PUNISHMENT

AND
THEORIES OF PUNISHMENT

SUBMITTED TO: SUBMITTED BY:

MS. HARJOT KAUR SOMESH GOYAL
LL.M 1YR
PG1899003024
 CONTENTS

S.NO. NAME OF THE PARTICULARS PAGE NO.

1 PUNISHMENT 1-3

2 THEORIES OF PUNISHMENT 3-5

3 PUNISHMENT UNDER IPC 5

4 DEATH SENTENCE UNDER IPC 5-9

5 LIFE IMPRISONMENT UNDER IPC 9-11

PUNISHMENT
What is punishment?

Why should offenders be punished?

What should be the goals of punishment?

Does the society have a right to punish?

Is infliction of punishment morally justifiable?

Does law justify punishment?

What is Punishment?

 Punishment is anything that is painful e.g. 'punishing work schedule'.

 Punishment in the context of parents or teachers disciplining children.

 Punishment refers to a sanction imposed for a criminal offense.

 It must involve an unpleasantness to the victim.

 It must be for an offense, actual or supposed.

 It must be to an offender, actual or supposed.

 It must be the work of personal agencies i.e. It must not be natural

consequence of an action.

 It must be imposed by an authority or an institution against whose rules the

offense has been committed. Otherwise, it becomes a mere hostile act.
Definition II

The legal process whereby violators of criminal law are condemned and
sanctioned in accordance with specified legal categories and procedures.

Objects of Punishment

 Protection of society and security of person's life, liberty and property – an

essential function of the state. This could be achieved through
instrumentality of criminal law by imposing appropriate sentence.

 Punishment – a crucial component of criminal law

 The object of punishment is to protect society from mischievous and

undesirable elements by deterring potential offenders, by preventing the
actual offenders from committing further offences and by reforming and
turning them into law-abiding citizens.

Why should offenders be punished?

 They deserve to be punished.

 Punishment will stop them from committing further crimes.
 Punishment tells the victim that society disapproves of the harm that he or
she has suffered.
 Punishment discourages others from doing the same thing.
 Protects society from dangerous or dishonest people.
 Punishment allows an offender to make amends for the harm he or she has
caused.
  Punishment ensures that people understand that laws are there to be obeyed.

Does the society have a right to punish?

No, the society has no right to punish the offender at any instance but that
must be imposed by the State i.e law imposing authority against whose rules such
offence has been committed.

THEORIES OF PUNISHMENT

Deterrent theory

Preventive theory

Retributive theory

Reformative theory

Utilitarian theory

1. Deterrent Theory :
The object of punishment is not only to prevent the wrongdoer from doing a
wrong a second time, but also to make him an example to others who have
criminal tendencies.

Criticism :
 › Ineffective in checking crimes

› Excessive harshness tends to defeat its purpose – drawing sympathy

› Likely to harden the criminal in stead of creating in his mind a fear of

law.

2. Preventive Theory :
The object of punishment is prevention and disablement. Offenders are
disabled from repeating the crime by awarding punishments, such as death,
exile or forfeiture of an office.

Criticism :

Undesirable effect of hardening the first offenders/ juvenile offenders by

putting them in the association of hardened criminals

3. Retributive Theory :

This theory is based on the concept 'an eye for an eye, a tooth for a tooth and a
life for a life'. The severity of the punishment should be commensurate with the
seriousness of the crime. Retributionists claim a moral link between punishment
and guilt, and see punishment as a question of responsibility or accountability.

Reflection of vindictive resentment.

Criticism :

› Punishment per se is not a remedy for the mischief committed by an

offender.
 › Punishment itself is an evil and it is justified only when it yields better
results.

4. Reformative Theory :

The object of punishment is the reformation of criminals. The result of

punishment is a change in the offender’s values so that he or she will refrain
from committing further offenses, now believing such conduct to be wrong.
Factors such as character, age, early breeding, family background, education etc
to be taken into consideration while awarding punishment (to realise the
circumstances under which the offence was committed).

Criticism :

› Prisons are not to be transformed into dwelling houses in the name of

the transformation of prisoners.

› Deterrant motive should not be abandoned.

5. Utilitarian Theory :

This theory believes the punishment is means to an end and seeks to punish the
offenders to discourage or deter future wrongdoing. Great jurist Jeremy
Bentham who was instrumental behind the utility theory said,

“The principal end of punishment is to prevent like offences. What is past is

but one act: the future is infinite. The offence already committed concerns
only a single individual; similar offences may affect all. In many cases it is
impossible to redress the evil that is done; but it is always possible to take
away the will to repeat it; for however great may be the advantage of the
offence, the evil of the punishment may be always made to out-weight it.”
PUNISHMENTS UNDER INDIAN PENAL CODE

S. 53 – 60: Different types of punishment

Death Penalty

Life Imprisonment

Imprisonment for other period (rigorous and simple)

S. 63 – 70: Imposition of fines including provisions for alternate sentences.

S. 71 -72: Nature of punishment for offences made up of several offences.

S. 73 – 74: Solitary confinement as punishment and its limits.

S. 75: Enhanced punishment for certain offences in case of offenders convicted

previously.

DEATH PENALTY UNDER IPC

1) Waging or attempting to wage war or abetting waging of war against the

Govt of India (S.121)

2) Abetting mutiny actually committed (S. 132)

3) Giving or fabricating false evidence upon which an innocent person suffers

death (S.194)

4) Murder (S.302)

5) Abetment of suicide of a minor, or insane, or intoxicated person (S. 305)

 6) Attempt to murder by a person under sentence of imprisonment for life, if
hurt is caused (S.307)

7) Kidnapping for ransom etc. (S. 364A)

8) Dacoity accompanied with murder (S.369)

Important points to be noted :

 No single offence in IPC is punishable with mandatory sentence of death.

 All the eight categories of offences are punishable with death and
alternatively with life imprisonment.

 Judges have to make a critical choice between the two.

 No guidelines with regard to imposition of capital punishment in preference

to imposition of life imprisonment.

 A wide discretion is vested with the judiciary.

 The Court has to give 'special reasons' under S. 354(3) of Code of Criminal
Procedure, 1973.

 Once the session court awards the death sentence, then the court has to
submit it to the high court for confirmation (second level of review) – S. 366
CrPC

 The high court may confirm the sentence or pass any other sentence
warranted by law or annul the conviction.
Constitutional Validity of Death Sentence

The constitutional validity of the death penalty was challenged from time to
time in numerous cases starting from Jagmohan Singh v. State of
U.P where the SC rejected the argument that the death penalty is the
violation of the “right to life” which is guaranteed under article 19 of the
Indian constitution. In another case Rajendra Prasad v. State of UP,
Justice Krishna Iyer has empathetically stressed that death penalty is
violative of articles 14, 19 and 21. But
a year later in the landmark case of Bachan Singh v. State
of Punjab, by a majority of 4 to 1 (Bhagwati J.) dissenting the
Supreme Court overruled its earlier decision in Rajendra Prasad. It
expressed the view that death penalty, as an alternative punishment for
murder is not unreasonable and hence not violative of articles 14, 19 and
21 of the Constitution of India, because the “public order” contemplated
by clauses (2) to (4) of
Article 19 is different from “law and order” and also enunciated the p
rinciple of awarding death penalty only in the ‘rarest of rare cases’. The
Supreme Court in Machhi Singh v State of Punjab laid down the broad
outlines of the circumstances when death sentence should be imposed.

Bachan Singh v. State of Punjab AIR 1980 SC 898

The death penalty provided under S. 302 read with s. 354(3) of CrPC is
unconstitutional and void as being violative of Articles 14 & 21. Death
penalty does not serve any social purpose or advance any constitutional
 value & is totally arbitrary and unreasonable...only in the rarest of rare cases,
death penalty is to be imposed.

Life imprisonment is the rule and death penalty is an exception

Machchi Singh v. State of Punjab AIR 1983 SC 957 (Guidelines for

determininng rarest of rare cases)

 Manner of commission of murder

 Motive for commission of murder
 Anti-social or socially abhorrent nature of crime
 Magnitude of crime
 Personality of victim of murder

Similarly in various other cases the Supreme Court has given its views on death
penalty and on its constitutional validity. But the punishment of death penalty is
still used in India, some time back the death penalty was given to Mohammad
Ajmal Kasab. The Pakistani gunman convicted in 2008 Mumbai attacks was
sentenced to death by hanging and after a long discussion, politics and debate was
finally hanged on 21 November 2012. Next in the row is Afzal Guru, convicted
in 2001 Parliamentary attacks was also hanged after a huge political discussion on
9 February 2013.The next convict in the death row is Devendra Pal Singh
Bhullar, convict of 1993 car bombing will be hanged in the coming days as his
mercy petition was rejected by the Supreme Court by holding that in terror crime
cases pleas of delay in execution of death sentence cannot be a mitigating factor.
LIFE IMPRISONMENT IN INDIA

Life imprisonment implies a jail term for the convict’s entire life, the
Supreme Court has held, clearing a misconception on this sentence. The
apex court also said that its Constitution bench’s landmark judgement of
1980 on criterion for imposing death penalty needs a “fresh look” as there
has been “no uniformity” in following its principles on what constitutes “the
rarest of rare” cases. It appears to us there is a misconception that a prisoner
serving a life sentence has an indefeasible right to be released on completion
of either fourteen years or twenty years imprisonment. The prisoner has no
such right.

“A convict undergoing life imprisonment is expected to remain in custody

till the end of his life, subject to any remission granted by the appropriate
government,” a bench of Justices K.S. Radhakrishnan and Madan B. Lokur
said.

The bench, however, clarified that under remission the appropriate

government cannot reduce the period of sentence less than 14 years for a
life convict.

Life imprisonment where death has been commuted to life sentence has to
be served for the entire life of the convicted but subject to remission; a
minimum of 14 years must be spent in imprisonment. Various precedents
have been set regarding this substantial point of law.

Life imprisonment when death sentence has been commuted to sentence of

life, in its literal meaning is equivalent to imprisonment till life ends but
under various statutes its literal meaning is defeated.
Life imprisonment when death sentence has been commuted to sentence of
life, in its literal meaning is equivalent to imprisonment till life ends but
under various statutes its literal meaning is defeated.

“In the case of a convict undergoing life imprisonment, he will be in custody

for an indeterminate period. Therefore, remissions earned by or awarded to
such a life convict are only notional. In his case, to reduce the period of
incarceration, a specific order under Section 432 of the CrPC will have to
be passed by the appropriate government. However, the reduced period
cannot be less than 14 years as per Section 433-A of the CrPC”

(The Hindu November 25, 2012 )