory explains control the crime by creating the fear of crime before the offender committing the offence. This theory gives us the fear to commit wrong-doing by imposing the punishment. For Example, ‘A’ is committed such offence and punished such imprisonment. People will stop committing such crime because of fear of punishment of ‘A’. Moreover, this theory does not only punish the offender for his crime but also not to commit the offence again. There are two types of deterrents as, specific deterrence and general deterrence.

State of Karnataka v. Sharnappa Basangouda Aregoudar [2]

“The sentence imposed by the court should act as a deterrent on potential offenders and should be commensurate with the seriousness of the crime”

PREVENTIVE THEORY

     In literal sense, ‘prevent’ means intercept, hinder, frustrate, thwart from happen which means to stop in advance some act. In other way to express about this theory, proverb says that prevention is better than cure.  This theory tries to stop the crime and also prevent him to reoffending. If a person disqualified from driving, it prevented from committing the traffic offences.

Preventive theory has two kinds, one is temporary preventive and another one is permanent preventive. temporary preventive means preventive measure is only for such period, i.e., certain amount of fine, certain period of imprisonment. permanent preventive means is unlimited disablement, i.e., life imprisonment, death penalty.

REFORMATIVE THEORY

Reformation is defined as “the effort to a man to society as a better and wiser man and a good citizen”[3]

Reformative theory seeks to better the criminal, by removing his errors, faults and defects and maintains that punishment is curative.

A crime is a disease and to remove the disease medicine like fine, imprisonment. This theory aims at the actual offender and all legal system are surely moving towards a reformative paradigm.

Shanti Lal Meena v. State (NCT of Delhi)[4]

Supreme Court observed in this case that in cases of corruption and swindling of public money, there is no serious scope for reformation of public servants as the moment they are convicted they lose their job.

Therefore, there is no significance to the theory of reformation and only relevant object of punishment in such cases is denunciation and deterrence.

Types / Kinds of punishment

There are five kinds of punishment under Section 53 of Indian Penal Code, 1860

  1. Death Sentence,
  2. Sentence of Life Imprisonment,
  3. Sentence of a term of imprisonment which may be either simple or rigorous,
  4. forfeiture of property and
  5. fine.

Legal Provisions in IPC & BNS

In Indian Penal Code, Section 53 says about Punishments,

“53. Punishments. – The punishments to which offenders are liable under the provisions of this code are, –

  First. – Death;

  Secondly. – Imprisonnment for life;

  Thirdly. – [Repealed by Act 17 of 1949, S. 2];

  Fourthly. – Imprisonment, which is of two descriptions, namely: –

  • Rigorous, that is, with hard labour;
  • Simple;

  Fifthly. – Forfeiture of property;

  Sixthly. – Fine.” [5]

In Section 4 of Bharatiya Nyaya Sanhit, 2023 says about the punishment as,

“4. Punishments. – The punishments to which offenders are liable under the provisions of this Sanhita are—

(a) Death;

(b) Imprisonment for life, that is to say, imprisonment for remainder of a person’s natural life;

(c) Imprisonment, which is of two descriptions, namely: —

   (1) Rigorous, that is, with hard labour;

   (2) Simple;

(d) Forfeiture of property;

(e) Fine;

(f) Community Service.” [6]

These provisions are mentioned above about the punishment. but, Indian Penal Code,1860 is replaced by the Bharatiya Nyaya Sanhita, 2023. After the date 1st July, 2024 Indian Penal Code will be repealed and Bharatiya Nyaya Sanhita will be replaced and enforced. that’s why here we discuss both provisions. In addition, another punishment is included in Bharatiya Nyaya Sanhita is community service which is not in Indian Penal Code.

Amendments / Repealing

     In Section 53 of Indian Penal Code has a repealing clause that the third punishment is transportation which was repealed by Act 17 of 1949. But after the moth of July, 2024 the whole Indian Penal Code, 1860 will be repealed and replaced by the Bharatiya Nyaya Sanhita, 2023.  Because of oldest code which was enacted by the British legistation and made such modification in that code for this modern era.

Future Implications

     the society is change in each day by day but, the laws are not modified in day by day. It is not possible to change the laws by up-to-date. But we can change the laws in between certain period. Indian Penal Code is enacted in the British period. This code does not suitable for this modern period. So, we have to need a new code for this modern era. that’s why today Bharatiya Nyaya Sanhita will be enacted and will enforce.  

CONCLUSION & COMMENTS

A penal statute is necessary for a republic country. People make wrong and law correct them by the penal statute. The theories of punishment are nothing but the history of punishment, procedure or manner for punishment.

REFERENCES

  1. Books / Commentaries / Journals Referred
    1. The Indian Penal Code – Ratanlal & Dhirajlal
    2. Indian Penal Code – B.M. Gandhi
    3. Indian Penal Code – S.N. Misra
  2. Online Articles / Sources Referred
    1. indiacode.nic.in
    2. scconline.com
    3. mha.gov.in
    4. prsindia.org
    5. lawtimesjournal.in
    6. indiankanoon.org
  3. Cases Referred
    1. Jacob George v. State of Kerala, 1994 Cr.L.J. 3851 SC.
    2. State of Karnataka v. Sharnappa Basangouda Aregoudar AIR 2002 SC 1529.
    3. Shanti Lal Meena v. State (NCT of Delhi), (2015) 6 SCC 185.
  1. Statutes Referred

India Penal Code, 1860

Bharatiya Nyaya Sanhita, 2023.

Endnotes

[1] Dr.Jacob George v. State of Kerala, 1994 Cr.L.J. 3851 SC.

[2] State of Karnataka v. Sharnappa Basangouda Aregoudar AIR 2002 SC 1529.

[3] Prison Commissioners Report, 1912, p.24.

[4] Shanti Lal Meena v. State (NCT of Delhi), (2015) 6 SCC 185.?

[5] Indian Penal Code,1860, S.53.

[6] Bharatiya Nyaya Sanhita, 2023, S.4