Penology and Theories of Punishment, Lecture notes of Cross-Cultural Communication

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SCHOOL OF LAW

DEPARTMENT OF LEGAL STUDIES

PENOLOGY & VICTIMOLOGY-SAL1 053

SCHOOL OF LAW

DEPARTMENT OF LEGAL STUDIES

Dimensions of Crime in India - Definition of penology-Theories of punishment-classical Hindu and Islamic approaches to punishment- Capital Punishment-Law reforms proposals- Criminal Justice System. Introduction Penology is a multi-disciplinary subject that aims for the study and evaluation of the application of penal laws onto the wrongdoers. It broadly explains the justification, characteristics, and effectiveness of punishment in its various forms. In other words, it is a systematic study of different facets of punishment and its impact on crimes, criminals, and society. As a matter of fact, penology owes its origin to Cesare Beccaria, the classical school of criminology. This Italian criminologist argued that justification of punishment must be to deter potential criminals, and not merely to punish the offender. Later, it was during the end of the 19th century that

UNIT 1 – PENOLOGY& THEORIES OF PUNISHMENT

measures to combat it. Penology deals with care, custody, treatment, prevention, and control of crimes as also the various modes of sentencing and rehabilitation of criminals. The primary concern of victimology is to seek justice for victims of crime who are faced with multiple problems. It deals with the rights and claims of victims of crime and their dependents. The focus is on mitigating the sufferings of crime victims and providing them with compensatory and other reliefs. The policies which are postulated by these three branches i.e., criminology, penology, and victimology are implemented through the agency of criminal law. Broadly, all these taken together constitute the subject-matter of criminal science. Approach of penology Like in criminology, penology may also be approached from various points of views. These may be denoted as Administrative Penology, Scientific Penology, Academic Penology, and Analytical Penology. Administrative Penology The administrative personnel employed for custodial functions in prisons ought to be capable persons conscientious of their responsibility to the society. They must be well-educated and imparted entry-level training before taking the job. Services old psychologists, social workers, and media persons should be availed for assisting the prison authorities in carrying out their correctional programmers. Prison guards and jail supervisors owe a special duty to keep the inmates under control and special vigil on prisoners who have no loyalty to the prison. Scientific Penology Individualization of prisoners should be the object of privatization and the effectiveness of rehabilitative techniques is essentially dependent on relaxing the custodial and disciplinary conditions keeping in view the personality needs of each inmate. The services of therapeutic specialists may be used for scientific corrective treatment of inmates in prison. The prison environment should be corrective rather than punitive. Academic Penology Academic penology is basically descriptive in character, and its main purpose is being the dissemination of penological knowledge. It limits itself with the theoretical knowledge of penology.

Analytical Penology It aims at ascertaining as objectively as possible, the adequacy of existing penal policies and methods and suggests measures for improving the system. Thus, it makes a critical analysis of penal measures and offers solutions for the efficient administration of penal justice. The basic principle underlying the modern penology is that the sentences awarded ought to be proportionate to the gravity of the offence. In operating the sentencing system, the law should adopt the corrective machinery or deterrence based on the factual matrix of the case. The nature of the crime, the manner in which it was planned and committed, the motive of the commission of a crime, the conduct of the accused, the nature of the weapons used, and all other attending circumstances are relevant facts which should be taken into consideration before sentencing the accused. The court must not keep in view the rights of the victim to the crime but also the society at large while considering this imposition of an appropriate sentence. Awarding inadequate sentences out of uncalled for sympathy for the accused would do more harm to the justice system and undermine the public confidence in the efficacy of the penal system. Caution against excessive reformation Despite the fact that traditional methods of deterrent and retributive justice have fallen into disuse and they are now substituted by modern reformatory measures, it must be stated that excessive reformation is likely to defeat the very object of penology. If the difference between life inside and outside prison is narrowed down beyond a certain limit, it is bound to culminate into catastrophic results. The element of deterrence is as necessary for any penal program as reformation; otherwise, the very purpose of punishment will be defeated. It must be realized that the ultimate control and prevention of crime depends on the proper utilization of criminological knowledge to the needs of society. This accounts for the emerging importance of applied criminology in recent years. The focus of attention should therefore not only be the offender or his criminal act but the interest of society in general and the rights of the victim, in particular, which must be protected at all costs. It

Above all the impact of information technology and its widening dimensions have to be recognized by the legal fraternity, particularly those who are concerned with the administration of criminal justice. The courts, advocates, academicians, law teachers, and even the litigants have to acquaint themselves with the use of the developed and developing tools and technologies to meet the demands thrown up by numerous statutes and litigation explosions. The computerization of courts, offices, law-chambers, and libraries, a listing of cases, judgments, etc. has rendered it possible to make the necessary information instantaneously available. Thus, it will greatly help in plugging the loop-holes of the existing criminal justice system and expose and destroy inefficiency, unfairness, and injustice which have crept into the administration of criminal justice. The efforts that are being made in recent years to switch over to e-courts with e-governance for e- justice would certainly go a long way in restoring the confidence of the people in the criminal justice system which lost its credibility being too expensive and dilatory. The development of ADR mechanism Lok Adalat’s plea-bargaining and setting up of the Fast- Track Courts are some of the measures which certainly help to strengthen the cause of the criminal justice system in India. Recent development According to the modern view, lawbreakers can be deterred by harsh penalties as a cost of breaking the law. It has been generally observed that developing countries like India focus more on penalties rather than their effective implementation. The weak implementation of laws and harsh punishments lead to a culture of public and private violence, lawlessness and impunity, as can be observed in India today. The laws relating to social policies such as Article 377 on homosexuality or beef bans and prohibition laws, which are gaining popularity all over the country are accompanied by over-strict penalties. Even in non- prohibition states like Delhi, the possession of a few cases of beer, or a collection of more than nine bottles of single-malt whiskey, could land one to a jail term of three years. Added to the list in upholding criminal defamation under section 400/500 IPC. Defamation is essentially a civil wrong that was criminalized during the British period when duels aimed

at defending honour and reputation posed a threat to public order. The need of the hour is that India should improve the delivery of speedy justice in civil defamation cases, instead of retaining criminal defamation. Conclusion Some penologists have suggested that punitive reaction to crime varies and fluctuates in accordance with the phase through which a particular society or nation is passing. For instance, during the periods of revolution or war, the use of death sentence, banishment, solitary confinement, confiscation of property, etc. as punishment may be extensively used, but the same may not be justified In periods of peace and tranquillity. In the Indian context with the incidence of terrorist attacks rising unabated, the death penalty for terrorists may be fully justified though it has to be used in rarest of rare cases. Similarly, the widespread corruption at all levels, particularly, among the high placed bureaucrats, politicians, corporations’, etc. fine to the tune of lakhs of rupees accompanied but the confiscation of ill-gotten wealth as a punishment would be more appropriate rather than incarceration, and perhaps, ostracization of such culprits would be more effective. Commenting on the prevailing criminal justice system in the country, the Chief Justice of India, Justice P. Sthasivam, while speaking on the occasion of National Legal Services Day (on 6th November 2013) observed that “justice is still in a cynical phase for the common man despite efforts being made to make it accessible. Endorsing his views, Justice G.S. Singhvi in his address to the legal fraternity said that,” it is time to ponder whether in 65 years we have been able to achieve the goal to provide justice for people and whether we have created an atmosphere where everybody has equality of opportunity and status for people. According to him, “Justice was still an illusion for millions of people in the county and it is not accessible to a majority of the population.” The plight of the victims of crime needs to be on the priority list of courts and law adjudicators. HINDU AND ISLAMIC APPROACHES OF PUNISHMENT Introduction Man has passed from the stages of being uncivilized to becoming a social being. There are many factors responsible for promoting man for this

Mythological Perspective of Punishment It is believed in many religions that an individual’s ultimate punishment is being sent to hell by God who is the highest authority that upholds justice. Hell is considered to be a place which exists after the life of a person, corresponding to the sins committed during his/her life. In Plato’s ‘Myth of Er’ and Dante’s ‘Divine Comedy’ it is said that in hell, damned souls suffer for each of the sins that they committed. In many religious cultures including Christianity and Islam, hell is traditionally depicted as a fiery and painful place where souls are punished. In Hinduism, Garuda Purana is considered to be a set of instructions given by lord Vishnu to his carrier, Garuda (king of birds). This version of Garuda Purana that survives into the modern era was written somewhere between 800 to 1000 CE. It deals with law, astronomy, medicine, grammar, gemstones, etc. It is also known as Vaishnava Purana. In this Purana, different offences were defined and their respective punishments prescribed. Indian Jurisprudence Under Hindu Kings Under Ancient Hindu kings, there was an administration of civil and criminal justice which was done according to the rules of the Dharma Shastras. In ancient Hindu law, laws were discussed under 18 heads covering both modern civil and criminal branches of law which fell under heads such as gifts, sales, partition, bailment, non-payment of debt, breaches of contract, disputes between partners, assault, defamation, trespass of cattle, damage to goods and bodily injury in general. A Hindu code was compiled by the Pandits of Banaras at the instance of Warren Hastings when he was governor general of India. It was known as the Gentoo code which was printed by the East India company in 1776 in London. It provided that the penalty for theft be divided into open theft and concealed theft and different punishments were prescribed for them according to Roman Law. The former was punished by fine and the latter by the cruellest form of punishment of cutting off the hand or foot, at the discretion of the judge. Death punishment was also given for crimes like housebreaking and highways robbery. Unequal And Discriminatory Punishment System in Ancient India During the ancient Indian period there was a clear distinction made between the people of higher and lower castes while imposing

punishments. Kautilya’s Arthashastra prescribed lower punishment to higher caste offenders and more severe punishment to lower caste offenders. According to him, a brahmin is not to be tortured like other people even though he may have committed an offence; they were also exempted from death penalty. For example: A Kshatriya who commits adultery with a woman would be punished with the highest punishment, while a Vaishya doing the same thing would be deprived of his entire property and a Shudra would be burnt alive. During that time the powers of the judge were also very limited and kept in check. According to Kautilya a judge or a magistrate, who imposes an unjust fine shall be fined either double the amount or 8 times over the prescribed fine. If he imposes corporal punishment wrongly, he shall himself suffer the same. Forms Of Punishments Under Hindu Code of Law The history of the penal system states that in the past punishments were torturous, cruel and barbaric in nature. The objectives of such punishments were to create deterrence and retribution. Such punishments were classified under the following heads:

1. Capital Punishment
2. Corporal Punishment
3. Social Punishment
4. Financial Punishment Capital Punishment Capital punishment is an authorized killing of someone in a legal manner as a punishment for the crime committed, such as a death penalty. In other words, it means a government has itself sanctioned a practice where a person is put to death by the state as a punishment for a crime. In Ancient India, capital punishment was a very common practice. It was the most extreme form of punishment and the methods of meting out this punishment varied from time to time. Some of those methods were: Stoning : ‘ Stoning’ is that method of capital punishment in which a group of people throw stones at a person until he dies. In it, the guilty person is made to stand in a small trench dug in the ground and the people surround him from all sides and throw stones on him until his death. This mode of

• Mutilation : Generally it means ‘ to cause severe damage to the body of a person’. In other words it means damaging a person severely, especially by removing a part of the body. This mode of punishment was in practice in ancient India. During that period one or both of the hands of the person were chopped off if the offender committed theft, if he indulged in sex offences, his private parts were cut off, if he told a lie or criticized God his tongue was cut off, and if he was deceitful or untrustworthy his ears were cut off. This system was also in practice in the European countries. But in modern times this method has been completely disregarded because of its barbaric nature.
• Branding : It means ‘ searing of flesh with a hot iron’. In this method of punishment, the culprit was branded by hot iron on the forehead with the words describing his offence. This method was commonly used in classical societies. In Roman Penal Law, criminals were branded with appropriate marks on their forehead so that they could’ve been identified and subjected to public ridicule. In India it was in practice during the Moghul rule, which has been completely abolished.
• Pressured by iron rods : In this method of punishment the body of the offender was pressured by two iron rods in a very inhumane and cruel manner where he suffered a lot of pain.
• Imprisonment : The Punishment of imprisonment which is seen today is totally different from the kind of imprisonment which was awarded in the past. Many kingdoms awarded the punishment of imprisonment by shackling the hands and legs of the culprit and throwing them down a dry well or in a small dark room. Social Punishment Social punishment is a punishment in which a person is restrained from making any kind of contact with any other person, or is moved to a distant place, breaking all of his social connections. No person can extend any help of any sort and if anyone tries to do that, they are held liable for punishment. Social punishment wasn’t aimed at inflicting any bodily pain, but a psychological one. This form of punishment was divided into two parts :

• Banishment : Banishment means ‘ to expel a person ’. It is also known as ‘ transportation’. In this form of punishment, undesirable criminals were transported to far off places with an aim to isolate them from the society. This type of punishment was also in practice during the British rule in India. It was popularly known as ‘ kalapani’. At that time, people deemed as ‘dangerous criminals’ were transported to remote islands. This practice was abolished in 1955 and was replaced with “ Imprisonment for life”.
• Social Boycott : Social Boycott means ‘an act of forcing a person to abstain from any kind of contact with other people of the society’. In ancient times, the nyaya panchayat in villages used to give the punishment of social boycott to offenders. Under this punishment, no person of the village was allowed to share any occasion of joy and happiness with the offender. In other words the offender was degraded from his caste and no caste member was allowed to come into contact with him. For example in those times smoking ‘ Hukkah’ was considered as one of the means for social gatherings and acceptance by the society. But offenders were not allowed to participate in smoking ‘ Hukkah’ with the rest of the people, thereby boycotting them. This was termed as stopping a person’s ‘Hukkah- Pani.’ Financial Punishment It is also known as imposition of fine. It was the common mode of punishment which was not serious in nature and it was awarded specially for the breach of traffic rules, revenue laws and other minor offences. It also included the payment of compensation to the victims of the crime and also the payment of the costs of prosecution. Ancient Mohammedan Jurisprudence The criminal law practiced in northern and southern parts of India was the Mohammedan law, which was introduced by the Moghul conquerors whose power culminated under Akbar in the second half of the sixteenth century. The most authoritative written exposition version of the Mohammedan Jurisprudence in India was the Hidayah, which expresses the views of Aboo Huneefah and his disciples Aboo Yousuf and Imam Mohammed who were regarded by the Sunni sect of the Muslims as the

Diyut or Blood Money The second form of punishment was called Diyut which meant the fine or compensation for blood in cases of homicide. The amount of Diya received for a murdered person and injury of different parts of the body is determined in Fiqh books; the Islamic jurisprudence compiled in books by different Islamic jurists. The punishment of Qisas in all cases of willful homicide was exchangeable with that of Diyut, if the person having the right of retaliation wished so. He was given an alternate remedy either to take Diyut or Qisas as a form of compensation. Hadd or Specific Penalty The third principle of punishment under the Mohammedan law was called Hadd which is defined in the Hidayah, which comprises the specific penalties fixed to promote public justice. Under Hadd the quantity and quality of punishment was fixed for certain offences and this could not be altered or modified. If the offence was proved, the Qadi had no other alternative but to sentence the convict to the prescribed punishment. But Hadd could not be executed if there was any doubt, or legal defects and then the Sultan was directed to administer the law with moderation. The punishment of Hadd also extended to the crimes of adultery, of illicit sexual intercourse between married or unmarried individuals, on false accusations, drinking wine, theft and of highway robbery. Types of Hadd Punishment Given for Different Crimes

• Whipping is the Hadd punishment for adultery, sapphism, procuring, sexual defamation and drinking alcohol. Maximum amount of Hadd lashes is 100 lashes. Some offences receive 80 lashes and the minimum amount is 75 lashes.
• Amputation form of punishment is given for burglary, rebelling and doing corruption on earth. The perpetrator of rebellion was punished either by maiming of his/her hand and foot, crucifixion for three days, banishment or death.
• Death Penalty is given for crimes such as sodomy, rape and incest. Death penalty is considered as the most cruel and sadistic form of punishment given in those times. There are still many Islamic countries which encourage the practice of death penalties.

• Lapidation or Stoning was the punishment for the offences of Zina, when legally established against a man of sound understanding and mature age, being a Musalman and free, and being married to a woman of the same description. Tazir and Siyasa Tazir and Siyasa were the discretionary and exemplary form of punishments, which rested completely on the discretion of the judge. Under Tazir, the punishment could be anything from imprisonment and banishment to public exposure. The Qadi was authorized to exercise discretion according to the nature of the offence, rank and situation of the offender in adjudging him to receive his punishment for the crimes he committed. At the discretion of Qadi, banishment was also allowed. Public exposure with a blackened face was expressly declared to be the punishment to be inflicted upon a false witness in addition to forty lashes. This general doctrine of discretionary punishment was clearly set forth in the preamble of Mohammedan law which states that “The Mohammedan law vests in the sovereign and his delegates the power of sentencing criminals to suffer discretionary punishment in the following three cases.

1. In the cases of offences for which no specific penalty of Hadd or Quisas has been provided by the law.
2. For crimes which are within the specific provisions of Hadd and Kisas and the proof of such crimes being committed may not be such as the law requires for a judgment of the specific penalties.
3. For repeated heinous crimes in high degree which causes injury to society at large and particularly other offences of this description that require exemplary punishment beyond the prescribed penalties. Siyasa was also the same as Tazir which was meant to create an example by punishing dangerous criminals habitually committing atrocious crimes, and of whom there could be no hope of reformation. Therefore Tazir and Siyasa might in all cases be inflicted by the ruler upon strong presumption, whether arising from the credible testimony of such incompetent witnesses or from circumstances which raised a presumption of guilt or from any other reasonable cause.

hanging by neck. From the study of history, we can see the prevalence of capital punishment since time immemorial. Right from ancient Indian period, thro’ medieval period of India and as well as in modern India, capital punishment has been very much prevalent. The punishments are provided in order to deter crimes. The punishments are imposed to make the threat credible. Threats and imposition of punishments are obviously necessary to deter crimes. This material focus is on the extent of implementation of capital punishment in ancient India and medieval period and also examines trends and developments in India particularly in terms of the challenges in implementation of the Capital Punishment in modern India. Capital punishment, often referred to as the death penalty, has been used as a method of crime deterrence since the earliest societies. Historical records show that even the most ancient primitive tribes utilized various methods of punishing wrongdoers, including taking their lives, to pay for the crimes they committed. Murder most often warrants this ultimate form of punishment. “A life for a life” has been one of the most basic concepts for dealing with crime since the start of recorded history. Early forms of capital punishment were designed to be slow, painful, and torturous. In some ancient cultures, law breakers were put to death by stoning, impaling, being burned at the stake, and even slowly being crushed by elephants. The prescription of punishment is a clear recognition of the principle that such offences are no longer a private affair between individual, but a matter between individual and state, a matter with which the whole society is concerned. Here we have the existence of the common principle to all ancient society that evil should be returned for evil. It is the dictum of an eye for an eye and a tooth for tooth. ANCIENT PERIOD In ancient India, punishments were generally sanctioned by the ruler. There were two main purposes for punishment in Hindu society. Incapacitation was the first purpose and was used to ensure that an offender would not be able to commit the same crime again. For example, the hands of a thief would be cut off. Deterrence was the second purpose of punishment. Criminals were punished to set an example to the public, in hopes of preventing future offenses. Although these were the two main

purposes of Hindu Law, other purposes such as rehabilitation were used as means of punishment and correction. Retribution is another theory of punishment; however, it does not have a prevalent role in Hindu punishment. Types of punishment In his digest, Manu cites four types of punishment: Vakdanda, admonition; Dhikdanda, censure; Dhanadanda, fine (penalty); Badhadanda, physical punishments. Later authors added two more types of punishment: confiscation of property and public humiliation. Ancient India was not a safe place to live. Many groups of thieves existed already at the time of the Buddha ( 6th century BC). They were bandits from generation to generation, robbing and killing their victims like the thugs did later. These are professional bandit caste, but not only them, constituted an important problem: punishment of crimes and offences was then harsh.^1 Maurya Dynasty The Mauryan administration is famous in history for its judicial system. The Mauryan legal system was based on idealism and not reformism. The king was the highest judicial officer. Penalties were imposed on those who break the law. Monetary fines were imposed for ordinary crimes. Capital punishment was practiced. During the rule of Chandragupta and his son Bindusara: the laws were harsh and the death penalty was applied to a myriad of offenses. The Maurya Dynasty, which had extended to substantial parts of the central and eastern regions during the 4th Century B.C., had a rigorous penal system, which prescribed mutilation as well as death penalty for even trivial offences. Written in the 4thcentury BC by Kautilya, minister of the king CandraguptaMaurya, the “Arthashastra” is a treatise on the art of ruling and one of the main Indian books ever written. It recommends : cutting off the right hand for pick pocketing or theft; cutting off the nose