Report No. 42
One of the important omissions in the Code is the absence of any punishment intermediate between (a) imprisonment and (b) fine (see section 53). The punishment of forfeiture of property is retained only for three offences, viz., sections 126, 127 and 169 Indian Penal Code.
The result is that where the court feels that the sentence of fine may not be suitable for an offender, it has no other alternative except to sentence him to imprisonment. The evil effects of imprisonmen.-especially short-term imprisonmen.-are well-known. As pointed out by Nigel Walker (Reader in Criminology at Oxford) in his "Sentencing in a Rational Society" at p. 76, the unwanted by-products of imprisonment are these:
(1) The prisoner loses his job, is separated from his family and is compelled to associate with other delinquents.
(2) Prison work is seldom more than a way of reducing the economic burden which prisoners represent and of weaning them from idleness; it is only in exceptional cases that he learns a trade which he afterwards takes up.
(3) Though prisons make efforts to palliate the effects of separating the prisoner from his wife and family by allowing them to visit him, yet this does not prevent many marriages from breaking up during a long or even a medium sentence.
(4) In a prison there is ample scope for contamination of the unsophisticated offender by the professional criminal.
Hence, there is a need for providing for other types of sentences for certain classes of crimes.
The recent decision of the Supreme Court of United States in Tale v. Short decided on 2nd March, 1971, is instructive. It was held that any law which limits punishment to payment of fine for those who are also able to pay it but to convert the fine to imprisonment for those unable to pay it, offends the equal protection of the clause of the Constitution. The learned Judges indicated that the State was free to choose some other method to avoid imprisoning an indigent person for involuntary non-payment of a fine.
It is not unlikely that an enterprising lawyer in India also may challenge the constitutional validity of section 64, I.P.C. as contravening Article 14 in so far as it enables the court to send a poor convict to jail whereas a convicted person who is able to pay the fine, escapes imprisonment. This is, therefore, an additional reason for the Law Commission to devise some intermediate punishment between (a) fine, and (b) imprisonment.
2. The sentence of externment for an offence was suggested by me, but as it was not acceptable to my colleagues, I have been constrained to write a separate minute on the subject. The necessity for such a punishment arises from the fact that notwithstanding universal condemnation, short-term sentences are widely prevalent. In England, according to Nigel Walker (Ibid, p. 125) in 1967, sentences of six months or less accounted for 72 per cent of all prison sentences.
In the book entitled "Crime, Punishment and Cure" by Giles Playfair and Devrick Sington, the learned authors point out (p. 20) "The statistics supplied by the various countries show that the great majority of sentences of imprisonment passed by the Courts are of short duration. Sentences of six months and less form on an average more than 75 per cent of all prison sentences."
In India, in the State of Bihar, during the year 1963, short-term imprisonments of less than six months amounted to more than 90 per cent of the total convictions. The condition in other States must be equally bad.1
1. See note on "Duty to Make Amends for the Harm Caused" in this folder.
In some countries, the penal law provides for the sentence of externment from a specified locality, as a substantive punishment either in lieu of or in addition to other punishments.
Thus in U.S.S.R. Article 21 while enumerating various kinds of punishment for offences includes "banishment" (sub-section 3). This punishment of "banishment" is in substance the punishment of what is known as externment because Article 26 says "Banishment shall consist in the removal of a convicted person from a place of his residence without prohibition against living in certain localities."
In the French Penal Code (as amended in 1959) Article 44 provides for 'restriction of freedom of movement consisting of the prohibition to frequent certain places'.
In the Columbian Penal Code (as amended upto 1936) Article 42 provides 'prohibition to reside in a specified place as an accessory punishment'.
In the Austrian Penal Code (as amended up to June 1965) deportation from a place is one of the punishments provided for gross and petty misdemeanours. (See section 240 clause (f) and also section 249).
In the Norwegian Penal Code also (amended upto 1961) in section 39 (1) there is a provision for forbidding certain classes of convicts from residing in a particular place.
It also appears that similar provisions are found in the Penal Codes of Ethiopia, Greece, Italy, Portugal, Spain, Switzerland, Venezuela, Yugoslavia and Germany, but as accurate texts of the Penal Codes are not available here, I am unable to give full particulars about this punishment as prevalent in these countries.
In Narada Smriti (about 5th century A.D.) externment from the town was prescribed as one of the punishments for the offence of 'Sahasa' (violence) of the highest degree. (Narada Smriti by Max Muller, Sacred Books of the East, Vol. XXXIII, Chapter XIV, Sloka 7).
[Moreover corporal punishment, confiscation of entire property, banishment from the town and branding, as well as amputation of that limb [with which the crime has been committed], is declared to be the punishment for Sahasa of the highest degree].
This sentence should be distinguished from the sentence of banishment from the country which is not recommended. It should also be distinguished from the preventive action of externment from any place provided in some local Acts for goondas and other undesirable persons.
3. My detailed suggestions as regards this form of punishment are given below:
(1) "Externment" should be included as a punishment in the Penal Code. It means the prohibition of the convicted persons from residing in any specified area or locality for a specified period.
(2) The area from which the convicted person is to be externed must be within the jurisdiction of the convicting court.
(3) Such a punishment may be imposed either in lieu of or in addition to any other punishment for offences under sections 143, 147 and 148, I.P.C.; sections 188, 189 and 190. I.P.C.; sections 379, 380, 381 and 382 I.P.C., and for aggravated forms of theft such as robbery and dacoity and also for the offence of criminal trespass and its aggravated forms.
(4) The maximum period of externment should be two years. But it should not exceed the maximum period of imprisonment prescribed for the offence.
(5) Externment as a punishment may be imposed in addition to or as an alternative to the punishment of imprisonment or fine to which the convict may be sentenced.
(6) If the convict fails to comply with the order of externment he shall be liable to imprisonment for a period to be specified by the convicting court.
(7) The period of imprisonment in default of complying with the order of externment shall not exceed the maximum period of imprisonment prescribed for the offence.
(8) Whenever a part of the period of externment has been undergone, the term of imprisonment fixed in default shall be deemed to be reduced by such number of days as bears to the total number of days in that term the same proportion as the number of days for which externment is undergone bears to the number of days, of externment ordered.
(9) In calculating the reduction under proposition (8), any fraction of a day less than one-half shall be left out of account and any other fraction shall be counted as one day.
4. The main advantages of providing the punishment of externment for offences under the Code are these:
(1) Short-term imprisonment can be avoided in a large number of cases; thereby the evil effects of short-term-sentences mentioned in para. I will also be avoided and congestion in jail removed.
(2) Where persons 2therwise in respectable stations in life commit offences involving defiance of authority such as offences under sections 188, 189, 190 I.P.C. or even offences under sections 147 and 143, it may be preferable to extern them from the place where there is potentiality for mischief due to their local influence, rather than send them to jail.
(3) As this punishment can also be imposed in addition to the punishment of imprisonment, it will be more effective than section 106 Cr. P.C. in preventing undesirable persons (for a limited period of course) from committing offences in a locality where they have much influence, after they have undergone a substantive sentence of imprisonment.
5. There need be no apprehension that such a sentence-will be unconstitutional. It is a less severe sentence than imprisonment and as the constitutionality of the latter is beyond question, the former is also unassailable. It will be a 'reasonable restriction in public interest for the purpose of clause (5) of Article 19. In the International Covenant of 1966 also while para. (1) of Article 12 says that there should be liberty of movement for 'every one lawfully within a state', para. 3, excludes from the scope of this article those restrictions which are provided by law to protect public order (omitting other particulars).