History of Punishment

History of Punishment | Overview

• Introduction
• Ancient Penal Law
• Hindu Law
• Muslim Law
• Development of Punishment Before And After Prisons Were Built
• Capital Punishment

This article titled “History of Punishment” provides an insight into the development of punishments for every criminal activity. The concept of punishment is based on the principle of lex talionis which means “the law of retaliation, whereby a punishment resembles the offence committed in kind and degree”.

Introduction

Humankind is governed by punishments for every criminal activity as it serves and meets the ends of justice. A lawful society is a condition wherein all the individuals, who are innately independent, can stay united to serve the purpose of humanity. Thereafter the concept of social contract theory was evolved which enjoined the members of society to give away a certain portion of their liberty to the one sovereign who was the lawful administrator.

The sovereign being the lawful administrator would render protection to the individual. However, the pledging of one’s rights or liberties with one entity was not sufficient to protect an individual from the usurpation of his rights as there will still exist human elements that will make an attempt to take not only take away their portion of rights and liberties but also transgress the masses’.

It was necessary to avert such human elements from thrusting the society back to the chaos. This was the reason why the concept of punishments developed and every wrongdoing was clamped with penalties.

The concept of punishment is based on the principle of lex talionis which means “the law of retaliation, whereby a punishment resembles the offence committed in kind and degree”.

An opportunity was provided to the victim or their family members to retaliate against the person(s) who have committed the offence and at times this was more like a responsibility than a right. This was the inception of the early legal system which gave rise to the common law that was useful in deriving the American criminal law.

Primarily there exist the following theories to contribute to the awarding of punishment to preserve an orderly society and those are provided hereunder:

• Retributive

The sole purpose behind punishing a person is to recompense from him the wrong he has committed or in other words because he deserves to be admonished. Retribution is revenge for an injury.

Hewgal says: “Punishment is only the manifestation of crime, the second half of which is necessarily presupposed in the first, retribution is the turning back of crime against itself. Philosophers from Socrates to Hobbes have questioned whether the infliction of evil upon anyone can ever be is itself good.”

• Reformative

This theory contemplates to bring about a reformation in the accused either while serving the punishment or by the punishment itself.

Salmond observes that “The purely reformative theory admits only such forms of punishment as being subservient to the education and discipline of the criminal, and rejects all those which are profitable only as a deterrent or disabling. Death is in this view no fitting penalty; we must cure our criminals, not kill them.”

• Utilitarian

this theory envisages that awarding punishment would be helpful in discouraging or deterring any prospective offence. This theory conceptualizes a harmonious society where the legal system is installed to administer punishment to ensure that any such offence can be prevented.

It contemplates a society which awards punishment that is commensurate to the offender’s criminal actions and no more than that.

• Preventive

Restraining the criminals from continuing or pursuing their criminal activities is necessary and that is why the need for physical restraint becomes very important. It seeks to prevent the offenders to commit a repetitive offence by imposing graver punishments.

• Expiation

The convicted person is made to atone for the crime he has committed by inflicting suffering.

• Denunciation

Societal condemnation acts as a deterrent for every delinquent. According to Lord Denning, “the ultimate justification of any punishment is not that it is a deterrent but there is the emphatic denunciation by the community of a crime. The truth is that some crimes are so outrageous that society consists of adequate punishment because the wrong-doers deserve it.”

I. Ancient Penal Law

Hindu Law

Dharma Sastras were the primary source to run both the criminal and civil administration under the ancient Hindu kings.

Law as a subject in Hindu law was envisaged to be discussed under eighteen categories and those are – bailment, gift, defamation, sales, breaches of contract, damage to goods, non-payment of debt, the trespass of cattle, bodily injuries, assault, partition and dispute between partners. Furthermore, Manu’s code also gives cognisance to violence to body, assault, robbery, adultery, defamation and theft as criminal offences. The practice of giving monetary compensation was prevalent in ancient India.

During the 1770s, Warren Hastings, who was the then Governor-General of India instructed the development of “Gentoo code” which is a compilation by the pundits of Banaras. This code awarded death sentence for the offence of murder.

Additionally, the code was similar to the Roman law on account of providing different punishments for concealed theft and open theft. For instance, the former was awarded corporeal punishment and the latter was reprimanded with just fine, both on the discretion of the judge. The death penalty was awarded for the offenders of robbery and housebreaking. Another peculiarity with respect to the imposition of punishments is that the women and Brahman were exempted from capital punishments.

The Travancore State Penal Code contained the aforementioned provision. There were three broad principles followed until the development of the Indian Penal Code:

• Tazeer – discretionary punishment
• Hadd – penalties
• Diyut – blood money

Muslim Law

According to the Mohammedan Penal Code, punishment can be divided into four principles:

1.Kisas

Basically this principle follows the idea of retaliation i.e. a life for a life and a limb for a limb. Generally, this punishment was awarded for the crimes against a person or otherwise called ‘Jinayat’. It was confined to crimes such as wounding, wilful homicide and maiming.

2. Diyut

this referred to blood money for the compensation for blood in cases of offences like homicide and was usually given as an alternative to Kisas. Furthermore, in cases of involuntary homicide and erroneous homicide, the punishment awarded to the offenders was the penalty of expiation and revocation of inheritance.

3. Hadd

These are certain penalties fixed with reference to meet the ends of justice and maintain law and order in the society. Under Hadd, the quality and quantity of punishment awarded remained fixed and could not be changed. So, the Qadi could not exercise their discretion in case of sentencing an accused and had to award the punishment as prescribed under Hadd.

Generally, Hadd was imposed for crimes such as illicit sexual intercourse or adultery, false accusation, high way robbery and theft. Additionally, the punishment prescribed for both the men and women was the same when situated in the same circumstances. However, due to illness and pregnancy execution of a sentence was ordered to be suspended or postponed until she recovers from labour.

4. Siyasa and Tazir

Both of them refer to exemplary punishment or discretionary punishment respectively. The judge had the discretion to decide the amount and kind of punishment to be awarded. Under the category of Tazir the punishment could vary from banishment to imprisonment.

Discretionary punishment has been elaborated in the preamble to regulation 53, 1803, as follows: “The Mohammedan law vests in the sovereign and his delegates, the power of sentencing criminals to suffer discretionary punishment1 in three cases.

First, in the cases of offences for which no specific penalty of Hadd or kisas has been provided by the law;

Secondly, for crimes within the specific provisions of Hadd and Kisas, when the proof of the commission of such crimes may not be such as the law requires for a judgment of the specific penalties.

Thirdly, for heinous crimes in high degree injury to society and particularly for repeated offences of this description, which, for the ends of public justice may appear to require exemplary punishment beyond the prescribed penalties; with respect to crimes of this description an unlimited discretion extending to capital punishment is admitted to have been left by the Mohammedan law to the sovereign authority of every country in which that law prevails as well as to its judicial delegates.”

Punishment has been defined by Sutherland as a retributive action which must constitute of two essential ideas and those are:

• A group of individuals in their corporate capacity can inflict it
• This retributive action must result in pain or suffering and must be justified at the end

According to Walter C Reckless, punishment can be said to be a means of social control. Therefore, by such a means of social control a group endeavours to redress the violation of the law, an injury, breach of custom, an offence or a wrong. An erring individual is induced to conform to the rules of society by applying sanctions.

According to Grunhut, punishment should be reasonable and for that three components must be present:

• Expeditious investigation in order to render a fair punishment
• After the completion of punishment, the offender must be transformed and capable enough to start afresh
• State which imposes the punishment must foster superior values

The author of the book, “On crimes and punishment”, Cesare Beccaria has written, “no lasting advantage is to be hoped for from political morality if it is not founded upon the ineradicable feelings of mankind. Any law that deviates from these will inevitably encounter a resistance that is certain to prevail over it in the end.

In the same way that any force, however small, if continuously applied, is bound to overcome the most violent motion that can be imparted to a body.” He meant that in order to safeguard the society from the occurrence of upheaval human parted a share of their personal liberty.

II. Development of Punishment Before And After Prisons Were Built

The construction of a prison for the confinement of an accused was an important step since prior to that the majority of the criminals were either levied with fines, public humiliation, execution or banished to another community. Therefore the idea of prison was envisaged as an institution which could transform the offenders by the help of isolation, discipline and hard labour. Primarily this new reform was viewed as a humane alternative to the infliction of brutality and pain to ensure compliance with the law.

After the development of prisons became prevalent, the ancient period of India saw various kinds of punishment being awarded to the offenders. Out of all the punishments the death sentence was imposed on offenders who committed the most brutal crimes.

It was only during the British era when the punishment of transportation arose. Nevertheless, during the time of Kautilya, the author of Arthasastra, different types of punishments were developed by him to be imposed in accordance with religion, caste and status in society.

Capital Punishment

It is the punishment wherein the accused is executed to death after he has been found to be guilty of a criminal offence in accordance with the appropriate legal process. The imposition of the death penalty is a debatable topic and is agitated in a lot of nations currently. However, U.K has retained it in its legal system to redress the following cases:

• High treason[1]
• Murder during or of – shooting or causing explosion, a public servant on duty, theft, while resisting lawful arrest, a party to murder.
• Setting ablaze her majesty’s stores, ships, etc[2]
• Committing piracy with violence[3]

In contemporary India, death sentences are only reserved for the rarest of rare case. However, there is no guideline or structure to define these “rarest of rare” cases. Further, the 35^th Law Commission report said, “having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population, and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”[4]

• Imprisonment

This is a punishment wherein the accused is confined in a penitentiary. Hawk said that, “It seems clear that any place, whatsoever, wherein a person under a lawful arrest for a supposed crime is restrained of his liberty, whether stocks at the street, or in the common goal, or in the house of a constable or private person, or the prison of the ordinary is properly a prison within the statute; for imprisonment is nothing else but a restraint of liberty.”[5]

Imprisonment was barely known during the primitive age and became a major part of the legal system only in the 19^th century and 20^th century. The framers of the India Penal Code even envisaged two kinds of imprisonment i.e.-

• Rigorous
• Simple

Lord Cornwallis had envisioned the removal of mutilation as a punishment which was finally abolished by the Govt in the year 1791. Thereafter, convicts who were sentenced to lose two limbs were sentenced for 14 years in prison and concurrently those who had to lose one were sentenced for 7 years in prison.

• Mutilation

It was only after the invasion by the British in India that ‘mutilation’ as a punishment was introduced in the Indian legal system. However, if we see the setbacks of this punishment in an effort to serve justice it diminishes the utility of the accused for the State. Furthermore, this punishment does not provide the accused with an opportunity to reform themselves and therefore could cost a person’s entire life if wrongfully convicted. This was the major reason why the English rulers themselves abolished this punishment.

• Banishment

Exile or banishment were the prevalent forms of punishments sanctioned during the ancient and medieval India to administer justice and law. It also found a place in the Indian Penal Code before being removed and was primarily imposed for the commission of following kinds of crimes:

• Waging war against the ruler
• Sedition
• Unauthorised residence in British India

Another similar punishment was transportation for life which meant transportation beyond seas. Commonly the prisoners in India were sent to the islands of Andaman. But, the English legal system removed ‘transportation’ as punishment long back in 1854 and in India, it was abolished in 1955.

• Levying of penalty

The imposition of fine or penalty has been prevalent since the inception of the tribal system in the civilisation. In the case of Ashok Kumar vs. State,[6] the Apex court had opined that “payment of fine brings home the sense of responsibility in a surer fashion than even short terms of imprisonment in some case.” The Indian Penal Code and several other Indian statutes have affixed levying of fine as an alternative as well to the main punishment.

The Law Commission has nonetheless provided a caveat to the judges to impose a proportionate penalty since it affects the dependants of the accused along with him. Therefore the Apex court in the current times has to take cognisance of the pecuniary status of the offender with respect to the brutality and character of the offence committed by him. Additionally, it must be noted that forfeiture of money is allied to sentencing a person by fining him.[7]

• Forfeiture of Property

Forfeiture of the property has been provided by the Indian Penal Code and it was even prevalent in ancient India. However, the Indian Penal Code (Amendment) Act, 1921 repealed Section 61 and 62 which imposed the punishment awarding for forfeiture of property. Yet, there exist certain provisions in the current IPC which provide for forfeiture of property as a punishment:

• Section 126 – Committing depredation on territories of Power at peace with the Govt of India
• Section 127 – Receiving property taken by war or depredation mentioned in Sec.125 and 126 of I.P.C.
• Section 169 – Public servant unlawfully buying or bidding for a property

Post-independence, the Constitution of India with its Fundamental Rights and Directive Principles of State Policy provided a new direction to law reforms and alongside geared to the needs of democratic legal order in a plural society. The major kinds of punishments that can be awarded by the Indian Penal Code are:

• Rigorous imprisonment
• Simple imprisonment
• Death penalty
• Fine
• Forfeiture of property

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[1] Treason Act, 1814, S.1 and S.2

[2] Dockyards Protection Act, 1772

[3] Piracy Act, 1837, Sec.2

[4] Law Commission, The Death Penalty, (Law Com No 35, 2015) <http://lawcommissionofindia.nic.in/reports/report262.pdf>

[5] Hawk, P.C. 18, S. 4

[6] [1980] 2 SCC 20

[7] Tandon M.P. Indian Penal Code, Central Law Agency 4th Edn. 1992

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