Punishment is society’s manifestation of the admonition of the crime by a collective conscience: Durkheim state inflicts some pain to the persons or property of the person who is found guilty of Crime. The sanction imposed on an accused of the infringement of the established rules.
Under the Indian Penal Code, the sentencing policy is measured on the following elements:
• The gravity of the violation;
• The seriousness of the crime; and
• Its general effect upon public tranquillity.
There is a correlation among measures of punishment and the degree of guilt. Accordingly, the sentencing coverage in a specific offence is standardized.
In March 2003, a frame was mounted by the Ministry of Home Affairs, the Malimath Committee (the Committee on Reforms of Criminal Justice System) in India. The motive of the committee became to present recommendations at the sentencing guidelines for the Indian Judiciary. The aforesaid committee had issued its document in which it said that there's a need to introduce tips on sentencing to decrease the uncertainty of awarding sentences. The committee discovered that “for plenty of offences, the simplest the maximum punishment is prescribed and for a few offences, the minimum can be prescribed” and thereby there's a lack of uniformity. This results in huge discretionary powers to the Judges to determine the sentencing duration, which leads to uncertainty within the sentencing policy. In 2008, the Madhava Menon Committee (the Committee on Draft National Policy on Criminal Justice), again reaffirmed the need for statutory sentencing hints.
As in keeping with the white paper delivered by the British Parliament, the intention of getting a sentencing coverage must be “deterrence and protection of society from evils”. The lack of sentencing policy will no longer affect the judicial gadget but it's going to also appreciably harm society.
Section 53 of the Indian Penal Code talks about the various punishments which are: a) Death b) Imprisonment for life c) Imprisonment, which is of two descriptions, namely - (1) Rigorous, that is with hard labour
(2) Simple d) Forfeiture of property e) Fine.
Death is given in High treason or Murder during or of – shooting or causing an explosion, a public servant on duty, theft while resisting lawful arrest, murder party or setting ablaze her majesty’s stores, ships, etc or committing piracy with violence
Rarest of rare cases
• “having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population, and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of the abolition of capital punishment.”
35th Law Commission report
• the debate regarding the unconstitutionality of the death penalty continues
• Apex court of India has held the death sentence constitutionally valid.
• Bacchan Singh v State of Punjab observed that death sentences can only be awarded in the rarest of rare cases.
• Macchi Singh v. the State of Punjab
• Death sentence can only be awarded in case of gravest of culpability
• Circumstances of the offender must be taken into consideration
• Death sentences can only be imposed when awarding life imprisonment does seem to be adequate for the crime committed by the offender.
• Before ruling favor of the death penalty, both, mitigating and aggravating factors must be considered, and doing so according to the full weightage of the mitigating factors.
For Imprisonment Hawk said that “It seems clear that any place, whatsoever, wherein a person under a lawful arrest for a supposed crime is restrained of his liberty, whether stocks at the street, or in the common goal or the house of a constable or private person or the prison of the ordinary is properly a prison within the statute; for imprisonment is nothing else but a restraint of liberty.”
In Solitary confinement Solitary confinement should not exceed three months of the Substantive term of imprisonment. It cannot be awarded where imprisonment is not part of the substantive sentence. It cannot be awarded for the whole term of imprisonment. It cannot also be awarded with imprisonment instead of a fine.
According to Section 74 of I.P.C in no case, the sentence of solitary confinement is awarded more than fourteen days at a time. and it must be imposed at intervals.
Levying of penalty
• Ashok Kumar vs. State, the Apex court had opined that “payment of fine brings home the sense of responsibility in a surer fashion than even short terms of imprisonment in some case.”
• The Indian Penal Code, 1860 prescribes a fine along with imprisonment in respect of certain offenses. In default of fine, imprisonment may be imposed.
Forfeiture of property means taking away the property of the criminal by the State. Forfeiture of property is now abolished except in the case of the following offenses:
1) Committing depredation on territories of Power at peace with the Government of India (Section 126)
2) Receiving property taken by war or depredation is mentioned in sections 125 and 126 (Section 127).
This article is written by Shreya Kabra of IFIM Law School.