2 YEARS LLM GROUP 3 PAPER IV NOTES

PENOLOGY: TREATMENT OF OFFENDERS (1ST UNIT)

1.1 Concept of penology:
The term “penology” was first coined in 1838 by Francis Lieber, the American
political scientist, who used it to describe the new science of prisons and
punishments that was emerging at that time (Lieber. F., 1838). It is ordinarily
understood as the study of punishment and attempts to understand and evaluate the
complex legal, sociological and also emotive issues that are raised when we think
about punishment. Punishment on the other hand is the sanction imposed on a person
for infringement of the rules of society (Clarkson, C.M.V., & Keating, H.M., 1995).
The primary purpose of punishment is of social control. Austin considered sanction
as an essential ingredient of law and it is only through sanction that obedience to law
can be secured. The term punishment is defined as, "pain, suffering, loss,
confinement or other penalty inflicted on a person for an offence by the authority to
which the offender is subjected to" (Alexander, J. P., 1922-23). Penological thoughts
mainly surround punishment, for instance Durkheim (1947) talks about punishment
as a means of repairing "the wounds made upon the collective sentiments". Penology
also focuses on the different theories of punishment that rationalizes the different
aims of punishment, such as retribution or deterrence or incapacitation or
reformation.
Traditionally the term „penology‟ has been used to detail the academic study of
penal institutions (in the most part, prisons). Penology, like criminology, has drawn
from diverse range of academic traditions; from psychology, medicine and
economics through to social sciences. Criminology is primarily concerned with the
study of crime causation and reasons and methods of criminalization and its effects.
In the long run, "penology" came to be swallowed up by "criminology", a term
invented about fifty years later (Bierne, P. 1993). Although, there were claims of the
almost forgotten W. W. Smithers (1911), who argued that "the science of criminology
is a secondary evolutional development of the study of penology", the opposite
assumption became the standard one, the premise being that the study of crime and
criminals is the primary scientific enterprise, and the business of punishment and
control is to be regarded as a secondary practical matter. Paul Rock puts it in the
International Encyclopedia of Sociology, penology was "a great pursuit of the
eighteenth and nineteenth centuries" but nowadays there is "no separate academic
discipline" of that name (Rock, P, & M Mann ed. 1984). David Garland agreeing
with Smithers observed that penology is not an element or a sub-discipline of
criminology; it is the other way around. Penology, properly understood, is the more
basic discipline. It is the study of the social processes of punishment and penal
control, which is to say, of the whole complex of laws, ideas and institutions which
regulate criminal conduct (Garland, D., 1997). And, as Francis Lieber emphasised,
these penal institutions are to be studied "theoretically, practically, and historically"
and "in their relation to the political community"(Lieber. F., 1838).
Meaning of Penology: The term penology can have different connotations. The
discipline of penology has been primarily concerned with punishments sanctioned
and undertaken by the state, however punishment may not always originate from the
state. Rather punishments can be physical or psychological, performed publicly or
privately and can be informal or formal sanction and legal sanction (Scott, D., 2008).
For example when a child is punished by his mother for some mischief, it is informal
but the same child given a punishment at school by his teacher for some mischief in
the class may be a formal sanction. In its older and narrower sense “penology”
designates the attempt to reform or rationalize penal conditions and regimes so as to
maximize their corrective effectiveness (McLaughlin, E, and Muncie, J. 2013). In
recent times its ambit has changed to cover the application of clinical, managerial,
or social scientific methods or expertise to the disciplined study and evaluation of
penal institutions especially prisons (McLaughlin, E, and Muncie, J. 2013).
Therefore, penology is a multi- disciplinary subject that aims to study and evaluate
the application of penal sanctions to wrongdoers. Primarily it is a response to human
wrong doing. Secondly, it involves in the evaluation of the different forms of social
control, for example, as manifested in the social denunciation of a member of the
community for marrying in a lower caste. Thirdly, penology also involves in
examining the different aspects affecting deployment of penalties like social factors,
historical factors and economic factors. At times social and historical facts may be
interlinked too closely to influence the penal policy, for instance dowry death has
historical as well as social bearings and that made the legislature to deploy a
minimum punishment of seven years imprisonment. As far as economic
consideration in deployment of penalty is concerned, all the penalties under the
various socioeconomic legislations like Narcotics and Psychotropic Drugs Acts or
Customs Act are based on economic considerations. Fourthly, penology focuses on
the act which is made punishable, the antecedents of the actor who is to be punished
and the rationales of such punishment to such person. Fifthly, it also seeks to evaluate
the legitimacy of the Criminal Justice Administration to punish. Under this aspect
the discretion of the judge for sentencing, probation parole may be evaluated.
Definitions of Penology:
Cesar Beccaria (1738–94) Considered by many scholars to be the most influential
Enlightenment thinker on penal reform in Europe, Beccaria was born to Milanese
nobility and studied law at the University of Pavia, Italy. Under the guidance of his
friend Alessandro Verri, Beccaria published his most significant treatise Essays on
Crimes and Punishment in 1764. This has become one of the foundational texts in
penology and was hugely influential, in terms of both the theories of punishment and
the development of modern criminal justice systems in Europe, the USA and beyond.
Beccaria promoted the ideas that punishments should be justified through
deterrence, and that sanctions must be certain and proportionate to the offence
committed.
Jeremy Bentham (1748–1832) A philosopher and lawyer who had a massive
influence on theories of punishment and the design of the penitentiary. He was
awarded a law degree from Oxford, but moved away from legal reforms towards
advocating the wider philosophical credo of utilitarianism, which promoted the
‘greatest happiness of the greatest number’. He is famous for his ‘panopticon’ prison
design, which, although never built, influenced Victorian prison architecture in the
United Kingdom and prisons in the USA, such as Stateville. Although he constantly
petitioned the British government to run a panopticon prison for profit in England,
he never succeeded in this goal. When he died, Bentham had his body stuffed and it
still can be seen on display.
Thomas Mathiesen (born 1933) A highly influential contemporary Norwegian
penologist. Thomas Mathiesen is Professor of Sociology of Law at the University of
Oslo. Mathiesen co-founded the Norwegian prisoner union KROM in 1968, and his
Marxist studies and penal activism led him to advocate penal abolitionism. His key
books include The Politics of Abolition (1974), which has had massive influence on
the radical prison lobby in the United Kingdom, and Prison On Trial, originally
published in 1990 and in its third edition (2006), which is one of the most impressive
critical overviews of the philosophy of punishment ever written.
Evolution of Penology: Conventionally it may be more appropriate to date the
inception of modern penological thinking from the reform projects undertaken by
John Howard, Jeremy Bentham and others from the late eighteenth century onwards.
Penology has been throughout most of its history a reform minded subject with
practical goals focusing on particular histories of prison architecture and disciplinary
regimes, as well as minutiae of medico-psychiatric services, religious observance,
diet and other aspects of material infrastructure and social relations of penal
institutions (McLaughlin, E, and Muncie, J. 2013). In the twentieth century for the
most part of it there were two major focus of penological effort, first is the
monitoring of the variations in sentencing that is, a quantitative analysis; and of the
manipulation of penal regimes (both in prisons and in non-custodian settings) for
evidence of their impact on offending and re-offending, whether on the grounds of
rehabilitation, deterrence and incapacitation (McLaughlin, E, and Muncie, J. 2013).
The second major focus that occupied the middle decades of the twentieth century,
was the systematic study of penal institutions themselves- their social organization,
routines and characteristic relationships; the experience of confinement like the
impact of the penitentiary system and of custodial and supervisory work of the prison
management system; the recurrent problems of imprisonment, like riot, violence,
suicide and self-harm inside the prison (Simon, J., 2000). Subsequently there was a
relative decline of both therapeutic penology and of prison sociology, which may be
attributed to have flown from the evidence produced by empirical data showing no
significant impact of penal intervention on the rate of recidivisms. This was
witnessed by many, as a shift towards primarily incapacitative rationales with a
punitive reasoning. These developments are summed up by Garland, (1990) as
constituting a „crisis of penal modernism‟. The irony for penology is that whereas
the latter developments tend to increase the scale of imprisonment this is met by a
reduced intensity of school of scholarly interest in what goes on in prisons, or more
generally in the lives and fates of offenders. However, the 21st century onwards saw
much of the research in penology through the comparative analysis of various
determinants impacting crime and punishment, as well as prison upkeep.
Comparative Penology The study of comparative penal systems is very important.
It helps us to avoid reductionist, deterministic and ethnocentric social analysis by
taking into considerations the various determinants (variables) that may have an
impact on the study of punishment and penal systems (Cavadino, M , and Dignan,
J., 2006). It allows us to understand the similarities, differences and broad trends in
the way in which imprisonment has been deployed historically around the globe.
Comparative analysis can also be used to examine the complex relationship between
crime and punishment, the relationship between official crime and prison rates and
similarities and differences in the social backgrounds of prisoners and the offences
they have committed. Comparative analysis entails consideration of mostly the
socio-economic, Governmental, Social Controls, Cultural and Extra territorial
parameters. The Figure below sketches the different aspects within the above
parameters where the comparative analysis adds to the penological understanding
more effectively.
The socio-economic aspect includes factors such as the political economy, labour
market demands, commitments to welfare state and fiscal pressure in different
countries determine what is to be criminalized and how severely an act is to be
punished, for instance drug regulations and the penalties attached there to. A
comparative analysis of Governmental decisions of different jurisdictions in the
form of law regarding criminalization, age of culpability, social and penal policies,
patterns of punishment, aims of imprisonment, penal administration, role of
judiciary and sentencing process; is a much fertile field for penological research.
Much of the researches have also focused in the comparative analysis of social
controls like family, work and community and its impact on crime causation and also
recidivism. Comparative analysis between different countries of cultural parameters
such as, historical and geographical legacies, especially for crimes of terrorism and
penal response towards it will add a better dimension in understanding such crimes.
The other cultural factors that may be compared are values, public opinion, role of
the media, individualism and collectivism orientation etc. Another important aspect
that may be comparatively analysed is that of the extraterritorial including factors
such as migration, globalization, international informational exchange, status of
foreign national criminals, for instance the initiative of the Indian government to
book the money launderers in aid with various EU nations.
HISTORY OF PENOLOGY:
Historical theories were based on the notion that fearful consequences would
discourage potential offenders. An example of this principle can be found in the
Draconian law of Ancient Greece and the Bloody Code which persisted in
Renaissance England, when (at various times) capital punishment was prescribed for
over 200 offenses. Similarly, certain hudud offenses under Sharia hadith tradition
may incur fearful penalties. Modern theories of the punishment and rehabilitation of
offenders are broadly based on principles articulated in the seminal pamphlet "On
Crimes and Punishments" published by Cesare, Marquis of Beccaria in 1764. They
center on the concept of proportionality. In this respect, they differ from many
previous systems of punishment, for example, England's Bloody Code, under which
the penalty of theft had been the same regardless of the value stolen, giving rise to
the English expression "It is as well to be hanged for a sheep or a lamb". Subsequent
development of the ideas of Beccaria made non-lethal punishment more acceptable.
Consequently, convicted prisoners had to be re-integrated into society when their
punishment was complete. Penologists have consequently evolved occupational and
psychological education programs for offenders detained in prison, and a range of
community service and probation orders which entail guidance and aftercare of the
offender within the community. The importance of inflicting some measure of
punishment on those persons who breach the law is however maintained in order to
maintain social order and to moderate public outrage which might provoke appeals
for cruel vengeance. In modern times Penology has shifted from a retributive based
punishment to a form of community corrections. "Community corrections involves
the management and supervision of offenders in the community. These offenders are
serving court imposed orders either as an alternative to imprisonment or as a
condition of their release on parole from prison. This means they must report
regularly to their community corrections officer and may have to participate in
unpaid community work and rehabilitation programs.
Punishment
Penology involves much of its scholastic analyses on the punishment regime and its
efficiency dimensions. Penologists have asked important philosophical questions
about all forms of punishment, regulation and control. One of the primary questions
is what is State punishment? Professor Andrew Flew in 1954 argued that for an act
to be defined as punishment, it must conform to five basic rules (McLaughlin, E, and
Muncie, J. 2013). The penal sanction must a) Create human suffering; b) Arise as a
direct result of the perpetration of an offence; c) Only be directed at the person who
undertook the offence, ie. the offender; d) Be the intentional creation of other
humans in response to that offence; e) Be inflicted by an authorized body
representing the embodiment of the rules or laws of society in which the offence was
committed. However when we consider punishment as an organized practice
ingrained in the deliberated deprivation of liberty at the primary level and
subsequently in the infliction of pain and suffering even at the hand of the State,
raises serious moral questions of legitimacy. This leads penologists to invest
themselves in the different justifications of punishment.
Justifications of Punishment
The basic aim of punishment is to prevent criminality that may justify punishment
generally. Hyman Gross (1979) similarly writes, “The rules of conduct laid down in
the criminal law are a powerful social force upon which society is dependent for its
very existence, and there is punishment for violation of these rules in order to prevent
the dissipation of their power that would result if they were violated with impunity.
Unless the threat of punishment by the state exist, and the State actually punished
criminals the authority of the state would be loosened to the point that social 10 order
and security of the individual would be at stake. Thinkers such as Kenny, Gross, and
Hart take the prevention of harm and preservation of order as fundamental reasons
for criminal sanction, without it also needing a justification in fundamentally moral
terms (Jacobs, J., 2013). As Anthony Kenny (1978) has put the point: “The primary
purpose of punishment is to prevent citizens from becoming criminals; hence
punishment will never be understood if it is regarded purely as a transaction between
society and those who have already become criminals. When a man is punished, the
purpose of punishment has, in his case, already been thwarted”. The above
justification of punishment is based on the utility model. There are other penologists
who believe that it is important for there to be a moral justification of punishment at
the general level, a justification in terms other than considerations of public safety
and crime-prevention. That is, they believe that punishment needs a deontological
or non-consequentialist justification, a justification in terms of what persons deserve
or what is owed to them by the state because of the fact that they have caused harm
or injury to one or more members of the state. Kant is a propounder of such a theory.
Such theorist maintain that considerations of desert, often conceptually connected
with considerations about the distinctive nature of persons as rational agents
meriting respect, supply the basis for a moral justification of punishment
independent of facts about what sorts of benefits punishment might bring about
(Anthony K., 1978). Immanuel Kant Kant developed a retributivist account of the
moral justification of punishment. Kant noted that good consequences (such as an
offender’s ethical self-correction) are indeed welcome. Nonetheless, they are not
properly part of the justification of punishment. Kant also held that there is a moral
duty to punish criminals; it would be morally wrong not to. In addition, it might be
argued that though punishment essentially is in the form of pain or suffering on the
offender but it should not degrade or humiliate the persons punished. Punishment
can include deprivation of liberty and infliction of pain but that is not the same thing
as degrading the humanity of the person punished or deliberately causing pain and
suffering in ways that extend beyond the denial of liberty by incarceration and the
imposition of conditions to preserve safety and order in a prison. If someone is
administratively isolated from other prisoners because he is violent and starts fights,
that separation is justified. If someone is forced to share a ten-foot by six-foot cell
with five other people twenty four hours a day, and there is no window or ventilation
that is not justified (Anthony K., 1978). The different justifications of punishment
have been propounded by the different theories which necessarily underpin a large
amount of penology. Penologists view punishment primarily from the standpoint of
the crime for which is to be or has been designated. The various questions that are
examined in the investigation on the competing rationales of punishment may range
from, whether imprisonment should at all be an option or mere therapeutic
alternatives like community service, fines etc can achieve the same purpose?
Whether there should be a mandatory minimum punishment, what should be the
maximum punishment, whether prison stay is to punish only or reform the offender?
What kind of institutional framework will actually incapacitate the offender?
1.2 THEORIES OF PUNISHMENT

• Retributive Theory of punishment

The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many
people in the society would perceive it as, is the most basic, yet inconsiderate theory
of inflicting a penal sentence over a perpetrator. It is based on a very small doctrine,
namely the doctrine of Lex talionis, which if translated, means ‘an eye for an eye’.
Now, if looked at from the perspective of very serious and heinous offences, like the
Delhi gang rape case, people may feel that it is better to inflict such retributive
punishments, so as to ensure that a deterrent is set across the society, in order to
prevent such crimes in the near future.

However, we forget to understand sometimes that always having a retributive

approach will render the society one with a primitive system of justice, where the
Kings or the Judges were considered to be the supreme beings and were provided
with the stature of God Himself (hence the address My Lord) and thus, collapse the
very concepts of the representatives being ‘servants’. Before we move on to a deeper
understanding of the Retributive Theory, we need to understand two very important
doctrines. Let us have a look at them both.

Doctrine of Societal Personification and the Doctrine of Correctional

Vengeance:

• Doctrine of Societal Personification can be stated as-

‘When a member of the society is subjected to a very heinous crime, as a result of
which, the whole society, as if it were a natural person, considers the offence to be
inflicted upon itself, comes to the defence of that person either by way of demanding
justice or by conducting the same on its own, the society is said to be personified.’

A very self-explanatory doctrine. To be put simply, it means that the society,

whenever a heinous crime of an extreme form is committed, assumes the form of a
natural person and behaves in a collective manner so as to get justice.

Eg: The country-wide protests for the Delhi gang rape case, the current Hathras rape
case, etc.

• Doctrine of Correctional Vengeance maybe stated as-

‘When the society, in a fit to get justice, demands the concerned authorities to inflict
vengeful (as painful as the original act, or even more) punishments upon the victim
for creating a deterrent, it is said to exhibit correctional vengeance.’

The above definition, too, is quite self-explanatory in its nature. Now that we have
understood these two doctrines, we have a basic idea about what really is
retributivism or retributive justice. Let us now have a closer look upon the same.

Understanding Retributive Theory of Punishment:

‘The concept of retributive justice has been used in a variety of ways, but it is best
understood as that form of justice committed to the following three principles:

1. that those who commit certain kinds of wrongful acts, paradigmatically

serious crimes, morally deserve to suffer a proportionate punishment;
2. that it is intrinsically morally good—good without reference to any other
goods that might arise—if some legitimate punisher gives them the
punishment they deserve; and
3. that it is morally impermissible intentionally to punish the innocent or to
inflict disproportionately large punishments on wrongdoers.’
The above three principles clarify the needs for retributive justice even further. We
may understand retributive justice in this manner. The place where both Criminal
Law as well as Moral Law meet, is the place where mostly the retributive
punishments are generated.
In fact, although people may classify punishments into seven different types, but in
reality, every punishment, indeed, is retributive in nature. It is very interesting to see
that the damages claimed under Torts, or the remedies sort for environmental
violations, maybe compensatory, but at their hearts, are retributive in nature. Then
why aren’t they labelled as retributive, instead? Well, the answer to the question is
simple. Retributive punishments are somewhat vengeful in their nature (an eye for
an eye). They may not be vengeful always, but maybe merely morally vengeful.
When we say this, it means that although the punishment is not literally the thing
that was originally done by the perpetrator, is still acts as a vengeance by virtue of
its seriousness.

E.g: If a person rapes someone, capital punishment maybe given as a retributive

measure. If we literally give the person back what he did, i.e., sex, then it would be
pleasurable rather than torturing for him. Now that we have understood briefly that
how exactly the retributive punishment works, let us now move on to understand the
ways in which Retributive Theory is displayed in the Hindu texts and scriptures.

Case Laws:

1. Nirbhaya Judgement– This case is indeed the first and foremost case to be
mentioned, while talking about retributive justice in India. In this
Judgement, the Supreme Court sentenced four out of six felons involved in
the extremely heinous Delhi gang rape case to death, much to the delight
of the society, as they had committed an extremely gruesome, as well as
morally unimaginable crime.
2. Anwar Ahmad v/s. State of Uttar Pradesh and Anr.– In this case, the
convicted had already undergone a six month imprisonment term, before
being officially convicted by the Court. The Court held that since the
convict had been convicted and also, the required ‘blemish’ had also been
imposed upon him, it was not necessary to sentence him again in the name
of ‘retributive punishment’, as it would inflict a very big loss upon the
family as well.
3. Sri Ashim Dutta Alias Nilu vs State of West Bengal– In this case, it was
observed that both deterrent and retributive punishment aim at prevention
of the recurrences of the offences by others passing exemplary punishment
for a particular offence. But the civilization and the societies are
progressing rapidly. There is advancement of science and technology. The
literate people and the experts in different branches of knowledge started
 thinking in a different way. Eye for an eye, and tooth for a tooth are no
more considered as the correct approach towards the criminals. Such
principle may perpetuate the rule of the Jungle but cannot ensure the rule
of law.
Pros and Cons:

Pros-

1. Acts as a strong deterrent.

2. Helps in giving moral justice to the victim.
3. Instils the feeling of trust within the society, towards the judiciary.
Cons-

1. Sometimes, may become disproportionate with the seriousness of the

crime.
2. Society develops feelings of vengeance and destructive tendencies follow.
3. The State may become autocratic in its functioning, using the punishment
to torment people.

• Deterrent Theory of punishment

In Deterrent theory of punishment, the term “DETER” means to abstain from doing
any wrongful act. The main aim of this theory is to “deter” (to prevent) the criminals
from attempting any crime or repeating the same crime in future. So, it states that
deterring crime by creating a fear is the objective; to set or establish an example for
the individuals or the whole society by punishing the criminal. That simply means,
according to this theory if someone commits any crime and he/she is punished by a
severe punishment, then, it may result maybe that the people of the society will be
or may be aware of the severe punishments for certain kinds of crimes and because
of this fear in the minds of the people of the society, the people may stop from
committing any kind of crime or wrongful act. Here I used the phrase “may
stop” instead of “will stop”. That means, there is a probability of committing any
crime or repeating the same crime.

The deterrent theory of punishment is utilitarian in nature. For a better understanding

we can say like, ‘The man is punished not only because he has done a wrongful act,
but also in order to ensure the crime may not be committed.’ It is best expressed in
the word of Burnett, J who said to a prisoner:

“Thou art to be hanged not for having stolen a horse, but in order that other horses
may not be stolen”.

Through making the potential criminals realize that it doesn’t pay to commit a crime,
the deterrent theory hopes to control the crime rate in the society.

Jurisprudential School of Thought:

The deterrent theory can be related to the sociological school of Jurisprudence. The
sociological school creates a relationship between the society and law. It indicates
law to be a social phenomenon, with a direct and/or indirect connection to society.
One of the main aim of the deterrence is to establish an example for the individuals
in the society by creating a fear of punishment.

Now most important question is arrived at; “Who established this deterrent theory
of punishment?”

The concept of deterrent theory can be simplifying to the research of philosophers

such like Thomas Hobbes (1588-1678), Cesare Beccaria (1738-1794), Jeremy
Bentham (1748-1832). These social contract thinkers provided the foundation of
modern deterrence in criminology.

In the Hobbesian view, people generally pursue their self-interests, such as material
gain, personal safety and social reputation and make enemies, not caring if they harm
others in the process. Since people are determined to achieve their self-interests, the
result is often conflict and resistance without a fitting Government to maintain
safety. To avoid, people agree to give up their egocentricity as long as everyone does
the same thing, approximately. This is termed as “Social Contract”. According to
this social contract, he stated that individuals are punished for violating the social
contract and deterrence is the reason for it to maintain the agreement between the
State and the people, in the form of a social contract workable.

According to Cesare Beccaria, while discussing about punishments, the proportion

of the crime and punishments should be equal for it to serve as a deterrence or have
a deterring value.
According to J. Bentham, who is known as the founder of this theory, a hedonistic
conception of man and that man as such would be deterred from crime if punishment
were applied swiftly, certainly, and severely. But being aware that punishment is an
evil, he says, if the evil of punishment exceeds the evil of the offence, the punishment
will be unprofitable; he would have purchased exemption from one evil at the
expense of another.

From the deterrent theories of Thomas Hobbes, Cesare Beccaria and J. Bentham, we
came to know that the theory of deterrence consists of 3 major components. They
are as follows:

• Severity: It indicates the degree of punishment. To prevent crime, criminal

law must emphasize penalties to encourage citizen to obey the law.
Excessively severe punishments are unjust. If the punishment is too severe
it may stop individuals from committing any crime. And if the punishment
is not severe enough, it will not deter criminals from committing a crime.

• Certainty: It means making sure that punishments must happen whenever

a criminal act is committed. Philosopher Beccaria believed that if
individuals know that their undesirable acts will be punished, then they will
refrain from offending in the future.
• Celerity: The punishment for any crime must be swift in order to deter
crime. The faster the punishment is awarded and imposed, it has more
effect to deter crime.
Therefore, deterrence theorists believed that if punishment is severe, certain and
swift, then a rational person will measure the gain or loss before committing any
crime and as a result the person will be deterred or stopped from violating the law,
if the loss is greater than the gain.

According to Austin’s theory, “Law is the command of the Sovereign”. In his

imperative theory, he clearly declared three important things, which are as follows:

1. Sovereign.
2. Command.
3. Sanction.
Austin’s question is that ‘Why do people follow the rule?’. He believes that people
will follow the law because people have a fear of punishments. On the basis of his
beliefs, we can see a small example over here: When people are biking, they wear a
helmet as per biking rules. Now, we can assume that some people wear helmets
genuinely to save themselves from road accidents but on the other hand, some people
wear helmets because of escaping fines or in fear of cancellation of their biking
licence. So, in that case, they know that if they bike rashly or disobey the biking
rules they will be punished by giving huge a amount of fine or their biking licence
will be cancelled. So here we can say that the purpose of the deterrent theory is
successful and applied also.

Now, if we go back a little earlier in time, in our Hindu Scriptures we also see that
there were several punishments like public hanging, not only that but also people
were immersed in hot oil or water. Most penal systems made use of deterrent theory
as the basis of sentencing mechanism till early 19th century.

• In England, punishments were more severe and barbaric in nature to restrict

same crime in the future. At the time of ‘Queen Elizabeth I’, deterrent
theory of punishment was applied for restricting future crimes, even for too
little crimes like ‘pickpocketing’.
• In India also, inhuman punishments are granted.
But, if we discuss or follow this theory in today’s context, then, it will be very clear
that “deterrent theory” is not applicable at all or it may not be useful enough to
prevent or to deter crimes by creating a fear in the minds of people. We have a very
recent example of why deterrent theory is not successful in the case of “Nirbhaya
Rape Case, 2012”. This case is the foremost case to be mentioned while talking about
deterrent theory of punishment. In this judgement, the Supreme Court sentenced four
out of six offenders involved in the extremely heinous Delhi gang rape case to death.
Now, the most important questions are-

• Whether the death sentence to the culprits will act as a deterrent?

• Will the number of crimes against women in our society drop down
permanently?
• Specifically, in Nirbhaya judgement, is the aim of deterrent theory
fulfilled?
The answers are ‘no’. According to deterrent theory, the main objective is ‘to deter
crime, by creating a fear or establishing an example to the society.’ Now, death
penalty is a severe punishment. In the Nirbhaya case, the Court gave death sentence
to the four convicts for committing gang rape. We can say that it is a great example
for future offenders who will think about committing a crime like rape in future. So,
according to this theory, after Nirbhaya judgment crimes like rape should not
happen. But they are happening till now. Day-by-day, rape cases are increasing in
our society.

In Nirbhaya gang rape judgement, it’s being suggested that justice has finally been
served to “India’s Daughter” and though the decision came after a staggering seven
years, it will help to secure the safety of women and prevent rape cases in the future.
But it seems to further, as starting of the year 2020 has seen a slew of rape cases
continue unabated. As an example, we can see for a recent gang rape case which was
happened at Hathras, Balrampur, on 1st October 2020. So, simply we can see that
there is no improvement through severe punishments also. “Death penalty does not
act as a deter to rape cases”- This is the actual message we have understood. So
that’s why we can say that in today’s generation there is no major implication of
‘Deterrent Theory of Punishment’.

• Preventive Theory of punishment

Preventive theory of punishment seeks to prevent prospective crimes by disabling
the criminals. Main object of the preventive theory is transforming the criminal,
either permanently or temporarily. Under this theory the criminals are punished by
death sentence or life imprisonment etc.

Philosophical View of Preventive Theory:

Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive
theory of punishment due to its humanizing nature. Philosophy of preventive theory
affirms that the preventive theory serves as an effective deterrent and also a
successful preventive theory depends on the factors of promptness. The profounder
of this theory held that the aim of punishment is to prevent the crimes. The crimes
can be prevented when the criminal and his notorious activities are checked. The
check is possible by disablement. The disablement may be of different types.
Confining inside the prison is a limited form of disablement, that is temporary and
when it is an unlimited form of disablement, that is permanent. It suggests that
imprisonment is the best mode of crime prevention, as it seeks to eliminate offenders
from society, thus disabling them from repeating the crime. The death penalty is also
based on this theory. This theory is another form of deterrent theory. One is to deter
the society while another is to prevent the offender from committing the crime. From
an overall study, we came to know that there are three most important ways of
preventive punishment, they are as follows:
 • By creating the fear of punishment.
• By disabling the criminal permanently or temporarily from committing any
other crime.
•By way of reformation or making them a sober citizen of the society.
Case Laws:

1. Dr. Jacob George v state of Kerala: In this case, the Supreme Court held
that the aim of punishment should be deterrent, reformative, preventive,
retributive & compensatory. One theory preferred over the other is not a
sound policy of punishment. Each theory of punishment should be used
independently or incorporated on the basis of merit of the case. It is also
stated that “every saint has a past & every sinner has a fortune”. Criminals
are very much a part of the society so it is a responsibility of the society
also to reform & correct them and make them sober citizens of the society.
Because the prevention of crime is the major goal of the society and law,
both of which cannot be ignored.
2. Surjit Singh v State of Punjab: In this case, one of the accused, a policeman
entered the house of the deceased with the intention to commit rape but
failed to do so as the as sons of the deceased shouted for help. Another
accused suggested the policeman to kill the deceased. The accused was
held liable under section 450 of the Indian Penal Code. While on the
contrary, the death penalty or capital punishment is more of a temporary
form of disablement.

• Compensatory Theory of punishment

Definition:

The main look out in the law of crimes is to penalize the criminal, and/or to seek his
reformation and rehabilitation with all the resources and goodwill available through
the Courts and other Governmental and non-Governmental organizations. It must be
seen that the criminals should get proper judgement for their crimes so caused and
the harassment caused to the victim and towards their family members and property.
The victims in a crime can be compensated on mainly two grounds, namely-

1. A criminal who had inflicted an injury against the person (or group of
persons), or the property must be compensated for the loss caused that has
caused to the victim, and
 2. The State that has failed to provide safety towards its citizens, must receive
compensation for the loss caused.
Compensation is the true essence of deterrent, reformative and a necessary
contribution of retribution.

Case Laws:

• In the landmark case of DK Basu v. State of West Bengal the Apex Court
held that a victim who is under the custodial right, has every right to get
compensated as her Right to Life, which is under Article 21 of the
Constitution, has been breached by the officer of the State.
• In State of Gujarat and Anr. v. Hon’ble High Court of Gujarat, Justice
Thomas had held that, “The Reformative and reparative theories deserve
serious consideration, where the victim(s) of crime or his family members
should get compensated from the wages that is earned in prison by the
criminal.” The Court suggested that the particular State should enact a
comprehensive legislation in respect of his compensation payable to victim
of a crime.

• 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. It depends on the humanistic rule that regardless of whether a
wrongdoer perpetrates a wrongdoing, he doesn’t stop to be a person. In this way, an
exertion ought to be made to change him/her during the time of his/her detainment.
For example, he may have executed bad behaviour under conditions which may
never happen again. Hence an effort should be made to transform him during the
hour of his confinement. The object of order should be to accomplish the moral
difference in the liable party. He ought to be told and perform some craftsmanship
or industry during the hour of his confinement with the objective that he may have
the alternative to start his life again after his conveyance from jail.

History of the Theory:

The human development has consistently been administered under the standard of
an incomparable force. The job and type of pre-eminent force has changed
throughout a long term. Beginning from the primitive type of Government to the
present just, republican and different types of Governments, the obligation of the
incomparable authority has changed a lot. The idea of discipline has additionally
changed like the idea of State duty throughout the long term. The idea of discipline
relied upon the premise of religion and the organization of the Kings. During old
occasions, the idea of discipline was retributive premise, where the hoodlums were
given uncouth type of discipline. Afterward, over the entry of ages, the significance
of common liberties expanded which in essence cleared path for the replacement of
Retributive hypothesis by Reformatory and Rehabilitative hypotheses. Under the
Reformative and Rehabilitative hypotheses, the blamed are given such structures for
discipline which would change them and keep them from perpetrating such
wrongdoings.

The theory 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
violations in India. The essential idea of law isn’t to be static, but to be dynamic in
nature. At exactly that point the law will have the option to be successful in all fields
of the general public.

The Main Purpose Reformative Theory:

The reason for this hypothesis of discipline is to make the criminal languish over his
bad behaviour. Here the motivation behind the discipline is profoundly customized
and rotates around the mental outlet of the person in question or his family. The
primary reason might be accomplished to parole and probation, which have been
acknowledged as current procedures of improving the guilty parties all around the
globe. Consequently, the backers of this hypothesis legitimize imprisonment not
exclusively to separate hoodlums and kill them from society. Not many of the
advanced reformative procedures of discipline are essentially concocted for the
treatment of guilty parties as per their mental attributes, for example, probation,
parole, uncertain sentence, exhortation and pardon. The reformative techniques have
demonstrated to be valuable in the event of adolescent misconduct, first wrongdoers
and ladies. Sex cases additionally appear to react well to the reformative strategy for
discipline. All the more as of late, the reformative hypothesis is in effect widely
utilized as a technique for treatment of intellectually denied wrongdoers.

Criticism:
 1. Reformative theory anticipates better framework and offices in jail,
legitimate co-appointment between various control and diligent exertion on
their part to shape criminals. It requires gigantic ventures which poor nation
can’t bear the cost of.
2. A great many guiltless individuals who have high respects for law are
finding hard to get fundamental courtesies hypothesizes moral avocation
for giving better offices inside jail.
3. Also, the soundness of the hypothesis is more towards motivators for the
commission of wrongdoing instead of counteraction.
4. Transformation can work out on those individuals who can be improved,
there are individuals who can’t be changed like bad-to-the-bone
lawbreaker, profoundly instructed and proficient hoodlums.
5. This theory disregards possible wrongdoers and people who have
submitted wrongdoing however not inside the arms of law. Further, it
ignores the cases of survivors of violations.
6. Degenerate social ecological is liable for wrongdoing yet not person duty,
is the way of thinking of reformative which is difficult to process. In any
case, it is out of line to excuse the honourable idea of reconstruction as a
complete disappointment. All know about the occasions where untalented,
uninformed and evidently hopeless lawbreakers have created a aptitudes in
jail, which have changed them into profoundly valuable people.

1.4 Classical Hindu and Islamic approaches to Punishment

The word law can be used in different senses. In a simple sentence, the law means
any regulation, rules, canon, or a norm to which most of the people are required to
act accordingly. However, the entire body of law i.e. Corpus Juris has probably been
classified into two categories-

• Substantive laws
• Adjective laws.
For that purpose, if we talk about the law of evidence it does not come under the
purview of substantive or procedural law but instead, it is an adjective law that lays
down the procedure through which substantive laws are brought into practice.
Evidence law deals with the rights as well as the procedure. The literal meaning of
evidence is that any available information makes us believe a part that is
true. Section 3 of the Indian Evidence Act, 1872 defines evidence as to the statement
which is permitted by the court and which is required to be made by witnesses before
the court in relation to any matter which is in question; these statements are often
called oral evidence. Evidence also means all the documents that are produced
before the court for inspection. Such documents are called documentary evidence.
The Evidence Act takes us back to the year 1972 which was passed by the British
Parliament and which contains rules and regulations of evidence in the court of law.
The provisions under the Evidence Act provide us with the procedure of how to
approach the court and claim before it. The Evidence Act which is called the Indian
Evidence Act 1872, has 11 chapters and 167 sections and it officially came into force
on 1st September 1872. It has been 140 years since the Evidence Act has been
enacted, still, it retains its original form except for a few amendments that took place
from time to time. The history of the law of evidence is based on three different
periods

• Firstly, the ancient Hindu period

• Secondly, the ancient Muslim period
• Lastly, the British period.

(Hindu period)
The ancient Hindu period had the origin of the concept of evidence and for that
matter, Hindu Dharma Shastra had to be referred. Hindu Dharma Shastra states that
the aim of any trial is to find out the truth. Yajnavalkya also states that the king must
always give preference to the true facts and discard what is fraudulent. The Hindu
law (Manusmriti) giver took every precaution in the case where the two parties have
any contradictory claims. It is written in the shastras that whichever party is coming
in the court must admit the truth. Manu said that one who presides over the tribunal
that is the king must always find out the truth and determine if the testimonies of the
witness, the description, time, and place of the incident provided in the tribunal are
correct and thereafter pronounce the true judgment. Vashishtha lays down three
kinds of evidence that are Likhitam, Sakshino, Bhukti, Parmanam, Trividham,
Smritham that Lekhya documents, Sakshi (witness) and Bhukti (possession). In
ancient Hindu law, there was a court where the king presided and it was the highest
court in ancient India. The court was situated in the capital city at the Royal Palace.
The king (Rajah), the judges (Sabhyas), and the Chief Justice (Pradvivaka) were the
officers of the court. The king at that time had the power to pass the final decree in
consultation with the final opinion of the chief justice and the duty of the judge was
to look into the merits of each case.

In ancient India, there were no technical procedures to provide justice to the

aggrieved person in the court. The base on which the judgement was pronounced
was Dharma. Soon after filing the complaint, a summon was given to the opposite
party to hear them as well. The rules were set for admission, denial, confession,
avoidance, and res judicata. The witnesses and documents produced by them in
support of the charges were conducted at the trial session and the parties themselves
had to produce witnesses. The king was not to delay any examination of witnesses
and he, along with the members of the court present, was supposed to examine the
witnesses and statements made by them.

Dharmanikarana is the position by witnesses inside the hall of justice and not
anywhere else. The evidence given by the witnesses must be in the presence of the
plaintiff and of the defendant depending on the case and before giving any kind of
evidence, an oath must be taken by the witness after taking off shoes, turban,
stretching out the right hand and taking in his hand, cow dung or any sacred grass as
the case may be and then speaking the truth. In case any false evidence has been
presented in the court, the highest punishment given should be capital punishment.
Each witness should be questioned by the judge separately and the words of the
witness must be taken down as narrated and no changes could be made in the
statements of the witnesses. Dharma Shastra and Manusmriti were among them
which were written between 200 BC and 100 AD.

Manusmriti was the landmark in the history of Hindu law. After Manusmriti,
Yajnavalkya, Narada, and Katyayana included the law of evidence in their smritis.
According to the Manusmriti, once the answers are submitted by the parties, the
evidence must be produced before the court. In order to systematize Manu’s rule,
Yajnavalkya made it compulsory to add three proofs, that are documents, witnesses,
and possessions. Narada also repeats the three kinds of proofs specified by
Yajnavalkya. Narada also explained the views of Manu on witnesses and divided
them into 11 classes. The two broad headings of proof by Narada for human and
divine-human comprised documentary and oral evidence and divine included ordeal
by balance and the rest. The formula of four feet of legal proceedings explained by
Brihaspati and Narada was followed by Katyayana. The four stages were
Purvapaksha (plaint), Uttara (reply), Pratyakalita (deliberation as to burden of
proof), and Kriyapada (adducing of proof). After submission of the evidence, the
court was to deliver its judgment. The three pieces of evidence namely documents
(likhita), witnesses (sakshi) and possession (bhukti) were prescribed by Yajnavalkya
and Katyayana.

Witnesses (Sakshi)

• Manu believed that the men who knew their duty were admissible as
witnesses in the court of law irrespective of the caste while other persons
were not admissible as witnesses.
• Women, Sudras, twice-born men and men of lower caste can only produce
evidence on behalf of the person of the same class.
• The person who had knowledge of the murder case or acts inside a house
or a forest can be called a witness.
• If regular witnesses are not present, anyone can be summoned to provide
evidence. For example women, pupils, slaves, relations, infants, or hired
servants. In cases of adultery, defamation, assault, and violence, the witness
should not be examined too closely.
• In case false evidence is provided before the court, the witnesses could be
provided with severe penalties.
• Another important aspect of the legal position of witness is character.
According to Manu where there is a conflict of witnesses the king is bound
to accept the evidence which the majority provides but in the case where
the evidence is produced before the king or equal number, the king must
distinguish between the right and the wrong.
• Back at the time when there were no witnesses, the rule of both came in.
Ascertainment of the truth could be borne by the judge through oath or an
ordeal. An oath was regarded as a sacred medium which could never be
false.
• The witnesses who did not speak the truth were provided with penalties.
• The character of the witness was also taken into consideration. In case the
character of the witness was highly dubious, he was not regarded as a
competent witness to provide evidence in the court of law.
• According to Gautama, the witness must be a trustworthy person who
knows all the facts of the case and he must be examined by the king or the
judge.
Documentary evidence (lekhya)

Documentary evidence came at the time of Vashishtha. It was regarded as a less

important form of evidence than the testimony of witnesses. There are three types of
documents according to Vishnu; Rajasaksika, Saksika, Asaksika.

• The first was a document that was executed by the king’s clerk in the king’s
court and was attested by the presiding officer.
• The second was private evidence that was attested in his own hands by
witnesses.
• The last one was a document that was admissible entirely in the hands of
the party themselves.
Any other document outside the purview of these three categories was not regarded
as admissible in the court of law. According to Brihaspati, there are three classes of
documents:-

• Rajalekhya
• Svayamkrita
• Svahastalikhita
Since documentary evidence was less preferred than oral evidence because of the
possible chances of forgery, the ancient lawgivers introduced few rules in order to
determine the genuineness of the documents. A document was only considered to be
valid when it was not written by children, dependent, lunatics, women, or any person
under fear. A comparison of the handwriting was also done in order to check the
genuineness of the document in the case where the party is dead. In a contract
between the debtor and creditor, certain requirements were laid down by
Yajnavalkya. In cases where such contracts have been written by another hand, the
contract must contain the name of the parties along with the caste and the gotra
names and the name of the father. It must also mention the witness’ details. The
document must be signed by the debtor and the witness underwriter in the prescribed
manner. If the document is written by the same hand but is attested by the witness,
it will be accepted valid but in the case where it is written by another hand, it will
not be considered a valid one. Any forgery of documents will lead to proof of oral
evidence.
Possession (bhukti)

In case of a dispute of landed property, the right to the property and the title must be
mentioned along with the documents and witnesses as possession and evidence
according to Vasistha. But Gautam does not support possession as a witness. He laid
preference to the title by prescription.

Ordeals (Divya)

Any trials that happened in the ancient courts were with the help of witnesses and
documents provided before the court. Wherever oral evidence or documentary
evidence is not provided by the parties of the case before the court of law, it was
allowed to the parties to prove their case through ordeals or divine tests. Ancient
people used to believe that divine tests were the method to derive the truth of the
case. It all depended on the superstitious belief of the people. Agni Purana consists
of details of the ordeal. Ordeal method was only used in case of serious offences.
Except for cases of serious offences, cases were proved just by taking an oath.

According to Yajnavalkya, there were five kinds of ordeals:-

• Ordeals by balance
• By fire
• By water
• By poison
• By sacred libation.
After Yajnavalkya classified the kind of ordeals, Narada increased those 5 kinds into
7 by adding the ordeal of a hot piece of gold and the rice ordeal. Some of the
important types of ordeals were:

By balance

In this type of ordeal, a wooden balance was prepared out of the wood of a sacred
tree. While chanting the Vedic mantras, a few set up was done on which the accused
was weighed against some weight on the other end. The accused was then allowed
to get down from the balance. After this, a general procedure by informing the judge
about the truth was followed and it was all written down on the forehead of the
accused and the accused was again put to sit on the balance. If the side went beyond
the original mark the accused was found innocent but if it happened the other way,
he was found guilty.

Ordeal by fire

In this process, in a flat ground, some cow dung was spread. Keeping the fire in the
centre, nine circles were drawn, each of diameter 16, and were situated sixteen
angulas apart on the ground. Asvatha leaves were placed on the hands of the accused
with some rice and curd on it. After the accused is done worshipping the fire God,
an iron ball of 66 tolas was placed on the hands of the accused. The accused was
made to walk seven steps across the circle with the iron ball in his hands and then
throw it away. If the hands of the accused were not found to be burnt he was found
innocent. However, there was an alternative to figure out the innocent and the guilty.
The accused was required to walk in the fire for a specific time period. If he was
successful without harming himself he was proven innocent otherwise guilty.

By water

In this process, the accused was required to take a dive underwater where he had to
take hold of the knees of the person standing beside him in the water and another
man had to shoot three arrows at a distance of hundred and fifty cubits away. The
man who stood beside the target had to pick up the arrows. Till that time, if the
accused was able to hold himself in the water he was proven innocent otherwise
guilty. Another method was also used to find out the guilty person, which involved
the accused drinking the water with which the idol of God was washed. If the water
didn’t do any harm to the accused for the 14 days he was proven innocent.

By poison

In this method, the accused was observed for a few days where he was given some
kind of poison in small quantities which was extracted from plants and was mixed
with ghee after some rituals. If the poison had a bad effect on the body of the accused,
he was declared guilty otherwise innocent.
Ordeal of lot

This was a process where a white image of Dharma and a black image of Adharma
were made and placed on the cloth of the plaintiff over a lump of cow dung. The
whole thing was then put into an earthen pot and was observed when the accused
was asked to put his hand into the pot and pick any of the images without looking at
it. If the image picked by the accused was that of Dharma, he was declared innocent
otherwise guilty.

Ordeal by kosa

In this, the accused was made to worship Rudra and Aditya. The images of these
were put into water. Some general formalities were done and usually, people used
to wait for two weeks. If during that time no mishappening occurred in the life of
the accused or any of his relatives he was declared innocent.

Law of evidence in medieval India (Muslim period)

The Muslim kings began to invade India since the beginning of the 12th century.
The Muslim kings established a dispute resolution system according to Islamic law
which was based upon the holy Quran in medieval India. This concept of justice in
Islam was then introduced. There was a book written by Sir Abdul Rahim in regard
to the law of evidence called Muslim jurisprudence. There was no real concept, in
highly developed Muslim, of rules of evidence. Al Quran has been one of the
attributes of God’s decree more on Justice.

The rules of evidence have become more advanced and modern. Under Muslim law,
the evidence is divided into two parts, oral and documentary. Oral evidence is
divided into two parts: direct and hearsay. Ancient Muslim law also recognised
documentary evidence. Oral evidence was preferred more than documentary
evidence because certain documents from people like women, children, drunkards,
and criminals were not accepted in the court of law. Also, when the documents were
produced before the court it was preferred by the court to examine the party which
produces the document. Quajis was consulted to resolve the disputes. The
interpretation of the substantive and procedural laws was done according to the
tenets of the Quran, sunnah, ijma, and qiyas. In case of any wrongful act, the plaintiff
was required to go to the Quazi. During the trial, the presence of both the parties was
required and the Quazi was not allowed to pass an ex parte decree. The trial
procedure was followed by questions and answers that were asked by Quazi.
Preference was given to eyewitnesses than hearsay evidence. The evidence was
given by at least two men and one or two women were essential in Islamic law.
Evidence provided by Hindu was not admissible against the Muslims.

Law of evidence in British India (Evidence law’s historical background)

The current enactment that governs the admissibility of evidence in the court of law
was given by the British back at that time. But before the British period, the rules
governing evidence were based on traditional and local legal systems of people
residing in India. These rules were different for different groups, castes, and
communities. When the British East India Company came into place, it was granted
the Royal Charter by King George I in 1726 to establish a court in Bombay, Madras,
and Calcutta. Those courts at that time followed the English rule of evidence law.
But in muffasil courts, there were no such laws related to evidence. Therefore, the
difference of opinion created a huge chaos in muffasil courts.

There was a case of Khairullah where Chief Justice Peacock observed that the
English law of evidence was not followed by muffasil courts and Hindu and Muslim
laws were also not applicable to those courts. Because of all these confusions created
with regard to the law of evidence, the rules related to evidence were not satisfactory
at all. In order to bring proper laws related to evidence, the codification of laws was
desired and the British government took the first step in 1835 by passing the Act of
1835 where there were 11 enactments in total that were passed to deal with the law
of evidence. In 1868, another draft was made by a commission that included 39
sections. The fifth report of the draft was admitted by most of the English laws but
it was not suitable for the Indian society. In October 1882, more sections were added
in the draft by Sir Henry Summer Maine, which was referred to as a select
committee. It was again held to be unfit for the want of the country. Again in the
year 1871, a new bill was introduced that consisted of 163 sections that were similar
to the present Evidence Act of 1872 and it was prepared by Fitzjames Stephen. A
minor issue was there in the Bill of 1870 that most of the Indians did not understand
English. It was again passed as the Indian Evidence Act 1872. The Act continued to
be in force even when Pakistan and India gained independence on 14 and 15 August
1947 respectively except for the state of Jammu and Kashmir. When Bangladesh
became independent in 1971, the Act continued to be in force in Bangladesh but was
repealed in Pakistan in 1984 by evidence order 1984 which was known as qanun-e-
shahadat.
Cases

1. In the case of Commissioner of Income-Tax v. East India Coast AIR 1967

SC 768, it was laid down that Income Tax authorities are not strictly bound
by the rules of evidence.
2. In the case of Basanta Chandra Ghosh AIR 1960 Pat 430, it had been
established that the provisions of the Evidence Act do not apply to the
reception materials against the contemnor in a contempt proceeding.
3. In the case of Bareilly Electricity v. Workmen 1972 SC 330 it was held that
the labour courts and tribunals are not bound strictly by the technicalities
of the Indian Evidence Act except for Section 11 of Industrial Dispute Act
1947.
4. In the case of Raghu v. Burrakur coal Company limited 1966 Calcutta
504 it was held by the court that under section 3 of the Evidence Act,
industrial tribunal proceedings are not merely quasi-judicial proceedings.
5. In the case of Ahmed v Chief Commissioner AIR 1966 Mani 18, it was held
that the domestic tribunals need not strictly comply with the provisions of
the evidence act.
6. In the case of Central Bank vs PC Jain 1969 SC 983, it was laid down that
the standards of Evidence Act do not make any difference to the residential
enquiry but the principle of natural justice must be followed and it cannot
be discarded in Domestic Tribunals.
 2ND UNIT

2.1 CONSTITUTIONALITY OF CAPITAL PUNISHMENT

What is capital punishment?

The term ‘capital’ is derived from the Latin word ‘capitalis’, which means
concerning the head. Thus, to be subjected to capital punishment means to lose one’s
head.

Capital punishment, also known as the death penalty, is the execution of a criminal
who has been sentenced to death by a court of law for a serious felony. It is known
as the most severe form of punishment. It serves as punishment for the most heinous,
grievous, and abhorrent crimes against humanity. Even though the definition and
scope of such crimes vary by nation, state, and age, the death penalty has always
been the result of such crimes.

According to Encyclopedia Britannica, the death penalty is the execution of a person

who has been given a death sentence after being found guilty of a crime by a court.

In the Supreme Court of India, the Constitutional validity of the death penalty was
challenged many times in different ways. Among different nations in the world, India
is one of the nations that have neither totally abolished the death penalty nor passed
legislation that may highlight the validity or legality of death penalty or capital
punishment. In India, death penalty is awarded on the grounds of rarest of rare
doctrine. In 1973, the death penalty was firstly challenged in India in the case of
Jagmohan Singh v. State of Uttar Pradesh. The judgment and order came before the
re-enactment of the CrPC in 1973 whereby the death sentence was determined as an
exceptional sentence. In this case, the validity of capital punishment was addressed
on the basis that it infringed Articles 19 and 21 of the Indian Constitution. The
Supreme Court held that “the choice of death sentence is done by the procedure
established by law.” Moreover, during the hearing of the case, it was determined that
the top Court decides between a life sentence and a death sentence based on different
facts, type of crime, idea of the wrongdoing and circumstances presented before the
Court during trial. While delivering the order and judgment on hideous crimes, there
is an evolution in the top Court’s views that raises various questions in association
with existing judgments.
2.2 Judicial attitudes towards capital punishment in India- An Inquiry through
the statute law and case law

US Supreme Court Decision in Furman v. Georgia, October 1971 where the US

Supreme Court struck down the death sentence scheme as it violated the Eighth
Amendment of the US Constitution as being cruel and unusual punishment. But, the
Supreme Court of India refused to accept the reasoning and stated that there is no
rational basis for concluding the death sentence as unconstitutional because the
Indian Constitution does not have an equivalent to the Eighth Amendment.

2.3 The 35th Report on Capital Punishment (1967)

The Law Commission released its 35th Report on "Capital Punishment" in 1967,
recommending that the death penalty be retained. After considering the arguments
of the abolitionists and retentionists, the state of the death penalty in various
countries and objectives of capital punishment, the Commission recommended that
the death penalty be retained in India.

Law Commission Report Report No. 262 On "The Death Penalty"Santosh

Kumar Satishbhushan Bariyar v. Maharashtra...

The 262 report of the Law Commission of India (“commission”) has recommended
the abolition of death penalty for all offences except those related to terrorism.
Dubbed “historic,” “seminal,” “decisive,” and in a more hyperbolic vein a “paradigm
shift,” the report has been widely acknowledged as a progressive move in Indian
death penalty jurisprudence. But by recommending changes in the language of
exception, what is the progress that it has made? The report replaces the rarest of
rare standard as the exception to death penalty abolition with terrorism cases. The
term “replace” is however an uneasy fit in describing what the report does because
of a curious conflation at play: rarest of rare is a standard of judicial scrutiny, while
‘terrorism’ is a category of criminal offence.

The 187th Report on the Mode of Execution (2003)

This Report did not address the question of whether the death penalty was desirable.
Instead, it restricted itself to three issues:

1) the method of execution of death sentence,

 2) the process of eliminating differences in judicial opinions among Judges of
the apex Court in passing sentence of death penalty, and
3) the need to provide a right of appeal to the accused to the Supreme Court in
death sentence matters.

The first challenge to the constitutionality of the death penalty in India came in the
1973 case of Jagmohan Singh v. State of U. P. ('Jagmohan'). (1973) 1 SCC 20.

The case of Rajendra Prasad v. State of Uttar Pradesh ('Rajendra Prasad')

(1979) 3 SCC 646 discussed what the "special reasons" in imposing the death
sentence could be. The Court found itself confronting, not the constitutionality of
the death sentence, but that of sentencing discretion. The Court per majority (of two
judges) said, "special reasons necessary for imposing death penalty must relate, not
to the crime as such but to the criminal.

In Bachan Singh vs. State of Punjab(1980) 2 SCC 684 , this Court, while
upholding the validity of death sentence held, that imprisonment for life was the rule
and death sentence an exception, to be imposed in the “rarest of rare” cases,
recording special reasons. In Bachan Singh (supra), this Court in effect held that
before exercising discretion to impose the extreme penalty of death sentence,
aggravating and mitigating circumstances are required to be considered. Some of the
mitigating factors would be the extreme mental or emotional disturbance in which
the offence might have been committed, the possibility that the accused would not
be a continuing threat to society, the possibility of reformation and rehabilitation of
the accused, mental defect or disorder of the accused etc.

Roger Hood and Carolyn Hoyle in their treatise on The Death Penalty, 4th Edn.
(Oxford) have also very much appreciated the Bachan Singh ratio (see p. 285). The
concept of “rarest of rare” which has been evolved in Bachan Singh by this Court
is also the internationally accepted standard in cases of death penalty.

In Rajesh Kumar vs. State (through Govt. of NCT of Delhi) (2011) 13 SCC 706,
the accused was convicted of assault and murder of two helpless children in the most
gruesome manner. This Court held that death sentence could not be inflicted,
reiterating that life imprisonment was the rule and death sentence an exception only
to be imposed in the “rarest of rare cases” and for “special reasons” when there were
no mitigating circumstances.

In Dagdu and Others vs. State of Maharashtra (1977) 3 SCC 68 and Santa Singh
vs. State of Punjab (1976) 4 SCC 190 The Court, on convicting an accused, must
unquestionably hear him on the question of sentence. But if, for any reason, it omits
to do so and the accused makes a grievance of it in the higher court, it would be open
to that Court to remedy the breach by giving a hearing to the accused on the question
of sentence.

In Machhi Singh & Others vs. State of Punjab (1983) 3 SCC 470, this Court held:-

“38. … (iv) A balance sheet of aggravating and mitigating circumstances has to be

drawn up and in doing so the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the aggravating and the
mitigating circumstances before the option is exercised.”

In Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra(2009) 6

SCC 498, this Court observed and held:- The doctrine of proportionality, which
appears to be the premise whereupon the learned trial Judge as also the High Court
laid its foundation for awarding death penalty on the appellant herein, provides for
justifiable reasoning for awarding death penalty. However, while imposing any
sentence on the accused the court must also keep in mind the doctrine of
rehabilitation. This, considering Section 354(3) of the Code, is especially so in the
cases where the court is to determine whether the case at hand falls within the rarest
of the rare case.

In Ajay Pandit and Another vs. State of Maharashtra 2012) 8 SCC 43, this Court
held:- Awarding death sentence is an exception, not the rule, and only in the rarest
of rare cases, the court could award death sentence. The state of mind of a person
awaiting death sentence and the state of mind of a person who has been awarded life
sentence may not be the same mentally and psychologically. The court has got a duty
and obligation to elicit relevant facts even if the accused has kept totally silent in
such situations. In the instant case, the High Court has not addressed the issue in the
correct perspective bearing in mind those relevant factors, while questioning the
accused and, therefore, committed a gross error of procedure in not properly
assimilating and understanding the purpose and object behind Section 235(2) CrPC.”

In Mohinder Singh vs. State of Punjab (2013) 3 SCC 294, this Court held:-

The doctrine of “rarest of rare” confines two aspects and when both the aspects are
satisfied only then the death penalty can be imposed. Firstly, the case must clearly
fall within the ambit of “rarest of rare” and secondly, when the alternative option is
unquestionably foreclosed. Bachan Singh suggested selection of death punishment
as the penalty of last resort when, alternative punishment of life imprisonment will
be futile and serves no purpose.
In Panchhi and Others vs. State of U.P. (1998) 7 SCC 177 this Court observed:-

No doubt brutality looms large in the murders in this case particularly of the old and
also the tender- aged child. It may be that the manner in which the killings were
perpetrated may not by itself show any lighter side but that is not very peculiar or
very special in these killings. Brutality of the manner in which a murder was
perpetrated may be a ground but not the sole criterion for judging whether the case
is one of the ‘rarest of rare cases’ as indicated in Bachan Singh case.”

In Mukesh and Another v. State (NCT of Delhi) and Others (2017) 3 SCC 717,
a three-Judge Bench of this Court considered the earlier judgments of this Court
referred to above and deemed it appropriate to give opportunity to the accused to file
affidavits to bring on record mitigating circumstances for reduction of the sentence.

In Haru Ghosh v. State of W.B. (2009) 15 SCC 551, this Court commuted death
sentence to life imprisonment in case of a dastardly murder of two helpless persons
for no fault of theirs. This Court, however, in commuting death sentence took into
consideration the following factors:-

i. There was no pre-mediation on the part of the accused;

ii. The act was on the spur of the moment;

iii. The accused was not armed with any weapon;

iv. It was unknown under what circumstances the accused had entered the house of
the deceased and what prompted him to assault the boy; and v. The cruel manner in
which the murder was committed could not be the guiding factor and the accused
himself had two minor children.

In Lehna v. State of Haryana (2002) 3 SCC 76, this Court observed and held that
the mental condition of the accused which led to the assault could not be ignored,
though the same may not be relevant to judge culpability. It is certainly a factor while
considering the question of sentence.

In Sushil Sharma vs. State (NCT of Delhi) (2014) 4 SCC 317 this Court considered
the peculiar facts of the case and did not award the death penalty since the only
evidence was circumstantial and there were some factors that were to the advantage
of the appellant. This Court held: We notice from the above judgments that mere
brutality of the murder or the number of persons killed or the manner in which the
body is disposed of has not always persuaded this Court to impose death penalty.
Similarly, at times, in the peculiar factual matrix, this Court has not thought it fit to
award death penalty in cases, which rested on circumstantial evidence or solely on
approver’s evidence.

2.4 International covenant on Civil and Political rights, 1966

This Covenant was adopted by the United Nations General Assembly on 16

December 1966 and entered into force on 23 March 1976. By May of 2012, the
Covenant had been ratified by 167 states. The Covenant elaborates further the civil
and political rights and freedoms listed in the Universal Declaration of Human
Rights. Under Article 1 of the Covenant, the states commit themselves to promote
the right to self-determination and to respect that right. It also recognises the rights
of peoples to freely own, trade and dispose of their natural wealth and resources.

Among the rights of individuals guaranteed by the Covenant are:

Article 2

The right to legal recourse when their rights have been violated, even if the violator
was acting in an official capacity.

Article 3

The right to equality between men and women in the enjoyment of their civil and
political rights.

Article 6

The right to life and survival.

Article 7

The freedom from inhuman or degrading treatment or punishment.

Article 8
The freedom from slavery and servitude.

Article 9

The right to liberty and security of the person and freedom from arbitrary arrest or
detention.

Article 11

The freedom from prison due to debt.

Article 12

The right to liberty of movement and freedom to choose residence

Article 14

The right to equality before the law; the right to be presumed innocent until proven
guilty and to have a fair and public hearing by an impartial tribunal.

Article 16

The right to be recognised as a person before the law.

Article 17

The right to privacy and its protection by the law.

Article 18

The freedom of thought, conscience and religion.

Article 19

The freedom of opinion and expression.

Article 20

Prohibition of propaganda advocating war or national, racial or religious hatred.

Article 21

The right to peaceful assembly.

Article 22

The right to freedom of association.

Article 23

The right to marry and found a family

Article 24

The rights for children (status as minors, nationality, registration and name).

Article 25

The right to participate in the conduct of public affairs, to vote and to be elected and
access to public service.

Article 26

The right to equality before the law and equal protection

Article 27

The right, for members of religious, ethnic or linguistic minorities, to enjoy their
culture, practice their religion and use their language.

The Covenant is legally binding; the Human Rights Committee, established under
Article 28, monitors its implementation. The First Optional Protocol establishes an
individual complaint mechanisms for the ICCP. By May 2012, the protocol had been
ratified by 114 states. The Second Optional Protocol entered into force in 1991 and
aims at the abolition of the death penalty. By May 2012 it had been ratified by 74
states.

2nd optional protocol to the International covenant on Civil and Political rights,
1989

Entry into force: 11 July 1991, in accordance with article 8(1)

The States Parties to the present Protocol,
Believing that abolition of the death penalty contributes to enhancement of human
dignity and progressive development of human rights,
Recalling article 3 of the Universal Declaration of Human Rights, adopted on 10
December 1948, and article 6 of the International Covenant on Civil and Political
Rights, adopted on 16 December 1966,
Noting that article 6 of the International Covenant on Civil and Political Rights refers
to abolition of the death penalty in terms that strongly suggest that abolition is
desirable,
Convinced that all measures of abolition of the death penalty should be considered
as progress in the enjoyment of the right to life,
Desirous to undertake hereby an international commitment to abolish the death
penalty,
Have agreed as follows:
Article 1
No one within the jurisdiction of a State Party to the present Protocol shall be
executed. Each State Party shall take all necessary measures to abolish the death
penalty within its jurisdiction.
Article 2
No reservation is admissible to the present Protocol, except for a reservation made
at the time of ratification or accession that provides for the application of the death
penalty in time of war pursuant to a conviction for a most serious crime of a military
nature committed during wartime.
The State Party making such a reservation shall at the time of ratification or
accession communicate to the Secretary-General of the United Nations the relevant
provisions of its national legislation applicable during wartime.
The State Party having made such a reservation shall notify the Secretary-General
of the United Nations of any beginning or ending of a state of war applicable to its
territory.
Article 3
The States Parties to the present Protocol shall include in the reports they submit to
the Human Rights Committee, in accordance with article 40 of the Covenant,
information on the measures that they have adopted to give effect to the present
Protocol.
Article 4
With respect to the States Parties to the Covenant that have made a declaration under
article 41, the competence of the Human Rights Committee to receive and consider
communications when a State Party claims that another State Party is not fulfilling
its obligations shall extend to the provisions of the present Protocol, unless the State
Party concerned has made a statement to the contrary at the moment of ratification
or accession.
Article 5
With respect to the States Parties to the first Optional Protocol to the International
Covenant on Civil and Political Rights adopted on 16 December 1966, the
competence of the Human Rights Committee to receive and consider
communications from individuals subject to its jurisdiction shall extend to the
provisions of the present Protocol, unless the State Party concerned has made a
statement to the contrary at the moment of ratification or accession.
Article 6
The provisions of the present Protocol shall apply as additional provisions to the
Covenant.
Without prejudice to the possibility of a reservation under article 2 of the present
Protocol, the right guaranteed in article 1, paragraph 1, of the present Protocol shall
not be subject to any derogation under article 4 of the Covenant.
Article 7
The present Protocol is open for signature by any State that has signed the Covenant.
The present Protocol is subject to ratification by any State that has ratified the
Covenant or acceded to it. Instruments of ratification shall be deposited with the
Secretary-General of the United Nations.
The present Protocol shall be open to accession by any State that has ratified the
Covenant or acceded to it.
Accession shall be effected by the deposit of an instrument of accession with the
Secretary-General of the United Nations.
The Secretary-General of the United Nations shall inform all States that have signed
the present Protocol or acceded to it of the deposit of each instrument of ratification
or accession.
Article 8
The present Protocol shall enter into force three months after the date of the deposit
with the Secretary-General of the United Nations of the tenth instrument of
ratification or accession.
For each State ratifying the present Protocol or acceding to it after the deposit of the
tenth instrument of ratification or accession, the present Protocol shall enter into
force three months after the date of the deposit of its own instrument of ratification
or accession.
Article 9
The provisions of the present Protocol shall extend to all parts of federal States
without any limitations or exceptions.
Article 10
The Secretary-General of the United Nations shall inform all States referred to in
article 48, paragraph 1, of the Covenant of the following particulars:
Reservations, communications and notifications under article 2 of the present
Protocol;
Statements made under articles 4 or 5 of the present Protocol;
Signatures, ratifications and accessions under article 7 of the present Protocol:
The date of the entry into force of the present Protocol under article 8 thereof.
Article 11
The present Protocol, of which the Arabic, Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited in the archives of the United
Nations.
The Secretary-General of the United Nations shall transmit certified copies of the
present Protocol to all States referred to in article 48 of the Covenant.

Conventions and covenants Prohibiting Capital Punishment for offences

committed by persons the age of 18
The use of the death penalty for crimes committed under the age of 18 is prohibited
under international human rights standards, yet some countries still permit or
practice the execution of juvenile offenders. Such executions are few compared to
the worldwide total number of executions. However, their significance goes beyond
their numbers and calls into question the commitment of the executing states to
respect international standards.
The fact that nearly all states whose laws still provide for the death penalty have
ratified international instruments precluding its use against juvenile offenders
confirms the consensus that such use violates international law.
Since 1990 Amnesty International has documented executions of juvenile offenders
in six countries: Iran, Nigeria, Pakistan, Saudi Arabia, the United States of America
(USA) and Yemen. The country which has carried out the greatest number of known
executions is the USA.
Amnesty International opposes the death penalty in all cases as a violation of the
right to life and the right not to be subjected to cruel, inhuman or degrading
punishment. As steps towards total abolition of the death penalty, it supports
measures which limit the application of capital punishment. These include laws
which exclude the execution of juvenile offenders – people sentenced to death for
crimes committed under the age of 18.
International Standards
The use of the death penalty against juvenile offenders is prohibited under leading
international instruments relating to human rights and to the conduct of armed
hostilities. The relevant texts are as follows.
 • International Covenant on Civil and Political Rights (ICCPR): "Sentence of
death shall not be imposed for crimes committed by persons below eighteen
years of age ..." (Article 6(5))
• Convention on the Rights of the Child (CRC): "Neither capital punishment
nor life imprisonment without possibility of release shall be imposed for
offences committed by persons below eighteen years of age..." (Article 37(a))
• American Convention on Human Rights (ACHR): "Capital punishment shall
not be imposed upon persons who, at the time the crime was committed, were
under 18 years of age..." (Article 4(5))
• Geneva Convention relative to the Protection of Civilian Persons in Time of
War of 12 August 1949 (Fourth Geneva Convention): "In any case, the death
penalty may not be pronounced against a protected person who was under
eighteen years of age at the time of the offence."(Article 68)
• Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts
(Additional Protocol I): "The death penalty for an offence related to the armed
conflict shall not be executed on persons who had not attained the age of
eighteen years at the time the offence was committed." (Article 77(5))
• Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-International Armed Conflicts
(Additional Protocol II): "The death penalty shall not be pronounced on
persons who were under the age of eighteen years at the time of the offence
..." (Article 6(4))
• Safeguards Guaranteeing Protection of the Rights of Those Facing the Death
Penalty (UN Economic and Social Council resolution 1984/50, adopted on 25
May 1984 and endorsed by the UN General Assembly in resolution 39/118,
adopted without a vote on 14 December 1984): "Persons below 18 years of
age at the time of the commission of the crime shall not be sentenced to
death..."
The first six instruments cited above are international treaties, binding on all states
parties to them. The Safeguards Guaranteeing Protection of the Rights of Those
Facing the Death Penalty are not legally binding but were endorsed by the UN
General Assembly without a vote, a sign of a strong consensus among nations that
their provisions should be observed.
The nearly universal ratification of the Convention on the Rights of the Child is an
especially strong sign of an international consensus that the death penalty should not
be used against juvenile offenders. As of November 1998, 191 states had become
parties to the Convention on the Rights of the Child.

3rd UNIT

3.1 ALTERNATIVES TO IMPRISONMENT

The increasing use of imprisonment has failed to decrease the crime rate. The
relationship between incarceration rate and crime rate is indeed complex.
Dissatisfaction with the present system is widespread. Imprisonment as a
punishment often fails offenders, victims of crime and wider community. The
practice of locking up human beings in conditions of captivity challenges some of
the basic principles of humanity.
The main problem of prison administration has been related to prison overcrowding.
Prisons in most countries, including India, face dearth of resources to provide for
proper accommodation, health care and constructive activities for prisoners, leading
to overcrowding and neglect of schemes for reformation and offender rehabilitation.
Prison overcrowding adversely affects the justice system and has repercussions on
the safety and health of society.
Even construction of new prisons to accommodate the increasing prison population
is an unsustainable solution, as there is a limit to provision of pubic funds for this
purpose. However, imprisonment is costly in terms of not just financial expenditure,
it also has social costs. It damages people socially and psychologically making the
process of reintegration difficult and challenging. A parsimonious and proportionate
use of imprisonment is in accordance with the Human Rights approach to Criminal
Justice System. Hence, an important challenge today is in creating and exploring
new terrains of justice where prison no longer serves as our major anchor. The need
for penal reforms has never been greater. The introduction of concerns for human
rights concerns in the field of non custodial sanctions and crime prevention area is
of a more recent date. The use of non-institutional methods must ensure that peace,
good order and security are maintained in society.
There are special provisions in the Indian penal laws and the Criminal Procedure
Code to maintain law and order. Chapter VIII of the Code of Criminal Procedure,
1973 provides for various sections for the maintenance of peace and good behaviour
for specified period. Judicious use of these legal measures can reduce the possibility
of use of imprisonment. Reducing the high levels of imprisonment requires a
multifaceted strategy. Criminal Justice System is a complex system with the police,
prosecution, judiciary, prison authorities and social welfare agencies all affecting
and impinging each other. Some of the actions that have been taken around the world
to reduce the use of imprisonment have been related to reforming of the criminal
justice leading to decriminalization of some acts and reducing the use of detention
for those awaiting trials. There is a growing wave of introducing new alternatives to
imprisonment.
There is an increasing realization that reforms in the prison system, have not got to
be confined to just surface level focusing at strengthening the prison system, but to
gradually diminish the powers and functioning of prison system. This requires a
radical shift in our perception. Many countries in the developed and developing
world are now engaged in coming up with different alternatives to imprisonment.
There is a realization in India that there is a strong need for introducing changes in
the use of imprisonment. In India, alternatives to imprisonment are available at all
the three stages: pre-trial, sentencing and post sentencing stage with varying degrees
of success in different states.
3.1.1 Probation:
Probation is one of the outstanding non custodial measures which is designed to
work for early reformation and re-socialization of criminals while they remain in the
communities as ordinary citizens by subjecting them to certain conditions with
which they must comply.
Under the provisions of Probation of offenders Act, 1958, these measures can be
applied to offenders who have committed minor crimes for the first time. They can
be released on probation with the supervision of probation officers. Offenders may
be released on probation without the supervision of probation officers on condition
that they promise to conduct themselves well. There is also a restriction on
imprisonment of offenders under 21 years of age, if they have not committed an
offence punishable with life imprisonment. Such an offender must be released either
on admonition or probation unless there are reasons to be recorded having regard to
the nature of offence and character of offender. In some states of India, probation is
under the Department of Prisons while in other States, it is looked after by the
Department of Social Welfare. There is a need to strengthen the probation system in
India and see that it is more effectively used. Coordination with the judiciary is
essential in this regard.

3.1.2 CORRECTIVE LABOUR: AN ALTERNATIVE

The purpose of punishment has changed largely to the reformation of the offender.
The idea is that ‘the criminal is not born, he is made’. Thus, alternatives to traditional
punishment systems are being implemented. Reformative programmes such as
education for the offenders, open prisons, and forms of corrective labour are some
of the popular alternative punishment systems whose purpose is the reformation of
the offender. Corrective labour as a system of punishment is a very interesting
concept. It involves making the offender work as punishment outside prisons. Here,
he is not imprisoned. In fact, he is not separated from his family as much as possible.
Corrective labour as an alternative for traditional imprisonment was first
recommended by the Law Commission of India in its 42nd report.
WHY DO WE NEED CORRECTIVE MEASURES?
For over 100 years, there was emphasis on custody which, it was believed, depended
on good order and discipline. The notion of prison discipline was to make
imprisonment deterrent. Consequently, hard punitive labour with no regard for the
human personalities and severe punishments were the main basis of prison treatment.
Gradually, the objective of imprisonment changed from mere deterrence to
deterrence and reformation. This led to the abandonment of some of the barbaric
punishments and introduction of the system of awards for good work and conduct in
the form of remission, review of sentences, wages for prison labour, treatment in
open conditions, parole, etc. A person is not a born criminal. It is due to his
association with bad company that often leads him into trouble. A person is always
capable of reforming provided he sees his release in the society as a reward for it. If
no such temptation is provided to accused persons, he will never try to reform
himself and always languish in jails. This often leads to overcrowding of prisons and
serious health issues arise in the prisons. It is to be noted that the corrective methods
are required for the accused persons and not for under-trials. A mechanism has to be
prepared for separating under trials from convicts. Due to various corrective
measures a convict can be reformed and be released in the society because it is
always better to reform a convict than to punish a person who is already repenting
for his wrongdoing. It is ultimately the fight against crime and not criminals.
Recommendations in the 42nd Law Commission Report regarding corrective
labour
This report recommended the introduction of corrective labour as a form of
punishment for non-serious crimes. Corrective labour was recommended to be a
substitute for short term imprisonment so that the disadvantages of the traditional
jailing system, such as petty offenders associating with hardened criminals, could be
avoided. The responsibility of awarding the punishment, according to the
recommendations, lay on the court. The maximum period of corrective labour was
to be one year while the minimum period was to be a month. The focus of the
punishment would be to make the offender work as close to his home and with as
little deprivation of his freedom as possible. Thus, the work assigned to the offender
would, as far as possible, be in his district of residence. He would also receive wages
for his work but, at a reduced rate decided by the court. Repeated evasion of
corrective labour by the offender would authorise the court to punish him with
normal imprisonment. Also, the period of normal imprisonment would be calculated
such that, for every three days of the unserved term, there shall not be more than one
day of normal imprisonment. However, this scheme of punishment was not
recommended for serious crimes. Thus, criminals convicted for offences punishable
with death, imprisonment for life, and imprisonment for a term exceeding seven
years would be given their normal prescribed punishments. Thus, persons convicted
for crimes such as rape and murder, considered to be beyond reformation, are
excluded. The recommendations of the report, unfortunately, were not accepted by
the government and thus not implemented.
ADVANTAGES OF THE USE OF CORRECTIVE LABOUR AS
PUNISHMENT Corrective labour, if used properly can be highly beneficial to the
offender, the state, and most importantly, the society itself. The offender benefits
from this system as his personal freedom and liberty are not curtailed as much as
they would be if he was imprisoned. He is given an opportunity to work and earn
money, he is not separated from his family and most importantly, he is not exposed
to the evils of traditional prisons. Prisons across India, face serious problems such
as overcrowding, unsatisfactory living conditions, prolonged detention of
undertrials, staff shortage, corruption, inadequate social reintegration programmes,
poor spending on health and welfare among others. More often than not, former
convicts, find it difficult to reintegrate into society once they are released after
serving their sentences and revert to their criminal ways. It is also not uncommon
for persons convicted for petty offences to commit more serious crimes after coming
into contact with other serious criminals while in prison. The system of corrective
labour, by avoiding the need for imprisonment of a bulk of the convicts, reduces the
stress on the congested prisons. It also relieves the state from the burden of
maintaining these offenders in prisons.
Society benefits from the system of corrective labour as it has been proven to reduce
the rates of recidivism among ex-convicts. A 2015 study compared detainees in
Belgium with sentences of between six months and three years, and found that the
subjects who completed their sentence at home wearing detectable ankle bracelets
were less likely to re-offend than peers who had completed their sentence behind
bars. A reduction in the rate of recidivism will go a long way in reducing the crime
rates in a society.
IMPLEMENTATION OF CORRECTIVE LABOUR
Corrective labour, as an alternative for imprisonment, has not yet been introduced
fully in India. however, this is not to say that courts in India do not use corrective
labour as punishment. There have been instances in which courts have ordered
corrective actions as punishment for crimes. The most famous instance in which the
offender was sentenced punished with a form of corrective labour is the Sanjeev
Nanda case. The Supreme Court in this case, ordered the offender to undergo two
years of community service failing which he would be subjected to simple
imprisonment for a term of two years. While doing so, the bench noted “Convicts in
various countries, now, voluntarily come forward to serve the community, especially
in crimes relating to motor vehicles. Graver the crime greater the sentence. But,
serving the society actually is not a punishment in the real sense where the convicts
pay back to the community which he owes. Conduct of the convicts will not only be
appreciated by the community, but it will also give a lot of solace to him, especially
in a case where because of one’s action and inaction, human lives have been lost.”
There have also been other cases where the court ordered the offender to plant trees
as punishment for petty crimes. In Mukesh Mann v State of NCT of Delhi, the High
Court of Delhi ordered the offender to plant fifty trees as punishment. However, this
was consequent to the settlement of the dispute between the parties through
mediation. Courts use corrective action more often as conditions for release on
probation of good conduct under the Probation of Offenders Act, 1958, and not as
an alternative for the actual punishment. Andhra Pradesh became the first state in
India to provide legislative support for corrective action by enacting the “AP
Community Services of Offenders Act, 2007” which provides for community
service assignments for convicts in offences punishable with imprisonment of not
more than a year.

3.1.3 Fines & Compensation

A fine is a preliminary penalty imposed upon a person who is held guilty of a crime.
Fines have been a more modern development in criminal law and is a very important
instrument to punish small time offenders. However, very little attention is paid to
this form of punishment. Even in cases where a fine is imposed but the offender is
unable to pay such fine, they are sent to prison. The benefit of attaching fines to
penalties are multiple because the courts can avoid overcrowding of jails, fine acts
as a revenue for the state, fines can be adjusted according to the offenders means,
avoids the imprisonment of offender which further helps in rehabilitation in society
and much more. In the case of State v Basappa, the court held that the fine which an
offender is required to pay should depend upon his ability to pay which means that
a rich person can be fined ten times more than a poor person.
The problem with fines arises when the offender is unable to pay the fine. In this
case, Section 64 of the Indian Penal Code provides for imprisonment in default in
payment of fine. The courts have the power to sentence the person who defaults in
payment to imprisonment. This is a very regressive approach to this alternate to
imprisonment. The thing that should be adopted instead is that fines should be
allowed to be paid in installments so that the main motive of reducing imprisonment
can be achieved. A number of distinguished authors of criminal law like M.J. Sethna
have supported the idea of payment of fine on instalment basis by saying that persons
who are genuinely unable to pay fine should be allowed sufficient time for the
payment of fine by installment if necessary.
3.1.4 "Collective fine" under the SC and ST (Prevention of Atrocities) Act,
1989.
Section 16 in the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989
Power of State Government to impose a collective fine.—The provisions of section
10A of the Protection of Civil Right Act, 1955 (22 of 1955) shall, so far as may be,
apply for the purposes of imposition and realisation of collective fine and for all
other matters connected therewith under this Act.
The Scheduled Castes and Tribes (Prevention of Atrocities) Act (PoA Act), 1989,
also known as the SC/ST Act is enacted to prevent atrocities against Scheduled
Castes and Scheduled Tribes. The Civil Rights protection Act 1955 was considered
ineffective in the 1980s and therefore replaced with the ‘Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act’ in 1989 and the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Rules in 1995.
It was envisaged in the line of Article 21 (the right to live with dignity) and Article
17 (abolished “Untouchability” and its practice in any form) to bring equality and
inclusiveness in society.
Punishment:
A person not being a member of a Scheduled Caste or a Scheduled Tribe shall be
punishable with imprisonment for six months to five years and with a fine for certain
offences:
Social disabilities: fouls water sources,
Personal atrocities: forcing to drink or eat any inedible, sexual exploitation and like
acts which are derogatory to human dignity
Atrocities affecting properties: wrongfully occupying the property, forced to leave
home/village
Malicious prosecution: Filing false cases
Political disabilities: preventing from voting or being a candidate,
Economic exploitation: bonded labour
Certain serious atrocities are dealt with more stringent punishment of imprisonment
and fine.
False evidence or prosecution which convicts a victim of an offence that is capital
in nature shall be punished with imprisonment for life and with a fine. If the victim
in such a case is convicted and executed, the prosecutor shall be punished with death.
Mischief by fire or any explosive substance to damage any property shall be
punishable with imprisonment for six months to seven years and with a fine.
Mischief by fire or any explosive substance to cause destruction of a place of
worship or human residence shall be punishable with imprisonment for life and with
a fine.
Public Servants:
If a public servant not being a member of a Scheduled Caste or a Scheduled Tribe
commits any offence, shall be punishable with imprisonment for one year but which
may extend to the punishment provided for that offence.
If he willfully neglects his duties required to be performed by him under this Act,
shall be punishable with imprisonment for six months to one year.
It provides for enhanced punishment for subsequent conviction under the Act.
Duty of the Government:

The Central Government is empowered to make rules to carry out the provisions of
this Act.
The Central Government has to place on the Table of each House of Parliament a
report on the measures taken by itself and by the State Governments.
The State Government shall take such measures as may be necessary for the effective
implementation of this Act.
Like legal aid to the victims, the appointment of supervision officers, setting up
special courts
Economic and social rehabilitation of the victims
Committees for better implementation, surveys, etc
There are District Monitoring and Vigilance Committees (DVMCs) chaired by
District Collector and State Monitoring and Vigilance Committee (SVMC) chaired
by the Chief Minister.
If after an inquiry the State Government is satisfied that the inhabitants of an area
are involved in any offence punishable under this Act, the Government may impose
a collective fine on the inhabitants.
Empowers the State to take preventive action (by the law and order machinery) to
prevent atrocities and to restore the feeling of security amongst the members of the
Scheduled Castes and the Scheduled Tribes.
Investigation of an offence committed under the Act cannot be investigated by an
officer not below the rank of Deputy Superintendent of Police (DSP).
Special Courts:

For the purpose of providing for a speedy trial, the State Government shall specify
for each district a Court of Session to be a Special Court to try the offences under
this Act.
For every Special Court, the State Government shall specify a Public Prosecutor who
has been in practice as an advocate for not less than seven years for the purpose of
conducting cases in that Court.
No legal proceeding can be taken against the Central Government or a State
Government for anything done in good faith under this Act.
3.1.5 REPARATION BY THE OFFENDER/ COURT
The Reparation or Restitution Concept in the Modern Criminal Process
The ancient concept of composition or reparation to the victim has in more modem
times become incorporated into the civil law of torts. Nevertheless, vestiges of the
reparation concept are present in modem systems of criminal justice. In the German
legal system there is a process termed the "adhesive" procedure in which a civil
claim for compensation by the victim of a crime can be dealt with in the criminal
proceeding against the offender, in the discretion of the court.
This procedure is apparently utilized in about half of the German states. In pre-
Castro Cuba compensation to the victim was awarded during the criminal
proceeding against the offender, and the government established a fund, containing
the earnings of prisoners, fines and other contributions, from which the victim was
paid. The fund did not possess sufficient amounts to provide full compensation to
all victims, and compensation was often paid on a partial basis. The government was
subrogated to the right of the victim to sue the offender. At the beginning of the
nineteenth century in the United States several states had laws providing that a
person convicted of larceny, in addition to his punishment, could be required to
return to the owner an amount of money twice or three times the value of the stolen
goods or, in the case of insolvency, to perform labor for the victim for a certain
period of time." In England there are presently statutes which empower magistrates'
courts to order a person convicted of felony to pay compensation to the victim for
the loss of property resulting from the crime and to order a person convicted of
committing malicious damage to property to pay compensation for the damage.
In worldwide criminal justice system, Reparative Justice is a very modern and
important concept. According to Cambridge English Dictionary the meaning of
reparation means “payment for harm, loss, or damage that has been caused to a
person or an organization, or the fact of making such a payment”. According to
Merriam Webster Dictionary Reparation means “the act of making amends, offering
expiation, or giving satisfaction for a wrong or injury”. Therefore, it is obvious that
in every type of crime the victim or the victim’s family are the one who suffers
loss/damage whether physical, mental, economic or material. Traditional criminal
Justice system always focused mainly on aspects of punishment and reformation of
the accused and victims achieved nothing out of it. Criminal Procedure Code and
Probation of Offenders Act had clear provisions for victim compensation but due to
deficiencies in our system was always a vanishing point. Although, compensation to
victims found its place at times through various judicial pronouncements for
protection of fundamental rights. More than four decades ago Justice Krishna Iyer
rightly said “It is weakness of our jurisprudence that victims of crime and the distress
of their dependents of the victim do not attract the attention of law’’. Reparative
Justice is a victim-oriented approach which has gained importance in modern age
worldwide. India’s recent legislative framework on Criminal Procedure Code and its
effective implementation has become a turning point in Indian Judicial System.
Historical Significance
The concept of victim-centric reparative justice was present historically both in
eastern and western parts of the world. Significance of victimology was found in
ancient Hammurabi’s code and ancient Greek civilization. This concept was also
promoted by Manu in Manu smriti. Chapter VIII, verse 287 of Manu smriti clearly
says that “If limb is injured, a wound is caused or blood flows, the assailant shall be
made to pay the expense of the cure or the whole”. During the stoneage criminal
justice implied an eye for an eye or money. But this concept vanished gradually with
the advent of monarchical system when king was considered to be the head of justice
giver, one who pronounced punishments to offenders. The King generated the
concept of receiving monetary compensation. The idea of modern-day victim
compensation was introduced in 1950 by a British Magistrate and a social reformer
named as Margery Fry. United States and other European countries started a
movement and the concept of victim compensation gained significance. Canada and
several states within the United States began providing victim compensation. In the
year 1985, General Assembly adopted UN Declaration on Basic Principles of Justice
for Victims and Abuse of Power. This declaration was globally accepted.
India’s Existing Legislative Framework
Reparative Justice in India is recognised by various legislative frameworks like
Constitution of India, Probation of Offenders Act and also by Code of Criminal
Procedure. Constitution of India guarantees fundamental rights for the people of
India and any infringement of rights leads to remedies. Indian Judiciary with the help
of Constitutional machinery has fixed compensations in different cases for various
infringements of rights of the victims and therefore has ensured reparative justice in
the judicial history. Probation of Offenders Act ensures liability upon convicts. Code
of Criminal Procedure at its inception included provisions for victim compensation
but recent amendment has brought remarkable changes in the reparative justice
system of India. The present legislative framework of our country is discussed below
in detail.
Constitution of India
Constitution is the Supreme Law of the land. It lays down fundamental rights for the
people of the country. At the same time, it vests responsibilities upon the state to
protect and promote the fundamental and other rights of public. Supreme Court &
High Courts being the guardians of the Constitution uplifts constitutional values and
promotes public welfare. Public can approach Supreme Court and High Courts for
enforcement of their rights under Article 32 & 226 of the Constitution. States are
made liable to the victims for any infringement of rights. Setting of liabilities differs
from case to case. Indian Judiciary while interpreting the Constitution has played
significant roles from time to time in providing reparative justice to victims whose
fundamental/other rights has been infringed in one or the other way.
In Rudal Shah v. State of Bihar( (1983) 4 SCC 141), Hon’ble Supreme Court
ordered the state to pay a compensation of Rs 35,000 to the victim who was illegally
detained for 14 years even after Court’s acquittal order.
In Bhim Singh v. State of Jammu & Kashmir (1984 Supp (1) SCC 504), the State
was ordered to pay a compensation of Rs 50,000 to the victim MLA who was
illegally arrested and restrained from attending legislative assembly.
In Meza Singh v. SHO Police Station Zira (1991 ACJ 439), where compensation
was awarded for illegal arrest and detention of petitioner’s son.
In Prem Shankar Shukla v. Delhi Administration (1980 AIR 1535), compensation
was awarded to victim’s family for a serious issue of custodial death.
In NilabatiBehra v. State of Orissa (1993 AIR 1960), the victim was compensated
with Rupees One lakh fifty thousand who was illegally arrested and whose injured
body was found in a railway track.
SAHELI v. Commissioner of Police (1990 AIR 513), where court ordered Delhi
Administration to pay a compensation of Rs 75,000 to one Kamlesh Kumari whose
son died because of police’s illtreatment.
In case of Bodhi Satta Gautam v. Subhra Chakraborty (1996 SCC (1) 490),
Hon’ble Supreme Court invented the concept of interim compensation. In this case
the accused Bodhi Satta married one Subhra Chakraborty and cause innumerable
harm to the victim including forced abortion. Hon’ble Court in this case ordered for
interim compensation of Rs 1000 to the victim till the criminal case continues.
Probation of Offenders Act, 1958
Section 5(1) in The Probation of Offenders Act, 1958
(1) The court directing the release of an offender under section 3 or section 4, may,
if it thinks fit, make at the same time a further order directing him to pay—
(a) such compensation as the court thinks reasonable for loss or injury caused to any
person by the commission of the offence; and
(b) such costs of the proceedings as the court thinks reasonable.
The Code of Criminal Procedure, 1973
Before 2009 amendment, Criminal Procedure Code already had provisions for
compensation but the provisions were invoked sparingly. Moreover, there was no
clear mention about compensation to ‘victims. Surprisingly, the Code of Criminal
Procedure didn’t define ‘victim’. It was by the 2009 amendment the definition of
‘victim’ was laid down in the code under Section 2(wa). This indicates that a victim-
oriented approach is very recent in our criminal justice system.
According to Section 357 Cr.PC. a Court may impose sentence of fine or a sentence
where fine forms a part and that fine recovered may be applied in defraying expenses
incurred in prosecution, in the payment to any person as compensation for any loss
or injury caused by the offence, as damages to dependents of deceased where death
is consequence of such offence and to a purchaser of stolen property incurring loss.
Section 358 Cr.pc. provides the scope of compensation to persons who are
groundlessly arrested.
Section 359 Cr.pc. provides for compensation to complainant on conviction of the
accused in noncognizable offences. The Code of Criminal Procedure, 1973 cannot
be therefore regarded as a victim centric legislation. Compensation referred to in the
provisions was meant for the expenses of prosecution. In rare cases it was given to
any person suffering loss or dependents of deceased. Moreover it didn’t recognise
who a victim is and thus the concept of reparative justice to victims was almost
negligible.
3.2 PRINCIPAL TYPES OF SENTENCES UNDER THE PENAL CODE AND
SPECIAL LAWS
Death Penalty
It is capital punishment, as the criminal hangs until death. This type of punishment
is rare. Death punishment can be provided for offences under sections 121, 132, etc.
In the aforementioned sections, the court doesn’t need capital punishment.
Case law: Jagmohan Singh Vs. Uttar Pradesh (1973 AIR 947,1973 SCR (2)541)
The death penalty is not constitutional and is proved invalid as a punishment. The
Supreme Court recognised the death penalty as valid.
Life Imprisonment
The words imprisonment for life were used for transportation for life by Act XXVI
of 1955.In its ordinary connotation, imprisonment for life means being in jail for the
whole of the remaining life period of the criminal’s natural life.
As per section 57 of IPC, life imprisonment is 20 years. Imprisonment for life cannot
be simple; it is always rigorous.
Case law: Bhagirath Vs. Delhi Admin (1985 AIR 1050)
The supreme court of India defined imprisonment for life as imprisonment for the
remainder of the natural energy of the criminal.
Imprisonment
This punishment removes all the convict’s freedom and puts him in jail. There are
two kinds of imprisonment:-
Rigorous
In rigorous imprisonment, the convict works hard as a labourer. They are assigned
tasks like cutting wood, digging, etc.
Sec 194, Indian Penal Code: Providing false evidence to procure conviction of the
capital offence.
Sec 449, Indian Penal Code: House-trespass with bad intentions are punishable with
death.
Simple- Imprisonment where an accused convicted of a crime is kept in prison
without any labour or hard work.
Forfeiture of Property
Under this punishment, the government seizes all the property or assets of the
convicted. The seized property or asset may be movable or immovable. Forfeiture
of property as punishment is for offences under section 126 and section 127.
Fine
It is a kind of monetary punishment. The convict has to pay the fine as a punishment
for the offence. According to section 64 of the Indian Penal Code, if anyone fails to
pay a fine, the court can issue orders for imprisonment.
Solitary Confinement
Solitary confinement means keeping the convict isolated and away from any
interaction with the world. It comes under Section 73 of the Indian Penal Code.
3.3 PENALTIES FOR WHITE COLLAR CRIMES
Sentencing in white collar crime in India Punishment for fraud
Section 447 of the Companies Act, 2013 provides punishment against the
commission of fraud.
It states that in case a person is found guilty of an offence of fraud he would be
imprisoned for a period not less than 6 months and which extend to 10 years. And
he will also be subject to fine which should not in any case be less than the amount
involved in fraud and which may extend to 3 times the amount involved in the fraud.
In case the fraud has been committed against the interest of the general public than
the term of imprisonment would not be less than 3 years.
Punishment for false statement
Section 448 of the Companies Act, 2013 states that: if a person deliberately makes
a false statement, knowing it to be false or deliberately omits any material fact,
knowing it to be material than he would be held liable for his wrongful act. This
false statement can be made either through return, report, certificate, financial
statement, prospectus, statement or any other documents required for the purpose
mentioned under this Act or any rules made under it.
Punishment for furnishing false evidence
Section 449 of the Companies Act, 2013 provides for punishment for furnishing
false evidence.
It states that if any person gives a false evidence in a court of law:
• Either upon an examination on oath or solemn affirmation; or
• When any company is about to dissolve or otherwise also in case of any matter
arising under this Act, in any affidavit, deposition or solemn affirmation,
• He shall be punished with imprisonment and fine both. The imprisonment will not
be less than 3 years and may extend to 7 years and fine may extend to 10 lakh rupees.
Punishment when no specific punishment or penalty has been provided
Section 450 of the Companies Act, 2013 states that in case a punishment or
penalty for a crime, which has been committed either by an officer of a company
or by any other person who contravenes any of the provisions of this act, then under
this section he would be penalized with a fine which may extend to 10 lakh rupees.
In case the contravention continues the person would be asked to pay a fine which
may extend to 1,000 rupees everyday till the intervention continues.
Punishment when the default has been repeated
Section 451 of the Companies Act, 2013 lays down that, when a company or any
officer of that company commits an offence for which he has already been penalized
and has also faced imprisonment, in case commits the same offence again within a
period of 3 years, than that company and every one of those officers involved in the
commission of the offence for the second time shall be punished with twice the
amount of fine, in addition to the term of imprisonment provided in the act for that
offence. But, in case the offence was committed after a period of 3 years of
commission of the offence for the first time then this rule would not be applicable.
Appointment of adjudicating officers
Section 454 of the Companies Act, 2013 says that the Central Government, by an
order stated in the official gazette, has the power to appoint an adjudicating officer
who will have the right to adjudicate penalty under the provisions of this act. The
Central Government will also decide the jurisdiction for the officers. The
adjudicating officer can impose a penalty on the company or its officers on the
grounds of noncompliance with the given provision under the Act. In case an officer
who has been penalised by the adjudicating officer is dissatisfied with his action, he
could file an appeal to the regional director would be having jurisdiction in that
matter.
3.4 SENTENCING FOR HABITUAL OFFENDER
What is a Habitual Offender?
A habitual criminal offender, also known as a repeat offender, refers to a person who
has been previously convicted of one or more crimes in the past and is currently
facing new charges. Although many habitual offenders tend to commit the same type
of crime over and over again, a person does not necessarily have to commit the same
crime in order to be called a repeat or habitual offender.
What other factors impact the kind of penalty faced by Habitual Offenders?
Habitual offender laws and judges perspectives on dealing with a habitual offender,
can impact the type of penalty you receive. In addition to whether the crime
committed is subject to a habitual offender statute, these other factors can play a role
in determining what kind of punishment the state prosecutor will request and what
sentence the judge is inclined to order as a result:
• Whether the offense is the same charge as the last conviction;
• The time between the new offense and the last conviction;
• Whether the offender was already on probation for another crime when the
new offense occurred;
• Whether the crimes are violent in nature or related to violence like drug
trafficking;
• Whether the offender has an active substance abuse problem;
• Whether the offender suffers from a mental health issue; and/or
• Whether the offender continues to perpetuate crimes against the same victim
or place of business
What is the “Three Strikes Law”?
The “Three Strikes Law” is a law that can cause a habitual offender to face a life
sentence or extraordinarily long sentences upon a third conviction of a felony or
other serious crime within a state that has a three strikes law.
Not every state has the three strikes law, and many of these laws are under scrutiny.
So even if your state has a history of the three strikes law, make sure to check that it
has not been modified to the point where you no longer qualify.
Are there Mandatory Sentencing Guidelines for Habitual Offenders?
Depending on the state, there may be mandatory sentences for certain serious crimes
if committed by a subsequent offender. Sometimes the lengthy sentence is at the
discretion of the judge and in other cases it is mandated by the statute.
Another issue for a habitual offender involve mandatory minimum sentencing for
serious crimes that they may be subject to. If convicted of a crime that carries a
mandatory minimum jail sentence and the state imposes a habitual offender sentence
there could be consecutive jail sentences putting the offender behind bars for most
of their life.
Do i need a lawyer if i am facing habitual offender charges?
Yes. Because many habitual offender statutes can carry longer jail sentences and
heavier penalties, it is recommended that you hire a criminal defense lawyer. A
lawyer can advise you of your rights, explain the maximum penalties that apply to
your particular case, investigate any defences you may have and represent you in
court.
Failing to hire an attorney timely may prevent you from filing necessary motions
that best represent your interests. Habitual offender laws can be complicated to
understand and you want to make sure you know what crimes may subject you to
heavier sentencing
 4th UNIT

The clamour for decongesting prisons has been raging for a while now. The need
became even more acute with the coronavirus pandemic.
The Prisons Statistics of India (PSI) 2020, released recently, provides a
disappointing picture of the prisons in India suffering from overcrowding, delays in
trials and unavailability of proper medical health facilities to the prison inmates.
As we stare at potential waves of Covid-19, there is a dire need for the justice system
to look into the risks it is subjecting prison populations to, and urgently formulate
the remedies. It is important to decongest jails and adopt measures that protect the
right to life and health of the prisoners.
Prison Statistics of India (PSI) 2020
What does the PSI 2020 Present?
A. The recently released Prisons Statistics of India (PSI) 2020 gives a glimpse of
how successful the prison decongestion and medical safeguards have been.
B. The Prison Statistics India 2016, published by the National Crime Records
Bureau (NCRB).
C. The 2020 report does not contain any Covid-19 specific data.

• Between December 2019 and December 2020, prison occupancy reduced

marginally from 120% to 118%.
1) The pandemic year (2020) witnessed nearly 900,000 more arrests than in
2019.
2) In absolute numbers, in December 2020, there were 7,124 more people in jail
than in December 2019.
The increase in the share of under-trials in prisons was at an all-time high. PSI 2020
puts the percentage at 76% in December 2020: An increase from the earlier 69% in
December 2019.
The people who are undertrials are those yet to be found guilty of the crimes they
have been accused of.
What is the State-wise Scenario of PSI 2020?
 I. In 17 states, on an average, prison populations rose by 23% from 2019 to
2021, as opposed to 2-4% in previous years.
II. The appalling figures come from states such as Uttar Pradesh, Sikkim, and
Uttarakhand, which had tragic occupancy rates of 177%, 174%, and 169%,
respectively (December 2020).
III. Only Kerala (110% to 83%), Punjab (103% to 78%), Haryana (106% to 95%)
Karnataka (101% to 98%), Arunachal Pradesh (106% to 76%) and Mizoram
(106% to 65%) could reduce their occupancy of prisons below 100%.
To What Extent is the Video-Conferencing Facility Available for Trials and
How Far is it Relevant?
a) Video-conferencing(VC) promised some relief from court closures.currently,
69% of prisons have VC facilities, as opposed to 60% in 2019.
b) However, the facility is not evenly distributed across the country.
c) Tamil Nadu, Manipur, West Bengal, Nagaland, A&N Islands, Rajasthan and
Lakshadweep still have VC facilities in less than 50% of their jails.
d) Tamil Nadu, which has more than 14,000 prisoners, has VC facilities in only
14 of its 142 jails.
e) Uttarakhand, which has VC facilities in all its jails, continues to increase
under-trial numbers and has an occupancy rate of 169%.
f) It is important to keep in mind that the VC facilities only accomplish the
necessity of law that a prisoner must be produced before a magistrate every
two weeks. Fulfilling this technicality does nothing for decongestion or
effectuating speedy justice.
Where does the Availability of Medical Staff in Prisons Stand?
There remains a huge shortage of medical staff (resident medical officers/medical
officers, pharmacists, and lab technicians/attendants), leading to delays in attending
to the needs of inmates.
i. Goa has the highest vacancy (84.6%) of medical staff, followed by Karnataka
(67.1%), Ladakh (66.7%), Jharkhand (59.2%), Uttarakhand (57.6%) and
Haryana (50.5%).
ii. While Goa has only two medical staff for over 500 inmates, Karnataka has 26
for 14,308 prisoners.
iii. With a vacancy of 90%, Uttarakhand has only one medical officer for 5,969
inmates. Jharkhand’s vacancy levels are at 77.1%.
iv. In 15 states, the number of available medical staff was reduced in 2019-20;
whereas the inmate population increased by nearly 10,000.
v. Shortages in medical officer vacancies average around 34% nationally.
Mizoram is reported to have no medical officer.
vi. Only Arunachal Pradesh and Meghalaya meet the benchmark of at least one
medical officer for every 300 prisoners.
What can be the Way Forward?
Addressing Structural Deficiencies: As much as the Supreme Court’s directions and
the efforts of the prison administration are appreciated, it is also important to address
the structural deficiencies in prison otherwise the prisons will continue to remain the
places where the innocent spend an unwarranted amount of time and face unfair and
unacceptable health and safety risks.
Making Prisons Correctional Institutions: The ideal policy prescription of
making prisons into places of rehabilitation and “correctional institutions” will only
be achieved when the issues of unrealistically low budgetary allocation, high
workloads and the unmindfulness of the police regarding procedural safeguards are
addressed.
Recommendation for Prison Reforms: The Supreme Court appointed Justice
Amitava Roy (retd.) Committee which gave the following recommendations to
address the overcrowding of prisons:
a) Speedy trial remains one of the best ways to remedy the unwarranted
phenomenon of overcrowding.
b) There should be at least one lawyer for every 30 prisoners, which is not the
case at present.
c) Special fast-track courts should be set up to deal exclusively with petty
offences which have been pending for more than five years.
d) An adjournment should not be granted in cases where witnesses are present.
e) The concept of plea bargaining, in which the accused admits guilt for a lesser
sentence, should be promoted.
4.2 CLASIFICATION OF PRISONERS
In India, the question of the classification of prisoners was first prominently brought
forward by the Jail Conference of 1877 The classification of prisoners is a statutory
requirement under section 27 and 28 of the Prisons Act of 1894. It is a key to their
efficient and purposeful administration. The Classification Committee
recommended that following principles should be observed for the classification of
prisoners:
i. Men and women shall, as far as possible, be detained in separate institutions. In an
institution which receives both men and women the whole of the premises allocated
to women shall be entirely separate;
ii. Untried prisoners shall be kept separate from convicted prisoners;
iii. Persons imprisoned for debt and other civil prisoners shall be kept separate from
persons imprisoned by the reason of criminal offence;
iv. Young prisoners shall be kept separate from aduhs. The classification of prisoners
involves essentially the study of their deviant behaviour and causation with a view
to starting appropriate correctional programmes in prisons. This requires very sound
background in human psychology and behavioral sciences. Therefore, it is necessary
that the experts in this field may be associated with the classification process. Ideally,
classification should be handled by a committee with members drawn from prison
administration/corrections and experts in behavioral/social sciences. However, with
a view to start appropriate correctional programmes in prisons, the classification of
prisoners shall not only help to protect the first offender and offenders involved in
minor offences in adverse effect of association with hardened criminals but shall
also facilitate in formulating specific programmes to facilitate their treatment for
their social reformation and integration'. Classification is a method of handling
prisoners on the basis of the physical, intellectual, vocational, attitudinal and other
characteristics embodied in each individual. It recognizes that the important element
in prison management is the individual prisoner. If his incarceration is to benefit him
and society as well, he must be handled in such a way that when he serves his term,
he will come out as a better man physically, mentally and morally than when he
entered. Classification implies, first, an intensive analysis of the offender and
second, his placement in a work or school program suitable for the exercise of his
talents to the end that himself and others concerned will profit from the program^.
One of the greatest advantages of classification is that it prevents the evil effects of
contamination of prisoners having varying degrees of criminality. Classification
would also enable the prison administration to provide different types of treatment
to different categories of prisoners according to their individual capacities and needs
for reform and rehabilitation. The principle objectives of classification as laid down
in the Model Prison Manual are:
 i. to study the offender as an individual; to understand sequence of his
criminal behaviour and the problems presented by him;
ii. to segregate inmates into homogenous groups for the purpose of
treatment;
iii. to organize an over-all, balanced, integrated and individuaUzed
training and treatment programme;
iv. to review the inmates' response to institutional regime and treatment
and to adjust the programme to suit his needs;
v. to coordinate and integrate all institutional activities and to develop
a system of constructive institutional discipline; to maintain a
uniform continuity in various phases of institutional management;
vi. to ensure maximum utilization of resources and treatment
facilities available in the institution as well as in the community.
Scientific classification is a beneficient development in the
correctional work with prisoners. It is an elaborate process of
studying each prisoner and subsequently developing an
individualizing programme concerning his custodial care, medical,
psychiatric, psychological and correctional social work treatment
and educational, vocational training and work programme, etc.
appropriate to his needs. Classification permits a plarmed approach
to the problems of prisoner as a whole and it follows up the actual
progress of the prisoner at suitable intervals. Classification enables
excellent coordination between prison and after-care by organizing
the prisoners' programmes in such a way as to affect his release at a
point when he has derived the maximum benefit fi-om his stay in
prison'.
Habitual and Casual Prisoners: A habitual offender is a person who has repeatedly
committed the same crime. The nature, scope and type of habitual offender statutes
vary but generally they apply when a person has been convicted a minimum of twice
for various crimes. Habitual offender laws may provide for mandatory sentencing in
which a minimum sentence must be imposed, or may allow judicial discretion in
allowing the court to determine a proper sentence'. The practice of imposing longer
prison sentences on repeated offenders than on first time offenders who commit the
same crime is not an innovation. Habitual offenders repeat the same or related crimes
and are generally deemed beyond rehabilitation because they demonstrate no interest
in ceasing their activities. Once someone is considered a habitual offender, special
actions may be taken by the government in the interests of protecting society.
Common example of a habitual offender is when a person racks up a large number
of driving offences in a short period of time. A person may be repeatedly ticketed
for speeding or receive drunk-driving convictions in a row. These persons, called
habitual offenders, may have their licenses to drive revoked under the argument that
they clearly pose a risk to public safety and the best way to prevent further incidents
is to take away driving privileges. Other types of habitual offenders include those
who are involved in robberies, vandalism or other activities.
Convicted Prisoners: Imprisonment as a mode of dealing with offenders has been
in vogue since time immemorial. Our country shares a universally held view that the
sentence of imprisonment would be justifiable only if it ultimately leads to the
protection of society against crime. But those who are imprisoned spend half of their
lifetime in prisons awaiting their trial and they lose hope till they are sentenced by
the court and are finally called as convicted prisoners. Basically, a convicted person
is the one who is found guilty of a crime and sentenced by a court.
Under-Trial Prisoners: Right from the introduction of modem prison system,
under-trial prisoners are kept in prisons in our country. If the statistics of the under-
trial prisoners in our country is scarmed, we will find that at the end of 2007, there
were 2,50,727 UTP languishing in different jails of our country. This huge number
of UTP is the result of various factors, the main factor being delay in trials. As
mentioned in the Report of the Working Group Committee that the Criminal
Procedure Bill, 1970 contains a number of provisions which will help to reduce the
under-trial population in prisons. It has also been suggested by the Draft National
Policy on Prisons that provisions shall be made for the timely production of the
under-trial prisoners before the court(s) to facilitate speedy disposal of their cases.
Production of UTP through videoconferencing facility shall be encouraged to
expedite trial processes.
Detenue Prisoners: Detenue means any person ordered to be detained and
committed to a place of detention by any authority. Detenues are those persons who
are involved in terrorist and other militancy related activities. A detenue is not an
ordinary gun wielding militant but an ideal log of the out-lawed out-fit indulged in
the activities of preaching the cult of violence and polluting the minds of youths of
impressionable age. The actions and activities of a detenue can be of wider and
deeper ramifications to destabilize the lawfully established government and
threatening the security of the state. Thus for these reasons, these detenue prisoners
are considered as hardcore criminals.
Women Prisoners: Crime itself is not a disease though it may be due to a disease.
This is perfectly true in respect of women in conflict with law. Women prisoners
constitute a small minority and are often a neglected segment of population in terms
of the service provisions. Some of the major problems that women prisoners are
facing include separation from their families, mental and emotional health problems,
issues related to child-care and pregnancy, limited access to health and so on.
4.3 Rights of Prisoners in India
The Constitution of India ensures that every person is treated equally under the law
or provided with equal legal protection while in India. This also applies to prisoners,
who are guaranteed certain rights and should be treated as individuals. Indian courts,
including the Supreme Court, acknowledge the fundamental rights of prisoners in
India.
The Supreme Court has emphasised that regardless of the circumstances that led a
person to commit a crime, prisoners must be treated with respect and provided with
basic human rights, dignity and compassion.
Mahatma Gandhi once said, “Crime is the result of a troubled mind and prisons
should provide an environment for treatment and care.”
In the case of State of A.P. Vs. Challa Ramkrishna Reddy & Ors. (2000) 5 SCC 712,
the Supreme Court ruled that prisoners retain all their fundamental rights unless their
liberty has been constitutionally restricted.
Rights of Prisoners in India under the Prisons Act, 1894
The Prisons Act of 1894 marked the first legal framework for regulating prisons in
India. This act outlines provisions aimed at ensuring the welfare and protection of
prisoners, including both convicts and undertrials. Here are some of the key rights
granted to prisoners under this act:
Right to Adequate Accommodation (Section 4)
Prisoners have the right to receive accommodation that complies with the standards
set forth in the Prisons Act of 1894. The Model Prison Manual of 2016 also
emphasises that living conditions in every prison should uphold human dignity,
covering aspects such as accommodation, hygiene, sanitation, food, clothing and
medical facilities.
Right to Shelter and Safe Custody for Excess Prisoners (Section 7)
If any prison becomes overcrowded and it’s impractical to transfer the excess
number of prisoners to other facilities, temporary prisons should be arranged to
provide shelter and safe custody. This is especially crucial during outbreaks of
epidemic diseases within a prison.
Examination of Prisoners by Qualified Medical Officers (Sections 24 and 26)
Every prisoner is entitled to be examined by a qualified Medical Officer. The
Medical Officer should record the prisoner’s health status, any wounds or marks on
their body, their fitness for specific labour (if sentenced to rigorous imprisonment)
and any relevant observations. These records are maintained in a book kept by the
Jailer (Section 24(2)).
Female prisoners have the right to be examined by a lady matron, as per the special
or general orders of the Medical Officer (Section 24(3)).
Prisoners cannot be transferred from one prison to another unless the Medical
Officer certifies that they are free from any illness that would make the transfer
unsafe (Section 26(2)).
Prisoners cannot be discharged from prison against their will until the Medical
Officer deems such a discharge to be safe (Section 26(3)).
Separation of Prisoners (Section 27)
In a prison housing both female and male prisoners, females must be placed in
separate buildings or distinct sections of the same building. This arrangement is
designed to prevent them from seeing, conversing with or having any interaction
with male prisoners.
Prisons detaining male prisoners under the age of twenty-one should have measures
in place to separate them entirely from other prisoners, particularly distinguishing
those who have reached puberty from those who have not.
Maintenance of Prisoners from Private Sources (Section 31)
Civil prisoners and undertrial criminal prisoners have the right to sustain themselves
by purchasing or receiving food, clothing, bedding and other necessities from private
sources during appropriate hours. This is subject to examination and rules approved
by the Inspector General.
Solitary Confinement (Section 29)
Solitary confinement cells must be equipped to enable prisoners to communicate
with a prison officer at any time. Prisoners in solitary confinement for more than
twenty-four hours, whether as a punishment or otherwise, must be visited by the
Medical Officer or Medical Subordinate at least once a day.
Supply of Clothing and Bedding to Civil Prisoners and Undertrials (Section 33(1))
Every civil prisoner and under-trial who cannot provide themselves with sufficient
clothing and bedding shall receive necessary clothing and bedding from the
Superintendent.
Employment of Criminal Prisoners (Section 35)
Prisoners sentenced to rigorous imprisonment may engage in manual labour for
more than nine hours in emergencies with written approval from the Superintendent.
The Medical Officer should assess prisoners while they work, record their respective
weights on each prisoner’s history ticket and ensure they have adequate rest.
If the Medical Officer believes a prisoner’s health is deteriorating due to a specific
job, that prisoner should be reassigned to a more suitable task as determined by the
Medical Officer.
Care for Ill Prisoners (Section 37)
Prisoners who are unwell or show signs of physical or mental health issues and wish
to consult the Medical Subordinate (doctor) must be promptly reported by the
overseeing officer to the Jailer.
The Jailer, without delay, shall inform the Medical Subordinate about prisoners in
need of medical attention or who express a desire to see the doctor. They must also
follow any written instructions provided by the Medical Officer or Medical
Subordinate concerning changes in the discipline or treatment of such prisoners.
Provision of Hospitals (Section 39)
Each prison must have a hospital or an appropriate facility for the care of sick
prisoners.
DUTIES OF CUSTODIAL STAFF
A custodial officer is responsible for the upkeep and maintenance of facilities or
buildings. They clean areas daily, conduct regular maintenance inspections, replace
fixtures, perform basic repairs, rearrange furniture as necessary, and prepare
facilities for public or private use. Although their responsibilities vary depending on
the organization they work for, they are usually responsible for monitoring supply
inventories, purchasing supplies, and reporting to managers. Additionally, they must
maintain an open and transparent communication line with staff for an efficient
workflow.
CUSTODIAL OFFICER RESPONSIBILITIES:
Here are examples of responsibilities from real custodial officer resumes:
• Watch CCTV cameras and control security doors.
• Conduct rounds, answer phones and monitor the CCTV.
• Maintain booking and release records, Huber accounts, and property records.
• Assist officers in the booking of suspects; searching, fingerprinting,
transporting.
• Patrol assign areas for evidence of unauthorize activities, infractions of rules,
unsatisfactory attitudes or unsatisfactory adjustment of inmates.
• Administer basic emergency first aid and cardio pulmonary resuscitation as
needed.
DEVIANCE BY CUSTODIAL STAFF:
What is custodial violence
According to the Chambers Dictionary, the condition of being held by the police,
arrest, or imprisonment is called ‘custody’. Violence means the use of force by one
person over another so as to cause injury to him. The injury may be physical, mental,
or otherwise.
Custodial violence basically means torturing or inflicting violence on an individual
or group of persons while in the custody of the police or judiciary. According to the
Law Commission of India, crime by a public servant against the arrested or a
detained person who is in custody amounts to custodial violence. Usually, custodial
violence results in the death of the victim or trauma to the victim. It is important to
note that the term custodial violence has not been defined under any law. Custodial
violence includes illegal detention, wrongful arrest, humiliating suspects, extorting
information under pressure, and physical, mental, and sexual violence.
Some of the statistics released by the National Human Rights Commission (NHRC),
National Crime Records Bureau (NCRB), and National Campaign Against Torture
(NCAT) are discussed below:
• 151 people died in police custody in the year 2021 as per NHRC.
• 1,569 deaths in judicial custody were recorded in the year 2020 by NHRC
• 55 deaths by suicide due to police torture were recorded in the year 2020 by
NCAT
• Torture of women in custody, custodial rape of women, and gang rape were
also reported.
Types of custodial violence
The authorities come up with different types of violence for different circumstances
for purposes like extracting information or abusing authority.
Physical violence-
This is the most common form of violence used by the police. This involves using
physical force to cause bodily harm and exhaustion to the victim. In some instances,
this form of custodial violence can cause the victim to fear immediate death.
Psychological violence-
The next type of custodial violence deals with the mental aspect of the victim. This
involves depriving the victim of basic needs like food, water, sleep, or toilet thereby
causing the victim to lose confidence and morale. Humiliation or threats to the dear
ones of the victim can cause them mental agony.
Sexual violence-
Any sexual or attempt to obtain a sexual act by violence or coercion is called sexual
violence. This includes rape, sodomy, etc.
Causes of custodial violence in India
There are various causes of custodial violence by the police:
 • One of the biggest causes can be attributed to the absence of an Anti-Torture
law in the country.
• Due to loopholes in the system, the policemen do not fear being caught in the
act. This encourages them to continue with their violent methods of extracting
information or to teach their enemies a lesson.
• Lack of awareness among the public about their rights makes them easy
victims. When victims are not aware of their rights, it gives the policemen the
confidence to carry on with violent means to deal with people.
• Lack of proper training also is another cause. The policemen are not properly
trained to deal with suspects. Little attention is paid to their emotional
intelligence which remains unchecked, thereby leading to them being violent
easily.
• Lastly, the huge responsibility on their shoulders, pressurises them to use
faster methods to solve a case. Some policemen crack under this pressure and
resort to violent means to get information quickly.
Indian laws dealing with custodial violence
The lawmakers have kept this possibility of custodial violence in mind while drafting
laws that provide safeguards to citizens and place limits on the powers of the
authorities. Let’s look at each one of these safeguards:
Article 20(1) of the Constitution: Article 20(1) of the Indian Constitution provides
that, no person shall be convicted of any offence except for the violation of law in
force at the time of the commission of the offence. No person shall be subjected to
a penalty greater than that which might have been inflicted under the law in force at
the time of the commission of the offence. This article thus stops the authorities from
charging people with offences not in force at the time and also they can not subject
them to a greater penalty.
Article 20(2) of the Constitution: Article 20(2) of the Indian Constitution provides
that, no person shall be prosecuted and punished for the same offence more than
once.
Article 20(3) of the Constitution: Article 20(3) of the Indian Constitution provides
that no person shall be compelled to be a witness against himself. This stops the
authorities from coercing the accused to provide evidence.
Article 21 of the Constitution: The ambit of this article is quite extensive. It states
that no person can be deprived of life and liberty except according to the procedure
established by law. Hence it guarantees to safeguard against any form of torture,
assault, or injury.
Article 22 of the Constitution: Article 22(1) and Article 22(2) are there to ensure
certain checks exist in law to prevent abuse of power by authorities. Article 22(1)
provides that no person shall be arrested without being informed about the grounds
of arrest nor shall he be denied access to a lawyer. Article 22(2) provides that every
person who is arrested shall be produced before the magistrate within 24 hours of
such arrest excluding the time taken for the journey from the police station to the
magistrate.
The Code of Criminal Procedure (CrPC) 1973: Section 41 of the Code of Criminal
Procedure, 1973 was Amended in 2009 to include safeguards under 41A, 41B, 41C,
and 41D so that procedures for arrest and detention for investigation purposes have
reasonable grounds and the procedures to be documented. Also, family members,
friends, and the public to be informed of the arrest, and legal representation to be
allowed for the arrested individual.
Section 163 of the CrPC prohibits the investigating officers from inducing,
threatening, or promising under Section 24 of the Indian Evidence Act (1872).
Section 164(4) of the CrPC provides that confessions be recorded and signed in a
proper manner and confirmation by a magistrate that the confession has been made
voluntarily. Section 49 states that more restraint than necessary cannot be exercised
to prevent one’s escape.

Indian Penal Code (IPC) 1860: Section 220 provides for the punishment for an
officer who maliciously confines any person. Section 330 of the IPC provides that
whoever causes hurt to extract information or confession which may lead to
detection of offence shall be liable to be punished with imprisonment which may
extend to 7 years and a fine. Section 331 states the same about grievous hurt but with
imprisonment which may extend to 10 years and a fine. Section 348 of the IPC
prohibits wrongful confinement and any such confinement for extorting any
confession or information for detecting crime. Such confinement is punishable with
imprisonment of up to three years and also liable to a fine.
Indian Evidence Act 1872: Section 25 states that no confession made to a police
officer can be used to prove any offence against the suspect. Section 26 makes
confessions made during custody inadmissible unless made in the presence of a
magistrate.
Police Act 1861: Section 29 of the Act provides that if a police personnel inflicts
violence on a person in his custody, he shall be liable to a penalty not exceeding 3
months of pay or imprisonment not exceeding 3 months or both.
Landmark cases relating to custodial violence
There have been several judgements made by the Supreme Court where they have
taken steps to curb police brutality or custodial violence.
Nilabati Behera vs. State of Orissa, 1993
Facts of the case
In this case, Suman Behera, the petitioner’s son, was arrested by the police and on
the very next day, his dead body was found on the railway tracks with multiple
injuries. The police claimed that the victim had escaped from the Police Station and
was found dead on the railway tracks the next day.
o Issues involved in the case
o Whether the victim suffered injuries due to custodial violence.
o Whether the police are liable for the death of the victim.
o Judgement of the Court

The Supreme Court found that the injuries were inflicted on the victim while he was
in custody, thereby indicating that he was subjected to custodial violence. The court
held that providing compensation is the responsibility of the State and not the police
and awarded a compensation of Rs. 1,55,000.

D.K. Basu vs. State of West Bengal, 1997

This case is important because the Supreme Court in this case recognised custodial
violence and police brutality. It stated that custodial violence is an attack on the
dignity of a human being. The court noted that enacting recommendations and
policies have had no effect as a death in police custody is increasing at an increasing
rate. In this case, the Supreme Court laid down 11 guidelines that are to be followed
while making an arrest. These guidelines consist of various rights that are available
to every arrested person.
o The police personnel must bear name tags with their designations while
making arrests or conducting an interrogation.
o Arrest memo to be prepared and copy of it to be attested by a family member
or a respectable person of the locality. It must also be signed by the arrestee
and must include the date and time of the arrest.
o In cases where a relative or family member of the arrestee is not present during
the arrest, he is entitled to inform one friend or relative or other person having
an interest in his welfare, of the arrest and location of detention.
o Within 8-12 hours, the relative or friend of the arrestee must be informed of
the time, place of arrest, and venue of custody if they live outside the district
or town.
o Person arrested to be made aware of his right to inform someone of his arrest.
o An entry to be made in the diary of the place of detention, name of the friend
who has been informed, and names and particulars of police officials in whose
custody the arrestee is.
o Major and minor injuries to be recorded at the time of arrest and to be signed
by both the arrestee and the police officer. A copy of it is to be provided to
the arrestee.
o Medical examination by a doctor every 48 hours during the arrestee’s
detention.
o Copies of all documents are to be sent to the Magistrate.
o Arrestees may be permitted to meet their lawyer during interrogation.
o A police control room to be provided in all districts and arrests to be intimated
within 12 hours to the control room.
Joginder Kumar vs. State of Uttar Pradesh, 1994
Facts of the case
In this case, the petitioner, an advocate, was illegally detained after being called for
questioning by the police. After frequent inquiries by the petitioner’s family
members about his whereabouts, the petitioner was taken to some undisclosed
location. The police constantly lied about his whereabouts.
Issue involved in the case
Whether the police are guilty of illegally arresting the petitioner.
Judgement of the Court
The Supreme Court held that arresting someone without justification would make it
illegal. It also stated that the police have been given certain powers but they cannot
misuse them for illegal purposes.
Rudul Shah vs. State of Bihar, 1983
Facts of the case
In this case, Rudul Shah, the petitioner, was detained in prison for over 14 years after
his acquittal. A writ of habeas corpus was filed demanding his immediate release. A
plea was also made seeking compensation for his illegal detention.
Issue involved in the case
Whether the detention of the petitioner was justified or not.
Judgement of the Court
The Supreme Court held that the detention was wholly unjustified. It also stated that
ensuring his release and not awarding compensation would be mere lip service to
the petitioner’s fundamental right to liberty. It held that if an individual’s
fundamental right is violated by the wrongful act of the State, then that individual is
entitled to compensation. The Government of Bihar was ordered to pay a sum of Rs.
30,000 in addition to the Rs. 5000 paid by it.

Bills introduced to curb custodial violence

The Prevention of Torture Bill, 2010 was introduced to curb the problem of custodial
violence. The objective of the proposed law was to provide punishment for torture
inflicted by public servants or any person inflicting torture with the consent or
acquiescence of any public servant. The bill had defined torture and had proposed a
punishment of a minimum of 3 years and extended to 10 years in prison along with
a fine for the perpetrators of this crime.
The bill was passed by the Lok Sabha on May 6, 2010. Rajya Sabha referred the Bill
to a Select Committee which then proposed certain changes to the bill. However, the
bill lapsed due to the dissolution of the 15th Lok Sabha. In 2017 the bill was
introduced as a private member bill in Rajya Sabha and in 2018, it was introduced
in the same manner in Lok Sabha. The latter lapsed due to the dissolution of the 16th
Lok sabha.

Role of NHRC in prevention of custodial violence

The National Human Rights Commission (NHRC) was set up on 12th October 1993.
Its objective is to ensure better protection and promotion of human rights. It acts as
a watchdog over the police and issues guidelines on the process to be followed in
case of custodial deaths. It has been given powers that are equivalent to a civil court.
One of its main features includes the ability to conduct suo motu inquiries. This
ability somewhat acts as a deterrent. This is because, when the policemen are aware
of the fact an organisation is actively keeping a tab on their malpractices, they refrain
from continuing with such practices to avoid falling into trouble.

The guidelines issued by the committee include:

o In cases of custodial deaths, a magisterial inquiry would be conducted.

o The magistrate must visit the place of crime, note all relevant facts, record
evidence and identify witnesses.
o Issue of public notice to the witness.
o An inquiry should include reasons for death, events leading to the death of the
victim, suspects of the said crime, and medical treatment provided to the
victim taken into account.
o Recording of statements of family members, relatives, and witnesses.
o A detailed report to be prepared on time.

4.4 JUDICIAL SURVEILANCE- BASIS- DEVELOPMENT REFORMS

Surveillance means monitoring, collecting or intercepting data of the individual by
a third person. With advancement in technology and increased number of
telecommunication and internet users in India we are more prone to share our
personal and confidential data via the aforementioned ways of communication but
we do not know that a third person or an interceptor can collect and monitor our
data.
For avoiding this situation India have previously enacted legislations on surveillance
of a call or website. Surveillance in its strictest sense can also be proved very helpful
in monitoring national security and criminal offences, in context of this there are
certain authorities and departments which are allowed to monitor and intercept the
data of another person but also the reasons should be substantially similar to that
provided in the clauses of the legislations.
In India surveillance issues are monitored by two legislations at present, the first is
The Telegraph Act, 1885 which majorly deals with interception of calls and prohibits
third person from interception of calls and also provides authority and justified
reasons for doing so.
Another legislation relating to surveillance is Information Technology, 2000 also
known as the IT act of 2000. This legislation deals with surveillance of electronic
communication and provides necessary regulations and guidelines regarding to it.
Surveillance is being talk of the town due to contemporary issues like Peagasus
which allegedly traced data of various high profile Indian individuals. This has made
government to rethink on its policies regarding surveillance and to avoid such
happenings in future. Illegal surveillance is also a very serious threat to the privacy
of the individual which is per Supreme court's observation a fundamental right of an
Indian citizen.
Threat to privacy is implied threat to the fundamental rights of the netizens provided
in the Constitution of India. In furtherance to the same central government is also in
process of making a more regulatory and redefined legislation which deal with the
cyber issues and protection of data of an individual. It also sought establishment of
Data Protection Authority which will entertain issues relating to protection of data
and hence the privacy.
In context of aforementioned issues it is also necessary to consider and acknowledge
the perspectives various other countries and try to find out the possible methods to
tackle the third party data interception. It is also necessary to look at the perspective
of honourable Supreme court of India and various directions and observations made
by the court.
Indian Perspective
Surveillance in India is a one of a very recent issues when a spyware called Peagasus
allegedly collected data of around 300 individuals without their consent and it has
made government to rethink their laws and policies regarding surveillance as there
are currently two major legislations which deals with the surveillance in India and
these are:
The Telegraph Act 1885:
The Telegraph act of 1885 deals majorly with the interception of calls. It is an
legislation which governs the use of wired and wireless telegraphy, radio, digital
data communications. Its gives jurisdiction to government of India to establish,
maintain, operate and oversight of all types of wired or wireless communications
within the territory of India. It also provide authorization to government law
enforcing agencies to intercept communication and tapping of phone lines under the
conditions defined in the constitution of India.
This legislation deals with interception of calls and the main section which governs
it is Section 5(2) of the Telegraph act which states that in case any public emergency
or in the view of safety of public, or in the interest of public the central or state
government or any other official on behalf of the central or state government is
satisfied that in the sovereignity and integrity of India, security of country or to
prevent any offence it is necessary to do so then by the reasons to be recorded in
writing that message or any class of messages to or from any person received by any
telegraph shall not be transmitted, intercepted or detained or shall be disclosed to
government.
So under this law the government can intercept calls in certain situations like for
sovereignity and integrity of country and other which is same as the restrictions
imposed on free speech under Article 19(2) of the constitution of India.
Apart from the aforementioned conditions it is also stated that even this lawful
interception cannot be done against journalists.
Information Technology Act, 2000:
This act is commonly known as IT Act, 2000. It primarily deals with cybercrime and
electronic commerce. This legislation was framed to provide legal recognition to
transactions carried out by means of electronic communication and storage of
information. It deals with crimes which involves a computer or network located in
India.
In context of surveillance section 69 of the Information Technology Act and the
Information Technology (procedure for safeguards for Interception, monitoring and
Decryption of Information) rules, 2009 were enacted which furthered the legal
framework for electronic surveillance. Under this act all electronic transmission of
data can be intercepted. Apart from the restrictions provided in the Telegraph act
and article 19(2) of constitution , the section 69 of IT act makes surveillance broader
that is surveillance can also be used for the investigation of an offence.
Apart from these two enabling legislations the government of India had introduced
a bill named as The Personal Data Protection Bill, 2019. The bill seeks to provide
for protection of personal data of individuals and establishes a data protection
authority for the same. This bill proposes processing of personal data by government,
companies Incorporated in India, and foreign companies dealing with personal data
of individuals in India. Personal data is that type of data which when processed or
decrypted can turn out the identity or recognition of an individual.
However, at present this bill is being analysed by a Joint Parliamentary Committe
and as per the recent observations the experts are seeking that Data protection bill is
loaded in the favour of the government and it is taking focus away from individual
privacy. The Joint parliamentary committee has adopted its report after two years of
long discussion, and in this report they have suggested various modifications and
improvement including the suggestion of changing its name to 'Data Protection Bill'
dropping the word 'personal'. The report recommends that same regulator should
govern both personal and non- personal data.
Now the report of Joint Parliamentary Committee will be tabled in the Parliament in
the upcoming winter session and only time will tell that if passed in Parliament this
bill can bear good results or not.
India being a developing country needs more regulations and restrictions which can
safeguard the privacy of individuals and secure them from any type of illegal
surveillance.

Judicial Approach
The Supreme Court of India in many cases discussed about the unauthorized
surveillance and how it is violative of the fundamental rights of the citizens. Some
important observations of supreme court are-
In Public Union for Civil Liberties (PUCL) vs. Union of India supreme court
observed that there is a lack of procedural safeguards in the sections of Telegraph
act and laid down certain guidelines for interception of calls. Further supreme court
noted that the concerned authorities fails to keep the records and logs of the
interception. The court said that Tapping is a serious invasion of individuals privacy
and it is the duty of the government to protect the citizen's right to privacy which is
being abused by the authorities.
In the most recent case of Manohar Lal Sharma vs. Union Of India and Ors.
Which was based on the Peagasus spyware which allegedly intercepted and
monitored the data of around 300 people in India, SC observed that:
Members of the civilised democratic society have a reasonable expectation of
privacy and every citizen of India ought to be protected against violation of privacy
and by referring to the famous K.S Puttaswamy v. Union of India in which
supreme court had held that:

Privacy is a constitutionally protected right and emerges as a fundamental right

under Article 21 of the constitution and any law which encroaches upon the privacy
of the individual must meet the requirements for restriction of fundamental rights
mentioned under the constitution. By this supreme court clearly stated that any type
of violation in the privacy of an individual like unauthorized or unreasonable
surveillance must cease to exist.

In the context of illegal surveillance of various journalists and press members

Supreme Court in Anuradha Bhasin vs. Union of India held that Journalists are to be
accommodated in reporting and there is no justification in allowing a sword of
Damocles to hang over the press indefinitely.

Supreme court has observed that state has right to deny the certain information if
they fall under the reasonable restrictions of Article 19 clause 2 but other than this
if state try to encroach a fundamental right of a citizen then this can not be accepted
and suggested that Union of India should not be in adversial position when
fundamental right of the citizens is in threat.

So from these few cases discussed, it is evident that Supreme court is of opine that
illegal surveillance is undoubtedly a threat to right to privacy and at various point in
time suggested the government of India not to encroach upon the fundamental rights
of the citizen unless it is reasonable and bona fide according to Article 19(2) of the
constitution of India, and also that if in case surveillance seems to be an reasonable
option then concerned authorities must keep an record and logs of the data
adequately so that the fundamental rights of citizen are not at par.