Report No. 42
Chapter 3
Punishment
3.1. Existing punishments under the Code.-
The punishments to which an offender is liable under the Code, as enumerated in section 53, affect his life, liberty or property. The corporal punishment of whipping, which was first added and regulated by the Whipping Act of 1864 (repealed and replaced by the Whipping Act of 1909), was abolished in 1955. Apart from the extreme sentence of death which is permissible under very few sections, the punishments provided in the Code either deprive the offender of his liberty or of his property or both. Loss of liberty may take the form of imprisonment for life or for a specified term; and the latter may be either rigorous, that is, with hard labour, or simple, that is, without compulsory labour of any sort. Loss of property may be caused either by directing forfeiture to the State of specific property of the offender or by ordering him to pay a specified sum as fine.
3.2. Certain additional punishments considered.-
These punishments have been in vogue everywhere from ancient times and have come to be recognised as the normal methods available for dealing with criminals. While legal systems based on, or deriving from; English common law and jurisprudence have not adopted any other forms of punishments, we found that the penal codes of some European countries, particularly that of Russia, provided for certain additional punishments which appeared to be worth considering. We accordingly included in our Questionnaire a question in the following terms.-
"The punishments provided in the Code are death, imprisonment for life, rigorous and simple imprisonment, forfeiture of property and fine. Do you consider it necessary or desirable to add any other punishments, e.g.,
(a) banishment for a term to a specified locality in India;
(b) externment for a term from a specified locality;
(c) corrective labour;
(d) imposition of a duty to make amends to the victim by repairing the damage done by the offence;
(e) publication of name of the offender and details of the offence and sentence;
(f) confiscation.
"In respect of what offence or types of offences would such punishments be appropriate?"
As was to be expected, interesting, but widely differing, views were expressed by the Judges, lawyers and others consulted by us.
3.3. Banishment.-
Banishment or exile from the king's realm was a recognised punishment in ancient and mediaeval times, mainly for the king's enemies and political offenders of a certain status. In modern conditions, however, it can hardly be contemplated as a judicial sentence following conviction for a crime, however serious that crime may be. It might indeed be regarded as a serious violation of a human right to provide by law for the banishment of a citizen from the country even as a punishment for a serious crime. The question was therefore limited to the desirability of punishing an offender with banishment for a certain term to a specified locality within India.
3.4. The Russian scheme.-
Such a punishment is provided for in the U.S.S.R. under the name of exile. According to Article 25 of the Russian Penal Code, exile shall consist in the removal of a convicted person from the place of his residence, with obligatory settlement in a certain locality. It may be assigned as a supplementary punishment for a term of two to five years, only in instances specially indicated in the Penal Code. The organisation of work of exiles shall be the responsibility of executive committees of local Soviets of working people's deputies. The procedure, places and conditions for serving exile shall be established by legislation of the U.S.S.R.
3.5. Banishment not recommended.-
The suggestion did not find favour in any quarter. From the practical point of view, it almost necessarily involves the establishment of a penal settlement in each State, somewhat similar to the settlement in the Andaman Islands where convicts sentenced to transportation for life used to be sent. The running of such settlements and keeping effective control over the convict banished thereto will give rise to difficult problems of administration. If the control were to be strict, the settlements would degenerate into concentration camps. As an alternative to long-term imprisonment, banishment does not appear to have any appreciable advantage and cannot be recommended.
3.6. Externment.-
Another possible punishment which we considered was externment of the offender for a term from a specified locality. The underlying idea was that, if the offender was dissociated from his surrounding, his capacity for committing crimes of a particular type would be reduced. For instance, where the crime is one which is facilitated by the bad influence which the criminal exercises over the community in an area, it might be useful to keep him out of that area for a specified period. Again, for offences under section 188 of the Code constituted by a violation of an order tinder section 144 of the Code of Criminal Procedure and similar offences against the public tranquility, an order of externment might be a more suitable and effective punishment than a sentence of imprisonment for a short period.
3.7. Divided opinion.-
We found opinion on the subject more or less equally divided. Executive authorities were generally inclined in favour of such a punishment. The Bombay Act empowers the Commissioner of Police in the City of Bombay to pass externment orders against criminals as an executive measure, subject to review by the courts. While the State Government authorities thought this was a useful piece of legislation for keeping the goonda elements of the city under control, other expressed a contrary view doubting its efficiency and stressing the scope it affords for harassment and corruption.
3.8. Objections to the suggestion.-
We think there are serious and basic objections to prescribing externment as a form of judicial punishment, whether in addition to, or in lieu of, imprisonment for a term. If externment is effectively enforced, it is bound to be harsh on the offender as well as his dependants. On being driven away from his normal environment, he will naturally find it difficult to rehabilitate himself and find honest means of livelihood. If, as is likely, it results in his living apart from his family, the psychological effect on him will hardly be towards reformation and turning over a new leaf. As regards the non-criminal, agitational type of offender who is bent on breaking lawfully promulgated order for an ulterior object, the externment order is more likely to be flouted than obeyed. On the whole, we think that the disadvantages and objections to this form of punishment are serious, and are unable to recommend its inclusion in the Penal Code.1
1. This is the view of the majority. Shri R.L. Narasimham has given a separate note on the subject.
3.9. Corrective labour.-
A current development in penology is the emphasis on reformation and rehabilitation of the offender instead of retribution. This has led to an increasing use of non-custodial measures of punishment as contrasted with imprisonment of the traditional pattern. One form is known as corrective labour, the main object being to make the convict work at his own place or at a work-centre outside the ordinary prison and thereby avoid the necessary evils of a prison life.
3.10. System in force in U.S.S.R.-
This mode of punishment has been in force in the U.S.S.R. for a long time. Ideologically, it is traceable to the teachings of Lenin. According to Conrad's Crime and its Correction,1 Lenin's "Summary of the Essence of the section Concerning Punishments" of the Party Programme of 1919 formulated four basic points.-
(i) The administration of criminal justice should rely on the principle of the conditional discharge of the offender.
(ii) Courts should express the attitude of society towards crime and the criminal through the exercise of social reprimand.
(iii) Punishment should be without deprivation of liberty, as, for example, corrective labour on special public projects.
(iv) Prisons should be transformed into educational institutions in which offenders are educated rather than isolated.
1. Conrad, Crime and its Correction, (1965), p. 157.
These are impeccable ideals which can hardly be improved upon by any penal law reformer. The working of a corrective labour sykem in U.S.S.R. has been described2 thus.-
"Corrective labour is claimed to be one of the most typical penalties in Soviet law. Its essential feature is that the offender is not deprived of his liberty. A corrective labour sentence is served either at the place of the offender's ordinary work, or in a special corrective labour institution in the locality where the offender is domiciled. The court decides which of these two alternatives will be applied. In both cases, a part ranging from five to twenty per cent is withheld from the "offender's salary." It is stressed, however, by Soviet authors that corrective labour should not be equated with a fine. The essential punishment is the work that has to be done; further, a fine is a fixed sum, while the amount of money withheld from one's salary alters according to his salary.
"Corrective labour is the standard penalty in most cases where the seriousness of the offence does not require the offender to be isolated from society. One year is the longest period for which it can be imposed; one month is the minimum.
"The lighter form of corrective labour is that under which the offender continues working at the same place as at the time of his sentence. The other form of corrective labour consists in assigning work to him in the locality where he lives; this will usually mean heavy physical work; the place where the offender is put to work must be within reach of his living quarters, because.... the essential feature of corrective labour is that the offender is not deprived of his liberty and can go home after he has done his day's work. When the court has sentenced a person to corrective labour in a special corrective labour institution, the selection of the institution rests with the corrective labour inspectorate, a branch of the Ministry of Internal Affairs."
To complete the picture from the legislative angle, we reproduce here Articles 27 and 28 of the Criminal Code of the R.S. F.S.R. 1960.-
"Article 2.-Correctional tasks without deprivation of freedom.
Correctional tasks without deprivation of freedom shall be assigned for a term of one month to one year and shall be served, in accordance with the judgment of the court, either at the place of work of the convicted person or in any other place determined by the agencies in charge of application of correctional tasks, but in the convicted person's district of residence.
Deductions from the wages of a person condemned to correctional tasks without deprivation of freedom shall be made at a rate established by the judgment of the court within the limits of five to twenty per cent of the wages, and shall be transferred to the State. For persons deemed incapable of working, a court may replace correctional tasks by a fine, social censure, or imposition of the duty to make amends for the harm caused.
The time of serving correctional tasks, including time served at the place of work of the convicted person, shall not be counted in job seniority. If a convicted person serves correctional tasks under conditions of conscientious work and exemplary conduct, the court may, after the convicted person has served such punishment, upon petition of a social organisation or collective working people, include the time of serving correctional tasks in his job seniority.
Article 2.-Consequences of evasion of correctional tasks.
In the event that a person evades serving correctional tasks at the place of work, the court may replace the sentence by correctional tasks at places determined by agencies in charge of application of such punishment. In the event of evasion of correctional tasks in the places determined by the designated agencies, the court may "replace the sentence by deprivation of freedom, with every three days of the unserved term of correctional tasks to be replaced by one day of deprivation of freedom."
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