PUNISHMENTS UNDER INDIAN CRIMINAL LAW:

CURRENT SCENARIO
Divyanshi Gupta*

INTRODUCTION

In India, the concept of punishments has been prescribed and enshrined in ancient mythological
texts and artifacts like the Mahabharat, Vishnu Puran, Ramayana, and Durga Saptshti, as well
as in legal codes and law books of the modern era like the Constitution of India, the Indian Penal
Code, 1860, the Code of Criminal Procedure, 1973, and the Bhartiya Nyaya Sanhita Bill, 2023.
With the advent of time and progress in society, the relevance and application of theories of
punishment have evolved considerably.

TYPES AND THEORIES OF PUNISHMENTS CITED IN ANCIENT TEXTS

Punishment, or Danda, in ancient Bharat was usually sanctioned by the king with a bench of
ministers and legal officials in the backend. It was the duty of the king to protect his people and
punish those who violated the dharma, or rule of law. The duties of the king are discussed in the
Manava-Dharamasastra, also known as the Manusmriti or Code of Manu, which also provides
for types of punishments. It introduced criminal jurisprudence in the country and a
comprehensive code of ordinances related to law and order. This digest provides for basically
four types of punishments that were based on:

1. Vakdanda, or admonition: This form of punishment was awarded for the offenses of
least severity. It involved rendering a strict oral warning to the person violating any rule
or regulation.

2. Dhikdanda, or censure: This was a type of social punishment where the wrongdoers
were strongly criticized for their act, which also included punishments like restrictions on
making any sort of contact with the public, banishment, social boycott, etc.

3. Dhanadanda, or fine (penalty): This was a form of financial punishment that was
generally imposed for wrongs like violation of land or revenue laws, traffic rules, etc. A
particular amount as a fine decided by the king or his court was applied to the person who
violated the law of the land.

4. Badhadanda, or physical punishments: This included the forms of punishment intended

to inflict any sort of physical pain on the culprit. The thought behind this form of
punishment was that a wrongdoer must suffer pain proportionate to what he has inflicted
on an individual or society as a whole. This form of punishment included punishments
like flogging, mutilation, branding, imprisonment, stoning, pillory, immurement,
*
Authored by: Divyanshi Gupta 5th year, Amity Law School, Lucknow (Authored on: 18th September, 2023)
 execution by elephant, etc. These forms of punishment were imposed for offenses of a
severe nature.

The theories of punishment prevalent in ancient India were primarily of a deterrent and
retributive nature. These theories were based on the idea that punishment is the only way of
social control for crimes committed in the kingdom and that punishments must be vicious,
sadistic, and ruthless. Thus, the punishments in ancient India were very torturous and barbaric in
nature. There was no regard for human life and human rights. People believed that inflicting
corporal pain and harm equivalent to what an offender had inflicted on any individual or society
was the only way for rehabilitation and the maintenance of law and order.

Although there used to be a king to formulate and implement laws to provide justice, due to the
absence of a codified set of sanctions, people were under constant fear of being harmed.
Especially, the rights of the weak, young, and women were always compromised, as these
sections of society were easily dominated and overpowered by the strong and powerful.

During the ancient Indian period, the caste system was pervasive, and there was a clear
distinction made between people of higher and lower castes while imposing punishments. During
that time, the powers of a judge were also very limited and kept in check, as the king was
supreme. Also, there wasn’t a single codified law in the country, which led to the exploitation of
several backward and depressed sections of society who had little to no representation in
legislative and administrative functions.

TYPES AND THEORIES OF PUNISHMENT IN MODERN LAW

In the modern era, some of the ancient forms of punishment are still prevalent, but saying so, a
lot of them have gone through metamorphosis as well. Today, the Indian judiciary is widely
guided by the reformatory theory of punishment. The belief that individuals can be transformed
with the right treatment has come to dominate the system of punishment. Therefore, theories of
punishment prevalent in modern times focus on serving offenders with punishments that are less
brutal and more reformative. Also, the severity of punishment is in proportion to the offense.

 Constitution of India: “To no one will we sell, or deny, or delay, right, or justice”.
Earlier, due to the absence of a united codified law in the country and due checks and
balances in the powers availed by the king and his minister’s arbitrariness prevailed in
the society, which led to the exploitation of several marginalized and weaker sections of
the society. Then, in the year 1946, a constituent assembly was formed, which composed
the Constitution of India. It came into force on January 26, 1950, and is also the world’s
largest handwritten constitution.

Various fundamental and constitutional rights provided by the Constitution of India to the
people of India facilitated the movement of the Indian penal system from primarily
emphasizing deterrent and retributive theories of punishment to reformative and
expiatory theories of punishment. Several provisions in the Constitution vest the
appellate courts and the President of India with the power to grant pardon, remission, or
reprieve, respite, suspend, remit, or commute the punishment given to an offender under
Union law if they are of the opinion that the punishment granted is of a harsher nature
and is not
 parallel to the gravity of the offense committed. Such norms make sure that an offender is
not deprived of the right to life, personal liberty, and the right to live with dignity. This is
done to ensure that he gets a chance to restore his social life and be a law-abiding citizen.

Along with that, the separation of power between the legislative and executive,
aggregated with the presence of judicial review and freedom to press or media,
collectively makes sure that no person is wrongfully punished, punished through
retrospective application of criminal law, or punished twice for the same offense, as
“1000 culprits can escape, but not one innocent person should be punished”.

The concept of the rule of law that “no one is above the law” provides that the law is
supreme and that even if the state infringes on the fundamental rights of a citizen, he, as
per the constitution of India, has the right to move directly to the High Court or the
Supreme Court and ask for replenishment of his rights.

 Indian Penal Code, 1980: The Indian Penal Code was codified in 1860, during British
rule, and it gave the forms of punishment to be used in modern India. Section 53 of the
IPC, 1860, describes the existing forms of punishment in India:

 Capital Punishment

 Life Imprisonment

 Rigorous Imprisonment

 Simple Imprisonment

 Forfeiture of property

 Fine

Among the types mentioned in the IPC, capital punishment has been the one loathed the
most by the penologists. As the scope and implementation of human rights widened,
several movements opposing capital punishment commenced, as it is the most severe and
irrevocable form of punishment provided in modern criminology. Therefore, the intrinsic
nature of a sentence providing capital punishment is considered violative of the right to
life.

The irreversible nature of capital punishment prompted the doctrine of rarest of rare 1,
which is to be applied whenever such a judgment is passed. The death penalty is
considered an alternative form of punishment, not a mandatory one. So, when the court is
of the opinion that sentencing a person to anything other than judicial execution will not
serve justice to the victim, only then is it executed.

1
Bacchan Singh v. State of Punjab, MANU/SC/0055/1982
 The president of India and appellate courts, even after capital punishment is executed
against the accused, have the liberty to suspend such execution. There have been several
cases in which the death penalty was pronounced against an offender for committing the
most heinous crimes, but still, his punishment was commuted into life imprisonment.
This happens because our criminal justice system believes in protecting humanity and
human rights more than anything. Therefore, only the heinous-of-heinous crimes where
the offense committed is against the entire society and not an individual are executed,
while the people with less gravity in their crimes are saved from their ultimate end, i.e.,
death. The cases of Amroha2, Nirbhaya3, and the 26/11 attack4 are classic examples of
this theory’s application.

 Code of Criminal Procedure, 1973: In a democratic India, the duty of maintaining law
and order falls on the judiciary. The Code of Criminal Procedure, 1973, lays down the
notches of a criminal trial. It also provides for some punishments of a reformative and
expiatory nature; for instance, provisions laid down in sections 106 to 110 with respect to
furnishing security bonds against offenses of a trivial nature. Though it is not a
punishment under the Indian Penal Code, 1980, it has served as a utilitarian approach to
restrain a person from committing an offense.

 Bhartiya Nyaya Sanhita Bill, 2023: Introduced in Lok Sabha on August 11, 2023, this
bill repeals the Indian Penal Code, 1860, which is the principal law on criminal offenses
in India. This bill comprehensively covers five categories of offenses, which include:

a. crimes against the human body like murder, rape, and assault;

b. crimes against property like theft and extortion;

c. crimes disturbing public order like terrorism, riots, and unlawful assembly;

d. crimes against public health, decency, morality, and religion;

e. crimes against the state like waging war against the government and
treachery; and

f. defamation.

According to Section 4, Chapter II of this Sanhita, the types of punishment for which the
offender is liable are:

A. Death;

B. Imprisonment for life, that is to say, imprisonment for the remainder of a person’s
natural life;

2
Shabnam v. State of Uttar Pradesh, MANU/UP/1124/2014
3
Mukesh and Another v. State for NCT of Delhi and Others, MANU/SC/0575/2017
4
Md. Ajmal Md. Amir Kasab Abu v. State of Maharashtra, MANU/SC/0681/2012
 C. Imprisonment, which is of two descriptions, namely: —

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

(2) Simple;

D. Forfeiture of property;

E. Fine;

F. Community Service5

The bill introduces and penalizes offences like: -

● terrorism;

● organized crimes;

● importing of girls under the age of 21 for illicit intercourse with another person; and

● importing of boys under the age of 18 years for illicit intercourse with another

person. It also enhances the penalties for certain grave existing offences like: -

● capital punishment for gang rape of a minor and

● simple or rigorous imprisonment up to 10 years and a fine for the act of sexual
intercourse with a woman through deceitful means or a promise of marriage without
intending to fulfill it.

The bill also introduced community service as a form of punishment for certain petty offenses.
This is a purely reformative type of punishment. Thus, the Sanhita, unlike the IPC, not only
focuses on deterrent or retributive forms of punishment but also gives preference to reformative
punishments so that the purpose of punishment not only declines with inflicting pain
proportionate to what the offender inflicted on an individual or society but also looks into how to
rehabilitate him.

CONCLUSION

To conclude, it is pertinent to state that society is comprised of various thoughts, which are
enshrined in the theories given by various scholars and penologists of that time. The
development of society and changes in its structure are the laws of nature. The concept of
punishment originated to punish those who break the laws, but the method and form of
punishment have changed over time and space in society. The major reason behind this change is
the development of constitutional norms and the enrichment of education in society.

5
Section 4 Bhartiya Nyaya Sanhita Bill, 2023
Every theory of punishment is good as well as bad, depending on the structure of society, the
person, and the personality of the offender and the offense committed. On comparative
evaluation, we also witness that there are countries that haven’t changed with time, but a country
like Bharat has given importance to the human and constitutional rights of people to make sure
that no person is deprived of their basic rights.