Introduction
In 1860, during British administration, the Indian Penal Code was established, outlining the types of punishment that would be applied in contemporary India.
The current forms of punishment in India are discussed in Section 53 of the IPC and include death, life imprisonment, rigorous imprisonment, simple imprisonment, forfeiture of property, and fine.[1] Transportation was another type of punishment which was omitted by Amendment Act of 1955.
The principles forming the sentencing decision are parsimony (except where necessary, the punishment given shall not be extreme), proportionality (the punishment must reflect the overall magnitude of the crime), parity(for similar offences committed by offenders in similar circumstances, the punishment should be similar), totality (when an offender receives many sentences, the entire sentence must be just and proportional to the offending behavior), purpose (the purpose of the punishment must be accomplished by sentencing ), predictability (sentencing must be independent of the judge’s bias or personality) and truthfulness (the prisoner’s sentence must reflect the actual duration of confinement to avoid ambiguity).
The maximum sentence is set down in the Code’s structure, whereas the Judge retains discretion over the minimum. The judge is well equipped to decide what punishment will best serve the interests of justice in each circumstance. The Code had set down the maximum and minimum durations of punishment for crimes of a grievous nature.
Death
The most severe punishment imposed by the court is the death sentence. Between 1950 and 1980, an estimated 3000 to 4000 people were executed. It is more difficult to calculate the number of people sentenced to death and executed between 1980 and the mid-1990s. The Supreme Court determined in the Bachan Singh vs State of Punjab[2] from 1980 that the death penalty should only be applied in the “rarest of rare” circumstances, yet it is unclear what constitutes the rarest of the rare. The accused is entitled to file an appeal when the court imposes a death sentence. There are many instances when the death penalty is a possibility under IPC:
- Section 121: Waging or attempting to wage war or abetting to wage war against the Government of India
- Section 132: Abetting mutiny actually committed
- Section 194: Giving or fabricating false evidence upon which an innocent person suffers death
- Section 302: Murder which may be punished with death or life imprisonment
- Section 305: Abatement of suicide of a minor, or insane, or intoxicated person
- Section 307: Attempt to murder by a person under sentence of imprisonment for life, if hurt is caused
- Section 364A[3]: Kidnapping for ransom
- Section 376A, 376AB, 376DB, 376E: In certain cases of rape
- Section 396: Dacoity accompanied with murder
The appropriate government, i.e., the central government in the case of an offence committed in a Union territory and state governments in the case of an offence committed in a state, is given the authority under Section 54 of the IPC to commute, or to substitute the death penalty with any other lesser punishment approved by the code. This power to commute the sentence is coextensive with the power under Section 433 of CrPC 1973. Courts lack authority to commute sentences because the executive has the right to do so after a sentence has been handed down by a court of law. However, the government cannot reduce or commute sentence to less than 14 years for weighty reasons as the crime was serious.[4]
Also Read – Quasi – Contract under Indian Contract Act, 1872
In Jagmohan Singh vs the State of Uttar Pradesh[5], the constitutionality of the death penalty was challenged before the Supreme Court. It was challenged as violative of Article 14, 19 and 21 of the Constitution. The Supreme Court affirmed death penalty as constitutional, ruling that it would be difficult to justify capital punishment as unreasonable or against the public interest. The Supreme Court said explicitly in the cases of Sher Singh vs. State of Punjab[6] and Triveniben vs. State of Gujarat[7] that the death sentence does not invalidate the rights guaranteed by the Indian Constitution. The Supreme Court defined the broad parameters of when the death penalty may be applied in the case of Machhi Singh v. State of Punjab[8]. The court made note of the five categories of circumstances for which severe punishment may be imposed. Those are the following points: manner of commission of murder; motive; the magnitude of the crime; anti-social abhorrent nature of the crime; the personality of the victim of murder.
Imprisonment for life
The words imprisonment for life was substituted for transportation for life by Act 26 of 1955. According to the Supreme Court’s decision in Gopal Vinayak Godse v. State, life imprisonment means imprisonment for the rest of the convict’s life and nothing less. On the nature of imprisonment, the Supreme Court of India ruled in the case of K.M. Nanavati vs State of Maharashtra[9] that imprisonment in such a case entails rigorous imprisonment for life and not just a simple sentence of imprisonment for an accused person. The accused may be released if the appropriate government issues a separate order commuting the remaining time on the sentence.
Section 55 of the Penal Code authorizes the appropriate government to commute the sentence of imprisonment for life imprisonment of either description for a time not exceeding 14 years. The powers granted by this section may be employed by the government upon its own initiative, without the consent of the accused on the grounds of public expediency.
When fractions of terms of punishment need to be calculated, Section 57 of the IPC is applied. However, it is critical to recognise that this section does not grant the prisoner any implied or express authority to lower his life sentence to 20 years. Only the government has the authority to reduce, suspend, or commute the sentence. In the case of Munna v. Union of India[10], the Supreme Court ruled that a life sentence could not be reduced to 14 or 20 years without a formal remission from the appropriate government.
Between Section 55 of the IPC and Section 433 of the CrPC, there is a very thin line. Only life imprisonment for a period not to exceed 14 years is covered under Section 55 of the IPC. Whereas Section 433 of the Criminal Procedure Code grants the following commutation powers to the appropriate government: death sentence- to any other punishment can be given which is recognised under the IPC, life imprisonment- to imprisonment not exceeding 14 years or fine, sentence of rigorous imprisonment- to any term of simple imprisonment (within the term he is convicted) or fine, sentence of simple imprisonment- fine
Imprisonment (Rigorous and/or simple)
Imprisonment entails taking away a person’s freedom or holding him in captivity and placing him in a prison. There are two types of imprisonment recognized by Section 53 of the IPC. One is simple, the other is rigorous. In a rigorous imprisonment, convicts are subjected to hard labor such as grinding corn, digging the ground, fetching water, building roads and dams, cutting firewood, and bowing wool. However, in simple imprisonment, the prisoner is only imprisoned and not required to perform any type of labor. The competent court has discretion to determine the nature imprisonment under Section 60 of the IPC. It could be wholly or partly rigorous or wholly or partly simple or any term to be rigorous and the remaining simple.
Some offences punishable with simple imprisonment are:
- Section 341: Wrongful restraint
- Section 403: Criminal misappropriation of property
- Section 500, 501, 502: Defamation
- Section 509: uttering any word or making any sound or gesture with an intention to insult the modesty of a women
- Section 510: Misconduct in a public place by a drunken person
Some offences punishable with rigorous punishment are:
- Section 364: Kidnapping in order to murder
- Section 392: Robbery
- Section 395: Dacoity
- Section 449: House breaking in order to commit offence punishable with death
Forfeiture of property
Forfeiture means the accused’s loss of property. The state seizes the criminal’s property as part of this punishment. The forfeited property could be either moveable or immovable. The forfeiture of the property has been abolished in two provisions: under Section 126 for committing depredation on territories of power at peace with government of India and under Section 127 for receiving property taken during war or depredation mentioned in section 126 of IPC.
Fine
A fine is merely monetary punishment. Almost all sections dealing with punishment involve fines as punishment. However, section 63 states that where a sum is expressed to which a fine may extend, the amount of fine to which the offender is accountable is unlimited but not excessive. When a fine is not paid on time, the court may sanction imprisonment under Section 64.
The Apex Court ruled in Palaniappa Gounder v. State of Tamil Nadu that the court’s sentence, including any fine imposed, must be appropriate to the nature of the offence. Additionally, the punishment must not be overly harsh.
In accordance with Section 65 of the IPC, the court must set a maximum term for an offender who receives both a prison sentence and a punishment for failing to pay a fine. The maximum length of imprisonment for any one offence cannot be longer than one-fourth of that maximum time. According to Section 66 of the IPC, the court is free to give any description of the imprisonment. Under Section 67 of IPC, the offences for which this section will be applicable is the offence which is punishable with fine only. The imprisonment so awarded shall be simple only. However, the term shall not exceed the following scale: if fine does not exceed Rs. 50- the term shall not exceed two months, if fine does not exceed Rs. 100- the term shall not exceed four months and if fine exceeding of Rs. 100 to any amount- term shall not exceed six months.
Section 68 provides that the imprisonment which is imposed on default of payment of a fine shell terminate well, never that finest either paid or levied by process of law. Section 69 provides for termination of imprisonment on payment of proportional part of fine.[11]
Solitary confinement
Section 73 states that if a person is convicted of a crime for which the court has the authority to sentence him to rigorous imprisonment, the court may order that the offender be detained in solitary confinement. According to the following scale, the total length of such solitary confinement cannot exceed three months:
If the term of imprisonment does not exceed six months, the sentence for solitary confinement is limited to one month. If the sentence is more than six months but less than a year, the maximum sentence for solitary confinement is two months. If the term of imprisonment exceeds one year, the maximum sentence for solitary confinement is of three months.
According to Section 74, there must be a minimum of 14 days between each period of solitary confinement. When the sentence is more than three months, the amount of time spent in solitary confinement cannot exceed seven days in any one month of the total sentence, with intervals between the periods of solitary confinement not less duration than such periods. In Sunil Batra v. Delhi Administration[12], the Supreme Court stated that solitary confinement is an extreme kind of isolation from the rest of the prison population and should only be used when necessary. Absent a fair process, imprisonment constitutes a constitutional violation under Article 21.
Author – Dimpal Khotele
BBALLB, Amity University Chhattisgarh
[1] The Indian Penal Code, 1860, §53, (45 of 1860)
[2] AIR 1980 SC 898
[3] Ins. by Act 42 of 1993, sec. 2 (w.e.f. 22-5-1993)
[4] Shidagouda Nijligappa Ghandavar v. State of Karnataka, AIR 1981 SC 764
[5] AIR 1973 SC 947
[6] 1983 AIR 465
[7] 1989 AIR 1335
[8] 1983 AIR 957
[9] AIR 1962 SC 605
[10] (2005) 6 Supreme 461
[11] “A compendious guide to judicial services mains examinations: volume II” by Samarth Agrawal
[12] (1978) 4 SCC 409