This article has been written by Divya Kumari, a law student having strong and in depth knowledge about law and legal concepts. She holds expertise and interest in the criminal law.
One of the most essential and prominent aspects of the criminal law of a state is the penal system. Every act of a person has different consequences on society however some acts of individuals or a group of individuals harm the peace and tranquillity of the society, which are called crimes. To maintain peace and discipline in society, the state legislature enacts the penal laws. As a result of the unpleasant act done by culprits, punishment is sanctioned. The objective of punishment is to establish law and order in society and to bestow the victim with justice and relief. It aims to wipe out evils and criminal reformation and to deter potential offenders in society. It is important to introduce the concept of punishment in society to avoid the hazardous practice of revenge by the people.
Theories of Punishments
There are various principles based on which punishment is provided to the offender and deal with plans and policies regarding crime management. There are mainly four main types of theories of punishments prominent in society namely,
Retributive Theory
Deterrent Theory
Preventive Theory
Reformative Theory
Retributive Theory
This theory is based on the concept of ‘an eye for an eye’ and purely relies on the principle of vengeance. The objective of this theory is to cause a similar type of harm or pain to the offender as that was caused to the victim by the offender’s actions. Partially it can be said that the concept of punishment is based on this theory but not in brutal and literal sense.
Deterrent Theory
This theory was coined by Jeremy Bentham and is based on the concept that if punishment is provided for the commission of an offence, then an individual would be deterred from committing that offence.
Preventive Theory
This theory focuses on the prevention of the commission of the crime, and the punishment provided to the offender so that other individuals are prevented from committing crimes due to the fear of punishment.
Reformative Theory
This theory focuses on the concept that nobody is criminal by birth, an individual commits a crime due to certain circumstances. According to this theory punishment should aim towards the reformation of the offender and the offender must be provided with another chance to rectify the mistakes done by them. Our penal system provides opportunities to the offender for introspection and reformation. It can be said that India’s penal system is based on reformative theory.
Types of Punishments
Penology is the field that deals with the practice of punishments and criminal reformation. It is a multidisciplinary subject that includes various fields like sociology, criminology, victimology, psychology etc. The term was coined by the French criminologist Auguste Forel in 1885. The punishment system in India is ancient. The current penal system is mainly based on the reformation concept. Bhartiya Nyaya Sanhita suggests various types of punishments. As per section 4 of BNS, six types of punishments are provided in the Indian penal system namely, Death, Imprisonment for life, Imprisonment (Simple and rigorous), Forfeiture, Fine, Community service, and Solitary confinement.
Capital Punishment
It is one of the most debated types of punishment. In ancient India, capital punishment was one of the most prominent ways of punishment but over time it became the most accepted method in punishing the offenders of heinous crimes. In the modern period, the IPC 1860 came into force and it prescribed death sentences for a range of offences. This led to a point of conflict that the death sentence violates the constitutional fundamental rights under Article 21 i.e. right to life and personal liberty. This point was challenged legally in the court of law many times challenging the constitutionality of capital punishment. In the landmark judgement of ‘Bachan Singh V. State of Punjab’, it was held by the honourable Supreme Court of India that a death sentence can only be awarded in ‘rarest of rare’ cases. After this judgement, the death penalty becomes less frequent and is provided in a few offences like Murder, Terrorism, Rape etc.
Imprisonment
It is mainly of three types namely, Imprisonment for life
Simple Imprisonment Rigorous Imprisonment
Life Imprisonment
Under this punishment, the offender is kept in prison for their life. The objective of this punishment is to prevent the offender from committing any further offence and to ensure the safety of people and society. It is usually rigorous.
Simple Imprisonment
In this punishment, the offender is kept in a prison cell and is directed to work as per their choice and will be provided wages for it, though they are not subjected to hard labour. Offenders are punishable with simple imprisonment for offences like defamation, wrongful restraint, criminal misappropriation of property etc.
Rigorous Imprisonment
In this case, the offender is kept in a prison cell and is directed to do hard labour. The purpose is to provide harsh punishment to the offender committing grievous crimes. This imprisonment is given in cases like kidnapping, robbery, dacoity etc.
Forfeiture
Confiscation of one’s money, property or assets as a punishment is referred to as forfeiture. It is usually done in cases where certain property or money is acquired by means of illegal activities. It is provided for offences like receiving property taken during war or depredation, for committing depredation on territories of power with the government of India.
Fine
It is a type of monetary punishment. In this punishment offender is charged with a certain amount of monetary fine as a punishment for the offence committed by them. It is provided for minute offences like violation of traffic laws etc.
Community Service
It is an alternative to imprisonment as a punishment and aims to reduce the burden on prisons. In this, the offender is directed to serve the community in every possible way as a punishment which leads to the reformation of the offender. It is usually provided in case of petty offences. Solitary Confinement
It is one of the types of imprisonment in the Indian penal system where the prisoner is kept confined in a prison cell without any contact with external world. Solitary confinement is a concept of punishment that works on the saying that isolating a man in prison is more brutal than a death sentence. In solitary confinement, the detainee is kept isolated from any kind of social contact and will remain unexposed to the external world. Humans a social creatures and prefer to remain in contact with their surroundings, solitary confinement tends to attack this very nature of the human as a punishment.
The concept of solitary confinement is said to have originated in the United States with the motive that it will provide time for introspection and apologize for the wrongful act done by the offender.
Solitary confinement has been a topic of debate as a way of punishment that brutally affects the psychological as well as physical health of the prisoner. Under solitary confinement, the prisoner is at great risk of being mentally impaired. It instigates the detainee to commit suicide and severe mental conditions. It just feels like being buried alive in a tomb. While in solitary confinement the human brain first reacts to the drastic environmental change and slowly it starts affecting the processing system of the brain. It worsens mental health conditions and is one of the cruellest forms of punishment. It has a mental, emotional and psychological impact on the prisoner. Being in solitary confinement leads to mental pressure, hallucinations, anxiety and depression in the prisoner. Prisoners might become violent and cause self-harm or start having suicidal thoughts. Physical health problems are also likely to occur like chronic headaches, dizziness, hypersensitivity, insomnia etc. The damage causes mental retardation in prisoners. Solitary confinement is analogous to trauma and mental illness.
In the case of Kishore Singh v. State of Rajasthan, the Supreme Court of India stated that solitary confinement is a brutal type of imprisonment. It can only be awarded in circumstances of extreme circumstances of unimaginable brutality and atrocity.
The constitutionality of solitary confinement was challenged in the case of the State of Uttarakhand v. Mehtab, in which it was argued that it is the most inhumane and barbaric form of punishment as it violates human rights. The Uttarakhand High Court clearly stated that it is unconstitutional to keep prisoners in solitary confinement. It is an extra deterrent imposed by the prison administration. It violates the fundamental rights under Articles 20 and 21 of the Indian constitution which is the right to life and liberty.
One of the landmark judgements regarding solitary confinement is Sunil Batra v. Delhi Administration, in which the court held that “prisoners are entitled to all fundamental rights which are inconsistent with their incarceration”.
In the case of Unni Krishnan & Ors. v. State of Andhra Pradesh & Ors., it was held by the honourable Supreme Court that Article 21 of the Indian constitution is the right provided against the barbarous punishment of solitary confinement.
In the case of Prem Shankar Shukla v. Delhi Administration, the honourable Supreme Court held that “every prisoner has a right against solitary confinement”.
The Supreme Court in the case of Kishore Singh Ravinder Dev v. State of Rajasthan stated that a prisoner can be kept in solitary confinement only in exceptional circumstances as it is a torturous and atrocious way of punishment.
Solitary confinement is one of the merciless and draconic ways of punishment and only hardened criminals are awarded with this. It is argued that every criminal has rights under articles 20 and 21, it is not correct and justified.
