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PENOLOGY Prof. U. S. Dive Assit. Prof. Bharati Vidyapeeth, New Law College Pune Chapter 1 Introduction The word penology is derived from two Greek words: poine and logos. Poin e means punishment and the meaning of logos is discourse. Thus penology means a discourse about punishment or a science of punishment. In the modern parlance it means the study of punishment in relation to crime and the derivative meaning i s the management of prisons. The main problems which are studies under Penology are: ( 1) ( 2) ( 3) ( 4) ( 5)

Nature and scope of Penology; Methods of Penology; Purpose and Object of Penology; Theory of Penology; and Significance an and Va Value of of pe penology.

Definition of Penology Some of the definitions given by eminent scholars of penology are as fol lows:(1) (1) F. Lieb Lieber er – Pen Penol olog ogy y is is “th “that at branc branch h of of cri crimi mina nal l sci scien ence ce whic which h occ occup upie ies s its itse e lf, ought to do so with the punishment of the criminal”. This is rather a narrow t echnical definition of the subject. It emphasizes only the punishment of the cri minal, while penology covers many other aspects of punishment, crime etc. It stu dies, for instance, not only what? And how? punishment but its why? As well, tha t is, the principles behind punishment and the aim and object of punishment. (2) (2) Dr. Dr. P. K. Sen Sen – Peno Penolo logy gy oug ought ht to to “lay “lay dow down n the the fund fundam amen enta tal l prin princi cipl ples es tha that t should guide the state or the sovereign authority in framing its scheme of punis hment”. This definition clearly brings out the fact that the question of punishmen t relates to the sovereign authority of the state and the government. It also ma kes it clear that penology is the science which aims to guide this sovereign aut hority in matters of punishment of the criminal. (3) (3) Fair Fairch chil ild d – Peno Penolo logy gy is “tha “that t fiel field d of of app appli lied ed soci sociol olog ogy y whi which ch deal deals s wit with h th th eory and methods of punishment of crime”. The foregoing definitions of penology make it plain that this is highly speciali zed branch of knowledge; that it is an applied branch having practical bearings; that it covers with crime and punishment; and that the punishment is determined and guaranteed by a sovereign authority. SALIENT FEATURES OF PENOLOGY In order to appreciate the full range of penology, it is necessary to understand the salient feature of penology. The eminent criminologist D. R. Taft has enume rated the following salient features of penology:(a) (a) Peno Penolo logy gy is a tec techn hniq ique ue of puni punish shme ment nt and and ref refor orm m of of cri crimi mina nals ls. . (b) (b) It is is the the func functi tion on of of crim crimin inol olog ogy y to for formu mula late te eff effec ecti tive ve and and con const stru ruct ctiv iv e techniques to keep and maintain social peace and security. The aim and objecti

ve of these techniques is to suppress crime and criminals. (c) (c) Peno Penolo logy gy hel helps ps in in esta establ blis ishi hing ng and and man manag agin ing g the the inst instit itut utio ions ns of of refo reform rm, , probation and correction. (d) (d) Besi Beside des s help helpin ing g the the refo reform rm of of crim crimin inal als, s, pen penol olog ogy y also also hel helps ps in in brin bringi ging ng about social harmony and peace. (e) (e) Peno Penolo logy gy form formul ulat ates es and and appl applie ies s certa certain in coll collec ecti tive ve prin princi cipl ples es for for the the re form of society in general and of the criminals in particular. PENOLOGY AND CRIMINOLOGY Indeed, penology is a branch of criminology. The science of criminology studies crime in relation to society and person’s psychology. Penology is specifically con cerned with the punishment in relation to crime; it investigates into the raison d’etre of punishment and its use in preventing and controlling of crime. Further, criminology tries to lay down and establish the criterion whereby we can distin guish between crime and non-crime, that is, what type of activity or behavior co nstitutes criminal behavior. Criminology also classifies various kinds of crimes and criminals. After the determination of the types of crime, suitable punishme nt for each is prescribed. The prescription of punishment is the task of crimino logy itself; but the application of the punishment and the formulation of practi cal rules thereof is the task of penology. Penology also studies the techniques of punishment. According to Dr. Sethna, “Penology deals with the principles and me thods of punishment.” Thus, it is plain, that there is an intimate mutual relationship between penology and criminology. The science of criminology, in its theoretical medica tions upon the nature and rationale of punishment, draws upon the practical expe rience gained in Penology in regard to punishment. The study of penology tells u s about the effects of punishment upon the criminal and its effectiveness as an instrument of crime control. In view of the consequences of punishment, criminol ogists modify their theories of punishment. The theoretical perspective represen ted by criminology undergoes modification in response to the practical perspecti ve represented by penology. Penology, too, draws heavily upon criminology for ad option of successful rational and humane methods of punishment. Therefore, as po inted out by Dr. Sethna, “The study of criminology is a necessary complement of th e study of penology”.

SCHOOLS OF PENOLOGY Penology is now a fully developed science. There are differences of view-points among scholars regarding the questions like aim and object of punishment and the most appropriate methods and techniques of punishment. On account of these diff erences, a couple of schools have sprung up in penology. The main schools of pen ology are the following: ( 1) The Classical School. ( 2) The Positive School. The Classical School In the annals of penology, the classical school occupies a place of pride. This school was founded in the 18th century and prior to it many barbarous methods of punishment were prevalent. The criminals used to be confined to dark chambers o f forced to live in snake pits or were kept in complete isolation. Besides many mechanisms for exerting extreme pressure on limbs and many prosses for squeezing and strangulation were used. Far worse was the practical of burning the crimina l alive. The classical school arouse as a protest against these barbaric and cru

el techniques of punishment. In this period magistrates had the discretion to aw ard any penalty. The motive behind this was laudable but in actual practice it w as greatly abused. A great deal of corruption in the magistracy crept in a conse quence of the arbitrary use of the magistratial powers. The chief proponents and supporters of classical school were Rousseau, Bentham, Feurbach and Maudsley. T he views of these thinkers are: (1) (1) Rous Rousse seau au. . Rous Rousse seau au was was a supp suppor orte ter r of the the clas classi sica cal l scho school ol. . His His view views s on social, political and legal matters were based upon the “social contract” theory. A ccording to Rousseau the need for the punishment arose in order to protect the i nterests of the collective body and its validity also lies in the fact that with out the provision of punishment the interests of the society are imperiled. Rous seau put forward 3 main points to establish and indicate the views of the classi cal schools. Firstly, he propounded a special philosophy of law. Secondly, he pr opounded the theory of free-will. According to this the crime is a result of man’s own thinking and action and that there are no social or political compulsions w hich may be said to motivate him for crime. The criminal and non-criminal act bo th are alike products of free choice the man. The third principle propounded by Rousseau was that each person was mostly responsible for his actions and that th e punishment for wrong actions was morally justified. On the basis of these thre e principles, Rousseau formulated his classical theory of punishment. According to him, man had willingly accepted the punishment was theoretically valid and ju st on moral and legal grounds. Each agent was responsible for his action arid it was in fitness of things that the wages of sin should be punishment. (2) (2) Becc Beccar aria ia. . Befo Before re putt puttin ing g forw forwar ard d his his view views s on puni punish shme ment nt, , Becc Beccar aria ia cons consi i ders it essential to make explicit his views on the nature of crime. According t o M. Baccaria the distinction between crime and non-crime is drawn by the law in force. It is the law of the land, which declares certain acts to be criminal. T his law is established by the sovereign authority consisting of parliamentarians of the elected political representatives of the people who in virtue of their l egislative authority establish and promulgate the law. The purpose and the goal of punishment is social security, the protection and safeguard of the interests of the society. Therefore, Beccaria was of the view that the provision punishmen t should be such as to produce quick results and be efficacious in safeguarding social interests. Regarding the quantum and gravity of punishment Beccaria expre ssed his views elaborately. According to him the quantum of punishment should be in direct proportionate relation to the gravity of the crime, that is, for seri ous crimes, the quantum should be high and for the lighter and venial crimes it should be low. The scale of punishment should vary from mere reprimand to senten ce of death. Basically, the justification of punishment, according to Beccaria, is the welfare of society, which cannot be maintained in the absence of the prov ision of punishment. (3) (3) Jere Jereme mey y Bent Bentha ham. m. Jer Jerem emey ey Ben Benth tham am was was als also o a sup suppo port rter er of of the the clas classi sica cal l s chool. He subscribed to the theory of utilitarianism and believed in philosophy of hedonism according to which every man pursued his pleasure as is pleasant and to avoid the unpleasant and painful. In legal philosophy he subscribed to the v iew that the end of legislation should be the production of maximum good of the maximum number. The aim of punishment should be proportionate to the gravity for crime and while awarding punishment; all the circumstances of crime should be t aken into account. (4) (4) Feur Feurba bach ch. . Feur Feurba bach ch was was a Germ German an. . Acco Accord rdin ing g to him, him, pun punis ishm hmen ent t was was noth nothin in g but a sequel to and consequence of the violation of law. The aim and object of law is the maintenance of social order and to inflict penalty on all those who break the law. The law-breaking is a threat to social order and peace. According to Feurbach, criminology and penology were complementary of each other. Accordi ng to him, law without punishment could no exist and the punishment without law is arbitrary, meaningless and injurious.

(5) (5) Maud Maudsl sley ey. . Maud Maudsl sley ey had had som some e orig origin inal al ide ideas as abo about ut pen penol olog ogy. y. He He beli believ eved ed t hat the aim of punishment was neither the feeling of revenge nor the reform of t he criminal. The real purpose of punishment is to check the criminal intentions of man. The feat of punishment is to check the criminal commission of wrong and injurious acts. The punishment metered out to a criminal is an example for other s and serves as a warning that similar actions on their part would be visited by similar punishment. Maudsley believed in the exemplary theory of punishment; an d, according to him, the punishment should be quick and harsh. The use of ‘punishm ent’ is a means by which fear of crime can be aroused in people. Maudsley believed that the true purpose of punishment is the welfare of the society. Though the p unishment is harsh, it serves as an example, excites fear of crime in general pu blic, and thus really minimizes the occurrence of crime and in this way promotes the welfare of the society. The Positive School The second prominent school of penology is called the positive school. It arose as a reaction to the views of the classical school. The uniqueness and special m erit of this school lies in the fact that its principles were based upon practic al research. All proponents of this school were of the view that any fruitful un derstanding of the problems of punishment is possible only by giving emphasis to criminals than to crimes. The penal code should also be based upon the study of criminals rather than crime. The chief proponents of this school were: (1) Caesare Lombroso; (2) Garofalo; and (3) Enrico Ferri e. (1) (1) Lomb Lombro roso so. . Acco Accord rdin ing g to Lomb Lombro roso so, , pena penal l code code is is esse essent ntia ial l for for the the soci societ ety y ; without provision of punishment for the law-breakers and an agency to enforce these provisions, no society can sustain itself even for a day. The aim and purp ose of punishment is the maintenance of social order and the check and control o f antisocial activity. Of course, the punishment should be based upon the types of criminal and not the types of crime. Lombroso suggested physical peculiaritie s as the basis for the classification of criminals. Lombroso also recommended th e nature of punishment for each type. According to him the habitual murderer sho uld be sentenced to death. The sex offenders should not be treated harshly. A pe rson committing incest, rape, fellation, homosexuality, exhibitionism or voyeuri sm is usually considered very abominable. But sex criminals are not habitual; th ey indulge in peculiar sex because of lack of normal avenues of sex expression. Therefore they should be given an opportunity to reform themselves. The mad pers on should not be given any punishment whatsoever. Lombroso was of the view that there should be no imprisonment. The criminals should be exiled. (2) (2) Garo Garofa falo lo. . Gar Garof ofal alo, o, too, too, had had the the vie view w ver very y aki akin n to to tha that t of of Lom Lombr bros oso. o. He was of the opinion that a serious criminal should be physically exterminated. Th e murderer should be sentenced to death and other serious crimes should be punis hed either by life-term imprisonment or exile. The less serious criminal may onl y be fined and spared imprisonment. (3) (3) Ferr Ferrie ie. . Enri Enrico co Fer Ferri rie e was was a dis disci cipl ple e of Lomb Lombro roso so. . He cons consid ider ered ed pun punis ishm hme e nt very essential to the prevention of recurrence of crime. The punishment shoul d be used to inspire fear of crime among the general public. Ferrie also suggest ed making environmental changes to check the control the crime. According to him crime and criminals is as a matter of fact product of the social circumstances.

PUNISHMENT Notion of Punishment in law. One of the earliest and most simplistic definitions of punishment was given by H ugo Grotius who defined punishment as the infliction of an ill, suffered fro an ill done. Stephen Schafer in his Introduction to Criminology (1976) defines puni shment as the enforcement of responsibility for violating a prescribed order tha t is ruled by a power more powerful than the violator. This is a good general de finition of punishment; however, from a criminological point of view, punishment can be defined as a penalty or sanction given for any crime or offence. Punishment has been with human society and human beings from the inception of so ciety. The mother’s light tap on the baby’s back-side is his first whiff of punishme nt fro ‘doing wrong’. Many have argued that punishment is a necessary concomitant of law and that laws without punishment/sanction are not true laws. The ‘Command-Dut y-Sanction’ model of law enunciated by John Austin has punishment (sanction) as on e of the three pillars of a legal system. It is argued that people are obliged to obey the law whether or not they like it , as the same is the command of a sovereign backed by sanction/penalties. Punish ment is an evil attached to a command. Punishment is, therefore, a coercive fact or. It is a stick by which you enforce the law. Punishment is, as necessary to l aw as law is necessary for the society. However, the highest level of civility a nd socio-legal advancement will be said to have been achieved when a society has laws without sanction and yet such laws are obeyed. Punishment is a negative, which seeks to restore the moral balance; and to that extent it is an ethical necessity. To be a punishment, it must be seen and felt to be a negative. When this purpose is not achieved, punishment looses its purpo se and effectiveness. This is possible in certain circumstances as when terroris ts purposely want to be arrested, tried, convicted and sentenced. Here, undergoi ng the punishment is the most important and crucial part of their agenda; in suc h circumstances punishment will not deter. Similarly, there is another category of people such as the aged, beggars and poverty stricken who deliberately commit crimes to get into prison, where they have access to those necessities which th ey cannot have otherwise. For these unfortunate people punishment is a reward! Sanctions or punishment can be seen through diverse filters. It has to be unders tood that not all punishments are by way of legislative enactments. Some of the most powerful deterrents are moral and social sanctions. Moral sanctions are internal to a person and depend upon his moral psyche and th e strength of his convictions and beliefs (at times religious beliefs). Moral sa nctions in the form of conscience pangs, inner restraint and sanctions of the so ul do not coerce but yet have a profound effect on controlling behavior. Thus, w hen we are about to commit a wrong (moral and/or legal) something inside us tell s us to refrain from doing it and if we persist in doing it, in a way hounds us subconsciously. It is a self inflicted punishment, a type of control mechanism. Social Sanctions unlike moral sanctions are imposed directly or indirectly by so ciety and the popular mores and customs of society. Humans have an inherent need to be appreciated like and ‘wanted’ by all around us; and social sanctions like soc ial boycott, excommunication and ostracism isolate the perpetrator. It is this i solation and social dislike which constitutes the punishment. It is indeed a ver y powerful behaviour control mechanism for those who believe that they are part of a society or commune.

Legal sanctions are imposed by the legislative enactments of laws. It comes from a law giver. The lawgiver may be a Monarch, the Legislature or the President. T he law is seen to be a command which imposes a duty and the failure to fulfill t he duty attracts legal sanction or punishment. COMMAND

DUTY

SANCTION

Legal sanctions or punishments may be remedial or punitive. Remedial Sanctions a re ones which afford to give a remedy to the injured person. They are curative i n nature. Thus, under our legal system we have injunctions (an order by a Court to a party to refrain from doing a particular act) and restitution (the act of r eturning a thing property so as to revert the situation to its old position) whi ch are remedial or curative punishments. On the other hand, punitive sanctions actually inflict punishment upon the trans gressor. Punitive sanction is the rough treatment, aversive stimulus or the puni shment given to an offender. The ultimate remedy or punishment is capital punish ment wherein the offender pays with his life. Corporeal punishment is the punish ment to the physical body by way of dismemberment, castration, whipping etc. Eve n today, many legal systems (though not India) allow corporeal punishment, such as Saudi Arabia, Pakistan, Iran, Singapore, etc. In short, under corporeal punis hment the offender is physically ‘hurt’ by the law enforcers as part of a legislativ ely sanctioned (legal) punishment. Imprisonment constitutes the deprivation of l iberty by the command of the state. Imprisonment is the act of confining a perso n or offender to a prison. Its simplest and most benign form is the house arrest , where the offender is confined to his own house and is not allowed to go outsi de it, but does not otherwise lose any other privileges. The second type of impr isonment is the simple imprisonment, wherein the offender is confined to a priso n and his liberty is taken away such that he loses may rights and is subjected t o the strict regimen of the prison rules but he prisoner is not subjected to any hard work. Simple imprisonment is given under the Indian legal system for light crimes such as eve teasing, drunken brawls, refusal to take an oath, refusal to accept official summons, contempt of court etc. Rigorous Imprisonment on the ot her hand entails not just loss of liberty by punishment. Under the Indian legal system, grievous offences attract the penalty of rigorous imprisonment. Solitary confinement means such confinement or imprisonment with or without hard labor, which entirely secludes the prisoner, both from sight of, and communication with , other prisoners. In India, solitary confinement is governed by Section 73/73 o f the Indian Penal Code, 1960. Compensation as a form of punishment entails a re paration or making good the loss inflicted by the offender. It means that the of fender has to pay a monetary on other hand entails a pecuniary payment made to t he State by the offender by way of a punishment. Fine constitutes a certain amou nt of money exacted as a penalty and paid by the offender to the State or a depa rtment of the State. Most penal provisions under the Indian Penal Code, 1860 all ow both imprisonments and/or fine. Lastly, there are quasi-legal sanctions which are governed by the internal rules and regulations of a particular organization or body of persons. Quasi-legal sa nctions emanate out of contractual or quasi-contractual relations. Thus forfeitu re (such as of shares for non-payment of call money), debarment (say of a share broker from trading) or rustication (say of a school boy from school) are all fo rms of quasi-legal sanctions. TYPES OF PUNISHMENT

PUNISHMENT OF PRESNENT AGE Punishment is a means of social control, H. L. A Hart with Mr. Bean and Professo r Flew has defined “punishment” in terms of five elements; 1) It must must invo involv lve e pai pain n or or oth other er cons conseq eque uenc nces es norm normal ally ly cons consid ider ered ed unpl unplea easa san n t. 2) It must be for an offence against le legal rules. 3) It mu must be be an an ac actual or or su supposed of offender fo for hi his of offence. 4) It must must be inte intent ntio iona nall lly y admi admini nist ster ered ed by huma human n bein beings gs othe other r than than the the off off ender. 5) It must must be impo impose sed d and and admi admini nist ster ered ed by an auth author orit ity y cons consti titu tute ted d by a leg leg al system against which the offence is committed. According to Greenhut, three components must be present “if punishment is to act a s reasonable means of checking crime.” I) “spe “speed edy y and and ines inesca capa pabl ble e det detec ecti tion on and and pro prose secu cuti tion on must must conv convin ince ce the the off offen end d er that crime does not pay, II) II) “aft “after er Puni Punish shme ment nt, , the the offe offend nder er must must hav have e a “fai “fair r cha chanc nce e of of a fres fresh h sta start rt”, ”, an d III) III) “The “The sta state te whi which ch cla claim ims s the the righ right t of pun punis ishm hmen ent t must must uph uphol old d supe superi rior or val vales es which he (offender) can reasonably be expected to acknowledge”. Sutherland and Cressey have mentioned two essential ideas while defining the con cept of punishment. a) It is infl inflic icte ted d by by the the grou group p in in its its corp corpor orat ate e cap capac acit ity y upo upon n one one who who is is r egarded as a member of the same group. War is not punishment for in war the acti on is directed against foreigners. The loss of status which often follows crime is not punishment, except in so far as it is administered in measure by the grou p in its corporate capacity. b) Puni Punish shme ment nt invo involv lves es pain pain or suff suffer erin ing g pro produ duce ced d by by des desig ign n and and just justif ifie ied d b

y some value that the suffering is assumed to have. If the pain or suffering is merely accidental, to be avoided, if possible, it is not punishment. A surgical operation performed on a prisoner to correct a physical defect is not punishment , for the pain is not regarded as desirable. The idea of involving pain or suffering in awarding the punishment has been modi fied in view of modern reformatory methods introduced recently in dealing with t he criminals. For instance, probation, parole or pardons are treated as substitu te for the punishment. Even in the prison, the basic idea is not to inflict pain or suffering but to teach the convict the methods and techniques including tech nical training, to make the prisoner a law abiding citizen.

ELEMENTS OF PUNISHMENT There are 10 most important components or characteristics of punishment. 1. Puni Punish shme ment nt is appl applie ied d by empl employ oyin ing g coer coerci cion on and and can can be enfo enforc rced ed even even aga aga inst the will of the punished. 2. Puni Punish shme ment nt is a meas measur ure e adop adopte ted d and and enfo enforc rced ed by the the stat state. e. Priv Privat ate e puni punis s hment meted out by parents, teachers, employers, the community etc. is outside t he scope of penological consequences of crime. 3. Puni Punish shme ment nt or the the limi limits ts of puni punish shme ment nt are are stip stipul ulat ated ed in adva advanc nce e by the the state. Punishment very clearly embodies the principle of nulla poena sine lege – t here is no punishment without the law. 4. Puni Punish shme ment nt is appl applie ied d by comp compet eten ent t orga organs ns of the the stat state e in a prop proper erly ly con con stituted legal procedure. Due process is the name of the game. Thus. Thus if a m urderer is lynched by the people, then such a punishment is not punishment in th e criminological sense. 5. Puni Punish shme ment nt is gene genera rall lly y bel belie ieve ved d to to be be dir direc ectl tly y enf enfor orce ced d on on eac each h ind indiv ivid id ual personally. Any sort of ‘collective punishment’ is outside the scope of penologi cal punishment. 6. Puni Punish shme ment nt is disa disadv dvan anta tage ge desi design gned ed to act act as a nega negati tive ve and and to hurt hurt the the receiver of the punishment – mentally, emotionally, physically or financially. 7. Puni Punish shme ment nt is the the cons conseq eque uenc nce e of crim crime. e. The The proh prohib ibit ited ed act act must must be list liste e d and defined as a crime in the law books. 8. Puni Punish shme ment nt is appl applie ied d in the the name name and and defe defenc nce e of the the soci societ ety. y. 9. Puni Punish shme ment nt is disa disapp ppro rova val; l; and and exp expre ress sses es cond condem emna nati tion on by the the sta state te. . 10. 10. Prev Preven enti tion on of of crim crime e is main main rea reaso son n fro fro the the exis existe tenc nce e of pena penal l prov provis isio ions ns in law books. Chapter 2 THEORIES OF PUNISHMENT The purpose of criminal justice is to punish the wrong doers. He is punished by the state. The first question that arises about the administration of criminal j ustice is as to what the purpose of punishment is or what is the end of criminal justice? From very ancient times, numbers of theories have been given concernin g the purpose of punishment. All punishments take place within a society’s ordinary legal and penal systems. In the past, several reasons have often been given for the justification of the pu nishment. One of these reasons is retributivism. Another reason historically ass ociated with utilitariusm is that punishment serve to deter others from offendin g, that is deterrence. The third reason is that partly that punishment or a prac

tice of treatment, secures the fewer offences will be committed in the future, b ut not through deterrence. It could be described as reformative aspect. These re ason each with variants and complexities; have been known as theories of the jus tification of punishment. 1. The theory of deterrence Deterrence is usually defined as the preventive effect which actual or threatene d punishment of offenders has upon potential offenders. The principle of deterre nce is of ancient origin and has been prominent throughout history in crime syst ems of punishment. Deterrence, according to Sir John Salmond is: “Punishment is before all things deterrent, and the chief end of the law of crime is to make the civil-doer as example and a warning to all who are like minded wi th him.” On the other hand the modern criminologists have frequently dismissed the deterr ence principles as unjustifiable and all types of punishment as stigma barbarism . The deterrent effect of a particular type of punishment depends upon the followi ng factors: 1. 2. 3. 4. 5. 6. t , and

the the the the the the the the his

soci social al stru struct ctur ure e and and valu value e syst system em unde under r cons consid ider erat atio ion, n, pa particular po population in in qu question, type of law being upheld form and magnitude of the presc escribed penalty certainty of apprehension and punishment, and indi indivi vidu dual als s know knowle ledg dge e of the the law law as well well as the the pres prescr crib ibed ed puni punish shme men n definition of the situation relative to these factors.

The primary function of punishment is to deter by fear i.e., to make the evil-do er an example and a warning to himself and to others who are like minded with hi m. The object of punishment is to show in the last analysis that crime is never profitable to offender, or. As Locke observed, to make crime “an ill-bargain to th e offender”. 1) nd 2) ed

The Deterrent theory does not always achieve the end in view. Example: Hard Harden ened ed crim crimin inal al beco become mes s acc accus usto tome med d to to the the seve severi rity ty of the the pun punis ishm hmen ent t a therefore no amount of deterrence prevents him from indulging in crime. It fail fails s to to aff affec ect t an an ord ordin inar ary y cri crimi mina nal l to, to, for for man many y a cri crime me are are com commi mitt tt in a moment of excitement, provocation or anger.

The doctrine concerning deterrent punishment has been closely associated with th e primitive theories of crime and criminal responsibility. In earlier times, cri me was attributed to the influence of ‘evil spirit’ or ‘free-will’ of the offender, so t he society preferred severe and deterrent punishment for the offender for his ac t of voluntary perversity which was believed to be challenged to God or religion . The efficacy of deterrent aspect of punishment can be pointed out with reference to Islamic law of crimes as applied in Saudi Arabia. Muslim law of crimes like other laws of medieval ages is very severe in its application to offenders. For example, mutilation of limb as a punishment in case of theft. In State of Maharashtra v. R. J. Gandhi and others (1997), the Court observed th at the decision of this court referred to above on the question of sentence the message is loud and clear that no person who commits or attempts to commit a rap e shall escape punishment.

In Kamal Kishore v. State of Himachal Pradesh (2000), the Court observed that th e Supreme Court enhanced the sentence of imprisonment for 7 years (for the offen ce of rape) as there were no mitigating circumstances to impose a sentence less than minimum. In State of Karnataka v. Krishnaappa (2000) (Rape case), a three judges bench of the Supreme Court awarded sentence of 10 years RI as awarded by trial court but reduced by High Court to 4 years RI. Merits and Demerits of Deterrent theory Merits: • Acts Acts on the the mot motiv ive e of of the the offe offend nder er make makes s cri crime me an illill-ba barg rgai ain. n. Crim Crimes es are are nor norma mal l ly committed with some ulterior motive. Deterrence strikes at this motive. • Sets Sets an exam exampl ple e unt unto o oth other ers s and and prev preven ents ts comm commis issi sion on of crim crime. e. Dete Deterr rren ence ce and and pre pre vention go hand in hand. • The The Ref Refor orma mati tive ve theo theory ry has has adv advoc ocat ated ed undu undue e sof softn tnes ess s in in the the pena penal l pol polic icy. y. The The det det errent theory checks that undue softness. • It sugg sugges ests ts a car carro rot t and and stic stick k pol polic icy y to to dea deal l ste stern rnly ly with with the the cri crimi mina nals ls. . • The The det deter erre rent nt theo theory ry in its its pra pract ctic ical al appl applic icat atio ion n is is ver very y sim simpl ple e esp espec ecia iall lly y whe when n compared with the reformative theory. Demerits: • Inhu Inhuma man n and and barb barbar aric ic pena penalt ltie ies s are are just justif ifie ied d by by det deter erre rent nt theo theory ry such such as flog floggi gin n g, lynching, boiling, stoning etc. • The The fea fear r ele eleme ment nt shou should ld not not be be the the sole sole crit criter erio ion n in in inf infli lict ctio ion n pun punis ishm hmen ent. t. It p roduces a memorializing effect. • It is inco incons nsis iste tent nt with with the the con conce cept pts s of of ref refor orma mati tion on and and reh rehab abil ilit itat atio ion. n. • It sacr sacrif ific ices es an indi indivi vidu dual al at the the alt altar ar of soci societ ety. y. It comp comple lete tely ly subo subord rdin inat ates es the individual to those of the society. • Hist Histor ory y has has show shown n tha that t sev sever ere e pun punis ishm hmen ent t has has neve never r red reduc uced ed crim crimin inal alit ity y to to any any ma rked degree. It has been shown that in some states of U.S.A where death penalty is abolished, there is far lesser number of homicides than in states where the p enalty still exists. • The The hum human an mind mind at time times s doe does s not not resp respon ond d to to fea fear r and and dete deterr rren ence ce as expe expect cted ed. . To To the religious fanatics, terrorist’s etc. deterrence does not work. Obedience t law is not always out of fear.

2. The utilitarian theory of punishment The utilitarians view punishment as a means to achieve certain ends with the aid of criminal law. Punishment must serve as an instrument for reducing crimes eit her by deter in the offender and others from doing similar acts in future or it should prevent the commission of offences by incapacitating the offenders. Refor mation of the offenders through punishment is also sought to be achieved, throug h the efficacy of the punitive approach in the reformation of the offender is ex tremely doubtful. The Utilitarianism is the doctrine that actions derive their moral quality from their usefulness as means to some end. It is the ethical theory held by Jeremy B entham and John Stuart Mill that the greatest human happiness determines the hig hest moral good. It advocates ask whether or not a certain course of action tend s to make mankind happier and better, and by this test they approve or condemn. It seeks the greatest happiness for the greatest number of people and finds the basis of morals in utility.

Application of Utilitarianism principles to punishment “There is one, and one only, valid reason for punishing any offender; and that is not to avenge crime but to prevent it”- Lord Chief Justice Cockburn. Sir Linoel Fox quotes the example of the 18th century judge who passed sentence of death, saying, “You are to be hanged not because you have stolen a sheep but in order that others may not steal sheep.” Hugo Grotius assigned two conditions to punishment. You have to ask Ob Quod (for what offense?) as well as Cuius ergo (To what end?) The utilitarian legislator combines Prevention, Deterrence and Reformation. It i s a middle path between the ‘old fashioned’ faith in retribution and the ‘new fangled’ r ejection of all penal methods of dealing with crime. Propositions on which the utilitarian theory of punishment is formulated: 1. rong.

To puni punish sh mere merely ly beca becaus use e a wron wrong g has has been been done done is simp simply ly to do a fre fresh sh w

Punishment is only justifiable if it looks to the future and not to the past. Th e original wrongful act has caused pain and therein lies its wrongness; but you do not necessarily mend matters by punishing. On the contrary, the one thing you do, immediately and certainly, is to cause more pain. Unless you can expect som e further useful consequence of punishment, you are only making matters worse. Y ou are adding a second evil to the first; and one and one make two and not zero. Hence you must not only abstain from punishing the possibly innocent; you must not punish even the undeniably guilty merely because they are guilty.

2. Howe Howeve ver, r, wher where e puni punish shme ment nt of a wron wrong g may may reas reason onab ably ly be expe expect cted ed to prev preve e nt future wrongs, then it becomes a duty to punish. We should be frugal in causing pain. But if by punishing one offender, there is hope of deterring other prospective offenders then, such punishment will clearly economize in human misery, in spite of the initial outlay. Punishment will be j ustified so far as it appears likely to prevent more evil in the long run than i t produces immediately. “punishment is an investment – a capital hazarded in expecta tion of profit”. So said Jeremy Bentham. 3.

Dete Deterr rren ence ce: : puni punish shin ing g to make make the the cri crimi mina nal’ l’s s fate fate a warn warnin ing g to othe others rs. .

The primary purpose of punishment is to deter not so much the criminal himself a s other potential criminals. If punishment is to serve as a warning, it must be made as public as possible. It was Bentham who made the distinction between real and apparent value of punishment. The real value is the effect which punishment has on the victim and constitutes the cost of penalty in terms of suffering. Th e apparent value is the effect it has on the minds of the community and it is th is that gives us the profit gained by the infliction of penalty. He claimed that the real value should be as small and the apparent value as large as possible. A secret punishment is a waste. 4. So far far as comp compat atib ible le with with gene genera ral l goo good, d, puni punish shme ment nt shou should ld be devi devise sed d to promote welfare of the punished, by curing hi of his present anti-social bias wh ich menaces his own happiness as well as that of other people. Thus reformation does form a part of the utilitarian theory.

5. It is wron wrong g if if the the outl outlay ay (in (in pai pain) n) is disp dispro ropo port rtio iona nate te to the the mis misch chie ief f of the offence. Death of speeding may end this sort of anti-social conduct, but the price paid w ould be too great. It was Benthamite influence which, in 40 years reduced the nu mber of capital offences in England from about 200 to 4. 6. Seve Severi rity ty of puni punish shme ment nt is a very very infe inferi rior or dete deterr rren ent t in comp compar aris ison on with with i ts certainty and promptitude. The criminal is a gambler; he gambles on his chance of escaping punishment. So l ong as there is a chance, no hypothetical severity will deter him, but if the av enues of escape are bleak even a mild punishment will deter, if it is sure and p rompt

3. Theory of Retribution. Retribution is probably the oldest and most ancient justification for punishment . “You hurt me and I will hurt you” is its literal meaning. The justification of ret ributive theory of punishment is that the criminal is to be punished simply beca use he has committed a crime. We have to observe that Lex Telionis, an eye for a nd eye, a tooth for a tooth cannot be a justification for punishment in the mode rn society. This theory intends that a man deserves punishment because he has ac ted wrongfully. What retributionists have insisted upon is that no man can be pu nished unless he is guilty i.e. unless he has broken the law. Limitation of the theory: In the present correctional context, it cannot be upheld. The abolition of the c oncept of physical torture and public punishment in the modern society is an ind ication that goes against this theory. 4. The Preventive theory According to this theory the object of punishment is to prevent a criminal from committing crimes in future by rendering the offender incapable of the offense e ither permanently or temporarily. The theory believes that the prime purpose of any punishment is to make sure that the criminal does not commit the act again. The best way to prevent a person from committing a crime upon society is to deta ch him from society. Hence imprison a person for his wrong so as to keep societ y out of his bounds. The death penalty is the most sever form of the preventive theory put into practice. As a off-shot of preventive view regarding crime and criminals the development o f prison institution gained momentum. The supporters of preventive philosophy re cognized imprisonment as the best mode of punishment because it serves as an eff ective deterrent as well as a preventive measure. Merits and Demerits of Preventive theory Merits: •

Ther There e is is no no dou doubt bt that that soci societ ety y is is pro prote tect cted ed adeq adequa uate tely ly from from a par parti ticu cula lar r cri crimi mina na

l by placing the criminal under detention. • Ther There e is is no no dou doubt bt, , tha that t cri crime me prev preven enti tion on is the the pri prime me purp purpos ose e of of pun punis ishm hmen ent. t. The The practical problem is to discover how punishment can best achieve this end. • It has has to to be be und under erst stoo ood d tha that t the the prev preven enta tabl ble e the theor ory y ent entai ails ls that that ther there e sho shoul uld d be be use of the minimum penalty, which could effectively achieve the object of crime prevention. Thus, maiming, blinding, and mutilation were never really the crime objectives of the prevention equations; these were needless and barbaric. Demerits: • To effe effect ctiv ivel ely y pro prote tect ct soci societ ety y and and give given n the the norm normal al reci recidi divi vism sm rate rates, s, pris prison oner ers s will have to be kept behind the bars for virtually an eternity. The protection of society will cease as soon as the criminal is released unless something is do ne to cleanse him from within. • The The pre preve vent ntab able le theo theory ry at time times s lea leads ds to very very inhu inhuma man n tre treat atme ment nt of offe offend nder ers, s, as when a hand is cut off for stealing. • The The rep reper ercu cuss ssio ion n on on the the life life of a cri crimi mina nal l who whose se body body part parts s hav have e bee been n dis disme memb mber ere e d entails a permanent punishment, so is death penalty, which are not in any way reversible. This would be even more unfortunate in a case where the criminal is later shown to have been innocent. • By taki taking ng away away an impo import rtan ant t bod body y par part t of of an an off offen ende der r you you rend render er usel useles ess s to to sel self f and society. When a thief’s hand is chopped off, it becomes even more difficult fo r him to return to normal behaviour. 5. Reformative theory of Punishment This theory is of recent origin. It makes a study of the psychology of the crimi nal and takes punishment as a means to a social end. It says that the offences a re committed under the influence of motive up to the character. Therefore, they can be checked either by a change of motive or by a change of character. The def ective mental condition of the criminal is also a reason for the commission of c rime. In other words, crime is the result of a disease. This theory puts more em phasis upon the personality of the offender and considers him to be a patient wh o should be given a proper treatment. It takes punishment not as to end in itsel f, but as a means to an end. It approaches criminology from a sociological and u tilitarian point of view. In short, according to his theory the purpose of punis hment should be to reform the criminal and to make him a good citizen. “Crime is a pathological aberration; the criminal can ordinarily be redeemed. The state has to rehabilitate rather than avenge. The subculture that leads to anti-social be haviour ha to be countered not by undue cruelty but by re-culturisation. Therefo re the focus of interest in penology is the individual and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of r eshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defence. Therefore, a therapeutic rather than an “in terrorem” outlook, should preva il in our criminal courts; since brutal incarceration of the person merely produ ces laceration of his mind.” In modern times, this theory has been put in practice in some classes of cases.

Chapter 4 CAPITAL PUNISHMENT

The Capital punishment is the severest type of punishment because nothing can be more painful, crueler to an individual than being deprived of the very life and existence. Of course there are many ways of putting men to death, some of which are nerve rackingly and excruciatingly painful while others may be less painful or not painful at all. For example, unskinning, burning alive, limb by limb cho pping or being thrown to wild animals are harrowing and most barbaric ways of ki lling, whereas electrocution in the gold-chair as practiced in America is almost painless death because it takes not more than a couple of seconds to be dead. H owever the end in all these cases is the same, namely, physical extermination. T hus death penalty is ne plusultra (the ultimate limit) of punishment. In Ancient Rome the father used to be head of the family and he had the right to pass deat h-sentence even on his own children. But in modern times this right is restricte d to the state only. In ancient times, a criminal was considered not only a lawbreaker but also a bad man and a sinner. Now days, the outlook on criminal is co mpletely changed. Instead of being considered a sinner he is looking upon as a p erson who has become a victim of adverse and vicious circumstances. Therefore, c apital punishment is given to very few and select variety of crimes only. Even t hen, there are many eminent thinkers who strongly disapprove of the capital puni shment and strongly plead for its abolition. As a matter of fact there are quite a few countries in the world in which the capital punishment has been abolished and this has not lead to any rise in the incidence of murders. The capital puni shment is not a murder, even a legalized killing, as suggested y some but is, in fact, a negative reward for unlawful and immoral activity. The law of majority of the nations of the world provides for death penalty for killing. If a person knowingly and in a premeditated manner commits murder he is liable to receive de ath penalty and usually does. THE CRIME ATTRACTING CAPITAL PUNISHMENT What are the crimes, which are punishable by capital punishment and ought to be punished, are rather controversial matters and there is diversity of opinion amo ng scholars on these questions? Different scholars consider different crimes to be worthy of death penalty. In different countries different crimes are declared to be punishable by death penalty. For example, in certain countries rape is pu nishable by death. In olden times, sexual intercourse with animals was punished by death. According to I.P.C., murderer and sedition, if proved beyond doubt are punishable by death. Every murderer is not hanged; but if a person who had alre ady served a life term imprisonment happens to commit murder again he is sure to be hanged. In the history of penology is to be observed that the number of crim es, which attracted death, has been constantly falling. Indeed, in the18th Centu ry in a number of countries as many as 200 crimes attracted death penalty. HANGING FESTIVALS In different countries and at different times various methods of executing death sentence were employed. It was believed in old times that by using most painful methods in executing the criminals it would lack as a deterrent to future hangi ng festivals, in which mass executing the criminals it would act as a deterrent to future criminals. Inspired by this faith, in 18th Century England there used to be hanging festivals, in which mass execution would be carried out on a parti cular day in the full public view. The Superintendent of Hails used to invite th e dignitaries of the town to come and watch the hanging. Large crowds used to ga ther on these occasions and there used to be great merrymaking, dancing drunkenn esses and brawls. The London News paper describing one such public execution in 1864 reported that people in their Sunday best suites turned out in very large n umber and from great distances to watch these public hangings. There used to be such a great rush to occupy front positions and good seats that on a particular occasion such a tremendous mass of people came to watch the festival of hanging that after execution it was discovered that more than 100 persons lay dead on ac

count of stampede and fights. In Paris, too, the public execution was a great oc casion. A particular public execution which was witnessed by Casanova is describ ed by him in his Memoirs. The rebel Daimenes be torn into two pieces. Such was t he public enthusiasm that a middle-aged woman was so enraptured by the scene tha t she did not know for long that a youngman on her back was having carnal knowle dge of her. These festivals failed in their purpose and people instead of being impressed by the wrongness of crime used these as a source of entertainment. Acc ordingly these were discontinued. METHODS OF EXECUTING DEATH PENALTY In ancient times extremely cruel and perverse methods of killing a man were empl oyed. In some places the criminal was roasted alive in the scalding oil and at o ther places he was killed by red hot iron bars. The children of Guru Gobind Sing h were done to death by placing them between two walls and closing it overhead a nd thus deoxygenating them. At some place wild tigers, dogs, wolves were used to let the criminals being eaten alive. In a far eastern country a woman accused o f adultery was made to accept the Phallus of an elephant, as a result of which s he invariably died. But none of these barbaric, harrowing and spine-chilling sce nes prevented people from committing crimes. An English executor John Price who had done scores of people to death himself committed the crime which made him di e at the gallows. As the use of cruelty and barbarism failed to produce the desi red result of acting as crime-deterrent, and instead itself became something of feast to the eyes and called to fore the virus of sadism. Lurking under every sk in, therefore, a movement was started to reduce the pain of death execution, as a result of which new methods of less and les pain producing have been discovere d. The following are the different methods being used in modern times – (1) (1) Hang Hangin ing. g. In this this meth method od of exec execut utio ion n a rope rope is tied tied arou around nd the the nec neck k of of t he accused and the platform on which he stands is removed and as he falls in the well underneath and due to exertion of pressure on the Adam’s apple, the neck joi nt is split and the man dies instantly. The method of hanging is currently used in India for death execution.

(2) (2) Behe Behead adin ing. g. This This is a met metho hod d in in whi which ch by some some shar sharp p ins instr trum umen ent t the the neck neck o f the accused is cut and his head and trunk fall in two pieces. In France, durin g revolution, this was the most used method of execution. This was called guillo tining. In this the man used to lie prone with his neck on the platform. A heavy cutter was then allowed to fall from high altitude. The speed and sharpness of the instrument made the short work of the accused in seconds. This method has an element of barbarism through death is produced in a jiffy. Accordingly, it is n o longer in use anywhere in the world. (3) (3) Shoo Shooti ting ng. . In this this met metho hod, d, the the cri crimi mina nal l was was blin blindf dfol olde ded d and and made made to to stan stand d with his back to the fireman. Volleys of shots were aimed at the man and he lay dead in a minute. This is the most popular method of execution in the Army all over the world. It is also being used in the communist countries. (4) (4) Elec Electr tric ic chai chair. r. This This is by far far the the mos most t pai painl nles ess s met metho hod d of of exe execu cuti tion on. . It It is being used in U.S.A. in this method; the accused is made to sit in a chair m ade of pure gold. There is electric wiring connecting it wit the mains. As the s witch is pulled an extremely intense shock rocks the person and he dies. (5) (5) Leth Lethal al gas. gas. In this this the the acc accus used ed is loc locke ked d in in a her herme meti tica call lly y sea seale led d roo room. m. From a tiny hole a deadly gas is poured into the room. This produces intense su ffocation ad the man dies in a short period. The notorious sex sadist Charyl Che ssman who indulged in perverse sex of forcing nubiles to fellate him and also ra ped them anally was executed by this method.

ARGUMENTS IN FAVOUR OF CAPITAL PUNISHMENT Of all the above method of execution, the method of lethal gas is the costliest and that of hanging the cheapest. However, the main consideration in the method of execution is not that of cost but that of humanitarian feeling. However, befo re dealing with the method it must e known whether the capital punishment is jus t and reasonable. Following arguments are adduced to justify the capital punishm ent. (1) (1) Capi Capita tal l puni punish shme ment nt is is a def defin init ite e dete deterr rren ent t to crim crime. e. The The chi chief ef arg argum umen ent t that is offered to justify the continuance of the capital punishment is that it acts as a deterrent to recurrence of crime. That is the general public when it f inds that the wages of murder are death and degradation. It deters from or suppr esses those emotions which make a man violent and hostile. Besides if the fear o f death is removed from the consciousness of people they would commit murders ve ry lightly knowingly that maximum punishment, if caught and convicted, they can have is a term in jail. Lombroso is an ardent advocate of death penalty. However the empirical evidence does not beat out this argument. In the countries where death penalty is given, there is no decline in the number of murders year by yea r, and in those countries where capital punishment has been abolished there is n ot significant increase in the number of murders. (2) (2) The The cap capit ital al puni punish shme ment nt is a Mor Moral al War War. . A dis disci cipl ple e of of Mr. Mr. Lomb Lombro roso so, , Mr. Mr. G arofalo was of the opinion that capital punishment is a weapon by which the soci ety fights a moral war against the inveterate criminals and incorrigible immoral ists. How can society protect itself from Jack the rippers who have sexual inter course and then cut up victims of their lust into pieces? The capital punishment is the only deterrent for such perverse souls. But as has been stated earlier, the capital punishment and its constant reminder to the public can hardly succeed in keeping them off from killing. The Royal Br itish Commission stated in 1866 that out of 167 criminals who were condemned to die 164 had previously witnessed the hangings. The emotional zeal or ever zeal i s beyond rational control. (3) (3) The The capi capita tal l puni punish shme ment nt is is a Soc Socia ial l Need Need. . Acco Accord rdin ing g to emin eminen ent t crim crimin inol olo o gist Victor Hugo capital punishment is a social need and that it is imperative f or the maintenance of social order and law and order in the society. In the abse nce of capital punishment people would openly resort to murders. Now-a-days, capital punishment has been abolished in a number of countries. But not only there has been no increase in the number of murders but, in fact, there has been downward trend in these cases. (4) (4) The The capi capita tal l puni punish shme ment nt is is a Sel Selec ecti tive ve Pro Proce cess ss. . Acco Accord rdin ing g to Haec Haecke kel l the the capital punishment is a selective process. It is a method by which Nature elimi nates those individuals who are dangerous for the society and whose continued ex istence in the society poses a threat to social law and order. According to Plat o, the famous Greek philosopher, “If a man cannot be harmless otherwise than in sl eep, it is better from him to die than live.” However this view is without any basis. If a man has committed a murder his elim ination from the society is no effective solution. As a matter of fact, it creat es more problems than it allegedly resolves. Firstly, if a person has been wrong ly implicated, and certain facts are revealed after his execution which conclusi vely proves his innocence, a grave injustice has been done and society cannot re deem itself in any way. Secondly, murderers are men of extreme nature and violen t passions. They are out of the ordinary. If only there can be suitable environm ent, it is quite possible that these persons may prove out to be men of extraord

inary abilities who will benefit society a great deal. If these persons are give n life-term imprisonment instead of death sentence the above problems can be sol ved. (5) (5) The The cap capit ital al puni punish shme ment nt is a Leg Legal al Dem Deman and. d. The The sup suppo port rter ers s of of the the capi capita tal l punishment contend that the capital punishment is a legal demand. If a killer is let of unpunished this would militate against the majesty of the law and gradua lly the respect for law will vanish from the society; and a society in which the respect for law is gone will go to dogs. Moreover if a killer is let off unpuni shed, his killing instinct will get a boost and the realities of the victims wil l feel depressed, morose and sullen. Losing faith in law and justice they may th ink of avenging the wrong at the personal level. Therefore it is necessary that the law breaker is punished. (6) (6) The The capi capita tal l puni punish shme ment nt is is Econ Econom omic ic Sav Savin ing. g. Acc Accor ordi ding ng to to the the supp suppor orte ters rs o f the capital punishment, the capital punishment is more economical in the sense that by letting the criminal die that state saves all the expense it has to und ertake in feeding and housing the criminal for 10 years or more. This argument is, however, entirely baseless, because the criminal who serves a life-term in jail does not only deal and drink but is made to do the labor. Ther efore he is not an economic burden as it is made out to be. Granted for the sake of argument that the criminal has to be fed, therefore, it is economically advi sable to kill him, but this argument is at the same level as the argument that s ince India at present is facing serious shortages all persons beyond a particula r age should be killed. (7) (7) The The capi capita tal l puni punish shme ment nt is Huma Humani nitar taria ian. n. The The supp suppor orte ters rs of capi capita tal l puni punish sh ment argue that the capital punishment is perfectly humanitarian. Ordinarily, it is true that no one who has not the power to make life has the right to take it . But considered in the total social perspective we find that it is not absolute ly possible to follow this injunction. We have to kill vipers and poisonous anim als and birds to make the life of general humanity possible. If e does not destr oy dangerous animals, birds and insects, humanity will fold up its chapter on th is earth in no time. Similarly by killing the murderer, the sadist rapper and a cruel man we allow others to live in peace and security. For example, if it is r umored that some wild lions are roaming in the city, no one will dare out of hom e till these are killed. Similarly, if we are told that there is a man at large who pounces upon undefended females and who defiles them and then strangles them , our life will be insecure and under constant fear. This argument in favour of capital punishment also lacks credibility. The lions in a city zoo do not threaten nor do they pervert people from stirring out. Simi larly, if a violent murderer is behind he bars and remains there for ore than 10 years, he is not threat to social peace and security. And what is more during t hese years he may repent and come out of the prison a chastened man who will lea d socially useful life. Moreover, as has been empirically proved the fear of dea th sentence in no way deters the potential criminal. As the father of nation Mah atma Gandhi observed on March 19, 1937 in his paper Harijan, “I do not regard deat h sentence contrary to Ahimsa…only he takes life who gives it.” The burden of this a rgument is that none else than God is competent to kill a man. Thus capital puni shment is not humanitarian; but, fact, an inhumanitarian act. (8) (8) The The Capi Capita tal l Puni Punish shme ment nt is is Defi Defini nite te. . It is arg argue ued d that that com compa pare red d to life life-t -t erm imprisonment, the capital punishment is definitive and certain. In jail, the convict can escape. However this argument though it is merely a truism, does no t prove capital punishment to be superior to life-term imprisonment. (9) (9) The The Capi Capita tal l Puni Punish shme ment nt is is Very Very Eas Easy. y. It It is argu argued ed tha that t capi capita tal l puni punish shme men n t is very easy, while the other types of punishments are highly complex, intrica

te and involved. But as Lewis has argues in his book Meet the Murderer, “if a man is alive, he has at least some hope that one day he may be proved innocent or on e day he may realize the folly of his existence on account of which he may under go conversation and become a new man. (10) (10) In the the Pen Penal al Sys Syste tem m Deat Death h Sent Senten ence ce is is Esse Essent ntia ial. l. Som Some e crim crimin inol olog ogis ists ts, , no tably C. Darrow argue that it is not feasible to abolish capital punishment as l ong as the provision of punishment exists in a society. How can we punish a simp le murdered and a cruel murderer like Jack the ripper or Boston strangler with l ife-term imprisonment? There are certain crimes for which man must die. He is ir retrievably lost. For E.g., a cruel man who has got into the habit of sucking th e blood of luscious women or who inflates them by cunnilingus and pumping air in to female bodies and thus cause their bursting, such persons deserve not only to die, but also suffer while dying. However, this is mere sentimentalism. The extreme cases murderers are usually th e persons who are psychopaths and have no idea of what they do. Moreover it will be reduction de absurdum and arguing to infinite regress, if we wish to have a point to point scene of punishment with crimes. How would we like to punish two criminals, one of whom shot dead a man in single shot and the other merely cause d grievous hurt to which the person later succumbed? Should we shoot the other m an only to injure and than ask the hospital authorities to let him dies? All thi s is obviously absurd. (11) (11) Secu Securi ring ng oth other er fro from m Crim Crimin inal al. . Somet Sometim imes es it it is argu argues es tha that t is esse essent ntia ial l t o kill the criminals so that others may live in safety. However, this argument c annot hold water because the above that is put to death has already done his job , the effect of which cannot be undone. On the other hand, the potential crimina l cannot be trapped till he commits murder. Therefore, this argument would be tr ue only if it can be proved that due to death sentence people shirk from crime a nd that there is rise in the incidence of murders. But this is not true. Thus th e argument is not valid. ARGUMENTS AGAINST CAPITAL PUNISHMENT The offered in , arguments all examine

foregoing discussion makes it ample clear that none of the arguments the support of capital punishment is strictly valid. On the contrary against capital punishment appear to be perfectly valid. Below we sh critically the arguments against the capital punishment:-

1) The The Capi Capita tal l Puni Punish shme ment nt can can resu result lt in Grav Grave e Inju Injust stic ice. e. Thou Though gh the the law law cou cou rt of civilized countries recognize the merit of unwritten dictum of British jus tice that 99 criminals may be acquitted but not 1 innocent man be convicted, in actual practice the error of judgment cannot be ruled out. The law courts are bo und by the admissible evidence produced inside the courts and there is naturally a possibility of much manoeuvre and manipulation in this. Who wins the case is, in most instances, a function of the competency of the lawyers and not the meri ts of the case. Accordingly there are number of times when innocents are declare d guilty. In Sing Sing prison of America, according to Lewis, 50 out 437 convict s were later on known to be innocent. Lewis rightly observes, had these men been given only life-term imprisonment instead of death sentence, grave injustice do n’t to these 50’s could be averted. In Italy a man who was sentenced to life-term wa s found to be innocent after 14 years. He was honorably acquitted and adequately compensated. Had he been hanged, the injustice would have been irreversible. 2) The The capi capita tal l puni punish shme ment nt leav leaves es no Room Room for for Repe Repent ntan ance ce. . No man man is abov above e wr ong, to err is human. A man who realizes his mistake and repents for it is a cha stened man. Such persons usually not only become law abiding citizens but also r eformers. However, the capital punishment strikes at the root of this possibilit y.

3) The The cap capit ital al puni punish shme ment nt is not not sel selec ecti tive ve. . Man Many y inn innoc ocen ents ts some someti time mes s are are ha nged because they lack resources to defend themselves and on the contrary, many hardened criminals escape even detection. 4) The The capi capita tal l puni punish shme ment nt does does not not save save mone money. y. The The argu argume ment nt that that by kill killin ing g the criminal, the society saves so much money which would be spent on him in fe eding him for 14 years or more. But what is simply overlooked is the fact that t he criminals are not merely fed but are also made to put in rigorous labor. On t he whole, these persons earn their bread. 5) Capi Capita tal l puni punish shme ment nt is immo immora ral. l. Garo Garofa falo lo has has call called ed capi capita tal l puni punish shme ment nt a moral war that society wages against bad characters. But by no canons of moralit y can we justify killing a man, who is a psychopath or mentally underdeveloped a nd to whom society has denied his due. 6) The The capi capita tal l puni punish shme ment nt is irre irreli ligi giou ous. s. Most Most of the the reli religi gion ons s are are base based d u pon implicit faith in God. This faith entails that God alone is the creator and he alone has the power to destroy. 7) The The cap capit ital al puni punish shme ment nt is not not a way way to curb curb crim crimes es. . The The argu argume ment nt that that th e fear of death will suppress the murderous instinct in the potential killers ha s been empirically found to be untenable. History of Capital Punishment The ancient law of crimes in India provided death sentence for good number of of fences. The Mahabaratta and Ramayana also contained references about the offende r being punished with vadhadanda which means amputation by beats. According to M anu, in order to refrain people from sinful murders, death penalty was necessary . During the medieval periods of Mughal period in India, the sentence of death r evived in its crudest form. There were various cruel methods of execution howeve r during the British system of criminal justice administration during early deca des of 19th century, when death by hanging remained the only legalized mode of d eath sentence. Offences punishable with death sentence under IPC. If would be pertinent to refer to the relevant provisions of the Indian Penal Co de which provide for death sentence for certain specified offences. These offenc es are: 1. Waging war against the Government. 2. Abetment of mutiny. 3. Givi Giving ng or fabr fabric icat atin ing g fal false se evid eviden ence ce lead leadin ing g to to pro procu cure re one’ one’s s con convi vict ctio ion n f or capital offence. 4. M u rd e r 5. Murd Murder er by a pers person on unde underg rgoi oing ng a term term of life life impr impris ison onme ment nt. . 6. Abetment of of su suicide by by ch child or or in insane pe person. 7. Attempt to murder by a life convict. 8. Dacoity with murder. Capital Punishment The framers of the Indian Penal Code were of the view that capital punis hment ought to be used sparingly. The position of capital punishment in the Pena l Code has not changed as such in more than hundred years of its existence but t he trend in the direction of the abolition of capital punishment in many countri es has affected legislative as well as judicial thinking on the subject. The leg

islative thinking is reflected in some subtle changes in the Criminal Procedure Code during the last two decades or so. Before the amendment of the Criminal Pro cedure Code of 1898 in 1955 it was obligatory for a court to give reasons for no t awarding death sentence in a case of murder. The amendment of 1955 did away wi th the requirement of assigning reasons for not giving death sentence in an appr opriate case. Under the new Criminal Procedure Code of 1973 the court has to rec ord reasons for awarding death sentence. It is evident that the provisions regar ding death sentence have gradually been liberalized in favour of guilty persons. The liberal judicial attitude has also been responsible to a great extent for t he gradual reduction of capital sentence in the recent past as will be evident f rom the following principles which emerged after the legislative changes in 1955 and 1973 before further judicial efforts led almost to the abolition of death s entence in the country: 1) Brut Brutal alit ity y invo involv lved ed in a murd murder er as an aggr aggrav avat atin ing g fact factor or may may indi indica cate te cap cap ital punishment. 2) A murd murder er afte after r due due prem premed edit itat atio ion n and and plan planni ning ng may may call call for for deat death h sent senten enc c e. 3) Prov Provoc ocat atio ion n give given n by the the dece deceas ased ed to the the offe offend nder er even even if not not suff suffic icie ient nt ly ‘grave and sudden’ to reduce the offence to culpable homicide not amounting to mu rder under Exception 1 to Section 300 of the IPC may still be treated as a mitig ating circumstance to warrant life imprisonment in preference to death sentence. 4) Murd Murder er comm commit itte ted d on on the the spur spur of the the mom momen ent t whe where re no enmi enmity ty betw betwee een n the the c onvict and the deceased is involved may not be punished with death. Such cases a re not necessarily covered otherwise by Exception 4 to Section 300, IPC which re duces the offence of murder to culpable homicide not amounting to murder punisha ble with life imprisonment up to 10 years. Irresistible impulse has also been ac cepted as a mitigating factor. 5) Age Age or or sex sex itse itself lf is not not gen gener eral ally ly enou enough gh to redu reduce ce the the sen sente tenc nce e of of dea deat t h to life imprisonment though there are some cases where youth of the offender h as been accepted as a mitigating factor. The Indian Penal Code (Amendment) Bill, 1972, however, contained the following provision: “The sentence of death shall not be passed on a person convicted of a capital offe nce if at the time of committing the offence he was under 18 years of age and de ath is not the only punishment provided by the law for the offence.” 6) If an appe appeal al is made made agai agains nst t the the conv convic icti tion on for for mur murde der r t the the Hig High h Cou Court rt and the judges agree on the question of guilt but differ on sentence, it is usua l not the impose the death penalty unless there are compelling reasons for the e xtreme punishment. 7) Anot Anothe her r fact factor or whic which h has has some someti time mes s been been acce accept pted ed as one one of the the miti mitiga gati ti ng circumstances is the delay involved in the final disposal of the case by the appellate courts.

Chapter 3 KINDS OF PUNISHMENT The punishment can be categorized as – ( 1)

Co r po r a l,

( 2)

Tr a ns p o rt a ti o n,

( 3)

Capital Punishment,

( 4)

Im p ri s o nm e nt ,

( 5)

Mo n et a r y.

( 1)

Corporal Punishment

Corporal punishments which are known in the history range from physical torture to death besides confinement and transportation. The corporal punishment is of f ollowing kinds: I. Flog Floggi ging ng – Flo Flogg ggin ing g was was a pop popul ular ar meth method od to publ publis ish h the the crim crimin inal al almo almost st ev erywhere but it was a cruel punishment. The punishment was given at the whipping posts. The flogging could be given for breaking and entering, for assaulting an d beating the wife. Various forms of flogging were in operation and for the crim inals it was a severe and cruel method of punishment. In England whipping was ab olished in 1948. The flogging has been abandoned in the U.S.A also. The flogging by Russian Knout was very dangerous and fiendish. The lash was made of raw hid with wires having hook on their ends which tore the flesh and body generally cau sing the death. Whipping was a form of punishment in Iran, ancient and medieval India. Mughals and Marathas punished with whipping. Due to its severity and barb arism, whipping has been abolished in India in 1955 but it is still a jail punis hment. Flogging is operative in Saudi Arabia. II. II. Muti Mutila lati tion on – Mut Mutil ilat atio ion n was was base based d on on ‘le ‘lexx-ta tal’ l’ (law (law of reta retali liat atio ion) n). . The The puni punis s hment was to be duplicate to the injury inflicted. The mutilation as a punishmen t was more in practice because the crimes of mayhem and mutilation were generall y committed. Its aim was preventive also since the criminal by amputation could not repeat the same conduct in future. The thieves if their hands were cut off c ould not, commit the theft in future and so the counterfeiters. The tongues were torn out of the liars and perjurers, the eyes were gouged out of spies and the sex criminals were castrated. Mutilation also served a deterrent effect on other s for committing the crimes. The plucking out the eyes, slitting of the nose, ea rs and upper lips, the tearing away of scalps and death in a horrendous manner w ere the punishments. III. III. Bran Brandi ding ng – Bran Brandi ding ng of of crim crimin inal als s was was also also a form form of of puni punish shme ment nt. . In Rome Rome, , t he appropriate mark was branded on the forehead of the criminal. Till 1929, Bran ding was a common mode of punishment in England. Branding was also prevalent in America. ‘T’ was branded on the hand of the first burglar and ‘R’ on the forehead of the second burglar in East Jersey. ‘B’ was branded on the forehead of the offender for blasphemy in Maryland. The adulterers in New England were compelled to wear ‘scarl et’ letter. IV. IV. Stoc Stocks ks and and pil pillo lori ries es – In In sto stock cks, s, the the pris prison oner ers s wer were e mad made e to to sit sit down down thei thei r hands and feet fastened in a locked frame. In pillory, the prisoners were made to stand with fastened feet and hands in the locked frame. Pillory continued in England till 1873 and in Delware till 1905. The idea in pillory and stocks was to subject the prisoner to public ridicule. If he committed a serious crime, the pelting and stoning was also restored to punish him. The prisoner could be even whipped or branded in such condition. Sometimes, his ears were nailed to the pi llory and beams to tear the ears lose or the ears were cut away carelessly by th e officer in charge of the pillory. V. Othe Other r Pun Punis ishm hmen ents ts – The The conf confin inem emen ent t in in iro irons ns was was als also o a puni punish shme ment nt. . The The co nfinement in cell with hands and feet fastened by heavy chains with sides, ceili ng or night, handcuffing to the cell-doors were the cruel punishments. ( 2)

Tr a ns p o rt a ti o n

Transportation of criminals is a form of punishment, the antecedent of which ws banishment. The undesired person was sent to exile after observing some religiou s ceremonies and rituals as it was tantamount to death. Slowely, the religious c eremonies and rituals disappeared with political motive and exile turned into ou tlawry. The criminals sentenced to death were pressed to work on galleys or mine s. As galley slaves they were chained with their seats and compelled to work wit h severe floggings in case they failed to work. They have to live worse than the beasts. The death punishment was widely prescribed but in many cases instead of executing the offenders, they were deported overseas with the motive to get rid of criminals. The people staking their claims on the land often resorted to for ced labour by these deported criminals. From Britain generally, the criminals we re deported to American colonies but the deportation not criminals to America wa s abandoned in view of the cessation of American colonies from England. So it be came a problem for the criminals piled up in jails; some were sent to South Afri ca but there they perished as they could not resist the climatic effect and dise ases. Therefore many were put in old boats or ‘hulks’ and transport ships. These nau tical prisoners were brutal and full of all kinds of immorality, young and elder s living together which continued in Britain upto 1858. Australia was discovered in 1770 by Captain Cook and from 1778, the criminals as well as free settlers r aise the colony. The criminals were to work hard. Transportation to Australia wa s abolished in 1852 but continued till 1890. During the transportation, all sort s of brutality and immorality with males and females both was a common practice. In India, the transportation of criminals for life was by confining the crimina ls at Port Blair and Andaman Islands. ( 3)

Capital Punishment

Capital punishment is the most barbaric and brutal. From the earliest times of t he history of law know to the present day, the capital punishment has existed. I ts enormity and the process may vary. In the middle ages in Europe and America, the capital punishment was given to the persons for committing even the offences life perjury or counterfeiting of currency notes which in the modern times cann ot be considered as serving any purpose. The trial of Raja Nand Kumar is a sad h istory of Indian legal system where death sentence was awarded to Raja Nand Kuma r on the applications of English law on the charge of forgery. Capital punishmen t existed in ancient India also. Manu has prescribed death punishment for certai n offences. During the Muslim rule in the country; death penalty was prescribed for certain offences. Capital punishment is justified due to its deterrent effec t which deters others from adopting the same course of conduct. ( 4)

Im p ri s o nm e nt

Imprisonment is of following kinds – i) Simple im imprisonment, i i) Rigorous im imprisonment, i ii ) Solitary co confinement. i v) Imprisonment for life. i) Simple Imprisonment – Simple imprisonment is awarded for the minor offences whi ch are not considered very serious. The prisoner has to live in prison normally without any further requirement. He gets his normal meal whatever served in the prison, may mingle with others and meet those who want to meet him in the prison subject to such conditions as may be prescribed. ii) Rigorous imprisonment- Rigorous imprisonment differs from simple imprisonmen t in the sense that the prisoner has to put his labour while serving the prison terms. These days due to reformative attitude various training programmes are or ganized for the prisoners so that they may live a normal and responsible life af ter returning to the society.

iii) Solitary confinement - Solitary confinement is again a very brute form of p unishment. The prisoners are put in the solitary cell and they are not allowed t o meet the other prisoners. This harsh punishment is awarded to criminals on the philosophy that it will reform the criminals so as to bring the change in the c ourse of their action when they return to the society. iv) Imprisonment for life- Imprisonment for life i.e. for the whole of life is a lso a mode of punishment. Generally, in case of death sentence, it is provided a s an alternative punishment. The court under Section 302 I.P.C has discretion to award death or life imprisonment depending upon the circumstances of the case a nd gravity of the act. ( 5)

Monetary Punishment

i) i i)

Fine and Forfeiture of Property.

i) Fine Fine – In In som some e cas cases es fine fine is the the onl only y pun punis ishm hmen ent. t. In some some case cases, s, the the fin fine e is awarded with prison term. The concept of fine is that the amount of fine real ized from the offender goes to the State exchequer. These days due to reform in the punishment the amount of fine may be transferred to the victim or his relati ves. The fine is an ally to the forfeiture except that in the former the offende r has to pay a certain amount of money whereas in the latter his property is con fiscated. In Reg v. Lewis, it was observed that the fine should be within the offender’s cap acity to pay. The SC in Adamji Umar Dayal v. State of Bombay, has laid down that while imposing the fine the regard must be had to the pecuniary circumstances o f the accused persons as to the character and magnitude of the offence. In this case, the SC reduced the amount of fine from 15,000 to 1,000 rupees. ii) ii) Forf Forfei eitu ture re of Prop Proper erty ty – For Forfe feit iture ure of prop proper erty ty is anot anothe her r for form m of of pun punis ishm hm ent. The offender is deprived of his property as it stands forfeited to the Stat e. This form of punishment instead of reforming the offender may dehumanize him as he without any means to live may become a social problem. Forfeiture of prope rty is a punishment is prescribed under Sections 126, 127 and 169, I.P.C.