Posted on: August 10, 2020 Posted by: Sanika Paithankar Comments: 0
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           “Crime is a pathological aberration. The criminal can ordinarily be redeemed, and the state must rehabilitate rather than avenge”. Following article focuses on the need for punishment reforms to be done in the criminal justice system by establishing a pragmatic approach in the courts and replacing the custodial punishments with rehabilitative ones.


“Law should not sit limply, while those who defy it go free and those who seek its protection lose hope”.

The State has created a system of criminal justice to protect the rights of the innocent and to punish the guilty. The scheme, developed, more than a century ago, has become ineffective. Many guilty offenders remain unpunished in many cases; the framework takes years to get the guilty to justice; and has ceased to dissuade the criminals. “Our system of administration justice is a transplanted one that has taken root in this country, but still has colonial roots and traces.” The criminal justice system in India is about to collapse as it is common understanding that one of the big obstacles affecting it is a relatively poor rate of conviction in cases involving serious crimes. This has given rise to crime. Life has become dangerous and people are living in constant fear. The state of law and order has deteriorated, and people have lost confidence in the system of criminal justice. In India, the system faces a variety of obstacles that it must resolve to survive by gaining the trust of the people for whom it exists. The common man has no understanding of the underlying lacunas in it, and he is shocked to find that he does not get the relief or solution that he may justly have anticipated and eventually loses trust in the system. The program is thus alienated from the people for whom it has been created.

The primary objective of criminal law is the protection of the right of individuals to their personal liberty, freedom against intrusion by others – protection of the weak against the powerful, law against the lawless, peace against the aggression. For protecting freedoms of individuals, the State shall lay down codes of conduct and penalties upon its infringement and set up machinery for application of laws and the protection procedures of it. In the uncivilized society, there was no criminal law. Every man was responsible to be attacked by someone at any time on his person or land. The person in dispute, either succumbed or defeated his rival. “A tooth for a tooth, an eye for an eye, a life for a life”[i] was the precursor to criminal justice. As time went on, the victim decided to seek compensation instead of killing his enemy. Subsequently, there was a “sliding scale” of offenses coming into existence. Such a scheme has given rise to an outdated criminal law system. The implementation of these concepts remained with the parties themselves for a long time, but this task eventually came to be carried out by the state through the establishment of the criminal justice system. The whole existence of an orderly society is based on the sustainable and effective functioning of this system.

Since the IPC was introduced in the year 1860, several changes have taken place but not enough to meet the ends of the justice. Organized crime is global and has its consequences. Economic activities are transnational in operations and there is no territorial barrier to cybercrimes. Sexual assault, sexual exploitation, drug trafficking, human smuggling in women and girls, pornography, airplane hijacking are all crimes that have no spatial or geographical limits and that influence the entire society.[ii] Modern ways of crime have come into being, and thus sentences for such crimes tend to be terribly ineffective and the need to enforce only a fine Sentence is felt for minor offences. The range of penalties imposed is limited. There is also a dire need for new ways of punishment. This would therefore be necessary to address and tackle the need to curb these new crimes, which are expected to increase in number and frequency.

Punishment is the way society denounces the wrongdoings and helps to preserve respect for the law. Punishment for serious crimes should represent adequately the revulsion felt by most of the people. It is important to understand and consider the object of punishment, whether it is dissuasive, reformative, or preventive. The purpose of sentencing is based on the idea that the perpetrator must understand that the crime committed by him has created not only a dent in the victim’s life but a concavity in the moral structure as well. Just punishment is intended to mean that the society will not suffer from such crime again. This is worth bearing in mind the concept of proportionality between the offense committed and the penalty levied. It is got to see the effect on society. Similar view was expressed in the Shyam Narain vs State (NCT of Delhi)[iii], case. Also, it must be kept in mind is that certain offenses are so outrageous that society insists on adequate punishment because the offender deserves it, regardless of whether it is dissuasive or not. Since some of these crimes are crimes against society, against public safety, against welfare of the masses, such punishment should be upheld.[iv]

In Deo Narain Mandal Vs. State of UP[v], “Proper Sentence” was clarified earlier, by observing that, Punishment must be adequately severe to serve as a deterrent but not too harsh to be brutal. Likewise, punishments should be mild enough to be humane but not too severe to be inefficient. When deciding the quantum of penalty, the court must take account of the principle of proportionality. As far as the criminals are concerned, there should be different kinds of punishments. Likewise, many factors are relevant in fixing a sentence, the nature of the crime, the way the crime is committed, the absolute cruelty of the same, the turpitude of the man’s mind.[vi] In Soman v. Kerala’s judgment of the Supreme Court[vii], the Court cited a range of concepts that it found “when exercising discretion in sentencing,” such as proportionality, deterrence, and rehabilitation. Unreasonable sympathy for imposing an inadequate sentence will do more harm to the justice system to undermine public confidence in the effectiveness of the law. The courts must consider not only the rights of the victim of the crime, but also the rights of society, whilst considering appropriate punishment. Sometimes the courts are unreasonably strict, sometimes they can be liberal. Court discretion cannot be exercised arbitrarily or whimsically in granting sentence.[viii]

The need of the hour is various kinds of punishments. “Crime is a pathological aberration. The criminal can ordinarily be redeemed, and the state must rehabilitate rather than avenge.[ix] “Consequently, the infliction of extreme and inhuman punishment is a legacy of past and regressive times. The human being currently sees sentencing as a method of reshaping a deteriorating individual and the society has a primary interest in rehabilitating the offender as a means of social protection. Therefore, a pragmatic approach should prevail in our criminal system, rather than an ‘in terrorem’ view. “If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries.”[x] Disqualification from holding public office, community removal etc. are some of the steps to be implemented and not the detention in jail. Such punishments are not custodial in nature. These incorporate a whole range of new and novel punishments like, collective punishments, temporary suspension of sentence, probation i.e. supervision during suspension, financial penalties, orders for community rehabilitation are several of the reforms that can be introduced. In other words, little has been done to change the punishment system i.e. the traditional punishments enumerated in Section 53 of the Penal Code, Chapter III deals with the kinds of punishments which can be inflicted on the offenders, which was enacted in 1860.

The Malimath committee recommended that the Indian Penal Code be reviewed. Improvement, elimination, or substitution of alternative forms of punishment, in accordance with the need for more alternatives to criminal law in punishment is suggested, rather than merely limiting the option to fines and imprisonment.[xi] Regarding the intensity of punishments, in similar cases there is a need for continuous review to ensure it meets the ends of fairness and inequality is minimized. A strategy must be developed and rigorously followed at all levels to avoid short-term imprisonments and to prevent overcrowding in prisons and other custodial institutions.[xii] An alternative to death penalty i.e. capital punishment should be provided by granting “Imprisonment for life without commutation or remission” in which state governments are unable to exercise revocation or commutation power. Nevertheless, this cannot influence the President and the Governor’s Power of pardon etc. under Articles 72 and 161, respectively. More than a century ago, the amounts of fines were prescribed. Thus, reforming the fines and bail amounts in proportion to the crime’s gravity may potentially increase the system’s equity and efficiency. Granting bail on humanitarian grounds in case of pregnant women and mothers having kids under the age of 7 yrs. was also recommended[xiii] and is also stated in the Sudha Sandeep Devgirkr vs Union of India.[xiv]

Equality in sentencing is not actively sought and there is no significant effort yet to standardize the norms and procedures of sentencing. Considering the limited alternatives in the variety of punishment currently available in the laws and the often-imposed insufficient deterrence in the sentence, thorough rethinking of the concept, justification and impact of sentencing in the administration of criminal justice, needs to be carried out.

Thus, in criminal affairs, sentencing is an important activity. One of the criminal law’s primary objectives is to impose an appropriate, adequate, fair, and proportionate sentence which commensurate with the nature and gravity of the crime and the way it is perpetrated. The country’s judicial trend has been to strike a balance between reform and penalties. Which punishment will meet the ends of justice depends on the circumstances of each case, and the court must take into account the severity of the crime, the reason for the crime, the nature of the offense and all the other circumstances involved. There needs to be a fundamental shift in the legislation and judicial process if punishment is to support the criminal justice cause. The country’s judicial trend has been to strike a balance between reform and penalties. The security of society and the stamping out of criminal kindness must be the object of law that can be accomplished by imposing reasonable penalties on offenders and wrongdoers.

Law, as an instrument for preserving order and stability, would effectively tackle the problems faced by the society, as civilization cannot not survive and grow long under severe threats of crime and disharmony. A collection of sentencing guidelines can be legally binding. The system has now evolved to make it coherent and purposive. Fixing mandatory minimum sentences cannot be a valuable solution. More specifically, the approach would be to increase the punishment options and make the system’s other functionaries have a place in the sentencing process and administration. In short, sentences and punishments require immediate consideration from policy makers if criminal justice is to maintain its public integrity.

All of these clearly illustrate the developments and the changing trends in sentencing and some other facts, which are aimed at bringing about a psychological change in the accused, having an effect on the mind such that the same will bring about some individual reformation. It is time we try to figure out the etiology of the crime in our country through the advancement of science, medicine and human psychology and to bring in legislation that incorporates a whole range of modern and creative punishments some of which are addressed in this article.

Therefore, the jurisprudence of criminal justice introduced in the country is not retributive but reformatory and corrective. Around the same time, it is also important to avoid undue harshness, keeping in mind the reformist approach behind our criminal justice system.

References (Endnotes):

[i] Need for reforms committee on reforms of criminal justice system government of India, ministry of home affairs. (march2003). Available at <> accessed on 22nd July 2020.

[ii] Ibid

[iii] Shyam Narain vs State (NCT of Delhi)#, (2013) 7 SCC 77

[iv] Materni, M.C, 2013. Criminal punishment and the pursuit of justice. Brit. J. Am. Legal stud., 2, p.263.

[v] Deo Narain Mandal Vs. State of UP# (2004) 7 SCC 257

[vi]  Duff, R.A., 1996. Penal communications: recent work in the philosophy of punishment. Crime and justice, pp.1-97.

[vii] Soman v. State of Kerala, (2013) 11 SCC 382

[viii]  Sham Sunder vs Puran, (1990) 4 SCC 731.

[ix] Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926.

[x] Ibid

[xi] k. Deep Lakshmi, the Malimath committee’s recommendations on reforms in the criminal justice system in 20 points (17 January 2018), the Hindu.

Available at< >accessed on 22nd July 2020.

[xii]  ibid 

[xiii] “In considering bail for a pregnant woman, the personhood of her fetus must be a factor.” The wire available at.<> accessed on 22nd July 2020.

[xiv] Sudha Sandeep Devgirkr vs union of India, BOM H.C, W.P.(c)-10835 of 2018.

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Sanika Paithankar
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Second year B.A.LL.B Student at ILS Law college, Pune.

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